Sei sulla pagina 1di 83

REVIEWER

ON SUCCESSION † Rule Regarding Pecuniary Obligations


Based on 4 A literal construction of Art774 appears to
JOTTINGS AND JURISPRUDENCE IN CIVIL LAW – SUCCESSION imply that money obligations of the deceased
By Atty. Ruben Balane would pass to the heirs, to the extent that
they inherit from him.
• Seemingly, this article mandates that

the heirs receive the estate, and then
CHAPTER 1 pay off the creditors.
GENERAL PROVISIONS 4 However, Philippine procedural law, as
influenced by the common-law system, lays
down a different method for the payment of
money debts, as found in Rules 88 to 90 of the
ART. 774. Succession is a mode of acquisition by Rules of Court. It is only AFTER the debts are
virtue of which the property, rights and paid that the residue of the estate is
obligations to the extent of the value of distributed among the successors.
the inheritance, of a person are
transmitted through his death to another † Rule 90, Sec1 provides for the When the Order for
or others either by his will or by operation the Distribution of Residue is made.
of law. 4 According to the rule, when the debts, funeral
charges and expenses of administration, the
† The Code has simplified the concept of succession
allowance to the widow and the inheritance
and treats it simply as one of the 7 Modes of
tax have all been paid, that is the only time
Acquiring Ownership as enumerated in Art712 of
that the court shall assign the RESIDUE of the
the NCC.
estate to persons entitled to it.

4 The rule also provides that there shall be no
† 7 MODES OF ACQUIRING OWNERSHIP
distribution until the payment of the
1. Occupation
obligations enumerated above, have been
2. Intellectual Creation
made or provided for. However, if the
3. Law
distributees give a bond for the payment of
4. Donation
the said obligations within such time and of
5. Estate and Intestate Succession
such amount as fixed by the court, the
6. Tradition
distribution may be allowed.
7. Prescription


† In our system therefore, money debts are,
† Overlap of Codal Definition with Art776
properly speaking, not transmitted to the heir nor
4 Article 774 talks of “property, rights and
paid by them. The estate pays them and it is only
obligations to the extent of the value of the
what is left after the debts are paid [residue] that
inheritance.”
are transmitted to the heirs.
4 Article 776 talks of the “inheritance” as

including “all the property, rights and
† Justice JBL Reyes observed that Philippine rules of
obligations of a person which are not
Succession Mortis Causa proceed from an
extinguished by his death.”
imperfect blending of 3 Systems with Contrasting
4 For clarity and better correlation, Prof. Balane
Philosophies:
opines that Art774 should rather read:

“Succession is a mode of acquisition by
1. GERMANIC CONCEPT OF UNIVERSAL HEIR
virtue of which the inheritance of a person is
transmitted through his death to another or • Heir directly and immediately steps into
the shoes of the deceased upon the
others either by his will or by operation of
law.” latter’s death
4 And the inheritance which is transmitted • At one single occasion [uno ictu]
through a person’s death is defined by Article • Without need of any formality
776 to include “all the property, rights and • En mass
obligations of a person which are not • Automatic Subjective Novation
extinguished by his death.”
2. FRANCO-SPANISH SYSTEM
† What are Transmitted by Succession? • Acquisition of estate by universal title
4 Only Transmissible Rights and Obligations. but only upon acceptance by the heir at
4 General Rule – if the right or obligation is any time, with retroactive effect.
strictly personal [intuitu personae], it is • Acceptance may be made any time
intransmissible; otherwise it may be except when the creditors or the court
transmitted. requires it be done within a certain time.

SUCCESSION - Balane Reviewer Page 1 of 116
• This is the system followed by the NCC, • Art1057 – within 30 days after the
by having the following features: court has issued an order for the
a) Universality of Property Rights and distribution of the estate in
Obligations accordance with the RoC, the heirs,
b) Transmitted from the moment of devisees and legatees shall signify to
death the court having jurisdiction, whether
c) En bloc, as an entire mass they accept or repudiate the
d) Transmitted even before judicial inheritance.
recognition of heirship. • The order of distribution under the
RoC is issued only after the debts,
3. ANGLO-AMERICAN [COMMON LAW] SYSTEM taxes and administration expenses
• Estate must first be liquidated, assets have been paid; hence it is arguable
marshaled and the debts paid or settled that the acceptance can no longer
under judicial supervision, by an refer to assets already disposed of by
intervening trustee or personal the administrator, but must be
representative [administrator or limited to the net residue.
executor] before the net residue is taken • But if title vests in the heir as of the
over by the successor. death of the decedent then the
• This is the system followed by the Rules acceptance of the heir becomes
of Court, in that: entirely superfluous, and the law
a) Executor or administrator has should limit itself to regulating the
possession and management of the effects the effects of a repudiation by
estate as long as necessary for the an heir or legatee, and its retroactive
payment of debts and expenses of effect.
administration, with authority to
exercise the right of disposition. 4 Or do the successors acquire only the NAKED
b) Section 3 Rule 87 – action to recover TITLE at the death of the predecessor, but
title or possession of lands in the with possession or enjoyment vested in the
hands of the executor or administrator or personal representative until
administrator can be maintained by after settlement of the claims against the
the heir only upon the order of the estate?
Court assigning such land to the heir
or devisee. † RESULT of these divergent rules – Creditors must
c) Section 1 Rule 90 – heirs may now pursue their claims during the settlement
recover their share only upon: proceedings and not against the heirs individually.
§ Payment of debts,
expenses and taxes ART. 775. In this Title, “decedent” is the general
§ Hearing conducted by the term applied to the person whose
court property is transmitted through
§ Court assigns the residue of succession, whether or not he left a will. If
the estate to the heirs. he left a will, he is also called the testator.

† Decedent – general term, person whose property
† As a result of the blending of these 3 systems, JBL
is transmitted
Reyes says that we are thus faced with divergent,
Testator – specific term, person who transmits his
if not contradictory principles.
property via a will.
4 Do the successors acquire the WHOLE of the

transmissible assets and liabilities of the
† It is unfortunate that the Code does not use the
decedent?
term “Intestate” to refer to a decedent who died
• Art774 – by virtue of succession the
without a will, This would have prevented the
property, rights and obligations, to
ambiguity now inherent in the term “decedent”
the extent of the value of the

inheritance of a person, are
ART.776. The inheritance includes all the property,
transmitted by and at the moment of
rights and obligations of a person which
his death, implying a transfer at that
are not extinguished by his death.
instant of the totality or universality
of assets and liabilities. † Overlap of Codal Definition with Art776
4 Article 774 talks of “property, rights and
4 Do the successors only acquire the RESIDUUM obligations to the extent of the value of the
remaining after payment of the debts, as inheritance.”
implied by the Rules of Court? 4 Article 776 talks of the “inheritance” as
including “all the property, rights and

SUCCESSION - Balane Reviewer Page 2 of 116


obligations of a person which are not • Because the heir acquires ownership
extinguished by his death.” at the moment of death and become
parties in interest.
4 For clarity and better correlation, Prof. Balane
opines that Art774 should rather read: † It should be emphasized that the operation of Art.
“Succession is a mode of acquisition by 777 is at the very moment of the decedent’s
virtue of which the inheritance of a person is death, meaning the transmission by succession
transmitted through his death to another or occurs at the precise moment of death and
others either by his will or by operation of therefore the heir, devisee, or legatee is legally
law.” deemed to have acquired ownership at that
moment, even if, particularly in the heir’s case,
† And the inheritance which is transmitted through he will generally not know how much he will be
a person’s death is defined by Article 776 to inheriting and what properties he will ultimately
include “all the property, rights and obligations of be receiving, and not at the time of declaration of
a person which are not extinguished by his death.” heirs or partition or distribution.

ART. 777. The rights to the succession are ART. 778. Succession may be:
transmitted from the moment of the
(1) Testamentary
death of the decedent.
(2) Legal or Intestate, or
† Time of Vesting of Successional Right (3) Mixed

† Prof. Balane says the terminology used in this ART. 779. Testamentary succession is that which
article is “infelicitous” because the right to the results from the designation of an heir,
succession is not transmitted; but rather vested. made in a will executed in the form
4 To say that it is transmitted upon death prescribed by law.
implies that before the decedent’s death, the
ART. 780. Mixed succession is that effected partly by
right to the succession was possessed by the
will and partly by operation of law.
decedent [which is absurd].
4 To say that it vests upon death implies that † 3 KINDS OF SUCCESSION ACCDG TO ART. 778:
before the decedent’s death the right was 1. TESTAMENTARY
merely inchoate [which is correct]. • That which results from the
designation of an heir, made in a will.
† THE LAW PRESUMES THAT THE PERSON 2. LEGAL OR INTESTATE
SUCCEEDING – • Lost definition: “takes place by
1. Has a right to succeed by operation of law in the absence of a
a) Legitime [compulsory valid will.”
succession], 3. MIXED
b) Will [testamentary succession], • That effected partly by will and partly
or by operation of law.
c) Law [intestate succession]
† Some observations –
2. Has the legal capacity to succeed, and 4 Enumeration cannot satisfactorily
accommodate the system of legitimes.
3. Accepts the successional portion • Legal or intestate succession operates
only in default of a will [Arts960 and
† The vesting of the right occurs immediately upon 961], while the legitime operates
the decedent’s death; i.e. without a moment’s whether or not there is a will, in fact
interruption. From this principle, the following prevails over a will.
consequences flow – • There are instances where the rules on
1. The law in force at the time of the decedent’s legitime [Arts 887..] operate, to the
death will determine who the heirs should be exclusion of the rules on intestacy [Arts
• New Civil Code – August 30, 1950 960..]
• It is therefore best for clarity, to classify
2. Ownership passes to the heir at the very succession to the legitime as a separate
moment of death, who therefore, from that and distinct kind of succession, which,
moment acquires the right to dispose of his for want of a better term, can be
share. denominated compulsory succession.
3. The heirs have the right to be substituted for
the deceased as party in an action that 4 Until the effectivity of the Family Code, there
survives. was one exceptional case of succession by

SUCCESSION - Balane Reviewer Page 3 of 116


contract [contractual succession] found in † The inheritance includes only those things
Article 130 of Civil Code. enumerated in Article 776. Whatever accrues
ART 130. The future spouses may give thereto after the decedent’s death [which is when
each other in their marriage settlements the succession opens] belongs to the heir, not by
as much as one-fifth of their present virtue of succession, but by virtue of ownership.
property, and with respect to their future
property, only in the event of death, to † To say, as Art781 does, that accruals to the
the extent laid down by the provisions of inheritance after the decedent’s death are
this Code referring to testamentary included in the inheritance is to negate the
succession. principle in Art777 that transmission takes place
precisely at the moment of death.
• Donations propter nuptias of future 4 Once the decedent dies and the heir inherits,
property, made by one of the future the fruits of the property or inheritance
spouses to the other, took effect mortis belongs to the heir by accession, and not by
cause, and had only to be done in the succession. This is so even if the heir does not
marriage settlements, which were actually receive the inheritance.
governed only by the Statute of Frauds. † Art781 should have left well enough alone.
• It was the only instance of Contractual
Succession in our civil law. † Question – If the assets left behind by the
• This has been eliminated by the Family decedent are not sufficient to pay the debts, may
Code in Article 84 paragraph 2: the creditors claims the fruits produced by the
decedent’s property after his death? Or do these
“Donations of future property shall be fruits pertain to the heirs?
governed by the provisions on 4 But wouldn’t the debts be deducted from the
testamentary succession and the estate first before the properties are
formalities of wills.” distributed to the heirs?

• Since under the provision, any donation ART. 782. An heir is a person called to the
of future property between the affianced succession either by the provision of a will
couple is to be governed by the rules of or by operation of law.
testamentary succession and the forms Devisees and legatees are persons to
of wills, contractual succession no longer whom gifts of real and personal property
exists in this jurisdiction. are respectively given by virtue of a will.
• Such a donation becomes an ordinary
case of testamentary succession.
† HEIR – person called to the succession either by
† FOUR KINDS OF SUCCESSION ACCORDING TO will or by law
IMPORTANCE [Prof. Balane] DEVISEE – persons to whom gifts of real property
1. COMPULSORY are given by virtue of a will.
• Succession to the legitime LEGATEE – persons to whom gifts of personal
• Prevails over all other kinds property are given by virtue of a will.

2. TESTAMENTARY [Art. 779] † The distinction between an heir and a devisee or
• Succession by will legatee is important because on this distinction
depends the correct application of Art854 on
3. INTESTATE preterition.
† In cases of preterition, the institution of an heir is
• Succession in default of a will
annulled, while the institution of legatees and

4. MIXED [Art. 780] devisees is effective to the extent that the
legitimes are not impaired.
• Not a distinct kind really, but a

combination of any two or all of the
† The codal definitions are neither clear nor very
first three.
helpful. They are so open-ended that an heir can

fall under the definition of a legatee/devisee and
ART. 781. The inheritance of a person includes not
vice-versa.
only the property and the transmissible
4 “I give X my fishpond in Navotas” – by
rights and obligations existing at the time
definition of heir, is not X called to the
of his death, but also those which have
succession by provision of a will and therefore
accrued thereto since the opening of the
an heir?
succession.
4 “I give X ¼ of my estate” – if in the partition, X
† Article 781 is best deleted; it serves only to receives a fishpond, can X, by definition, not
confuse.
SUCCESSION - Balane Reviewer Page 4 of 116
be considered a devisee, having received a gift CHARACTERISTICS OF WILLS
of real property by will?
1. PURELY PERSONAL
† The definitions of the Spanish Code in conjunction • Articles 784, 785 and 787
with Castan’s explanations are more helpful:
• HEIR – one who succeeds to the WHOLE or 2. FREE AND INTELLIGENT
an Aliquot part of the inheritance • Article 839
• DEVISEE / LEGATEE – those who succeed to • The testator’s consent should not be vitiated
definite, specific, and individual by the causes mentioned in Article 839
properties. paragraphs 2-6 on Insanity, Violence,
Intimidation, Undue Influence, Fraud and
Mistake.

3. SOLEMN AND FORMAL
CHAPTER 2
• Articles 804-814 and 820-821
TESTAMENTARY SUCCESSION
• The requirements of form depend on whether
the will is attested or holographic.
• Articles 805-808 and 820-821 govern attested
wills. Articles 810-814 govern holographic
SECTION 1 – WILLS wills. Article 804 applies to both.

Subsection 1 – Wills in General 4. REVOCABLE AND AMBULATORY
• Article 828
ART. 783. A will is an act whereby a person is
permitted, with the formalities prescribed 5. MORTIS CAUSA
by law, to control to a certain degree the • Article 783
disposition of his estate, to take effect • This is a necessary consequence of Articles
after his death. 774 and 777.

6. INDIVIDUAL
† Operative Words in the Definition • Article 818
1. ACT • Joint wills are prohibited in this jurisdiction.
• The definition of a will as an act is too
broad and should have been more 7. EXECUTED WITH ANIMUS TESTANDI
clearly delimited with a more specific • This characteristic is implied in Article 783
term such as instrument or document, in • Rizal’s valedictory poem “Ultimo Adios” was
view of the provision of Art804 that not a will. An instrument which merely
“every will must be in writing.” expresses a last wish as a thought or advice
• NUNCUPATIVE or oral wills are not but does not contain a disposition of property
recognized in our Code, unlike the and was not executed with animus testandi,
Spanish Civil Code wherein military wills cannot be legally considered a will.
could be oral.
8. EXECUTED WITH TESTAMENTARY CAPACITY
2. PERMITTED • Articles 796 – 803 on testamentary capacity
and intent
• Will-making is purely statutory.


9. UNILATERAL
3. FORMALITIES PRESCRIBED BY LAW
• This characteristic is implied in Article 783
• The requirement of form prescribed

respectively for attested and holographic 10. DISPOSITIVE OF PROPERTY
wills. • Article 783 seems to consider the disposition
of the testator’s estate mortis causa as the
4. CONTROL TO A CERTAIN DEGREE purpose of will-making.
• The testator’s power of testamentary
disposition is limited by the rules on 11. STATUTORY
legitimes. • Will-making is a permitted by statute.

5. AFTER HIS DEATH
• Testamentary succession, like all other † The present Civil Code seems to limit the concept
kinds of succession in our Code, is mortis of a will to a disposition of property to take effect
causa. upon and after death.
† It is only when the will disposes of property, either
directly or indirectly, that it has to be probated.
SUCCESSION - Balane Reviewer Page 5 of 116
When there is no disposition of property, it is 2. The duration of efficacy of such
submitted that, although the instrument may be designation, including such things as
considered as a will, it does not have to be conditions, terms, substitutions;
probated; its dispositions which are provided by 3. The determination of the portions they
law, such as the acknowledgment of a natural child are to receive.
or the order that the patria potestas of the widow
shall continue after her remarriage, can be give ART. 786. The testator may entrust to a third person
effect even without probating the will. the distribution of specific property or
sums of money that he may leave in
† Questions general to specified classes or causes, and
4 Would a document merely appointing an also the designation of the persons,
executor, not containing any dispositive institutions or establishments to which
provision, have to comply with the formal such property or sums are to be given or
requirements of a will in order to be effective? applied.
Would such a document have to be probated?
† Exception to the Rule on Non-Delegability of Will-
• Justice Hofilena says NO, because
Making. Without this provision, the things allowed
there is no disposition and such
to be delegated here would be non-delegable.
appointment would not be under the

category of a will. Therefore, the
† TWO THINGS MUST BE DETERMINED BY THE
formal requirements of a will do not
TESTATOR –
apply.
1. The property or amount of money to be
4 Would a document containing only a
given; and
disinheriting clause have to be in the form of a
2. The class or the cause to be benefited.
will and be probated? [Article 916]

• YES. According to Art916, † TWO THINGS MAY BE DELEGATED BY THE
disinheritance can be effected only
TESTATOR –
through a will wherein the legal 1. The designation of persons, institutions,
cause therefore shall be specified. or establishments within the class or
• A valid disinheritance is in effect a cause;
disposition of the property of the 2. The manner of distribution
testator in favor of those who would
succeed in the absence of the † Question – Suppose the testator specified the
disinherited heir. Unless the will is recipients by specific designation but left to the 3
rd
probated, the disinheritance cannot person the determination of the sharing, ex. “I
be given effect. leave P500,000 for the PNRC, the SPCA, and the
Tala Leprosarium, to be distributed among these
ART. 784. The making of a will is a strictly personal institutions in such proportions as my executor
act; it cannot be left in whole or in part to may determine.” Valid?
the discretion of a third person, or 4 One View – Article 785 seems to prohibit this,
accomplished through the instrumentality because the recipients are referred to by
of an agent or attorney. name and therefore the portions they are to
† This provision gives the will its purely personal take must be determined by the testator.
character. Article 786 applies only where the testator
merely specifies the class or the cause but not
† NON-DELEGABILITY OF WILL-MAKING – the specific recipients.
4 It is the exercise of the disposing power that 4 Contra – This actually involves a lesser
rd
cannot be delegated. discretion for the 3 person than the
4 Obviously, mechanical aspects, such as typing, instances allowed by Article 786 and should
do not fall within the prohibition. be allowed.

ART. 785. The duration or efficacy of the ART. 787. The testator may not make a
designation of heirs, devisees or legatees, testamentary disposition in such manner
or the determination of the portions that another person has to determine
which they are to take, when referred to whether or not it is to be operative.
by name, cannot be left to the discretion † This rule is consistent with, and reinforces, the
of a third person. purely person character of a will, laid down in
† What Constitute the Essence of Will-Making or the Article 784.
Exercise of the Disposing Power? The ff are non- † This article should be interpreted rationally. It is
delegable: not to be so interpreted as to make it clash with
1. The designation of heirs, devisees or the principle expressed in Articles 1041-1057 of
legatees
SUCCESSION - Balane Reviewer Page 6 of 116
the NCC that the heir is free to accept or reject the 2. PATENT – obvious on the face of the will
testamentary disposition. • When an uncertainty arises upon the
rd
† What this article prohibits is the delegation to a 3 face of the will, as to the application of
person of the power to decide whether a any of its provisions
disposition should take effect or not. a) Patent as to PERSON – “I
institute ¼ of my estate to some
ART. 788. If a testamentary disposition admits of of my first cousins.
different interpretations, in case of doubt, b) Patent as to PROPERTY – “I
that interpretation by which the bequeath to my cousin Pacifico
disposition is to be operative shall be some of my cars.”
preferred. • In both cases, the ambiguity is
† Articles 788-794 lays down the rules of evident from a reading of the
construction and interpretation. testamentary provisions themselves;
† The underlying principle here is that testacy is
the ambiguity is patent [patere – to
preferred to intestacy, because the former is the be exposed]

express will of the decedent whereas the latter is
† HOW TO DEAL WITH AMBIGUITIES –
only his implied will.
4 The provisions of this article do not make a
† In statutory construction, the canon is: “That the
distinction in the solution of the problem of
thing may rather be effective than be without
effect.” ambiguities – whether latent or patent.
• Hence, the distinction between the 2
† A similar principle in contractual interpretation is
kinds of ambiguity is, in the light of
found in Art1373, which provides that “if some the codal provisions, an all but
stipulation of any contract should admit of several theoretical one.
meanings, it shall be understood as bearing that 4 The ambiguity should, as far as possible, be
import which is most adequate to render it cleared up or resolved, in order to give effect
effectual.” to the testamentary disposition.
• Based on principle that testacy is
ART. 789. When there is an imperfect description, or preferred to intestacy.
when no person or property exactly 4 Ambiguity may be resolved using any evidence
answers the description, mistakes and admissible and relevant, excluding the oral
omissions must be corrected, of the error declarations of the testator as to his intention.
appears from the context of the will or • Reason for the statutory exclusion is
from extrinsic evidence, excluding the oral that a dead man cannot refute a tale.
declarations of the testator as to his
intention; and when an uncertainty arises ART. 790. The words of a will are to be taken in their
upon the face of the will, as to the ordinary and grammatical sense, unless a
application of any of its provisions, the clear intention to use them in another
testator’s intention is to be ascertained sense can be gathered, and that other can
from the words of the will, taking into be ascertained.
consideration the circumstances under Technical words in a will are to be taken
which it was made, excluding such oral in their technical sense, unless the context
declarations. clearly indicates a contrary intention, or
unless it satisfactorily appears that he was
† 2 KINDS OF AMBIGUITY REFERRED TO – unacquainted with such technical sense.
† Similar rules are laid down in Rule 130 Sections 10
1. LATENT – not obvious on the face of the will and 14 of the Rules of Court –
• When there is an imperfect description Sec10. Interpretation of a writing according
or when no person or property exactly to its legal meaning – The language of a writing is
answers the description to be interpreted according to the legal meaning it
a) Latent as to PERSON – “I bears in the place of its execution, unless the
institute to ¼ of my estate my parties intended otherwise.
first cousin Jose” and the
testator has more than one first Sec14. Peculiar signification of terms – The
cousin named Jose. terms of a writing are presumed to have been
b) Latent as to PROPERTY – “I used in their primary and general application, but
devise to my cousin Pacifico my evidence is admissible to show that they have a
fishpond in Roxas City” and the local, technical, or otherwise peculiar signification,
testator has more than one and were so used and understood in the particular
fishpond in Roxas City.

SUCCESSION - Balane Reviewer Page 7 of 116
instance, in which case the agreement must be † This article creates problems which would not
construed accordingly. have existed had it not been so nonchalantly
† In contractual interpretation, a similar principle is incorporated in the Code, an implant from the
expressed in Article 1370 par1: Code of Civil Procedure and ultimately from
Art1370. If the terms of a contract are clear American law.
and leave no doubt upon the intention of the
contracting parties, the literal meaning of its † The problem springs from the fact that this article
stipulations shall control. makes the will speak as of the time it is made,
rather than at the time of the decedent’s death
ART.791. The words of a will are to receive an [which is more logical because that is when the
interpretation which will give to every will takes effect according to Article 777].
expression some effect, rather than one
which will render any of the expressions † Illustration – X executes a will in 1985 containing a
inoperative; and of two modes of legacy: “I give to M all my shares in BPI.” The
interpreting a will, that is to be preferred testator dies in 1990, owning at the time of his
which will prevent intestacy. death ten times as many BPI shares as he did when
he made the will.
† A similar rule is found in Rule 130 Sec11 of the
• Under Article 793, the shares acquired
RoC:
after the will was executed are NOT
Sec11. Instrument construed so as to give
included in the legacy.
effect to all provisions – In the construction of an

instrument where there are several provisions or
† Article 793 therefore departs from the codal
particulars, such a construction is, if possible, to be
philosophy of Articles 774 and 776 and
adopted as will give effect to all.
constitutes an EXCEPTION to the concept of

succession as linked to death and rendered
† In contractual interpretation, Articles 1373 and
legally effective by death.
1374 lay down similar principles –

Art1373. If some stipulation of any contract
† Prof. Balane suggests the provisions be reworded
should admit of several meanings, it shall be
as: “Property acquired after the making of a will
understood as bearing that import which is most
passes thereby unless the contrary clearly appears
adequate to render it effectual.
from the words or the context of the will.”
Art1374. The various stipulations of a
† In the meantime, it is suggested that a liberal
contract shall be interpreted together, attributing
application of the article be allowed.
to the doubtful one that sense which may result
4 Can the word “expressly” in this article be
from all of them taken jointly.
interpreted to mean “clearly” even if it might

be stretching a point?
ART. 792. The invalidity of one of several dispositions

contained in a will does not result in the
ART.794. Every devise or legacy shall cover all the
invalidity of the other dispositions, unless
interest which the testator could device or
it is to be presumed that the testator
bequeath in the property disposed of,
would not have made such other
unless it clearly appears from the will that
dispositions if the first invalid disposition
he intended to convey a less interest.
had not been made.
† This article should be read together with Art929,
† This article makes applicable to wills the
which provides that “if the testator, heir, or
SEVERABILITY OR SEPARABILITY PRINCIPLE in
legatee owns only a part of or an interest in the
statutory construction frequently expressly
thing bequeathed, the legacy or devise shall be
provided in a separability clause.
understood limited to such part or interest, unless
† The source of this article is Art2085 of the German
the testator expressly declares that he gives the
Civil Code which provides that the invalidity of one
thing in its entirety.
of several dispositions contained in a will results in

the invalidity of the other dispositions only if it is
† GENERAL RULE – in a legacy or devise the testator
to be presumed that the testator would not have
gives exactly the interest he has in the
made these if the invalid disposition had not been
thing.
made.
EXCEPTIONS – he can give a less interest [Art794] or

a greater interest [Art929] than he has.
ART. 793. Property acquired after the making of a

will shall only pass thereby, as if the
4 In the latter case, if the person owning the
testator had possessed it at the time of
interest to be acquired does not wish to part
making the will, should it expressly
with it, the solution in Art931 can be applied
appear by the will that such was his
wherein the legatee or devisee shall be
intention.

SUCCESSION - Balane Reviewer Page 8 of 116


entitled only to the JUST VALUE OF THE ART. 795. The validity of a will as to its form
INTEREST that should have been acquired. depends upon the observance of the law
in force at the time it is made.
RE-CAP OF THE RULES ON INTERPRETATION † ASPECTS OF VALIDITY OF WILLS
AND CONSTRUCTION OF WILLS
A. EXTRINSIC – refers to the requirement of form
1. In case of doubt, testacy is preferred and / formal validity
disposition should be interpreted in manner 1. Governing law as to TIME
which would make it operative. a. Filipinos – law in force when the will
was executed [Art795]
2. Two kinds of Ambiguities b. Foreigners – same rile. The assumption
• Latent – imperfect description or when here is that the will is being
no person or property exactly answers to probated in the Philippines.
description. 2. Governing law as to PLACE
• Patent – based on the face of the will as § Filipinos or Foreigners
to the application of any of its provisions a. Law of citizenship
b. Law of domicile
3. In case of ambiguity, may resort to any c. Law of residence
evidence, even extrinsic evidence, but may d. Law of place of execution, or
not resort to oral declarations of the testator e. Philippine law
as to his intention. § Articles 815-817 - Rules of formal validity
a. Filipino Abroad - According to the
4. Words of a will shall be taken in their ordinary law in the country in which he
and grammatical sense, unless: may be and may be probated in
• Another sense or meaning is clearly the Philippines
intended to be used, and b. Alien abroad - Has effect in the
• That other sense or meaning can be Philippines if made according to:
ascertained Law of place where he resides,
Law of his own country or
5. Technical words shall be taken in technical Philippine law
sense, except: c. Alien in the phils. - Valid in Phils. as
• When context clearly indicates otherwise if executed according to Phil. laws,
if: Made according to law of
• Will was drawn solely by the testator and
country which he is a citizen or
he was not acquainted with the technical
subject, and May be proved and
meaning of such word.
allowed by law of his own

country.
6. Words are to receive interpretation which will

give it some effect.
B. INTRINSIC – refers to the substance of the

provisions / substantive
7. Invalidity of one disposition in a will does not
validity
mean the other dispositions are also invalid.
1. Governing law as to TIME
• But invalidity of one provision affects the
a. Filipinos – law at the time of
other if it is to be presumed that the
death, in connection with
testator would not have made such other
Art2263.
disposition if the first invalid disposition
b. Foreigners – depends on their
had not been made.
personal law [Art16, par2 and

Art1039]
8. Property that is acquired by the testator after
2. Governing law as to PLACE
the will was executed shall only be
a. Filipinos – Philippine law [Art16
transmitted along with those in the will, if the
par2 and Art1039]
testator expressly states in the will that such
b. Foreigners – their national law
is his intention.
[Art16 par2 and Art1039]


9. A devise of legacy shall transmit the whole
† Art2263 provides that “Rights to the inheritance of
extent of the testator’s interest in the
a person who died, with or without a will, before
property disposed.
the effectivity of this Code [August 30, 1950], shall
• Except when it clearly appears that the
be governed by the Civil Code of 1889, by other
testator intended to convey a less
previous laws, and by the Rules of Court. The
interest.
inheritance of those who, with or without a will,
die after the beginning of the effectivity of this
SUCCESSION - Balane Reviewer Page 9 of 116
Code, shall be adjudicated and distributed in ART. 801. Supervening incapacity does not
accordance with this new body of laws and by the invalidate an effective will, nor is the will
Rules of Court; but the testamentary provisions of an incapable validated by the
shall be carried out insofar as they may be supervening of capacity.
permitted by this Code. Therefore, legitimes,
† Articles 796-801 lay down the rules on
betterments, legacies and bequests shall be
testamentary capacity.
respected; however, their amount shall be reduced
4 Testamentary Capacity – testamenti factio;
if in no other manner can every compulsory heir
testamentifacción active, the legal capacity to
be given his full share according to this Code.”
make a will.

4 Who has testamentary capacity? All NATURAL
† Art16 par2 provides that “intestate and
persons, unless disqualified by law. Juridical
testamentary successions, both with respect to
persons are NOT granted testamentary
the order of succession and to the amount of
capacity.
successional rights and to the intrinsic validity of

testamentary provisions, shall be regulated by the
† DISQUALIFIED PERSONS
national law of the person whose succession is
1. THOSE UNDER 18 [ART797]
under consideration, whatever may be the nature
• Under EO292, the Administrative Code
of the property and regardless of the country
of 1987, which took effect on November
wherein said property may be found.”
24, 1989, years are now reckoned

according to the Gregorian Calendar.
† While Art1039 provides that “Capacity to Succeed
• Sec31 provides for the legal periods
is governed by the law of the nation of the
a) Year – 12 calendar months
decedent.”
b) Month – 30 days, unless specific

calendar month is referred to, in
Subsection 2 – Testamentary Capacity and Intent
which case it shall be computed

according to the number of days
ART. 796. All persons who are not expressly
the specific calendar month
prohibited by law may make a will.
contains
ART. 797. Persons of either sex under eighteen c) Day – 24 hours
years of age cannot make a will. d) Night – Sunset to sunrise

ART. 798. In order to make a will it is essential that
2. THOSE OF UNSOUND MIND [ART798]
the testator be of sound mind at the time
of its execution. • Unsoundness of Mind [Insanity]
§ Absence of the qualities of
ART. 799. To be of sound mind, it is not necessary soundness of mind
that the testator be in full possession of § Defined by the Code only by
all his reasoning faculties, or that his mind indirection because only soundness
be wholly unbroken, unimpaired, or of mind is defined under Art799.
unshattered by disease, injury or other
cause. † SOUNDNESS OF MIND [SANITY]

It shall be sufficient if the testator was 4 NEGATIVELY


able at the time of making the will to 1. Not necessary that testator be in full
know the nature of the estate to be possession of reasoning faculties
disposed of, the proper objects of his 2. Not necessary that testator’s mind be
bounty, and the character of the wholly unbroken, unimpaired,
testamentary act. unshattered by disease, injury or other
cause.
ART. 800. The law presumes that every person is of
sound mind, in the absence of proof to 4 POSITIVELY – Ability to know 3 things
the contrary. 1. Nature of estate to be disposed of
The burden of proof that the testator was • Testator should have a fairly accurate
not of sound mind at the time of making knowledge of what he owns.
his dispositions is on the person who • The more one owns, the less
opposes the probate of the will; but if the accurate his knowledge of his estate
testator, one month, or less, before expected to be.
making his will was publicly known to be 2. Proper objects of one’s bounty; &
insane, the person who maintains the • Testator should know, under
validity of the will must prove that the ordinary circumstances, his relatives
testator made it during a lucid interval. in the most proximate degrees, his
knowledge expectedly decreasing as
the degrees become more remote.
SUCCESSION - Balane Reviewer Page 10 of 116
3. Character of testamentary act. 4 Art97. Either spouse may dispose by will of his
• It is not required that the testator or her interest in the community property.
know the legal nature of a will with
the erudition of a civilest. Subsection 3 – Forms of Wills
• All that he need know is that the
document he is executing is one that ART. 804. Every will must be in writing and executed
disposes of his property upon death. in a language or dialect known to the
testator.
† Legal Importance and Implication of Mental
† Art804 lays down Common Requirements that
Capacity
apply both to ATTESTED and HOLOGRAPHIC wills.
4 Law is interested in the legal consequences of
† Art 805-808 lays down special requirements for
the testator’s mental capacity or incapacity, attested wills. Articles 810-814 lays down special
not in the medical aspects of mental disease. requirements for holographic wills.
4 The testator could be mentally aberrant
medically but testamentarily capable, or vice † TWO COMMON REQUIREMENTS
versa, mentally competent medically but
1. IN WRITING
testamentarily incompetent.
• Oral wills [the testamentum
4 TEST – as long as the testator, at the time he
nuncupativum of the Institutes] are not
made the will, was capable of perceiving the
recognized in the Civil Code.
three things [nature of estate, objects of
• However, oral wills are allowed under
bounty, and character of testamentary act],
the Code of Muslim Personal Laws or
he has testamentary capacity, whatever else
PD1083 in relation to Art102(2).
he may be medically.


