SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
August 13, 2015 (GG)
Subsection 5. - Codicils and Incorporation by
Reference
Art. 825. A codicil is supplement or addition to a will, made
after the execution of a will and annexed to be taken as a
part thereof, by which any disposition made in the original
will is explained, added to, or altered.
So as defined in Art. 825, it is a supplement or addition to a
will. So, it is made after the execution of a will. You cannot
make a codicil before you make a will. It should follow not
precede the execution of the will. The codicil is a part of the
will, it may also explain the provisions of a will, or it may
modify the provisions of a will. As we have discussed before,
for example, if you want to add some more dispositions in
your notarial will, you cannot do that by inserting notarial will.
You need to execute a codicil.
Now, what if the provisions of the original will and the codicil
are not compatible with each other, they contravene each
other, what will prevail? Is it the codicil or the original will? It
is the codicil. As I have mentioned, one purpose of the codicil
is to alter or modify the provisions of the will, or amend the
will. So because the codicil is the later expression of the will or
the last wishes of the testator, then the provisions of the
codicil should prevail over that of the will.
Art. 826. In order that a codicil may be effective, it shall be
executed as in the case of a will. (n)
So what are the formalities required by law for codicils? Art.
826 says it should be in the form of the will. So, you can have
a notarial codicil, you can also have a holographic codicil. So
you follow the formalities of a notarial will or a holographic
will. Codicil came from the word codex which means written
will. But, it is not literally a written will, it is just intended to
supplement or modify, but in reality, the provisions of the
codicil may be longer than the provisions of the original will.
Do not imagine na mura siyag codal.
If you have a notarial will, can you supplement it with a
holographic codicil? YES! There is no prohibition.
If you have a holographic will, can you supplement it with a
notarial codicil? YES! There is no prohibition as long as the
notarial codicil is in itself valid. Meaning, it has complied with
the formalities required by law for notarial wills or holographic
wills, as the case may be.
Art. 827. If a will, executed as required by this Code,
incorporates into itself by reference any document or paper,
such document or paper shall not be considered a part of the
will unless the following requisites are present: xxx
Ad Majorem Dei Gloriam
Article 827 talks of INCORPORATION BY INFERENCE. As a
rule, only those documents which are executed in the form of
a will can be probated. If the document is not in a form of a
will, it cannot be probated. But an exception to that rule is the
rule provided in Article 827. It is because even if the
document incorporated by reference in a will is not in a form
of a will, that document can also be probated as part of a will.
REQUISITES FOR
VALID INCORPORATION BY REFERENCE
(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
So dapat na una ka-exist ang document to be incorporated
because precisely, the law allows inocorporation by reference
for convenience. Like for example, the testator has already
made an inventory of all his properties, and because he has
several properties his inventory consists of 100 pages. So,
murag na xag libro. Now he wants to execute a last will and
testament, and the subject of this last will and testament
would be those properties already inventoried. Now, in his last
will and testament? Does he have to enumerate again in that
will all the properties in his inventory? That is one purpose of
incorporation, you dont have to copy all those provisions in
the inventory. You can just mention in the will that on august
13, 2015, I executed an inventory consisting of 100 pages, so
those properties mentioned in the inventory are the same
properties subject of this last will and testament. So, no need
to copy again. So that is the reason why the document has to
be in existence already because that document is still to be
executed then you might as well write that down in your will.
Okay, so it has to be in existence already at the time of the
execution of the will.
(2) The will must clearly describe and identify the same,
stating among other things the number of pages thereof;
Of course, in number 2, the will must clearly describe So it
can really be identified as the document as referred to by the
testator.
(3) It must be identified by clear and satisfactory proof as
the document or paper referred to therein; and
Again, to assure that it is the same document.
(4) It must be signed by the testator and the witnesses on
each and every page, except in case of voluminous books of
account or inventories. (n)
Take note of number 4, so ang document must be signed in
each and every page. Again, not only by the testator but also
by the witnesses but the law says EXCEPT in case of
voluminous books of account or inventories.
Does that mean to say that if you have a 200-page inventory
that inventory need not to be signed by the witnesses
because the law says except in case of voluminous books
etcetera? NO! What is exempted here is not the signing but
the signing in each and every page. So meaning, they still
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
need to sign a sufficient number of pages but not each and
every page, because again of the volume of the document
involved. But again, there should still be signatures.
Now, can you incorporate by reference into a holographic will
a document which is not in a handwriting of the testator? Naa
siyay inventory na naka-computerized but he executed a
holographic will, can you incorporate that document into the
holographic will? Remember, the document to be
incorporated, unlike a codicil na it should be in itself valid as a
will. Kaning document incorporated by reference is not in a
form of a will. Okay, so it is really now being incorporated into
a will by the process of incorporation by reference. AND,
under Article 810, the holographic will must be entirely written
and signed by the hands of the testator. So, you cannot
incorporate by reference into a holographic will, a document
which is not in the handwriting of the testator because it
would now violate the provisions of Art. 810. But if the
document to be incorporated is also in the handwriting of the
testator, theres no problem, you can incorporate.
If you are talking of a notarial will, its okay as long as you
comply with the requisites under Art. 827.
Subsection 6. - Revocation of Wills and Testamentary
Dispositions
Art. 828. A will may be revoked by the testator at any time
before his death. xxx
What is revocation? Whose act is revocation? Who revokes the
will?
Okay, so, it is the testator who revokes his will. It cannot be
revoked by some other person.
REVOCATION The act of the testator in terminating the
potential capacity of his will to operate upon his death.
So, potential capacity because at the time when he executes
the will even if he already signed the will, signed by the
witnesses, acknowledged before the notary public, still it is
not operative. It will take effect only upon his death. So, by
revocation, he terminates the capacity of that will coming into
effect or from being effective. So, at any time before his
death, the law says. Of course he cannot revoke his will after
his death. He can only do it during his lifetime. Because again,
it is only the testator who can revoke his will.
Now if we go to Art. 830, there is in number 1, by implication
of law. So here, the law implies revocation but still the act
here from which implies revocation is the act of the testator.
Here, the acts of the testator, the law implies that he intended
to revoke his will. So we will discuss that later. So lets go
back to 828.
Art. 828. xxx
Any waiver or restriction of this right is void.
Ad Majorem Dei Gloriam
You cannot subject the right of the testator to revoke his will
to any agreement, prohibition, etcetera. It is almost absolute.
Why almost absolute, not absolute, Almost lang? Naa pay
laing limitation under right to revoke? YES! I think we
discussed this before when we discussed Did we? So, the
testator to effectively revoke his will, he should have animus
revocandi, so intent to revoke. If you have animus revocandi,
you have soundness of mind because you should know the
consequence of this act, the nature of the act of revocation.
And if the testator, in the meantime, loses the soundness of
his mind like if he becomes insane, he cannot effectively
revoke his will while in the state of insanity. In that case, such
revocation is not valid. So that is the only limitation of the
right of the testator to revoke. Kung na ayo na siya, he can
revoke for any reason. Even if no reason, if dili na siya
ganahan sa imoha. Okay, so he can revoke. That is the nature
of revocation.
So let us go to the laws governing revocation.
Art. 829. A revocation done outside the Philippines, by a
person who does not have his domicile in this country, is
valid when it is done according to the law of the place where
the will was made, or according to the law of the place in
which the testator had his domicile at the time; and if the
revocation takes place in this country, when it is in
accordance with the provisions of this Code. (n)
So we discussed before, the laws governing the intrinsic
validity of the wills and the extrinsic validity of the will. So
now let us now discuss the law governing revocation. When
you speak of revocation, so, there are only two things to
remember, if the revocation is done in the Philippines or if it is
done outside the Philippines or abroad.
When the revocation is done in the Philippines.
Here is no problem. You only have to remember one law,
you should revoke it in accordance with Philippine laws.
When the revocation is done outside the
Philippines.
Then you also have to take into account if the testator is
a resident of the Philippines or non-resident.
If you are a resident of the Philippines and you
revoke the will outside the Philippines, what law
should you observe for the revocation?
You can observe the law of his domicile. If he is
the resident of the Philippines he can observe
Philippine law.
You can also follow the law of the place of
revocation. Kung asa niya gi-revoke ang iyahang
will, he can follow the law of that place.
If he is a non-resident?
o Law of his domicile. Actually this is also applicable,
if the testator is a non-resident. He can follow the
law of his domicile or residence. So if he is the
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
resident of the US and he revoked his will in the US,
he can follow the law in the US.
o In addition, he can follow the law of the place of
execution (where it was made). Kung asa niya gi
execute ang will, he can follow the formalities
involved in that law where he made the will.
REMEMBER: In revocation, we dont consider the national law
of the testator. We only consider his domicile. So the law of
the country of the testator has no significance in revocation.
Art. 830. No will shall be revoked except in the following
cases: xxx
So, how can the testator revoke his will? What are the modes
of revocation? There are 3 modes of revocation under Art.
830.
(1) By implication of law; or
It may also be BY OPERATION OF LAW. Here because the
testator did some act, the law presumes that because he did
that particular act, he intended to revoke.
Example 1:
He gave a specific land to A in the will as a devise. Now after
he devised it to A, he sold it to X. So what will now happen to
the devise of the land to A? By operation of law, the devise to
A is revoked.
What if the testator did not have that intention to revoke the
devise? He just sold it because he needed money at that time
and he had the intention to repurchase it in the future so he
may give it to the devisee. So which will prevail, the intention
of the testator or the presumption of law? Because the law
presumes that by such an act by subsequently selling the
property, the testator intended to revoke the devise but in
reality, there is no such intention. Here, the presumption of
law will prevail. So how about the intention of the testator?
Authorities say that, he should make manifest his intention by
some overt act. Like for example, kay wala man jud kay
intention to revoke the devise, then under the law on legacies
and devises, if the sale is with a right of repurchase, there is
no revocation. Because by reserving the right of repurchase,
the testator really intended to give effect to the devise, so the
law can see from that reservation of the right to repurchase
that there is intention to honor the devise. So without that, if
it is just a deed of absolute sale, the law will presume
revocation. So you should make manifest your intention by
some overt acts.
Example 2:
In case of preterition. There is in a concept of preterition that
if in a will, a compulsory heir in the direct line is omitted, the
institution of heirs in the will shall be allowed. In short, if
there is preterition, the will cannot be given effect. Even if it is
not the intention of the testator to annul his will, the law
annuls the will because of preterition. So here we have the
revocation by operation of law.
Ad Majorem Dei Gloriam
(2) By some will, codicil, or other writing executed as
provided in case of wills; or
Or we call it REVOCATION BY A SUBSEQUENT DOCUMENT OR
INSTRUMENT, so here, the testator made a first will, and the
first will is valid, and then subsequent to that first will, he
made another will, a second will. So in a revocation by a
subsequent document or instrument, the second will or
document or instrument, revoked the first will either impliedly
or expressly.
When can there be revocation by a subsequent document or
instrument?
REQUISITES FOR REVOCATION
BY SUBSEQUENT DOC/ INSTRUMENT
1. The first document or instrument must be valid as
will.
2. The subsequent document or instrument should be
in the form of a will. It should be valid as a will.
Because if it turns out did that the second instrument did
not comply with the formalities of a will, then it could not
validly revoke a previous will. It may be express or
implied revocation.
When can there be express revocation? For example in
the will, the testator gave his properties to A, B, and C.
And then he made a second will, in it he gave his
properties to X, Y, and Z and he even mentioned in the
will that his last will and testament revokes and
supersedes all other instruments, codicils, or wills,
executed before this day. We have what we call a
revocatory clause in the second will. If we have a
revocatory clause in the second will, there is no doubt
that the second will revoked the first will.
Another type of revocation is implied revocation as
opposed to express revocation. When we say implied
revocation, we do not have a revocatory clause in the
second will or document or codicil. But the provisions of
the first will and the second will are completely
incompatible with each other. In the first will, the testator
said I give to A all my properties. In the second will, I
give to B all my properties. So it is still all but now to B,
so how do we construe these wills? Can they stand
together? Can we say share na lang mo kay ikaw man si
first ikaw man si second para fair? NO! We cannot share
because that is not the intention of the testator, the
intention of the testator is to give only to one. And to
whom? They cannot be reconciled. They are completely
incompatible. So under the law on revocation, the 2nd will
must have revoked the 1st will because the 2nd will is the
latest expression of the intention of the testator. So that
is implied revocation.
The subsequent document or will must be valid as a will,
again because even they are completely incompatible
with each other but the second document or second will,
for example it is a notarial will, and it only has two
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
witnesses there, so it is not valid as a will. Any revocation
contained in that document will not be effective. So it has
to be valid as a will.
3. The second document or instrument must
mentioned either contain a revocatory clause or be
completely incompatible with the first will.
4. The second will must be probated.
How is it different from a requirement that the second will
must be valid as a will? Diba, the second requisite is the
second document must be valid as a will. Why do we
have this 4th requisite? Okay for example the testator
made a will in 1990, it is a notarial will, in this will he
gave all his properties to A. In year a 2000, he made a
holographic will, this time giving all his properties to B,
assuming that the first will complied with all the requisites
for notarial wills and the second will complied with all the
requisites for holographic wills, so it is valid as a
holographic will. But you cannot reconcile the two wills
because in the 1st all properties to A, in the 2nd all
properties to B. So the second will must have revoked
the 1st will.
Now assuming the holographic will was burnt, completely.
Nasunog siya and abo na lang ang nabilin and the
testator died. So the will is probated and *** wala nay
copy sa will because it is a holographic will, he only made
one copy. So a person saw it before it was burnt and
memorized all the contents of his will. So now they filed
for the probate of the holographic will. What is the effect
if you cannot present the copy of the holographic will,
even in the presence of the witness who is ready to
testify to its contents?
Gan vs. Yap
The holographic will must be presented in court even if
not the original, you can present a carbon copy, a
photocopy, and whatever, as long as there is a copy.
Because in holographic wills the only safeguard in the
authenticity of the will is the will itself. It enables the
court to compare the writings of the testator in the will
with the other handwritings in the document executed
by the testator. So he cannot make a comparison if he
cannot see the will.
The witness cannot testify Your Honor, ang agi sa
testator kay pinahiwi ug ang iyahang letter E kay ing-
ani. [Translation: Your Honor, the testators penmanship
is cursive, he writes letter E this way. (CHAROOOT!)] He
cannot testify like that. There has to be a physical
examination.
So even if the holographic will was validly executed, it
cannot be probated. So now, who will get the properties
of the testator. Was the 1990 notarial will validly
revoked? In that case NO because the 2nd will cannot be
probated even if it was validly executed, it cannot be
probated. A will get the properties of the testator because
Ad Majorem Dei Gloriam
the notarial will was not validly revoked by the
holographic will.
(3) By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it, by the testator himself, or
by some other person in his presence, and by his express
direction. If burned, torn, cancelled, or obliterated by some
other person, without the express direction of the testator,
the will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and
the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court.
(n)
Or we call this revocation BY OVERT ACT. There are four
overt acts mentioned in paragraph 3 of Article 830. We have
burning, tearing, cancelling, or obliterating.
BURNING, at least a portion of the will bears the fact
that it was burnt. It must appear that it was really
burnt even if the will is not entirely burnt or you can
still read a part of the provisions of the will.
TEARING, you dont have to tear it into a thousand
pieces. You can even tear it in two parts and still, the
will can be considered as revoked.
CANCELLING, so you cancel llke how you cancel your
answers in your exams. You put a line across the
will, so thats cancelling.
OBLITERATING, you obliterate the words in the will.
Even if the words can still be read after the testator
tried to obliterate the will is still revoked as long as
there is an act of obliterating manifested in the will.
Now, take note that revocation under this mode of revocation,
we have the overt acts plus the intent to revoke or
animus revocandi. They should go together. Overt act alone
without intent to revoke will not produce revocation. Intent
alone without overt act also will not produce revocation. Even
if the will was torn, if it was torn accidentally without intent to
revoke, then there is no revocation.
One example given by authorities is, for example, the testator
wanted to revoke his will, so he had all the intention to revoke
his will. His will was sealed inside an envelope. Then he threw
the envelope into a stove which was burning. And then when
he saw it starting to burn, the testator left and he was
satisfied na the will was really burnt. And then a person, who
is an heir, but a voluntary heir only, he did not want the will
to be revoked. He tried to save the will, and when he opened
it, the will is still intact. Now, the question is, was the will
revoked? Diba, overt act plus intent to revoke. The overt act
must be made manifest in the will. Here, there is no act of
burning which is manifest in the will, only the envelope, but
the envelope is not part of the will. Here, there is no
revocation by overt acts. But in so far as the heir who
prevented the testator in revoking his will is concerned, there
is revocation by operation of law because that act of the heir
is one of the grounds for disqualification under the law on
incapacity to succeed. So, there is no revocation by overt act
but there is revocation by operation of law in so far as that
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
heir who prevented the testator in revoking his will is
concerned. Again, both act and intent.
Now, the law mentions only 4 acts: burning, tearing,
cancelling, or obliterating. Can there be other acts which could
be used to revoke the will? Are we limited to the four acts
mentioned?
ROXAS vs. ROXAS (GR 4808177)
It was mentioned there that the overt acts may not limited to
burning, tearing, cancelling, or obliterating. In this case, the
act of the testator was crumpling. Gi-kumot niya iyahang last
will and testament.
The court here impliedly admitted the act of crumpling as an
act of revocation because there was also animus testandi.
So, as long as the act is an act of destruction with animus
revocandi, that can be considered an act of revocation.
Art. 831. Subsequent wills which do not revoke the previous
ones in an express manner, annul only such dispositions in
the prior wills as are inconsistent with or contrary to those
contained in the latter wills. (n)
We have already discussed this under Art 830 par. 2,
revocation by subsequent document or instrument. This is the
CONCEPT OF IMPLIED REVOCATION; that the two
documents are completely incompatible with each other. So,
there is no express revocatory clause in the 2nd will, then
there is only implied revocation.
There may also be total or partial. For example when only
portions of the first will are affected of the inconsistency in
the second will. Only those which are affected are considered
revoked.
Art. 832. A revocation made in a subsequent will shall take
effect, even if the new will should become inoperative by
reason of the incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation. (740a)
There is a revocation in a subsequent will. Again we are
talking here of revocation by a subsequent document or
instrument. The first will is revoked by a second will.
Example:
In the first will the testator instituted A, B, and C to his entire
estate. In the second will, the same testator instituted X, Y,
and Z to the same entire estate. So, under the concept of
implied revocation by a subsequent document or instrument
the first will has been revoked by a second will. The
consequence of that revocation is that A, B, and C will no
longer be entitled to receive from the testator. It will now be
X, Y, and Z. However, X, Y, and Z became incapacitated.
Maybe X predeceased, Y became disqualified, and Z
renounced his inheritance. So, we now have an ineffective
will, the second will. The second will is still a valid will but now
Ad Majorem Dei Gloriam
it is considered an ineffective will because of the predecease,
incapacity, repudiation of the heirs instituted in that will.
Would it now mean that the first will is revived? Will it be now
A, B, and C? The law says NO! The first will still remains to be
revoked. A revocation made in a subsequent will shall take
effect even if the new will should become inoperative by
reason of the incapacity of the heirs, devisees, or legatees or
by their renunciation. So this is what we now call the
DOCTRINE OF ABSOLUTE REVOCATION. So the
revocation still stands.
Art. 833. A revocation of a will based on a false cause or an
illegal cause is null and void. (n)
So a REVOCATION based on a FALSE CAUSE or an
ILLEGAL CAUSE, meaning, he was mistaken in the reason
for his revocation. The law says that revocation fails, that
revocation is not effective. It is as if there is no revocation.
In relation to that, we have the DOCTRINE OF DEPENDENT
RELATIVE REVOCATION. It says, the rule is established
that where the act of destruction is connected with the
making of another will so as fairly to raise the inference that
the testator meant the revocation of the old to depend upon
the efficacy of a new disposition intended to be substituted,
the revocation will be conditional and dependent upon the
efficacy of the new disposition; and if, for any reason, the new
will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force and
effect.
Example:
The testator made a will, a notarial will in 1990. In that will he
instituted A as his heir. So the will is valid, it complied with all
the formalities required by law. Then, he changed his mind.
He revoked his will. So he executed another will in year 2000.
This time leaving all his properties to B. it is also valid. It
complied with all the requisites required for notarial will. So
here, we have a subsequent document or instrument. This
instrument is intended to revoke the first will. Now, thinking
that okay na iyahang second will, he burned the first will with
intent to revoke also on the belief that the second will is
already valid. It turned out that the 2nd will is not valid, it
lacked one formality, for example, there are only two
witnesses or there are margins left unsigned. So it is not valid.
So the question here is: who is entitled to the estate? Will it
be A or B or if none of them, the legal heirs? Was the first will
revoked by the second will?
First, can you give the estate to B? No, because the second
will is not valid. Definitely, B is out of the picture. But it was
contended, since when you say revocation by a subsequent
document or instrument, one of the requisites for the second
document to revoke the first will is that the second document
must be valid as a will. As we said, this is not valid since it
lacked the formalities. So, definitely, here the 2nd will did not
revoke the 1st will. But it was argued that yes, the first will
was not revoked by the 2nd will, but the first will was revoked
by an overt act since it was burned by the testator. So the
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
first will was revoked not by a subsequent will but by an overt
act. So the estate should now go to the legal heirs. Is this
contention correct?
DE MOLO vs. MOLO
The SC used the Doctrine of Dependent Relative Revocation.
Here, although he intended to revoke the 1st will by the overt
act of burning but such act of burning was prompted by the
false belief of the testator that the 2nd will was already valid
that is why he burned the first will. But it turned out that the
second will was not valid, so the reason for the revocation
fails and the 1st will is not validly revoked. So the cause of
the burning was caused by the false belief. So that is the
meaning of the Doctrine of Dependent Relative Revocation.
From full text: xxx the revocation of the old to depend
upon the efficacy of a new disposition intended to be
substituted, the revocation will be conditional and dependent
upon the efficacy of the new disposition; and if, for any
reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains
in full force and effect.
So that is an example of revocation based on a false cause.
Art. 834. The recognition of an illegitimate child does not
lose its legal effect, even though the will wherein it was
made should be revoked. (714)
I think we discussed this before in the essential elements and
characteristics of wills. As we mentioned, for a document to
be considered as a will it must contain the disposition of
property. So when it only contains the recognition of an
illegitimate child, that is not a will, therefore, to be effective,
that does not have to comply with the formalities of wills.
Under article 834, also even if the will where the recognition is
made shall be revoked, the recognition shall still stand
because the recognition of an illegitimate child is not a
testamentary disposition. It does not need a probate to be
effective.
Under the Family Code, we have there evidence required to
prove illegitimate filiation. We have a public record of birth, or
a private handwritten document, or a private document
subscribed by the putative parents, or a will where there is a
recognition of an illegitimate child is valid as a recognition
although it is not valid as a will.
Example:
You have a testator who made a will when he was insane, he
was 18 years old but insane. So the will is not valid.
Subsequently, he was cured. He regained sanity. He wanted
to keep the will which he made when he was insane. He
adopted the will, he even showed it to his relatives. Then, he
died. Can that will be probated? Is that will valid?
It is not valid. He made it during the state of insanity. Even if
he regains sanity later on as long as he was insane at the time
Ad Majorem Dei Gloriam
that will is made, the will remains to be void. Subsequent
capacity does not validate the will.
What is the proper thing to do in that case since he really
wanted that will to become his last will and testament?
The proper way for him to adopt that will is by republication.
He should republish the will. We have the concept of
REPUBLICATION. It is the re-establishment of the testator
of a previously revoked will or one invalid for want of proper
execution as to form or for other reasons so as to give validity
to said will.
Subsection 7. - Republication and
Revival of Wills
Art. 835. The testator cannot republish, without reproducing
in a subsequent will, the dispositions contained in a previous
one which is void as to its form. (n)
It talks about a will which is void as to its form. The law says
he cannot republish without reproducing in a subsequent will
the dispositions contained in the previous one which is void in
its form. Here, the law talks of the one mode of republication;
this is EXPRESS REPUBLICATION or REPUBLICATION
BY RE-EXECUTION. This is required if the original will is
void as to form.
When is the will void as to form? When the formalities
required by law has not been complied with. If it is a notarial
will, the formalities required under 804-808 are not complied
with. If it is a holographic will, the formalities required under
810-814 are not complied with. So these are the will which
are void as to form. Like wala na notaryohan ang notarial will,
or the attestation clause lacks the statements required by law.
If it is holographic will, maybe the date is stamped. So, void
as to form.
How about if the testator was insane at the time of the
execution or he was not 18 years old? Well, that will is also
void but not as to form. Void as to form does not include the
testamentary capacity of the testator. So under Art, 835, if the
will is void as to form, the only way to republish the will, is to
reproduce all the provisions of the old will. This time, you
have to comply with the formalities. Again, that is express
republication or republication by re-execution, you have to re-
execute.
If the will is void but not as to form, how do you republish the
will? That revoked will is not void as to form, like the example
was that when the testator was insane, and he wanted to give
effect to it. Like if he tore it apart and realized he wanted to
make it his last will and testament. You have to republish the
will. How? You can republish that kind of will by implied
republication or REPUBLICATION BY REFERENCE or
IMPLIED. So in republication by reference, you need not
copy all the provisions of the old will, you just state I
executed a last will and testament last Nov. 1, 2010 that will
is already revoked or at that time I was insane or minor, but I
want to give effect to that will, so all the provisions of the old
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
will dated Nov. 1, 2010 are hereby reproduced and
republished. So you need not copy the provisions of the old
will. Although you have to have a copy of the old will to have
a reference. How would you know the contents of the first will
since you did not have to write it in your 2nd will. You can
annex it. You dont to re-execute everything. That is allowed if
the will is void but not as to form.
If for example, you really want to re-execute it? It is void but
not as to form? Is it valid? YES, there is no prohibition. But
what you cannot do is if the old will is void as to form and
then you just republish it by reference. That is not allowed. It
should be by republication.
Art. 836. The execution of a codicil referring to a previous
will has the effect of republishing the will as modified by the
codicil. (n)
Here, we have a codicil referring to a previous will. So the
scenario here is, there is a will and then after the will is made,
the testator made a codicil and then in the codicil he also
referred to the first will. Maybe in the codicil, he added some
dispositions or corrections and in that codicil he mentioned
that the provisions of the first will, insofar as are not
inconsistent with this codicil are still in full force and effect. It
made reference to the first will. What is the effect of this
referencing? That has the effect of republishing the first will.
Meaning, it is as if you re-executed the first will, but because,
like for example the will was made in 1990 and the codicil in
year 2015. So by making a codicil in year 2015, which made
reference to the will made in 1990 it is as if the 1990 will is
republished in year 2015, and it is as if the 1990 will is made
in 2015. So thats the new date of publication as republished
by the codicil.
One important consequence of this is in relation to Article 793.
Under 793, the legacy or devise does not include those
properties acquired after the execution of the will but before
the death of the testator. So only those properties existing at
the time of the execution of the will can be made part of the
legacy or devise. So after-acquired properties are not
included.
Also under 793, we discussed one exception, it is when the
testator expressly provides otherwise. When he mentions in a
will that if there is addition to his properties after the
execution of the will, those additional properties are also
included in the devise or legacy, so when the testator dies,
the devisee or the legatee can claim those additional
properties. So thats one exception.
The second exception is the one which we are discussing now,
under Art 836, where the will is republished by a codicil. For
example, in 1990, the testator made a will giving to A a 10-
hectare land, I hereby give to A my land in Calinan, Davao
City, the land has 10 hectares. Supposedly near 2005, there
is accretion which increased the area. It now became 12
hectares. Under 793, would this be included in the legacy or
devise? NO! The 2 hectares additional is considered as after-
acquired property. So it will not be included in the legacy or
devise. When the testator dies, he can only claim 10 hectares.
Ad Majorem Dei Gloriam
Unless the testator expressly provided in his will that the
additional properties are likewise included.
Second, under Art. 836, for example, in year 2015, the
testator made a codicil and in that codicil he reiterated the
provisions of his will made in 1990, I hereby give to A my
land in Calinan, Davao City, the land has 10 hectares. So in
2015, how many hectares are there? 12 hectares already
because of the accretion. And the codicil republished this will
in 2015. Upon the death of the testator, what can the devisee
claim? The 10 hecatares only or the 12 hectares? Because of
republication it is as if the 1990 will was made in 2015. So,
strictly speaking, we cannot call the 2 hectares as after-
acquired property. It is considered as an exception.
Art. 837. If after making a will, the testator makes a second
will expressly revoking the first, the revocation of the second
will does not revive the first will, which can be revived only
by another will or codicil. (739a)
Here, we have a first will and then the 1st will is expressly
revoked by a 2nd will. So we are talking here of revocation by
subsequent document or instrument. But the 2nd document
has revocatory clause, express revocation. If that 2nd will is
expressly revoked, the first will is not revivied. So that is the
PRINCIPLE OF INSTANTER. The first will is not revived.
Unlike that situation where the first will is just impliedly
revoked by a 2nd will. If that 2nd will is itself revoked, what will
happen to the first will? It is now revived. So that is the
concept of REVIVAL. We discussed republication, diba?
What is revival? It is the re-establishment of validity by
operation of law of a previously revoked will. The concepts of
republication and revival are more or less similar because
there is a first will and then it is not valid but the 1st will is
again, given effect.
In republication, the will is re-established to validity by the
testator.
In revival, the will, which is no longer valid, is revalid by law.
It is giving effect again to an otherwise void will.
The difference there is that revival is the act of law, while
republication is the act of the testator. So those are the
similarities and the distinctions.
Again, Article 837 is the Principle of Instanter. Take note that
in 1st will is expressly revoked by the 2nd will.
In revival, the 1st will is just impliedly revoked by the 2nd will
and then if the 2nd will is revoked, then the 1st will is revived.
So thats the example of revival.
Another example of revival would be, diba I mentioned to you
the concept of preterition. So if there is preterition, the will is
annulled, but assuming that the preterited or omitted heir dies
ahead of the testator, and the preterited heir has no heirs of
his own, has no representatives, then in that case the will is
revived. I dont know if you understand, maybe we can
understand that when we go to preterition. But again, that is
an example of revival.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
So, we now go to probate.
Subsection 8. - Allowance and
Disallowance of Wills
Art. 838. No will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules
of Court.
The testator himself may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In such
case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of
Court as may be necessary for the allowance of wills on
petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his death,
shall be conclusive as to its due execution.
So, Article 838 provides that the will has to be probated. No
will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court. So
this is the process of probate.
LASAM VS. UMENGAN
GR 168156, Dec. 2006
As just discussed what is probate, to probate a will means to
prove before some officer or tribunal, vested by law with
authority for that purpose, that the instrument offered to be
proved is the last will and testament of the deceased person
whose testamentary act it is alleged to be, and that it has
been executed, attested and published as required by law,
and that the testator was of sound and disposing mind. It is
a proceeding to establish the validity of the will.
So based on Article 838, probate is mandatory. In this case,
there was an unlawful detainer case filed, and ejectment
case. Lasam here filed a complaint for ejectment against
Vicenta Umengan who was occupying the property but then
Umengan said the she was occupying the property not
because of tolerance or any contract of lease with Rosendo
Lasam but because her children inherited the property by
intestate succession from the deceased Pedro Cantupay. So
that was their defense. However, Lasam there presented a
copy of a last will and testament allegedly executed by Isabel
Cantupay, the wife of Pedro. So in that will, the land was
devised to Rosendo Lasam, so he said he was entitled to the
land. The will was not yet probated at the time but the RTC
ruled in favor of Lasam on the basis of that last will and
testament. And the court just mentioned that since probate
does not prescribe, this ruling is without prejudice to the
probate of the will. The question is, was the court correct in
relying upon the last will and testament as basis in saying
that Lasam had a right over the property? Because the court
also said here that testacy is favored over intestacy. We have
Ad Majorem Dei Gloriam
a will, in the will, Lasam was instituted or given a property
and while the defendant is relying upon legal succession or
intestate succession, so we give effect or favor testacy.
The SC said that the RTC committed an error in relying upon
the will because we should note that the will was not yet
probated, so it is basic that no will shall pass either real or
personal property unless it is proved and allowed in
accordance with the Rules of Court. And an unprobated will
cannot be a basis of any right, it cannot be used as a
foundation. Until admitted to probate, it has no effect
whatever and no right can be claimed thereunder, the law
being quite explicit.
VDA. DE KILAYKO VS. JUDGE TENGCO. (GR NO. L-
45425)
So that is one characteristic of probate proceeding, it is
mandatory. If you have a will, if it is not probated you cannot
use it as basis or foundation of your claim. That was
discussed in this case.
Next is, probate is required by public policy. As discussed also
in the case of Lasam vs. Umengan.
MANINANG vs. COURT OF APPEALS
(114 S 478)
The law enjoins the probate of the Will and public policy
requires it, because unless the Will is probated and notice
thereof given to the whole world, the right of a person to
dispose of his property by Will may be rendered nugatory.
What is the reason why is it required for us to undergo the
process of probate when there is already a document?
Because even if there is a document purporting to be the last
will and testament of Juan Dela Cruz for example, but they
are not sure if it is really his last will and testament.
What if you just distributed properties in accordance with
that document when in truth and in fact he did not execute
the will? So his desire was just to distribute among his legal
heirs? So without probating the will, we did not comply with
the real wishes of the testator, we defeated his intentions.
So thats when his right to dispose of his properties was
rendered nugatory because we did not probate the will. We
did not make sure if that was really his intention.
August 20 (FJB)
Last meeting, we discussed probate under article 838. As we
already discussed, an un-probated will cannot be used as a
foundation of any right or claim. Probate is mandatory. It is
required by public policy because unless the will is probated,
the right of a person to dispose of his property mortis causa
may also be rendered nugatory. That is why probate is
mandatory.
Mercado v. Santos
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
As mentioned by the Supreme Court in this case as in other
cases, probate is a proceeding in rem. When you say that it
is a proceeding in rem, it is binding against the whole world.
You cannot say that you were not able to participate in the
proceeding or that you are not bound. That is not correct. It
is distinguished from an action in personam where you have
to be a participant to be bound.
Here, the decree of the probate court, once entered, is
binding against the world. The minimum requirement here is
just publication. You have to publish the notice of the court
setting the case for hearing unless it is the testator himself
who filed the petition. That is not required to be published.
In post mortem probate, it is publication that serves as
notice to the whole world. It is jurisdictional. If the notice is
not published, the whole proceeding is null and void.
Alsua-Betts v. CA
The Supreme Court said that the principle of estoppel is not
applicable in probate proceedings. You cannot say that the
parties are already estopped from filing the petition for
probate.
For example, we have the heirs and we have a last will and
testament but the heirs did not probate the last will and
testament. Instead, they entered into an extrajudicial
partition. They partitioned the property among themselves.
Later on, one of them who was a participant in the
extrajudicial partition, filed a petition for probate even if he
already received shares from the extrajudicial partition.
Can he be said to be already in estoppel because he already
participated in the extrajudicial partition and, therefore, he
cannot subsequently impugn the extrajudicial partition and
petition the court for the probate of the will?
No, he cannot be said to be in estoppel. There is no estoppel
in probate proceeding. The principle of estoppel will not
apply here. That is the basic principle.
In Re: Pilapil
The Supreme Court said that the right to ask for probate
does not prescribe. There is no prescriptive period within
which to institute a probate proceeding. Even if the decedent
or the testator died a hundred years before, still, probate can
be availed of.
Just remember that once the petition is filed, you are already
bound by the reglementary periods under the rules of court.
For example, you filed a petition for probate and then the
court disallowed the probate, so you have a period within
which to appeal. What if you did not file an appeal? You just
waited for two years, then afterwards, you filed another
petition for probate. The rule is that the right to ask for
probate does not prescribe. Are you allowed to refile the
petition? No, because once you have filed, you have to avail
of all the possible remedies under the rules of court, and you
are already bound by the reglementary periods.
Ad Majorem Dei Gloriam
Dela Rosa v. Archangel
The Supreme Court clarified that there is no action for an
annulment of a will. You are not allowed to institute an
action for the annulment of the will.
What if you do not agree to the contents of the will? Your
remedy is to oppose the probate.
What if nobody files a petition of the probate of the will?
I think I already mentioned a case I handled wherein nobody
filed a petition for the probate of the will. Not even the person
appointed as executor instituted the probate proceeding.
Maybe he was scared that there will be a disallowance
because the will may be defective. He was threatening his co-
heirs that they are disinherited in the will. Nevertheless, he
was willing to give them a little because he pity them. What
we did was we just delivered to the court a copy of the will
because, as discussed in the case of Rodriguez v. Borja, under
rule 76 of the rules of court, the court acquires jurisdiction
once a copy of the will is delivered to the court or a petition
for probate is instituted.
So, once the court receives a copy of the will, it shall set the
time, date, and place for hearing. The persons who want to
oppose may present their opposition. So, you do not have to
wait for the will to be probated. You can deliver a copy of the
will to the court.
Dela Rosa v. Archangel
Also, if there is a petition for probate, you can file an
opposition. There is no such thing as annulment of probate
of the will.
Who may be allowed to intervene in probate proceedings?
LEVISTE V. CA
How did Atty. Leviste intervened in the case?He filed a
motion to intervene in the case to claim for his professional
services as counsel but this was denied by the court.
That was before the court disallowed the will, but after the
disallowance, what did Atty. Leviste do?He appealed to the
ca the disallowance of the will.
What was his reason?He cited article 1052 which says that
he has a right to protect his interest in the case.
Issue: WON he can appeal the disallowance of the will.
WON he is the proper party to appeal the disallowance.
How about his contention that he is a creditor of Del
Rosario?
How about the status of del Rosario as an heir?
What does 1052 presuppose?
Who was supposedly liable? Del Rosario, but del Rosario is
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
not an heir, therefore, 1052 does not apply.
Here, did Atty. Leviste have personality to participate? No.
What would it take for one to be allowed to intervene or
participate in probate proceedings? What is required?He
must have a direct interest in the case. Strangers are not
allowed to participate in probate proceedings.
What is the reason for the rule?
Even if they know the circumstances when the will was
executed, they cannot be participant or intervenors but they
can be witnesses. They cannot be oppositors because they
do not have a direct interest in the proceedings. To have a
direct interest means that they should be directly affected by
the result of the proceedings, either they will be benefitted
or they will be adversely affected or injured. In this case,
Atty. Leviste was not considered as a person who has a
direct interest in the proceeding.
Maloles v. Philips
This is involving testamentary succession, there is a will and
then a nephew intervened in the probate proceeding.
Can a nephew participate in a probate proceeding? Is he an
interested party? The Supreme Court said no because a
nephew is not a compulsory heir.
Take note that in testamentary succession, the testator can
even exclude his brothers, sisters, uncles, aunts, nephews,
and nieces because they are just legal heirs. If there is no
will, they are considered as proper parties. They have
personalities only if they are not excluded also by the
presence of other relatives like the children and ascendants.
In that case, they are allowed only if there are no other
relatives. But in testamentary succession, they are not
compulsory heirs, so, according to the Supreme Court, they
are not proper parties to intervene,
We already discussed before the rules in probate of
holographic wills. If the will is not contested, at least one
witness who can explicitly identify the handwriting and the
signature of the decedent is required. If the will is contested,
atleast three of such witnesses is required.
AZAOLA v. SINGSON
As discussed in this case, we know whether or not a witness
is mandatory in the probate proceedings.
From 2014 TSN: In the case of, the presentations of expert
witnesses are permissive, not really mandatory. During the
execution of holographic wills, there were no witnesses, so it
is really possible that during the probate of the holographic
will, there were no such witnesses who know the handwriting
of the testator. So, it was not mandatory to present expert
witnesses. Take note that in the execution of the holographic
will, no witnesses are required. When you require 3
witnesses, you are requiring not merely 3 witnesses but 3
witnesses who can explicitly declare that signature or
handwriting is really that of the testator and sometimes it is
Ad Majorem Dei Gloriam
just close to impossible. Because you cannot just find that
witnesses.
In our discussion, we also clarified when a will is considered
as contested.
Rivera v. IAC
The oppositor there was proved to be not the illegitimate son
of the testator, so even if he contested the probate, there
was no contest in the legal sense because the one who
opposed has no personality to intervene in the proceeding.
Therefore, the presentation of three witnesses in thatcase is
not required.
As to probate of notarial wills, you also have rule 76 of the
rules of court. If the will is not contested, then the testimony
of one subscribing witness is sufficient. If the will is contested,
all the subscribing witnesses and the notary public must
testify. If they are insane, dead, absent in the Philippines, or
they testify against the due execution of the will, or they are
of doubtful credibility, or they do not remember the contents
of the will, then the testimony of all the witnesses is required.
We have two kinds of probate:
Ante mortem probate It is the testator himself
who petitions the court for the probate of his will.
Post-mortem probate It is the interested party
who files the petition for probate. It can be filed by
any interested party whether the executor,
administrators, any one of the heirs, or creditors.
There are two phases in probate proceedings:
Probate proper In this phase, the court looks into
the extrinsic validity of the will.
Distribution phase In the second phase, after
the will is allowed probate, then they go to the
distribution [of properties] in accordance to the will.
The court now looks into the intrinsic validity of the
will.
We go now to the probate proper. During probate, what are
the matters discussed and resolved by the probate court?
Matters pertaining to the extrinsic validity of the will. What are
these matters specifically?
1. Question of identity whether the will presented
is the same will executed by the testator;
2. Question of testamentary capacity whether
the testator had testamentary capacity at the time he
executed the will; and,
3. Question of due execution whether the testator
executed the will voluntarily. He was not coerced.
There was no fraud, mistake, or violence. Whether
he understood what he executed.
Those are the three matters pertaining to the extrinsic validity
of the will that are discussed during probate proper.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
What is the consequence of this? During probate:
You cannot raise questions relating to filiation as a
general rule. You cannot say that the testator is
disqualified to give to the mistress.
So, the qualifications of the heirs or their capacity to
succeed are not discussed during probate proper.
Whether or not there is impairment of the legitimes
is not discussed during probate proper.
Whether or not the testator owns the property
included in the will [is likewise not discussed during
probate proper].
These are matters pertaining to the intrinsic validity of the
will. They are discussed during the distribution but not during
probate proper. This was discussed in several cases.
MAGALLANES V. KAYANAN
What was the ruling of the probate court with respect to the
codicil?
What is the status of the title? Null and void.
What did the probate court order the ROD?To transfer the
testatrixs title to the Kayanans.
Wat is the issue in this case? Whether or not the probate
court has jurisdiction to declare as null and void the certificate
of title.
Ruling: No
If there is a property sought to be included in the proceeding,
what is the proper remedy?[The courts jurisdiction extends]
only to determine whether it is to be included or excluded in
the inventory.
But what if there is an issue as to ownership?There must be a
separate action filed with the regular courts to resolve the
issue of ownership. For example, the properties are under the
name of the testator. The presumption is that these properties
are owned by the testator. So, the court will have to order the
inclusion of these properties in the inventory. If third parties
claim that these properties are actually owned by them, then
they have to file a separate action in another proceeding in
the regular courts to litigate the issue on ownership.
Or, another example, like in this case, the executor said that
these properties are to be included but in the title the
properties are not in the name of the testator. The court
should exclude the properties from the inventory. Should the
executor insist that these properties are owned by the
testator, he should file a separate case for the recovery of
those properties alleged to be part of the estate. Again, this is
because the probate court does not dwell into matters
pertaining to the intrinsic validity of a will. Ownership pertains
to the intrinsic validity of the will.
Also, under your land titles and deeds, if you have a title and
you are alleging that it is null and void, what is the principle
there? A certificate of title is not subject to collateral attack. In
this particular case of Kayanan, is that a collateral attack or a
Ad Majorem Dei Gloriam
direct attack? Collateral attack. The main action in this case is
for the probate of the will. So, you have to file a separate
petition for the cancellation of title which is a direct action.
That is more reason why the probate court should not rule on
the validity of titles.
CHING V. RODRIGUEZ
In relation to our topic, what is the issue in this case? WON
the case should be resolved in a special proceeding and not in
an ordinary civil action.
What was the nature of the action filed here? Complaint for
disinheritance, waiver, and extra-judicial settlement.
Is this case a special proceeding or an ordinary civil action?
How do you distinguish them as their nature? As defined in
the rules of court, a special proceeding is a remedy by which a
party seeks to establish a status, a right, or a particular fact.
For example, probate of wills when you seek to establish the
status of the testator, adoption when you seek to establish
the status of a person as an adopted child, correction of
entries in the civil register, habeas corpus, etc.
What is a civil action? [It is] when you sue for the
enforcement of or protection of a right, or the prevention or
redress of a wrong. When you committed a wrong or a
violation was committed against you, so you file a civil action
in court for relief.
In a special proceeding, you do not have an adverse party. In
a civil action, you have a specific opponent.
In this case, is this a special proceeding or an ordinary civil
action? Ordinary civil action.
In the first place, why was this issue brought up? Because
there was a prayer for disinheritance.
What did the Supreme Court say about this?
Remember, in special proceedings, the court can only discuss
the three matters pertaining to the intrinsic validity of a will.
So, how can it be a special proceeding if, in the first place,
there was no will presented? Therefore, it is was not a special
proceeding but merely an ordinary action for recovery of
ownership to the property.
Let us go to the exceptions. Again, the general rule is that
only matters pertaining to the extrinsic validity are resolved in
the probate proceeding. Meaning, only questions of identity,
testamentary capacity, and due execution. What are the
exceptions? When can the probate court determine issues
pertaining to the intrinsic validity of the will?
CAYETANO V. LEONIDAS
What is the alleged issue on the intrinsic validity of the will?
We discussed before in article 16 the matters pertaining to the
extrinsic validity of the will. What law governs the intrinsic
validity of the will? The national law of the decedent. So, to
determine whether or not the will is intrinsically valid, we have
to look at the national law of the decedent. But again, in a
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
probate proceeding, the court is limited to matters pertaining
to the extrinsic validity of the will. So, why should we, in the
first place, examine the national law of the decedent when it
is a matter pertaining to the intrinsic validity of the will? What
is the ruling of the SC?
What is the specific term used if a compulsory heir, for
example a child, is deprived of his legitime? Preterition.
Whether or not there is preterition is a matter pertaining to
the intrinsic validity of a will. Why should the probate court
resolve that even if that is a matter pertaining to the intrinsic
validity of a will? Why would it be practical to resolve the issue
of preterition even during probate proper? [It is] because
when there is preterition, the institution of heirs will be
allowed. So, even if the will is validin form, still the will cannot
be given effect [due to preterition]. We will just be wasting
the time, resources, and efforts of the court and the parties in
going through these questions pertaining to the extrinsic
validity of wills if, after twenty years of probate, you will say
that the will is valid but sorry it cannot be given effect
because there is preterition. That would be a waste of time.
So, if preterition is alleged, it would be more practical to meet
the issue to determine if there is sense in going through the
process.
Preterition was evident in the face of the will, so it has to be
resolved.
But not in all cases where preterition is alleged that the court
will resolve the issue during probate proper. For example,the
issue is whether or not it is preterition or disinheritance, you
still have to resolve the extrinsic issues of identity,
testamentary capacity, and due execution. Meaning, you have
to resolve the extrinsic validities of a will because if
disinheritance is alleged, you first have to determine whether
the will is extrinsically valid. Even if preterition is alleged but
there are legacies and devises also mentioned in the will, the
institution of heirs is allowed but the legacies and devises,
insofar as they are not inofficious, meaning it will not impair
the legitime of the heirs, will be given effect. A legacy or
devise cannot be given effect without going over the extrinsic
validity of a will, so even if preterition is alleged, you do not
skip the probate proper. You still have to determine the
extrinsic validity of the will.
In other cases, the probate court resolves the issue on
ownership, which is a question pertaining to the intrinsic
validity of a will during probate proper. If the question of
ownership is for the purpose of determining whether or not
the property should be included or excluded in the inventory,
the court may determine the question of ownership. Again,
going back to the case of:
Rivera v. IAC
On the question of filiation, which is a matter pertaining to
the intrinsic validity of a will, in this case, the court has to
determine the issue during probate proper so as to know if
the person opposing the probate has personality to oppose
the proceeding.
Ad Majorem Dei Gloriam
In most cases where the court decides to resolve the intrinsic
validity of the will, the ruling of the probate court on this
aspect would not be final and would not constitute res
judicata. So, even if the court says that this property should
be included in the inventorybecause the title is in the name of
the testator, such is not a final determination as to the
ownership of the property. For all we know, even if the title is
in his name, he may have sold the property before. So, the
question of ownership can be threshed out in a separate
proceeding. That decision of the court to include the property
in the inventory is not a final determination and does not
constitute res judicata. That ruling is merely provisional. The
issue on ownership can still be threshed out in another
proceeding to determine ownership.
Again, these are provisions relating to the exercise of the
probate court of its jurisdiction. The jurisdiction of the probate
court is what we call as limited jurisdiction, involving those
three matters pertaining to the extrinsic validity of the will. If
the court, in the meantime, goes beyond its jurisdiction to
resolve those matters pertaining to the intrinsic validity of a
will, these are not final. These would not constitute res
judicata. These are merely provisional. These are just
exceptions to the general rule. But as to the matters
pertaining to the extrinsic validity of the will, the decree of the
court will constitute res judicata. What happened in the case
of Mercado v. Santos?
MERCADO V. SANTOS
What is the effect of the decree of the probate court?It
establishes an incontrovertible or conclusive presumption as to
the due execution of the will.
What would happen if for example a criminal case for perjury
would be allowed to prosper?
Why did the court not allow the criminal prosecution for
perjury?
When you say that the decree of the probate court is a
conclusive presumption as to the due execution of the will, it
means that it is already settled that the will was executed by
the testator. If you allow the criminal prosecution for perjury
to prosper, you will be disturbing the final, executory, and
conclusive decree of the probate court as to its execution.
That would not be allowed. The decree of the probate court is
conclusive as to the three extrinsic matters of identity,
testamentary capacity, and due execution of the will and
constitutes res judicata.
Sept. 3, 2015 (ZM)
Art. 839. The will shall be disallowed in any of the following
cases:
(1) If the formalities required by law have not been complied
with;
(2) If the testator was insane, or otherwise mentally incapable
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

of making a will, at the time of its execution;

In both cases, we presupposed that there is a will but by
(3) If it was executed through force or under duress, or the reason of revocation or disallowance, the will is declared null
influence of fear, or threats; and void and cannot be given effect.
(4) If it was procured by undue and improper pressure and
it is the voluntary act of the It is by means of a judicial
influence, on the part of the beneficiary or of some other
testator. It is his act of decree. It is the court that
person;
terminating the capacity of issues an order denying the
(5) If the signature of the testator was procured by fraud; his will to operate at the time probate.
of his death.
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing
It can be done by the It is only based on the
his signature thereto. (n)
testator with or without a grounds mentioned under
cause. article 839.
Under article 839, we have the grounds for the disallowance
of wills. So the wills mentioned under 839 are void wills
May be partial or total; not As a general rule, it is total.
because of the grounds mentioned.
necessarily complete Except when fraud or undue
1. The formalities required had not been especially when the influence affects only certain
complied with. So the forms required by law revocation affects only parts of the will
for notarial and holographic wills. certain provisions of the will.
2. If he was not of sound mind so he was insane
Done during the lifetime of Usually invoked after the
or incapable of making then will. So
the testator testators death.
testamentary incapacity.
3. If there was force or was under duress or
influence of fear or threats. So his consent
Ortega vs. Balmonte
was vitiated. The same with numbers 4, 5 and
GR. No. 157451 December 16, 2005
6. His consent was vitiated.
Here, Placido was the testator. He came home to stay in the
The grounds mentioned are EXCLUSIVE. There are no other
Philippines where he lived in a house which he owned in
grounds to disallow a will except perhaps for another ground,
common with his sister. Two years after his arrival from the
REVOCATION. Because if the will has been revoked even if
united states, at the age of 80, he married Josephina who was
the will complied with all the formalities and the testator had
then 28 years old. He executed a last will and testament
testamentary capacity, even if he executed the will freely and
written in English. In the will, he gave to his wife all of his
voluntarily and not with vitiated consent, but if you revoke the
properties. So the probate of the will was opposed by his
will, the will is now void and it will be disallowed if it is proved
sister on the ground that the will was not executed and
that the will presented for probate has already been revoked.
attested as required by law, that the will was executed under
As so what is force, fear, force, threat, fraud, you discussed duress of the influence of fear or there was undue or
that under your obligations and contracts, vices of consent, improper pressure or influence and there was fraud and he
those are the same concepts. did not intend that the instrument should be his will at the
time he affixed his signature.
So when you say force, duress, fear or threat, these would
connote the idea of coercion whether mental or physical. The sister alleged that it was highly dubious for a woman at a
young age to plunge into a marriage with a man who was
Undue influence when a person takes unfair advantage of thrice her age and who happened to be a Fil-American
his power over the will of another, depriving the latter of a pensionado. According to her, it defies human reason, logic
reasonable freedom of choice. and experience for an old man with a severe psychological
Fraud is the use of insidious words or machinations to condition to really have signed the last will and testament.
convince a person to do what ordinarily he would not have Under this circumstances, the sister alleged that there was
done. fraud, undue influence etc.