2. IN A LANGUAGE OR DIALECT KNOWN TO THE
† PRESUMPTION / GENERAL RULE – rebuttable
TESTATOR
Presumption of Sanity under Art800.
• The provisions of Article 804 are
4 TWO EXCEPTIONS – when there is a
MANDATORY and failure to comply with
rebuttable presumption of Insanity –
the two requirements nullifies the will.
1. When testator, one month or less before
the execution of the will, was publicly • Neither the will nor the attestation
clause need state compliance with
known to be insane
Art804. This can be proved by Extrinsic
2. When the testator executed the will after
Evidence.
being placed under guardianship or
ordered committed, in either case, for • Presumption of Compliance – it may
insanity under Rules 93 and 101 of the sometimes be presumed that the
RoC, and before said order has been testator knew the language in which the
lifted. will was written.
a) Will must be in a language or
† The time for determining mental capacity
dialect generally spoken in the
4 time of execution of the will and no other place of execution, and
temporal criterion is to be applied b) The testator must be a native or
resident of said locality.
ART. 802. A married woman may make a will
without the consent of her husband, and ART. 805. Every will, other than a holographic will,
without the authority of the court. must be subscribed at the end thereof by
the testator himself or by the testator’s
† Sexist provision, contains an erroneous and name written by some other person in his
unintended suggestion that a married man does presence, and by his express direction,
not have the same privilege. and attested and subscribed by three or
† Suggested rewording – more credible witnesses in the presence
4 “A married person may make a will without of the testator and of one another.
his or her spouse’s consent.”
The testator or the person requested by
ART. 803. A married woman may dispose by will of him to write his name and the
all her separate property as well as her instrumental witnesses of the will, shall
share of the conjugal partnership or also sign, as aforesaid, each and every
absolute community property. page thereof, except the last, on the left
margin, and all the pages shall be
† Sexist provision, contains an erroneous and numbered correlatively in letters placed
unintended suggestion that a married man does on the upper part of each page.
not have the same privilege.
† rticle 97 of the Family Code supersedes this in part

SUCCESSION - Balane Reviewer Page 11 of 116


The attestation clause shall state the ii. By the testator’s express
number of pages used upon which the will direction
is written, and the fact that the testator
signed the will an every page thereof, or § What the agent must write – need
caused some other person to write his not be alleged in the will itself that
name, under his express direction, in the agent wrote the testator’s name
presence of the instrumental witnesses, under the latter’s express direction
and that the latter witnessed and signed § The essential thing, for validity, is
the will and all the pages thereof in the that the agent write the testator’s
presence of the testator and of one name, nothing more. It would be a
another. good thing, but not required, for the
agent to indicate the fact of agency
If the attestation clause is in a language
or authority.
not known to the witnesses, it shall be

interpreted to them.
• May the agent be one of the attesting
ART. 806. Every will must be acknowledged before a witnesses?
notary public by the testator and the a) If there are more than 3
witnesses. The notary public shall not be witnesses – YES
required to retain a copy of the will, or file b) If there are only 3 witnesses –
another with the Office of the Clerk of Uncertain.
Court.
† SPECIAL REQUIREMENTS FOR ATTESTED / • SIGNING AT THE END
ORDINARY / NOTARIAL WILLS - § If the will contains only dispositive
1. Subscribed by the testator or his agent in his provisions, there will be no
presence and by his express direction at the ambiguity as to where the end of
end thereof, in the presence of the witnesses the will is. If however the will
contains non-dispositive paragraphs
• Subscribed by the testator – To subscribe
after the testamentary dispositions,
denotes writing, more precisely to write
one can refer to two kinds of end –
under. To Sign means to place a
1. Physical End – where the
distinguishing mark.
writing stops
• Thus signing has a broader meaning than
2. Logical End – where the last
subscribing. Not every signature is a
testamentary disposition
subscription and not every distinguishing
ends
mark is a writing.


§ Signing at either the physical end or
• THUMBMARK AS SIGNATURE
logical end is equally permissible.
a) Is the placing of the testator’s
The non-dispositive portions are not
thumbprint a signature within the
essential parts of the will.
contemplation of the article? YES,

on the authority of Payad v.
§ Signing before the end invalidates
Tolentino and Matias v. Salud, the
not only the dispositions that come
testator’s thumbprint is always a
after, but the entire will, because
valid and sufficient signature for the
then one of the statutory
purpose of complying with the
requirements would not have been
requirement of Art805.
complied with.
b) There is no basis for limiting the

validity of thumbprints only to cases
• SIGNING IN THE PRESENCE OF
of illness or infirmity.
WITNESSES

§ Actual seeing is not required, but
• A CROSS AS SIGNATURE – a sign of the
the ability to see each other [the
cross placed by the testator does not
testator and the witnesses] by
comply with the statutory requirement
merely casting their eyes in the
of signature, UNLESS it is the testator’s
proper direction.
usual manner of signature or one of his

usual styles of signing.
2. Attested and subscribed by at least three

credible witnesses in the presence of the
• SIGNING BY AN AGENT OF THE
testator and of one another.
TESTATOR –
• Two distinct things are required of the
§ Two Requisites
witnesses here –
i. Must sign in the testator’s
a) Attesting – which is the act of
presence, and
witnessing
SUCCESSION - Balane Reviewer Page 12 of 116
b) Subscribing – which is the act of 6. Attestation clause, stating:
signing their names in the proper a) Number of pages of the will
places of the will b) Fact that the testator or his agent
• Both must be done. under his express direction signed the
• May the witness, like the testator, affix will and every page thereof, in the
his thumbmark in lieu of writing his presence of the witnesses
name? Art820 requires a witness to be c) The fact that the witnesses witnessed
able to read and write, but this does not and signed the will and every page
answer the query definitively. The point thereof in the presence of the testator
is debatable. and of one another.
• Signing in the presence of the testator
and of one another - Actual seeing is not • The attestation clause is the affair of
required, but the ability to see each witnesses therefore, it need not be
other [the testator and the witnesses] by signed by the testator.
merely casting their eyes in the proper • The signatures of the witnesses must be
direction. at the BOTTOM of the attestation clause.
• If the entire document consists only of 2
3. Testator, or his agent, must sign every page, sheets, the first containing the will and
except the last, on the left margin in the the second the attestation clause, there
presence of the witnesses need not be any marginal signatures at
• The last page need not be signed by the all [Abangan v. Abangan]
testator on the margin because, being • The fact that the attestation clause was
the page where the end of the will is, it written on a separate page has been
already contains the testator’s signature. held to be a matter of minor importance
• There is a Mandatory and a Directory and apparently will not affect the validity
part to this requirement – of the will.
a) MANDATORY – the signing on
every page in the witnesses’ 7. Acknowledgement before a notary public.
presence • Code does not require that the signing of
b) DIRECTORY – place of the the testator, witnesses and notary should
signing, the left margin, the be accomplished in one single act.
signature can be affixed • All that is required in this article is that
anywhere on the page. the testator and witnesses should avow
• Signing in the presence - Actual seeing is to the notary the authenticity of their
not required, but the ability to see each signatures and the voluntariness of their
other [the testator and the witnesses] by actions in executing the testamentary
merely casting their eyes in the proper disposition. [Javellana v. Ledesma]
direction a) Ratio – Certification of
acknowledgement need not be
4. The witnesses must sign every page, except signed by notary in the presence of
the last, on the left margin in the presence testator and witnesses.
of the testator and of one another. b) Art806 does not require that
• Order of Signing – immaterial, provided testator and witnesses must
everything is done in a single acknowledge on the same day that it
transaction. However, if the affixation of was executed.
the signatures is done in several c) Logical Inference – neither does the
transactions, then it is required for article require that testator and
validity that the TESTATOR affix his witnesses must acknowledge in one
signature ahead of the witnesses. another’s presence. If
acknowledgement is done by
5. All pages numbered correlatively in letters testator and witness separately, all
on the upper part of each page. of them must retain their respective
• Mandatory and Directory part capacities until the last one has
a) MANDATORY – pagination by acknowledged.
means of a conventional system.
The purpose is to prevent • Notary cannot be counted as one of the
insertion or removal of pages attesting witnesses.
b) DIRECTORY – pagination in • Affixing of documentary stamp is not
letters on the upper part of each required for validity.
page.
† Some Discrepancies

SUCCESSION - Balane Reviewer Page 13 of 116


4 Par1 Art805 – No statement that the testator † Burden of proof is upon the proponent of the will
must sign in the presence of the witnesses that the special requirement of the article was
4 Par2 Art805 – No statement that the testator complied with. At the same time, there is no
and the witnesses must sign every page in one requirement that compliance with the requirement
another’s presence. be stated either in the will or the attestation
• But these two things are required to clause.
be stated in the attestation clause.
Conclusion is that they should be ART. 809. In the absence of bad faith, forgery, or
complied with as requirements. fraud, or undue and improper pressure
4 Attestation clause is not required to state that and influence, defects and imperfections
the agent signed in the testator’s presence - a in the form of attestation or in the
st nd
circumstance mandated by the 1 and 2 language used therein shall not render the
paragraphs of the article. will invalid if it is proved that the will was
in fact executed and attested in
† Indication of Date – there is no requirement that substantial compliance with all the
an attested will should be dated, unlike a requirements of Article 805.
holographic will.
† According to JBL Reyes, “Liberalization Running

Riot,” instead a possible rewording would be –
ART. 807. If the testator be deaf, or a deaf-mute, he
In the absence of bad faith, forgery, or
must personally read the will, if able to do
fraud, or undue and improper pressure and
so; otherwise, he shall designate two
influence, defects and imperfections in the
persons to read it and communicate to
form of attestation or in the language used
him, in some practicable manner, the
therein shall not render the will invalid if
contents thereof.
such defects and imperfections can be
ART. 808. If the testator is blind, the will shall be supplied by an examination of the will itself
read to him twice; once by one of the and it is proved that the will was in fact
subscribing witnesses, and again, by the executed and attested in substantial
notary public before whom the will is compliance with all the requirements of
acknowledged. Article 805.

† Special Requirements for Handicapped Testators
† Examples
4 For Deaf / Deaf-Mute testator
1. A failure by the attestation clause to state
1. Able to Read – must read the will
that the testator signed every page can
personally
be liberally construed, since that fact can
2. Unable to Read – must designate two
be checked by a visual examination.
persons to read the will and communicate
2. Failure by the attestation clause to state
to him, in some practicable manner its
that the witnesses signed in one
contents.
another’s presence should be considered
• Does this mean the 2 persons must
a FATAL FLAW since the attestation clause
perform each task in turn?
is the only textual guarantee of

compliance.
4 For Blind Testator – to be read to him twice,
† The rule is that omission which can be supplied by
once by one of the subscribing witnesses, and
an examination of the will itself, without the need
another time by the notary.
of resorting to extrinsic evidence, will not be fatal

and, correspondingly, would not obstruct the
† Art808 is MANDATORY
allowance to probate of the will being assailed.
4 If art808 is mandatory, by analogy Art807 is
† However, those omissions which cannot be
also mandatory. Failure to comply with either
supplied except by evidence aliunde would result
would result in nullity and denial of probate.
in the invalidation of the attestation clause and

ultimately, of the will itself.
† The requirement has been liberally applied, SC

declaring substantial compliance to be sufficient.
ART. 810. A person may execute a holographic will
4 Applies not only to blind testators but also to
which must be entirely written, dated,
those who, for one reason or another, are
and signed by the hand of the testator
incapable of reading their wills.
himself, It is subject to no other form, and
4 Substantially complied with when documents
may be made in or out of the Philippines,
were read aloud to the testator with each of
and need not be witnessed.
the 3 instrumental witnesses and the notary
following the reading with their respective † Simplicity of the holographic will is its obvious
copies. advantage, along with other benefits such as
1. Secrecy
2. Inexpensiveness
SUCCESSION - Balane Reviewer Page 14 of 116
3. Brevity ART. 811. In the probate of a holographic will, it
shall be necessary that at least one
† But that very simplicity brings about witness who knows the handwriting and
disadvantages: signature of the testator explicitly declare
1. Danger of forgery that the will and the signature are in the
2. Greater difficulty of determining handwriting of the testator. If the will is
testamentary capacity contested, at least three of such witnesses
3. Increased risk of duress shall be required.

In the absence of any competent witness
† REQUIREMENTS OF A HOLOGRAPHIC WILL
referred to in the preceding paragraph,
1. COMPLETELY HANDWRITTEN BY THE
and if the court deem it necessary, expert
TESTATOR
testimony may be resorted to.
• If testator executes only part of the will
in his handwriting and other parts are † Article applies only to POST MORTEM probates, it
not so written, the ENTIRE will is void does not apply to Ante Mortem probates since in
because the article would be violated. such cases the testator himself files the petition
and will identify the document itself.
2. DATED BY HIM
• Date – Specification or mention, in a † The three witness provision in case of contested
written instrument, of the time [day, holographic wills is DIRECTORY, not mandatory.
month and year] it was made [executed]. 4 Testamentary wills – mandatory
– Black’s Law Dictionary 4 Holographic wills – directory
• As a general rule, the date in a
holographic will should include the day, † Witnesses must:
month, and year of its execution. 1. Know the handwriting and signature of
However, when there is no appearance the testator
of fraud, bad faith, undue influence and 2. Truthfully declare that handwriting and
pressure and the authenticity of the Will signature is that of the testator
is established and the only issue is
whether or not the date FEB./61 is a † In the probate of a holographic will, the document
valid compliance, probate of the itself must be produced. Therefore, a holographic
holographic will should be allowed under will cannot be probated.
the principle of substantial compliance.
• A complete date is required to provide † The execution and contents of a lost or destroyed
against such contingencies as – holographic will MAY NOT BE PROVED by the bare
a) Two competing wills executed on testimony of witnesses who have seen and/or
the same day, or read such will. However, attested wills MAY BE
b) Of a testator becoming insane in PROVED by testimonial evidence.
the day on which a will was 4 Why the difference in rules?
executed. 4 Because of the nature of the wills. In
• The law does not specify a particular holographic wills, the only guarantee of
location where the date should be authenticity is the handwriting itself. In
placed in the will. The only requirements attested wills, the testimony of subscribing or
are that the date be in the will itself and instrumental witnesses and of the notary
executed in the hand of the testator. guarantees authenticity of the will.
4 Loss of the holographic will entails loss of the
3. SIGNED BY TESTATOR only medium of proof while loss of the
• Must signature be at the will’s end [at ordinary will leaves the subscribing witnesses
least the logical end]? YES, article 812 available to authenticate.
seems to imply this. 4 In the case of ordinary wills, it would be more
• May the testator sign by means of a difficult to convince 3 witnesses plus the
thumbprint? NO, article says will must be notary to deliberately lie.
“entirely handwritten, dated and signed 4 Considering the holographic will may consist
by the hand of the testator himself.” of 2-3 pages and only one of them need be
signed, the substitution of the unsigned pages
may go undetected.
4 In the case of a lost ordinary will, the 3
subscribing witnesses would be testifying as
to a FACT which they saw, namely the act of
the testator of subscribing the will. Whereas
in the case of a lost holographic will, the
witnesses would testify as to their OPINION of
SUCCESSION - Balane Reviewer Page 15 of 116
the handwriting which they allegedly saw, an The will is not thereby invalidated as a whole, but
opinion which cannot be tested in court nor at most only as regards the particular words
directly contradicted by the oppositors erased, corrected or inserted UNLESS the portion
because the handwriting itself is not at hand. involved is an essential part of the will, such as the
date.
† EXCEPTION – may be proved by a photographic or
photostatic copy, even a mimeographed or carbon ART. 815. When a Filipino is in a foreign country, he
copy, or by other similar means, if any, whereby is authorized to make a will in any of the
the authenticity of the handwriting of the forms established by the law of the
deceased may be exhibited and tested before the country in which he may be. Such will may
probate court. be probated in the Philippines.

ART. 816. The will of an alien who is abroad
ART. 812. In holographic wills, the dispositions of the
produces effect in the Philippines if made
testator written below his signature must
with the formalities prescribed by the law
be dated and signed by him in order to
of the place in which he resides, or
make them valid as testamentary
according to the formalities observed in
dispositions.
his country, or in conformity with those
ART. 813. When a number of dispositions appearing which this Code prescribes.
in a holographic will are signed without
ART. 817. A will made in the Philippines by a citizen
being dated, and the last disposition has a
or subject of another country, which is
signature and a date, such date validates
executed in accordance with the law of
the dispositions preceding it, whatever be
the country of which he is a citizen or
the time of prior dispositions.
subject, and which might be proved and
† Formal Requirements for Additional Dispositions in allowed by the law of his own country,
a Holographic Will shall have the same effect as if executed
1. Signature according to the laws of the Philippines.
2. Date
† RULES OF FORMAL VALIDITY

1. FILIPINO ABROAD
† When there are Several Additional Dispositions
• According to the law in the country in
1. Signature and date, or
which he may be
2. Each additional disposition signed and
• And may be probated in the Philippines
undated, but the last disposition signed

and dated.
2. ALIEN ABROAD
† NOTES
1. If several additional dispositions, each of • Has effect in the Philippines if made
which is dated, but only the last is dated according to:
and signed, then only the last additional a) Law of place where he resides
disposition is valid. b) Law of his own country
2. If additional dispositions before the last c) Philippine law
are not signed and not dated, but the last
disposition is signed and dated, what 3. ALIEN IN THE PHILS.
happens to the intermediate ones? • Valid in Philippines / As if executed
• If made on one occasion – last according to Philippine laws, if:
disposition signed and dated a) Made according to law of
validates all. country which he is a citizen or
subject, and
• If on different occasions –
b) May be proved and allowed by
intermediate additions are void.
law of his own country
• But distinction is practically worthless

because circumstances of execution
† In relation to Articles 15 and 17 of the NCC
of holographic wills are often difficult
Art. 15. Laws relating to family rights and
to prove.
duties, or to the status, condition and legal

capacity of persons are binding upon citizens of
ART. 814. In case of any insertion, cancellation,
the Philippines, even though living abroad.
erasure or alteration in a holographic will,

the testator must authenticate the same
• NATIONALITY PRINCIPLE – Philippine law
by his full signature.
follows Filipino citizens wherever they
† Full signature does not mean testator’s full name, may be.
only his usual and customary signature.
† Effect of non-compliance – the change [insertion, Art. 17. The forms and solemnities of
cancellation, etc.] is simply considered NOT MADE. contracts, wills and other public instruments shall
SUCCESSION - Balane Reviewer Page 16 of 116
be governed by the laws of the country in which terms of the will for his or her own
they are executed. benefit or for that of the third persons
When the acts referred to are executed whom he or she desires to favor.
before the diplomatic or consulate officials of the • Where the will is not only joint but
Republic of the Philippines in a foreign country, reciprocal, either one of the spouses
the solemnities established by Philippine laws who may happen to be unscrupulous,
shall be observed in their execution. wicked, faithless or desperate, knowing
Prohibitive laws concerning persons, their as he or she does the terms of the will
acts or property and those which have for their whereby the whole property of the
object public order, public policy and good spouses both conjugal and paraphernal
customs shall not be rendered ineffective by laws goes to the survivor, may be tempted to
or judgments promulgated or by determinations kill or dispose of the other.
or conventions agreed upon in a foreign country. † In Germany, joint wills are allowed but only
between spouses.
• LEX LOCI CELEBRATIONIS – contracts,
wills and other public instruments follow ART. 819. Wills, prohibited by the preceding article,
the formalities of the law where they are executed by Filipinos in a foreign country
executed. shall not be valid in the Philippines, even
though authorized by the laws of the
† Every testator, whether Filipino or Alien, wherever country where they may have been
he may be, has five choices as to what law to executed.
follow for the form of his will:
† Outline on Joint Wills
1. Law of his Citizenship – Arts 816-817 for
1. By Filipinos in the Philippines – VOID Art818
Aliens, Art15 for Filipinos
2. Filipinos Abroad – VOID Art819, even if
2. Law of place of Execution – Art17
allowed by law in place of execution.
3. Law of Domicile – Art816 for aliens abroad,
This is an exception to the permissive
applying to aliens in the
provisions of Arts17 and 815.
Philippines and to Filipinos by
3. Aliens Abroad – VALID, Art816
analogy
4. Aliens in Philippines – Controverted, on one
4. Law of Residence - Art816 for aliens abroad,
view it is void because of public policy,
applying to aliens in the
another view says it is valid because
Philippines and to Filipinos by
Art817 governs.
analogy
5. Filipino and Alien – Always VOID as to the
5. Philippine Law – Arts 816-817 for aliens,
Filipino, but either #3 or #4 governs,
Art15 for Filipinos by analogy
depending if he is abroad or in the

Phils.
ART. 818. Two or more persons cannot make a will

jointly, or in the same instrument, either

for their reciprocal benefit or for the
Subsection 4 – Witnesses to Wills
benefit of a third person.

† JOINT WILL – one document which constitutes the ART. 820. Any person of sound mind and of the age
wills of two or more individuals. of eighteen years or more, and not blind,
† If there are separate documents, each serving as deaf or dumb, and able to read and write,
one independent will even if written on the same may be a witness to the execution of a
sheet, they are not joint wills prohibited by the will mention in Article 805 of this Code.
article.
ART.821. The following are disqualified from being

witnesses to a will:
† Reason for Prohibition of Joint Wills
1. Limitation on modes of revocation Any person not domiciled in the
• One of the testators would not be able Philippines
to destroy the document without also
Those who have been convicted of
revoking it as the will of the other
falsification of a document, perjury or
testator, or in any even, as to the latter,
false testimony.
the problem of unauthorized destruction
would come in † SIX QUALIFICATIONS OF WITNESSES
2. Diminution of testamentary secrecy 1. Of Sound Mind
3. Danger of undue influence 2. At Least 18 years of age
4. Danger of one testator killing the other 3. Not Blind, Deaf or Dumb
• When a will is made jointly or in the 4. Able to read and write
same instrument, the spouse who is 5. Domiciled in the Philippines
more dominant is liable to dictate the
SUCCESSION - Balane Reviewer Page 17 of 116
6. Must not have been convicted of specified relatives. If the party is also entitled to a
falsification of a document, perjury or legitime or an intestate share, that portion is not
false testimony. affected by the party’s witnessing the will.

† As to applicability to wills executed abroad, † Question – Supposing there are 4 witnesses, each
testator may resort to either executing a a recipient of a testamentary disposition, are the
holographic will or following the law of the place dispositions to them valid or void?
of execution, if no such witnesses are readily • Arguable
available. • May say that dispositions are VALID
because the law only requires that there
† Competence v. Credibility be 3 other competent witnesses to such
4 The competency of a person to be an will for the disposition to be valid. For the
instrumental witness to a will is determined witnesses to be competent, they need only
by the statute under Arts 820-821, whereas meet the qualifications in Art820 and have
his credibility depends on the appreciation of none of the disqualifications in Art821.
his testimony and arises from the belief and • May also say that dispositions are INVALID
conclusion of the Court that said witness is because the intent of the law is to avoid
telling the truth. witnesses from attesting to the will based
on the dispositions as a consideration for
ART. 822. If the witnesses attesting the execution of such act. If all of the witnesses are
a will are competent at the time of recipients of testamentary dispositions,
attesting, their becoming subsequently then there is greater chance that they are
incompetent shall not prevent the all witnessing because a consideration has
allowance of the will. been given to them.
† As in the case of testamentary capacity under
Art801, the time of the execution of the will is the ART. 824. A mere charge on the estate of the
only relevant temporal criterion in the testator for the payment of debts due at
determination of the competence of the the time of the testator’s death does not
witnesses. prevent his creditors from being
competent witnesses to his will.
ART. 823. If a person attests the execution of a will, † Because the debt or charge is not a testamentary
to whom or to whose spouse, or parent, disposition.
or child, a devise or legacy is given by such
will, such devise or legacy shall, so far
only as concerns such person, or spouse,
or parent, or child of such person, or any
one claiming under such person or
spouse, or parent, or child, be void, unless
there are three other competent
witnesses to such will. However, such
person so attesting shall be admitted as a
witness as if such devise or legacy had not
been made or given.
† Article is misplaced here because it talks about
CAPACITY TO SUCCEED and not capacity to be a
witness.

† Article 823 lays down a disqualification of a
witness to succeed to a legacy or devise when
there are only 3 witnesses. Competence of the
person as a witness is NOT AFFECTED.
4 Assuming all other requisites for formal
validity are met, the will is perfectly valid but
the witness [or relatives specified in the
article] cannot inherit.

† Article also applies to HEIRS. The intent of the law
is to cover all testamentary institutions.

† Disqualification applies only to the testamentary
disposition made in favor of the witness or the
SUCCESSION - Balane Reviewer Page 18 of 116
Subsection 5 – Codicils and Incorporation By only attested wills can incorporate documents
Reference by reference, since only attested wills are
witnessed.
ART. 825. A codicil is a supplement or addition to a 4 Unless testator executes a holographic will
will, made after the execution of a will and superfluously has it witnessed.
and annexed to be taken as a part
thereof, by which disposition made in the
original will is explained, added to, or Subsection 6 – Revocation of Wills and
altered. Testamentary Dispositions

ART. 826. In order that a codicil may be effective, it
ART. 828. A will may be revoked by the testator at
shall be executed as in the case of a will.
any time before his death. Any waiver or
restriction of this right is void.
† Codicil v. Subsequent Will
† A will is essentially REVOCABLE or AMBULATORY.
4 Codicil – explains, adds to or alters a
† This characteristic cannot be waived even by the
disposition in a prior will.
testator. There is no such thing as an irrevocable
4 Subsequent will – makes independent and
will.
distinct dispositions.
† This characteristic is consistent with the principle
4 But the distinction is purely academic because
in Art777 that successional rights vest only upon
Art826 requires that the codicil be in the form
death.
of a will anyway.


ART. 829. A revocation done outside the Philippines,
† Must the Codicil conform to the form of the will to
by a person who does not have his
which it refers? NO. A holographic will can have an
domicile in this country, is valid when it is
attested codicil and vice versa. Both may also be of
done according to the law of the place
the same kind.
where the will was made, or according to

the law of the place in which the testator
ART. 827. If a will, executed as required by this
had his domicile at the time; and if the
Code, incorporates into itself by reference
revocation takes place in this country,
any document or paper, such document
when it is in accordance with the
or paper shall not be considered a part of
provisions of this Code.
the will unless the following requisites are
present:
† RULES FOR REVOCATION
(1) The document or paper referred to in the
4 Revocation made in the Philippines.
will must be in existence at the time of
• Philippine Law
the execution of the will;

(2) The will must clearly describe and identify
4 Revocation made Outside Philippines.
the same, stating among other things the
1. Testator not domiciled in Phils.
number of pages thereof;
(3) It must be identified by clear and • Law of place where the WILL was
made
satisfactory proof as the document or
paper referred to therein; and • Law of place where the testator was
(4) It must be signed by the testator and the domiciled at time of revocation.
witnesses on each and every page, except
in case of voluminous books of account or 2. Testator domiciled in Phils. [Art829]
inventories. • Philippine Law – consistent with
domiciliary principle followed by this
† Article only refers to documents such as: article
1. Inventories • Law of place of Revocation –
2. Books of Accounts principle of lex loci celebrationis
3. Documents of Title • Law of place where the WILL was
4. Papers of Similar Nature made – by analogy with rules on
† DOES NOT include documents that make revocation where testator is a non-
testamentary dispositions, or else the formal Philippine domiciliary.
requirements of a will would be circumvented.
† Can holographic wills incorporate documents by † Curious that the law departs from the nationality
reference? theory and adopts the domiciliary theory.
4 NO. Par4 of Art827 requires signatures of the
testator and the witnesses on every page of
the incorporated document [except
voluminous annexes]. It seems therefore that
SUCCESSION - Balane Reviewer Page 19 of 116
ART. 830. No will shall be revoked except in the d) Implied – incompatibility
following cases: between provisions of prior and
subsequent instruments.
(1) By implication of law; or

(2) By some will, codicil, or other writing
3. BY PHYSICAL DESTRUCTION
executed as provided in case of wills; or
• Four ways to destroy –
(3) By burning, tearing, canceling, or
a) Burning
obliterating the will with the intention of
b) Tearing
revoking it, by the testator himself, or by
c) Cancelling
some other person in his presence, and by
d) Obliterating
his express direction. If burned, torn,

cancelled, or obliterated by some other
person, without the express direction of • Physical destruction may be done by the
the testator, the will may still be testator personally or by another person
established, and the estate distributed in acting in his presence and by his express
accordance therewith, if its contents, and direction.
§ Unauthorized if without express
due execution, and the fact of its
direction of testator. But what if
unauthorized destruction, cancellation, or
with express direction but not in
obliteration are established according to
his presence?
the Rules of Court.
§ Arguable. May say that it is
MODES OF REVOKING A WILL authorized and therefore the
destroyed instrument is revoked
because of the intent and consent
1. BY OPERATION OF LAW
of the testator to revoke and
• May be total or partial
destroy, and that the law does not
• Examples of revocation by operation of
provide that without the
law
testator’s presence, destruction
a) Preterition – Art854
will become unauthorized.
b) Legal Separation – Art63 par4 FC
§ On the other hand, it may be
c) Unworthiness to succeed – Art1032
argued that the testator’s
d) Transformation, alienation or loss of
presence is required because at
the object devised or bequeathed –
any time during the actual
Art957
burning, destroying, etc. he may
e) Judicial demand of a credit given as
put a stop to the destruction if he
a legacy - Art936
changes his mind, and that is

precisely why his presence is
2. BY A SUBSEQUENT WILL OR CODICIL
required?
• Requisites for valid revocation by a

subsequent instrument –
• Effect of unauthorized destruction – Will
a) Subsequent instrument must
may still be proved as lost or destroyed
comply with formal
[Art830 NCC and Rule 76 RoC]
requirements of a will
§ However, this is possible only if
b) Testator must possess
the will is attested; if the will is
testamentary capacity
holographic, it cannot be
c) Subsequent instrument must
probated if lost, even if the loss or
either contain an express
destruction was unauthorized,
revocatory clause or be
unless a copy survives.
incompatible with the prior will

d) Subsequent instrument must be
• Elements of a Valid Revocation by
probated to take effect
Physical Destruction
• Revocation by subsequent will may be
a) CORPUS – physical destruction
Total or Partial, Express or Implied
itself; there must be evidence of
a) Total – whole prior instrument is
physical destruction
revoked
b) ANIMUS –
b) Partial – only certain provisions
Ø Capacity and intent to
or dispositions of the prior
revoke
instrument is revoked
Ø Testator must have
c) Express – revocation of prior
completed everything he
instrument is stated in the
intended to do
subsequent instrument
• Both corpus an animus must concur.

SUCCESSION - Balane Reviewer Page 20 of 116


• Loss or unavailability of a will may, under the revocation of the old to depend upon the
certain circumstances, give rise to the efficacy of the new disposition intended to be
presumption that it had been revoked by substituted, the revocation will be conditional
physical destruction and dependent upon the efficacy of the new
§ Where a will which cannot be disposition; and if, for any reason, the new
found is shown to have been in will intended to be made as a substitute is
the possession of the testator inoperative, the revocation fails and the
when last seen, the presumption original will remains in full force.
is, in the absence of other 4 This is the doctrine of dependent relative
competent evidence, that the revocation. The failure of the new
same was cancelled or destroyed. testamentary disposition, upon whose validity
§ Same presumption arises where it the revocation depends, is equivalent to the
is shown that testator had ready non-fulfillment of a suspensive condition, and
access to the will and it cannot be hence prevents the revocation of the original
found after his death. will. But a mere intent to make at some time a
§ But such presumptions may be will in place of that destroyed will not render
overcome by proof that the will the destruction conditional. It must appear
was not destroyed by the testator that the revocation is dependent upon the
with intent to revoke it. valid execution of a new will. [Molo v. Molo]

ART. 831. Subsequent wills which do not revoke the † It must be remembered that dependent relative
previous ones in an express manner, revocation applies only if it appears that the
annul only such dispositions in the prior testator intended his at of revocation to be
wills as are inconsistent with or contrary conditioned on the making of a new will or on its
to those contained in the latter wills. validity or efficacy.

† Revocation of a will by a subsequent will or codicil
† In Molo v. Molo, the Samson v. Naval doctrine was
may be express [through a revocatory clause] or
cited, providing that “A subsequent will,
implied [through incompatibility].
containing a clause revoking a previous will, having
† In the old Civil Code, mere fact of a subsequent
been disallowed, for the reason that it was not
will, provided that it is valid, revoked the prior
executed in conformity with the provisions of the
one, except only if the testator provides in the
Code of Civil procedure as to the making of wills,
posterior will that the prior will was to subsists in
cannot produce the effect of annulling the
whole or in part.
previous will, inasmuch as said revocatory clause is
† The present rule provides that the execution of a
void.”
subsequent will does not ipso facto revoke a prior

one.
† Question – supposing the institution of heirs,

legatees or devisees in the subsequent will is
ART. 832. A revocation made in a subsequent will
subject to a suspensive condition, is the revocation
shall take effect, even if the new will
of the prior will absolute or conditional?
should become inoperative by reason of
4 Depends on the testator’s intent.
the incapacity of the heirs, devisees or
4 If the subsequent will contains a revocatory
legatees designated therein, or by their
clause which is absolute or unconditional, the
renunciation.
revocation will be absolute regardless of the
† Efficacy of the revocatory clause does not depend happening or non-happening of the
on the testamentary disposition of the revoking suspensive condition.
will, UNLESS the testator so provides. Revocation 4 But if the testator states in the subsequent
is generally speaking, an absolute provision, will that the revocation of the prior will is
independent of the acceptance or capacity of the subject to the occurrence of the suspensive
new heirs. condition, or if the will does not contain a
revocatory clause, the revocation will depend
† An EXCEPTION is where the testator provides in on whether the condition happens or not.
the subsequent will that the revocation of the • If the suspensive condition does not
prior one is dependent on the Capacity or occur, the institution is deemed
Acceptance of the heirs, devisees or legatees never to have been made and the
instituted in the subsequent will. prior institution will be given effect.
• DEPENDENT RELATIVE REVOCATION [i.e. no revocation of prior will]
• This is in accord with the juridical
† DEPENDENT RELATIVE REVOCATION nature of suspensive conditions, and
4 Where the act of destruction is connected is an instance of dependent relative
with the making of another will as fairly to revocation.
raise the inference that the testator meant
SUCCESSION - Balane Reviewer Page 21 of 116
† Is the rule on dependent relative revocation † REQUISITES FOR A FALSE / ILLEGAL CAUSE TO
applicable if the revocation of the will is by RENDER REVOCATION VOID –
physical destruction? 1. CAUSE MUST BE CONCRETE, FACTUAL AND
4 YES. If testator executes a subsequent will NOT PURELY SUBJECTIVE
revoking the prior will but conditioned on the • If a testator revoked on the stated
validity of the subsequent will, then if the ground that the heir was Ilocano and all
subsequent will is declared invalid, the prior Ilocanos are bad, it would just be
will subsists. prejudice and the revocation is valid
4 In Molo v. Molo, in an obiter, SC held that the because it is based on a subjective cause.
physical destruction of the will DID NOT
revoke it, based on the inference made by the 2. IT MUST BE FALSE
court in that case, that the testator meant the 3. THE TESTATOR MUST NOT KNOW OF ITS
revocation to depend on the validity of a new FALSITY
will. 4. IT MUST APPEAR FROM THE WILL THAT THE
4 But apart from the fact that the statement is TESTATOR IS REVOKING BECAUSE OF THE
obiter because the facts did not clearly show CAUSE WHICH IS FALSE.
that the will had been destroyed, it is arguable
whether the prior will should be deemed to † If the revocation is by physical destruction, and the
subsist despite its physical destruction. Can it revoked will is holographic, then though the
not be argued that the act of the testator in revocation be void, probate will not be possible,
destroying the will in fact confirmed his intent UNLESS a copy of the holographic will survives.
to revoke it?
4 In the case of Diaz v. De Leon, the testator † The rule regarding nullity of revocation for an
executed a prior will but destroyed it and illegal cause limits the freedom of the testator to
executed another will revoking the former. revoke based on an illegal cause, but this is due to
However, the second will was found to be not public policy considerations.
executed with all the necessary requisites to † It must be noted that the illegal cause should be
constitute sufficient revocation. The court stated in the will as the cause of the revocation.
then held that the intention of revoking the
will was manifest from the fact that the ART. 834. The recognition of an illegitimate child
testator was anxious to withdraw or change does not lose its legal effect, even though
the provisions he had made in his first will. the will wherein it was made should be
Therefore, the court concluded that original revoked.
will presented having been destroyed with
† The part of the will which recognizes an
animo revocandi, the original will and last
illegitimate child is NOT revocable because
testament cannot be probated and was
recognition is an irrevocable act. Therefore, even if
effectively revoked.
the will is revoked, the recognition remains
4 In Molo, revocation of the prior will was not
effective.
allowed because the court inferred that the

testator meant revocation to depend on the
† Under the Family Code, admission of illegitimate
validity of the new will, so in that case the rule
filiation in a will would constitute proof of
on dependent relative revocation was applied.
illegitimate filiation. According to Article 175 of
4 However, in De Leon, court held that the
the Family Code –
testator’s intent to revoke the prior will was

not dependent on the validity of the
Art175. Illegitimate children may establish
subsequent will so even if the second will was
their illegitimate filiation in the same way and on
void and insufficient as revocation, the prior
the same evidence as legitimate children.
will was still revoked because such revocation
The action must be brought within the same
was not dependent on the validity of the
period specified in Art173, except when the action
second will [?!!]
is based on the second paragraph of Art172, in

which case the action may be brought during the
ART. 833. A revocation of a will based on a false
lifetime of the alleged parent.
cause or an illegal cause is null and void.

† Wills are revocable ad nutum or at the testator’s † Basically, the principle laid down in Art834 remains
pleasure. The testator does not need to have a unaltered regarding these admissions contained in
reason to revoke the will. wills.
† However, precisely because the law respects the
testator’s true intent, this article sets aside a
revocation that does not reflect such intent.


SUCCESSION - Balane Reviewer Page 22 of 116
Subsection 7 – Republication and Revival of Wills RE-CAP OF FORMAL REQUIREMENTS

OF A WILL
ART. 835. The testator cannot republish, without
reproducing in a subsequent will, the
dispositions contained in a previous one 1. ATTESTED/ORDINARY WILL
which is void as to its form. a. Must be in writing

ART. 836. The execution of a codicil referring to a b. Executed in a language or dialect known to
previous will has the effect of republishing testator
the will as modified by the codicil. c. Subscribed by the testator or his agent in his
† If the testator wishes to republish a will that is void presence and by his express direction at the
as to form, the only way to republish it is to end thereof, in the presence of the witnesses
execute a subsequent will and reproduce [copy d. Attested and subscribed by at least 3 credible
out] the dispositions of the original will. Mere witnesses in presence of the testator & of one
reference to the prior will in the subsequent will is another
not enough.
e. Testator, or his agent, must sign every page,
† A will is void as to form if it does not comply with except the last, on the left margin in the
the requirements of Arts804-818; 810-814; 818- presence of the witnesses
819. f. The witnesses must sign every page, except
the last, on the left margin in the presence of
the testator and of one another.
g. All pages numbered correlatively in letters on
the upper part of each page.
h. Attestation clause, stating:
a) Number of pages of the will
b) Fact that the testator or his agent under
his express direction signed the will and
every page thereof, in the presence of
the witnesses
c) Fact that the witnesses witnessed and
signed the will and every page thereof in
the presence of the testator and of one
another.
i. Acknowledgement before a notary public by
the testator and the witnesses.
j. Handicapped Testator
a) Deaf or deaf-mute – personally read the
will if able to do so, otherwise designate
2 persons to read and communicate it to
him.
b) Blind – read to him twice, once by a
subscribing witness and another time by
the notary before whom it is
acknowledged.
k. Defects and imperfections in form of
attestation and language used shall not make
the will invalid if there is substantial
compliance with requirements of Art805.
l. Law to be followed
a. Filipino abroad
b. Alien abroad
c. Alien in the Philippines

m. Prohibition on joint wills, especially by
Filipinos even if executed in foreign country
SUCCESSION - Balane Reviewer Page 23 of 116
allowing joint wills.
n. Witnesses must possess all the qualifications
in Art820 and none of the disqualifications in
nd
RE-CAP OF FORMAL REQUIREMENTS 4 That the revocatory effect of the 2 will is
immediate.
OF A WILL
4 However, such theory is inconsistent with the
principle that wills take effect mortis causa.
2. HOLOGRAPHIC WILL 4 Furthermore, to be effective for the purpose
a. Must be entirely written of revoking the first will, the second will must
b. Executed in a language or dialect known to be probated. But it has already been revoked
testator by the third will. A revoked will now has to be
c. Dated by the testator submitted to probate?
d. Signed by the hand of the testator himself
e. Witnesses required † Article applies only when the revocation of the
a) Knows the handwriting and signature first will by the second will is EXPRESS. If the
of the testator revocation by the second will is implied due to
b) Explicitly declares that the will and incompatible provisions, the article will not apply
the signature are in the handwriting and the effect will be that the first will is revived.
of the testator 4 However, when will 3 is itself inconsistent
f. Dispositions below testator’s signature with will 1, there is still revocation.
must also be dated and signed. 4 Also keep in mind Article 831 – Implied
g. When several additional dispositions are Revocations only annul such dispositions in
signed but not dated, the last disposition the prior wills as are inconsistent with or
must be signed and dated to validate the contrary to those contained in the latter wills.
dispositions preceding it.
h. Any insertion, cancellation, erasure or † EXCEPTION – when the second will is holographic
alteration must be authenticated by the and it is revoked by physical destruction, because
testator’s full signature, otherwise it shall then the possibility of its probate is foreclosed,
be deemed as not made. unless of course a copy survives.
i. Prohibition on joint wills, especially by
Filipinos even if executed in a foreign
country where joint wills are allowed. Subsection 8 – Allowance and Disallowance of Wills

ART. 838. No will shall pass either real or personal
† If the testator wishes to Republish a will that is property unless it is proved and allowed
either: in accordance with the Rules of Court.
1. VOID for a reason other than a formal
defect, or The testator himself may, during his
2. Previously REVOKED lifetime, petition the court having
4 The only thing necessary to republish it is for jurisdiction for the allowance of his will. In
the testator to execute a subsequent will or such case, the pertinent provisions of the
codicil referring to the previous will. There is Rules of Court for the allowance of wills
no need to reproduce the provisions of the after the testator’s death shall govern.
prior will in the subsequent instrument. The Supreme Court shall formulate such
additional Rules of Court as may be
† Why the difference on the rules between nullity as necessary for the allowance of wills on
to form and nullity based on other grounds? Prof. petition of the testator.
Balane says because Art835 is from Argentine Law
whole Art836 is from California Law. Go figure. Subject to the right of appeal, the
allowance of the will, either during the
ART. 837. If after making a will, the testator makes a lifetime of the testator or after his death,
second will expressly revoking the first, shall be conclusive as to its due execution.
the revocation of the second will does not
derive the first will, which can be revived † Probate of a will is MANDATORY.
only by another will or codicil. † TWO KINDS OF PROBATE
† Illustration 1. POST MORTEM – after the testator’s death
In 1985, X executed will 1 2. ANTE MORTEM – during his lifetime,
In 1987, X executed will 2 and expressly features:
revoked will 1 • Easier for the courts to determine
In 1990, X executed will 3, revoking will 2 mental condition of a testator
- When will 3 revoked will 2, it did not revive will • Fraud, intimidation and undue influence
1. are minimized
• Easier correction of formal defects in the
† This article is based on the theory of INSTANT will
REVOCATION
SUCCESSION - Balane Reviewer Page 24 of 116
• Once a will is probated ante mortem, the ART.839. The will shall be disallowed in any of the
only questions that may remain for the following cases:
courts to decide after the testator’s
(1) If the formalities required by law have not
death will refer to the intrinsic validity of
been complied with;
the testamentary dispositions.
(2) If the testator was insane, or otherwise

mentally incapable of making a will, at the
† Rules on Probate for both post and ante mortem
time of its execution;
are found in Rule 76 of the Rules of Court.
(3) If it was executed through force or under

duress, or the influence of fear, or threats;
† Finality of a Probate Decree
(4) If it was procured by undue and improper
4 Once a decree of probate becomes final in
pressure and influence, on the part of the
accordance with the rules of procedure, it is
beneficiary or of some other person;
res judicata.
(5) If the signature of the testator was

procured by fraud;
† Scope of a Final Decree of Probate
(6) If the testator acted by mistake or did not
4 A final decree of probate is conclusive as to
intent that the instrument he signed
the due execution of the will, i.e. as to the
should be his will at the time of affixing
will’s extrinsic and formal validity only.
his signature thereto.
4 Gallanosa v. Arcangel enumerates what are

covered by the term Formal Validity and
† An Exclusive Enumeration of the grounds for
therefore conclusively settled by a final
disallowance of a will.
decree of probate –
† These are matters involved in formal validity. Once
a) That the testator was of sound and
a probate decree is final, such decree forecloses
disposing mind
any subsequent challenge on any of the matters
b) That his consent was not vitiated
enumerated in this article.
c) That the will was signed by the
† If any of these grounds for disallowance are
required number of witnesses, and
proven, the will shall be set aside as VOID.
Ø That all the formal requirements
4 A will is either valid or void. If none of the
of the law have been complied
defects enumerated in this article are present,
with.
it is valid; if any one of these defects is
d) That the will is genuine.
present, the will is void. The issue of formal
4 Another way of defining the scope of a final
validity or nullity is precisely what the probate
decree of probate is to refer to art839. Any
proceedings will determine.
action based on any of the grounds for
4 There is no such thing as a Voidable Will.
disallowance of a will enumerated in Article

839 can no longer be pursued once there is a
† GROUNDS FOR DISALLOWANCE OF A WILL
final decree of probate.
1. FORMALITIES

• Those referred to in Articles 804-818,
† GENERAL RULE – A decree of probate, therefore
818-819 and 829-821
does not concern itself with the question of

INTRINSIC validity and the probate court should
2. TESTATOR INSANE OR MENTALLY INCAPABLE
not pass upon that issue.
AT TIME OF EXECUTION

• Articles 798 – 801 on testamentary
† EXCEPTION - When the probate of a will might
capacity and intent
become an idle ceremony if on its face it appears

to be intrinsically void. Where practical
3. FORCE, DURESS, INFLUENCE OF
considerations demand that the intrinsic validity of
FEAR OR THREATS
the will be passed upon, even before it is
• Force or Violence – when in order to
probated, the court should meet the issue.
wrest consent, serious or irresistible

force is employed.
† On the authority of Nepomuceno v. Ca, a probate
court may pass upon the issue of intrinsic validity if • Duress or Intimidation – when one of the
on the face of the will, its intrinsic nullity is patent. contracting parties is compelled by a
reasonable and well-grounded fear of
imminent and grave evil upon his person
or property, or upon the person or
property of his spouse, descendants or
ascendants, to give his consent. Age, sex
and condition of the person are borne in
mind. Threat to enforce a just or legal
claim through competent authority does
not vitiate consent.
SUCCESSION - Balane Reviewer Page 25 of 116
4. UNDUE & IMPROPER PRESSURE AND One who has compulsory heirs may
INFLUENCE dispose of his estate provided he does not
• Undue Influence – when a person takes contravene the provisions of this Code
improper advantage of his power over with regard to the legitime of said heirs.
the will of another, depriving the latter
† Even if the will does not contain any testamentary
of a reasonable freedom of choice.
disposition, it will be formally valid provided it
Circumstances such as the following shall
complies with all the formal requisites. This is in
be considered: confidential, family,
keeping with the character of wills as dispositive of
spiritual and other relations between
property under Art783.
parties, or fact that person unduly

influenced was suffering from mental
† HOW MUCH CAN BE DISPOSED OF BY WILL?
weakness or ignorant or in financial
1. No Compulsory Heirs – Entire hereditary
distress.
estate

2. There are Compulsory Heirs – the
5. SIGNATURE PROCURED THROUGH FRAUD
disposable portion or the net hereditary
• Fraud – when through insidious words or estate minus the legitimes.
machinations of one of the contracting

parties, the other is induced to enter into
4 The amount of the legitimes depends on the
a contract which, without them, he
kinds and number of compulsory heirs.
would not have agreed to. Various combinations are possible and so the
amount of disposable portion is also variable.
6. MISTAKE OR TESTATOR DID NOT INTENT
INSTRUMENT TO BE HIS WILL WHEN HE
† If the testator disposes by will of LESS than he is
AFFIXED HIS SIGNATURE THERETO
allowed to, there will be MIXED succession –
• Mistake – must refer to substance of the 4 Testamentary succession as to the part
thing which is the object of the contract, disposed of by will, and
or to those conditions which have 4 Intestate succession as to the part not
principally moved one or both parties to disposed of by the will.
enter into the contract. Mistake as to 4 The legitimes, of course, pass by strict
identity or qualifications only vitiates operation of law.
consent when such were the principal
cause of the contract. A simple mistake ART. 843. The testator shall designate the heir by his
of account gives rise to correction. name and surname, and when there are
two persons having the same names, he
SECTION 2 – INSTITUTION OF HEIR shall indicate some circumstance by which
the instituted heir may be known.
ART. 840. Institution of heir is an act by virtue of
which a testator designates in his will the Even though the testator may have
person or person who are to succeed him omitted the name of the heir, should he
in his property and transmissible rights designate him in such manner that there
and obligations. can be no doubt as to who has been
instituted, the institution shall be valid.
† Rules on institution of heir set forth in this section
apply as well to institution of Devisees and ART. 844. An error in the name, surname, or
Legatees. circumstances of the heir shall not vitiate
the institution when it is possible, in any
ART. 841. A will shall be valid even though it should other manner, to know with certainty the
not contain an institution of an heir, or person instituted.
such institution should not comprise the If among the persons having the same
entire estate, and even though the person names and surnames, there is a similarity
so instituted should not accept the of circumstances in such a way that, even
inheritance or should be incapacitated to with the use of the other proof, the
succeed. person instituted cannot be identified,
In such cases the testamentary none of them shall be an heir.
dispositions made in accordance with law
shall be complied with and the remainder † REQUIREMENT FOR DESIGNATION OF HEIR
of the estate shall pass to the legal heirs. 4 The heir, legatee or devisee must be
ART. 842. One who has no compulsory heirs may identified in the will with sufficient clarity to
dispose by will of all his estate or any part leave no doubt as to the testator’s intention.
of it in favor of any person having capacity
to succeed.
SUCCESSION - Balane Reviewer Page 26 of 116
4 The basic rule in testamentary succession and B have been designated their shares,
always is respect for and compliance with the therefore Art846 applied to C and D.
testator’s wishes.
† The designation of name and surname is ART. 847. When the testator institutes some heirs
DIRECTORY. What is required is that the identity individually and others collectively as
of the designated successor be sufficiently when he says, “I designate as my heirs A
established. This is usually done by giving the and B, and the children of C,” those
name and surname, but there are other ways as collectively designated shall be
can be gleaned from Art843 par2, such as to one’s considered as individually instituted,
‘eldest first cousin’. unless it clearly appears that the intention
of the testator was otherwise.
† If there is any AMBIGUITY in the designation, it
† Equality and Individuality of Designation
should be resolved in light of Art789 – by the
† This article follows the basic rule of equality in the
context of the will and any extrinsic evidence
previous article. In addition, it established the
available, except the testator’s oral declarations.
PRESUMPTION that the heirs collectively referred
4 If it is not possible to resolve the ambiguity,
to are designated per capita along with those
the testator’s intent becomes indeterminable
separately designated.
and therefore intestacy as to that portion will
† If the testator intends a block designation, he
result.
should so specify.


ART. 845. Every disposition in favor of an unknown
ART. 848. If the testator should institute his
person shall be void, unless by some even
brothers and sisters, and he has some of
or circumstance his identity becomes
full blood and others of half blood, the
certain. However, a disposition in favor of
inheritance shall be distributed equally
a definite class or group of persons shall
unless a different intention appears.
be valid.
† Once again, this article follows the general rule of
† Unknown Person
equality laid down in Art846.
† This article refers to a successor whose identity
† Also, if the testator intends an unequal
cannot be determined because the designation in
apportionment, he should so specify.
the will is so unclear or so ambiguous as to be

incapable of resolution.
† DIFFERENT RULE IN INTESTACY
† This does not refer to one with whom the testator
4 Art848 only applies to testamentary
is not personally acquainted. The testator may
succession, wherein siblings, regardless of
institute somebody who is a perfect stranger to
whether full or half blood, get equal shares
him, provided the identity is clearly designated in
except if a different intention of the testator
the will
appears.

4 In INTESTACY, the rule is different. The
ART. 846. Heirs instituted without designation of
applicable provision is Art 1006 which
shares shall inherit in equal parts.
establishes a proportion of 2:1 between full
† GENERAL PRESUMPTION and half blood brothers and sisters, but
4 Equality in cases of collective designation. without prejudice to the rule prohibiting
4 If the testator intends an unequal succession ab intestato between legitimate
apportionment, he should so specify. and illegitimate siblings. [Art992]
† The article applies only in testamentary succession,
and only among testamentary heirs or devisees or Art. 1006. Should brother and sisters of
legatees. the full blood survive together with brothers
4 It will NOT APPLY to an heir who is both a and sisters of the half blood, the former shall
compulsory and a testamentary heir, for in be entitled to a share double that of the
that case the heir will get his legitime and his latter.
testamentary portion.
† Not explicitly covered by this article is an instance Art. 992. An illegitimate child has no
where the shares of some of the heirs are right to inherit ab intestate from the
designated and those of others are not. legitimate children and relatives of his father
4 Example – “I institute to ¼ of my estate A, B, C or mother; nor shall such children or relatives
and D, of which A will get 1/3 and B is to get inherit in the same manner from the
¼.” The shares of C and D are unspecified. Are illegitimate child.
they to divide equally the remaining portion
of the ¼ of the estate, after deducting A’s and † RE-CAP
B’s portions [The remainder is 5/12 of ¼?] 4 Testamentary Succession – equality in shares
4 YES, because the article talks about heirs of full and half blood brothers and sisters
instituted without designation of shares. A
SUCCESSION - Balane Reviewer Page 27 of 116
unless the testator provides otherwise † There may after all be compulsory heirs whose
[Art848] legitimes will therefore cover part of the estate,
4 Intestacy – Proportion of 2:1 between full and the and the legitimes do not pass by legal or
half blood brothers and sisters [Art1006], and intestate succession.
only if the disqualification in Art992 does not
apply. † Suggested Rewording –
Art. 851. If the testator has instituted only
† Question – Does Art848 apply even to illegitimate one heir, and the institution is limited to an aliquot
brothers and sisters, in cases where the testator is part of the inheritance, less than the entire
of legitimate status and vice versa? YES. Art848 disposable portion, legal succession takes place
does not distinguish. with respect to the remainder of the estate.
The same rule applies if the testator has
ART. 849. When the testator calls to the succession instituted several heirs, each being limited to an
a person and his children they are all aliquot part, and all the parts do not cover the
deemed to have been instituted whole inheritance.
simultaneously and not successively.
† Moreover, this article states exactly the same rule
† Article lays down the same rule as Arts. 846 and
laid down in Art841. there is absolutely no need
847.
for the redundancy.
† Equality and Individuality of institution are

presumed.
ART. 852. If it was the intention of the testator that
† If the testator desires a different mode of
the instituted heirs should become sole
apportionment, he should so specify.
heirs to the whole estate, or the whole

free portion, as the case may be, and each
ART. 850. The statement of a false cause for the
of them has been instituted to an aliquot
institution of an heir shall be considered
part of the inheritance and their aliquot
as not written, unless it appears from the
parts together do not cover the whole
will that the testator would not have
inheritance, or the whole free portion,
made such institution if he had known the
each part shall be increased
falsity of such cause.
proportionally.

ART. 853. If each of the instituted heirs has been
† GENERAL RULE – the falsity of the stated cause for
given an aliquot part of the inheritance,
the testamentary institution DOES NOT AFFECT
and the parts together exceed the whole
the validity or efficacy of the institution.
inheritance, or the whole free portion, as
4 Reason – testamentary disposition is
the case may be, each part shall be
ultimately based on liberality.
reduced proportionally.

† EXCEPTION – the falsity of the stated cause for † In both articles –
institution will set aside the institution if the 1. There are more than 1 instituted heir
following factors are present: 2. Testator intended them to get the whole
1. Cause for institution is stated in the will estate or the whole disposable portion
2. Cause must be shown to be false 3. Testator designated a definite portion for
3. It appears on the face of the will that if each.
the testator had known of the falsity of
such cause, he would not have instituted † ART. 852 – the total of all the portions is less than
the heir. the whole estate or the whole disposable portion.
Therefore, a proportionate increase is necessary.
ART. 851. If the testator has instituted only one heir, 4 The difference cannot pass by intestacy
and the institution is limited to an aliquot because the testator’s intention is clear to
part of the inheritance, legal succession give the instituted heirs the entire amount.
takes place with respect to the remainder
of the estate. † ART. 853 – the reverse occurs, the total exceeds
the whole estate or the whole disposable portion.
The same rule applies if the testator has
Thus a proportionate reduction must be made.
instituted several heirs, each being limited

to an aliquot part, and all the parts do not
cover the whole inheritance. FORMULA FOR PROPORTIONATE INCREASE OR DECREASE
P HEIR’S SHARE = X .
† The wording of the article, according to Prof. P TOTAL DISPOSED P TOTAL ESTATE DISPOSABLE
Balane, is erroneous because legal succession does

not take place with respect to the remainder of the
estate but to the remainder of the disposable
portion.
SUCCESSION - Balane Reviewer Page 28 of 116
ART. 854. The preterition or omission of one, some, Art. 907. Testamentary dispositions
or all of the compulsory heirs in the direct that impair or diminish the legitime of
line, whether living at the time of the the compulsory heirs shall be reduced
execution of the will or born after the on petition of the same, insofar as
death of the testator, shall annul the they may be inofficious or excessive.
institution of heir; but the devises and
legacies shall be valid insofar as they are • If the heir is given a legacy or devise, there is
not inofficious. no preterition.
§ Should the value of the legacy or
If the omitted compulsory heirs should die
devise be less than the recipient’s
before the testator, the institution shall
legitime, his remedy is only for
be effectual, without prejudice to the
completion of legitime under Articles
right of representation.
906 and 907.
† PRETERITION – means omission, but from what?
The answer to that question is the basic problem • If the heir received a donation inter vivos
in preterition. from the testator – the better view is that
there is no preterition
† Manresa’s Definition – “Preterition consists in the § Reason – donation inter vivos is
omission of an heir in the will, either because he is treated as an advance on the legitime
not named, or, although he is named as a father, under Articles 906, 909, 910 and 1062.
son, etc., he is neither instituted as an heir or
expressly disinherited, nor assigned any part of the Art. 909. Donations given to children
estate, thus being tacitly deprived of his right to shall be charged to their legitime.
the legitime. Donations made to strangers shall be
charged to that part of the estate of which
† Castan’s Definition – “By preterition is meant the the testator could have disposed by his last
omission in the will of any of the compulsory heirs, will.
without being expressly disinherited. It is thus a Insofar as they may be inofficious or
tacit deprivation of the legitime, as distinguished may exceed the disposable portion, they
from disinheritance, which is an express shall be reduced according to the rules
deprivation.” established by this Code.

† OMISSION THAT CONSTITUTES PRETERITION Art. 910. Donations which an
• If the heir in question is instituted in the will illegitimate child may have received during
but the portion given to him by the will is less the lifetime of his father or mother, shall
than his legitime – there is no preterition. be charged to his legitime.
§ In the case of Reyes v. Baretto-Datu: Should they exceed the portion that
1. There was a compulsory heir in can be freely disposed of, they shall be
the direct line reduced in the manner prescribed by this
2. Such heir was instituted in the Code.
will
3. The testamentary disposition Art. 1062. Collation shall not take
given to such heir was less than place among compulsory heirs if the donor
her legitime should have so expressly provided, or if the
donee should repudiate the inheritance,
§ Based on these, the holding was that unless the donation should be reduced as
there was NO PRETERITION. inofficious.

§ The reason was there was no TOTAL • If the heir is not mentioned in the will nor was
OMISSION, inasmuch as the heir a recipient of a donation inter vivos from the
received something from the testator, but not all of the estate is disposed
inheritance. The heir’s remedy is not of by the will – there is no preterition.
found in Art854 but in Arts. 906 and § The omitted heir in this instance would
907 for Completion of Legitime. receive something by intestacy, from
the portion not disposed of by the will
Art. 906. Any compulsory heir to [the vacant portion]. The right of the
whom the testator has left by any title heir, should the vacant portion be less
less than the legitime belonging to him than his legitime, will simply be to
may demand that the same may be demand completion of his legitime,
fully satisfied. under Articles 906 and 907.

SUCCESSION - Balane Reviewer Page 29 of 116


† For there to be preterition, therefore, the heir in • Should the preterited heir
question must have received NOTHING from the predecease or be unworthy to
testator by way of: succeed the testator, the question of
1. Testamentary succession preterition of that heir becomes
2. Legacy or devise moot.
3. Donation inter vivos, or • However, should there be a
4. Intestacy descendant of that heir who is
† Preterition means therefore – TOTAL OMISSION IN himself preterited, then the effects of
THE INHERITANCE. preterition will arise.
• Example – X has 2 legit kids: A and B.
† WHO ARE INCLUDED WITHIN THE TERMS OF THE X makes a will which results in
ARTICLE? preterition of A. A dies before X but
4 A compulsory heir in the direct line, whether leaves a legit child, A-1, who is
living at the time of the execution of the will himself completely omitted from the
or born after the death of the testator. inheritance [A-1 being entitled to
1. COMPULSORY HEIRS IN THE DIRECT LINE succeed X by representation]. Art854
– will apply, not because A was
• Covers children or descendants, and preterited but because A-1 was
in proper cases [in default of children preterited.
or descendants] parents or
ascendants 5. ADOPTED CHILDREN
• Surviving Spouse – does not fall • Case of Acain v. IAC answers the
within the purview of this article question of whether an adopted child
because although a compulsory heir, is within the contemplation of this
is not in the direct line. article as “compulsory heir in the
• Under Art964 par2, direct line is that direct line” and rules in favor of the
constituted by the series of degrees adopted child’s inclusion in the
among ascendants and descendants. phrase.
• An adopted child therefore, if totally
2. Are ILLEGITIMATE DESCENDANTS OR omitted in the inheritance, is
ASCENDANTS within the coverage of preterited within the contemplation
“compulsory heirs in the direct line”? of Art854 and can invoke its
• Manresa – YES, Scaevola – NO. protection and consequences.
• Manresa’s seems to be the better • Acain’s logic is that since an adopted
opinion, since the law does not child is given by law the same rights
distinguish. as a legitimate child, vis-à-vis the
adopter, then the adopted child can,
3. QUASI-POSTHUMOUS CHILDREN – in proper cases, invoke Art854 in the
• There is a flaw in the wording of the same manner that a legitimate child
article. The phrase “whether living at can.
the time of the execution of the will • The law cited was Art39 of PD603 or
or born after the death of the the Child and Youth Welfare Code as
testator” does not, by its terms, supplanted by Art189[1] of the
include those compulsory heirs in the Gamily Code, likewise supplanted by
direct line born after the execution of Secs 17 and 18 of RA8552 or the
the will but before the testator’s Domestic Adoption Act of 1998.
death [los cuasi posthumous].
• However, such children are, without † EFFECT OF PRETERITION
doubt, to be included within the 4 Annulment of the institution of an heir but
purview of the protection of this validity of legacies and devisees to the extent
article. that these latter do not impair legitimes.
4 Distinction between heirs and
4. PREDECEASE OF PRETERITED legatees/devisees – This in the only instance
COMPULSORY HEIR – when there is still a practical effect in the
nd
• 2 paragraph of Art 854 provides: If distinction between an heir and a legatee or
the omitted compulsory heirs should devisee in Art782.
die before the testator, the 4 According to the case of Nuguid v. Nuguid,
institution shall be effectual, without annulment of institution of heir means only
prejudice to the right of the legacies and devises will merit
representation. consideration if expressly given in the will.
Art854 does not mean that the mere

SUCCESSION - Balane Reviewer Page 30 of 116


institution of a universal heir in a will – void ART. 855. The share of a child or descendant
because of preterition – would give the heir so omitted in a will must first be taken from
instituted a share in the inheritance. As to the the part of the estate not disposed of by
heir, the will is inexistent. the will, if any; if that is not sufficient, so
4 In that case, the only provision in the will was much as may be necessary must be taken
the institution of the petitioner a universal proportionally from the shares of the
heir. That institution, by itself, was held null other compulsory heirs.
and void. Therefore, intestate succession
† Article is redundant and completely unnecessary
ensued.
of it is made to apply to cases of preterition. If

there is preterition, only Art854 need be applied.
4 However, this was muddled in the case of
† Proper Application of Art855 – in cases where a
Solano v. CA wherein it was ruled that the
compulsory heir is not preterited but left
preterition of illegitimate children should
something [because not all the estate is disposed
annul the institution of the heir “only insofar
of by will] less than his legitime. Art855 really talks
as the legitime of the omitted heirs is
of a completion of legitime.
impaired”.