In your oblicon, the presence of vitiated consent will render
the contract voidable. So the contract is valid but can be
annulled. But if these vices of consent are present at the time
of the execution of the will, the will is void. It is not voidable
but void so it can be disallowed because of the presence of
vitiated consent.
Revocation Disallowance
The SC said that fraud is a trick, secret, device, false
statement or pretense by which the subject is instituted. It
may be of such character that the testator is misled or
deceived as to the contents of the document which he
executes, or it may related to some extrinsic fact in
consequence of the deception regarding which the testator is
led to make a certain will, which but for the fraud, he would
not have made. The party who alleges fraud has the burden
of proof that the fraud existed during the executed of the will.

Ad Majorem Dei Gloriam

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
So the allegations of the sister here were not sufficient to
prove fraud because aside from her allegations, that because
of the age of the testator and the wife, there is already fraud.
Gi insulto jud niya iyang igsuon.
The fact that the relatives were omitted in the will, it is a
settled doctrine that the omission of some relatives does not
affect the due execution of the will. That the testator was
made into signing the will does not sufficiently establish fraud
by the fact that he instituted his wife who is more than 50 yrs.
of his age as the sole beneficiary, and disregarded his sister
and his family who has taken care of the testator in his
twilight years.
So, the omission of some relatives is not an indication of fraud
because as long as they are not compulsory heirs, you are not
obliged to institute them as heirs. If you only have the
brothers and sisters, you can give all your properties to some
other person. You can entirely deprive them because again,
they are not compulsory heirs.
As to the allegation that there was a defect in the will because
the dates did not coincide with the will. The SC said that it is
not enough to invalidate the will because the dates are not
important in notarial wills so the facts that there were
differences in the dates that will not matter. in fact, a will can
be acknowledged before the notary public on separate dates.
They are not required to be acknowledged on the same date.
The will can also be executed on a date different from the
date of acknowledgement. So I execute ninyo tanan, the
testator and the witness then two days after ni adto si testator
sa notary public nag acknowledge siya then five days later ni
adto and isa ka witness then so on and so forth. So it does
not matter or important to the validity of the will.
SECTION 2. Institution of Heir
Art. 840. Institution of heir is an act by virtue of which a
testator designates in his will the person or persons who are
to succeed him in his property and transmissible rights and
obligations. (n)
This is the concept of institution of heirs. Here, the testator
designated in the will the person or persons who are to
succeed him this is a kind of direct disposition. When you
institute heirs you are giving your properties to the persons
named in the will.
First, when we say institution of heirs, we already discussed
the distinction of heirs and legatees and devises.
So when we say institution of heirs we are referring to the
heirs. The ones who are given the entirety of the estate or
universality of the estate or an aliquot, fraction, ideal or
spiritual share in the estate, these are the ones instituted as
heirs
The institution of heirs that we will discuss is different from
legatees and devises. That would be in another chapter.
Ad Majorem Dei Gloriam
Although some provisions here can also be applied to legatees
and devises.
Characteristics of an instituted heir:
Here, the instituted heir is the testamentary heir and
the voluntary heir, the one that is given a free
portion of the estate. We are not referring to the
compulsory heirs because we dont need to institute
the compulsory heirs to their legitimes and even if
they are not mentioned, they are entitled. We are
referring to the free portion. We are also to
distinguish this from legal heirs because legal heirs
are the ones who inherit when there is intestacy.
Institution of heirs is during testacy or testate
succession.
The instituted heir continues the personality of the
testator; he steps into the shoes of the testator but
he is not personally liable for the debts of the
testator. Meaning if there are obligations, his liability
is only up to the value of his inheritance and he
cannot be compelled to pay more than his
inheritance.
An instituted heir is a natural person. A juridical
person can be instituted if the latter is allowed under
its charter to succeed. If ot is a natural person, he
must have juridical capacity as distinguished from
capacity to act.
When you say juridical capacity, the capacity to be
the subject of legal relations while capacity to act is
the capacity to act into acts with legal effects. A
person who is just 1 year old has juridical capacity
but does not have the capacity to act because he
cannot enter into contracts; he cannot do acts with
legal effects. One who is 20 years old, he has
juridical capacity and capacity to act because he is of
legal age. In fact, 18 is the age of majority.
But an instituted heir needs only juridical
capacity, he need not have capacity to act although
we have to comply with the requirements of articles
40 and 41 as to when is there juridical capacity or
when does a person attain civil personality.
Art. 40. Birth determines personality; but the
conceived child shall be considered born for all
purposes that are favorable to it, provided it be born
later with the conditions specified in the following
article. (29a)
Art. 41. For civil purposes, the fetus is considered
born if it is alive at the time it is completely delivered
from the mother's 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 hours
after its complete delivery from the maternal
womb. (30a)
So a natural person can be instituted as an heir. How
about an unborn child? Can that be instituted? That
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
depends if that conceived child attains civil
personality. If he has an intra-uterine life of 7
months, the only requirement for that fetus to attain
civil personality is he should be born alive because
birth determines personality. Meaning, pag gawas
niya, buhi siya but what if he died after 2 minutes?
Did he attain civil personality? If he was given an
inheritance, did he inherit? Yes because he had an
intra-uterine life of at least 7 months as long as he
was born alive. So basta ang intra-uterine life kay at
least 7 months dapat maanak siya nga buhi. Bahala
nag mamatay siya 1 hour after.
But if he had an intra-uterine life of less than 7
months, he must live for at least 24 hours for him to
acquire civil personality. So halimbawa 6 months lang
siya sa tiyan unya gi anak siya ug buhi siya, that is
not enough. He must live for at least 24 hours. Kung
namatay siya after 23 hours and he was given an
inheritance because he did not attain civil
personality, he did not inherit.
What is the significance of determining whether the
child has civil personality?
Example, there is a pregnant mother and then the
grandfather donated a certain property to his unborn
grandson. And then the fetus did not reach seven
months so premature. Nanganak iyang mama and
then the fetus died after 6 hours. So he did not
attain civil personality. What happens to this
donation? As if wala siya naadto kay fetus because
dili siya valid and because wala siyay civil personality.
How about if he had attained 8 months and then he
was born and lived only 2 hours but prior to that the
grandfather made a donation. So in that case valid
and donation.
For example the father instituted his unborn child, so
when we say instituted, we are referring to the free
portion although the legitime, no need for institution.
So the father gave that to his son so 6 months
palang and then gi anak, namatay after 3 hours. So
he did not acquire civil personality. So the fetus did
not inherit from his father.
The father gave a parcel of land to his unborn child
and then the father died. Gianak ang bata after 2
hours (6 months lang siya sa tiyan) namatay pud
iyang mother. So in that example, what happens to
the property na gikan sa father? When the father
died the supposed inheritance of the fetus did not
materialize because the fetus did not attain civil
personality so he did not receive the property
therefore when the mother subsequently died, this
property did not go to the mother. Again, dili valid
ang inheritance. It remained in the estate of the
father. Kinsay mag inherit ani? Pwede si mother apil
sa mga legal heirs pero apil pud ang mga igsuon.
If this fetus attained civil personality, so 8 months
siya. the father previously instituted the fetus, he
Ad Majorem Dei Gloriam
died but then the fetus also died but he was 8
months so he acquired civil personality so the
property was inherited by the fetus even for just 2
hours. When the fetus dies acquiring civil personality
so he was able to get his property as part of his
estate, so when the fetus died, the property was
inherited by his mother. So when the mother died,
and mag inherit ani, iyaha ng mga relatives unlike
atong wala siyay civil personality maadto siya sa
relatives of the father although pwede siya maka
share pero dili sa iyaha ang tanan. So that is the
difference between attaining civil personality and not
acquiring it.
You have to remember that consequence because it
can also apply when you go to article 891 on reserva
troncal.
The instituted heir acquires rights limited to the
disposable portion. And they cannot impair the
legitime. So even if the testator is allowed to institute
heirs and as I have said, the institution covers the
free portion, that is not without limitation. He can
only institute up to the extent of the free portion
because if he exceeds he would be affecting the
legitimes of the compulsory heirs and that will not be
allowed by law. The compulsory heirs are assured by
law of their legitimes.
In institution there is presumption of equality. If
several persons have been instituted without
designation as to their specific shares, the
presumption is that they have been instituted in
equal shares
REQUISITES FOR VALID INSTITUTION OF HEIRS
1. The will must be extrinsically valid. The institution
can only happen in testamentary succession and
testamentary succession cannot happen without a will so
without a valid will, the institution of heirs cannot be
given effect.
2. The institution must also be intrinsically valid. As
to the content, the instituted heir must be identifiable, if
magbutang ka dirag heir unya di siya identifiable dili
gihapon mahatagan ug effect and institution.
There must be no impairment of the legitime. Even if you
made some institution of the heirs but the legitime of the
compulsory heirs are affected, then the entire institution
cannot be given effect. Pwede mabawasan ang imong
gihatag sa instituted heirs.
There must be no preterition (article 854) because if
there is preterition the law says that the institution of
heirs shall be annulled. So kung naay preterition,
mabalewala gihapon and institution of heirs even if the
will is valid
3. The institution must be effective. The instituted heir
should not predecease, should not be incapacitated and
should not be disqualified. Because even if the will is
extrinsically valid, even if the institution is intrinsically
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
valid, but the instituted heir dies ahead of the testator,
then you cannot give that to him because the premise
here is that you are an heir, you are the survivor so you
cannot die ahead of the testator or even if you did not die
ahead but you repudiated so di gihapon ka makadawat or
you were disqualified to inherit.
Art. 841. A will shall be valid even though it should not
contain an institution of an heir, or such institution should not
comprise the entire estate, and even though the person so
instituted should not accept the inheritance or should be
incapacitated to succeed.
In such cases the testamentary dispositions made in
accordance with law shall be complied with and the remainder
of the estate shall pass to the legal heirs. (764)
The law says a will shall be valid even though it should not
contain an institution of an heir. So bisag diay wala kay
gihatagan sa imong property and you made a will valid
gihapon na siya.
what is an example of a will that does not contain the
institution of heirs? A will containing only disinheritance. That
is still valid even if there is no institution of heirs.
Or if the institution does not comprise the entire estate. So I
hereby institute A to 1/3 of my hereditary estate. So ang 2/3 it
will go by intestacy to the legal heirs. And 1/3 maadto kang
instituted heir. So this is a case of mixed succession.
Even if the person so instituted does not accept the
inheritance or should be incapacitated, I hereby institute as
heir to my entire estate. If A repudiates or becomes
incapacitated or he was disqualified to inherit, the properties
will go by way of intestacy. But what would be the
significance? Nganong mu-ingon man ta na the will is valid
even if the instituted heir becomes incapacitated or
repudiates, assuming that is the xxx. Previously, the testator
executed a will giving to B all his properties and then later on
he changed his mind and made a will giving to A all his
properties. So ang mahitabo the second will has revoked the
first will because their provisions are incompatible. What if A
repudiates his inheritance? The revocation of the first will still
stands because even if A repudiates or becomes incapacitated
the will itself where A was instituted remains valid. So there is
still an effect, it still revoked the first will. That is the
doctrine of absolute revocation.
In such cases, the testamentary dispositions may in
accordance with law shall be complied with and the remainder
of the estate shall pass to the legal heirs. So in my kast
example A repudiated his inheritance so we cannot give to A
because he repudiated and we cannot give the one first
instituted because his institution was already revoked then the
estate shall go by way of intestacy to his legal heirs.
Art. 842. One who has no compulsory heirs may dispose by
will of all his estate or any part of it in favor of any person
having capacity to succeed.
Ad Majorem Dei Gloriam
One who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this Code
with regard to the legitime of said heirs.(763a)
So freedom of disposition. If you have no compulsory heirs
you can give your entire properties to anybody as long as
that person is not disqualified. So even if you have brothers
and sisters, aunts and uncles, nephews and nieces, they are
not compulsory heirs. The compulsory heirs are the legitimate
children or descendants or in their absence the legitimate
parents or ascendants, the surviving spouse and the
illegitimate children. So in the absence of these persons you
can give your properties to anyone, you have no obligation to
give to your legal heirs.
If you have compulsory heirs then the freedom to dispose is
limited only to the free portion so you have to respect the
legitimes of your compulsory heirs. For example you have
children, under the law they are entitled to of the net
hereditary estate. So the other half is free. So you can
institute heirs in the free portion but you have to comply with
the legitimes.
Art. 843. The testator shall designate the heir by his name
and surname, and when there are two persons having the
same names, he shall indicate some circumstance by which
the instituted heir may be known.
Even though the testator may have omitted the name of the
heir, should he designate him in such manner that there can
be no doubt as to who has been instituted, the institution
shall be valid. (772)
Again because one requisite for a valid institution is that the
institution should be intrinsically valid one of which is that the
instituted heir should be identifiable or can be ascertained. So
you should describe the heir. Ideally, by name or surname.
Kung halimbawa, pangalan lang as long as he can be
identified by description. my most beautiful aunt kung ma
identify then pwede. Or kung nickname lang baboy
halimbawa mao ng term of endearment niya so siya to.
Under this provision we can also use the rules which we
discussed in article 789 katong extrinsic or intrinsic ambiguity
and those provisions relating to the interpretation of wills.
Art. 844. An error in the name, surname, or circumstances of
the heir shall not vitiate the institution when it is possible, in
any other manner, to know with certainty the person
instituted.
If among persons having the same names and surnames,
there is a similarity of circumstances in such a way that, even
with the use of the other proof, the person instituted cannot
be identified, none of them shall be an heir. (773a)
Errors in the name, surname or circumstances shall not vitiate
an institution.
Example:
To my pretty niece Juana and it turns out that Juana is not
pretty but it will not vitiate the institution because the
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
underlying reason for the institution is the affection liberality
generosity of the testator. It is not a condition precedent for
juana to inherit that she should be pretty its just a description.
my adopted child Ramon and it turns out that ramon is not
legally adopted. Well it is just a description when it turns out
to be erroneous then Ramon can still inherit.
If there is a similarity of circumstances, you should be able to
identify by means of proof. For example you cannot identify
who is being instituted. my pretty niece juana unya duha
sila ka Juana unya mga gwapa pud sila. So kinsa man sa ilang
duha? If you can find any other proof to identify then use the
rules that we discussed. But what if di jud niya ma-identify
masking unsaon. Tunga-on na nila? NO, because the intention
is to give it only to one. So here if the heir cannot be
identified then none of them shall be an heir as mentioned in
the last sentence of the article 844.
Art. 845. Every disposition in favor of an unknown person
shall be void, unless by some event or circumstance his
identity becomes certain. However, a disposition in favor of a
definite class or group of persons shall be valid. (750a)
Every disposition in favor of an unknown person shall be void.
When we say unknown someone who cannot be identified. I
hereby give my one million to my student so kinsa mana na
student ang tagaan? If it cannot be identified then the
institution is void unless by some event or circumstance, his
identity becomes certain. There are provisions on the CC
where the disposition is in favor of persons who are at
someway called unknown because at the time of the
institution dili pa jud mahibal-an kung kinsa jud like in article
859 my relatives so kinsa mana na relatives. There are rules
under 959 which says the nearest in degree or in article 1030
the poor in general. so I hereby leave my P1M to the poor.
So lisod siya i-identify but there are certain criteria given
under article 1030 and in that case they are limited to the
poor living in the locality where the testator decided and there
are certain persons there who will decide.
The circumstance here may happen before or after the death
of the testator. to my nephew who will make it to the top 10
of the bar exam. so at the time when he made the will wala
pa nahitabo but before he died naay nag top so kato na siya.
Or pagkamatay ni testator naay nagtop then apil gihapon. The
identifying circumstance may happen before or after the death
of the testator but it is important the heir should be living or
at least conceived at the time of the death of the testator.
Halimbawa si nephew na nagtop wala pa naanak at the time
namatay si testator, naa pa siya sa heaven so wa pa siya na
conceive kaan siya wa na na siyay apil. When you say
conceived, remember the conditions under article 40 and 41.
He must acquire civil personality because it is at the time of
death when transmission happen to kung wala pa ka
nahimong tao at the time of death when transmission is
supposed to occur then there can be no inheritance.
Art. 846. Heirs instituted without designation of shares shall
inherit in equal parts. (765)
So this is the PRINCIPLE OF EQUALITY.
Ad Majorem Dei Gloriam
If the heir are instituted without designation of heirs like I
hereby institute A,B,C,D as my heirs so walay gi-mention as
to their shares unya ang estate sa testator is P10M. so P10M
divided by 4 so that would be P2.5M each. Nganong equal
man? Because had the testator wanted to give them different
shares, he would have specified so in his will but because he
did not, the presumption is he intended to give them equal
shares.
I hereby institute A B C and D as my heirs (no mention of any
particular shares). Assuming A and B are the children of the
testator and as children they are compulsory heirs so they are
entitled to their legitime. So if the estate is 10M.
When we say institution we are referring to the free portion.
So first we give the legitimes of the children A and B. under
the law, they are entitled to . So 5M pertains to the
legitime, because there are 2 children, divide it by 2 so 2.5M
each si A and B. ang free portion is 5M. So ang free portion I
divide ug 4 kay 4 man ka instituted heirs. Nganong iapil pa
man si A and B na naa naman silay legitime? Kay gi-institute
man sila so the free portion is presumed to be equally divided
among A B C and D. so 5M divided by 4, 1.25M each sila A B
C and D.
Art. 847. When the testator institutes some heirs individually
and others collectively as when he says, "I designate as my
heirs A and B, and the children of C," those collectively
designated shall be considered as individually instituted,
unless it clearly appears that the intention of the testator was
otherwise. (769a)
Article 847 is what we call the PRINCIPLE OF
INDIVIDUALITY.
So A and B and the children of C. the children of C are X and
Y and then the estate is 10M. the law says those collectively
designated shall be considered to be individually instituted
meaning katong giingon na children of C they are actually
considered as individually instituted. They enjoy the same
share as the ones who are also mentioned individually like A
and B. so its like saying A, B, X and Y. So the estate shall be
divided by 4.
NABLE vs. UNSON
The testator has 5 nieces and 6 sisters but 2 of them already
died. The 5 nieces (children of the 2 sisters) represent the
deceased 2 sisters. SC ruled that the nieces and the sisters
will inherit equally because they are individually referred to in
the case at bar. It will be divided by 9 each of them will
inherit 1/9 of the estate.
They are considered as individually instituted. They should
counted as individuals kay if you count them xxx 3 nieces
(children of deceased sister) would share 1/6. So they should
have the same status as the other sisters.
Art. 848. If the testator should institute his brothers and
sisters, and he has some of full blood and others of half blood,
the inheritance shall be distributed equally unless a different
intention appears. (770a)
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Here the heirs instituted are brothers and sisters, some are
full blood, some are half blood. So A B C and D. A and B full
blood, C and D half blood. But under the law, they shall have
the same shares. So they are to be given equal shares unless
there is a contrary intention. This is because the testator did
not specify that the full blood brothers and sisters should
receive more than the half blood brothers and sisters. So in
the absence of that specification, the presumption is they
should receive equal shares.
Remember this because when you go to legal succession, if
the survivors are half blood brother and sisters and full blood
brothers and sisters, those of the full blood will inherit twice
as much as those of the half blood. Those of the half blood
are only entitled to of the share of the full blood. That is in
legal succession, the presumption of law is that the affection
of the decedent of the full blood relatives is more than its
affection for half blood relatives.
In testamentary succession, there is an opportunity for the
testator to specify their shares because he made a will. But if
he did not specify then the presumption is equal iyang pag
tan-aw. He could have specified but he did not so the
presumption is equal.
Art. 849. When the testator calls to the succession a person
and his children they are all deemed to have been instituted
simultaneously and not successively. (771)
This is the PRINCIPLE OF SIMULTANEITY.
I hereby institute A and his children. The meaning here is
that they are instituted simultaneously. Meaning at the same
time they will inherit. Halimbawa is A ang iyang children kay si
X Y and Z so A will inherit having the same share as X Y and Z
so 4 equal shares.
When you say successively, A first then when he dies, then his
children but that is not the intention of the law. The intention
here is if that is the tenor of the testamentary disposition then
simultaneous and not successive. You can apply this
successive when you go to fidei commissary substitution. The
inheritance there is first heir then after first heir, the second
heir. That is successive but if it is not clearly in the nature of
fidei commissary substitution, 849 says simultaneous and not
successive.
September 7, 2015 (JCP)
Art. 850. The statement of a false cause for the institution
of an heir shall be considered as not written, unless it
appears from the will that the testator would not have made
such institution if he had known the falsity of such cause.
So, statement of a false cause for the institution of an heir.
The law says, if it happens that the institution there is a
statement of a false cause, I hereby give to my beautiful
niece one half of my estate and that the niece is not
beautiful, so does it follow that she cannot inherit? It will not
vitiate the institution. So the false cause shall be considered
Ad Majorem Dei Gloriam
as not written. The underlying reason for the institution is the
liberality of the testator not the false cause. Just give effect to
the institution and disregard the false cause.
Unless it appears from the will that the testator would not
have made such institution if he had known the falsity of such
cause.
Example:
My friend took care of me while I was in coma. I hereby
institute my friend A to of my estate. Now assuming the
friend A was not the one who really took care of the testator
while he was in coma, it was again a false cause, the general
rule is you just disregard the false cause give effect to the
institution but how about the intention of the testator when
can it be made clear? Because if it is clear from the will that
the testator would not have instituted the heir if he had
known the falsity of the cause then he would not give effect
to the institution.
Example:
I wanted to institute my friend A as my heir but because it
was B who took care of me while I was in coma, then I will
give to B and it turns out later on that B was not really the
one who took care of the testator. So, if it was clear from the
will that he would not have instituted B had he known the
falsity of the cause because he wanted to institute A in the
first place but because he thought B took care of him then he
instituted B. So here, it is clear from the will that the testator
would not have the institution had he known the falsity of the
cause, so again, B cannot receive the property if it can be
proved that the cause of the institution was false. How about
A, will A inherit? Because the testator said I wanted to
institute A but it was B who took care of me. NO. Why?
Because he did not institute A. What will happen to that
portion? If there is no substitute, accretion, it will go to the
legal heirs by legal or intestate succession.
Art. 851. If the testator has instituted only one heir, and the
institution is limited to an aliquot part of the inheritance,
legal succession takes place with respect to the remainder of
the estate.
The same rule applies if the testator has instituted several
heirs, each being limited to an aliquot part, and all the parts
do not cover the whole inheritance. (n)
So here, I hereby institute A as heir to of my estate, so the
institution does not cover the entire estate. So, what happens
to that portion not mentioned in the will? It shall go by
intestacy. So will go to the heir by testamentary succession
and the other half will go to the heirs by legal succession. This
is a case of mixed succession.
Or several heirs are instituted I hereby give to A, B and C
each of my property. So that will not cover the entire
property because the remaining will go by legal succession.
This article applies if there is no intention on the part of the
testator to give everything to the heirs. Because again we
have Art 852.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Art. 852. If it was the intention of the testator that the
instituted heirs should become sole heirs to the whole estate,
or the whole free portion, as the case may be, and each of
them has been instituted to an aliquot part of the inheritance
and their aliquot parts together do not cover the whole
inheritance, or the whole free portion, each part shall be
increased proportionally. (n)
So here again, the testator instituted heirs and gave aliquot
portions to the heirs. Now he thought that the portions given
would already cover his entire estate. But it so happens that it
does not cover the entire estate.
Estate P120,000
The testator instituted A, B and C to his estate. A will receive 1/6, B
will receive 1/8 and C will receive 2/3.
A 1/6 of P120K = 20K
B 1/8 of P120K = 15K
C 2/3 of P120K = 80K
So we total, P115K, so kulang ng 5K.
It was his intention to give everything to A, B and C. So we dispose
the remaining 5K in the proportion that they had been instituted. How
do we divide? We cannot divide directly because it did not reach one
whole.
(Amount over total multiply by remaining):
20K over 115K x 5K = P869.56
15K over 115K x 5K = P652,17
80K over 115K x 5K = P3,478.26
So that should be equivalent to 5K after rounding off the result.
Again if there is an intention on the part of the testator to
dispose of his entire estate to his instituted heirs because
again in the preceding article there is no intention to dispose
the entire estate the rest will go by intestacy.
Art. 853. If each of the instituted heirs has been given an
aliquot part of the inheritance, and the parts together exceed
the whole inheritance, or the whole free portion, as the case
may be, each part shall be reduced proportionally. (n)
So opposite ang sa Article 853. The intention is to give the
whole inheritance to the heirs but if you add up those given to
the heirs they exceed the estate.
Estate P120,000
A 1/4 of P120K = 30K
B 1/8 of P120K = 15K
C 2/3 of P120K = 80K
So we total, P125K, so SOBRA ng 5K.
It was his intention to give everything to A, B and C. So we dispose
the remaining 5K in the proportion that they had been instituted. How
do we divide? We cannot divide directly because it did not reach one
Ad Majorem Dei Gloriam
whole.
(Amount over total multiply by excess): So we will adjust
proportionately. 30/125, 15/125 and 80/125 x 5K.
30K over 125K x 5K = P1,200
15K over 125K x 5K = P600
80K over 125K x 5K = P3,200
(Then deduct that from amount):
30K 1,200 = 25,800 goes to A
15K 600 = 14,400 goes to B
80K 3,200 = 76,500 goes to C when you say preterition
preterition there is omission
Art. 854. The preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not
inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without prejudice
to the right of representation. (814a)
This is a very important provision. When we say preterition
there is an omission of a compulsory heir in the direct line.
OMISSION
First, what is the kind of omission being referred to? Is it
deliberate omission or inadvertent omission? Before if there
was deliberate omission the rule was it was disinheritance and
its rules will apply and if it was inadvertent then preterition.
But it has been settled that whatever kind of omission it
may be either deliberate or inadvertent it does not
matter as long as there is omission.
If it is an omission which says I hereby exclude my son A
from the will, that is not preterition, that is disinheritance
because he is now expressly excluding. In preterition the heir
is just not mentioned. He is not given any inheritance, legacy
or devise and he is not also expressly excluded, he is just
omitted. Omission in the sense that he is not given anything
at all in the will.
NOT HEIR, LEGATEE, DEVISEE NOR DONEE
Not given any inheritance;
Not given any legacy or devise in the will; or any
gratuitous disposition in his favor and;
Also during the lifetime of the testator the heir did not
receive any donation or any gratuitous disposition that
can be considered as an advance to his legitime.
ENTIRE ESTATE IS DISPOSED OF IN THE WILL
Because even if the heir is omitted in the will and he was not
given donation during the lifetime of the testator but only
has been disposed of in the will the other half was not
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
mentioned, there is no preterition. Why? Because the heir
even if omitted in the will, is not omitted from the inheritance
since there is still legal succession as to the portion not
mentioned in the will.
What if gamay nalang ang estate which is not disposed of in
the will? For example his supposed legitime is 500K and then
if we just rely on legal succession katong portion nawala na
dispose of the will, he will only receive say 2K kay gamay
nalang portion by legal succession, so, what is his remedy?
Well, that is still not preterition. Although he is entitled to
completion of his legitime. So ihatag gihapon ang balance to
complete his legitime but there is no preterition.
What if during the lifetime of the testator the omitted heir has
received a donation but he is not mentioned in the will and all
the estate have been disposed of in the will. So again, as we
mentioned there is no preterition. However, he is entitled to
the completion of his legitime, it is not preterition. Omitted
from the will and omitted from the inheritance.
What if in the will it says, I have 3 beautiful children A, B and
C. I want to dispose of the property in the following manner:
To A and to B mao lang. How about C? Is there
preterition. There is preterition, even if C was mentioned in
the opening sentence there was no legacy, devise or
inheritance given. Again, there is omission.
OMISSION OF ONE, SOME OR ALL OF THE
COMPULSORY HEIRS IN THE DIRECT LINE
Who are the heirs that can be preterited? The law is clear,
compulsory heirs in the direct line. Who are the
compulsory heirs? We have the legitimate children and
descendants, in default of descendants legitimate
parents and ascendants, surviving spouse and
illegitimate children.
So who among these compulsory heirs could be preterited?
The direct line, ascending or descending, children
legitimate or illegitimate, parents, grandparents. The
spouse is not included but his/ her legitime will be respected.
Compulsory heirs in the direct whether living at the time of
the execution of the will or born after the death of the
testator.
Pursuant to our discussion before that an instituted heir living
or at least conceived at the time of death of the testator.
Example:
The testator made a will and he disposed of his properties
pero that time he did not know that his wife was pregnant, so
he disposed of all his properties in favor of his children,
nothing was left for disposal for legal or intestate succession
and then he died and turns out that naa pa diay isa ka bata
na wala na-mention. How would that affect the will? Again,
the omission in preterition could be deliberate or inadvertent.
The law says living or at least conceived, born after the death
of the testator. When you say born after the death of the
testator, this has to be at least conceived because kung wala
siya na conceive pero born after the death of the testator dili
na sya anak ni testator so dili na sya compulsory heir because
it has to be the child of the testator.
Ad Majorem Dei Gloriam
What is the effect now if there is preterition?
Illustration 1:
A, B and C are the children of the testator. So the testator left
an estate worth 1.2M, during his lifetime, he executed a last
will and testament. What if the testator said, I hereby
institute A and B as my heirs. Is there preterition?
o Again the first principle in institution is it covers
only the free portion. So he only institute A and
B as his heirs covering only the Free Portion. We
do not need to institute heirs in the legitime.
o So here there is no preterition since it cover only
the Free Portion.
o Remember, if a will is capable of two
interpretations one which makes the will valid
and the other invalid, we follow the
interpretation which makes the will valid.
o So 1.2M divided by 2 is 600K Free Portion and
600k legitime divided by 3, therefore, 200K each
for their legitime.
o How about the Free Portion? Well the testator
instituted a will A and B to the free portion,
therefore, as to the free portion, only A and B
will inherit. So 600K divided by 2, this is how we
distribute.
Illustration 2:
If the will says, I hereby institute as sole heir to my entire
estate of 1.2M A and B only. Then that is very clear that C
has been preterited. Assuming that he did not receive any
donation during the lifetime of the testator.
o So, what is the effect of preterition? The institution
of heirs shall be annulled. So you annul the
institution of A and B, and because the entire
institution has been annulled, we will divide the
estate by legal succession.
o So divide the estate by according to the number of
heirs. So A, B and C, 400K each, that is one
consequence.
Illustration 3:
I hereby institute as my sole heirs to my entire estate of
1.2M, my children A, B and (additionally) best friend X, so
clearly, C has been preterited. What is now the effect of this
preterition?
o The institution of heirs shall be annulled. So, the
institution of A, B and X will be annulled. The law
says, but legacies and devisees which are not
inofficious will be respected. Is X a legatee or
devisee? No he is an instituted heir. And the law
says, when there is preterition, the institution of heirs
shall be annulled.
o Distribute the estate by legal succession because you
do not follow the will anymore. So 1.2M will be
divided only to the legal heirs, divided by 3 for A, B
and C 400K each.
o X will not receive anything because his institution has
been annulled because of preterition. He is not a
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
compulsory heir or legal heir. He does not receive
anything in legal succession.
Illustration 4:
What if instead of having instituted X is given a legacy of
200K, so I hereby institute A and B as my sole heir to the
entire estate but I give a legacy of 200K to my best friend X.
Let us assume that C has been preterited. How do we divide
the estate?
o Again because there is preterition, so the institution
of A and B is already annulled but we respect the
legacy or devise which is not inofficious.
o What do we mean by not inofficious? Meaning, they
do not impair the legitimes, so how do we know, if
the legacy or devise is not inofficious? We determine
first how much is the Free Portion, if the legacy or
devise can be covered in the Free Portion then it is
not inofficious.
o The estate is 1.2M divided by 2 so 600K legitime and
Free Portion is 600K. So can the 200K be covered? It
can be covered. The legacy of 200K will be
respected.
o The remaining portion (of Free Portion) will be
divided equally by A, B and C by way of legal
succession.
Illustration 5:
How about if the legacy is 700K? Estate is 1.2M and C has
been preterited. How do we distribute the estate? Is the
legacy to X inofficious?
o Yes it is inofficious, because it exceeds the free
portion.
o What happens if it is inofficious? We dont give the
legacy? NO. We still give, we JUST REDUCE to cover
the legitime of the compulsory heir. We only reduce
to the extent of the exceeded portion. Pila atong
ibawas sa 700K? Only 100K.
o Give to X 600K (Free Portion) and the remaining
600K will be divided equally among A, B and C by
legal succession.
Illustration 6:
X is a friend. The testator at the time of his death his
remaining estate is 1M then he INSTITUTED his sole heir to
his entire estate only A, B and his best friend X but during his
lifetime he gave a donation valued at 200K to his son C. Is he
preterited?
o No, C is not preterited because he received a
donation. The donation shall be considered as an
advance to his legitime. So there is no preterition in
this case. Therefore, the institution of heirs shall
remain.
o How do we distribute the estate? Value of the estate
at the time of death is 1M plus the donation given to
C, the value of all donation given by the testator
during his lifetime shall be brought back to the
estate. That is what we call collation. It will be added
back in order to prevent the testator from
Ad Majorem Dei Gloriam
circumventing the law on legitimes because you
cannot just deprive your heirs on the laws of legitime
unless there is a valid ground. The valid grounds are
provided under the provisions of disinheritance. So, if
we do not collate the testator can just donate all his
properties and leave nothing to his compulsory heirs.
o So, the value of the estate is 1.2M, how do we
distribute the 1.2M, again because there is no
preterition , we give effect to the will.
o First, give the legitimes A, B and C are compulsory
heirs, the legitime is 600K. But because C already
received 200K in advance, upon death wala na siyay
madawat, it will be charged as his advance on the
legitime.
o And the Free Portion of 600K will be divided equally
between A, B and X. X will receive because there is
no preterition. That is how we distribute.
Illustration 7:
There is a spouse omitted. Assuming, the estate is 2M, the
testator gave his property to A, B and C his children and to his
best friend. He did not give anything at all to his spouse.
o Is the spouse preterited? NO. She is not a
compulsory heir in the direct line.
o First, distribute the legitime, under the law on
testamentary succession, the spouse is entitled to
equal share of one legitimate child if there are two or
more legitimate children. 2M divided by 2 is 1M and
then 1M divided by 3, pila man na siya?
o In the Free Portion, wala nay labot si spouse because
she is not instituted. So divide the free portion to all
of them (4 = 3 children and best friend). The
institution shall be respected because there is no
preterition.
What if during the lifetime of the testator, he donated to his
spouse? What is the consequence of this donation? Shall we
consider that donation an advance to the legitime of the
spouse? NO. Because during the lifetime of the spouses
during marriage they are NOT allowed to make a sale or
donate to each other. So any donation that is given by the
spouse to the other is void that being considered as a
deduction on the estate of the testator, it will not be deducted
on the value of his estate, part gihapon toh siya sa iyang
estate. Assuming during his lifetime he donated 200K to his
spouse, it will not be deducted on the value of his estate.
There is no collation because in the first place the donation is
not valid. Part lang toh siya sa estate, wala siya na deduct sa
whole, that is how we compute.
So again in preterition, if a compulsory heir in the direct line is