4 Prof. Balane says this is not annulment but
† HOW TO FILL UP COMPULSORY HEIR’S IMPAIRED
reduction, and this would erase the distinction
LEGITIME?
between the effect of preterition on the
4 From the portion of the estate left undisposed
institution of the heir and its effect on legacies
of by will.
and devises.
4 From the shares of the testamentary heirs,

legatees and devisees, proportionally.
4 Fortunately, this was cleared up in Acain v. CA

wherein it was held that “Preterition annuls
† Superfluity and Inaccuracy of Art855 –
the institution of an heir and annulment
4 Superfluity – article, properly understood,
throws open to intestate succession the entire
does not apply to preterition but to
inheritance. The only provisions which do not
completion of legitime, it is redundant,
result in intestacy are the legacies and devises
because the rules and manner of completing
made in the will for they should stand valid
impaired legitimes are laid down with greater
and respected, except insofar as the legitimes
detail in Articles 906, 907, 909, 910 and 911.
are concerned.”
4 Inaccuracy – two inaccuracies

1. Coverage should extend not only to
† RE-CAP – the correct rule of preterition is that:
children and descendants but to all
4 Preterition abrogates the institution of heir
compulsory heirs. As subsequent articles
but respects legacies and devises insofar as
[906, etc.] mandate, any compulsory heir
these do not impair the legitimes. Thus, if the
whose legitime is impaired may demand
will contains only institutions of heirs and
that the same be fully satisfied.
there is preterition, TOTAL INTESTACY will
2. Proportionate reductions [after
result.
consuming the undisposed portion]
4 If there are legacies or devises and there is
should be borne not by the compulsory
preterition, the legacies or devises will stand,
heirs as such but by the testamentary
to the extent of the free portion [merely to be
heirs, including the devisees and legatees.
reduced and not set aside, if the legitimes are
• To make the compulsory heirs qua
impaired] but the institution of heirs, if any,
compulsory heirs bear the reduction
will be swept away.
would mean reducing their own

legitimes – a patent absurdity.
† PRETERITION v. INEFFECTIVE DISINHERITANCE
• That would be solving one problem
4 Preterition is total omission from the
by creating another.
inheritance, without the heir being expressly
disinherited. The implied basis of the rule is • As correctly stated by Art907, it is
inadvertent omission by the testator. testamentary dispositions that must
4 Thus, if the testator explicitly disinherits the be reduced if they impair or diminish
heir, this article will not apply. the legitimes of compulsory heirs.
4 Should the disinheritance be ineffective, for
absence of one or other of the requisites for a 4 Senator Tolentino comments that article
valid disinheritance, the heir is simply entitled should be rephrased as follows -
to demand his rightful share. The share of the compulsory heir omitted
in a will must first be 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

SUCCESSION - Balane Reviewer Page 31 of 116


the shares of the other heirs given to them by SECTION 3 – SUBSTITUTION OF HEIRS
will.
Art. 857. Substitution is the appointment of
ART. 856. A voluntary heir who dies before the another heir so that he may enter into the
testator transmits nothing to his heirs. inheritance in default of the heir originally
instituted.
A compulsory heir who dies before the
testator, a person incapacitated to † The definition of substitution is incomplete
succeed, and one who renounces the because it covers only simple substitution and
inheritance, shall transmit no right to his excludes the fideicommissary. In the
nd
own heirs except in cases expressly fideicommissary, the 2 heir does not succeed in
provided for in this Code. default, but AFTER the first.
† The complete definition of substitution should be
† Observations on the Article
– “Substitution is the appointment of another heir
4 Inaccurate and misleading because it suggests
so that he may enter into the inheritance in
that there are exceptions to the rule that an
default of, or subsequent to, the heir originally
heir, in case of predecease, incapacity or
substituted.”
renunciation, transmits nothing to his own
† With respect to Simple Substitution, this section is
heirs.
properly a part of the next section on conditional
• This rule of non-transmission is
testamentary dispositions.
ABSOLUTE and there is no exception to
† Simple substitution is really a form of conditional
it.
institution.
• Representation does not constitute an
† The right to provide for substitutions is based on
exception because in representation the
testamentary freedom.
person represented does not transmit
† In simple substitutions, the testator simply makes
anything to his heirs. Representation is
a second choice, in case the first choice does not
rather a form of subrogation.
inherit.
4 It says too much because the article is in the
† In fideicommissary substitutions, the testator
chapter on testamentary succession under
imposes what is essentially a RESTRICTION OR
institution of heir, therefore it should speak
BURDEN on the first heir, coupled with a selection
only of voluntary or testamentary heirs.
of a subsequent recipient of the property.
4 It says too little because it does not mention

legal or intestate heirs nor does it provide for
Art. 858. Substitution of heirs may be:
cases of disinheritance.
(1) Simple or common;
† Rather, the complete statement of the rule is – (2) Brief or compendious;
4 An heir, whether compulsory, voluntary or (3) Reciprocal; or
legal, transmits NOTHING to his heirs in case (4) Fideicommissary.
of predecease, incapacity, renunciation or
disinheritance. However, in case of † Under the old Spanish Code, in addition to the 4
predecease or incapacity of compulsory or enumerated, there were pupilar and ejemplar
legal heirs, as well as disinheritance of substitutions under Arts. 775 and 776, providing
compulsory heirs, the rules on representation that an ascendant or the parent may substitute
shall apply. the descendant below 14 years old in case the
descendant should die before age 14; and that a
† Outline of Rules substitute may be designated by an ascendant for
a descendant who is over 14 but has been
Kind of PRE- INCA- RENUN- DISINHE declared incompetent by reason of mental
Heir DECEAS PACITY CIATION RI- incapacity, but such substitution shall be
E TANCE ineffective by a will executed by the incompetent
TN R TN R TN R TN R during a lucid interval or after he ahs recovered his
COMPUL- P P P P P P P mental faculties.
SORY
VOLUNT P P P NA NA † KINDS OF SUBSTITUTION UNDER ART858
ARY 1. Simple or Common [vulgar] – Art859
LEGAL P P P P P NA NA 2. Brief or Compendious [brevilocua /
compendiosa] – Art860
TN – Transmits nothing 3. Reciprocal [reciproca] – Art861
R - Representation 4. Fideicommissary [fideicomisaria] – Art863

† In reality, there are only 2 kinds of substitutions –
the simple or common and the fideicommissary.
These two are MUTUALLY EXCLUSIVE, a
SUCCESSION - Balane Reviewer Page 32 of 116
substitution must be one or the other and cannot inheritance is deemed never to have
be both at the same time. possessed the same.”
† Brief or compendious and reciprocal substitutions 4 Will the substitute be disqualified if the cause
are merely variations of either the simple or of the first heir’s predecease is that the
fideicommissary. substitute killed him?

ART. 859. The testator may designate one or more ART. 860. Two or more persons may be substituted
persons to substitute the heir or heirs for one; and one person for two or more
instituted in case such heir or heirs should heirs.
die before him, or should not wish, or
† Brief or Compendious substitution is a possible
should be incapacitated to accept the
variation of either a simple or fideicommissary
inheritance.
substitution.
A simple substitution, without a
statement of the cases to which it refers, † Distinctions
shall comprise the there mentioned in the 4 Brief – 2 or more substitutes for 1 original heir
preceding paragraph, unless the testator 4 Compendious – 1 substitute for 2 or more
has otherwise provided. orig.
4 However, most commentators use the terms

interchangeably.
† This article provides for SIMPLE or VULGAR

substitution.
† If 1 is substituted for 2 or more original heirs –

4 Effect of default of one but not all of the
† CAUSES OF SIMPLE SUBSTITUTION
original heirs is that substitution will NOT take
1. Predecease of the first heir
place but the share left vacant will accrue to
2. Renunciation of the first heir
the surviving original co-heir or co-heirs.
3. Incapacity of the first heir
4 Substitution will take place only if ALL the

original heirs are disqualified.
† HOW TESTATOR MAY PROVIDE FOR SIMPLE
4 The exception is where the testator provides
SUBSTITUTION WITH ALL 3 CAUSES
for substitution in the event of the death or
1. By specifying all 3 causes
renunciation or incapacity of any one of the
2. By merely providing for a simple
original heirs.
substitution


ART. 861. If heirs instituted in unequal shares
† Restricted Simple Substitution – the testator may
should be reciprocally substituted, the
limit the operation of simple substitution by
substitute shall acquire the share of the
specifying only one or two of the 3 causes.
heir who dies, renounces, or is

incapacitated, unless it clearly appears
† QUESTIONS –
that the intention of the testator was
4 May the testator provide for a substitution on
otherwise. If there are more than one
grounds other than those provided in this
substitute, they shall have the same share
article?
in the substitution as in the institution.
4 In case of renunciation by the first heir, must
the substitute have capacity at the time of the † Reciprocal substitution is a possible variation of
renunciation? Supposing the substitute dies the simple or fideicommissary substitution.
before the first heir manifests his † If the heirs in a will are given unequal shares, and
renunciation, may the successors of the they are reciprocal substitutes of each other, the
substitute acquire the testamentary substitute shall, in addition to his given share,
disposition? acquire the share of the heir who he is substituting
• Must have capacity – Art1034 par 3 for due to predecease, renunciation or incapacity.
providing that “If the institution, devise 4 Example, A gets ¼ and B gets ¼. They are
or legacy should be conditional, the time reciprocally substituted. If A predeceases the
of the compliance with the condition testator, B will substitute and get the share of
shall also be considered.” As a simple A [¼] in addition to his share, so in total he
substitution is a form of conditional gets ½.
substitution, therefore Art1034 can be † The second sentence of Art861 provides for
applied. Proportionate Accrual. If there are more than 1
• Need not have capacity – Art1042 and heir instituted, and they are reciprocally
533 par2 which provides that the effects substituted, the substitutes will acquire the share
of the acceptance or repudiation of the of the original heir in the same proportion as they
inheritance shall always retroact to the were given in the testamentary disposition.
moment of the death of the decedent” 4 Example, A gets ½, B gets 1/3 and C gets 1/6.
and that “one who validly renounces an If a predeceases the testator, B and C will
SUCCESSION - Balane Reviewer Page 33 of 116
acquire A’s ½ share in the proportion of 2:1 and that right passes to his own heirs
because their respective testamentary shares should he die before the fiduciary’s
are ½ and 1/6. Should B predecease, A and C right expires.
will get his portion in the proportion of 3:1
nd
because their respective shares are ½ and 1/6. 3. The 2 heir must be 1 degree from the first
Should C predecease, A and B will get C’s 1/6 heir
portion in the proportion of 3:2 for the same • Means 2 things
reason. a) Only one transmission/transfer is
allowed, from the first heir to
ART. 862. The substitute shall be subject to the the second heir
same charges and conditions imposed b) Second heir must be in the first
upon the instituted heir, unless the degree of relationship with the
testator has expressly provided the first heir. The second heir must
contrary, or the charges or conditions are either be a child or parent of the
personally applicable only to the heir first heir
instituted.
st
4. Dual obligation imposed upon the 1 heir to:
† The substitute merely takes the place of the
a) Preserve the property, and
original heir, so the former is also subjected to all
b) To transmit it after the lapse of the
the liabilities as well as rights of the latter,
period to the fideicommissary heir.
including charges and conditions imposed upon

the original heir.
• This requisite is the essence of the
fideicomisaria. This makes the
ART. 863. A fideicommisary substitution by virtue of
position of the fiduciary basically that
which the fiduciary or first heir instituted
of a usufructuary, with the right to
is entrusted with the obligation to
use and enjoy the property but
preserve and to transmit to a second heir
the whole or part of the inheritance, shall WITHOUT JUS DISPONENDI.
be valid and shall take effect, provided • If there is no absolute obligation to
such substitution does not go beyond one preserve and transmit, there is no
degree from the heir originally instituted, fideicommissary substitution.
and provided further, that the fiduciary or • The institution is not necessarily void,
first heir and the second heir are living at it may be valid as some other
the time of the death of the testator. disposition but it is not a
fideicomisaria.
† First heir – fiduciary ; Second heir – • In PCIB v. Escolin, the institution was
fideicommissary held to be a simultaneous institution,
a resolutory condition on the part of
† ELEMENTS OF FIDEICOMISARIA the husband while subject to a
suspensive condition on the part of
st
1. A 1 heir who takes the property upon the the brothers- and sisters-in-law and
testator’s death not a fideicomisaria because no
• Fiduciary enters upon the obligation is imposed upon the
inheritance, like every other heir, husband to preserve the estate or
upon the opening of the succession, any part thereof for anyone else.
which is when the testator dies. • If the testator DID NOT specify a day
when the fiduciary will deliver the
nd
2. A 2 heir who takes the property property to the fideicomissary, or
subsequently from the fiduciary when the time of delivery is in doubt,
• The fideicommissary heir does not it shall be understood to have been
receive the property until the left to the fiduciary’s discretion,
fiduciary’s right expires. which means the delivery should be
• BOTH heirs enter into the upon the FIDUCIARY’S DEATH. This is
inheritance, one after the other, each based on the presumption that the
in his own turn. This distinguishes the testator intended the fiduciary to
fideicomisaria from the vulgar, in enjoy the property during his
which the substitute inherits only if lifetime.
the first heir fails to inherit.
• NOTE – though the fideicommissary 5. Both heirs must be living and disqualified to
heir does not receive the property succeed at the time of the testator’s death.
upon the testator’s death, his right
thereto VESTS at that time and Living – according to Articles 40-41
merely becomes subject to a period,
SUCCESSION - Balane Reviewer Page 34 of 116
Art. 40. Birth determines personality; but the (4) Any attesting witness to the execution of
conceived child shall be considered born for a will, the spouse, parents, or children, or
all purposes that are favorable to it, provided any one claiming under such witness,
it be born later with the conditions specified spouse, parents, or children;
in the following article. (5) Any physician, surgeon, nurse, health
officer or druggist who took care of the
Art. 41. For civil purposes, the fetus is
testator during his last illness;
considered born if it is alive at the time it is
(6) Individuals, associations and corporations
completely delivered from the mother's
not permitted by law to inherit.
womb. However, if the fetus had an intra-

uterine life of less than seven months, it is
not deemed born if it dies within twenty-four Art. 1028. The prohibitions mentioned in article
739, concerning donations inter vivos shall
hours after its complete delivery from the
apply to testamentary provisions.
maternal womb.

Qualified – according to Articles 1024-1034. Art. 1029. Should the testator dispose of the
Art. 1024. Persons not incapacitated by law may whole or part of his property for prayers and
succeed by will or ab intestato. pious works for the benefit of his soul, in
The provisions relating to incapacity by will general terms and without specifying its
are equally applicable to intestate application, the executor, with the court's
succession. approval shall deliver one-half thereof or its
proceeds to the church or denomination to
Art. 1025. In order to be capacitated to inherit, which the testator may belong, to be used
the heir, devisee or legatee must be living at for such prayers and pious works, and the
the moment the succession opens, except in other half to the State, for the purposes
case of representation, when it is proper. mentioned in Article 1013.
A child already conceived at the time of the
death of the decedent is capable of Art. 1030. Testamentary provisions in favor of the
succeeding provided it be born later under poor in general, without designation of
the conditions prescribed in article 41. particular persons or of any community, shall
be deemed limited to the poor living in the
Art. 1026. A testamentary disposition may be domicile of the testator at the time of his
made to the State, provinces, municipal death, unless it should clearly appear that his
corporations, private corporations, intention was otherwise.
organizations, or associations for religious, The designation of the persons who are to
scientific, cultural, educational, or charitable be considered as poor and the distribution of
purposes. the property shall be made by the person
All other corporations or entities may appointed by the testator for the purpose; in
succeed under a will, unless there is a default of such person, by the executor, and
provision to the contrary in their charter or should there be no executor, by the justice of
the laws of their creation, and always subject the peace, the mayor, and the municipal
to the same. treasurer, who shall decide by a majority of
votes all questions that may arise. In all these
Art. 1027. The following are incapable of cases, the approval of the Court of First
succeeding: Instance shall be necessary.
(1) The priest who heard the confession of The preceding paragraph shall apply when
the testator during his last illness, or the the testator has disposed of his property in
minister of the gospel who extended favor of the poor of a definite locality.
spiritual aid to him during the same period;
(2) The relatives of such priest or minister of Art. 1031. A testamentary provision in favor of a
the gospel within the fourth degree, the disqualified person, even though made under
church, order, chapter, community, the guise of an onerous contract, or made
organization, or institution to which such through an intermediary, shall be void.
priest or minister may belong;
(3) A guardian with respect to testamentary Art. 1032. The following are incapable of
dispositions given by a ward in his favor succeeding by reason of unworthiness:
before the final accounts of the (1) Parents who have abandoned their
guardianship have been approved, even if children or induced their daughters to lead
the testator should die after the approval a corrupt or immoral life, or attempted
thereof; nevertheless, any provision made against their virtue;
by the ward in favor of the guardian when (2) Any person who has been convicted of an
the latter is his ascendant, descendant, attempt against the life of the testator, his
brother, sister, or spouse, shall be valid; or her spouse, descendants, or ascendants;
SUCCESSION - Balane Reviewer Page 35 of 116
(3) Any person who has accused the testator ART. 865. Every fideicommisary substitution must
of a crime for which the law prescribes be expressly made in order that it may be
imprisonment for six years or more, if the valid.
accusation has been found groundless;
The fiduciary shall be obliged to deliver
(4) Any heir of full age who, having
the inheritance to the second heir,
knowledge of the violent death of the
without other deductions than those
testator, should fail to report it to an
which arise from legitimate expenses,
officer of the law within a month, unless
credits and improvements, save in the
the authorities have already taken action;
case where the testator has provided
this prohibition shall not apply to cases
otherwise.
wherein, according to law, there is no
obligation to make an accusation; † FIDEICOMISARIA SHOULD BE EXPRESSLY IMPOSED.
(5) Any person convicted of adultery or † 2 ways of making an express imposition –
concubinage with the spouse of the 1. By the use of the term fideicommissary or
testator; 2. By imposing upon the first heir the absolute
(6) Any person who by fraud, violence, obligation to preserve and to transmit to the
intimidation, or undue influence should second heir.
cause the testator to make a will or to
change one already made; † Allowable Deductions
(7) Any person who by the same means 1. GR – fiduciary should deliver property
prevents another from making a will, or INTACT and UNDIMINISHED to the
from revoking one already made, or who fideicommissary heir upon the arrival of the
supplants, conceals, or alters the latter's period.
will; 2. The only Deductions allowed, in the absence
(8) Any person who falsifies or forges a of a contrary provision in the will are –
supposed will of the decedent. a) Legitimate expenses – only necessary
and useful expenses and NOT
Art. 1033. The cause of unworthiness shall be ornamental expenses
without effect if the testator had knowledge b) Credits
thereof at the time he made the will, or if, c) Improvements - only necessary and
having known of them subsequently, he useful improvements and NOT
should condone them in writing. ornamental improvements

Art. 1034. In order to judge the capacity of the † Damage or Deterioration to Property
heir, devisee or legatee, his qualification at 4 If caused by a fortuitous event or ordinary
the time of the death of the decedent shall wear and tear – fiduciary is not liable
be the criterion. 4 If caused by fiduciary’s fault or negligence –
In cases falling under Nos. 2, 3, or 5 of fiduciary is liable.
Article 1032, it shall be necessary to wait
until final judgment is rendered, and in the ART. 866. The second heir shall acquire a right to the
case falling under No. 4, the expiration of the succession from the time of the testator’s
month allowed for the report. death, even though he should die before
If the institution, devise or legacy should the fiduciary. The right of the second heir
be conditional, the time of the compliance shall pass to his heirs.
with the condition shall also be considered.
† In connection with Art863 on element of

fideicommissary that both heirs must be living and
• NOTE – this 2-fold requirement is to be met only
disqualified to succeed at the time of the
upon the testator’s death, and this applies not
testator’s death.
only to the fiduciary but to the second heir as
† The second heir’s right vests upon the testator’s
well.
death, conformably with Art777 and Art878 since

nd as far as the second heir is concerned, the
• Thus, the 2 heir need not survive the first heir, if institution of him is one subject to a suspensive
nd nd
the 2 heir dies before the first heir, the 2 heir’s term.
own heirs merely take his place. † Thus, the second heir does not have to survive the
first heir in order for the substitution to be
ART. 864. A fideicommissary substitution can never effective. The second heir’s own heirs simply take
burden the legitime. his place by succeeding to the vested right already
† Legitime passes by strict operation of law, possessed by the second heir.
therefore the testator has no power over it.


SUCCESSION - Balane Reviewer Page 36 of 116
ART. 867. The following shall not take effect: difficulty of establishing the fact of
circumvention. Supposing the
(1) Fideicommissary substitutions which are
ostensible heir conceals or destroys
not made in an express manner, either by
the secret instructions and claims as
giving them this name, or imposing upon
heir under the testamentary
the fiduciary the absolute obligation to
provision as worded?
deliver the property to a second heir;

(2) Provisions which contain a perpetual
ART. 868. The nullity of the fideicommissary
prohibition to alienate, and even a
substitution does not prejudice the
temporary one, beyond the limit fixed in
validity of the institution of the heirs first
article 863.
designated; the fideicommissary clause
(3) Those which impose upon the heir the
shall simply be considered as not written.
charge of paying to various persons
successively, beyond the limit prescribed † If the fideicommissary substitution is void or
in article 863, a certain income or pension; ineffective, the institution of the first heir simply
(4) Those which leave to a person the whole becomes pure and unqualified.
part of the hereditary property in order † Nullity or ineffectivity of the institution of the first
that he may apply or invest the same heir – article does not provide for a case where it
according to secret instructions is the institution of the first heir that is void or
communicated to him by the testator. ineffective. What is the rule in such a case?

† Provisions that shall NOT TAKE EFFECT ART. 869. A provision whereby the testator leaves
1. Fideicommissary substitutions which are not to a person the whole or part of the
made in an express manner inheritance, and to another the usufruct,
• Lack of this element does not, by that shall be valid. If he fives the usufruct to
fact alone, nullify the institution. It various persons, not simultaneously, but
only means that the institution is not successively, the provisions of Article 863
a fideicomisaria. shall apply.

† If the testator institutes successive usufructuaries,
2. Perpetual prohibition to alienate, and even a
there can only be two usufructuaries, one after the
temporary one, beyond the limit fixed in
other, and as to the two of them, all the requisites
article 863.
of Art863 must be present.
• If there is a fideicomisaria, the limit is
the first heir’s lifetime.
ART. 870. The dispositions of the testator declaring
• If there is no fideicomisaria, the limit all or part of the estate inalienable for
is 20 years. more than twenty years are void.

3. Imposes upon the heir the charge of paying a † If the testator imposes a longer period than 20
certain income or pension to various persons years, the prohibition is valid only for 20 years.
successively, beyond the limit prescribed in † If there is a fideicommissary substitution, this time
article 863 limitation will not apply. Rather, Art863 applies,
• There can only be 2 beneficiaries of which allows as a period, the lifetime of the first
the pension, one after the other, and heir.
the second must be one degree from
the first. But there is no prohibition
on simultaneous beneficiaries.

4. Leave to a person the whole part of the
hereditary property in order that he may
apply or invest the same according to secret
instructions communicated to him by the
testator.
• The ostensible heir here is in reality
only a dummy, because in reality, the
person intended to be benefited is
the one to whom the secret
instructions refer. The purpose of
such a surreptitious disposition is to
circumvent some prohibition or
disqualification
• This paragraph makes the ENTIRE
PROVISION VOID. The problem is the
SUCCESSION - Balane Reviewer Page 37 of 116
KINDS OF SUBSTITUTIONS SECTION 4 – CONDITIONAL TESTAMENTARY
DISPOSITIONS AND TESTAMENTARY DISPOSITIONS

WITH A TERM
1. SIMPLE or COMMON

4 Causes of Simple Substitution
GENERAL PROVISIONS
1) Predecease of the first heir

2) Renunciation of the first heir
ART. 871. The institution of an heir may be made
3) Incapacity of the first heir
conditionally, or for a certain purpose or

cause.
2. BRIEF or COMPENDIOUS
4 Distinctions † 3 KINDS OF TESTAMENTARY DISPOSITIONS
o Brief – 2 or more substitutes for 1 orig. 1. Conditional dispositions
heir 2. Dispositions with a term
o Compendious – 1 sub for 2 or more orig. 3. Dispositions with a mode [modal
o However, most commentators use the dispositions]
terms interchangeably.
4 If 1 is substituted for 2 or more original † Inaccuracies in Section heading and wording of
heirs, default of one but not all of the this article
original heirs does not lead to substitution 4 Incomplete Section Heading – should include4
but the share left vacant will accrue to the modal dispositions
surviving original co-heir or co-heirs. 4 Incomplete wording of Article – does not
include dispositions with a term
3. RECIPROCAL
4 If the heirs in a will are given unequal shares, † Definitions
and they are reciprocal substitutes of each 4 CONDITION – defined obliquely in Art1179
other, the substitute shall, in addition to his par1.
given share, acquire the share of the heir Art. 1179. Every obligation whose
who he is substituting for due to performance does not depend upon a
predecease, renunciation or incapacity. future or uncertain event, or upon a past
4 The second sentence of Art861 provides for event unknown to the parties, is
Proportionate Accrual. If there are more demandable at once.
than 1 heir instituted, and they are Every obligation which contains a
reciprocally substituted, the substitutes will resolutory condition shall also be
acquire the share of the original heir in the demandable, without prejudice to the
same proportion as they were given in the effects of the happening of the event.
testamentary disposition.
4 TERM – defined obliquely in Art1173 pars 1 &
4. FIDEICOMMISSARY 3
4 Elements of a Fideicommissary Art. 1193. Obligations for whose fulfillment
st
1) A 1 heir who takes the property a day certain has been fixed, shall be
upon the testator’s death demandable only when that day comes.
nd
2) A 2 heir who takes the property Obligations with a resolutory period
subsequently from the fiduciary take effect at once, but terminate upon
nd
3) The 2 heir must be 1 degree from arrival of the day certain.
the first heir A day certain is understood to be
st
4) Dual obligation imposed upon the 1 that which must necessarily come,
heir to: although it may not be known when.
a. Preserve the property, and If the uncertainty consists in
b. To transmit it after the lapse of whether the day will come or not, the
the period to the fideicommissary obligation is conditional, and it shall be
heir. regulated by the rules of the preceding
5) Both heirs must be living and Section.
disqualified to succeed at the time of
the testator’s death. 4 MODE – defined obliquely in Art882.
4 Fideicommissary substitution should be Art. 882. The statement of the object of
expressly provided for in the will the institution, or the application of the
property left by the testator, or the

charge imposed by him, shall not be
considered as a condition unless it
appears that such was his intention.
That which has been left in this
manner may be claimed at once
SUCCESSION - Balane Reviewer Page 38 of 116
provided that the instituted heir or his The condition not to do an impossible
heirs give security for compliance with thing shall be considered as not having been
the wishes of the testator and for the agreed upon.
return of anything he or they may
receive, together with its fruits and † Reason for difference in rule
interests, if he or they should disregard 4 Testamentary dispositions and donations are
this obligation. both gratuitous and spring from the grantor’s
liberality. The imposition of a condition does
† Proper Order of Provisions in this Section not displace liberality as the basis of the grant.
1. General provisions – Arts 871 and 872 4 On the other hand, in obligations which are
2. Conditions – Arts 873, 874, 875, 876, 877, onerous, the condition that is imposed
883 par. 2, 879, 880, 881 and 884 becomes an integral part of the causa of the
3. Terms – Arts 878 and 885 obligation. The elimination of that condition
4. Modes – Arts 882 and 883 par.1 for being impossible or illegal results in a
failure of cause.
GENERAL PROVISIONS
† Art871 – The right of the testator to impose ART. 874. An absolute condition not to contract a
conditions, terms or modes springs from first or subsequent marriage shall be
testamentary freedom. If he has the right to considered as not written unless such
dispose of his estate mortis causa, then he has the condition has been imposed on the widow
right to make the disposition subject to a or widower by the deceased spouse or by
condition, term or mode. the latter’s ascendants or descendants.

Nevertheless, the right of usufruct, or an
ART. 872. The testator cannot impose any charge,
allowance or some personal prestation
condition or substitution whatsoever
may be devised or bequeathed to any
upon the legitimes prescribed in this
person for the time during which he or
Code. Should he do so, the same shall be
she should remain unmarried or in
considered as not imposed.
widowhood.
† The legitime passes by strict operation of law,
† Conditions prohibiting marriage
independent of the testator’s will. This article is a
4 If a first marriage is prohibited – condition
logical consequence of that principle.
always considered as not imposed
† This article is echoed by Art904 par2.
4 If subsequent marriage is prohibited

1. If imposed by the deceased spouse or by
DISPOSITION WITH CONDITIONS
his/her ascendants or descendants – valid
– MAY BE BOTH RESOLUTORY OR SUSPENSIVE.
2. If imposed by anyone else – considered as

not written
ART. 873. Impossible conditions and those contrary

to law or good customs shall be nd
† The 2 paragraph of the article may provide the
considered as not imposed and shall in no
testator, if he so desires, a means of terminating
manner prejudice the heir, even if the
the testamentary benefaction should the heir
testator should otherwise provide.
contract marriage, even a first one. The wording of
† The impossible or illegal condition is simply the disposition will be crucial, it should not be so
considered as not written. The testamentary worded as to constitute a prohibition forbidden in
disposition itself is not annulled; on the contrary it the first paragraph.
becomes PURE.
† Necessity of Caución Muciana – since this
† The rule on Donations is the same. – considered as condition, assuming it is validly imposed, is
not imposed NEGATIVE in nature, a Caución Muciana is
4 Art. 727. Illegal or impossible conditions in required, as in Art879.
simple and remuneratory donations shall be
considered as not imposed. † Condition to contract marriage – This article does
not prohibit the imposition of a condition to
† On the other hand, the rule in Obligations is marry, either with reference to a particular person
different. – annuls the obligation or not.
4 Art. 1183. Impossible conditions, those
contrary to good customs or public policy and † Neither does this article declare void a relative
those prohibited by law shall annul the prohibition.
obligation which depends upon them. If the
obligation is divisible, that part thereof which
is not affected by the impossible or unlawful
condition shall be valid.
SUCCESSION - Balane Reviewer Page 39 of 116
ART. 875. Any disposition made upon the condition 1. Potestative Conditions – one that depends
that the heir shall make some provision in solely on the will of the heir/devisee/legatee.
favor of the latter of the testator or of any 2. Casual Condition – one that depends on the
other person shall be void. will of a third person or on chance
3. Mixed Condition – one that depends partly
† Scriptura Captatoria – Legacy-hunting dispositions,
on the will of the heir/devisee/legatee and
whether to heirs or legatees, are void.
partly either on the will of a third person or

chance.
† Reasons for the Prohibition

1. The captatoria converts testamentary
† RULES ON POTESTATIVE, CASUAL AND MIXED
grants into contractual transactions
CONDITIONS
2. It deprives the heir of testamentary
A. POTESTATIVE
freedom
• Positive – to do something
3. It gives the testator the power to dispose
a) GR – must be fulfilled as soon as the
mortis causa not only of his property but
heir learns of the testator’s death
also of his heir’s.
b) E – if the condition was already

complied with at the time the heir
† What is declared void – it is not merely the
learns of the testator’s death, and
condition that is declared void but the
the condition is of such a nature that
testamentary disposition itself which contains the
it cannot be fulfilled again.
condition.
c) Constructive compliance – Art883

par2 – condition is deemed fulfilled.
ART. 876. Any purely potestative condition imposed

upon an heir must be fulfilled by him a
soon as he learns of the testator’s death. • Negative – not to do something
a) Heir must give security to guarantee
This rule shall not apply when the [caucion muciana] the return of the
condition, already complied with, cannot value of the property, fruits, and
be fulfilled again. interests, in case of contravention.
ART. 877. If the condition is casual or mixed, it shall b) 3 Instances when a Caucion Muciana
be sufficient if it happen or be fulfilled at is Required
any time before or after the death of the § Art879 – if the potestative
testator, unless he has provided conditions is negative
otherwise. § Art885 par2 - The designation
of the day or the time when
Should it have existed or should it have the effects of the institution
been fulfilled at the time the will was of an heir shall commence
executed and the testator was unaware § Art882 – When there is a
thereof, it shall be deemed as complied statement of the object of the
with. institution, or the application
If he had knowledge thereof, the of the property left by the
condition shall be considered fulfilled only testator, or the charge
when it is of such a nature that it can no imposed by him.
longer exist or be complied with again.
B. CASUAL or MIXED
ART. 883, par. 2. If the person interested in the • GR – may be fulfilled at any time, before
condition should prevent its fulfillment, without or after the testator’s death, unless the
the fault of the heir, the condition shall be testator provides otherwise.
deemed to have been complied with. • QUALIFICATIONS – if already fulfilled at
the time of the execution of the will
ART. 879. If the potestative condition imposed upon a) If testator UNAWARE of
the heir is negative or consists in not fulfillment – deemed fulfilled
doing or not giving something, he shall b) If testator was AWARE of
comply by giving a security that he will fulfillment
not do or give that which has been § Can no longer be fulfilled
prohibited by the testator, and that in again – deemed fulfilled
case of contravention he will return § Can be fulfilled again – must
whatever he may have received, together be fulfilled again
with its fruits and interests. • Constructive Compliance - Art883 par2
† These articles govern POTESTATIVE, CASUAL and a) If casual – not applicable
MIXED conditions. b) If mixed

SUCCESSION - Balane Reviewer Page 40 of 116


§ If dependent partly on chance event, or upon a past event unknown to the
– not applicable parties, is demandable at once.
§ If dependent partly on will of Every obligation which contains a resolutory
a third party condition shall also be demandable, without
rd
• If interested 3 party – prejudice to the effects of the happening of the
applicable event.
• If not an interested party
– not applicable Art. 1180. When the debtor binds himself to pay
when his means permit him to do so, the
ART. 880. If the heir be instituted under a obligation shall be deemed to be one with a
suspensive condition or term the estate period, subject to the provisions of Article
shall be placed under administration until 1197.
the condition is fulfilled, or until it
becomes certain that it cannot be fulfilled, Art. 1181. In conditional obligations, the
or until the arrival of the term. acquisition of rights, as well as the
extinguishment or loss of those already
The same shall be done if the heir does
acquired, shall depend upon the happening of
not give the security required in the
the event which constitutes the condition.
preceding article.