omitted the institution of an heir will be annulled. Just
remember that the omitted heir should survive the testator
because even if he has been preterited in the will but he dies
ahead of the testator so here the effect of preterition will be
extinguished. Meaning the institution of heirs in the will, will
still be respected. Because the supposedly preterited heir that
has predeceased did not in fact become an heir of the
testator. For you to become an heir you should survive the
testator except if the preterited heir has a representative.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Halimbawa, si C is preterited but died ahead of the testator
pero naa siyay anak. His child can represent him under the
concept of representation. The representative is elevated to
the degree and status of the person represented. So, naa
gihapon preterition.
Can an adopted child be preterited? Yes. Because an adopted
child has the same successional rights as a legitimate child.
JLT Agro v. Balansag
In this case the Supreme Court said that there is no
preterition. In order to have preterition there must be total
omission in the will and in this case there was no will
executed. Without a will being executed there could be no
preterition. It was premature if not irrelevant to speak of
preterition in the absence of the will. Please remember that.
Art. 855. The share of a child or descendant 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 the shares of the other compulsory heirs. (1080a)
What if a child or descendant has been omitted in the will,
actually, this can apply both whether there is preterition or no
preterition because if you are omitted and there is preterition
the institution of heirs will be annulled. If there is preterition
you just divide the entire estate equally among the
compulsory heirs.
If there is no preterition, the omitted heir has been given a
donation during the lifetime of the testator but he is just
entitled to the completion of his legitime. Where do we get
that portion to be used to complete the legitime of the
omitted heir? First, it should be taken from the portion of the
estate which has not disposed of by the will, katong wala pa
nahatag maski kinsa. For example it is not enough you reduce
the legacies, devisees and voluntary heirs. In all cases you do
not deduct from the legitime of the compulsory heirs. Respect
the legitime. So didto lang jud ka sa first priority na not
disposed of by will, katong wala pa nahatag maski kinsa.
Art. 856. A voluntary heir who dies before the testator
transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except in
cases expressly provided for in this Code. (766a)
Please remember this principle, a voluntary heir when he
dies that is the end of it. He transmits nothing to his
own heirs. He cannot be represented.
Example:
The testator gave of his estate to his best friend. But his
best friend died ahead of the testator but the best friend was
survived by his own children. What will happen now to the
Ad Majorem Dei Gloriam
of the estate given by the testator to his best friend as his
inheritance. Can the children of the best friend get it back?
NO. Because the bestfriend being a voluntary heir, he is just
instiuted to the Free Portion. He did not become an heir in the
first place because he predeceased, again, he should survive
the testator to be enable to inherit. So a voluntary heir cannot
be represented.
How about a compulsory heir?
Example:
A compulsory heir, we are referring to the legitimes because
there are cases when a compulsory heir can also be given part
of the free portion. For example, the testator has a son, the
son is a compulsory heir, assuming the estate is 1.2M. Duha
iya anak. Divide by 2 600K and divide by 2 for the legitime is
300K. Now, the testator can also institute the son as an heir
to the free portion. With respect to the free portion, the son
who is a compulsory heir is also a voluntary heir. We follow
the first paragraph insofar that portion is concerned. He is a
voluntary heir, kung mamatay sya una sa testator. As to that
portion, nagihatag saiyaha gikan sa Free Portion he cannot be
represented it can go to the mass of his estate and distributed
among all the legal heirs. Kung naay anak si heir, so dili
maka-claim iyahang mga anak sa katong portion na gihatag
out of the Free Portion.
Pero ang legal heirs pud tong iyahang mga anak possible na
maka-claim sila pero dli tanan.
Example:
This is the estate (1.2M) so 600K legitime, 600K free portion
so A & B are the children of the testator. For example A has
been instituted to one half of the free portion 300K, so he is a
voluntary heir to this portion. Halimbawa si A naa pud anak si
A1. Pagnamatay si A ahead of the testator, A1 cannot claim
the 300K by right of representation. Asa man ni ma-adtoang
300K? Sa estate. Tungaon tanan sa legal heirs, so dili iyaha
(A1) tanan ang 300K, mutunga pa sya kay B na legal heir
with respect to the portion na nahimong vacant because of
the predecease of A. But as to his legitime, A is also a
compulsory heir, he is entitled to the legitime of 300K. If A
dies ahead of the testator, A can be represented. A
compulsory heir as a general rule also transmits nothing to his
own heirs except by virtue of the the right of representation.
He can be represented, so, insofar his legitime is concerned
na P300K, if he predeceases the testator his share can now be
claimed by A by right of representation.
So that is the difference. So kung katong sa free portion dli
sya pwede i-represent ni A, it would go to the mass of
intestate katong pwede i-dispose by legal succession, so sa
legal heirs which may include A but not A alone but sa
legitime kay A jud sya ma-adto dli sa representative.
Again. A compulsory heir as a general rule transmits nothing
to his heirs except in case of the right of representation. But
again, a person can be represented only if he predeceases,
becomes incapacitated, if he is disinherited, but if he
repudiates or renounces he cannot be represented. That is the
rule insofar Art 856 is concerned.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Going back to the first par. of Art 856, it mentions that a
voluntary heir who dies before the testator transmits nothing
to his heirs. When you say heir, one that has been instituted
to an aliquot share, does this also covers legatees or
devisees? YES. Because legatees or devisees, they are
also given properties from the Free Portion, not from
the legitimes.
SECTION 3. Substitution of Heirs
Art. 857. Substitution is the appointment of another heir so
that he may enter into the inheritance in default of the heir
originally instituted. (n)
If the first or original heir cannot receive then he will be
substituted by another. Based on the definition on Art 857. It
is either A or B because in default of the heir originally
instituted. So this is actually not correct definition of
substitution. Why? Because under the New Civil Code, we
actually have two kinds of substitution. The first kind is the
direct substitution, that is the one being referred in Art 857.
The second kind is Indirect Substitution, the original heir and
the substitute both inherit but one after the other. It is not OR
but AND. Both of them will enjoy the property one after the
other. The only kind of indirect substitution under the New
Civil Code is the Fidei commissary substitution, that is the only
kind of indirect substitution. Whereas, direct substitution we
have simple or common, brief or compendious, reciprocal
which we will discuss later.
There is a suggestion for the definition, substitution is a
disposition by virtue of which a third person is called to
receive a hereditary property in lieu of another person. So this
will cover both direct substitution and indirect substitution. We
can also insert that in Art 857. Substitution is the appointment
of another heir so that he may enter the inheritance in default
of or after the heir originally instituted. Again, that will also
cover indirect substitution.
Art. 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)
As I said before items 1 to 3 is direct substitution and item 4
is Indirect Substitution. Direct substitution is mentioned in Art
859.
Art. 859. The testator may designate one or more persons
to substitute the heir or heirs instituted in case such heir or
heirs should die before him, or should not wish, or should be
incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to
Ad Majorem Dei Gloriam
which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise
provided. (774)
A. Simple or common substitution
What are the grounds for simple or common
substitution? We have predecease, renunciation or
incapacity. In case such heir should die before the
testator, renounced or incapacitated to inherit.
In those cases, it will be the substitute who will
receive the property because in the order of priority,
testacy is favored over intestacy. As much as
possible we have to give effect to the will of the
testator.
So the rule here is that, first institution, if the testator
instituted an heir then give effect to the institution.
If the instituted heir cannot for some reason receive the
inheritance then we determine if there is a substitute.
Now if there is no substitute, then, we evaluate if the right of
representation can apply. Because in representation, if the
original heir cannot receive due to predecease, incapacity his
representative will receive in his behalf.
But if the right of representation is not proper. Then we will
go to the rule on accretion. If accretion is possible. What do
we mean by accretion? Basically, if there are two or more
heirs instituted to one inheritance and if one of them cannot
receive either because of predecease, incapacity or
repudiation his share will be given to the co-heir. So it will
accrue to the co-heir. If accretion still is not possible, then the
last result will be intestacy.
So please do not forget the order of priority. ISRAI:
1. Institution
2. Substitution
3. Representation
4. Accretion
5. Intestacy
So here in the 2nd paragraph of Art 859, if the testator
provides for a substitution but did not mention what is the
ground for the substitution then it can cover the three
incapacity, predecease and repudiation.
Art. 860. Two or more persons may be substituted for one;
and one person for two or more heirs. (778)
This article refers to two kinds of substitution:
B. Brief substitution
So this is two or more heirs take the place of one.
Compendious substitution
There are two or more heirs originally instituted but
the substitute is only one.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Art. 861. If heirs instituted in unequal shares should be
reciprocally substituted, the substitute shall acquire the share
of the heir who dies, renounces, or is incapacitated, unless it
clearly appears that the intention of the testator was
otherwise. If there are more than one substitute, they shall
have the same share in the substitution as in the institution.
C. Reciprocal substitution
The heirs instituted is also the substitute for the other.
Example:
A and B is instituted. If A becomes incapacitated or he
predeceases etc., B is the substitute. Si B pud sa iyang share.
Walay problema pag ang share is of A and B. Kung mawala
si A, ang iyahang share ma-adto kay B. For example kay A is
2/3 kay B is 1/3. Again, it doesnt matter noh. Halimbawa, it is
B who becomes incapacitated, then his share will go to A. It
doesnt matter if B is only instituted 1/3 because he
substituted A.
Example:
A B and C are heirs and they are also instituted as substitute
for each other so kung A dies B and C will substitute and vice
versa. For example, it is C who becomes incapacitated, how
do we effect the substitution? First, we determine the shares
as originally instituted. SO A and B have the same right to Cs
share in the substitution as well as the institution. Proportional
distribution not dividing it equally among the two if different
sharing when instituted.
Art. 862. The substitute shall be subject to the same
charges and conditions imposed upon the instituted heir,
unless and testator has expressly provided the contrary, or
the charges or conditions are personally applicable only to
the heir instituted. (780)
General rule: If the original heir have been given conditions,
it is understood that the substitute will be imposed the same
conditions and charges. So kung gibutang sa original heir na
dapat maka-pasar pud sya sa bar exam mao pud na sya
supposedly ang condition sa substitute.
Except: If the testator has expressly provided the contrary na
dili sya subject sa same condition or the charges or conditions
are personally applicable to the heir originally instituted. For
example the original heir is a law student and the substitute is
a lawyer dili na man na mag-apply sa iyaha ang condition to
pass the Bar Exam.
Art. 863. A fideicommissary substitution by virtue of which
the fiduciary or first heir instituted is entrusted with the
obligation to preserve and to transmit to a second heir the
whole or part of the inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided
further, that the fiduciary or first heir and the second heir are
living at the time of the death of the testator. (781a)
Ad Majorem Dei Gloriam
Again, this is the only indirect substitution provided in the
New Civil Code. So based on Art 863 you can see that the first
heir and the second heir both inherit. They will enjoy the
property although not at the same time but one after the
other.
In direct substitution, simple, compendious or reciprocal they
will not enjoy with the original heir. It is only either the
original or the substitute.
D. Fideicommissary substitution
Under the NCC, there is a limitation on the right of the
testator to prohibit the disposition of the property. He can
prohibit the partition of the property but for a period not
exceeding 20 years.
In a fideicommissary substitution, the entailment of the
property may even exceed 20 years if it is a fideicommissary
substitution.
What is the concept of a fideicommissary substitution? There
is a first heir, he will enjoy the property. He has the right to
use the property, benefit from the property but he cannot
dispose of the property, he cannot destroy the property. Why?
Because as provided in the article, the fiduciary or the first
heir has the obligation to preserve and to transmit the
property to a second heir. It may be the whole of the property
or the portion of the property. So he cannot sell or dispose, he
is just like a usufructuary na only use lang ang naa kay first
heir. And then, after a certain period of time provided by the
testator in the will, the property will eventually go to the
second heir. What is given to the second heir, is not merely
usufruct but is full ownership. Sa second heir wala nay
limitation or restriction, so, he becomes the full owner of the
property.
SPECIFIC REQUIREMENTS
(1) There is an obligation upon the first heir to
preserve and transmit to a second heir the whole
or part of the inheritance;
(2) The first heir and the second heir, their
relationship should not go beyond one degree.
What do we mean by one degree, it means one
generation, so parent and child or child and parent basta
one generation.
Can a corporation or juridical person be instituted? NO.
Because we cannot apply the rule on one generation or
degree. Juridical entities cannot have generation only
natural persons have generation.
(3) First and second heir should be living at the time
of death of the testator.
With respect to the term living, at least conceived and
follow Art 40 and 41 at the time of death.
What if the second heir dies ahead of the first heir? Is
fideicommissary substitution still possible? It does not
matter as long as they did not die ahead of the testator.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
What is important is that they should not predecease the
testator.
Art. 864. A fideicommissary substitution can never burden
the legitime. (782a)
Again, in fideicommissary substitution it allows entailment of
the property for a certain period of time. For example, the
first heir because of the fideicommissary substitution cannot
dispose of the property. When we go to legitimes, the law
says that you cannot impose any condition, burden, charge,
substitution upon the legitime. Because legitimes are given to
the compulsory heirs as a matter of force of law. This portion
of property is reserved by law for the compulsory heirs, in
fact, again the testator cannot deprive his compulsory heirs of
their legitimes without a valid ground. There has to be a valid
ground. If you are allowed, to impose conditions for example
substitution upon the legitime the testator may easily
circumvent the law on legitimes. For example, he imposes
very difficult conditions on the legitime already amounts to
deprivation of the legitime.
So again, that is the reason why you cannot burden the
legitime. There are only two situations under the New Civil
Code where the legitime can be burdened. No. 1 that is the
concept of reserve troncal and No. 2 the testator may prohibit
the partition of the estate even the legitime but for a period
not exceeding 20 years.
Art. 865. Every fideicommissary substitution must be
expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the
second heir, without other deductions than those which arise
from legitimate expenses, credits and improvements, save in
the case where the testator has provided otherwise. (783)
How can you institute a fidei commissary substitution. There
are two ways:
(1) You name it as a fidei commissary
substitution; or
(2) Even without labeling it as a fidei commissary
substitution, you expressly impose upon the
first heir to reserve the property and transmit
the property to a second heir.
Although, you do not have to use the exact words
preserve and transmit. As long as the effect would be
the same that there is an obligation to preserve and
transmit like in one case the term was passed on and
unimpaired to the second heir. That is the same as
preserving and transmitting. So not exactly the same
words used in the law.
The second paragraph just refer to the allowable expenses
because if we just allow any expenses to be deducted, the
second heir might not have receive something from the first
heir because of all the deductions.
Ad Majorem Dei Gloriam
Art. 866. The second heir shall acquire a right to the
succession from the time of the testator's death, even
though he should die before the fiduciary. The right of the
second heir shall pass to his heirs. (784)
Again, what is important is that the first and second heir are
living at the time of death of the testator. It does not matter if
the second heir dies ahead of the first heir. What will happen
to the fidei commissary substitution? Does the first heir has
the same obligation to deliver? Yes because what is important
is that at the time of death of the testator, silang duha buhi.
So after 10 years naa gihapon obligation si first heir to deliver
to the second heir but because the second heir is already
dead. He should deliver to the heirs of the second heir.
SEPT 10 (RJV)
Article 867. The following shall NOT take effect: xxx
Take note of the prohibitions in Article 867. As discussed
before, how can Fideicommissary substitution be constituted?
1. By expressly naming the institution as subject to a
Fideicommissary substitution. In an express manner
by giving the name as Fideicommissary substitution.
2. Even without naming it as Fideicommissary
substitution but imposing upon the first heir an
obligation to preserve and transmit the property to a
second heir.
(1) Fideicommissary substitutions which are not made in an
express manner, either by giving them this name, or
imposing upon the fiduciary the absolute obligation to deliver
the property to a second heir; xxx
So without naming it as Fideicommissary substitution or
without imposing an obligation upon the first heir, there can
be no Fideicommissary substitution. There is no obligation on
the first heir to deliver on the second heir. But in relation to
Article 868, if the Fideicommissary substitution does not take
effect, it does not prejudice the rights of the first heir. The
first heir can receive without being subjected to a
Fideicommissary substitution
(2) Provisions which contain a perpetual prohibition to
alienate, and even a temporary one, beyond the limit fixed in
article 863; xxx
This is the prohibition to alienate or partition which can be
imposed by the testator but only a period not exceeding 20
years. If he says, you will not partition this property forever.
This provision will be valid but only up to 20 years and the
rest will be void even a temporary one which is beyond the
limits fixed by Article 863. If he say-perpetual, the heir cannot
have partition the property forever. If he say-temporary,
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
there might be a period which should not exceed 20 years and
even beyond the limit provided by Article 863.
Example:
The testator instituted A as heir to a parcel of land. He said, I
hereby give to A the land in Calinan, Davao City but A shall
keep it and shall not alienate it for 15 years. Is it a valid
prohibition? Yes, as this does not exceed 20 years. The
testator died in the year 2000, so A effectively became the
owner of the land upon the death of the testator. After 5
years, A died and survived by his son B and the land was
inherited by B. Is B subject to the same prohibition? Yes
because he just stepped into the shoes of his predecessor.
Whatever obligation of the predecessor will be passed on to
the heirs. So in 2005, he already consumed 5 years on which
he is obliged to keep the property intact and not alienate it for
a period. Thus, the remaining period is 10 years.
If after 5 years (2010), B also died and survived by his son C.
Only 5 years remain from the prohibition by the testator. The
same property is inherited by C. Is C obliged to respect the
prohibition? No more since it is already beyond the limit as
provided by Article 863 which means the prohibition does not
go beyond one degree from the heir originally instituted.
Thus, the prohibition is only binding to B and does not bind C
anymore.
If it is a fideicommissary substitution, the testator instituted A
as first heir subject to the condition that A will reserve the
property for a period of 30 years and transmit it afterwards to
B which is one degree related to A. Is it valid? Yes because it
is a fideicommissary substitution so that is the only time that
he can hold the property for a longer period of time. If it is
not a fideicommissary substitution, the answer is no.
(3) Those which impose upon the heir the charge of paying
to various persons successively, beyond the limit prescribed
in article 863, a certain income or pension; xxx
For example, the testator instituted A as heir and A should
remit a certain income to B for a period of 3 years. Then B to
C, and C to D. Would that be valid? No, the law says, you can
only go one degree and in this case, it is only A to B only.
Thus, it is only one degree from the person originally
instituted.
(4) Those which leave to a person the whole or 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.
For example, the testator provides that he leaves a certain
property to A so that he may be able to invest the same
according my secret instructions communicated to him. The
same is not allowed because how can it be insured that heir
complied with the instructions of the testator. It would be very
dangerous.
Article 868. The nullity of the fideicommissary substitution
Ad Majorem Dei Gloriam
does not prejudice the validity of the institution of the heirs
first designated; the fideicommissary clause shall simply be
considered as not written. (786)
It was already discussed that when a fideicommissary
substitution is null and void, it does not prejudice the first heir
designated. There is simply no fideicommissary clause,
making the substitution absolute without the obligation to
preserve and transmit.
Article 869. A provision whereby the testator leaves to a
person the whole or part of the inheritance, and to another
the usufruct, shall be valid. If he gives the usufruct to various
persons, not simultaneously, but successively, the provisions
of article 863 shall apply. (787a)
Here, the testator gives the legal ownership to one and the
usufruct to another. The first paragraph says it is valid. For
example, the testator instituted X as heir to his land. X is the
legal owner which means he has the title and not beneficial
use of the land since it belongs to b, C, D and E. If these are
simultaneous, as they were allowed to use the land at the
same time, it is valid since there is no prohibition.
Illustration:
X holds the title but the beneficial use belongs to A, then goes
to B if A dies, to C if B dies, etc. But it can only be limited to
the limitations provided by Article 863 if only successive. Thus,
it is only one degree as to the enjoyment of the property.
Article 870. The dispositions of the testator declaring all or
part of the estate inalienable for more than twenty years are
void. (n)
This was already discussed. Take note that 20 years is the
maximum. This was answered before in the bar examinations.
Before going to Article 871, the next section talks about
institution subject to condition, subject to term and subject to
a mode.
There are 4 kinds of institution:
1) SIMPLE or Pure Institution One that is not
subject to condition, terms or mode. Upon the death
of the testator, the instituted heir already acquired
ownership over the property. It has not to be for a
period; it does not necessarily observe the
conditions; and it does not bound to comply with any
requisite.
2) CONDITIONAL Institution There is a condition
imposed. It can be a condition and the fulfillment of
which is required for the effectivity of the institution
or the fulfillment of which extinguishes the
institution. Just like in Obligations and Contracts,
condition refers to future and certain event upon
which the effectivity or extinguishment of an
institution depends.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
SECTION 4. Conditional Testamentary Dispositions
and Testamentary Dispositions With a Term
Article 871. The institution of an heir may be made
conditionally, or for a certain purpose or cause. (790a)
As to conditions, there are several kinds of conditions
which can be imposed in an institution.
As to effect:
i. Suspensive Condition The effectivity of the
obligation depends upon the happening or
fulfillment of the condition. Example: I will
give a car to A if he passes the bar.
ii. Resolutory Condition The happening or
the fulfillment of the condition extinguishes
the obligation. Example: I will give a car to
A as long as he remains single.
As to cause:
i. Potastative Condition The fulfillment of
the obligation depends upon the will of the
heir, legatee or devisee. Example: A will
give a car to B (heir) will learn how to drive.
ii. Casual Condition The fulfillment of the
obligation depends upon chance or will of a
3rd person. Example: A will give his car to B
if Bs name will be picked or if C agrees.
iii. Mixed Condition The fulfillment of the
obligation depends partly upon the will of
the heir and partly upon chance or will of 3rd
person. Example: A will give his car to B if
Bs name will be picked in a raffle and if B
will accept the same.
As to mode:
i. Positive
ii. Negative
As to form:
i. Express
ii. Implied
As to possibility of fulfillment:
i. Possible
ii. Impossible
In Obligations and Contracts, if the obligation
depends upon a potestative condition, the validity of
the obligation depends upon what or whom the
condition is imposed. It is void when an obligation is
subject to a suspensive and potestative condition on
the part of the debtor since the obligation will not
Ad Majorem Dei Gloriam
arise until after the happening of the condition. But
the happening of the condition is purely dependent
upon the will of the debtor, so in that case, the
obligation will never arise since it is of human nature
that humans do not like obligations and as much as
possible, we like to be free. On the other hand, all
others, it is valid, for instance, when an obligation is
subject to resolutory and potestative conditions on
the part of the debtor because the obligation will
immediately arise and it will end upon the fulfillment
of the obligation so the debtor will comply the
condition.
The institution subject of suspensive and potestative
condition on the part of the heir is valid because an
heir would really fulfill the condition. Unlike in the
concept of ObliCon, it is another concept when it
comes to institution.
3) Institution subject to a TERM There is a need
to wait for the arrival of the term or period before
the institution is given effect or for the institution to
end.
4) MODAL Institution There is a certain purpose or
cause which is further explained in Article 882.
Article 872. The testator cannot impose any charge,
condition, or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same shall be
considered as not imposed. (813a)
It was already mentioned before that a testator cannot
impose any charge, condition, or substitution upon the
legitimes because if he can do that, he might impose difficult
and unreasonable conditions that would be able to effectively
defeat the law on legitimes. Thus, the legitimes should go to
the heirs unimpaired, unburdened and without any condition.
The only kind of burden that may be imposed by the testator
upon the legitime would be:
(1) prohibition of partition only for 20 years;
(2) and reserva troncal as provided by law.
Article 873. Impossible conditions and those contrary to law
or good customs shall be considered as not imposed and shall
in no manner prejudice the heir, even if the testator should
otherwise provide. (792a)
Impossible conditions are contrary to law and public customs.
These should just be disregarded because the underlying
principle in institution is the liberality and generosity of the
testator.
Example:
I hereby institute A as my heir if a can fly using his hands.
Of course, it is not possible.
If for example it says, I hereby institute A as my heir if she
becomes beautiful, is it possible? The answer is it depends.
(HAHA!)
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Article 874. An absolute condition not to contract a first or
subsequent marriage shall be considered as not written unless
such condition has been imposed on the widow or widower by
the deceased spouse, or by the latter's ascendants or
descendants.
Nevertheless, the right of usufruct, or an allowance or some
personal prestation may be devised or bequeathed to any
person for the time during which he or she should remain
unmarried or in widowhood. (793a)
Here, the condition is not to contract a first or subsequent
marriage.
General Rule: It shall be considered as not written.
Why is it not considered not written? Because this condition
would lead instead to moral arrangements. In prohibiting a
person to marry and the person really wanted to marry the
other, in order not to circumvent the condition, they end up
living in without marriage. So, it ends up something to this
kind of arrangement. Thus, it is not allowed.
Exception: Unless such condition has been imposed on the
widow or widower by the deceased spouse, or by the latter's
ascendants or descendants.
Take note, this applies only to the free portion because we
cannot impose anything in the legitime. If the testator says, I
hereby give to my wife a house and lot in Davao City provided
that she will not remarry. This condition is valid for
sentimental reasons. Also, the testator can control since it is a
free portion, but it could be reasonable in his part because it
is his property. If he will allow the wife to remarry, the
property which inherited to the wife from him forms part of
the wifes absolute community with the new husband. Another
thing is when the property is given by the ascendant or the
descendant of the testator for the same reason.
Article 875. Any disposition made upon the condition that
the heir shall make some provision in his will in favor of the
testator or of any other person shall be void. (794a)
Here, it is a condition imposed by the testator to the heir. For
example, I hereby give to A my car provided that A will also
give to me (or to my son), his house. This is what is called
Disposition Captatoria and according to Article 875, it is not
valid as it tends to convert the will into a contract. As
mentioned, will must be unilateral not bilateral. The giving
must be because of ones desire and generosity and not of
expecting something in return as it turn now into a contract.
In disposition captatoria, it is both the condition and
disposition is void.
Article 876. Any purely potestative condition imposed upon
an heir must be fulfilled by him as soon as he learns of the
testator's death.
This rule shall not apply when the condition, already complied
Ad Majorem Dei Gloriam
with, cannot be fulfilled again. (795a)
Here, it is a purely potestative condition. The rule is when
a potestative condition is imposed, the heir must fulfill as soon
as he learns the testators death. Meaning, it should be
fulfilled upon the day of knowledge on the death of the
testator. The heir is not required to fulfill the condition within
the lifetime of the testator since as we all know, will is
irrevocable at anytime during the lifetime of the testator.
The second paragraph provides that the rule shall not apply
when the condition, already complied with, cannot be fulfilled
again. For example, I hereby give to A my jewelries if he puts
a flower tattoo in his left arm. If he already had the tattoo
during the lifetime of the testator, then, the testator died and
it came to his knowledge. This time, he is not required to put
another tattoo.
With respect to the fulfillment, substantial compliance will
suffice because the testator gives the discretion upon the heir
for being purely potestative and having this kind of discretion,
the testator could have trusted the heir.
Article 877. If the condition is casual or mixed, it shall be
sufficient if it happen or be fulfilled at any time before or after
the death of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the
time the will was executed and the testator was unaware
thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be considered
fulfilled only when it is of such a nature that it can no longer
exist or be complied with again. (796)
Here, the condition is casual and mixed. These are not
dependent entirely upon the will of the heir. The law says it
shall be sufficient if it happen or be fulfilled at any time before
or after the death of the testator because it is difficult to
comply with this since it is beyond the control of the heir.
Thus, it is sufficient that it will be complied at any time before
or after the death of the testator, unless he has provided
otherwise.
With respect to compliance, authorities suggest that because
the testator mandated that the condition is dependent upon
chance, being casual and mixed, the testator does not trust
the heir that much. Here, it should be strict compliance.
Further, the law says should it have existed or should it have
been fulfilled at the time the will was executed and the
testator was unaware thereof, it shall be deemed as complied
with. For example, I will give a parcel of land to A if he
becomes a lawyer BUT (1) he does not know that at the time
of making of the will, A is already a lawyer OR (2) he has
knowledge that A is already a lawyer and he still imposed that
condition, in both cases, it shall be deemed as complied with if
it is in a nature that it cannot be complied with again. But, if
the heir can comply it again, he should comply it again.
Article 878. A disposition with a suspensive term does not
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of the
term. (799a)
Here, it is an institution subject to a term or period. Also,
there is the element of certainty. The period or time will really
arrive. For example, in 2000, the testator provided that I
hereby give my car to A after two years from the day of my
death. So, in 2002, A will get the car. But if A died in 2001,
the law says it does not prevent the instituted heir from
acquiring his rights and transmitting them to his heirs even
before the arrival of the term. So if heir-A dies before the
arrival of the term, his right will be transferred to his own
heirs. In 2002, the estate of the testator will give the car to
the heirs of A.
This is different from a suspensive condition because in a
suspensive condition, unless the condition is fulfilled, the heir
does not acquire any right in the inheritance so the effectivity
of the inheritance is subordinate to the fulfillment of the
condition.
However, if it is a term, there is already a right acquired. Only
that, the enjoyment of the right is suspended in the
meantime. Even if the heir dies before the arrival of the term,
he already acquired rights to the inheritance and he can
transfer it to his own heirs.
Article 879. If the potestative condition imposed upon the
heir is negative, or consists in not doing or not giving
something, he shall comply by giving a security that he will
not do or give that which has been prohibited by the testator,
and that in case of contravention he will return whatever he
may have received, together with its fruits and interests.
(800a)
It talks about a negative potestative condition. The
condition is purely dependent upon the heir and that condition
is not to do or not to give. It is the security of the estate that
the heir will not do or not give what has been prohibited. For
example, I hereby give my car to A if he will not cut his hair.
It is potestative on the part of A since it is depends on him if
he cuts his hair or not. Also, it is immediately executory but
the heir must give a security that he will not do what is
prohibited. If he does, he must return what he has received.
It is caucion muciana (the term given for the security).
Article 880. If the heir be instituted under a suspensive
condition or term, the estate shall be placed under
administration until the condition is fulfilled, or until it
becomes certain that it cannot be fulfilled, or until the arrival
of the term.
The same shall be done if the heir does not give the security
required in the preceding article. (801a)
These are the instances when the estate is placed under
administration.
Ad Majorem Dei Gloriam
1. If the heir be instituted under a suspensive condition.
In the meantime that the condition is not yet fulfilled,
it should still not be delivered to the heir. The
property will be under administration until the
condition is fulfilled or until it becomes certain that it
cannot be fulfilled.
2. If the heir be instituted under a term. In the
meantime that the term does not yet arrived, the
property will be under administration until the arrival
of the term. So when the term ends, the property will
be delivered to the heirs.
The administration ends:
1. If institution is subject to suspensive condition, when
the condition is fulfilled and the property shall be
delivered to the heir.
2. If it is subject to suspensive condition, when it
becomes certain that the condition cannot be fulfilled
and the property shall be delivered to the heir.
3. If it is subject to a term, upon the arrival of the term.
The second paragraph applies to situation where the
institution is subject to a negative potestative condition.
Supposedly, it is immediately executor upon the payment of
the bond. In the meantime that the heir has not yet paid the
bond, the property will be placed under administration.
Article 881. The appointment of the administrator of the
estate mentioned in the preceding article, as well as the
manner of the administration and the rights and obligations of
the administrator shall be governed by the Rules of Court.
(804a)
Administration of property will be discussed deeply in your
special proceedings. Just remember that if the testator left a
will and he appointed a person who shall administer his
estate. The person is known as the executor. If he made a will
but did not appoint an executor, there has to be someone to
administer the properties, so that person will be the
administrator. If there is no will and no appointed executor,
during the pendency of the distribution, the court will appoint
an administrator. If a person is male, his is called executor or
administrator and if female, she is called an executrix or
administratrix. The administrator has several duties.
Basically, his duties are:
to oversee the estate,
to reserve the estate,
to pay the debts of the estate, and
to distribute the estate among the heirs.
Article 882. The statement of the object of 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.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
That which has been left in this manner may be claimed at
once provided that the instituted heir or his heirs give security
for compliance with the wishes of the testator and for the
return of anything he or they may receive, together with its
fruits and interests, if he or they X should disregard this
obligation. (797a)
This is called modal institution. As mentioned in Article 882,
it is an institution where there is a statement of the object of
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. For example, I hereby institute A as heir of my
property but he has to set up a foundation and use the
proceeds of the inheritance for the said foundation or I hereby
give to A this riceland and a quarter will be given to X for the
proceeds of harvest each year so that is an application. A
charge would be- I hereby give to a half of my estate but he
will give an allowance to X until he dies.
The rule says if there is a statement of the object of the
institution, or application of the property left, or a charge
imposed by him, these will not be considered as condition.
The institution is effective immediately. There is no need to
wait for the heir to apply the property based on the instruction
of the testator or no need to wait to pay all charges before he
can enter into the inheritance. These are obligations of the
heir but they do not determine the effectivity of the
inheritance. The heir has to do these charges as part of his
obligation. Effective upon the death of the testator, he enters
into the property. He assumes all the rights and obligations of
the heir instituted but he has to comply, otherwise, he forfeits
the inheritance. This is the negative aspect of the institution.
There is a need to distinguish a condition and a mode as it
determines when an heir acquired ownership on the property
left.
Mode Condition
Heir immediately enters Heir cannot enter or enjoy the
and enjoys the property property until after the
condition has been fulfilled
Obligatory: Heir has to do Not obligatory: Heir is not
what is imposed by the obliged to fulfill the condition
testator under the pain of as it may depend upon chance
forfeiting the inheritance in or of 3rd persons and the
case of non-compliance condition may or may not
happen and even beyond the
control of the heir.
If in doubt if the institution is modal or conditional, the doubt
shall be resolved in favor of a mode.
For example, I hereby give my properties to A but A has to
form a foundation and he will apply a half of the income of
this inheritance to the foundation. Is it a mode or condition? If
it is a condition, the heir has to first form the foundation
before he can get the inheritance. If it is a mode, he
Ad Majorem Dei Gloriam
immediately gets his inheritance and he must form a
foundation in order not to forfeit it. In case of doubt, the
setting up of foundation is a mode because between mode
and condition, the mode is more consistent with the liberality
and generosity of the testator. In a mode, the inheritance is
immediately effective whereas in a condition, it may or may
not happen. Thus, there is more certainty in the part of the
mode other than condition.
If there is doubt whether one is of a mode or a suggestion,
the doubt shall be resolved in favor of the suggestion.
Suggestion is more in keeping with the concept of liberality
and generosity of the testator which is the underlying reason
for succession. If it is suggestion, even if the heir does not
follow, he shall not lose the inheritance. But if it is a mode,
non-compliance means forfeiture.
Rabadilla vs Court of Appeals
In the Codicil of testatrix, Dr. Rabadilla (predecessor in
interest of petitioner) was instituted as a devisee of Lot No.
1392 contained the following provisions among others:
Rabadilla shall have the obligation until he dies,
every year to give to Belleza 100 piculs of sugar
until Belleza dies;
Should Rabadilla die, his heir to whom he shall give
Lot No. 1392 shall have the obligation to still give
yearly, the sugar as specified to Belleza.
In the event that the lot is sold, leased, or
mortgaged, the buyer, lessee, mortgagee shall have
also the obligation to respect and deliver yearly
sugar to Belleza. Should the command be not
respected Belleza shall immediately seize the lot and
turn it over to the testarix near descendants.
Not a simple substitution.
In simple substitutions, the second heir takes the inheritance
in default of the first heir by reason of incapacity, predecease
or renunciation. The Codicil does not provide that should Dr.
Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would
substitute him. What the Codicil provides is that, should Dr.
Jorge Rabadilla or his heirs not fulfill the conditions imposed
in the Codicil, the property referred to shall be seized and
turned over to the testatrixs near descendants.
No fideicommissary substitution.
In a fideicommissary substitution, the first heir is strictly
mandated to preserve the property and to transmit the same
later to the second heir. Here, the instituted heir is in fact
allowed under the Codicil to alienate the property provided
the negotiation is with the near descendants or the sister of
the testatrix. Thus, a very important element of a
fideicommissary substitution is lacking, the obligation clearly
imposing upon the first heir, the preservation of the property
and its transmission to the second heir. Also, the near
descendants' right to inherit from the testatrix is not definite.
The property will only pass to them should Dr. Rabadilla of
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
his heirs not fulfill the obligation to deliver part of the
usufruct to private respondent. Moreover, fideicommissary
substitution is void if the first heir is not related by first
degree to the second heir. In the case under scrutiny, the
near descendants are not all related to the instituted heir, Dr.
Rabadilla.
Not a conditional institution.
It is clear that the testatrix intended that the lot be inherited
by Dr. Rabadilla. It is likewise clearly worded that the
testatrix imposed an obligation on the said instituted heir and
his successors-in-interest to deliver sugar to Belleza, during
the lifetime of the latter. However, the testatrix did not make
Dr. Rabadillas inheritance and the effectivity of his
institution as a devisee, dependent on the performance of
the said obligation. It is clear though that should the
obligation be not compiled with the property shall be turned
over to the testatrix near descendants. Since testamentary
dispositions are generally acts of liberality an obligation
imposed upon the heir should not be considered a condition
unless it clearly appears from the Will itself that such was the
intention of the testator. In case of doubt, the institution
should be considered as modal not conditional.
The manner of institution of Dr. Rabadilla is modal in nature
because it imposes a charge upon the instituted heir without,
however, affecting the efficacy of such institution. A mode
imposes an obligation upon the heir or legatee but it does
not affect the efficacy of his rights to the succession. On the
other hand, in a conditional testamentary disposition, the
condition must happen or be fulfilled in order for the heir to
be entitled to succeed the testator. The condition suspends
but does not obligate; and the mode obligates but does not
suspend. To some extent, it is similar to a resolutory
condition.
September 21 (EAE)
Art. 883. When without the fault of the heir, an institution
referred to in the preceding article cannot take effect in the
exact manner stated by the testator, it shall be complied with
in a manner most analogous to and in conformity with his
wishes.
If the person interested in the condition should prevent its
fulfillment, without the fault of the heir, the condition shall be
deemed to have been complied with. (798a)
Under Article 883, in the institution, meaning the modal
institution referred to in 882, diba there are certain obligations
imposed by the testator, if those cannot be complied with in
the exact manner stated by the testator, substantial
compliance will be sufficient.
Now insofar as a conditional institution is concerned, if the
heir also is not able to fulfill the condition and the reason for
the nonfulfillment is due to the fault of the persons interested
in the condition, like for example, what will happen if the
instituted heir cannot get the share? Were referring here to
the voluntary heir. To whom shall his share go? It will go to
Ad Majorem Dei Gloriam
the legal heirs because supposedly if the condition cannot be
fulfilled the institution will not be given effect. The share of
the instituted heir will go to the legal heirs.
Example:
The legal heirs themselves prevented the heir from fulfilling
the condition? What will happen? Will the instituted heir forfeit
the inheritance? The law says it shall be deemed complied
with. So there shall be constructive fulfillment.
The first paragraph refers to substantial compliance; the
second paragraph refers to constructive fulfillment. Even if it
is not fulfilled it is deemed complied with, so that the
instituted heir will still get the inheritance.
Art. 884. Conditions imposed by the testator upon the heirs
shall be governed by the rules established for conditional
obligations in all matters not provided for by this Section.
You already discussed in your Obligations and Contracts the
concept of conditional obligations. We just discussed the
concept of institution subject to conditions. The same rules in
conditional obligations can be applied to conditional
institutions except when certain rules specifically apply only to
conditional institutions.
Example:
The concept of impossible conditions. If an institution is
subject to an impossible condition, what will happen? The
condition will be deemed not written. So give effect to the
institution. But in Obligations, if the obligation is subject to an
impossible condition, the conditional obligation is void. So, we
dont say na it is deemed not written. Because in obligations,
the imposition of the condition is an important part of the
obligation. It goes into the consideration of the obligation.
If there is an impossibility that is attached to the
consideration, the existence of the obligation is itself affected.
We cannot say that in an obligation the underlying
consideration is the liberality or generosity of the creditor, no.
But in succession it is really the underlying consideration the
generosity or the liberality of the testator, so we just
disregard the impossible condition.
Art. 885. The designation of the day or time when the effects
of the institution of an heir shall commence or cease shall be
valid.
In both cases, the legal heir shall be considered as called to
the succession until the arrival of the period or its expiration.
But in the first case he shall not enter into possession of the
property until after having given sufficient security, with the
intervention of the instituted heir. (805)
Were now referring to an institution subject to a term or
period.
Again, as we have already discussed, a period is a certain and
future event which must necessarily come. So certainty plus
futurity.
I will give this one hectare land to B five years after my
death. That is a period. It will necessarily come.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
I will give one half of my property to X but X will enjoy this
upon the death of A. The death of A is a period because
everybody dies, although again it may not be known when.
If the testator says, I will give to A one half of my estate if X
will die by year 2017. Is that a period or condition? The
death of X is definite. But whether or not he will die by 2017
is not definite, it is uncertain. So it is a condition; it is not a
period.
As we have discussed, the period can be suspensive or
resolutory. When you say suspensive period, we have to wait
for the arrival of the period so that the institution can become
effective. If it is a resolutory period, upon the arrival of the
period the institution is ended. So effective immediately upon
the death of the testator, the institution becomes effective.
That is in a resolutory period. But it ends upon the death of
the testator.
But as we have also discussed, let us go back to a suspensive
period, even if we say that in a suspensive period the heir
does not yet enjoy the property until the arrival of the period,
but it is only the enjoyment that is being referred in the
meantime, in the reality the heir already acquired some rights
to the inheritance. If for example the period is 5 years after
the death of the testator, but 2 years pa lang after the death
the heir instituted subject to the period dies, will the heir get
the inheritance? Yes. Because there was already transmission,
although it was just suspended or deferred. What will happen
is after 5 years, because A is already dead, the heir is already
dead, then his own heirs can get the property. Unlike in a
suspensive condition where the condition really has to happen
before the rights of the heirs can become effective. So if the c
condition will not happen, then the heir instituted will never
inherit. So that is the distinction between a period and a
condition.
The law also mentions a security. But in the first case he
shall not enter into possession of the property until
after having given sufficient security, with the
intervention of the instituted heir. What do we mean by
this? To which kind of institution will it apply? Will it apply to a
suspensive period or a resolutory period?
It will not apply to a suspensive period because again, if the
institution is subject to a suspensive period, prior to the arrival
of the period, the property shall be under administration.
When the period arrives, then it will go to the instituted heir.
It applies to an institution subject to a resolutory period. So
immediately the heir will get the inheritance. But upon the
arrival of the term, and it is definite that the term will arrive,
he will have to return the property to the estate. But what if
the heir has already destroyed the property? Or it has
deteriorated through the fault of the heir? So that is the
reason why a security is required. It will answer for
anydeterioartion or diminution in the value of the property
due to the fault of the heir.
Just like in an institution subject to a mode, there is a
requirement of giving security, or also an institution which is
subject to a negative potestative condition, it is also subject to
Ad Majorem Dei Gloriam
the giving of a security. These are some of the instances
where the heir is to give a security.
Now we go to legitimes. Legitime is very important ha. So you
cannot pass Succession without knowing legitime.
SECTION 5. Legitime
What is a legitime?
Art. 886. Legitime is that part of the testator's property
which he cannot dispose of because the law has reserved it
for certain heirs who are, therefore, called compulsory
heirs. (806)
This is the portion reserved by law for the compulsory heirs. If
we have the estate of the testatorjust imagine nalang a
pizzausually, mao na siya ang totality sa estate. Naay
portions dira na the testator cannot give to anybody else
except to the compulsory heirs. Like for example, he left
children, illegitimate children. The law provides what are the
legitimes of the compulsory heirs. So the legitimate children
are entitled to one half. 1/2 of the pizza or the estate (basin
pizza inyong ianswer sa bar) cannot be disposed of, cannot be
given to anybody else except to the children who are the
compulsory heirs. The other half, that is the free portion. The
testator has discretion to whom he shall give the free portion.
There are certain compulsory heirs whose shares, even if you
call them legitimes, but they are taken from the free portion.
For example, the testator left legitimate children and a
spouse. So the legitimate children are entitled to of the net
hereditary estate. How about the spouse? The spouse is also
entitled to a legitime. If there are two or more legitimate
children, the spouse is entitled to a share equivalent to the
share of one legitimate child. So asanatokwaonang share sa
spouse? Didto sa free portion. So free portion is not actualy
really free, kay naa pa man makuha na share didto sa
surviving spouse, makuha pa didto ang share sa illegitimate
children. So after satisfying the share of the surviving spouse,
kadtong nabilin, mao na gyud to siya ang tinuod na Free
Portion. That is what we call the free disposal. The legitime is
provided for by law, and this is reserved to the compulsory
heirs. So it is important that you should know who are the
compulsory heirs.
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
(3) The widow or widower;
[(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in
Nos. 1 and 2; neither do they exclude one another.]
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
In all cases of illegitimate children, their filiation must be duly
proved.
The father or mother of illegitimate children of the three
classes mentioned, shall inherit from them in the manner and
to the extent established by this Code. (807a)
You have to revise Article 887 because there are certain
classes here of compulsory heirs who no longer exist because
of the Family Code. So to simplify who are the compulsory
heirs, we have the:
1. legitimate children and descendants, with respect to
their legitimate parents and descendants
2. in default of the foregoing, legitimate parents and
descendants
3. widow or widower
4. illegitimate children
So these are the compulsory heirs. We no longer have the
acknowledged natural children, natural children by legal
fiction, wala na ni sila. So four.
Lets go back to the first group: the legitimate children and
descendants. We call them primary compulsory heirs. They
are not excluded by any class of heir. As long as they survive,
they always inherit. The law says legitimate parents and
ascendants.
So for example this is the testator, and naa siyay anak na si A,
and si A pud naa anak na si B.
Testator
A Now you have under the Family Code the pieces of evidence
B you can also prove your illegitimate filiation by the same
If the testator dies, who shall succeed from him? Should it be
A and B because the law says legitimate children and
descendants? No. We follow the rule on proximity. The nearer
relatives exclude those who are far.
So A is nearer to the testator, therefore A will exclude the
descendant.
Pero halimbawa si A predeceased the testator, then it will be
the descendant. Or if A repudiated the inheritance, and there
are no other children, si descendant gihapon. So the
descendant may inherit by representation or in his own right,
depending on the situation. Again we follow the rule on
proximity.
Adopted children, are they entitled to inherit? Yes they are
considered as legitimate children.
Number two: in default of legitimate children and
descendants, so halimbawawalayanak, walayapo, etc., then
the parents, legitimate parents and ascendants. The parents
are what we call secondary compulsory heirs. Why? Because
they are excluded by the children and descendants. They only
inherit if there are no children and descendants.
Ad Majorem Dei Gloriam
Now if the survivors are the father of the testator and
grandfather of the testator, who will inherit? Again we follow
the rule on proximity. The nearer relatives exclude those who
are far.
Now widow or widower. Here, we are referring to the legal
spouse. The legal husband or the legal wife. Even if the
spouses had lived together as husband and wife for 50 years
but without the benefit of marriage, the widow or widower will
not inherit, will not be considered as a compulsory heir. We
are referring here to the legal spouse.
And illegitimate children.So illegitimate children are also
entitled to inherit. Before, they were not given successional
rights, but under the New Civil Code, clearly, they have rights;
they are entitled to inherit from their parent.
The widow or the widow and the illegitimate children concur
with the legitimate children. So they are concurring
compulsory heirs. They are not excluded by the presence of
other heirs. They concur with the children; they concur with
the parents; they concur with the spouse, with all of them.
Unlike sakadtong parents na they are excluded by the
presence of the legitimate children.
Going back, the second to the last paragraph of Article 887
says, In all cases of illegitimate children, their filiation
must be duly proved.
So if you are an illegitimate child, your right to inherit is
dependent on you having proved your illegitimate filiation.
Even if you successfully prove that you are really an
illegitimate child, it is not sufficient. There has to be a
recognition, either voluntary or involuntary.
admissible to prove filiation: you have the primary evidence
and the secondary evidence. If you are an illegitimate child,
evidence for legitimate children.
Ilano vs. CA
Here the Supreme Court discussed the right of the illegitimate
child to inherit from the parent. The Supreme Court clarified
that even if the illegitimate children can inherit, there must
first be a recognition of paternity either voluntarily or by court
action.
This arises from the legal principle that an unrecognized
spurious child like a natural child has no rights from his
parents or to their estate because his rights spring not from
the filiation or blood relationship but from his
acknowledgment by the parent. In other words, the rights of
an illegitimate child arose not because he was the true or real
child of his parents but because under the law, he had been
recognized or acknowledged as such a child.
You have to prove that you were acknowledged beforehand,
before you can invoke your right to inherit from the testator.
Going back to the Family Code, what are the pieces of
evidence allowed to prove filiation? We have again the
primary evidence and the secondary evidence. Examples of
primary evidence: public record of birth, your birth certificate,
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
there is there a signature by your father acknowledging that
he is your father; or not in a birth certificate, in a private
document subscribed by the parent. Wala siya sa birth
certificate pero nay other document signed by the father
where he acknowledged that you are his illegitimate child.
Those are called primary evidence.
In the absence of those kinds of evidence, you can also prove
your illegitimate filiation by common reputation, you discussed
about that in your Evidence? Halimbawa, when you were a
child, you had enjoyed the reputation of being the illegitimate
child of this man, or you had been recognized by the relatives,
etc.DNA evidencethat is secondary evidence that can also
be used to prove filiation. But, these secondary evidence can
only be invoked during the lifetime of the putative parent. You
cannot use them upon the death of the putative parent.
Halimbawa namatay si testator, and here comes A, claiming
that he is an illegitimate child of the testator, therefore he
intervenes in the proceeding, whether probate or intestate, he
intervenes. If he has with him a primary evidence, like he has
with him a birth certificate where his father signed, then he
can prove his illegitimate filiation. But if wala, anolang, he had
been recognized lang by the relatives, even by the father,
ginapaadto siya sa balay, kadtong buhi pa, sige siya adto sa
birthday, mga pictures na gitauran siyag ribbon tapos ang
iyang papa tapad sa iyaha, sa iya ha pud baptism naa siyay
picture, would that be allowed? No, because those pieces of
evidence are what we call secondary evidence. They are not
allowed upon the death of the putative parent.
You cannot use them to prove your filiation, and because you
were not recognized during the lifetime, you do not have
primary evidence, then you cannot inherit, because you
cannot prove. You cannot inherit because you cannot prove
anymore your illegitimate filiation. You cannot compel
recognition because what you have are merely pieces of
secondary evidence which are not allowed. Even DNA
evidencepatay naman, so pwede siguro hair na lang. Dili na
siya upon the death of the putative parent, because again that
is considered as secondary evidence.
Now we go to the specific legitimes. We will first discuss the
specific legitimes of the compulsory heirs. We will skip 891
because this talks of reserve troncal. We will discuss this after
we have discussed all the legitimes of the compulsory heir.
First we go to the specific legitime.
Art. 888. The legitime of legitimate children and descendants
consists of one-half of the hereditary estate of the father and
of the mother.
The latter may freely dispose of the remaining half, subject to
the rights of illegitimate children and of the surviving spouse
as hereinafter provided. (808a)
The legitime of the legitimate children and descendants, the
law says 1/2. So if you only have one child and legitimate,
that child gets . If you have two, then the two of them will
divide the half. If the estate is 1 million, so you have two
children, legitimate, the legitime is P500,000. So they will
divide the P500,000 by two. Each will get P250,000. Kung tulo
Ad Majorem Dei Gloriam
sila, tungaon ni (P500,000) equally. Basta divided by all of
the legitimate children. The other half, the law says, the free
portion, subject to the legitime of the surviving spouse and
illegitimate children.
Estate: P1,000,000
Legitime: of P1,000,000 = P500,000
One legitimate child
A of P1,000,000 = P500,000
Two legitimate children
A of P500,000 = P250,000
B of P500,000 = P250,000
Now you have to memorize the table of legitimes. You cannot
just recall. You have to memorize, because lahibayanang
sa . Kay kung marecall niya, murag man to, murag --
dili pwede na murag. It should be absolute kay dira
magdepend imong answer. Okay ra man nag essay kay
machikachika man na nimo gamay. Ang computation dili
machikachika. So tama gyud dapat imong answer.
Now we go to Article 889.
Art. 889. The legitime of legitimate parents or ascendants
consists of one-half of the hereditary estates of their children
and descendants.
The children or descendants may freely dispose of the other
half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (809a)
889, the legitime of the legitimate parents or ascendants. How
much? of the net hereditary estate. Take note ha, the
legitimate parents and ascendants, they inherit in the absence
of the legitimate children. They just take the place of the
legitimate children. Take note the same sila ug legitime. of
the net hereditary estate.
Art. 890. The legitime reserved for the legitimate parents
shall be divided between them equally; if one of the parents
should have died, the whole shall pass to the survivor.
If the testator leaves neither father nor mother, but is
survived by ascendants of equal degree of the paternal and
maternal lines, the legitime shall be divided equally between
both lines. If the ascendants should be of different degrees, it
shall pertain entirely to the ones nearest in degree of either
line. (810)
Example:
This is the testator, his estate is P1,000,000. No children, so
his heirs will be his parents. He left a will, so testate
succession. The legitime of the parents will be . P500,000.
If both the mother and the father survive, they shall divide the
P500,000 in equal shares. P250,000 for the father, P250,000
for the mother.
(250k) Father Mother (250k)
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Testator
For example the mother predeceased the testator, so died
ahead of the testator. Who shall inherit from the testator? Of
course the father. Who else? The grandparents on the
mothers side? No. Why, how about the right of
representation? No.
Remember, in Succession, the right of representation applies
only to the descending line. There is no right of representation
in the ascending line. We follow here the law on gravity.
Always down.
The testator died, survived by his father. The entire legitime
of P500,000 goes to the father. How about if the father also
died? The survivors are grandparents both on the fathers side
and the mothers side. They will divide the P500,000. We
divide it by line: maternal line, paternal line. To the maternal
line, P250,000; to the paternal line, P250,000.
Kinsamagtungadidtosagranparents? Both surviving, so
P250,000 divided by two, P125,000. So upatka P125,000.
(250k) Grandparents Grandparents (250k)
(deceased) Father Mother (deceased)
Testator
Now what if the grandmother in the paternal line also
predeceased? So the only survivors are the grandfather,
paternal line, and grandparents both, maternal line. How do
we divide? Do we divide by 3? We divide by line. Always by
line, maternal, paternal. So sa fathers side, P250,000, si
grandfather lang magenjoy. Mothers side, P125,000,
P125,000. That is how we decide in so far as the ascending
line is concerned.
We now proceed to Article 892.
Art. 892. If only one legitimate child or descendant of the
deceased survives, the widow or widower shall be entitled to
one-fourth of the hereditary estate. In case of a legal
separation, the surviving spouse may inherit if it was the
deceased who had given cause for the same.
If there are two or more legitimate children or 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. (834a)
The legitime of the surviving spouse who survives with
children or a child. Just take note, if there is one legitimate
child who survives with the spouse, the child is entitled to ,
the spouse is . The share is to be taken from the free
portion. If there are two or more legitimate children, the share
Ad Majorem Dei Gloriam
of the spouse becomes equivalent to the share of one
legitimate child.
Again for example, the estate is P1,000,000 the testator left
only one child and only one spouse, the child gets P500,000
as legitime, the spouse gets P250,000 as legitime, . If there
are four legitimate children, so they shall divide the P500,000
by 4. They shall inherit P125,000 each. The spouse is also
entitled to P125,000. Take note, the legitime of the spouse
varies. Primer okay P250,000, niya karon P125,000 na lang.
So beneficial gyud nang gamay lang kaganak, kay kung
daghan, madilute imong legitime. The legitime of the spouse
is also what we call variable legitime, because its amount
varies. Also taken from the free portion.
Now the law says if there is legal separation, if here is a
decree of legal separation as you have learned in the Family
Code, the guilty spouse is disqualified to inherit by testate or
intestate succession from the innocent spouse. If it is the
testator who was the guilty spouse, so ang surviving spouse
makainherit gihapon. But if it is the testator who is the
innocent spouse, then the surviving spouse forfeits the
legitime, disqualified to inherit. That is, kung nay decree.
Kung pending lang ang case, walay pronouncement sa court,
qualified gihapon.
Now we go to Article 893.
Art. 893. If the testator leaves no legitimate descendants,
but leaves legitimate ascendants, the surviving spouse shall
have a right to one-fourth of the hereditary estate.
This fourth shall be taken from the free portion of the estate.
So to the legitimate parents or ascendants, to the
surviving spouse.
Art. 894. If the testator leaves illegitimate children, the
surviving spouse shall be entitled to one-third of the
hereditary estate of the deceased and the illegitimate children
to another third. The remaining third shall be at the free
disposal of the testator. (n)
So here the survivors are the spouse and illegitimate children.
So 1/3 to the spouse, 1/3 to the illegitimate children, and 1/3
the free portion.
If youre asked, when will be that situation where the free
portion is 1/3? You can answer: if the survivors are the
spouse or the illegitimate children.
Art. 896. Illegitimate children who may survive with
legitimate parents or ascendants of the deceased shall be
entitled to one-fourth of the hereditary estate to be taken
from the portion at the free disposal of the testator. (841a)
Del Rosario vs. Cunanan
An adopted child has the status and enjoys the same rights as
legitimate children. What will be the successional rights of
legitimate parents when they concur with a legitimate child?
They are excluded. Here, the problem is we have an
illegitimate child. Supposedly under the law, the illegitimate
child has the same rights as the legitimate child. So if he has
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
the same rights as the legitimate child, he should exclude the
parents of the adopter.
Here the Supreme Court did not rule that the parents should
be excluded, because comparing with the adopted child, the
adopter and the parents are bound by the ties of blood,
whereas the adopter and the adopted are only bound by
fiction of law. The relationship was created by fiction of law.
Here, the adopted child was treated, and iyahang share lang
ha, was treated like the share of an illegitimate child. So wala
giexclude sa adopted child ang parents.
With the Family Code and the Domestic Adoption Act, how do
we apply this provision? Actually, if you examine the Civil
Code on adoption, and then the Family Code, and then the
Domestic Adoption Act, they all say that the adopted child has
the same rights as a legitimate child. But kaning provision,
theres no specific provision on excluding the legitimate
parents if an adopted child survives. And this case of Del
Rosario vs. Cunanan, this was decided in, March 30, 1977,
under the Civil Code, there is actually no change sakadtong
insofar as the rights of an adopted child are concerned. DIli
kayo siyaklaro. So there are actually two views on the matter.
The question is under the present laws, what if an adopted
child concurs with legitimate parents? How do we divide the
estate?
One view: you can still follow the ruling in the case
of Del Rosario vs. Cunanan. Under the rationale
that the ties that bind the testator or the decedent
and the parents, they are bound by blood. It would
be unfair to treat the adopted with more priority who
is only bound by legal fiction to the adopter. And
besides, we cannot say that under the Domestic
Adoption Act and the Family Code, that they changed
the application, because there is no specific
provision, even if you examine. And authorities say
that implied repeals are not favored. So good law
gihapon.
The other view. It is simpler just follow the
concept na if an adopted child has the same rights as
a legitimate child, and a legitimate child excludes the
parents, then the parents are excluded. So wala pay
bago na ruling aside from the case of Del Rosario.
Wala pay bago na ruling and then the laws are not
clear.
If you have a case like this in the future, it will depend kung
kinsa imong client.
If your client is the adopted child, then you follow
the concept na ang adopted child has the same
rights as the legitimate child, and being a legitimate
child, he excludes the legitimate parents.
But if you are the lawyer for the parents, then you
follow the case of Del Rosario vs. Cunanan. And
you cite that there is no specific provision in the
Family Code or in the Domestic Adoption Act saying
that the parents are excluded, and that implied
repeals are not favored.
Ad Majorem Dei Gloriam
Kung sa bar exam, to be safe, duha nalang imong ianswer.
Because there is no specific and categorical declaration as to
this.
Art. 899. When the widow or widower survives with
legitimate parents or ascendants and with illegitimate
children, such surviving spouse shall be entitled to one-eighth
of the hereditary estate of the deceased which must be taken
from the free portion, and the illegitimate children shall be
entitled to one-fourth of the estate which shall be taken also
from the disposable portion. The testator may freely dispose
of the remaining one-eighth of the estate. (n)
Here, the survivors are the spouse and then the legitimate
parents and ascendants, and the illegitimate children. So how
do we divide the estate? to the parents, to the
illegitimate children, 1/8 to the spouse.
When you say to the illegitimate children, so if there are
three of them, they will divide equally the . Not the each,
but for the group to be divided equally among them.
Take note here that the spouse gets only 1/8. So it seems
that the spouse is being penalized for not having children with
the testator. Some authorities would say that this is one of the
many unholy provisions in the Civil Code. Here, number one,
because unfair sa spouse, kay tungod lang wala siya
nakaanak sa testator, gamay na iyahang share.
Then we go to Article 900.
Art. 900. If the only survivor is the widow or widower, she or
he shall be entitled to one-half of the hereditary estate of the
deceased spouse, and the testator may freely dispose of the
other half. (837a)
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. (n)
Here, we have the spouse as the only survivor, the only
compulsory heir who survives. Take note of the legitime of the
spouse.
GR: The spouse is entitled to if he or she is the only
survivor.
Exception: But if the marriage between the spouse the
surviving spouse and the testatorwas celebrated in Articulo
Mortis (at the point of death) and the testator died within 3
months from the celebration of the marriage, how much is the
legitime of the spouse? Reduced to? How much? 1/3. Take
note ha, at the time of marriage in Articulo Mortis, it should be
the testator who was in the point of death. Kay kung
halimbawa ang himalatyon diay didto kay ang surviving
spouse, we cannot apply this.
The reason for the reduction of the share of the spouse is to
prevent marriage by reason of money. Kay Hala sige
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
musugot nalang ko, mamatay na bitaw ka. Mga siguro pila
nalang ni kaadlaw, hala sige musugot nalang ko. Niya
namatay gyud. Naa siyay legitime tuon pero 1/3 lang.
Pero kung kadtong nagtinga kay kadtong nakasurvive diay, dili
siya mag-apply. It should be the testator who was at the point
of death at the time of the marriage in Articulo Mortis. Take
note, 3 months from the celebration of marriage.
Again so general rule, . Exception, 1/3.
Exception to the exception: Even if the marriage was
celebrated in Articulo Mortis, and the testator died 3 months
from the celebration of the marriage, but if prior to the
marriage they had been living together as husband and wife
for at least 5 years, then ang share sa spouse.
Because here, the law sees that it is not really for money that
the spouse married the other, but because of love. Because
even before that they had been living together as husband
and wife.
Pero kung didto lang sila nagkita sa eroplano, nagpakasal, or
two months lang before basta 5 years, living as husband
and wife for 5 years. Diba exception napud na sa marriage
license. So .
Art. 902. The rights of illegitimate children set forth in the
preceding articles are transmitted upon their death to their
descendants, whether legitimate or illegitimate. (843a)
So halimbawa si illegitimate child inherited from the father,
and then (illustrations)
First scenario: testator namatay, survivor the illegitimate child,
of course the illegitimate child inherited. If he dies (illegitimate
child), he will also be succeeded by his children.
Now what if the illegitimate child died ahead of the testator?
Testator
A (illegitimate)
(legitimate) X Y (illegitimate)
So now, ang nabilin nalang si X ug si Y. Si X legitimate child ni
A, si Y illegitimate child ni A. Si A illegitimate. Namatay si A
ahead of the testator. And then namatay napud si testator.
Can X represent A? Can Y represent A? Meaning sila na ang
mustep sa shoes ni A to get the share of A? Can they
represent A? Yes.
The law is very clear. He transmits his right to his
descendants, whether legitimate or illegitimate. We are talking
of testamentary succession. We will discuss another similar
concept in legal succession.
Lets go to 903.
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
Ad Majorem Dei Gloriam
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. (n)
Legitimate parents surviving with illegitimate children. How
much ang sa parents? Remember, sa testamentary
succession, always, if legitimate parents survive, angiyaha.
Didto nalang ka mamroblema sa isa, kadtong iyahang
kapartner. So si illegitimate children pila man? . Surviving
with the spouse? .
If you notice, diba, ang surviving spouse, as I said, variable
legitime. And I said that you have to memorize the legitimes
of the compulsory heirs. So to better memorize the table of
legitimes, you start with the legitime of the surviving spouse.
Surviving spouse surviving alone, spouse surviving with
children, etc. So unahon ninyong memorize para mas dali
ninyo makuha.
Now with respect to the parents, the article talks not only of
legitimate parents but also of illegitimate parents. Kinsa man
ang illegitimate parents? Sila ang parents sa illegitimate child.
If you are an illegitimate child, your parent is your illegitimate
parent.
Legitimate parents surviving with legitimate children, pila ang
legitime sa parents? Zero.
Legitimate parents surviving with illegitimate children? . Sa
illegitimate .
Now under this article, illegitimate parents surviving with
children, whether legitimate or illegitimate, how much? Take
note ha, if we are talking of illegitimate parents, they are
excluded by the presence of children, whether legitimate or
illegitimate children. So basta illegitimate parents excluded by
children. Mao na siya ang under sa article 903.
Now we go to Article 904.
Art. 904. The testator cannot deprive his compulsory heirs of
their legitime, except in cases expressly specified by law.
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever. (813a)
I think we discussed this also before. First is, the legitime is
reserved by law to the compulsory heirs. So even if the
testator did not mention about this in his will, it is implied that
he has to give or whatever to his compulsory heirs as their
legitime. And he cannot even expressly deprive his heirs of
their legitimes without a valid ground.
So for example, if the testator forgets about the legitime of his
compulsory heirs and disposes of all his properties to other
people, what will happen? There will be preterition. So the
institution of heirs shall be annulled. The estate shall be given
to the legal heirs, the compulsory heirs who are also the legal
heirs. So satisfied gihapon ang legitime.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Now if the testator expressly excluded a child or compulsory
heir from his estate but the ground is not valid, what will
happen? This is a case of invalid disinheritance. The law says
the legitime of the invalidly disinherited heir shall be satisfied.
In all cases. He can only deprive a compulsory heir of his
legitime for causes provided for by law. When we go to
disinheritance, we will discuss what are those grounds. So he
cannot deprive his compulsory heirs of their legitime, except
in cases specified by law. And he cannot impose any burden,
encumbrance, condition, or substitution of any kind
whatsoever.
Again this is to preserve the legitime. Because if he can
impose some substitution, burden, condition, and this will be
so difficult, the heir may not be able to comply, effectively his
legitime will be forfeited. So this cannot be allowed by law. So
you cannot impose any burden, encumbrance, condition, or
substitution on the legitime, except whenI already discussed
this beforethere are only two instances when the legitime
can be burdened:
1. Reserva troncal
2. Prohibit the partition of the legitime for a period not
exceeding 20 years even if that is the legitime of the
compulsory heir
Now we go to Article 891.
Art. 891. The ascendant who inherits from his descendant
any property which the latter may have acquired by gratuitous
title from another ascendant, or a brother or sister, is obliged
to reserve such property as he may have acquired by
operation of law for the benefit of relatives who are within the
third degree and who belong to the line from which said
property came. (871)
So Article 891 is the concept of reserve troncal.
Here, the principle is, if a property comes from another line of
the family, and for some reason that property strayed into the
other side of the family, eventually that property has to go
back to the line from which it originated from. Because it is
reserved to the line of the origin. This is the only remaining
reserva under the New Civil Code. The others have already
been abolished.
This was asked last year in the bar exam.
What is reserve troncal? First, para mas mavisualize ninyo
(illustration) just remember the V sign.
Origin Reservor/ Reservista
Prepositus
In reserva, there is a property which comes from the origin.
And then the ascendant transferred this property by
gratuitous title to his descendant. And then the descendant
kept the property without issue, meaning wala siyay anak. So
who inherited? Another ascendant in another line. For
example, if this is the paternal, then this is the maternal. For
Ad Majorem Dei Gloriam
example, it was inherited by operation of law by the ancestor
or the ascendant in his other line.
Under the law on reserva, this ascendant who inherited, this
reservor, has to reserve the property. Dili na siya actually
malilaha gyud. Naa siyay burden Diba inheritance niya. Even
if it is his inheritance, it is burdened by the reserva. So unsa
man nang reserva? Unsa man nang burden sa reserva?
Meaning, if namatay siya, dili maadto s aiyahang estate kini
na property, kundi maadto sa relatives ni prepositus within the
third degree. Iuli na siya didto.
Again, first, there has to be a distinction of line. If the origin is
paternal line, this side should be maternal or vice versa. Kay
kung ang lolo nimo sa fathers side ang naghatag, and then
namatay, nainherit napud saiyahang papa, walay reserve
diha. Ngano man? Because wala may distinction of line.
Paternal lang tanan. There has to be a distinction. Because
again ang reason for the reserva is to prevent the property
from straying from one line of the family to the other. So kung
walay distinction sa line, walay nag-stray. In the ultimate
analysis walay reserva.
Again, these are the parties in the reserva. The origin. Who is
the origin? He might be an ascendant or a brother or sister.
But when it is a brother or sister, it has to be a half-brother or
a half-sister. Why? For example, this is the grandfather,
paternal. We have a brother on the fathers side. Half-brother
niya sa fathers side. Take note ha in reserva, even if we are
talking of half-brother or half-sister, the relationship must be
legitimate. Dili pwede na illegitimate half-brother or half-
sister. Dapat legitimate. So meaning, naminyo sauna,
nabyudo, tapos nagminyo na pud.
Origin Reservor/Reservista