ART. 881. The appointment of the administrator of Art. 1182. When the fulfillment of the condition
the estate mentioned in the preceding depends upon the sole will of the debtor, the
article, as well as the manner of conditional obligation shall be void. If it
administration and the rights and depends upon chance or upon the will of a
obligations of the administrator shall be third person, the obligation shall take effect in
governed by the Rules of Court. conformity with the provisions of this Code.

† Between the time of the testator’s death and the
Art. 1183. Impossible conditions, those contrary
time of the fulfillment of the suspensive condition
to good customs or public policy and those
or of the certainty of its non-occurrence –
prohibited by law shall annul the obligation
property is to be placed under administration.
which depends upon them. If the obligation is
1. If condition happens – the property will
divisible, that part thereof which is not affected
be turned over to the instituted heir
by the impossible or unlawful condition shall be
2. If it becomes certain that condition will
valid.
not happen – property will be turned over
The condition not to do an impossible thing
to a secondary heir [if there is one] or to
shall be considered as not having been agreed
the intestate heirs, as the case may be.
upon.


† Not applicable to institutions with a TERM –
Art. 1184. The condition that some event happen
despite the wording of the article, it should not be
at a determinate time shall extinguish the
applied to institutions with a term, which are
obligation as soon as the time expires or if it
governed by Art885 par 2. Otherwise, there will be
has become indubitable that the event will not
an irreconcilable conflict with that article, which
take place.
mandates that before the arrival of the term, the

property should be given to the legal heirs.
Art. 1185. The condition that some event will not

nd happen at a determinate time shall render the
† 2 paragraph – the property shall be in the
obligation effective from the moment the time
executor’s or administrator’s custody until the heir
indicated has elapsed, or if it has become
furnishes the caucion muciana.
evident that the event cannot occur.

If no time has been fixed, the condition shall
† Procedural rules governing appointment of
be deemed fulfilled at such time as may have
administrator – Rules 77-90 RoC.
probably been contemplated, bearing in mind

the nature of the obligation.
ART. 884. Conditions imposed by the testator upon

the heirs shall be governed by the rules
Art. 1186. The condition shall be deemed fulfilled
established for conditional obligations in
when the obligor voluntarily prevents its
all matters not provided for by this
fulfillment.
Section.

† Suppletorily governing conditional institutions are Art. 1187. The effects of a conditional obligation
Articles 1179 and 1192 on conditional obligations. to give, once the condition has been fulfilled,
shall retroact to the day of the constitution of
Art. 1179. Every obligation whose performance the obligation. Nevertheless, when the
does not depend upon a future or uncertain obligation imposes reciprocal prestations upon
SUCCESSION - Balane Reviewer Page 41 of 116
the parties, the fruits and interests during the As for the obligations to do and not to do,
pendency of the condition shall be deemed to the provisions of the second paragraph of
have been mutually compensated. If the Article 1187 shall be observed as regards the
obligation is unilateral, the debtor shall effect of the extinguishment of the obligation.
appropriate the fruits and interests received,
unless from the nature and circumstances of Art. 1191. The power to rescind obligations is
the obligation it should be inferred that the implied in reciprocal ones, in case one of the
intention of the person constituting the same obligors should not comply with what is
was different. incumbent upon him.
In obligations to do and not to do, the courts The injured party may choose between the
shall determine, in each case, the retroactive fulfillment and the rescission of the obligation,
effect of the condition that has been complied with the payment of damages in either case. He
with. may also seek rescission, even after he has
chosen fulfillment, if the latter should become
Art. 1188. The creditor may, before the fulfillment impossible.
of the condition, bring the appropriate actions The court shall decree the rescission claimed,
for the preservation of his right. unless there be just cause authorizing the fixing
The debtor may recover what during the of a period.
same time he has paid by mistake in case of a This is understood to be without prejudice to
suspensive condition. the rights of third persons who have acquired
the thing, in accordance with Articles 1385 and
Art. 1189. When the conditions have been 1388 and the Mortgage Law.
imposed with the intention of suspending the
efficacy of an obligation to give, the following Art. 1192. In case both parties have committed a
rules shall be observed in case of the breach of the obligation, the liability of the first
improvement, loss or deterioration of the thing infractor shall be equitably tempered by the
during the pendency of the condition: courts. If it cannot be determined which of the
(1) If the thing is lost without the fault of the parties first violated the contract, the same
debtor, the obligation shall be shall be deemed extinguished, and each shall
extinguished; bear his own damages.
(2) If the thing is lost through the fault of the
debtor, he shall be obliged to pay DISPOSITION WITH TERMS
damages; it is understood that the thing is
lost when it perishes, or goes out of ART. 878. A disposition with a suspensive term does
commerce, or disappears in such a way not prevent the instituted heir from
that its existence is unknown or it cannot acquiring his rights and transmitting them
be recovered; to his heirs even before the arrival of the
(3) When the thing deteriorates without the term.
fault of the debtor, the impairment is to be
† When the heir’s right vests – in dispositions with a
borne by the creditor;
term, the heir’s right vests upon the testator’s
(4) If it deteriorates through the fault of the
death, conformably with Art777. Therefore, should
debtor, the creditor may choose between
the heir die before the arrival of the suspensive
the rescission of the obligation and its
term, he merely transmits his right to his own
fulfillment, with indemnity for damages in
heirs who can demand the property when the
either case;
term arrives.
(5) If the thing is improved by its nature, or
† The rule in this article is similar to Art866 in
by time, the improvement shall inure to
fideicommissary substitutions.
the benefit of the creditor;
† The rule in conditional institutions – what is the
(6) If it is improved at the expense of the
rule if the instituted heir dies before the
debtor, he shall have no other right than
happening of the condition? The section is silent
that granted to the usufructuary. (1122)
on this matter. But under Art1034, par3, “if the

institution, devise or legacy should be conditional,
Art. 1190. When the conditions have for their
the time of the compliance with the condition shall
purpose the extinguishment of an obligation to
also be considered.
give, the parties, upon the fulfillment of said
4 The import is that in conditional institutions,
conditions, shall return to each other what they
the heir should be Living and Qualified to
have received.
succeed BOTH at the time of the testator’s
In case of the loss, deterioration or
death and at the time of the happening of the
improvement of the thing, the provisions
condition.
which, with respect to the debtor, are laid

down in the preceding article shall be applied
to the party who is bound to return.
SUCCESSION - Balane Reviewer Page 42 of 116
ART. 885. The designation of the day or the time ART. 883 par1. When without the fault of the heir,
when the effects of the institution of an an institution referred to in the preceding
heir shall commence or cease shall be article cannot take effect in the exact
valid. manner stated by the testator, it shall be
complied with in a manner most
In both cases, the legal heir shall be
analogous to and in conformity with his
considered as called to the succession
wishes.
until the arrival of the period or its
expiration. But in the first case he shall † The intention of the testator should always be the
not enter into possession of the property guiding norm in determining the sufficiency of the
until after having given sufficient security, analogous performance.
with the intervention of the instituted
heir. SECTION 5 – LEGITIME

† If term is Suspensive – before the arrival of the
† System of Legitimes – our successional system,
term, the property should be delivered to the
closely patterned after that of the Spanish Code,
intestate heirs. A caucion muciana has to be
nd reserves a portion of the net estate of the
posted by them. This is the 2 instance where a
decedent in favor of certain heirs, or groups of
caucion muciana is required to be posted.
heirs or combination of heirs.
† If term is Resolutory – before the arrival of the
† The portion that is so reserved is called the
term, the property should be delivered to the
LEGITIME.
instituted heir. No caucion muciana is required.
† The portion that is left available for testamentary

disposition after the legitimes have been covered

is the free or disposable portion.
DISPOSITION WITH MODES
† The heirs for whom the law reserves a portion are

called compulsory heirs.
ART. 882. The statement of the object of the

institution, or the application of the
† Nature of Legitimes – the legitimes are set aside
property left by the testator, or the
by mandate of law. Thus, the testator is required
charge imposed by him, shall not be
to set aside or reserve them. Otherwise stated, the
considered as a condition unless it
testator is prohibited from disposing by gratuitous
appears that such was his intention.
title, either inter vivos or mortis causa, of these
That which has been left in this manner legitimes. Dispositions by onerous title are not
may be claimed at once provided that the prohibited because in theory, nothing is lost from
instituted heir or his heirs give security for the estate in an onerous disposition, since there is
compliance with the wishes of the merely an exchange of values.
testator and for the return of anything he
or they may receive, together with its † Because the testator is compelled to set aside the
fruits and interests, if he or they should legitimes, the heirs in whose favor the legitimes
disregard this obligation. are set aside are called compulsory heirs. The
st compulsion is not on the part of the heirs, who are
† The 1 paragraph defines a mode obliquely. A
free to accept or reject the inheritance, but on the
mode is an obligation imposed upon the heir,
part of the testator.
without suspending the effectivity of the

institution [which a condition does].
† Major changes in the law of legitimes
4 A mode must be clearly imposed as an
1. Abolition of the major or betterment in the
obligation in order to be considered as one.
Spanish Code
Mere preferences or wishes expressed by the
2. The surviving spouse’s share is upgraded
testator are not modes.
from a usufructuary interest to full
4 A mode functions similarly to a resolutory
ownership, albeit a very variable share.
condition. In fact, modes could very well have
3. The grant of legitimary rights to children
been absorbed by the concept of resolutory
classified under the New Civil Code as
conditions.
illegitimate other than natural or spurious,

and further change under the Family Code
† Caucion Muciana – should be posted by the
rd abolishing the distinction between natural
instituted heir [3 instance of caucion muciana]
and spurious children and giving all

illegitimate children the same legitimary
shares.

SUCCESSION - Balane Reviewer Page 43 of 116


ART. 886. Legitime is that part of the testator's except only that illegitimate children /
property which he cannot dispose of descendants exclude illegitimate parents.
because the law has reserved it for certain
heirs who are, therefore, called THE COMPULSORY HEIRS
compulsory heirs. 4 LEGITIMATE CHILDREN / DESCENDANTS
1. Legitimate Children – specified in Arts164
† This article gives the statutory definition of
and 54 of the Family Code. Legitimated
legitime.
children fall under this classification

[Art179 FC]. The law does not specify how
ART. 887. The following are compulsory heirs:
the legitimate children should share in
1) Legitimate children and descendants, with the legitime. However, they will share
respect to their legitimate parents and EQUALLY regardless of age, sex or
ascendants; marriage of origin.
2) In default of the foregoing, legitimate
parents and ascendants, with respect to 2. Legitimate Descendants – the GR is the
their legitimate children and descendants; nearer exclude the more remote. Thus,
3) The widow or widower; children, if all qualified, will exclude
4) Acknowledged natural children, and grandchildren and so on. The qualification
natural children by legal fiction; to this rule is representation when
5) Other illegitimate children referred to in proper.
Article 287.
4 LEGITIMATE PARENTS / ASCENDANTS
1. Legitimate Parents
Compulsory heirs mentioned in Nos. 3, 4,

and 5 are not excluded by those in Nos. 1
2. Legitimate Ascendants – Only in default
and 2; neither do they exclude one
of parents. The rule – absolute in the
another.
ascending line – is that the nearer exclude
In all cases of illegitimate children, their the more remote. [Arts889-890]
filiation must be duly proved.
4 SURVIVING SPOUSE
The father or mother of illegitimate
1. The spouse of the decedent, not the
children of the three classes mentioned,
spouse of a child who has predeceased
shall inherit from them in the manner and
the decedent.
to the extent established by this Code.
2. Marriage between the decedent and
his/her surviving spouse must be either
† This article enumerates the compulsory heirs. The VALID or VOIDABLE. If voidable, there
enumeration is EXCLUSIVE and may be classified as should have been no final decree of
follows: annulment at the time of the decedent’s
1. Primary compulsory heirs – legitimate death.
children and / or descendants • Question – if the consort dies during
• So called because they are preferred the pendency of a petition for
over, and exclude the secondary declaration of nullity under Art36 or
heirs. for nullity under Art40 of the FC,
should the proceedings be dismissed
2. Secondary compulsory heirs – legitimate or should they proceed?
parents and / or ascendants ; illegitimate • Mere estrangement is not a ground
parents for the disqualification of the
• So called because they receive surviving spouse as heir.
legitimes only in default of the • Effect of Decree of Legal Separation
primary heirs. a) On the offending spouse –
• Legitimate parents/ascendants – only disqualification
in default of legitimate children/ b) On the innocent spouse -
descendants. nothing
• Illegitimate parents – only in default • Death of either spouse during
of any kinds of children/descendants. pendency of a petition for Legal
Separation – Dismissal of the Case.
3. Concurring compulsory heirs – surviving
spouse; illegitimate children and / or 4 ILLEGITIMATE CHILDREN / DESCENDANTS
descendants 1. Illegitimate Children – Family Code has
† So called because they succeed as compulsory abolished the distinction between natural
heirs together with primary or secondary heirs, and spurious children and gives all of
them – indiscriminately called illegitimate
SUCCESSION - Balane Reviewer Page 44 of 116
children – equal legitimary portions. 4 Thus, the adopted child was entitled to a
However, pursuant to Art777, if death legitime BOTH from his adopter and his
occurred before effectivity of the Family biological parents.
Code on August 3, 1988, the old 4 But now, the law is silent and it neither gives
distinctions will apply and the spurious nor denies an adopted child the right to a
child gets only 4/5 of the share of the legitime from his biological parents.
natural child. [Art895] 4 Sec16 of the law provides that “all legal ties
between the biological parents and the
2. Illegitimate Descendants – Same rule adoptee shall be severed” but that is
applies as in the legitimate descending unavailing to answer the question because
line, the nearer exclude the more remote, sec16 only has to do with parental authority.
without prejudice to representation when
proper. † The term “legitimate child” or “legitimate
It should be noted that the children” shall, in proper cases, include legitimate
illegitimate child can be represented by descendants other than children.
both legitimate and illegitimate
descendants, as distinguished from the † The term “legitimate parents” includes, in proper
legitimate child, who can be represented cases, legitimate ascendants other than parents.
only by legitimate descendants. [Art902
and 992]

4 ILLEGITIMATE PARENTS
1. Unlike the legitimate ascending line,
which includes ascendants in whatever
degree, the illegitimate ascending line
only includes the parents, it does not go
beyond the parents.
2. The illegitimate parents are secondary
heirs of a lower category that legitimate
parents, because the illegitimate parents
are excluded by legitimate and
illegitimate children [Art903] whereas
legitimate parents are excluded only by
legitimate children/ descendants.

† Variations in the Legitimary Portions
4 The legitimary system of the Philippine Code
rests on a double foundation – EXCLUSION
and CONCURRENCE.

† GENERAL RULE – there is a basic amount of ½ that
is given to one heir or one group of heirs. This
General Rule admits only of 3 EXCEPTIONS:
1. Art894 – surviving spouse and illegitimate
children
2. Art900 par2 – surviving spouse in a
marriage in articulo mortis, with the
conditions specified in that article
3. Art903 – surviving spouse and illegitimate
parents.

† The term “legitimate child” or “legitimate
children” includes a legally adopted child under
Sec18 of RA8552 or the Domestic Adoption Act of
1998.

† Question – Is an adopted child entitled to a
legitime from his biological parents or ascendants?
Uncertain.
4 Art189[3] of the FC provides that the adopted
shall remain an intestate heir of his parents
and other blood relatives.
SUCCESSION - Balane Reviewer Page 45 of 116

DIFFERENT COMBINATIONS OF COMPULSORY HEIRS
CODE COMBINATION SHARE CODAL PROVISION NOTES
LC Legitimate ½ of estate Art. 888. The legitime of Adopted Child has the same rights
Children Alone divided equally legitimate children and as LC
[Art888] descendants consists of one-half
If there is more than 1 legitimate
of the hereditary estate of the
child, the ½ of the estate shall be
father and of the mother.
divided equally among them.
The latter may freely dispose of
If there are legitimate children
the remaining half, subject to
and grandchildren, the nearer
the rights of illegitimate children
descendants exclude the farther,
and of the surviving spouse as
so as long as there are legitimate
hereinafter provided.
children, the grandchildren
cannot inherit.
If legitimate children PREDECEASE
the testator or are
INCAPACITATED to inherit, the
grandchildren get their respective
parents’ [the legitimate children]
shares by virtue of
REPRESENTATION.
But if ALL the legitimate children
RENOUNCE, the grandchildren
inherit in their own right and the
½ estate is divided equally among
them.
But if only a few of the legitimate
children RENOUNCE or not all
renounce, the share of those who
renounce accrue to the other
legitimate children.
1LCSS One Legitimate ½ of the estate to Art. 892. If only one legitimate
Child and the legitimate child or descendant of the
Surviving child deceased survives, the widow or
Spouse widower shall be entitled to one-
¼ of the estate to
fourth of the hereditary estate.
the surviving
In case of a legal separation, the
spouse [taken
surviving spouse may inherit if it
from the free
was the deceased who had given
disposable
cause for the same.
portion of the
estate] If there are two or more
legitimate children or
[Art892 par1]
descendants, the surviving
spouse shall be entitled to a
portion equal to the legitime of
each of the legitimate children
or descendants.
In both cases, the legitime of the
surviving spouse shall be taken
from the portion that can be
freely disposed of by the
testator.
LCSS Legitimate ½ of estate to Art. 892. If only one legitimate LEGAL SEPARATION between the
Children and legitimate child or descendant of the testator and the surviving spouse
Surviving children deceased survives, the widow or
If there is a final decree of legal
Spouse widower shall be entitled to one-
Share equal to separation
fourth of the hereditary estate.
that of 1 child for
SUCCESSION - Balane Reviewer Page 46 of 116
CODE COMBINATION SHARE CODAL PROVISION NOTES
the surviving In case of a legal separation, the 1. surviving spouse is the
spouse [taken surviving spouse may inherit if it innocent party – he/she gets
from the free was the deceased who had given her legitime [Art63 par4 FC]
disposable cause for the same.
2. surviving spouse is the
portion of the
If there are two or more offending spouse – he/she is
estate]
legitimate children or disqualified from inheriting
[Art892par2] descendants, the surviving [Art63 par4 FC]
spouse shall be entitled to a
If after the final decree of legal
portion equal to the legitime of
separation there was a
each of the legitimate children
reconciliation between the
or descendants.
parties, the reciprocal right to
In both cases, the legitime of the succeed is restored because
surviving spouse shall be taken reconciliation sets aside the
from the portion that can be decree [Art66 par2 FC]
freely disposed of by the
testator.
LCIC Legitimate ½ of estate to the Illegitimate child only gets half
Children and legitimate the share of a legitimate child. In
Illegitimate children case total of the shares of all
Children illegitimate children exceed the
½ of the share of
amount of the estate, their shares
1 legitimate child
shall be reduced equally. The
to the
shares of the legitimate children
illegitimate
cannot be reduced.
children [Art176
FC]
1LCICSS One legitimate ½ of estate to Art. 895. The legitime of each of In case total of the shares of all
child, legitimate the acknowledged natural illegitimate children exceed the
illegitimate children children and each of the natural amount of the estate, their shares
children and children by legal fiction shall shall be reduced equally. The
Each illegitimate
surviving consist of one-half of the shares of the legitimate children
child will get ½ of
spouse legitime of each of the legitimate and the surviving spouse cannot
the share of a
children or descendants. be reduced.
legitimate child
The legitime of an illegitimate
¼ of estate to the
child who is neither an
surviving spouse,
acknowledged natural, nor a
whose share is
natural child by legal fiction,
preferred over
shall be equal in every case to
those of the
four-fifths of the legitime of an
illegitimate
acknowledged natural child.
children, which
shall be reduced The legitime of the illegitimate
if necessary children shall be taken from the
[Art895] portion of the estate at the free
disposal of the testator,
provided that in no case shall the
total legitime of such illegitimate
children exceed that free
portion, and that the legitime of
the surviving spouse must first
be fully satisfied.
LCICSS Legitimate ½ of estate to Art. 895. The legitime of each of In case total of the shares of all
children, legitimate the acknowledged natural illegitimate children exceed the
illegitimate children children and each of the natural amount of the estate, their shares
children and children by legal fiction shall shall be reduced equally. The
Each illegitimate
surviving consist of one-half of the shares of the legitimate children
child will get ½ of
spouse legitime of each of the legitimate and the surviving spouse cannot
the share of one
children or descendants. be reduced.
legitimate child
SUCCESSION - Balane Reviewer Page 47 of 116
CODE COMBINATION SHARE CODAL PROVISION NOTES
A share equal to The legitime of an illegitimate
that of 1 child who is neither an
legitimate child acknowledged natural, nor a
for the surviving natural child by legal fiction,
spouse, whose shall be equal in every case to
share is four-fifths of the legitime of an
preferred over acknowledged natural child.
those of the
The legitime of the illegitimate
illegitimate
children shall be taken from the
children which
portion of the estate at the free
shall be reduced
disposal of the testator,
if necessary.
provided that in no case shall the
[Art895]
total legitime of such illegitimate
children exceed that free
portion, and that the legitime of
the surviving spouse must first
be fully satisfied.
LP Legitimate ½ of estate Art. 889. The legitime of There is NO RIGHT OF
parents alone [Art889] legitimate parents or ascendants REPRESENTATION in the
consists of one-half of the Ascending Line.
hereditary estates of their
If the one of the legitimate
children and descendants.
parents PREDECEASE or is
The children or descendants may INCAPACITATED to inherit, his/her
freely dispose of the other half, share accrues to the other parent
subject to the rights of [tama ba?]
illegitimate children and of the
surviving spouse as hereinafter
provided.
LPIC Legitimate ½ of estate to Art. 896. Illegitimate children For the illegitimate children or
parents and legitimate who may survive with legitimate descendants, the sharing shall
illegitimate parents parents or ascendants of the depend on whether death
children deceased shall be entitled to occurred before or during the
¼ of estate to
one-fourth of the hereditary effectivity of the Family Code.
illegitimate
estate to be taken from the
children
portion at the free disposal of
the testator.
LPSS Legitimate ½ of estate to Art. 893. If the testator leaves no
parents and legitimate legitimate descendants, but
surviving parents leaves legitimate ascendants, the
spouse surviving spouse shall have a
¼ of estate to
right to one-fourth of the
surviving spouse
hereditary estate.
This fourth shall be taken from
the free portion of the estate.
LPICSS Legitimate ½ of estate to the Art. 899. When the widow or For the illegitimate children or
parents legitimate widower survives with legitimate descendants, the sharing shall
illegitimate parents parents or ascendants and with depend on whether death
children and illegitimate children, such occurred before or during the
¼ of estate to the
surviving surviving spouse shall be entitled effectivity of the Family Code.
illegitimate
spouse to one-eighth of the hereditary
children
estate of the deceased which
1/8 of estate to must be taken from the free
the surviving portion, and the illegitimate
spouse children shall be entitled to one-
fourth of the estate which shall
be taken also from the
disposable portion. The testator
SUCCESSION - Balane Reviewer Page 48 of 116
CODE COMBINATION SHARE CODAL PROVISION NOTES
may freely dispose of the
remaining one-eighth of the
estate.
SS Surviving ½ of the estate Art. 900. If the only survivor is
spouse alone or 1/3 if the the widow or widower, she or he
marriage, being shall be entitled to one-half of
in articulo the hereditary estate of the
mortis, falls deceased spouse, and the
under Art900 par testator may freely dispose of
2 [Art900par1] the other half.
If the marriage between the
surviving spouse and the
testator was solemnized in
articulo mortis, and the testator
died within three months from
the time of the marriage, the
legitime of the surviving spouse
as the sole heir shall be one-
third of the hereditary estate,
except when they have been
living as husband and wife for
more than five years. In the
latter case, the legitime of the
surviving spouse shall be that
specified in the preceding
paragraph.
SSIC Surviving 1/3 of estate to Art. 894. If the testator leaves For the illegitimate children or
spouse and surviving spouse illegitimate children, the descendants, the sharing shall
illegitimate surviving spouse shall be entitled depend on whether death
1/3 of estate to
children to one-third of the hereditary occurred before or during the
illegitimate
estate of the deceased and the effectivity of the Family Code.
children
illegitimate children to another
third. The remaining third shall
be at the free disposal of the
testator.
SSIP Surviving ¼ of estate to Art. 903. The legitime of the
spouse and surviving spouse parents who have an illegitimate
illegitimate child, when such child leaves
¼ of estate to
parents neither legitimate descendants,
illegitimate
nor a surviving spouse, nor
parents [Art903]
illegitimate children, is one-half
of the hereditary estate of such
illegitimate child. If only
legitimate or illegitimate
children are left, the parents are
not entitled to any legitime
whatsoever. If only the widow or
widower survives with parents of
the illegitimate child, the
legitime of the parents is one-
fourth of the hereditary estate of
the child, and that of the
surviving spouse also one-fourth
of the estate.
IC Illegitimate ½ of estate Art. 901. When the testator dies For the illegitimate children or
children alone [Art901] leaving illegitimate children and descendants, the sharing shall
no other compulsory heirs, such depend on whether death
illegitimate children shall have a occurred before or during the
SUCCESSION - Balane Reviewer Page 49 of 116
CODE COMBINATION SHARE CODAL PROVISION NOTES
right to one-half of the effectivity of the Family Code.
hereditary estate of the
deceased.
The other half shall be at the
free disposal of the testator.
IP Illegitimate ½ of estate Art. 903. The legitime of the
parents alone [Art903] parents who have an illegitimate
child, when such child leaves
neither legitimate descendants,
nor a surviving spouse, nor
illegitimate children, is one-half
of the hereditary estate of such
illegitimate child. If only
legitimate or illegitimate
children are left, the parents are
not entitled to any legitime
whatsoever. If only the widow or
widower survives with parents of
the illegitimate child, the
legitime of the parents is one-
fourth of the hereditary estate of
the child, and that of the
surviving spouse also one-fourth
of the estate.

SUCCESSION - Balane Reviewer Page 50 of 116


ARTICLES GOVERNING THE 3 BASIC RULES ON
PARTICULAR COMBINATIONS SUCCESSION IN THE ASCENDING LINE

ART. 888. The legitime of legitimate children and 1. The nearer exclude the more remote.
descendants consists of one-half of the • This rule in the ascending line admits
hereditary estate of the father and of the of no qualification, since there is no
mother. representation in the ascending line.
[Art972 par1]
The latter may freely dispose of the

remaining half, subject to the rights of
2. Division by line.
illegitimate children and of the surviving
spouse as hereinafter provided. • This rule will apply if there are more
than one ascendant in the nearest
† Equal sharing – the legitimate children share the ½ degree. The legitime shall then be
in equal parts, regardless of age, sec or marriage divided in equal parts between the
of origin. The provision should have been explicit paternal line and the maternal line.
about this. The counterpart provision in intestacy
[Art979 par1 and Art980] is quite explicit on this. 3. Equal division within the line.
• After the portion corresponding to
† Descendants other than children – the GR is that the line has been assigned, there will
the nearer exclude the more remote. Hence, be equal apportionment between or
grandchildren cannot inherit, since the children among the recipients within the line,
will bar the, unless all the children renounce, in should there be more than one.
which case the grandchildren become the nearest
in degree. The rule goes on down the tine, great † Note – also, there is no right of representation in
grandchildren cannot inherit unless all the children the ascending line.
and grandchildren renounce.
† The operation of the principles of Division By Line
† The only qualification to the rule that the nearer and Equal Division within the Line may cause
exclude the more remote in the descending line is inequality of shares among ascendants of identical
representation when proper [Arts970-977] degrees.
4 For example, if both legitimate parents of
† There is no limit to the number of degrees in the testator predecease him and testator has no
descending line that may be called to succeed, other legitimate descendants, if there are 2
whether in their own right or by representation. surviving maternal grandparents but only 1
surviving paternal grandparent – the ½ estate
Art. 889. The legitime of legitimate parents or is divided equally between the maternal and
ascendants consists of one-half of the paternal lines, but the 2 maternal
hereditary estates of their children and grandparents must share the ¼ portion of the
descendants. maternal line [they get 1/8 each] while the
The children or descendants may freely sole paternal grandparent gets the whole ¼
dispose of the other half, subject to the portion of the paternal line.
rights of illegitimate children and of the
surviving spouse as hereinafter provided. ART. 892. If only one legitimate child or descendant
of the deceased survives, the widow or
Art. 890. The legitime reserved for the legitimate widower shall be entitled to one-fourth of
parents shall be divided between them the hereditary estate. In case of a legal
equally; if one of the parents should have separation, the surviving spouse may
died, the whole shall pass to the survivor. inherit if it was the deceased who had
If the testator leaves neither father nor given cause for the same.
mother, but is survived by ascendants of If there are two or more legitimate
equal degree of the paternal and children or descendants, the surviving
maternal lines, the legitime shall be spouse shall be entitled to a portion equal
divided equally between both lines. If the to the legitime of each of the legitimate
ascendants should be of different children or descendants.
degrees, it shall pertain entirely to the
ones nearest in degree of either line. In both cases, the legitime of the surviving
spouse shall be taken from the portion
that can be freely disposed of by the
† Legitimate parents/ascendants as secondary testator.
compulsory heirs – the legitimate ascending line
succeeds only in default of the legitimate
descending line.
SUCCESSION Balane Reviewer Page 51 of 116

† 1 LEGITIMATE CHILD / SURVIVING SPOUSE – the to marriages which are void ab initio or
sharing is ½ for the legitimate child and ¼ for the annulled by final judgment under Articles 40
surviving spouse. and 45.