(Brother from PT) (mother from MT)
Prepositus
Half-brother
So brother on the fathers side. Naghatag sa iyaha ug
property, sa iyahang brother, sa prepositus. And then he died,
and the property is inherited by his mother. So now there is a
distinction of line, because the property came from the
brother in the fathers side, and it went to the line of the
mother. It has to go back. Because if it is not a half-brother,
like a full-blood brother, his gave a property to the prepositus,
his brother, the prepositus died, the property is inherited by
his mother, walay distinction sa line because the mother is
also the same line as the origin. Anak man naniya, so dili
mag-apply dinha ang reserva. It has to be a half-brother or a
half-sister coming from the other side, or the other line of the
family. That is the origin.
Now the property is given to the descendant. So here, what is
the mode of transfer? It should be by gratuitous title. For
example si grandfather, paternal, donated a parcel of land to
his grandson, so that is gratuitous. Unsa pay other modes na
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
gratuitous? Succession. Tagaan niya iyang grandson ug
property by will, or by legal succession. That is gratuitous.
Chua vs. CFI
We look into the transfer from the origin himself, whether he
imposed any charge or condition. Here there was none. It was
the court who imposed that obligation. The transfer was still
gratuitous. Meaning, because it was gratuitous, reservatroncal
will be possible.
September 24, 2015 (GG)
So, last meeting we discussed Article 895. We have discussed
about Reserva Troncal. We already discussed that the transfer
in order to be covered under the concept of Reserva Troncal,
from the origin to the descendant prepositus, should be
gratuitous.
CHUA vs. CFI
To determine whether or not the transfer is gratuitous, we
only look at the point of view of the transferor. If the
transferor did not impose any charge or burden, then the
transfer is gratuitous. So it could be a donation, and it could
be by means of succession whether testate or intestate. So
now, the property has been transferred by origin to the
descendant prepositus. The same property should be kept by
the prepositus because if he sold the property, then there
could be no longer any opportunity for the reserva prosper,
because the property is no longer there. So the property
must remain with the prepositus.
If it is a parcel of land, for example, so the land should be
disposed of by the prepositus. Now, for example, the
GRANDFATHER donated a lotto ticket to his GRANDSON and
the lotto ticket won P50 million, and the money was kept by
the descendant. Is it possible that the reserva to happen in
that case for the property, assuming that all the other
requisites will be present? Take note the property which is
kept by the prepositus should be the very same property
given by the origin. So in my example, what was given was a
lotto ticket, what was kept was the money, the prize. So it is
not susceptible to reserva. So the same property must be kept
by the prepositus. That is why the prepsoitus is also called the
arbiter of the reserva because in his hands depend whether or
not the reserva could happen or there could be reserva if he
keeps the thing, then there is a possibility that there could be
reserva. If he destroys, then there would be no reserva.
Now, from the prepositus, another requisite is that the very
same property received by the descendant prepositus should
be transferred by operation of law to another ascendant in the
other line. So, for example, the grandfather *** donated a
land to his grandson, the grandson kept the land, he did not
have any children, he died without issue or children, so the
property is now inherited by his mother. So another ascendant
in the other side of the family. So in that case, there is now
reserva troncal. The land which inherited by the mother
should be reserved by the mother, the reservor, in favor of
Ad Majorem Dei Gloriam
the relatives of the descendant who belong to the third
degree (3 degrees) from the land line of origin, from the line
where the property originally came from. So here, if the
property came from the paternal side, so the reservees are
the relatives of the prepositus in the father side within the 3rd
degree.
Now, as we mentioned that the transfer from the prepositus
to the reservors should be by operation of law. So when can
there be transfer by operation of law? (1) Legal succession, it
is clear that it is by operation of law. How about testamentary
succession? The son executed a last will and testament giving
to his mother the land, can it be considered as transfer by
operation of law? If there is a will, there can still be transfer
by operation of law. To what extent? To the extent of the
legitime of the reservor. If you just give by will all his
properties to his mother which included the land, so that land
could be part of the legitime. So here, if we are talking of
testamentary succession, the transfer by operation law is
limited only to the legitime. So, please remember, even if the
transfer is by will (not really by operation of law), there could
still be reserva only to the portion covered by the legitime
because that is the portion transferred by operation of law.
Remember that.
Now, as I said upon the death of the prepositus and the
property was inherited by the reservor, the property is now
burdened by the reserva. So again, as we said, even if that
property is the legitime of the mother, that is burdened by the
reserva. As we have discussed before, there are only two
burdens that can be imposed by law to the legitime, one is the
concept of Reserva Troncal.
Here, what is that burden? If you receive something as your
legitime, supposedly, it shall be given to you freely. There are
no conditions. Now, the mother, she inherited that property
which is subject to reserva, what is the nature of her
inheritance or ownership? Is she an owner? YES! She is the
owner but upon her death, when she dies, if there are
reservees or relatives of the prepositus within the 3rd degree
coming from the line of origin, that property inherited by the
mother need not form part of her estate. It will go to the
reservees.
So, the ownsership of the reservor is called an ownership that
is subject to resolutory condition. She is the owner but if the
condition is fulfilled, then her ownership is ended and the
property is given to the reservees.
What is the resolutory condition? The survival of the reservees
upon the death of the reservor. So she is the owner, subject
to a resolutory condition.
Once the reservor inherited the property subject to the
reserva, what is the right of the reservees? Can they question
any alienation or disposition made by the reservor? How can
they protect their rights over the property subject of the
reserva? If for example, there is a parcel of land and it is
registered under the Torrens System, you have in your Land
Registration Law, the procedure by which the reservees may
annotate the fact of the reserva in the title, so whoever deals
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
with the property may be aware that this property is subject
to reserva. The registered owner here is the owner but her
ownership may end if upon her death, there are reservees
who survived. So that is the reason for the annotation, if it is
not annotated, then anyone who deals with property are not
charged with the knowledge of the those non-existing
burdens, liens, or charges. So he becomes an innocent
purchaser for value. So what is the remedy of the reservees if
they failed to annotate, they cannot recover the land to the
innocent purchasers for value. They may go against the estate
of the reservor for the indemnity or against the Land
Registration Fund. So that is if the property is registered. If
not, they can require a security or bond. That is to protect
them in case of deterioration, or loss of the property, they can
require the reservor to put up a bond or a security. That is to
protect their rights.
Now, the reservor, for example, the mother in that case, can
she sell the properties during her lifetime? How about the
reservees, can they also deal with the property during the
lifetime of the reservor aside from their right to annotate the
fact of the reserva or to demand a security?
SIENES vs. ESPARCIA
The reservor in this case is Andrea. The reservee was
Cipriana.
Could Andrea, the reservor, validly sell the property subject
of the reserva? YES, the nature of the sale is a conditional
sale. Such sale is valid but it is subject to a resolutory
condition that when she dies and there are reservees who
survived, the sale be cancelled or extinguished because the
property will be transferred to the reservee. But if upon her
death there are no reservees who survived, if he did not sell
the property, it will form part of her estate. If he sold it, we
do not disturb that sale because the resolutory condition did
not happen. Resolutory is valid until the happening of the
condition.
How about reserve Cipriana? Could she sell the property
subject of the reserva during the lifetime of Andrea? YES, the
nature of the sale is a conditional sale subject to a
suspensive condition. What is that suspensive condition? She
could also sell the property during the lifetime of the reservor
but the sale is subject to a suspensive condition, it will not
take effect until after the fulfillment of the condition. What is
that condition? The death of the reservor and the survival of
the reservee.
Take note that what is resolutory on the part of the reservor is
suspensive on the part of the reservee.
Is it not a sale of future inheritance? What is the justification?
That is not future inheritance, remember that the reservees
does not inherit from the reservor. But from the prepositus.
That is what we called deferred inheritance. They already
inherited but it is deferred in the meantime because it is first
inherited by the reservor. That is now what we call a SALE OF
FUTURE PROPERTY. In Law on Sales, it is emptio rae speratae
(sale of future property) as distinguished from emptio spei
(sale of hope or expectancy).
Ad Majorem Dei Gloriam
Now, we go to the reservees. As we have discussed, the
reservees are the relatives of the prepositus within the third
degree coming from the line of origin. So who are these
relatives within the third degree? So you know that in your
persons. Who are the relatives in the first degree? We have
the parents, the mother and father. Prepositus does not have
a child because if he has a child, there will be no reserva. In
the direct line, in the 2nd degree, we have the grandparents.
In the 3rd degree, great grandparents. In collateral
relationship, prepositus, parents, uncles and aunts, and
brothers and sisters. 3rd degrees, uncles and aunts, nephews
and nieces. 1st degree, again, parents. 2nd degrees, brothers
and sisters.
If these relatives survive, again only those coming from the
line of origin, if the origin is the father, we only consider the
relatives in the father side, if all of these survive, will they get
all the property? Will they just divide? NO. Reserva Troncal
only determines the class of relatives to whom the property
will be given after the death of the reservor but between and
among themselves we follow the rule on legal or intestate
succession.
RULES IN LEGAL OR
INTESTATE SUCCESSION
1st Rule PROXIMITY RULE.
The nearer relatives exclude those who are far.
2nd Rule THOSE WHO ARE IN THE DIRECT LINE ARE
FAVORED THAN THOSE WHO ARE IN THE COLLATERAL
LINE.
Example they are of the same degree. Like we have brothers
and sisters, 2nd degree we have grandparents, diba, 2 degrees
pud.
3rd Rule THOSE WHO ARE IN THE DESCENDING LINE
ARE FAVORED OVER THOSE WHO ARE IN THE
ASCENDING LINE.
For example, they are in the same degree; they are in the
same collateral line, to whom shall we give? Like, to uncles
and aunts concurring with the nephews and nieces.
Between uncles and aunts, nephews and nieces, they are two
degrees away from the prepositus, they are both in the
collateral line, but the nieces belong to the descending line.
So, they are favored over the uncles and aunts. So thats how
we distribute the property.
Line of Origin DIRECT COLLATERAL
1st degree Parents
2nd Grandparents Siblings
3rd Great grandparents Uncle/ aunts &
Nephews/ nieces
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Take note that the relationship of all these parties involve in
reserva should be legitimate, it cannot be illegitimate. If the
origin is illegitimate, there will be no reserva. If those who are
in the reservees side are illegitimate, the reservor or the
ascendant has no obligation to reserve for them because they
are not legitimate relatives.
Now, what is the concept of DELAYED INTESTACY
THEORY? Actually, we are just referring to the inheritance of
the reservees.
Why is it called delayed intestacy? Because the reservees are
supposed to inherit from the prepositus but because there is
still a relative of the prepositus who inherits from him, in the
mean time, the reservees cannot yet enter into the
inheritance. However, once the reservor dies, and they
survive, and then that is the time they enter into the property.
That is called delay because their inheritance is delayed and it
is intestacy because the succession by the reservees to the
prepositus is by legal or intestate succession. That is why we
apply the rules on legal or intestate succession.
So now lets go to the computation . How do we compute
the value of the reserva?
Maam was INTERRUPTED by LEGAL LUMINARY VON LAO.
Von: Question Maam, until when can you claim for reserva?
Maam: Actually, there is no specific prescriptive period for
reserva so we follow the general rule on prescription. I have
not seen any in the New Civil Code on how long can you claim
for the inheritance. General rule, 5 years, Im not sure. If
there is no specific period in the New Civil Code, we follow the
general prescriptive period to claim for the inheritance. (But I
think Maam answered more categorically the next meeting).
So, now we go to the computation. Did I already mention the
2 theories? The theory of Reserva Maxima and Reserva
Minima.
First, if the transfer from the prepositus to the reservor is by
legal succession then we have no problem.
For example:
The value of the land inherited by theprepositus, so the origin
came from property by will to the prepositus. It is the
grandfather and the grandson. The value of the land is for
example, P1 Million. Then the prepositus died intestate
without issue, so the entire land is inherited by the mother by
legal succession. So how much is the value of the reserva?
How much of the land should be reserved by the mother? The
entire P1 Million because that is the one subject of reserva,
that is the property coming from the origin going to the
prepositus then going to the reservor by operation of law. So,
the entire P1 Million. No problem if he died intestate.
What if he died with a will, he has a last will and testament?
Diba, if there is a will, the extent of the reserva will be only up
to the legitime. Thats only what can the reserva cover. So,
we have the 2 theories.
TWO THEORIES:
Ad Majorem Dei Gloriam
1. Reserva Maxima Under this theory, as much as
can be covered by the legitime. So, P1 Million ang
value of the property and there is a will. How much
is the legitime of the mother? One-half (), then
P500, 000. Under the theory of Reserva Maxima,
P500, 000 ang covered sa legitime.
2. Reserva Minima In this theory, we always
presume that from this property one half is the
legitime one half is the free portion. Under this
situation, the value of the reserva is the same,
whether Reserva Minima and Reserva Maxima.Also,
P500, 000.
By the way, with respect to the question earlier [By legal
luminary Von Lao], is it for recovery or delivery? I think it will
fall more appropriately on the rule on recovery of the
property. When the reservor dies and his estate does not yet
deliver the land to the reservees, so they are now claiming for
the delivery of the property, the rule on prescriptive period for
recovery of property will apply here. Dili diay siya general rule
because there is a specific provision na mag apply.
So, now computation. We discussed reserva minima. Now,
since on the example earlier, they are just the same amount,
P500, 000, whether minima or maxima. For example, during
his lifetime aside from the property acquired from the origin,
the prepositus also acquired properties of his own. Assuming,
that he was able to obtain P500, 000 worth of properties, and
upon his death, by virtue of his last will and testament, he
gave all his properties to his mother. So the value of his
estate is P1.5 Million. Now, under the theory of Reserva
Maxima, as much as can be covered in the legitime. So, the
legitime is P1.5 million divided by 2, because the survivor or
heir is the mother, P750, 000, that is the legitime. The free
portion is also P750, 000. So, now, how much is the value of
the reserva under the theory of reserva maxima in this kind of
situation? Again, it is as much as the legitime. How much is
the property which came from the origin? How much is the
value? P1 Million. The P500, 000, napalit to niya. So, ang
reservable is only the P1 Million. Since as much as can be
covered in the legitime, So how much is the legitime? P750,
000. So, what is the value of the reserva? Is it P1 Million? NO,
because as much as can be covered by the legitime, meaning
it cannot exceed the legitime. Even if you received 1 million
from the origin, but the legitime, the portion which is
transferred by operation of law is only P750, 000, so under
this theory, the value of the reserva is P750, 000.
How about in reserva minima? Under the theory of reserva
minima, the property consists of one-half legitime one-half
free portion. So what are the properties involved in the
example? P1 Million and P500, 000. One-half of that is
legitime, so P500, 000, one-half of that is legitime and one-
half of that is free portion. The same goes with 1 million. So
that is why the legitime is 750, 000 and the free portion is
P750, 000. So the legitime which is P750, 000 is composed of
P500, 000 from this (1M) property and P250, 000 from this
(P500K) property. So, how much is the value of the reserva
under the theory of reserva minima? Do not include the
property not coming from the origin. So, it is only P500, 000,
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
because only one half of this (1M property, which came from
the origin) is the legitime and therefore, subject to the
reserva.
How about if during his lifetime the descendant acquired
properties worth P2 million? So his estate is? P3 Million. Upon
his death, the legitime is one-half, P1.5 Million. Lets go back
to the theory of reserva maxima. Under this situation, how
much is the reserva? The legitime is P1.5 Million, the reserva
is? It cannot be P1.5 million because you only received P1
million from the origin. So even if you say as much as can be
covered in the legitime, but you cannot stretch the P1 million
received from the origin. So it is only P1 million, the value of
the reserva.
In reserva minima, P1 million is the legitime, P1 million is the
free portion, that is why you have the same value. The
question is, how much of that is reserva? Because reserva is
limited only to the legitime, so, this is the reservable portion
of P1 million (the P500k).
Now, which theory shall be followed? Reserva maxima or
minima? Some authorities would say reserva maxima because
it is more in keeping with the concept of reserva. Okay, as
much as can be reserved of the property coming from the
origin. But, the more prevailing theory is the reserva minima,
because it is more equitable. So reserva minima is the
prevailing rule.
HOW IS RESERVA TRONCAL EXTINGUISHED?
1. Upon the death of the reservoir
No more obligation to reserve, because he/she is
already dead.
2. Upon the death of all the would be reservees
ahead of the reservor
Because in this case, there is no more obligation to
deliver the property to the reservees.
3. Upon the loss of the reservable property
without the fault of the reservor
We apply here the concept of force majeure, the
obligation is extinguished if the thing is lost without
the fault of the debtor or the obligor.
4. Upon prescription
When can there be prescription? For example, the
reservor repudiates the reserva, and makes known
the repudiation to the reservees, either adverse
possession by the reservor or by a third person. So
they are holding the property now free from reserva.
So, if it is in bad faith, we apply the extraordinary
acquisitive prescription under the rule on
prescription. We have 30 years, if real property. If
personal property, 8 years.
5. Upon registration under Torrens System as
free from the reserva
As I said, if the reserva is not annotated in the title,
the persons dealing with the property have no
Ad Majorem Dei Gloriam
obligation to go beyond the title. They are
considered as innocent purchasers for value unless
they have knowledge. Here, the reservees can no
longer recover from those third parties the property.
They have to go against the reservor, his estate, or
the Lad Registration Fund.
6. Upon renunciation or waiver by all the
reservees after the death of the reserver
MENDOZA vs. DELOS SANTOS
First, we have parents of Ezekiel, spouses Mendoza. They
have 4 children and one of them is Ezekiel. He is married to
Leonor. They have a child named Greogria. Ezekiel died
causing properties to pass upon Gregoria. The sons and
daughters of Ezekiels brothers claim that properties are
reservable and could not have passed to Julia who is
Greogriasaunt from the mother side.
If we are to consider a reserva, we cannot start here (?)
because reserva involves property coming from the origin
and then to the descendant and to other ascendant. It did
not happen here. If reserva would be possible, it could start
here, so Ezekiel.
The mode of transfer to Gregoria is grauituous succession.
Gregoria dies without issue. Leonor died ahead of Gregoria.
But the property from her was transferred to Julia, the sister
of Leonor. The subject of the property is being claimed as
part of the reserva by the sons and daughters of brothers of
Ezekiel (Ezekiels nephews and nieces).
In this case, there is no reserva. We first go to the requisites
of reserva. What requisite is missing? The fact that there is
no transmission from the paternal line to the maternal line.
Diba in reserva, from the origin transferred by operation of
law to the descendant, check. The descendant died without
issue, check. The descendant transferred property by
operation of law to another ascendant.
Is Julia the ascendant contemplated under Reserva Troncal?
NO. She is Gregorias collateral relative. When you say an
ascendant, she is in the direct line of ***.
Here the requisite that the property should be transferred by
operation of law to the ascendant was not satisfied because
Julia is not the ascendant contemplated by the reserva
troncal. She is not the mother, she is the aunt, a collateral
relative.
Another reason why petitioners could not claim the property?
They are 4 degrees relative counted from Gregoria and
therefore, they cannot be reservees. Even assuming for the
sake of argument, that there is reserva, they could still not
claim because the reservees are supposed to be relatives
within the third degree. In the collateral line, the right of
representation is only up to nephews and nieces. But in
reserva, there could be right of representation but the
representatives themselves must also be within the
3rddegreee. So, they cannot claim the property being 4th
degree relatives.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
So, we are done with Reserva Troncal.
Art. 905. Every renunciation or compromise as regards a
future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the same
upon the death of the former; but they must bring to
collation whatever they may have received by virtue of the
renunciation or compromise. (816)
Example:
As long as your parents are still alive, your right to the
properties are still inchoate or expectancy. You cannot waive
or renounce something which is still an expectancy. That is
why every renunciation or compromise as regards a future
legitime is void. You can renounce upon the death of the
decedent. By that time, your right is already a vested one. No
longer an expectancy.
Example:
You have several properties and then you agree with your
sisters or brothers, just give me P100, 000 now, I will no
longer claim my inheritance. So, you already signed an
agreement or waiver to that effect. You were given P100,
000. When your parents died, the value of their estate, for
example, P10 million. Then you are only 4 siblings. Then the
legitime of the P10 million is P5 million. So, the 4 children will
share with the P5 million. So, P1.25 million each. But you only
had P100, 000. Can you still claim? Can you not be bound by
your prior renunciation especially it is coupled with a
consideration of P100k? NO! Because that is an agreement
regarding a future inheritance, a future legitime. That is void.
So what will happen to the P100, 000? That will be considered
as advance to your legitime. So, if you are entitled to 1.25
million as your legitime, what you will receive upon the death
of your parents is 1.25 million less 100k. Okay, that is the
meaning of Article 905.
But of course, if the compromise happened after the death,
that is already valid agreement. It cannot be revoked.
Dilinaxamabawi. So, the P100 thousand, that is the meaning
of they must bring to collation whatever they may have
received by virtue of the renunciation or compromise. You
should still account it as part of your legitime.
Art. 906. Any compulsory heir to whom the testator has left
by any title less than the legitime belonging to him may
demand that the same be fully satisfied. (815)
Here, the share received by the heir is less than his legitime.
So what is the right of the heir? He may demand that his
legitime be completed. So, completion of the legitime. This
article presupposes that something was given to the
compulsory heir but it is less than his legitime because if none
at all was given to the compulsory heir, and there is a will, he
is not mentioned. We apply the rule on PRETERITION, not
completion of legitime.
Art. 907. Testamentary dispositions that impair or diminish
Ad Majorem Dei Gloriam
the legitime of the compulsory heirs shall be reduced on
petition of the same, insofar as they may be inofficious or
excessive. (817)
For example, the testator have 2 children, his estate is P1
million and then, in his will, he devised or bequeath cash to
his neighbor, P700k. The estate is P1 million, the legitime is
half of the so P500k. So that legacy to the neighbor is
inofficious because it exceeds the free portion and it impairs
the legitime of the compulsory heirs. So, here, the law says
that it may be reduced on petition of the compulsory heirs but
only to the extent that they are inofficious. The P700k legacy
may be reduced by P200k.
Take note also that the law says, upon petition of the same.
We are referring here to the compulsory heirs. A petition to
reduce a testamentary disposition (legacy, devise or
donation), for example testator donated a property valued at
P700k to X. At the time of his death, he only left P300k. In the
computation of his estate, under the rules on collation, that
P700 shall be brought back to the estate. So 300k + 700k, 1
million. That is the basis of the computation of the legitime.
P1 million divided by 2, 500k. But what was left is P300k. The
compulsory heirs action is to get a portion from the donation
because the donation is inofficious, it impairs the legitime. In
that kind of petition, that can only be brought by the
compulsory heirs. Without compulsory heirs, it will not be
collated. It will not be added back to the estate.
Art. 908. To determine the legitime, the value of the
property left at the death of the testator shall be considered,
deducting all debts and charges, which shall not include
those imposed in the will.
To the net value of the hereditary estate, shall be added the
value of all donations by the testator that are subject to
collation, at the time he made them. (818a)
This article gives us the procedure of the computation of the
NET HEREDITARY ESTATE. So, again, value of the property
left at the time of death less all his debts and charges. Debts
like from his creditors, taxes, funeral expenses, and etcetera.
Those charges, which shall not include those imposed in the
will, meaning, he gave a legacy or devise, it has nothing to do
with your *** because they are part of the estate. They are to
be deducted from the estate during the distribution. In the
mean time, you are still computing the net hereditary estate.
As I mentioned, all donations made by the testator or
decedent during his lifetime, the value of those donations
shall be added back to the estate to arrive at the net
hereditary estate.
Assuming at the time of his death, he left properties
amounting to P500k. He has debts amounting to P100k. Taxes
amounting to P50k. During his lifetime, he made a donation to
his son, A, amounting to P200k. He also donated to B, P70K.
So, how do we compute the net hereditary estate?
P500, 000 - Value at the time of death
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
LESS
P100, 000 - Debts
P50, 000 - Taxes
---------------------------
P 350, 000 - Net Estate
Next is, we add back the donations.
P200, 000 - Donation to A
P70, 000 - Donation to B
----------------------------
P 620, 000 - NET HEREDITARY ESTATE
So, this is the basis for the computation of the legitime. So if
he left 1 child, P620k divided by 2, then that is P310k. That is
his legitime. If the disposition is silent, the P200k shall be
collated. It shall be considered as an advance to his legitime.
We will discuss that later when we go to collation. Here, we
add the donations because if you dont, it would be very easy
for the decedent to circumvent the law on legitimes. The law
on collation exists to preserve and protect the legitimes.
Art. 909. Donations given to children shall be charged to
their legitime.
Donations made to strangers shall be charged to that part of
the estate of which the testator could have disposed by his
last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to the
rules established by this Code. (819a)
So, let us go back. P620k divided by 2, that is P310 thousand.
That is the legitime of the child. But his donation to A of
P200k shall be collated, it shall be considered as an advance
to his legitime. So, upon actual distribution, he will be given
only P110k to complete his legitime. Now, the donation made
to strangers, shall be charged to the free portion. So, the free
portion is also P310k. Out of the P310, we charge this P70K.
What remains now is P240k as free portion.
For example, in his will, he has a legacy to X worth P250k,
what will happen to that legacy since what remained is P240k
as the free portion? In that case, the P250k cannot be given
only P240k. X will only receive P240k.
Assuming that the value of the estate, forget about what was
stated above, is P620k. During his lifetime again to his son,
200k.And to his friend, 400k. Out of the P620K, the legitime is
P310k, and the free portion is also P310k. So, as we said, the
donation to A shall be charged to his legitime. The donation to
B shall be charged to the free portion. Now, the free portion is
only P310k. We charge this to the free portion. It cannot be
covered. This donation is inofficious. This exceeds the free
portion and it impairs the legitime of the compulsory heirs.
Ad Majorem Dei Gloriam
Here, the donation can be reduced on the ground of being
inofficious. Now, donee B shall return to the estate which
impairs the legitime of the compulsory heirs. Return to the
estate or to the compulsory heir the P90, 000. This is the
meaning of the third paragraph.
Art. 910. Donations which an illegitimate child may have
received during the lifetime of his father or mother, shall be
charged to his legitime.
Should they exceed the portion that can be freely disposed
of, they shall be reduced in the manner prescribed by this
Code. (847a)
Donations to the illegitimate children are considered as
advances to their legitimes and therefore, in the actual
distribution, those donation should be collated. If the
donations are inofficious, they shall be reduced.
Art. 911. After the legitime has been determined in
accordance with the three preceding articles, the reduction
shall be made as follows:
(1) Donations shall be respected as long as the
legitime can be covered, reducing or annulling, if
necessary, the devises or legacies made in the will;
(2) The reduction of the devises or legacies shall be
pro rata, without any distinction whatever.
If the testator has directed that a certain devise or
legacy be paid in preference to others, it shall not
suffer any reduction until the latter have been
applied in full to the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or
life annuity, whose value may be considered greater
than that of the disposable portion, the compulsory
heirs may choose between complying with the
testamentary provision and delivering to the devisee
or legatee the part of the inheritance of which the
testator could freely dispose. (820a)
We will follow this article if the testator, during his lifetime,
made several donations and then in his will, he also provided
for some legacies and devises.
Assuming at the time of his death, the testator left properties
worth P500k. During his lifetime, he made a donation in 1990
amounting in P100K. In the year 2000, P200K. In his will, he
also gave legacies: (1) P300K (2) P100K (3) P50K. How do we
compute the Net Hereditary Estate? He has no debts and
liabilities.
P 500, 000 - Estate
Add the donations
P 100, 000 - Year 1990
P200, 000 - Year 2000
----------------------------
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
P800, 000 - NET HEREDITARY ESTATE
So he left children, the legitime is P400K and the free portion
is P400K.
To the free portion, we charge the donations. The legacies will
be covered by the free portion. Between donation and
legacies, which shall be preferred? The donations are
preferred because the donations are already made long
before. The legacies are still to be given. So, in that sense,
the decedent really give priority to the donations. Respected
ang donations more than legacies.
In case of two or more donations, which shall be preferred?
The donations which are made earlier. Again, first in time,
first in right. Masdugay maskusog! (LOL).
The free portion is P400K. The amount of donation is P300K.
So, it can still be covered. We still have P100K. This will be
distributed to the legacies and devises. Now, in legatees and
devisees, if there was a declaration as to who is preferred, so
that is preferred. If the testator said, legacy 1 (P300K), then
what shall be given is the P100K only.
If there is no mention as to preference, then it shall be
satisfied pro rata. How do we prorate?
P 450, 000 - Total amount of all the legacies
P 100, 000 - Remainder of Free portion
1st legacy P300, 000
----------------------- X 100, 000 = P66, 666. 66
P450, 000
2nd legacy P100, 000
---------------------- X 100, 000 = P22, 222. 22
P450, 000
3rd legacy P50, 000
--------------------- X 100, 000 = P11, 111. 11
P450, 000
That is how we distribute under Art. 911.
Sept 28, 2014 (FJB)
Art. 912. If the devise subject to reduction should consist of
real property, which cannot be conveniently divided, it shall go
to the devisee if the reduction does not absorb one-half of its
value; and in a contrary case, to the compulsory heirs; but the
former and the latter shall reimburse each other in cash for
what respectively belongs to them.
The devisee who is entitled to a legitime may retain the entire
Ad Majorem Dei Gloriam
property, provided its value does not exceed that of the
disposable portion and of the share pertaining to him as
legitime. (821)
We learned before that a devise can only be accommodated in
the free portion. If the devise exceeds the free portion, it has
to be reduced. What if the devise consists of a property which
cannot be conveniently divided? For example, a house was
devised to A. The value of the house is one million but the
value of the free portion is only 700,000? The devise has to
be reduced by 300,000. But considering that the property is a
house, how can it be reduced? Should we take off the ceiling
or the floors and give them to the compulsory heirs? That is
not practical and convenient.
Take note of the rule under article 912, if the reduction does
not absorb one-half of its value, the property shall go to the
devisee. In the above example, the house is valued at one
million but the devise is only 700,000. Still, the devise is more
than one-half of the value of the property, so the house will
be given to A but he has to pay in cash the 300,000 to the
compulsory heirs.
If, for example, the free portion is only 300,000 and the
devise is one million, what is the rule? The reduction is in the
reverse. In such case, the reduction is more than one-half. It
has to be reduced by 700,000. The house will go to the heirs
and they will just pay the devisee the 300,000. That is the
rule under article 912.
What if the reduction is exactly one-half of the value of the
property? The house is valued at one million and the devise is
500,000. What is the rule? The property will be given to the
devisee but he has to give 500,000 to the heirs.
Art. 913. If the heirs or devisees do not choose to avail
themselves of the right granted by the preceding article, any
heir or devisee who did not have such right may exercise it;
should the latter not make use of it, the property shall be sold
at public auction at the instance of any one of the interested
parties. (822)
The right is not only limited to the heir whose inheritance or
legitime has been prejudiced or to the devisee but to any heir
or devisee. They can exercise the right [provided in article
912] or the property may be sold at public auction at the
instance of any one of the interested parties.
Art. 914. The testator may devise and bequeath the free
portion as he may deem fit. (n)
We already discussed about the freedom of the testator to
dispose the free portion. Remember that the free portion will
still answer for the legitime of the surviving spouse and the
illegitimate children. The free portion is that which the testator
has freedom of disposition but, again, this freedom is not
unlimited. He can dispose of the free portion but the recipient
must be qualified to receive.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
SECTION 6. Disinheritance
Art. 915. A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for causes
expressly stated by law. (848a)
This is the process by which a compulsory heir may be
deprived of his legitime but only for causes expressly stated
by law. We have already discussed the concept and
importance of legitimes. The law, as we can see, really
protects the legitimes of the compulsory heirs.
We discussed before the possible ways when the testator may
attempt to reduce the legitimes and the remedies or
protections provided for by law to the compulsory heirs. For
example, if the testator just forget about his compulsory heirs
by not mentioning them in his will and then dispose of his
properties in favor of the persons stated therein, that is
preterition.
We also discussed a situation when the testator donated all
his properties during his lifetime so that nothing will be left for
his compulsory heirs. That is what we call collation.
What if the heir will be deprived by the testator in his will? We
have the law on disinheritance which limits that right. He can
only disinherit a compulsory heir for causes provided for by
law. If the cause for disinheritance is not among those
provided for by law, then the disinheritance will be invalid, so
the heir is entitled still to his legitime.
The law says a compulsory heir. This is because there is no
need to disinherit a legal heir. You can just omit them in the
will.
For example, your brothers and sisters. You can give to them
but you are not obliged to give to them. You can just give
your properties to your neighbor and not to your siblings
[provided you have no compulsory heirs]. There is no
problem. But if it is a compulsory heir and you do not want to
give to that compulsory heir anything, there has to be a valid
disinheritance.
Art. 916. Disinheritance can be effected only through a will
wherein the legal cause therefor shall be specified. (849)
Remember, disinheritance can only be effected through a will.
When you disinherit, you do it in a will. The will has to be
valid for the disinheritance to be effective. If you make a will
where you disinherit a compulsory heir but the will turned out
to be void extrinsically, the will is not valid and therefore the
disinheritance cannot be effected. For example, there is a
notarial will embodying a disinheritance but there is only one
witness or it lacks the required marginal signatures. In that
case, the will is not valid, so the disinheritance cannot be
effected.
REQUISITES FOR VALID DISINHERITANCE
Ad Majorem Dei Gloriam
1. It must be made in a valid will;
[It can be made] whether in a notarial or a holographic
will or even in a codicil because a codicil also has to
comply with the formalities of a will.
2. The disinheritance must be made expressly;
Meaning, you really make it clear that you are
disinheriting A, for example. If you just omit A in the will,
that is not disinheritance. That could be preterition if he is
omitted entirely in the will.
3. The disinheritance must be for a cause stated in
the civil code or expressly provided for by law;
We have under the new civil code the grounds to
disinherit a child or descendant, grounds to disinherit a
spouse, and grounds to disinherit parents or descendants.
The grounds given are exclusive. You cannot have other
grounds not mentioned in the law.
4. The disinheritance must be also for a true cause as
discussed under article 917.
Let us go first to article 917.
Art. 917. The burden of proving the truth of the cause for
disinheritance shall rest upon the other heirs of the testator, if
the disinherited heir should deny it. (850)
If the testator says that he is disinheriting A because she
is living a dishonorable and disgraceful life as a prostitute,
does it follow that she is already disinherited on that
ground? No, it is not automatic that the child is
disinherited. Of course, if she admits it, then there is no
problem, but if she denies it, the burden is on the
opponent to prove the truth. So, the disinheritance must
be for a true cause.
5. The disinheritance must be for an existing cause;
You cannot say that you will disinherit your child, A, if she
becomes a prostitute. That is not yet present now. Even if
she becomes a prostitute in the future, the disinheritance
will not be valid. It has to be for an existing cause. In the
given example, A must have to be a prostitute now for
the disinheritance to be valid.
6. The disinheritance must be total or complete;
You cannot say that you will disinherit A of the free
portion or one-half of her legitime. It must be total
because you cannot divide the offense committed which
is a ground for disinheritance.
7. The cause must be stated in the will;
Even if she is really living a dishonorable and disgraceful
life but you failed to mention this as a ground for
disinheritance in the will, it is not valid. It has to be stated
so that the heir disinherited can also defend herself
should she deny the truth of the cause.
8. The heir disinherited must also be identified; and
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

9. In relation to number 1 (it must be made in a valid will),
the will must not have been revoked.
Even if the will is valid but is already revoked, then the
disinheritance mentioned in the revoked will is likewise
ineffective.
portion? Now that we have satisfied the legitimes, we can now
give effect to other testamentary dispositions such as legacies
and devises, if any. Here, we give the free portion only to A,
B, and D. C is not included because he has not been
instituted. D can still receive because his institution is not
annulled. It is not inofficious.

Art. 918. Disinheritance without a specification of the cause, Take note that in preterition, the institution of heirs shall be
or for a cause the truth of which, if contradicted, is not annulled. Only the legacies and devises that are not inofficious
proved, or which is not one of those set forth in this Code, shall be respected. In invalid disinheritance, the institution of
shall annul the institution of heirs insofar as it may prejudice heirs, as long as the legitime of the compulsory heir invalidly
the person disinherited; but the devises and legacies and disinherited are not prejudiced, will now be given effect. That
other testamentary dispositions shall be valid to such extent is the difference between the consequence of preterition and
as will not impair the legitime. (851a) the consequence of aninvalid disinheritance
Let us go to the grounds.
The disinheritance mentioned in article 918 is not valid. We
already discussed the requisites for a valid disinheritance. If Art. 919. The following shall be sufficient causes for the
the disinheritance is not valid like the one mentioned in article disinheritance of children and descendants, legitimate as well
918, then the disinheritance is invalid. What is the as illegitimate: x x x
consequence? The law says it shall annul the institution of
heirs insofar as it may prejudice the person disinherited but
You should know the grounds under article 919. I do not
the devises and legacies and other testamentary dispositions
expect you to memorize them but at least be familiar with
shall be valid to such extent as will not impair the legitime. If
them. Anyway, most of the grounds to disinherit a child are
you still remember article 854 on preterition, they are just the
also the same grounds to disinherit a spouse, and parents or
same. If there is preterition, the institution of heirs shall be
ascendants.
annulled but the devises and legacies shall be valid insofar as
they are not inofficious.
1. When a child or descendant has been found guilty of
What is the difference between the consequence of preterition an attempt against the life of the testator, his or her
and the consequence of aninvalid disinheritance? Let us go spouse, descendants, or ascendants;
back first to preterition. (Maam illustrates on board) A, B, and
C are the children of the testator, and D is the friend. In his
The law mentions found guilty. We need here a
will, C is preterited. The testator only instituted A, B, and D.
final judgment or conviction because if the case is
His estate is 1.2 million. What is the consequence of Cs
still on appeal, there is still a chance that it will be
preterition? The institution of heirs shall be annulled and the
reversed. We really have to be sure that there is
estate shall be distributed by legal succession but the devises
really conviction. He must be really guilty, so there
and legacies that are not inofficious shall be respected.
must be conviction by final judgment.
There is no devise or legacy in this example. D here is
The law also says attempt. Note that we have
instituted as an heir. He is a voluntary heir. By reason of
stages of execution. We have attempted, frustrated,
preterition, the institution of heirs shall be annulled and so the
and consummated. For example, if the offense was
property shall be distributed by legal succession. D is not a
merely frustrated, is that already considered as a
legal heir. Therefore, D will not receive anything. The estate
valid ground? We do not have to be really literal. It
will be distributed only among A, B, and C. That is in
covers frustrated and consummated stages. Take
preterition.
note that the law only contemplates a crime which
In disinheritance, if C is disinherited because the testator does has an intent to kill. Thus, reckless imprudence is not
not like his face. It that valid? No, it is not valid. Otherwise, covered. There must really be an intent to kill.
many will be disinherited. The estate is 1.2 million. C is
We also have the degree of participation. We have
invalidly disinherited. How do we distribute the estate? The
principals whether by direct participation,
law says it shall annul the institution of heirs insofar as it may
cooperation, inducement. Accomplices and
prejudice the person disinherited, but the devises and legacies
accessories to the crime are likewise covered. So, it
and other testamentary dispositions shall be valid to such
is regardless of the degree of participation.
extent as will not impair the legitime. So, we look if the
testamentary dispositions are inofficious.
2. When a child or descendant has accused the testator
First, we give the legitime of the heir who was invalidly of a crime for which the law prescribes imprisonment
disinherited along with the other heirs. 1.2. million divided by for six years or more, if the accusation has been
two equals 600,000. There are three compulsory heirs (A, B, found groundless;
and C), so each will get 200,000 as legitime. To whom shall
we distribute the free portion? Is C and D entitled to the free