† If there has been LEGAL SEPARATION between the 4 The problem here will arise should either or
testator and the surviving spouse both partners in the defective marriage
4 If there is a final decree of legal separation remarry later.
1. surviving spouse is the innocent party –
he/she gets her legitime [Art63 par4 FC] 4 Balane says that prescinding from the
2. surviving spouse is the offending spouse – practical problem of having 2 husbands [or 2
he/she is disqualified from inheriting wives] claiming the right to a legitime, the
[Art63 par4 FC] very principle underlying the rule is
4 If after the final decree of legal separation questionable – why should consorts of a
there was a reconciliation between the terminated marriage, or an annulled one, or
parties, the reciprocal right to succeed is one declared void ab initio continue to be
restored because reconciliation sets aside the heirs of each other? The marriage – which
decree [Art66 par2 FC] forms the basis of the right of succession no
longer exists.
† DEATH PENDENTE LITE – if either spouse dies
during the pendency of the proceedings for legal † LEGITIMATE CHILDREN / SURVIVING SPOUSE –
separation, the proceedings are TERMINATED and The sharing is ½ for the children collectively and
the surviving spouse inherits from the deceased for the spouse, equivalent to that of each of the
spouse, no matter which spouse died. legitimate children or descendants.
4 Determination of surviving spouse’s share
† Termination of Marriage by REAPPEARANCE of 1. As long as at least 1 of several children
prior Spouse / Decree of ANNULMENT or inherits in his own right, the
ABSOLUTE NULLITY of marriage determination of the share of the
4 Arts 41-43 of FC govern a subsequent surviving spouse presents no problem. It
marriage contracted by a party whose spouse will always be equivalent of one child’s
has been absent for the specified period and share.
lay down the requisites therefor. 2. But supposing ALL the children
4 The reappearance of the prior spouse predecease or are disinherited or are
TERMINATES the second marriage. One of the unworthy to succeed? Since all the
effects of the termination as given in Art43[5] grandchildren would then inherit BY
is – “The spouse who contracted the REPRESENTATION and therefore in
subsequent marriage in BAD FAITH shall be different amounts, the practical solution
disqualified to inherit from the innocent will still be to give the spouse the share
spouse by testate and intestate succession. that each child would have gotten if
4 The implication of Art43 is that – qualified.
1. If both consorts in the second marriage 3. Supposing ALL the Children RENOUNCE,
were in GOOD FAITH, they continue to be the grandchildren would inherit PER
heirs of each other. CAPITA or in their own right and
2. If only one of said consorts acted in bad therefore equally. Should the spouse’s
faith, the innocent one will continue by share still be computed on the basis of
testate and intestate succession. the children’s share had they accepted? If
so, then when will the word “or
4 PROBLEM – A and B are married. A disappears descendants” in the second paragraph of
and is absent for the required period. B then this article ever be operative?
contracts a second marriage with C, both in
good faith. Out of nowhere, A reappears ART. 893. If the testator leaves no legitimate
[surprise!], and so the marriage between B descendants, but leaves legitimate
and C is terminated. Under Art43[5] the ascendants, the surviving spouse shall
reciprocal right of succession between A and B have a right to one-fourth of the
as the original spouses remains. What if B hereditary estate.
dies? Can A and C inherit from him/her?
This fourth shall be taken from the free

portion of the estate.
4 The same problem arises in cases of marriages
judicially annulled or declared void ab initio, † LEGITIMATE ASCENDANTS / SURVIVING SPOUSE -
because of the provisions of Art50 par1 of the the sharing is ½ for the ascendants collectively and
Family Code – “The effects provided for by ¼ for the surviving spouse.
paragraphs 2,3,4 and 5 of article 43 and by † For the parents or ascendants, the sharing will be
article 44 shall also apply in the proper cases in accordance with Articles 889-890. [Legitimate
SUCCESSION Balane Reviewer Page 52 of 116

parents/ascendants as secondary compulsory heirs † ONE LEGITIMATE CHILD / ILLEGITIMATE
– the legitimate ascending line succeeds only in CHILDREN / SURVIVING SPOUSE – the sharing is ½
default of the legitimate descending line.] for the illegitimate child, ¼ for the surviving
spouse, and ¼ for each illegitimate child. These

sharings are based on Art.892 of NCC and Art176
ART. 894. If the testator leaves illegitimate children, of FC.
the surviving spouse shall be entitled to † LEGITIMATE CHILDREN / ILLEGITIMATE CHILDREN
one-third of the hereditary estate of the / SURVIVING SPOUSE - the sharing is ½ for the
deceased and the illegitimate children to legitimate children collectively, a share equal to
another third. The remaining third shall that of one legitimate child for the surviving
be at the free disposal of the testator. spouse, and ½ the share of one legitimate child for
each illegitimate child.
† ILEGITIMATE CHILDREN / SURVIVING SPOUSE –
the sharing is 1/3 for the illegitimate children or † SHARING PRIOR TO THE FAMILY CODE

descendants collectively and 1/3 for the surviving 4 If death occurred before the effectivity of the
spouse. Family Code, this article will govern –
consequently, should the natural and spurious
† Sharing among illegitimate children children concur in the succession, each
1. If the decedent died during the effectivity spurious child will get 4/5 the share of one
of the FAMILY CODE – the sharing will be natural child, and each natural child gets ½ the
equal, inasmuch as the Family Code has share of one legitimate child. Example -
abolished the old distinction between • 5 legitimate children and total estate
natural and illegitimate children other is 1M. ½ of estate [500,000] divided
than natural or spurious [Arts 163, 165 by 5 so 1 Legit child – 100,000
and 178 of FC] • Natural child – 50,000
2. If the decedent died BEFORE the • Spurious child – 40,000
effectivity of the Family Code, the old 4 Should there be no natural children but only
distinctions must be observed. spurious children, each spurious child will get
• The legitime of the spurious child will 2/5 share of one legitimate child.
only be 4/5 that of a natural child, • 1 legit child – 100,000
according to the ratio established in • No natural children
Art895 par2. • Spurious child – 40,000
• This ratio of 5:4 among natural and
spurious children should be observed † REDUCTION OF SHARES
in all cases under the Civil Code 4 Depending on the number of legitimate and
where they concur. illegitimate children, the possibility exists that
the total legitimes will exceed the entire
ART. 895. The legitime of each of the acknowledged estate. Reductions, therefore will have to be
natural children and each of the natural made in accordance with the following rules –
children by legal fiction shall consist of 1. The legitimes of the legitimate children
one-half of the legitime of each of the should never be reduced, they are
legitimate children or descendants. PRIMARY and PREFERRED compulsory
heirs
The legitime of an illegitimate child who is 2. The legitime of the surviving spouse
neither an acknowledged natural, nor a should never be reduced, this article
natural child by legal fiction, shall be prohibits this.
equal in every case to four-fifths of the 3. The legitimes of the illegitimate children
legitime of an acknowledged natural will be reduced pro rata and without
child. preference among them.
The legitime of the illegitimate children
shall be taken from the portion of the ART. 896. Illegitimate children who may survive
estate at the free disposal of the testator, with legitimate parents or ascendants of
provided that in no case shall the total the deceased shall be entitled to one-
legitime of such illegitimate children fourth of the hereditary estate to be
exceed that free portion, and that the taken from the portion at the free
legitime of the surviving spouse must first disposal of the testator.
be fully satisfied. † ILLEGITIMATE CHILDREN / LEGITIMATE PARENTS
the sharing is ½ for the legitimate parents
† This article has been pro tanto amended by collectively and ¼ for the illegitimate children
Articles 163, 165 and 176 of the Family Code. collectively.

SUCCESSION Balane Reviewer Page 53 of 116



4 For the parents or ascendants, the sharing will If the marriage between the surviving
be in accordance with the rules laid down in spouse and the testator was solemnized
Articles 889-890. in articulo mortis, and the testator died
4 For the illegitimate children or descendants, within three months from the time of the
the sharing shall depend on whether death marriage, the legitime of the surviving
occurred before or during the effectivity of spouse as the sole heir shall be one-third
the Family Code. of the hereditary estate, except when
they have been living as husband and wife
ART. 897. When the widow or widower survives for more than five years. In the latter
with legitimate children or descendants, case, the legitime of the surviving spouse
and acknowledged natural children, or shall be that specified in the preceding
natural children by legal fiction, such paragraph.
surviving spouse shall be entitled to a
† SURVIVING SPOUSE AS SOLE COMPULSORY HEIR
portion equal to the legitime of each of

the legitimate children which must be
4 General rule – ½ of the estate
taken from that part of the estate which
4 Exception – 1/3 of the estate, if the following
the testator can freely dispose of.
circumstances are present –
ART. 898. If the widow or widower survives with a) The marriage was in articulo mortis
legitimate children or descendants, and b) The testator died within 3 months
with illegitimate children other than from the time of the marriage
acknowledged natural, or natural children c) The parties did not cohabit for more
by legal fiction, the share of the surviving than 5 years, and
spouse shall be the same as that provided d) The spouse who died was the party in
in the preceding article. articulo mortis at the time of the
marriage.
† The 2 articles are merely reiterations of the rules

already laid down in Articles 892 and 895 and need
† NOTE – the last requisite is not explicit in the
not be explained.
article but can be derived from the sense and

intent of the provision. The law does not regard
ART. 899. When the widow or widower survives
such marriages with eager approval.
with legitimate parents or ascendants and

with illegitimate children, such surviving
ART. 901. When the testator dies leaving
spouse shall be entitled to one-eighth of
illegitimate children and no other
the hereditary estate of the deceased
compulsory heirs, such illegitimate
which must be taken from the free
children shall have a right to one-half of
portion, and the illegitimate children shall
the hereditary estate of the deceased.
be entitled to one-fourth of the estate
which shall be taken also from the The other half shall be at the free disposal
disposable portion. The testator may of the testator.
freely dispose of the remaining one-
† ILLEGITIMATE CHILDREN ALONE – they get ½ of
eighth of the estate.
the estate collectively. The sharing among the
† LEGITIMATE PARENTS / ILLEGITIMATE CHILDREN illegitimate children or descendants will depend
/ SURVIVING SPOUSE on whether death occurred before or during the
effectivity of the Family Code.
– the sharing is ½ for the legitimate parents

collectively, ¼ for the illegitimate children collectively
and 1/8 for the surviving spouse. ART. 902. The rights of illegitimate children set forth
in the preceding articles are transmitted
4 For the parents or ascendants, the sharing will upon their death to their descendants,
be in accordance with the rules laid down in whether legitimate or illegitimate.
Articles 889-890. † Right of representation to the legitimate and
4 For the illegitimate children or descendants, illegitimate descendants of an illegitimate child.
the sharing shall depend on whether death
occurred before or during the effectivity of † Rule of Article 902 compared with Rule of Article
the Family Code. 992 – In the case of descendants of legitimate
children, the right of representation is given only
ART. 900. If the only survivor is the widow or to legitimate descendants, by virtue of Art992.
widower, she or he shall be entitled to
one-half of the hereditary estate of the † The net effect of all this is that the right of
deceased spouse, and the testator may representation given to descendants of illegitimate
freely dispose of the other half. children is BROADER than the right of

SUCCESSION Balane Reviewer Page 54 of 116



representation given to descendants of legitimate
children. Thus, an illegitimate child of a
predeceased legitimate child cannot inherit by
representation [Art992], while an illegitimate child
of an illegitimate child can [Art902]. A classic
instance of unintended consequence.

ART. 903. The legitime of the parents who have an
illegitimate child, when such child leaves
neither legitimate descendants, nor a
surviving spouse, nor illegitimate children,
is one-half of the hereditary estate of such
illegitimate child. If only legitimate or
illegitimate children are left, the parents
are not entitled to any legitime
whatsoever. If only the widow or widower
survives with parents of the illegitimate
child, the legitime of the parents is one-
fourth of the hereditary estate of the
child, and that of the surviving spouse
also one-fourth of the estate.

† ILLEGITIMATE PARENTS ALONE – they get ½ of the
estate. Note that in the illegitimate ascending line,
the right DOES NOT go beyond the parents.

† ILLEGITIMATE PARENTS / SURVIVING SPOUSE –
the sharing is ¼ for the parents collectively and ¼
for the spouse.

† Illegitimate parents EXCLUDED by all kinds of
children – as secondary compulsory heirs, the
illegitimate parents are inferior to legitimate
parents. Whereas legitimate parents are excluded
only by legitimate children, illegitimate parents are
excluded by all kinds of children, legitimate or
illegitimate.

SUCCESSION Balane Reviewer Page 55 of 116



3. Third Transfer – from the transferee in the
RESERVA TRONCAL second transfer [reservista] to the relatives
rd
within the 3 degree of the Prepositus,
coming from the line of the Origin.

Art. 891. The ascendant who inherits from his 4 If there are only two transmissions, there is no
descendant any property which the latter reserva [Gonzales v CFI]
may have acquired by gratuitous title
from another ascendant, or a brother or REQUISITES OF RESERVA TRONCAL
sister, is obliged to reserve such property
as he may have acquired by operation of 1. That the property was acquired by a
law for the benefit of relatives who are descendant [prepositus] from an ascendant or
within the third degree and who belong to from a brother or sister [origin] by gratuitous
the line from which said property came. title.
o The term descendant should read person
• The Reserva Troncal because if the grantor is a brother or sister,
the one acquiring obviously is not a
descendant.
Origin Reservista Reservatarios
(Relative w/in o Acquisition is by gratuitous title when the
3rd degree of recipient does not give anything in return.
Prepositus) It encompasses transmissions by donation
By Gratuitous By Operation or by succession of whatever kind.
Title of Law


Prepositus 2. That said descendant [prepositus] died
without an issue.
o Should read – “that said person died
4 The Prepositus inherits a piece of land from his without legitimate issue, because only
father, the Origin. Subsequently, the Prepositus legitimate descendants will prevent the
dies intestate, single and without issue, and the property from being inherited by the
land is in turn inherited by his mother, the legitimate ascending line by operation of
Reservista. The Reservista is then required to law.
reserve the property in favor of the Prepositus’
rd
paternal relatives within the 3 degree 3. That the property is inherited by another
(Reservatarios). ascendant [reservista] by operation of law;
and
• Reservas and Reversiones in the Spanish Code o Transmission by operation of law is limited
1. Reserva Viudal by succession, either to the legitime or by
2. Reserva Troncal intestacy.
3. Reversion Legal
4. Reversion Adoptiva 4.
rd
That there are relatives within the 3 degree
belonging to the line from which said property
• Purpose of the Reserva Troncal came [reservatarios].
4 The reserve troncal is a special rule designed
primarily to assure the return of the reservable o These relatives, called the reservatarios or
rd
property to the 3 degree relatives belonging reservees, are those that are within the 3
rd

to the line from which the property originally degree of the line of the Origin.
came, and to avoid its being dissipated by the
relatives of the inheriting ascendant [the
reservista].
4 Also to avoid the danger that property existing • 2 BASIC RULES
for many years in a family’s patrimony might
pass gratuitously to outsiders through the I. No inquiry is to be made beyond the Origin/
accident of marriage and untimely death. Mediate Source. It does not matter who the
owner of the property was before it was
• PROCESS – 3 Transmissions Involved acquired by the Origin.
1. First Transfer – by gratuitous title, from a
person to his descendant, brother or sister. II. All the relationships among the parties must
2. Second Transfer – by operation of law, from be legitimate. The provisions of Art891 only
the transferee in the first transfer apply to legitimate relatives.
[prepositus] to another ascendant
[reservista]. It is this second transfer that
creates the reserva.
SUCCESSION Balane Reviewer Page 56 of 116

• 4 PARTIES TO THE RESERVA TRONCAL

1. ORIGIN OR THE MEDIATE SOURCE o Should the Origin/Mediate Source and the
o He is either the ascendant or a brother or Reservista belong to Different Lines?
sister of the Prepositus. - Example: A receives by donation a
o Ascendant from any degree of ascent. parcel of land from his paternal
o Brother/Sister – 2 Schools of Thought grandfather X. Upon A’s death, the
a) Relationship must be of HALF parcel passes by intestacy to his father
BLOOD – because otherwise the Y [X’s son]. The property never left the
property would not change lines. line, is Y obliged to reserve?
This means that if the relationship is - One View – NO, because another
Full Blood, there is no reserve ascendant is one belonging to a line
because then it would not be other than that of the reservista.
possible to identify the line of origin. - Another View – YES, because [1] the
b) It does not matter whether the law makes no distinction, and [2] the
fraternal relationship is of the full or purpose of the reserve is not only
half-blood. In either case, a reserve curative but also preventive, i.e. to
may arise. Since the law makes no prevent the property from leaving the
distinction, we should not make line.
one.
4. RESERVATARIOS [RESERVEES]
2. PREPOSITUS o The reserva is in favor of a class,
o He is either the descendant or a brother/ collectively referred to as the Reservatarios
sister of the Origin who receives the [reservees].
property from the Origin by gratuitous
title. Thus, in the scheme of the reserva o REQUIREMENTS TO BE A RESERVATARIO:
rd
troncal, he is the FIRST transferee of the 1) He must be within the 3 degree of
property. consanguinity from the Prepositus.
o While the property is still with the
Prepositus, there is yet NO RESERVA. The 2) He must belong to the line from
reserva arises only upon the second which the property came. This is
transfer. determined by the Origin/Mediate
o Consequently, while the property is owned Source.
by the Prepositus, he has all the rights of
ownership over it and may exercise such - If an ascendant, the Mediate
rights in order to prevent a reserva from Source is either of the paternal or
arising. He can do this by – maternal line.
a) Substituting or alienating the - If a half-brother or half-sister, the
property same is true.
b) Bequeathing or devising it either to - If however, it is a brother or sister
rd
the potential reservista or to 3 of the full blood, it would not be
persons [subject to constraints of possible to distinguish the lines.
the legitime] - To those who hold the opinion
c) Partitioning in such a way as to that a reserva would not exist in
assign the property to parties other such case of full blood siblings,
than the potential reservista [again Manresa’s comment should be
subject to the constraints of the the norm: “that the question of
legitime]. line would be indifferent.”

o In this sense, the Prepositus is deemed the o Question – must the Reservatario also be
Arbiter of the Reserva Troncal. related to the Mediate Source?
- Manresa says NO, the article speaks
3. RESERVISTA [RESERVOR] solely of 2 lines, the paternal and the
o He is an ascendant of the Prepositus, of maternal of the descendant, without
whatever degree. The Reservista must be regard to subdivisions.
an ascendant other than the Origin/ - Sanchez Roman says YES, otherwise
Mediate Source [if the latter is also an results would arise completely
ascendant]. contrary to the purpose of this
o The law is clear - it refers to the Origin/ reserva, which is to prevent the
Mediate Source as another ascendant. If property from passing to persons not
these two parties are the same person, of the line of origin.
there would be no reserva troncal.
SUCCESSION Balane Reviewer Page 57 of 116

o Reserva in favor of reservatarios as a CLASS the law does not recognize them as
- to be qualified as a reservatario, is it such.
necessary that one must already be LIVING - Nevertheless, there is a right of
when the prepositus dies? representation on the part of the
rd
- NO, because the reserva is established reservatarios who are within the 3
in favor of a GROUP or CLASS, the degree mentioned by law, as in the
rd
relatives within the 3 degree, and not case of nephews of the deceased
in favor of specific individuals. person from whom the reservable
- As long, therefore, as the reservatario property came. These reservatarios
is alive at the time of the reservarista’s have the right to represent their
death, he qualifies as such, even if he ascendants [fathers and mothers] who
was conceived and born after the are the brothers of the said deceased
rd
Prepositus’ death. person and relatives within the 3
degree in accordance with Art811.
o Preference Among the Reservatarios [Florentino v. Florentino]
- Upon death of the ascendant - Actually, there will only be 1 instance
reservista, the reservable property of representation among the
should pass, not to all the reservatarios, which is in case of the
reservatorios as a class, but only to Prepositus being survived by
those NEAREST in degree to the brothers/sisters and children of a
descendant [prepositus], excluding predeceased or incapacitated brother
those reservatarios of more remote or sister.
degree. [Padura v. Baldovino]
- In other words, the reserve troncal • Juridical Nature of Reserva Troncal
merely determines the group of 4 The juridical nature of the reserve troncal may
relatives [reservatarios] to whom the be viewed from 2 aspects – from that of the
property should be returned; but reservista and that of the reservatarios.
within that group, the individual right
to the property should be decided by 1. Juridical Nature from the viewpoint of
the applicable rules of ordinary the RESERVISTA
intestate succession, since Art891 does - Manresa says that “the ascendant is in
not specify otherwise. the first place a USUFRUCTUARY who
- Thus, according to the Padura ruling, should use and enjoy the things
which subjects the choice of according to their nature, in the
reservatarios to the rules of intestate manner and form already set forth in
succession, those reservatarios nearer the Code referring to use and
in degree of relationship to the usufruct.”
Prepositus will exclude those more - But since in addition to being the
remotely related. usufructuary, he is, even though
CONDITIONALLY, the owner in fee
o Representation Among the Reservatarios simple of property, he CAN DISPOSE of
- As in intestate succession, the rule of it in the manner provided in Articles
preference of degree among 974 and 976 of the Code.
reservatarios is qualified by the rule of - The conclusion is that the person
representation. required by Art811 to reserve the right
- The right of representation cannot be has, beyond any doubt at all, the rights
alleged when the one claiming the of use and usufruct. He has, moreover,
same as a reservatario of the the LEGAL TITLE and DOMINION,
reservable property is not among the although under a CONDITION
rd
relatives within the 3 degree subsequent [whether or not there
belonging to the line from which such exist at the time of his death relatives
rd
property came, inasmuch as the right within the 3 degree of the
granted by the Civil Code in Art811 is descendant from whom they inherit in
in the highest degree personal and for the line whence the property
the exclusive benefit of designated proceeds].
persons who are the relatives withint - Clearly, he has, under an express
rd
the 3 degree of the person from whm provision of law, the right to dispose
the reservable property came. of the property reserved, and to
th
Therefore, relatives of the 4 degree dispose of is to alienate, although
and the succeeding degrees can never under a condition. He has the right to
be considered as reservatarios since recover it, because he is the one who
possesses or should possess it and
SUCCESSION Balane Reviewer Page 58 of 116

have title to it, although a limited and the vendee only if an when the reserve
revocable one. In a word, the legal title survives the person obliged to reserve.
and dominion, even though under a [Sienes v. Esparcia]
condition, reside in him while he lives.
After the right required by law to be 4 From Sienes, the following may be derived:
reserved has been assured, he can do A. The reservatarios have a right of
anything that a genuine owner can do. expectancy over the property.
[Edroso v Sablan] B. The right is subject to a SUSPENSIVE
CONDITION, i.e. the expectancy ripens
4 From Edroso, the following may be derived: into ownership if the reservatarios
A. The reservista’s right over the reserved survive the reservista.
property is one of ownership. C. The right is alienable, but subject to the
B. The ownership is subject to a same suspensive condition.
RESOLUTORY CONDITION, i.e. the D. The right is registerable.
existence of reservatorias at the time of
the reservista’s death. 4 Florentino v. Florentino also held that the
C. The right of ownership is alienable, but reservista has NO POWER to appoint, by will,
subject to the same resolutory condition. which specific individual of the reservatarios
D. The reservista’s right of ownership is were to get the reserved property. [As also held
registerable. in Gonzales v. CFI].

2. Juridical Nature from the viewpoint of the 4 The reservees do not inherit from the reservoir
RESERVATARIOS but from the PREPOSITUS, of whom the
- The nature of the reservatarios’ right reservees are the heirs mortis causa subject to
is, Manresa says, that “during the the condition that they must survive the
whole period between the reservor. [Padura v. Baldovino as cited in
constitution in legal form of the right Gonzales v. CFI]
required by law to be reserved and the
extinction thereof, the relatives within 4 The rule in this jurisdiction, therefore, is that
rd
the 3 degree, after the right that in upon the reservista’s death, the property
their turn may pertain to them has passes by strict operation of law [according to
been assured, have only an the rules of intestate succession, as held in
EXPECTATION and therefore they do Padura], to the proper reservatarios. Thus, the
not even have the capacity to transmit selection of which reservatarios will get the
that expectation to their heirs.” property is made by law and not by the
rd
- The relatives within the 3 degree in reservista.
whose favor the right is reserved
cannot dispose of the property, first • The Property Reserved
because it is in no way, either actually, 4 Any kind of property is reservable. A sugar
constructively or formally, in their quota allotment, as incorporeal property, was
possession; and, moreover, because held to be reservable in Rodriguez v. Rodriguez.
they have no title of ownership or of
fee simple which they can transmit to 4 Effect of Substitution
another, on the hypothesis that only o The very same property must go through
when the person who must reserve the process of transmissions, in order for
the right should die before them will the reserva to arise. Thus, the same
they take their place in the succession property must come from the Mediate
of the descendant of whom they are Source, to the Prepositus by gratuitous
rd
relatives within the 3 degree, that is title, and to the reservista by operation of
to say, a second contingent place in law.
said legitimate succession in the o If the prepositus substitutes the property
fashion of aspirants to a possible by selling, bartering or exchanging it, the
future legacy. [Edroso v. Sablan] substitute cannot be reserved.
- The reserva instituted by law o Note that while the property is with the
instituted by law in favor of the heirs Prepositus, there is yet no reserva, which
rd
within the 3 degree belonging to the commences when the property id received
line from which the reservable by the reservista.
property came, constitutes a REAL o Consequently, the Prepositus has, over the
RIGHT which the reserve may alienate property, plenary powers of ownership,
and dispose of, albeit conditionally, and he may exercise these powers to
the CONDITION being that the thwart the potential reserva. The
alienation shall transfer ownership to Prepositus is the arbiter of the reserva.
SUCCESSION Balane Reviewer Page 59 of 116

- Reserva Maxima – as much of the
4 QUESTION – would there be a reserva if the potentially reservable property as
Prepositus sold the property under pacto de possible must be deemed included in
retro and then redeemed it? the part that passes by operation of
law. This “maximizes” the scope of the
4 Reserved Property Does Not Form Part of the reserva.
Reservista’s Estate Upon his Death - Reserva Minima – every single
o The contention that an intestacy property in the Prepositus’ estate
proceeding is still necessary rests upon the must be deemed to pass, partly by will
assumption that the reservatario will and partly by operation of law, in the
succeed in, or inherit, the reservable same proportion that the part given by
property from the reservista. This is not will bears to the part not so given.
true. The reservatario is not the o Reserva Minima is more widely accepted.
reservista’s successor mortis causa nor is
the reservable property part of the • Rights and Obligations
reservista’s estate; the reservatario 4 There are no specific implementing articles on
receives the property as a conditional heir the reserva troncal.
of the Prepositus, said property merely 4 Under the Old Code, the provisions viudal were
reverting to the line of origin from which it extended to the troncal, thus the rights of the
had temporarily and accidentally strayed reservatarios and the corresponding obligations
during the reservista’s lifetime. of the reservista were:
o It is a consequence of these principles that a. To inventory the reserved properties
upon the death of the reservista, the b. To annotate the reservable character [if
reservatario nearest to the prepositus registered immovables] in the Registry of
becomes, automatically and by operation Property within 90 days from acceptance
of law, the owner of the reservable by the reservista.
property. As already stated, that property c. To appraise the immovables
is no part of the estate of the reservista, d. To secure by means of mortgage: [i] the
and does not even answer for the debts of indemnity for any deterioration of or
the latter. Hence, its acquisition by the damage to the property occasioned by
reservatario may be entered in the the reservista’s fault or negligence, and
property records without necessity of [ii] the payment of the value of such
estate proceedings, since the basic reserved movables as may have been
requisites therefor appear of record. [Cano alienated by the reservista onerously or
v. Director] gratuitously.

o Of course, where the registration decree 4 The abolition of the reserva viudal has caused
merely specifies the reservable character some uncertainty whether these requirements
of the property, without determining the still apply.
identity of the reservatario or where
several reservatarios dispute the property 4 It was held in Sumaya v. IAC that the
among themselves, further proceedings requirement of annotation remains, despite the
are unavoidable. abolition of reserva viudal, as based on Sec51
of PD1529 providing for conveyance and other
o As a consequence of the rule laid down in dealings by registered owners.
Cano, since the reserved property is not
computed as part of the reservista’s 4 Sumaya is however, silent on 2 points:
estate, it is not taken into account in 1. Within what period must the annotation
determining the legitimes of the be made, and
reservista’s compulsory heirs. 2. Whether the other requirements of the
old viudal also remain.
4 RESERVA MAXIMA – RESERVA MINIMA
o Problem: if 2 circumstances occur • Extinguishment of the Reserva Troncal
- The prepositus makes a will instituting 4 The reserve troncal is extinguished by:
the ascendant-reservista to the whole 1. Death of the Reservista
or a part of the free portion, and 2. Death of ALL the Reservatarios
- There is left in the Prepositus’ estate, 3. Renunciation by ALL the Reservatarios,
upon his death, in addition to the provided that no other reservatario is
reserved property, property not born subsequently
reservable. 4. Total fortuitous loss of the reserved
property
o 2 Theories have been Advanced
SUCCESSION Balane Reviewer Page 60 of 116

5. Confusion or merger of rights, as when beneficiary, and the heirs cannot partition
the reservatarios acquire the reservista’s the same unless the court finds compelling
right by a contract inter vivos reasons therefor. This rule shall apply
6. Prescription or adverse possession regardless of whoever owns the property or
constituted the family home.”
Art. 904. The testator cannot deprive his
compulsory heirs of their legitime, except B. The Reserva Troncal
in cases expressly specified by law.
Art. 905. Every renunciation or compromise as
Neither can he impose upon the same any
regards a future legitime between the
burden, encumbrance, condition, or
person owing it and his compulsory heirs
substitution of any kind whatsoever.
is void, and the latter may claim the same
• As already laid down in Art886, the legitime is not upon the death of the former; but they
within the testator’s control. It passes to the must bring to collation whatever they
compulsory heirs by strict operation of law. may have received by virtue of the
renunciation or compromise.
• Testator Devoid of Power to Deprive Compulsory
• Reason for the Rule
Heirs of Legitime
4 Before the predecessor’s death, the heir’s right
4 It is the law, not the testator, which determines
is simply inchoate.
the transmission of the legitimes.

Consequently, it is not within the testator’s
• Duty to Collate
power to deprive the compulsory heirs of their
4 Any property which the compulsory heir may
legitime.
have gratuitously received from his
4 EXCEPTION – the only instance in which the law
predecessor by virtue of the renunciation or
allows the testator to deprive the compulsory
compromise will be considered an advance on
heirs of their legitimes is DISINHERITANCE
his legitime and must be duly credited.
under Arts915-923, the grounds being set forth

under Arts919-921.
• Scope of Prohibition

4 This article applies only to transactions of
• Testator Devoid of Power to Impose Burdens on
compromise or renunciation between the
Legitime
predecessor and the prospective compulsory
4 As also reiterated in Art872, the testator cannot
heir.
impair the legitime, as a consequence of the

principle that the legitime passes by strict
• QUESTION – Is a transaction between the
operation of law.
prospective compulsory heir and another

prospective compulsory heir, or between a
• EXCEPTIONS – When the Law grants the Testator
prospective compulsory heir and a stranger,
Some Power over the Legitime
interdicted?
1. Article 1080 par2 –
4 YES under Article 1347 par2: “No contract may
“A parent who, in the interest of his or
be entered into upon future inheritance except
her family, desires to keep any agricultural,
in cases expressly provided by law.”
industrial, or manufacturing enterprise

intact, may avail himself of the right granted
Art. 906. Any compulsory heir to whom the
him in this article, by ordering that the
testator has left by any title less than the
legitime of the other children to whom the
legitime belonging to him may demand
property is not assigned, be paid in cash.”
that the same be fully satisfied.

2. Article 1083 par1 – • RIGHT OF COMPLETION OF LEGITIME
“Every co-heir has a right to demand the 4 This rule applies only to transmissions by
division of the estate unless the testator gratuitous title.
should have expressly forbidden its partition, • Cross-References, related articles
in which case the period of indivision shall 4 Art855 – if the title by which the testator
not exceed 20 years as provided in article transmitted property is intestate succession
494. This power of the testator to prohibit Art. 855. The share of a child or
division applies to the legitime.” descendant omitted in a will must first be taken
from the part of the estate not disposed of by
• Restrictions on Legitime Imposed by Law the will, if any; if that is not sufficient, so much
A. Article 159, Family Code as may be necessary must be taken
“The Family Home shall continue despite proportionally from the shares of the other
the death of one or both spouses or of the compulsory heirs.
unmarried head of the family for a period of 4 In relation to Arts909 and 910
10 years or for as long as there is a minor
SUCCESSION Balane Reviewer Page 61 of 116

• The principle underlying this rule on completion of MANNER OF COMPUTING THE
legitime is that anything that a compulsory heir HEREDITARY ESTATE
receives by gratuitous title from the predecessor is
considered an advance on legitime and is deducted 1. Inventory all the Existing Assets
therefrom a) This will involve appraisal/valuation of the
4 EXCEPTIONS existing assets at the time of the
1. Art1062 – if the predecessor gave the decedent’s death
compulsory heir a donation inter vivos b) These assets include only those properties
and provided that it was not to be that survive the decedent, i.e. those
charged against the legitime. which are not extinguished by his death
2. Art1063 – testamentary dispositions made [in relation to articles 774 and 777].
by the predecessor to the compulsory c) The value determined by this inventory
heir, unless the testator provides that it will constitute the GROSS ASSETS.
should be considered part of the
legitime. 2. Deduct Unpaid Debts and Charges
a) All unpaid obligations of the decedent
Art. 907. Testamentary dispositions that impair or should be deducted from the gross assets.
diminish the legitime of the compulsory b) Only those obligations with monetary
heirs shall be reduced on petition of the value which are not extinguished by death
same, insofar as they may be inofficious are considered. Thus, those obligations
or excessive. which are purely personal are not taken
• Based on the same principle as art904. If the into account.
testamentary dispositions exceed the disposable c) The difference between the gross assets
portion, the compulsory heirs may demand their and the unpaid obligations will be the
reduction to the extent hat the legitimes have been AVAILABLE ASSETS.
impaired. To allow the testator to make
testamentary dispositions that impair the legitime 3. Add the Value of Donations Inter Vivos
would in effect allow him to deprive the compulsory a) To the available assets should be added
heirs of part of their legitime – an act which is all the inter vivos donations made by the
prohibited by Art904. decedent.
• This article should be read together with Art911. b) The donations inter vivos shall be valued
as of the time they were respectively
Art. 908. To determine the legitime, the value of made. Any increase or decrease in value
the property left at the death of the from the time they were made to the
testator shall be considered, deducting all time of the decedent’s death shall be for
debts and charges, which shall not include the account of the donee, since the
those imposed in the will. donation transfers ownership to the
donee.
To the net value of the hereditary estate, c) The sum of the available assets and all the
shall be added the value of all donations donations inter vivos is the NET
by the testator that are subject to HEREDITARY ESTATE.
collation, at the time he made them.
• COLLATION
• The NET HEREDITARY ESTATE
4 Collation is the act by virtue of which
4 Articles 888-903 set forth the legitimes of the
descendants or other forced heirs who
compulsory heirs, either inheriting alone or in
intervene in the division of the inheritance of
various combinations. Those articles gave the
an ascendant bring into the common mass, the
legitimes in the form of fractions, or
property which they received from him, s that
proportions of the decedent’s estate.
the division may be made according to law and
4 This article makes possible the computation of
the will of the testator.
the absolute amounts of the legitimes by laying
4 Collation is only required of compulsory heirs
down the manner of computing the net value
succeeding with other compulsory heirs and
of the estate [the net hereditary estate], on
involves property or rights received by
which the proportions are based.
donation or gratuitous title during the lifetime

of the decedent.
4 The purpose is to attain equality among the
compulsory heirs in so far as possible for it is
presumed that the intention of the testator or
predecessor in interest in making a donation or
gratuitous transfer to a forced heir is to give
him something in advance on account of his
share in the estate, and that the predecessor’s
SUCCESSION Balane Reviewer Page 62 of 116

will is to treat all his heirs equally, in the
absence of any expression to the contrary. Art. 911. After the legitime has been determined in
4 Collation does not impose any lien on the accordance with the three preceding
property or the subject matter of collationable articles, the reduction shall be made as
donation. What is brought to collation is not follows:
the property donated itself, but rather the
(1) Donations shall be respected as long as
value of such property at the time it was
the legitime can be covered, reducing or
donated, the rationale being that the donation
annulling, if necessary, the devises or
is a real alienation which conveys ownership
legacies made in the will;
upon its acceptance, hence any increase in
(2) The reduction of the devises or legacies
value or any deterioration or loss thereof is for
shall be pro rata, without any distinction
the account of the heir or donee. [Vizconde v
whatever.
CA]
If the testator has directed that a certain

devise or legacy be paid in preference to
Art. 909. Donations given to children shall be
others, it shall not suffer any reduction
charged to their legitime.
until the latter have been applied in full to
Donations made to strangers shall be the payment of the legitime.
charged to that part of the estate of which (3) If the devise or legacy consists of a
the testator could have disposed by his usufruct or life annuity, whose value may
last will. be considered greater than that of the
disposable portion, the compulsory heirs
Insofar as they may be inofficious or may
may choose between complying with the
exceed the disposable portion, they shall
testamentary provision and delivering to
be reduced according to the rules
the devisee or legatee the part of the
established by this Code.
inheritance of which the testator could
Art. 910. Donations which an illegitimate child may freely dispose.
have received during the lifetime of his
father or mother, shall be charged to his • This provision implements the principle laid down in
legitime. Articles 872, 886 and 904 - the inviolability of the
legitime.
Should they exceed the portion that can
be freely disposed of, they shall be • Thus, if the legitimes are impaired, the gratuitous
reduced in the manner prescribed by this dispositions of the testator [either inter vivos or
Code. mortis causa] have to be set aside or reduced as
may be required to cover the legitimes.
• Donations Inter Vivos to Compulsory Heirs
4 Donations inter vivos to a compulsory heir shall • Method of Reduction
be imputed to his legitime, i.e. considered as an 4 There is an order of priorities to be observed in
advance on his legitime. the reduction of the testator’s gratuitous
dispositions, thus –
4 Coverage of Rule A. First, reduce pro rata the non-preferred
o Applies to ALL compulsory heirs legacies and devises [Art911 (2)], and the
o Note that these 2 articles omit testamentary dispositions [Art907]. Among
[inadvertently] ascendants who succeed as these legacies, devises and testamentary
compulsory heirs. This rule applies to them dispositions, there is no preference.
as well. B. Second, reduce pro rata the preferred
o For obvious reasons, this rule has no legacies and devises [Art911, last par.]
application to a surviving spouse. C. Third, reduce the donations inter vivos
according to the inverse order of their
4 Exception dates [i.e. the oldest is the most preferred]
o This rule of imputation to the legitime will [Art773].
not apply if the donor provided otherwise
[in relation to Article 1062], in which case 4 These reductions shall be to the extent
the donation will be imputed to the required to complete the legitimes, even if in
disposable portion of the estate. the process the disposition is reduced to
nothing.
• Donations Inter Vivos to Strangers 4 An apparent conflict exists between this
4 A stranger is anyone who does not succeed as a article and Art950, regarding the order of
compulsory heir. preference among legacies and devises, should
4 Donations inter vivos to strangers are reductions be necessary. [See discussions
necessarily imputed to the DISPOSABLE under Art950]
PORTION.