Ad Majorem Dei Gloriam

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
This is what we call groundless accusation. Take note
of the time. What if the testator identifies his heir to
be the killer of his dog? Such crime is not punishable
by imprisonment for six years or more. So, even if it
is groundless, it has to be crime for which the law
prescribes imprisonment for six years or more.
What kind of accusation [is contemplated]? It is
either the heir (1) filed an action directly against the
testator (for instance, he filed a criminal complaint
for serious physical injuries against the testator
punishable by imprisonment for six years or more),
or (2) testified in a case filed against the testator, or
(3) refused to testify in favor of the testator if his
testimony is material to the acquittal or conviction of
the testator. Of course later on, it must be proven
that the case against the testator is groundless.
3. When a child or descendant has been convicted of
adultery or concubinage with the spouse of the
testator;
Again, the conviction here must be by final
judgment. The crime is adultery or concubinage, so it
is a relationship either with the testator or with the
spouse of the testator. Take note that we are talking
here of a child or descendant who has been
convicted of adultery or concubinage. When we go
later on to the grounds to disinherit a spouse, there
is no similar ground when a spouse has been
convicted of adultery or concubinage with the child
or parent of the testator. That is not found there.
4. When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator
to make a will or to change one already made;
5. A refusal without justifiable cause to support the
parent or ascendant who disinherits such child or
descendant;
The refusal must be without justifiable cause. To
know whether the refusal is justifiable, we have to
know the needs of the person to be supported and
the capacity of the person from whom support is
being demanded. For example, the parent is a
billionaire and the child who asks for support is a
minimum wage earner, he can refuse to give
support.
6. Maltreatment of the testator by word or deed, by the
child or descendant;
The law says by word or deed. It can be that you
punch him every day or you badmouth him every
day.
7.
Seangio v. Reyes
Ad Majorem Dei Gloriam
The will here is entitled Kasulatan Sa Pag-Aalis Ng
Mana. (Maam reads will written in Tagalog) Here,
the question is will this ground constitute
maltreatment sufficient to disinherit a child? The
Supreme Court said, taking the totality of the
circumstances mentioned by the testator and
assuming that these are proven, this will be
considered as a sufficient ground to disinherit the
heir by reason of maltreatment. So, [maltreatment
is] not necessarily by deed. It can be by word.
Pecson v. Mediavillo
In this case, the testator disinherited his grandchild.
The testator declared in his will that he disinherited
his granddaughter, Rosario, because she was grossly
disrespectful to the testator and that she raised her
hand against said testator. Raising a hand against
the testator constitutes maltreatment by deed under
article 919 (6).
Based on the records of the case, the SC said that
when Rosario was 14 years of age, she had received
some attentions from a young man and that her
grandfather, the testator, took steps to sever the
relations between her and the young man. It was on
that occasion that the alleged disrespect and
disobedience was made against the testator. That
was the cause of the disinheritance.
The record further shows that at some point, she lost
the use of her mental faculties. A conclusion was
reached that Rosario was probably not responsible
for the disrespect and disobedience to her
grandfather in the year 1894 or 1895. So, even if she
raised her hand against her grandfather, the
Supreme Court concluded that it could not have been
done voluntarily or intentionally. Her disinheritance
was considered invalid. Just take note of the
circumstances of this case.
Maltreatment should be made voluntarily or
intentionally with knowledge of the consequences of
such acts. Take note that maltreatment is present
only with respect to a descendant. [It should be] a
descendant who maltreats an ascendant, the
testator. It does not appear in the ground for
disinheritance of parents or ascendants by children.
So, maltreatment by a parent of a child is not a
ground in the disinheritance of parents although
there are other similar grounds. Maybe it is because
it is somehow acceptable for a parent to badmouth
his or her child. It is likewise normal for a parent to
inflict tolerable pain to discipline the child but it is not
normal for a child to do so. That is why maltreatment
is not a ground to disinherit a parent or ascendant.
When a child or descendant leads a dishonorable or
disgraceful life;
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
What is a dishonorable or disgraceful life? It is
relative, so you can argue. For example, you
engaged in a one night stand. Your parents knew
about it, then they decided to disinherit you on that
ground. Is that valid? Is that dishonorable or
disgraceful life? It is not a lie if you argue. It
presupposes habituality or continuity. You can argue
because it is relative. But even if it is relative, that
act has to be habitual or continuous, and not just an
isolated event.
8. Conviction of a crime which carries with it the penalty
of civil interdiction.
If a child has been convicted of a crime, that is a
ground to disinherit.
Article 920. The following shall be sufficient causes for the
disinheritance of parents or ascendants, whether legitimate or
illegitimate: x x x
These are the grounds for the disinheritance of parents or
ascendants. Most of the grounds are also the grounds to
disinherit a child or descendant. Number 1 is also found under
article 919.
1. When the parents have abandoned their children or
induced daughters to live a corrupt or immoral life, or
attempted against her virtue;
Here, the abandonment need not amount to a crime
as long as the parent deprived the child of the basic
necessities in life. Those which are required of him in
order to support the child like clothing, shelter,
education, or medical assistance. If he refused to
provide such things, that is already abandonment.
The law also provides induced daughters to live a
corrupt or immoral life. Here, the parent is already
pimping the child. That is already a ground to
disinherit. Also, the attempt to commit the act of
rape or seduction is also a ground to disinherit. Take
note that the law speaks of daughters. How about if
the act was committed against a son? Would that be
a ground to disinherit the parent? Yes. Do not be
literal. This is not limited to daughters. It can apply
by analogy to sons.
2. When the parent or ascendant has been convicted of
an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
Article 921. The following shall be sufficient causes for
disinheriting a
3. When the parent or ascendant has accused the
testator for which the law prescribes imprisonment
for six years or accusation has been found to be
false;
4. When the parent or ascendant has been convicted of
Ad Majorem Dei Gloriam
concubinage with the spouse of the testator;
5. When the parent or ascendant by fraud, violence,
intimidation, undue influence causes the testator to
make a will or to already made;
6. The loss of parental authority for causes specified in
this Code;
We should only refer to cases for loss of parental
authority when the loss of such authority is due to
the fault of the parent because even emancipation is
a ground for the loss of parental authority. When the
child reaches 18 years old, the parent losses parental
authority. That is not a ground to disinherit the
parents. We only refer to the loss of parental
authority due to the fault of the parents.
7. The refusal to support the children or descendants
justifiable cause;
8. An attempt by one of the parents against the life of
the other unless there has been a reconciliation
between them.
For example, the father attempted to kill the mother.
The child, X, can disinherit the father because he
attempted against the life of the mother. Will this
need conviction just like in number 2 (when the
parent or ascendant has been convicted of an
attempt against the life of the testator, his or her
spouse, descendants, ascendants), which requires
conviction? No.
In number 2, we need conviction by final judgment.
In number 8, mere attempt can be proved by
preponderance of evidence. There is no need for
conviction but there might be situations in number 8
which can be covered by number 2. Is conviction
required in number 8? No. Mere attempt is sufficient
in number 8. No need for conviction. Number 2
needs conviction by final judgment.
Take note that the law says unless there has been a
reconciliation between them. So, if your parents
have reconciled, you can no longer disinherit your
father [on this ground]. This is because if your
mother has found in her heart to forgive your father,
what more on your part? You are not the offended
party.
1. When the spouse has been convicted of an attempt
against of the testator, his or her descendants, or
ascendants;
2. When the spouse has accused the testator of a crime
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
for law prescribes imprisonment of six years or more,
and the has been found to be false;
3. When the spouse by fraud, violence, intimidation,
influence cause the testator to make a will or to
change made;
xxx
5. When the spouse has given grounds for the loss
authority;
6. Unjustifiable refusal to support the children or the
other.
These are the grounds to disinherit a spouse. Again,
grounds number 1, 2, 3, 5, and 6 are similar to those
previously discussed in articles 919 and 920.
4. When the spouse has given cause for legal
separation; x x x
Let us discuss number 4 (When the spouse has given
cause for legal separation). Can you disinherit your
son or spouse because he is gay? You cannot find
that in article 921. You cannot disinherit your parent
because he or she is gay, lesbian, or homosexual.
We also discussed article 919 when a child or
descendant has been convicted of adultery or
concubinage with the spouse of the testator and
article 920 when the parent or ascendant has been
convicted of concubinage with the spouse of the
testator.
There is no specific provision in 921 which says when
the spouse has been convicted of adultery or
concubinage with the child or parent of the testator.
What is now the remedy of an offended spouse when
that happens? Take note of number 4 when the
spouse has given legal spouse for legal separation, in
a sense, the innocent spouse may disinherit a guilty
spouse. A decree of legal separation is not required.
Merely giving cause for legal separation [is required]
because if there is already a decree of legal
separation, by operation of law, the guilty spouse is
disqualified to inherit from the innocent spouse, so
there is really no need to disinherit because he is
already disqualified to inherit.
We should know the grounds for legal separation
because these are also the grounds to disinherit a
spouse in addition to ones mentioned in article 921.
That would be article 85 of the family code.
Article 55. A petition for legal separation may be
filed on any of the grounds:
(1) Repeated physical violence or grossly
abusive conduct against the petitioner, a
common child, or a child of the petitioner;
(2) Physical violence or moral pressure to
Ad Majorem Dei Gloriam
compel the petitioner change religious or
political affiliation;
(3) Attempt of respondent to corrupt or
induce the petitioner, common child, or a
child of the petitioner, to engage in
prostitution, connivance in such corruption
or inducement;
(4) Final judgment sentencing the
respondent to imprisonment for more than
six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of
the respondent;
(6) Lesbianism or homosexuality of the
respondent;
(7) Contracting by the respondent of a
subsequent bigamous marriage, whether in
the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the
life of the petitioner; or
(10) Abandonment of petitioner by
respondent without justifiable cause for
more than one year.
For purposes of this Article, the term "child" shall
include a child by nature or by adoption. (9a)
These are also the grounds to disinherit a spouse.
Take a look at number 8 on sexual infidelity or
perversion. Even if under article 921, there is no
provision which says when the spouse has committed
adultery or concubinage with the parent or child of
the testator, that can still fall under article 55 (8).
You do not even need conviction as long as he
committed an act which is considered as sexual
infidelity or perversion.
Number 9 provides for an attempt by the respondent
against the life of the petitioner. When, for example,
the husband attempted against the life of the wife,
that is a ground to disinherit the husband without
need of conviction by final judgment. This can be
proved by preponderance of evidence.
Take note again of number 1 when the spouse has
been convicted of an attempt against of the testator,
his or her descendants, or ascendants. An attempt
against the life of the testator himself can be covered
by number 9 (attempt by the respondent against the
life of the petitioner) of article 55 of the family code
and likewise in number 4 (when the spouse has
given cause for legal separation) of article 921. If the
attempt is against the testator himself, you do not
need a prior conviction because, again, it is a ground
for legal separation, which requires no conviction.
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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

administration over the properties of their minor children.

Article 922. A subsequent reconciliation between the However, that will not apply in properties received by the
offender and the person deprives the latter of the right to minor child by virtue of his representation of the disinherited
disinherit, and renders ineffectual disinheritance that may parent. In the given example, A cannot manage or administer
have been made. (856) the property received by his child, B, from the As parents.
Who will then manage said properties? The spouse of A can
When you say reconciliation, it is a mutual restoration and administer. If there is none, a guardian must be appointed.
resumption of feelings between the testator and the
disinherited heir prior to the offense. Reconciliation implies a
bilateral and mutual act between the testator and disinherited COMPLETE COVERAGE FOR THE SECOND EXAM.
heir. The heir asks for forgiveness and the testator gives such GOD BLESS US. KJ
forgiveness. What is the consequence? There has already
been a disinheritance in the will but because of the
reconciliation, that disinheritance can no longer be given
effect.
Example:
I hereby disinherit my son because he attempted against my
life. In fact he was already convicted and is now imprisoned.
But I forgive him after he sought my forgiveness because I
love him. Such disinheritance was not erased from the will
despite the forgiveness, so when the will was presented for
probate, the other heirs may exclude him because of that.
Nevertheless, the disinherited heir may use as a defense that
there has already been reconciliation between him and the
testator. Because of the reconciliation, the disinheritance was
no longer effective,
Or, when there has already been reconciliation prior to the
execution of the will, the testator can no longer disinherit the
son based on the same offense because there has already
been reconciliation. That deprives the testator of the right to
disinherit the heir. But take note that reconciliation
presupposes a bilateral act. So, if only the father forgave the
son, even if he published such forgiveness, but the son did
not ask for forgiveness, there is no reconciliation. It has to be
a mutual act.

Article 923. The children and descendants of the person

disinherited shall take his or her place and shall preserve the
rights of compulsory heirs with respect to the legitime; but
the disinherited parent shall not have the usufruct or
administration of the property which constitutes the legitime.

What is the effect of a valid disinheritance? It deprives the

compulsory heir of his legitime. He is excluded from the entire
estate.
Example:
The testator in his will disposed only half of his properties
along with the disinheritance, can the disinherited heir claim a
share in the other half of the estate not disposed by the
testator? No. The disinheritance must be total. If A was
disinherited, he is totally excluded from the estate, but A can
still be represented. The share of A shall go to his child B if he
has a child or representative. Again, a disinherited heir can
still be represented.
Under the family code, if the child is a minor, parents as the
natural guardian of the minor have the usufruct and

Ad Majorem Dei Gloriam

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