SUCCESSION Balane Reviewer Page 63 of 116



Art. 913. If the heirs or devisees do not choose to
avail themselves of the right granted by
• DEVISES/LEGACIES OF USUFRUCT/ LIFE the preceding article, any heir or devisee
ANNUITIES/ PENSIONS UNDER PAR. 3 who did not have such right may exercise
4 The following principles shall be borne in mind: it; should the latter not make use of it, the
A. If, upon being capitalized according to property shall be sold at public auction at
actuarial standards, the value of the grant the instance of any one of the interested
exceeds the free portion [i.e. it impairs the parties.
legitime], it has to be reduced, because the
• This article applies if neither party [the compulsory
legitime cannot be impaired.
heir/s and the devisee] elects to exercise his right
B. The testator can impose no usufruct or any
under Art912.
other encumbrance on the part that passes

as legitime.
• How the Thing Devised Should be Disposed Of:
C. Subject to the 2 rules stated, the compulsory
A. Any other heir or devisee, who elects to do
heirs may elect between:
so, may acquire the thing and pay the parties
i. Ceding to the devisee/legatee the free
[the compulsory heir and the devisee in
portion[or the proportional part
question] their respective shares in money.
thereof corresponding to the said
B. If no heir or devisee elects to acquire it, it
legacy/devise, in case there are other
shall be sold at public auction and the net
dispositions], or
proceeds accordingly divided between the
ii. Complying with the terms of the
parties concerned.
usufruct or life annuity or pension.


Art. 912. If the devise subject to reduction should • Note – this rule of constructive partition is similar to
that in co-ownership [Art498] and in partition of the
consist of real property, which cannot be
decedent’s estate [Art1086], except that, in these
conveniently divided, it shall go to the
two latter cases, the acquisition by one of the co-
devisee if the reduction does not absorb
owners or co-heirs can be done only if all the co-
one-half of its value; and in a contrary
owners or co-heirs agree to such acquisition.
case, to the compulsory heirs; but the

former and the latter shall reimburse each
Art. 914. The testator may devise and bequeath the
other in cash for what respectively
free portion as he may deem fit.
belongs to them.
The devisee who is entitled to a legitime • Simply a re-statement of Art842.
may retain the entire property, provided
its value does not exceed that of the
disposable portion and of the share SECTION 6 – DISINHERITANCE
pertaining to him as legitime.
Art. 915. A compulsory heir may, in consequence of
disinheritance, be deprived of his
• This rule covers cases where: legitime, for causes expressly stated by
1) The devise has to be reduced, and law.
2) The thing given as a devise is indivisible
• Art904 sets forth the rule that the testator cannot
deprive the compulsory heirs of the legitime. The
• RULES
sole exception to this rule is DISINHERITANCE. Thus,
1. If the extent of reduction is LESS THAN ½ of
disinheritance is the only instance in which the
the value of the thing – it should be given to
testator may deprive his compulsory heirs of their
the devisee.
legitime.
2. If the extent of reduction is ½ OR MORE of

the value of the thing – it should be given to

the compulsory heir.

• In either case, there should be pecuniary
reimbursement to the party who did not get his
physical portion of the thing devised.

SUCCESSION Balane Reviewer Page 64 of 116



REQUISITES OF A VALID DISINHERITANCE - For Ascendants [Article 920]
a) Abandoned children or induced daughters
1. It must be made in a Will to live corrupt or immoral life or
- Must be formally valid and admitted to attempted against their virtue
probate b) Convicted of attempt against life of
testator, his or her spouse, descendant or
2. It must be for a Cause specified by law under ascendants
Articles 916 in relation to Articles 919-921 c) Accused testator of a Crime punishable by
Imprisonment for 6 years or more, if the
- For Descendants [Article 919] accusation has been found to be False
a) Guilty of an Attempt Against the Life of d) Convicted of adultery / concubinage with
the Testator or the latter’s spouse, the spouse of the testator
descendants or ascendants e) By Fraud, Violence, Intimidation or Undue
b) Accused Testator of Crime punishable by 6 Influence causes testator to Make a Will or
years or more, and the accusation is found Change one already made.
to be Groundless f) Loss of Parental Authority for causes
c) Convicted of Adultery or Concubinage specified in this Code
with Spouse of the Testator g) Refusal to support Children or
d) By Fraud, Violence, Intimidation or Undue Descendants W/O justifiable cause
Influence causes Testator to Make Will or h) Attempt by 1 of the parents against the
Change 1 already made. life of the other, unless there has been
e) Refusal without justifiable cause to reconciliation between them
support the parent or ascendant who - For Surviving Spouse [Article 921]
disinherits a) Convicted of Attempt against life of
f) Maltreatment of testator by word/deed Testator, his/her descendants/ascendants.
g) Leads dishonorable or disgraceful life b) Accused Testator of a Crime punishable
h) Conviction of a crime carrying civil with imprisonment for 6 years or more,
interdiction and the accusation is fond to be False.
c) Spouse, by Fraud, Violence, Intimidation,
or Undue Influence causes the testator to

make a Will or change one already made.
d) Has given cause for legal separation
e) Has given grounds for loss of parental
authority
f) Unjustifiable refusal to support the
children or the other spouse
- If this is not present, or the cause specified is
not among those set forth in the Code, there is
ineffective disinheritance under article 918.
3. It must Specify the cause [Arts 916 and 918]
- If this is not present, there is ineffective
disinheritance under article 918.
4. It must be Unconditional
5. It must be Total
6. The cause must be True
7. If the truth of the cause is Denied, it must be
Proved by the proponent.
- If the controverted cause is not proved,
there is ineffective disinheritance under
article 918.
- All the disinherited heir need do is deny the
cause and the burden is thrown upon those
who would uphold the disinheritance.

• Note – the strictness of the requisites indicates the
policy of the law. It regards disinheritance with
disfavor and will grant it only with reluctance,
because disinheritance results in deprivation of
legitime.

SUCCESSION Balane Reviewer Page 65 of 116



EFFECT OF DISINHERITANCE o If the testator did not, the compulsory heir
4 The effect of disinheritance is not just will be entitled to his corresponding share
deprivation of the leigtime, but total exclusion of the free portion as well.
of the disinherited heir from the inheritance.
Thus, the disinherited heir forfeits: 4 Note the difference between the effect of
A. His legitime, ineffective disinheritance and that of
B. His intestate portion, if any, and preterition under article 854:
C. Any testamentary disposition made in a Art. 854. The preterition or omission of one,
prior will of the disinheriting testator. some, or all of the compulsory heirs in
the direct line, whether living at the time
Art. 916. Disinheritance can be effected only of the execution of the will or born after
through a will wherein the legal cause the death of the testator, shall annul the
therefor shall be specified. institution of heir; but the devises and
st legacies shall be valid insofar as they are
• Made in a Will – the 1 clause of this article
not inofficious.
constitutes the first requisite of disinheritance, that
If the omitted compulsory heirs
it must be made in a will.
should die before the testator, the
4 The will obviously, must be FORMALLY VALID
institution shall be effectual, without
and must be admitted to PROBATE.
prejudice to the right of representation.

nd
• Legal Cause – is the 2 requisite for a valid Art. 919. The following shall be sufficient causes for
disinheritance. The causes allowed by law are
the disinheritance of children and
enumerated in Articles 919 [for descendants], 920
descendants, legitimate as well as
[for ascendants] and 921 [for the surviving spouse].
illegitimate:

Art. 917. The burden of proving the truth of the (1) When a child or descendant has been
cause for disinheritance shall rest upon found guilty of an attempt against the life
the other heirs of the testator, if the of the testator, his or her spouse,
disinherited heir should deny it. descendants, or ascendants;
TH (2) When a child or descendant has accused
• 7 requisite – it must be noted that the truth here the testator of a crime for which the law
is not presumed, it must be proved. All the prescribes imprisonment for six years or
disinherited heir need do is deny the cause and the more, if the accusation has been found
burden is thrown upon those who would uphold the groundless;
disinheritance. (3) When a child or descendant has been
convicted of adultery or concubinage with
Art. 918. Disinheritance without a specification of the spouse of the testator;
the cause, or for a cause the truth of (4) When a child or descendant by fraud,
which, if contradicted, is not proved, or violence, intimidation, or undue influence
which is not one of those set forth in this causes the testator to make a will or to
Code, shall annul the institution of heirs change one already made;
insofar as it may prejudice the person (5) A refusal without justifiable cause to
disinherited; but the devises and legacies support the parent or ascendant who
and other testamentary dispositions shall disinherits such child or descendant;
be valid to such extent as will not impair (6) Maltreatment of the testator by word or
the legitime. deed, by the child or descendant;
• This article sets forth requisites 3 and 6 of (7) When a child or descendant leads a
disinheritance. dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it
• INEFFECTIVE DISINHERITANCE the penalty of civil interdiction.
4 If the disinheritance lacks one or other of the
requisites mentioned in this article, the heir in • There are 8 Causes for disinheritance of Children or
question gets his legitime. Descendants – Whether Legitimate or Illegitimate
4 As to whether he will also get any part of the [Exclusive enumeration]
intestate portion or not, this depends on
whether the testator gave away the free 1. Has been found Guilty of an Attempt
portion through testamentary dispositions. Against the Life of the Testator or the
o If he did, these dispositions are VALID and latter’s spouse, descendants or ascendants
the compulsory heir improperly o The word attempt here is used non-
disinherited gets only his legitime. technically and should not be construed
to limit the provision to the attempted
stage of the felony.

SUCCESSION Balane Reviewer Page 66 of 116



o All stages of commission are included – 5. Refusal W/O justifiable cause to Support the
whether attempted, frustrated, or parent or ascendant who disinherits
consummated. o There must have been a need and a
o The felony, obviously, must be an demand for support [in relation to Art
intentional one. 203 of the Family Code]
o FINAL CONVICTION is required. Art. 203. The obligation to give support
o Question – must the disinheritance be shall be demandable from the time the
subsequent to the conviction or may it person who has a right to receive the
precede the conviction? same needs it for maintenance, but it
- By the wording of the law, it seems shall not be paid except from the date
that it must be subsequent [?] of judicial or extra-judicial demand.
Support pendente lite may be
2. Has Accused the Testator of a Crime claimed in accordance with the Rules
punishable by 6 years or more, and the of Court.
accusation is found to be Groundless Payment shall be made within the
o The word accused here is used first five days of each corresponding
generically and will include: month or when the recipient dies, his
a) Filing of a complaint before the heirs shall not be obliged to return
prosecutor, or what he has received in advance.
b) Presenting incriminating evidence
against the testator, or o The demand must have been
c) Even suppressing exculpatory unjustifiably refused. Refusal may be
evidence justified if the obligor does not have
enough resources for all whom he is
o The crime of which the testator is obliged to support. The ascendants are
rd
accused must carry a penalty of at least 6 only 3 in the hierarchy of preference
years imprisonment. among claimants of support [under
- Prof. Balane says that the Art200 par3 of the Family Code].
terminology used should be “more
than 6 years imprisonment” because Art. 200. When the obligation to give
6 years still falls within prision support falls upon two or more
correccional. 1 day beyond that persons, the payment of the same
places it within the next higher shall be divided between them in
penalty of prision mayor. proportion to the resources of each.
- If the penalty prescribed is prision However, in case of urgent need and
correccional, does it fall under the by special circumstances, the judge
contemplation of this paragraph? may order only one of them to furnish
the support provisionally, without
o The testator must be ACQUITTED. prejudice to his right to claim from the
other obligors the share due from
o The accusation must be found to be them.
groundless, i.e. the judgment of acquittal When two or more recipients at the
must state that either – same time claim support from one and
a) No crime was committed or the same person legally obliged to give
b) The accused did not commit the it, should the latter not have sufficient
crime means to satisfy all claims, the order
established in the preceding article
o An acquittal based on reasonable ground shall be followed, unless the
will not be a ground for disinheritance. concurrent obligees should be the
spouse and a child subject to parental
3. Has been Convicted of Adultery or authority, in which case the child shall
Concubinage with the Spouse of the be preferred.
Testator
o Final Conviction is required 6. Maltreatment of the testator by word or
o Same question – must the disinheritance deed
be subsequent to the conviction? o This will include a wide range of
misdeeds, but it is required that the act
4. By Fraud, Violence, Intimidation or Undue of verbal or physical assault is of a
Influence causes the Testator to Make a Will serious nature.
or Change one already made. o No conviction is required, in fact, it is not
even required that any criminal case be
filed.
SUCCESSION Balane Reviewer Page 67 of 116

o Consequently, a physical assault that
would not fall under par1 as an attempt • There are also 8 Causes for the Disinheritance of
against the life of the testator, the Parents or Ascendants, whether Legitimate or
latter’s spouse, descendants or Illegitimate. [Exclusive enumeration]
ascendants, can fall under this 1. When the parents have abandoned their
paragraph. children or induced their daughters to live a
corrupt or immoral life or attempted against
7. Leads a dishonorable or disgraceful life their virtue
o The operative word here is “lead.” There o This paragraph encompasses 3 grounds:
must be habituality to the conduct to
make it fall under this paragraph. a) Abandonment – also includes those
o The dishonorable or disgraceful conduct penalized by law under articles
or pattern of behavior need not be 276-277 of the RPC, Article 59 of
sexual in nature, although it may often PD603 and all conduct
be that. Surely, a child or descendant constituting repeated or total
whose livelihood is drug-pushing or refusal or failure to care for the
smuggling is living a dishonorable and child. According to the case of
disgraceful life. Chua v. Cabangbang, mere
acquiescence without more is not
8. Conviction of a crime carrying civil sufficient to constitute
interdiction abandonment. However, when
o Final Conviction is required. the mother completely withheld
o The accessory penalty of civil interdiction her presence, her love, her care
is imposed with the principal penalties of and the opportunity to show
death, reclusion perpetua and reclusion maternal affection; and totally
temporal [under Articles 40-41 of the denied her support and
RPC]. maintenance, her silence and
o Same question – must the disinheritance inaction having been prolonged
be subsequent to the conviction? for such a time, then it can be
legally inferred that there is
Art. 920. The following shall be sufficient causes for abandonment. Question – will
the disinheritance of parents or consent to adoption of a child
ascendants, whether legitimate or constitute abandonment?
illegitimate:
b) Inducement to live a corrupt and
(1) When the parents have abandoned their
immoral life – under Art231[2] of
children or induced their daughters to live
the Family Code as a ground for
a corrupt or immoral life, or attempted
suspension or deprivation of
against their virtue;
parental authority.
(2) When the parent or ascendant has been

convicted of an attempt against the life of
c) Attempt against Virtue – no
the testator, his or her spouse,
conviction is required here.
descendants, or ascendants;

(3) When the parent or ascendant has
2. Convicted of attempt against life of testator,
accused the testator of a crime for which
his or her spouse, descendant or
the law prescribes imprisonment for six
ascendants.
years or more, if the accusation has been

found to be false;
3. Has Accused testator of a Crime punishable
(4) When the parent or ascendant has been
by Imprisonment for 6 years or more, if the
convicted of adultery or concubinage with
accusation has been found to be False.
the spouse of the testator;

(5) When the parent or ascendant by fraud,
4. Has been Convicted of adultery or
violence, intimidation, or undue influence
concubinage with the spouse of the
causes the testator to make a will or to
testator.
change one already made;

(6) The loss of parental authority for causes
5. By Fraud, Violence, Intimidation or Undue
specified in this Code;
Influence causes testator to Make a Will or
(7) The refusal to support the children or
Change one already made.
descendants without justifiable cause;

(8) An attempt by one of the parents against
6. The Loss of Parental Authority for causes
the life of the other, unless there has been
specified in this Code
a reconciliation between them.

SUCCESSION Balane Reviewer Page 68 of 116



o Not all causes for loss of parental 1. Spouse is convicted of an Attempt against
authority are grounds for disinheritance. the life of the Testator, his or her
For instance, attainment of the age of descendants or ascendants.
majority is not a ground. Only those
causes which involve culpability on the 2. Spouse Accused Testator of a Crime for
part of the parents will provide grounds which the law prescribes imprisonment for 6
for disinheritance. years or more, and the accusation is fond to
a) Judicial deprivation of parental be False.
authority based on ground of
sexual abuse [Arts232 FC] 3. The Spouse, by Fraud, Violence,
b) Loss of parental authority as a Intimidation, or Undue Influence causes the
result of Judicial declaration of testator to make a Will or change one
abandonment of a child already made.
[Art229(3) FC]
c) Judicial Deprivation of Parental 4. Spouse has given cause for legal separation
Authority on the grounds of: o A decree of legal separation is not
i. Excessively harsh or cruel required.
treatment of the child
ii. Giving the child corrupting o According to Art55 of the Family Code,
orders, counsel or example. there are 10 grounds for legal
iii. Compelling the separation:
child to beg, or a) Repeated physical violence or
iv. Subjecting the grossly abusive conduct directed
child or allowing him to be against the petitioner, a common
subjected to acts of child or a child of the petitioner
lasciviousness [Art231 FC] [natural or adopted].
b) Physical violence or moral pressure
7. Refusal to support the Children or to compel the petitioner to change
Descendants without justifiable cause religious or political affiliation
c) Attempt of respondent to corrupt or
8. Attempt by one of the parents against the induce the petitioner, a common
life of the other, unless there has been a child, or a child of petitioner [natural
reconciliation between them. or adopted] to engage in
prostitution or connivance in such
• Paragraphs 2, 3, 4, 5 and 7 are the same grounds for corruption or inducement.
disinheritance of a descendant or child. d) Final judgment sentencing the
respondent to imprisonment of
Art. 921. The following shall be sufficient causes for more than 6 years, even if
disinheriting a spouse: pardoned.
e) Drug addiction or habitual
(1) When the spouse has been convicted of
alcoholism of the respondent
an attempt against the life of the testator,
f) Lesbianism or homosexuality of the
his or her descendants, or ascendants;
respondent
(2) When the spouse has accused the testator
g) Contracting by the respondent of a
of a crime for which the law prescribes
subsequent bigamous marriage,
imprisonment of six years or more, and
whether in the Philippines or abroad
the accusation has been found to be false;
h) Sexual infidelity or perversion
(3) When the spouse by fraud, violence,
i) Attempt by the respondent against
intimidation, or undue influence cause the
the life of the petitioner
testator to make a will or to change one
j) Abandonment of the petitioner by
already made;
respondent without justifiable cause
(4) When the spouse has given cause for legal
for more than 1 year.
separation;

(5) When the spouse has given grounds for
5. Has given grounds for loss of parental
the loss of parental authority;
authority
(6) Unjustifiable refusal to support the

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

or the other spouse
• There are 6 causes for disinheriting a Spouse –

these grounds are exclusive.
• Paragraphs 1, 2, 3, 5 and 6 are also enumerated

under grounds for disinheritance of a descendant or
child.
SUCCESSION Balane Reviewer Page 69 of 116

Art. 922. A subsequent reconciliation between the have any right of representation. Thus, this
offender and the offended person article is carelessly worded.
deprives the latter of the right to
disinherit, and renders ineffectual any • Extent of Representation
disinheritance that may have been made. 4 The representative take the place of the
disinherited heir not only with respect to the
• Meaning of Reconciliation – either an express
legitime, but also to any intestate portion that
pardon extended by the testator to the offending
the disinherited heir would have inherited.
heir or unequivocal conduct of the testator towards
4 Representation therefore occurs in compulsory
the offending heir which reveals the testator’s
and intestate succession, but not in
intent to forgive the offense.
testamentary succession.
a) If Express Pardon – a general pardon

extended by the testator on his deathbed to

all who have offended him will not suffice; it
SECTION 7 - LEGACIES AND DEVISES
must be a pardon expressly and concretely

extended to the offender, who accepts it.
Art. 924. All things and rights which are within the
b) If conduct – the intent to forgive must be
commerce of man be bequeathed or
clear. This is ultimately a question of fact
devised.
which will be resolved, in case of
controversy, by the courts. • Definition of Legacies and Devises – legacies and
devises are codally defined [by indirection] in
• Effect of Reconciliation Art782 par2
a) If it occurs before disinheritance is made – 4 A more accurate definition of the terms can be
right to disinherit is extinguished found either in Art660 of the Spanish Code or in
b) If it occurs after the disinheritance is made – Castan –
disinheritance is set aside. The effects of o Article 660 of the Spanish Code
setting aside the disinheritance are: - Legacy: testamentary disposition of
i. The disinherited heir is restored to his personal property by particular title
legitime - Devise: testamentary disposition of
ii. If the disinheriting will did not dispose of real property by particular title
the disposable portion, the disinherited o Castan
heir is entitled to his proportionate share - Legacy: testamentary disposition of
[in intestacy] if any, of the disposable specific or generic personal property
portion. - Devise: testamentary disposition of
iii. If the disinheriting will specific or generic real property.
disposed of disposable portion [or any
part thereof] in favor of testamentary • It is important, in defining a legacy or a devise, to
heirs, legatees or devisees, such distinguish it from a testamentary disposition to an
dispositions remain valid. heir because of the effects of preterition.
Essentially, the difference is that an heir receives an
• Article 922 is in relation to Article 1033. aliquot or fractional part of the inheritance,
whereas a legatee or devisee receives specific or
Art. 923. The children and descendants of the generic personalty or realty, respectively.
person disinherited shall take his or her
place and shall preserve the rights of • What can be devised or bequeathed - anything
compulsory heirs with respect to the within the commerce of man. It is not required that
legitime; but the disinherited parent shall the thing devised or bequeathed belong to the
not have the usufruct or administration of testator.
the property which constitutes the
legitime. • Limitations on Legacy or Devise – it should not
impair the legitime.
• Right of Representation in Disinheritance

4 The right of representation is granted only to

descendants of disinherited descendants.
Art. 925. A testator may charge with legacies and
4 This rule is laid down in Art972 par1 which
devises not only his compulsory heirs but
provides: “the right of representation takes
also the legatees and devisees.
place in the direct descending line, but never in
the ascending.” The latter shall be liable for the charge
4 Thus, a disinherited child will be represented by only to the extent of the value of the
his children or other descendants. legacy or the devise received by them.
4 However, if the heir disinherited is a The compulsory heirs shall not be liable
parent/ascendant or spouse, the children or for the charge beyond the amount of the
the descendants of the disinherited heir do not free portion given them.
SUCCESSION Balane Reviewer Page 70 of 116

Art. 926. When the testator charges one of the Art. 930. The legacy or devise of a thing belonging
heirs with a legacy or devise, he alone to another person is void, if the testator
shall be bound. erroneously believed that the thing
pertained to him. But if the thing
Should he not charge anyone in particular,
bequeathed, though not belonging to the
all shall be liable in the same proportion
testator when he made the will,
in which they may inherit.
afterwards becomes his, by whatever
• WHO is charged with the Legacy title, the disposition shall take effect.
4 General Rule – the Estate
Art. 931. If the testator orders that a thing
Exception – however, the testator may impose
belonging to another be acquired in order
the burden on a testamentary heir or a
that it be given to a legatee or devisee,
legatee or devisee. If he does so, then the
the heir upon whom the obligation is
heir, legatee or devisee charged will, if he
imposed or the estate must acquire it and
accepts the disposition in his favor, be bound
give the same to the legatee or devisee;
to deliver the legacy or devise to the person
but if the owner of the thing refuses to
specified. This will be in the nature of a
alienate the same, or demands an
subsidiary legacy or devise. As far as the heir,
excessive price therefor, the heir or the
legatee or devisee charged is concerned, it
estate shall only be obliged to give the
will be a MODE.
just value of the thing.
4 The wording of Art925 is erroneous because a
compulsory heir, as such, cannot be burdened Art. 932. The legacy or devise of a thing which at
with a legacy or devise because that would the time of the execution of the will
impair his legitime. Only a testamentary heir already belonged to the legatee or
can be so burdened. devisee shall be ineffective, even though
4 Extent of liability of heir, devisee or legatee in another person may have some interest
case of subsidiary legacies or devises – the therein.
value of the benefit received from the testator.
If the testator expressly orders that the

thing be freed from such interest or
Art. 927. If two or more heirs take possession of
encumbrance, the legacy or devise shall
the estate, they shall be solidarily liable
be valid to that extent.
for the loss or destruction of a thing
devised or bequeathed, even though only Art. 933. If the thing bequeathed belonged to the
one of them should have been negligent. legatee or devisee at the time of the
execution of the will, the legacy or devise
• The liability imposed by this article is based on shall be without effect, even though it
malice, fault or negligence.
may have subsequently alienated by him.
• This liability will also attach to the executor or
administrator in the proper cases. If the legatee or devisee acquires it
gratuitously after such time, he can claim
Art. 928. The heir who is bound to deliver the nothing by virtue of the legacy or devise;
legacy or devise shall be liable in case of but if it has been acquired by onerous title
eviction, if the thing is indeterminate and he can demand reimbursement from the
is indicated only by its kind. heir or the estate.

• WHO is Liable in case of EVICTION? Art. 934. If the testator should bequeath or devise
4 General Rule – the Estate something pledged or mortgaged to
4 In case of a subsidiary legacy or devise – the secure a recoverable debt before the
heir, legatee or devisee charged. execution of the will, the estate is obliged
to pay the debt, unless the contrary
Art. 929. If the testator, heir, or legatee owns only intention appears.
a part of, or an interest in the thing The same rule applies when the thing is
bequeathed, the legacy or devise shall be pledged or mortgaged after the execution
understood limited to such part or of the will.
interest, unless the testator expressly
declares that he gives the thing in its Any other charge, perpetual or
entirety. temporary, with which the thing
bequeathed is burdened, passes with it to
the legatee or devisee.

SUCCESSION Balane Reviewer Page 71 of 116



Art. 935. The legacy of a credit against a third 4 If the testator knew that the thing did not
person or of the remission or release of a belong to him but did not order its acquisition –
debt of the legatee shall be effective only the Code is SILENT on this. The most rational
as regards that part of the credit or debt solution seems to be that such a disposition
existing at the time of the death of the should be considered VALID, because:
testator. a) The fact that the testator, with
knowledge of the other person’s
In the first case, the estate shall comply
ownership, bequeathed the thing,
with the legacy by assigning to the legatee
implies an order to acquire
all rights of action it may have against the
b) At worst, there is a doubt, and doubts
debtor. In the second case, by giving the
should be resolved in favor of testacy
legatee an acquittance, should he request
[Arts 788 and 791]
one.

In both cases, the legacy shall comprise all Art. 788. If a testamentary disposition
interests on the credit or debt which may admits of different interpretations, in case of
be due the testator at the time of his doubt, that interpretation by which the
death. disposition is to be operative shall be preferred.
Art. 791. The words of a will are to receive
Art. 936. The legacy referred to in the preceding
an interpretation which will give to every
article shall lapse if the testator, after
expression some effect, rather than one which
having made it, should bring an action
will render any of the expressions inoperative;
against the debtor for the payment of his
and of two modes of interpreting a will, that is
debt, even if such payment should not
to be preferred which will prevent intestacy.
have been effected at the time of his

death.
• Legacy / Devise of a Thing Already Belonging to the
The legacy to the debtor of the thing Legatee / Devisee or Subsequently Acquired by Him
pledged by him is understood to discharge [Articles 932 and 933]
only the right of pledge. 4 If the thing already belonged to the
legatee/devisee at the time of the execution of
Art. 937. A generic legacy of release or remission of
the will – the legacy or devise is VOID. It is not
debts comprises those existing at the time
validated by an alienation by the legatee
of the execution of the will, but not
/devisee subsequent to the making of the will.
subsequent ones.
4 NOTE – articles 932 par 1 and 933 par 1 say
• Legacy / Devise of a thing owned in part by the essentially the same thing and should be
testator [Art929] merged.
4 General Rule – conveys only the interest or part 4 If the thing was owned by another person at
owned by the testator the time of the making of the will and acquired
4 Exception – if the testator provides otherwise, thereafter by the legatee/devisee:
viz: a) If the testator erroneously believed that it
a) He may convey more than he owns – the belonged to him – legacy or devise is
estate should try to acquire the part or VOID
interest owned by other parties. If the b) If the testator was not in error –
other parties are unwilling to alienate, - If the thing was acquired onerously
the estate should give the by legatee/devisee – the legatee or
legatee/devisee the monetary devisee is entitled to
equivalent, by analogy with Art931. reimbursement.
b) He may convey less than he owns [Art794] - If the thing was acquired
gratuitously by legatee/devisee –
• Legacy / Devise of a Thing Belonging to Another nothing more is due.
[Arts930-931] 4 If the thing was owned by the testator at the
4 If the testator ordered the acquisition of the time of the making of the will and acquired
thing – the order should be complied with. If thereafter from him by the legatee/devisee –
the owner is unwilling to part with the thing, Articles 932 and 933 are SILENT on this, but
the legatee/devisee should be given the Article 957 par 2 can be applied and the
monetary equivalent. legacy/devise should be deemed revoked.
4 If the testator erroneously believed that the
thing belonged to him – the legacy or devise is • Legacy / Devise to remove an encumbrance over a
VOID. thing belonging to the legatee / devisee under
o EXCEPT if subsequent to the making of the Art932 par2 – VALID, if the encumbrance can be
disposition, the thing is acquired by the removed for a consideration.
testator onerously or gratuitously, the
disposition is validated.
SUCCESSION Balane Reviewer Page 72 of 116

• Legacy / Devise of a thing pledged or mortgaged Art. 940. In alternative legacies or devises, the
under Article 934 – the encumbrance must be choice is presumed to be left to the heir
removed by paying the debt, UNLESS the testator upon whom the obligation to give the
intended otherwise. legacy or devise may be imposed, or the
executor or administrator of the estate if
• Legacy of Credit or Remission [Articles 935-937] no particular heir is so obliged.
4 Applies only to amount still unpaid at the time If the heir, legatee or devisee, who may
of the testator’s death [under Art935] have been given the choice, dies before
4 Revoked if testator subsequently sues the
making it, this right shall pass to the
debtor for collection [[Article 936]
respective heirs.
4 If Generic, applies only to those existing at the
time of execution of the will [under Articles 937 Once made, the choice is irrevocable.
and 793], unless otherwise provided. In the alternative legacies or devises,
except as herein provided, the provisions
Art. 938. A legacy or devise made to a creditor shall of this Code regulating obligations of the
not be applied to his credit, unless the same kind shall be observed, save such
testator so expressly declares. modifications as may appear from the
In the latter case, the creditor shall have intention expressed by the testator.
the right to collect the excess, if any, of
• Alternative legacies / devises
the credit or of the legacy or devise.
4 Definition – One which provides that, among
Art. 939. If the testator orders the payment of what several things mentioned, only one is to be
he believes he owes but does not in fact given.
owe, the disposition shall be considered
as not written. If as regards a specified • Right of Choice
debt more than the amount thereof is 4 General Rule
ordered paid, the excess is not due, unless 1) The estate, through the executor or
a contrary intention appears. administrator – in a direct legacy or
devise
The foregoing provisions are without
2) The heir, legatee, or devisee charged – in a
prejudice to the fulfillment of natural
subsidiary legacy or devise
obligations.
4 These parties are, analogously, in the position
• Legacy / Devise to a Creditor [Art938] of the debtor.
4 General Rule – will be treated like any other 4 Exception – the legatee/devisee, if the testator
legacy / devise and therefore will not be so provides.
imputed to the debt.
4 Exception – will be imputed to the debt if the • If the person who is to choose dies before choice is
testator so provides, and if the debt exceeds made:
the legacy / devise, the excess may be a) If the choice belonged to executor or
demanded as an obligation of the estate. administrator – the right is transmitted to his
4 NOTE – if the testator does provide that the successor in office.
legacy / devise should be imputed to the debt b) If the choice belongs to an heir, legatee or
and the amount of the debt is equal to or more devisee – the right is transmitted to his own
than the value of the legacy/devise it would be heirs.
folly for the creditor to accept the “benefit.” He
will be much better off renouncing the • The choice is irrevocable.
legacy/devise and filing a claim for the credit. • Provisions suppletorily governing – Articles 1199-
1205, on alternative obligations.
• Testamentary Instruction to Pay a Debt [Art939]
a) This is not a testamentary disposition, but Art. 941. A legacy of generic personal property shall
merely a direction to discharge a civil be valid even if there be no things of the
obligation. same kind in the estate.
b) Instruction to pay non-existing debt – should
A devise of indeterminate real property
be DISREGARDED, because this would
shall be valid only if there be immovable
solution indebiti.
property of its kind in the estate.
c) Instruction to pay more than what is due –
effective only as to what is due, unless the The right of choice shall belong to the
bigger amount specified constitutes a natural executor or administrator who shall
obligation under Articles 1423 – 1430. comply with the legacy by the delivery of
a thing which is neither of inferior nor of
superior quality.

SUCCESSION Balane Reviewer Page 73 of 116



Art. 942. Whenever the testator expressly leaves Art. 944. A legacy for education lasts until the
the right of choice to the heir, or to the legatee is of age, or beyond the age of
legatee or devisee, the former may give or majority in order that the legatee may
the latter may choose whichever he may finish some professional, vocational or
prefer. general course, provided he pursues his
course diligently.
Art. 943. If the heir, legatee or devisee cannot
make the choice, in case it has been A legacy for support lasts during the
granted him, his right shall pass to his lifetime of the legatee, if the testator has
heirs; but a choice once made shall be not otherwise provided.
irrevocable.
If the testator has not fixed the amount of
• Generic legacies / devises such legacies, it shall be fixed in
• Rules on Validity [Article 941] accordance with the social standing and
A. Generic Legacy – valid even if no such the circumstances of the legatee and the
movables exist in the testator’s estate upon value of the estate.
his death. The estate will simply have to If the testator or during his lifetime used
acquire what is given by legacy.
to give the legatee a certain sum of
B. Generic Devise – valid only if there exists
money or other things by way of support,
such an immovable in the testator’s estate at
the same amount shall be deemed
the time of his death.
bequeathed, unless it be markedly
disproportionate to the value of the
4 Note – this distinction as found in the Spanish estate.
Code perpetuates the rule in the Partidas even
if it has become artificial and arbitrary in Art. 945. If a periodical pension, or a certain
modern times. annual, monthly, or weekly amount is
bequeathed, the legatee may petition the
• Right of Choice [Article 942-943] court for the first installment upon the
4 General Rule – the executor or administrator, death of the testator, and for the
acting for the estate. following ones which shall be due at the
o Exception – if the testator gives the right of beginning of each period; such payment
choice to the legatee / devisee, or to the shall not be returned, even though the
heirs on whom the obligation to give the legatee should die before the expiration
benefit is imposed [in a subsidiary legacy or of the period which has commenced.
devise] Legacy for Education
4 Duration – age of majority or the completion of
4 Limitation on Choice – the choice must be a professional, vocational or general course,
limited to something which is neither superior whichever comes later. In the latter instance,
nor inferior in quality. This rule applies whether only if the legatee pursues his studies diligently.
the choice belongs to the 4 Amount
executor/administrator or the legatee/devisee. o Primarily – that fixed by the testator
o In relation to Art1246 of the CC – “When o Secondarily – that which is proper, as
the obligation consists in the delivery of an determined by 2 variables: [1] the social
indeterminate or generic thing, whose standing and circumstances of the
quality and circumstances have not been legatee, and [2] the value of the
stated, the creditor cannot demand a thing disposable portion of the estate.
of superior quality. Neither can the debtor
deliver a thing of inferior quality. The • Legacy for Support
purpose of the obligation and other 4 Duration – the legatee’s lifetime, unless the
circumstances shall be taken into testator has provided otherwise
consideration.” 4 Amount
o Primarily – that fixed by the testator
4 Finality of Choice – irrevocable, once made. o Secondarily – that which the testator
during his lifetime used to give the
4 Transmissibility of Right to Choose legatee by way of support, unless
1. If the choice belongs to the executor / markedly disproportionate to the value
administrator and he dies before making of the disposable portion
the choice – the right is transmitted to o Tertiarily – that which is reasonable, on
his successor in the position. the basis of 2 variables: [1] the social
2. If the choice belongs to the standing and the circumstances of the
legatee/devisee and he dies before legatee, and [2] the value of the
making the choice – the right passes to disposable portion.
his heirs.
SUCCESSION Balane Reviewer Page 74 of 116

With a Upon the Upon the Upon the
• Legacy of a Periodical Pension Suspensive happening testator’s happening
4 Demandability – upon the testator’s death and Condition of the death, if of the
the succeeding ones at the beginning of the condition the condition,
period without duty to reimburse should the condition is unless
legatee due before the lapse of the period. fulfilled testator
[under provides
4 NOTE – this should be harmonized with the Art1187] otherwise
rules on settlement of estates, i.e. the debts [Art884 in
should first be paid before any testamentary rel. to
grants can be complied with [unless the legatee Art1187]
files a BOND under Rule 90 sec1 of ROC].
However, should the legacy prove to be
Art. 1187. The effects of a conditional obligation to
inofficious, the date of effectivity shall retroact
give, once the condition has been fulfilled, shall
to the decedent’s death.
retroact to the day of the constitution of the

obligation. Nevertheless, when the obligation
Art. 946. If the thing bequeathed should be subject
imposes reciprocal prestations upon the parties, the
to a usufruct, the legatee or devisee shall
fruits and interests during the pendency of the
respect such right until it is legally
condition shall be deemed to have been mutually
extinguished.
compensated. If the obligation is unilateral, the
• This article lays down the same rule as Art934 par3. debtor shall appropriate the fruits and interests
received, unless from the nature and circumstances
Art. 947. The legatee or devisee acquires a right to of the obligation it should be inferred that the
the pure and simple legacies or devises intention of the person constituting the same was
from the death of the testator, and different.
transmits it to his heirs. In obligations to do and not to do, the courts shall
• Demandability, Ownership and Fruits of Legacies/ determine, in each case, the retroactive effect of
Devises the condition that has been complied with.

Demand- When Fruits
Art. 948. If the legacy or device is of a specific and
ability Ownership
determinate thing pertaining to the
Vests
testator, the legatee or devisee acquires
Pure and Upon Upon Upon the
the ownership thereof upon the death of
Determinate Testator’s Testator’s testator’s
the testator, as well as any growing fruits,
death death death
or unborn offspring of animals, or
[under
uncollected income; but not the income
Art948]
which was due and unpaid before the
Pure and Upon a. if from Upon
latter's death.
Generic Testator’s testator’s determi-
death estate – nation, From the moment of the testator's death,
upon unless the thing bequeathed shall be at the risk
testator’s testator of the legatee or devisee, who shall,
death provides therefore, bear its loss or deterioration,
otherwise and shall be benefited by its increase or
b. if [Art949] improvement, without prejudice to the
acquired responsibility of the executor or
rd
from a 3 administrator.
person –

upon
Art. 949. If the bequest should not be of a specific
acquisition
and determinate thing, but is generic or of
With a Upon the Upon Upon the
quantity, its fruits and interests from the
Suspensive arrival of arrival of arrival of
time of the death of the testator shall
Term the term the term, the term
pertain to the legatee or devisee if the
but the [implied
testator has expressly so ordered.
right to it from
vests upon Art885]
the Art. 950. If the estate should not be sufficient to
testator’s cover all the legacies or devises, their
death payment shall be made in the following
[under order:
Art878]
SUCCESSION Balane Reviewer Page 75 of 116

(1) Remuneratory legacies or devises; Art. 952. The heir, charged with a legacy or devise,
(2) Legacies or devises declared by the or the executor or administrator of the
testator to be preferential; estate, must deliver the very thing
(3) Legacies for support; bequeathed if he is able to do so and
(4) Legacies for education; cannot discharge this obligation by paying
(5) Legacies or devises of a specific, its value.
determinate thing which forms a part of
Legacies of money must be paid in cash,
the estate;
even though the heir or the estate may
(6) All others pro rata.
not have any.

• Order of Preference among Legacies and Devises in The expenses necessary for the delivery of
case the Estate is Not Sufficient for All of them the thing bequeathed shall be for the
1. Remuneratory legacies or devises account of the heir or the estate, but
2. Legacies or devises declared by the testator without prejudice to the legitime.
to be preferential
This article conforms to the rule of
3. Legacies for support
identity in the performance of obligations
4. Legacies for education
[under Art1244]:
5. Legacies or devises of a specific, determinate
thing which forms a part of the estate Art. 1244. The debtor of a thing cannot compel the
6. All others, pro rata creditor to receive a different one,
although the latter may be of the same
• Article 950 and Article 911 value as, or more valuable than that
4 Article 911 also contains a rule for reduction of which is due.
legacies and devises and the order of In obligations to do or not to do, an act or
preference there is different: it simply provides forbearance cannot be substituted by
that all the non-preferred legacies/devises will another act or forbearance against the
be reduced pro rata, and the preferred obligee's will.
legacies/devises are reduced last. It is a rule
different from that set forth in Art950. Art. 953. The legatee or devisee cannot take
possession of the thing bequeathed upon
4 Possible reconciliation between the 2 articles – his own authority, but shall request its
each article can be given its own area of delivery and possession of the heir
applicability. charged with the legacy or devise, or of
o Article 911 will apply if reductions have the executor or administrator of the
to be made because the LEGITIMES have estate should he be authorized by the
been impaired, i.e. if the legacies/devises court to deliver it.
have exceeded the disposable portion Although the efficacy of a legacy or devise
o Article 950 will apply if the reason for the vests upon the testator’s death, actual
reduction is not the impairment of delivery does not take place at that time.
legitimes, i.e. there are no legitimes Debts first have to be paid, then legitimes
because there are no compulsory heirs have to be determined, and the
or the legitimes have already been testamentary dispositions (including
satisfied through donations inter vivos. legacies and devises) computed lest they
impair the legitimes. It is only after these
Art. 951. The thing bequeathed shall be delivered steps have been taken that the
with all its accessories and accessories beneficiaries of the will can take
and in the condition in which it may be possession.
upon the death of the testator.
Art. 954. The legatee or devisee cannot accept a
• The obligation to deliver the accessions and part of the legacy or devise and repudiate
accessories exists even if the testator does not the other, if the latter be onerous.
explicitly provide for it. This is the same rule laid
down in Art1166, which provides: Should he die before having accepted the
Art. 1166. The obligation to give a legacy or devise, leaving several heirs,
determinate thing includes that of delivering all some of the latter may accept and the
its accessions and accessories, even though they others may repudiate the share
may not have been mentioned respectively belonging to them in the
legacy or devise.
• The crucial time is the testator’s death, because
that is when successional rights vest [under Art777].
That is why the thing must be delivered in the
condition in which it is at that time.

SUCCESSION Balane Reviewer Page 76 of 116



Art. 955. The legatee or devisee of two legacies or • Rules in Case of Repudiation by or Incapacity of
devises, one of which is onerous, cannot Legatee/Devisee
renounce the onerous one and accept the 1. Primarily – SUBSTITUTION
other. If both are onerous or gratuitous, 2. Secondarily – ACCRETION
he shall be free to accept or renounce 3. Tertiarily – INTESTACY
both, or to renounce either. But if the
testator intended that the two legacies or Art. 957. The legacy or devise shall be without
devises should be inseparable from each effect:
other, the legatee or devisee must either
(1) If the testator transforms the thing
accept or renounce both.
bequeathed in such a manner that it does
Any compulsory heir who is at the same not retain either the form or the
time a legatee or devisee may waive the denomination it had;
inheritance and accept the legacy or (2) If the testator by any title or for any cause
devise, or renounce the latter and accept alienates the thing bequeathed or any
the former, or waive or accept both. part thereof, it being understood that in
the latter case the legacy or devise shall
• Rules on Acceptance and Repudiation of Legacies /
be without effect only with respect to the
Devises
part thus alienated. If after the alienation
4 Legacies ma be total or partial, as implied
the thing should again belong to the
under Art954 par1.
testator, even if it be by reason of nullity
o Exception – If the legacy/devise is partly
of the contract, the legacy or devise shall
onerous and partly gratuitous, the
not thereafter be valid, unless the
recipient cannot accept the gratuitous
reacquisition shall have been effected by
part and renounce the onerous part. Any
virtue of the exercise of the right of
other combination however is
repurchase;
permitted.
(3) If the thing bequeathed is totally lost

during the lifetime of the testator, or after
4 Acceptance or Repudiation by Heirs of Legatee/
his death without the heir's fault.
Devisee – if the legatee or devisee dies before
Nevertheless, the person obliged to pay
accepting or renouncing, his heirs shall exercise
the legacy or devise shall be liable for
such right as to their pro-indiviso share, and in
eviction if the thing bequeathed should
the same manner as the legatee or devisee.
not have been determinate as to its kind,

in accordance with the provisions of
4 2 Legacies/Devises to the Same Recipient
Article 928.
o If both gratuitous – the recipient may

accept or renounce either or both
• This article enumerates the instances when the
o If both onerous – same rule, may accept
legacy/devise is REVOKED BY OPERATION OF LAW
or renounce either or both

o If one gratuitous and the other onerous
1. TRANSFORMATION
– the recipient cannot accept the
o If for example the testator converts a
gratuitous and renounce the onerous.
plantation to a fishpond.
Any other combination is permitted.


2. ALIENATION
4 Legacy/Devise to One who is Also a Compulsory
o The alienation by the testator may be
Heir – the recipient may accept either or both,
gratuitous or onerous.
the legacy/devise and the legitime. [in relation
o The alienation revokes the legacy/devise
to Art1055]
even if for any reason the thing reverts

to the testator.
4 Effect if the Will Provides Otherwise – all of the
o Exceptions
above rules apply in the absence of a
a) If the reversion is caused by the
stipulation in the will providing otherwise. If
annulment of the alienation and
there is a stipulation, the testator’s wishes shall
the cause for annulment was
govern.
vitiation of consent on the

grantor’s part, either by reason
Art. 956. If the legatee or devisee cannot or is
or incapacity or duress.
unwilling to accept the legacy or devise,
b) If the reversion is by virtue of
or if the legacy or devise for any reason
redemption in a sale with pacto
should become ineffective, it shall be
de retro.
merged into the mass of the estate,

except in cases of substitution and of the
3. TOTAL LOSS
right of accretion.

SUCCESSION Balane Reviewer Page 77 of 116



o This will be a cause for revocation only if 4 But the draft Code, as well as the Spanish Code
it takes place before the testator’s defines intestate succession as taking place “by
death. operation of law in the absence of a valid will.”
o Fortuitous loss after the testator’s death 4 And the Spanish Code provides that “succession
will not constitute revocation because results from a person’s will as manifested in a
legally, the disposition takes effect testament, or in default thereof, by operation
upon death. of law.”
o Therefore, fortuitous loss after the
testator’s death will simply be an • INSTANCES WHEN LEGAL OR INTESTATE
instance of “res perit domino” and will SUCCESSION OPERATED
be borne by the legatee/devisee.
1. If a person dies without a will, or with a void
Art. 958. A mistake as to the name of the thing will, or one which has subsequently lost its
bequeathed or devised, is of no validity.
consequence, if it is possible to identify o 3 instances with the same legal result –
the thing which the testator intended to there is no will.
bequeath or devise. o A will that has subsequently lost its
validity is one that has been REVOKED
• This principle is already set forth in Art789
under Articles 830-837 without a later

one taking its place. Validity should
Art. 959. A disposition made in general terms in
read “efficacy.”
favor of the testator's relatives shall be

understood to be in favor of those nearest
2. When the will does not institute an heir to,
in degree.
or dispose of all the property belonging to
• This article is misplaced because it applies not just the testator. In such case, legal succession
to legatee/devisees but to all testamentary heirs as shall take place only with respect to the
well. It should be placed under the chapter on property of which the testator has not
“Institution of Heir.” disposed.
o In these instances, intestacy may be total
or partial.

CHAPTER 3 3. If the suspensive condition attached to the
LEGAL OR INTESTATE SUCCESSION institution of an heir does not happen or is
not fulfilled, or if the heir dies before the
testator, or repudiates the inheritance,
there being no substitution and no right of
SECTION 1 - GENERAL PROVISIONS accretion takes place
o Intestacy here may also be total or
Art. 960. Legal or intestate succession takes place: partial, depending on the extent of the
(1) If a person dies without a will, or with a disposition that turns out to be
void will, or one which has subsequently inoperative.
lost its validity;
(2) When the will does not institute an heir 4. When the heir instituted is incapable of
to, or dispose of all the property succeeding, except in cases provided in this
belonging to the testator. In such case, Code.
legal succession shall take place only with o Incapacity to succeed under Articles
respect to the property of which the 1027, 1028 and 1032. Intestacy here
testator has not disposed; may be total or partial.
(3) If the suspensive condition attached to
the institution of heir does not happen or Other Causes of Intestacy
is not fulfilled, or if the heir dies before 5. Happening of a Resolutory Condition
the testator, or repudiates the 6. Expiration of a Resolutory Term
inheritance, there being no substitution, 7. Preterition
and no right of accretion takes place;
(4) When the heir instituted is incapable of
succeeding, except in cases provided in Art. 961. In default of testamentary heirs, the law
this Code. vests the inheritance, in accordance with
the rules hereinafter set forth, in the
• Legal or Intestate Succession Defined legitimate and illegitimate relatives of the
4 Not defined by the Code, unlike testamentary deceased, in the surviving spouse, and in
and mixed succession. the State.

SUCCESSION Balane Reviewer Page 78 of 116



4 5 EXCEPTIONS
Art. 962. In every inheritance, the relative nearest a) The rule of preference of lines
in degree excludes the more distant ones, b) The distinction between
saving the right of representation when it legitimate and illegitimate
properly takes place. filiation [the ratio under present
law is 2:1] under Article 983 in
Relatives in the same degree shall inherit
relation to Article 895 as
in equal shares, subject to the provisions
amended by Art176 of the
of article 1006 with respect to relatives of
Family Code.
the full and half blood, and of Article 987,
c) The Rule of Division by line in the
paragraph 2, concerning division between
Ascending Line under Art987
the paternal and maternal lines.
par2
• Exclusion and Concurrence in Intestacy d) The Distinction between Full-
4 Intestacy operates on the same principles as Blood and Half-Blood
succession to the legitime. There are 2 relationship among Brothers
principles operating sometimes simultaneously, and Sisters, as well as nephews
sometimes singly – EXCLUSION and and nieces under Articles 1006
CONCURRENCE. and 1008.
• Groups of intestate heirs and the different e) Representation
combinations in intestacy are outlined under Arts.
978-1010.
• Basis of Intestate Succession SUBSECTION 1. - Relationship
4 The presumed will of the decedent, which
would distribute the estate in accordance with Art. 963. Proximity of relationship is determined by
the love and affection he has for his family and the number of generations. Each
close relatives, and in default of these persons, generation forms a degree.
the presumed desire of the decedent to Art. 964. A series of degrees forms a line, which
promote charitable and humanitarian activities. may be either direct or collateral.
4 Manresa says that the law of intestacy is
founded on the presumed will of the deceased. A direct line is that constituted by the
Love, it is said first descends, then ascends, and series of degrees among ascendants and
finally spreads sideways. Thus, the law first calls descendants.
the descendants, then the ascendants and A collateral line is that constituted by the
finally the collaterals, always preferring those series of degrees among persons who are
closer in degree than those of remoter degrees. not ascendants and descendants, but who
come from a common ancestor.
• BASIC RULES OF INTESTACY
Art. 965. The direct line is either descending or
1. The Rule of Preference of Lines ascending.
4 The 3 lines of relationship are: The former unites the head of the family
a) The descending with those who descend from him.
b) The ascending, and
c) The collateral The latter binds a person with those from
whom he descends.
4 The law lays down an order of Art. 966. In the line, as many degrees are counted
preference among these lines, such as there are generations or persons,
that the descending excludes the excluding the progenitor.
ascending and the collateral, and the
ascending excludes the collateral. In the direct line, ascent is made to the
common ancestor. Thus, the child is one
2. The Rule of Proximity of Degree degree removed from the parent, two
4 The nearer exclude the more remote from the grandfather, and three from the
[Art962 par1] without prejudice to great-grandparent.
representation. In the collateral line, ascent is made to the
common ancestor and then descent is
3. The Rule of Equality Among Relatives of the made to the person with whom the
Same Degree computation is to be made. Thus, a
4 This rule is corollary of the previous person is two degrees removed from his
one: If the nearer exclude the more brother, three from his uncle, who is the
remote, logically those of equal degree brother of his father, four from his first
should inherit in equal shares [Art962 cousin, and so forth.
par2]
SUCCESSION Balane Reviewer Page 79 of 116

th
FIFTH [5 ] DEGREE of Collateral relationship
DESCENDING (Art1010)

DIRECT o Mode of Counting Degrees in the
ASCENDING Collateral Line [Art966 par3]
i. From the reference point,
LINE
DIRECT & COLLATERAL
ascend to nearest common
ancestor [if there are more than
COLLATERAL 1 nearest common ancestor,
DESCENDING DIRECT & choose any one.]
ASCENDING DIRECT ii. Then descend to the other
reference point
iii. Number of
• LINE – a series of degrees forms a line [Article 964 generations constituting the
par1] ascent and the descent is the
a) Direct - degrees among ascendants and degree of the collateral
descendants [Art964 par2] relationship.
i. Descending – Unites the head of the
family with those who descend from o Collaterals by Degrees
him [Article 965 par2] - First degree – none
ii. Ascending – binds a person with those - Second degree – brothers / sisters
from whom he descends [Article 965 - Third degree
par3] i. Uncles / Aunts
ii. Nephews / Nieces
b) Collateral – Degrees among persons who are - Fourth degree
not ascendants or descendants but come i. First Cousins
from a common ancestor [Article 964 par3] ii. Brothers/Sisters of a grand-
i. Direct and Collateral – importance of parent [grand-uncles /
distinction: the direct is preferred over grand-aunts]
the collateral. iii. Grandchildren of a
ii. Descending direct and Ascending brother/sister [grand-
direct – importance of distinction – the nephews/grand-nieces]
descending is preferred over the - Fifth degree
ascending. i. Children of a first cousin
ii. First cousins of a parent
DIRECT LINE iii. Brothers/sisters of a
great-grandparent
iv. Great grandchildren of
DEGREE a brother/sister

COLLATERAL LINE
Art. 967. Full blood relationship is that existing
between persons who have the same
father and the same mother.
• COMPUTATION OF DEGREES Half blood relationship is that existing
A. Direct Line – there is no legal limit to the between persons who have the same
number of degrees for entitlement to father, but not the same mother, or the
intestate succession. The practical limit is of same mother, but not the same father.
course, human mortality.
• Importance of distinction between full-blood and
o Mode of Counting Degrees in Direct half-blood relationship – with reference to brothers
Line and sisters and nephews and nieces, there is a ratio
- One generation = one degree of 2:1 for full-blood and half-blood relationship,
- Parent to child = 1 degree respectively. [Arts1006 and 1008]
- Grandparent to Grandchild = 2 • With respect to collateral relatives, the full-blood
degrees and half-blood relationship is NOT MATERIAL.
- Great-Grandparent to Great-
Grandchild = 3 degrees Art. 968. If there are several relatives of the same
degree, and one or some of them are
B. Collateral Line – computation of degree is unwilling or incapacitated to succeed, his
important in the collateral line because portion shall accrue to the others of the
intestate succession extends only to the same degree, save the right of
representation when it should take place.
SUCCESSION Balane Reviewer Page 80 of 116

where REPRESENTATION is proper [in
• ACCRETION IN INTESTACY descending line]
4 There is accretion in intestacy among heirs of 4 Representation does not apply in cases of
the same degree, in case of PREDECEASE, universal renunciation outlined above, because
INCAPACITY or RENUNCIATION of any one of there is no representation in renunciation.
them. [Art1015] [Art977]
1) In case of predecease or incapacity,
representation, if proper, will PREVENT SUBSECTION 2. - Right of Representation
accretion from occurring.
2) Relatives must be in the same kind of Art. 970. Representation is a right created by
relationship – for accretion to take place fiction of law, by virtue of which the
the heirs involved must be in the same representative is raised to the place and
kind of relationship to the decedent. This the degree of the person represented, and
is because of the principle of the acquires the rights which the latter would
preference of lines in intestate have if he were living or if he could have
succession. Thus, there can be no inherited.
accretion among a grandchild, a
Art. 971. The representative is called to the
grandparent and a brother of the
succession by the law and not by the
decedent [even if they are all related to
nd person represented. The representative
him in the 2 degree] because they are
does not succeed the person represented
not inheriting together in the first place.
but the one whom the person

represented would have succeeded.
Art. 969. If the inheritance should be repudiated by
the nearest relative, should there be one Art. 972. The right of representation takes place in
only, or by all the nearest relatives called the direct descending line, but never in
by law to succeed, should there be the ascending.
several, those of the following degree
In the collateral line, it takes place only in
shall inherit in their own right and cannot
favor of the children of brothers or sisters,
represent the person or persons
whether they be of the full or half blood.
repudiating the inheritance.
Art. 973. In order that representation may take

place, it is necessary that the
• EFFECT OF RENUNCIATION BY ALL IN THE SAME representative himself be capable of
DEGREE succeeding the decedent.
4 The right of succession should first be passed
on the heirs in succeeding degrees [in Art. 974. Whenever there is succession by
successive order] before the next line can representation, the division of the estate
succeed, because of the rule of preference of shall be made per stirpes, in such manner
lines. Thus: that the representative or representatives
1) The descending line first – if all the shall not inherit more than what the
descendants of a certain degree person they represent would inherit, if he
renounce, succession passes to the were living or could inherit.
descendants of the next degree [i.e. Art. 975. When children of one or more brothers or
grandchildren], and so on, ad sisters of the deceased survive, they shall
indefinitum. inherit from the latter by representation,
if they survive with their uncles or aunts.
2) The ascending line next – should no one But if they alone survive, they shall inherit
be left in the descending line, the heirs in in equal portions.
the ascending line acquire the right of
succession, again in order of degrees of Art. 976. A person may represent him whose
proximity. inheritance he has renounced.
Art. 977. Heirs who repudiate their share may not
3) The collateral line last – only if ALL the be represented.
descendants and ascendants renounce
will the collateral relatives acquire the
right to succeed. • REPRESENTATION
4 Definition – a right created by fiction of law, by
• Predecease or Incapacity by All in the Same Degree virtue of which the representative is raised to
4 This eventuality is not provided for by the the place and the degree of the person
article. The rules outlined, however, are equally represented, and acquires the rights which the
applicable to such situation, except in cases latter would have if he were living or if he could
have inherited. [Art970]

SUCCESSION Balane Reviewer Page 81 of 116



o Criticisms – the term “representation”, it
has been suggested that a better term to Should A and B both predecease X, only A1 can
call this legal process is either hereditary represent A but both B1 and B2 can represent B
subrogation or successional subrogation
because the person inheriting in 4 Representation OF and BY and adopted child –
another’s stead actually represents no an adopted child can NEITHER represent nor be
one and truly succeeds in his own right. represented.
The term “fiction of law” is criticized as o The rationale for the rule barring an
inaccurate, as well, because the law has adopted from representing and being
ample authority to predetermine who represented is that the legal relationship
are to be called to inherit, and the law created by adoption is strictly between
needs no resort to fictions but merely to the adopted and the adopted. It does not
make use of its power to designate those extend to the relatives of either party.
who are to take the inheritance. [Teotico v. Del Val]

• INSTANCES WHEN REPRESENTATION OPERATES • REPRESENTATION BY RENOUNCER
A. Predecease 4 Although a renounce cannot be represented,
B. Incapacity or Unworthiness, and he can represent the person whose inheritance
C. Disinheritance he has renounced [Art976]. This is because in
nd
the 2 sentence of Art971, the representative
4 Instance when Representation NEVER operates does not succeed the person represented but
– RENUNCIATION the one whom the person represented would
have succeeded.
• IN WHAT KINDS OF SUCCESSION REPRESENTATION 4 Example – A is the father of B and C is the son
OPERATES of B, and therefore the grandchild of A. B dies
A. LEGITIME or compulsory succession and C renounces his inheritance. But if A dies
o There is no express provision on and there is a right of representation, C can still
representation in the legitime, except inherit from A in representation of B, even if C
Art923 in case of disinheritance. previously renounced his inheritance from B.
B. INTESTACY or legal succession This is because in the latter case, C is inheriting
4 There is no representation in testamentary from A and not from B.
succession
• HOW REPRESENTATION OPERATES
• IN WHAT LINE DOES REPRESENTATION OBTAIN 4 PER STIRPES – the representative or
A. With respect to the LEGITIME – in the direct representatives receive only what the person
descending line only [Art972] represented would have received. If there is
B. With respect to INTESTACY – the general rule more than 1 representative in the same degree,
is in the direct descending line as well, then divide the portion EQUALLY, without
EXCEPT in one instance, in the collateral line prejudice to the distinction between legitimate
– in case of nephews and nieces representing and illegitimate children when applicable.
brothers and sisters of the deceased [Art975]
• RULES ON QUALIFICATION
• REPRESENTATION BY ILLEGITIMATE CHILDREN A. The representative must be qualified to
4 If the child to be represented is legitimate – succeed the decedent. [Art973]
nd
only legitimate children/descendants can o Again, the rationale is found in the 2
represent him [Art992] sentence of Art971, stating that the
4 If the child to be represented is illegitimate – representative does not succeed the
BOTH legitimate and illegitimate person represented but the one whom
children/descendants can represent him the person represented would have
[Arts902, 989 and 990] succeeded.

4 Thus B. The representative need not be qualified to
X succeed the person represented [Art971]

Legitimate Illegitimate C. The person represented need not be
qualified to succeed the decedent.
A B o In fact, the reason why representation is
taking place is that the person
Legit. Illegit. Legit. represented is not qualified, because of
Illegit. predecease, incapacity or disinheritance.

A1 A2 B1 B2
SUCCESSION Balane Reviewer Page 82 of 116

• REPRESENTATION BY GRANDCHILDREN AND o Therefore, A, B, C and D will get an
REPRESENTATION BY NEPHEWS/NIECES: additional P15,000 each plus their own
Difference in Rule P60k portion, they will get 75k each.
A. If ALL the children are disqualified – the o However, since C predeceased the
grandchildren still inherit by representation testator, he may be represented by C1 and
[what the parents should have gotten] under C2, who will each get P37,500 [the P75k
Art982. share of C to be divided by 2, assuming
both C1 and C2 are legitimate children of
B. If ALL the brothers/sisters are disqualified – C].
the nephews and nieces inherit PER CAPITA o Also, since D is unworthy to succeed, he
under Art975. may be represented by D1 and D2, who
will get P37,500 each [P75k share divided
• Some Suggestions – more explicit provisions on: by 2]
o What are the occasions or causes for the
operation of representation?
o In what kinds of succession does
representation operate?

• PROBLEM ON REPRESENTATION
Note, I’m not sure about the answers, please re-check

4 X has 5 legit kids, 3 of whom have their own
kids.

X


A B C D E


C1 C2 D1 D2 E1 E2

4 Supposing X makes a WILL [TESTAMENTARY]
instituting all his 5 kids to the free portion; then
C predeceases him, D is unworthy to succeed
and upon his death, E renounces. How is X’s
estate, worth P600,000 to be apportioned?
o A, B, C, D and E are supposed to get 60,000
each [the free portion is ½ of the whole
estate so the free portion is P300,000
divided by 5 kids = 60,000 each].
o However, there is NO REPRESENTATION in
Testamentary Disposition.
o Therefore, the share of C who predeceased
X, the share of D who is unworthy, and the
share of E who renounced, will all accrue to
A and B as co-heirs.
o So, A and B will each get ½ of the
P300,000, or P150,000 each.

4 Supposing X dies INTESTATE, all the other facts
being the same, how is X’s estate to be
apportioned?
o A, B, C, D and E are supposed to get 60,000
each [the free portion is ½ of the whole
estate so the free portion is P300,000
divided by 5 kids = 60,000 each].
o However, since E renounced his share, his
P60k portion will, by ACCRETION, be
divided equally among the rest of the kids
of X.

SUCCESSION Balane Reviewer Page 83 of 116

Potrebbero piacerti anche