05 Mercantile Law Syllabus 2018
05 Mercantile Law Syllabus 2018
ARTICLE 777. The rights to the succession are transmitted ARTICLE 778. Succession may be:
from the moment of the death of the decedent. (657a) (1) Testamentary;
(2) Legal or intestate; or
• Death is a condition for (3) Mixed. (n)
the transmission of a right by succession.
ARTICLE 779. Testamentary succession is that which
• While your parents are results from the designation of an heir, made in a will
still alive, their properties are still owned by them. executed in the form prescribed by law. (n)
What you have is merely an inchoate right or an
expectancy. It is not an absolute right. Conditions for Testamentary Succession:
1. There must be a will
Conditions for the transmission of a successional 2. There should be a designation of heir
right: 3. There must be observance of the formalities
1. There should be death (actual or presumed) of the required
transferor by law.
2. The rights or properties are transmissible
3. The transferee is alive PRINCIPLES IN TESTAMENTARY SUCCESSION
Testamentary acts which cannot be delegated to ARTICLE 789. When there is an imperfect description, or
third persons: when no person or property exactly answers the description,
mistakes and omissions must be corrected, if the error
1. The duration of designation of the heirs, appears from the context of the will or from extrinsic
devisees or legatees evidence, excluding the oral declarations of the testator as
2. The efficacy of the designation of the heirs, to his intention; and when an uncertainty arises upon the
devisees or legatees face of the will, as to the application of any of its provisions,
3. The determination of the portions which the the testator's intention is to be ascertained from the words
heirs, devisees, or legatees are to take, when of the will, taking into consideration the circumstances
refereed to by name under which it was made, excluding such oral declarations.
(n)
ARTICLE 786. The testator may entrust to a third person
the distribution of specific property or sums of money that he
may leave in general to specified classes or causes, and also
the designation of the persons, institutions or establishments 2 KINDS OF AMBIGUITY
to which such property or sums are to be given or applied. 1. PATENT OR EXTRINSIC AMBIGUITY –
(671a) appears on the face of the will itself.
2. LATENT OR INTRINSIC AMBIGUITY – does
• What is entrusted to a third person is the not appear on the face of the will. Ambiguity is
distribution of specific property or sums of money discovered by examination outside the will.
• Nuncupative Wills are wills orally made by Consists in witnessing the The signing of the
testator in contemplation of death and before testators execution of the witnesses name upon
competent witnesses. Nuncupative wills are not will in order to see and the same paper for the
recognized in the Philippines. take note mentally that purpose of
those things are done identification of such
• The presumption is that the testator knew the
which the statutes require paper as a will
language used in writing the will
for the execution of the will executed by the
• There is no statutory requirement that the will
and that the signature of testator.
should allege that the language used therein is
the testator exist as a fact.
understood by the testator
Mental act of the senses. Mechanical act of the
• There is no need to state in the Attestation You see, smell, feel etc. hand.
clause that the will is in the language or dialect
The purpose is to render The purpose is
known to the testator
available proof of the identification.
• That the will is in a language known to the authenticity of the will and
testator can be proved by extrinsic evidence or its due execution.
even by parol or oral evidence The act of the witnesses May be the act of the
• If the will is executed in the locality where the testator when the
testator lives, it is presumed that indeed the testator signs the will
testator during his lifetime knew or understood the or the witnesses if the
language or dialect in that locality witnesses affixed their
• The testator must know the language or dialect. signature in the will.
No amount of interpretation or explanation will cure To attest a will is to know To subscribe a paper
the defect that it was published as published as a will is
• Attesting witnesses are not required to know such and to certify the fact only to write on the
the language used in the body of the will required to constitute an same paper then
actual or legal publication. names of the witnesses
for the sole purpose of
ARTICLE 805. Every will, other than a holographic will,
must be subscribed at the end thereof by the testator himself identification.
or by the testator's name written by some other person in his
presence, and by his express direction, and attested and Tests of Presence
subscribed by three or more credible witnesses in the a. Test of vision
presence of the testator and of one another. b. Test of position
The testator or the person requested by him to write his c. Test of mental apprehension
name and the instrumental witnesses of the will, shall also
d. Test of available senses
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page. 3. The testator or the person
The attestation shall state the number of pages used upon requested by him to write his name and the
which the will is written, and the fact that the testator signed credible witnesses of the will shall sign
the will and every page thereof, or caused some other person each and every page of the will, on the left
to write his name, under his express direction, in the presence margin, except the last page
of the instrumental witnesses, and that the latter witnessed
• Marginal witnesses are also
and signed the will and all the pages thereof in the presence
of the testator and of one another. the subscribing witnesses
If the attestation clause is in a language not known to the • Purpose of the signing at the
witnesses, it shall be interpreted to them. (n) left-hand margin of the will is to identify the
pages and to prevent fraud
1. Article 805 only applies to notarial wills GENERAL RULE: Absence of signature on the first
2. The requirements under Article 805 are to be page of the will invalidates the will.
strictly construed EXCEPTIONS:
1. If the will contains only one page, then
Formal Requirements under Article 805: logically that one page already has the signature
1. Subscribed at the end by the of the testator because he is required to sign at
testator himself or the testator’s name is the end of the disposition and that also contains
written by some other person in the presence the signatures of the witnesses in the attestation
and under the express direction of the clause.
testator 2. Inadvertent lifting of pages.
• Subscription means the
physical act of signing 4. All the pages shall be numbered
• E-signatures cannot be affixed correlatively in letters placed on the upper
in a will because e-signatures are applicable part of each page
only to transactions and contracts • As long as it the page number
• Signature must appear not the has a physical location, the will is still valid.
physical end but at the logical end of the will The page number may even be incorporated
• The presence of additional in the text of the document itself
dispositions in a notarial will after the signature • If the will has only one page,
of the testator invalidates the entire will the will is valid because you can easily detect
because it affects the form whether there is loss of pages because if the
2. Attested and subscribed by three one page is lost then there is no will to speak
or more credible witnesses in the presence of of
the testator and of one another • Purpose of numbering the
• “in the presence of the testator pages of a will:
and of one another” – not actually seeing but in a) To guard against
a position to see if you want to see without any fraud;
physical obstruction b) To forestall any
attempt to suppress or substitute any of
ATTESTATION SUBSCRIPTION the pages;
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
c) To afford means of again, by the notary public before whom the will is
detecting the loss of any of its pages; acknowledged. (n)
d) To prevent any increase
or decrease in the pages. ARTICLE 809. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and influence,
ATTESTATION defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is
• It is the act of
proved that the will was in fact executed and attested in
witnessing the execution of the will. It is a mental substantial compliance with all the requirements of article
act. 805. (n)
• Attestation
clause is that clause of an ordinary or notarial will • Article
wherein the witnesses certify that the instrument 809 gives the rule on substantial compliance
has been executed before them and the manner of with respect to the attestation clause
execution of the same
• What do the • There is
subscribing witnesses attest to? substantial compliance when there has been
1. They attest to the genuineness of the signature an HONEST ATTEMPT on the part of the testator
of the testator to comply with the formal requisites provided by
law but the compliance is only substantial and
2. They attest to the due execution of the will not literal but the purpose of the law is
• What substantially accomplished although not strictly
should the attestation clause state? followed
1. The number • As to
of pages used upon which the will is written marginal signatures, there is no particular
2. The fact requirement that it should really appear on the
that the testator signed the will and every page left margin because the only purpose of marginal
thereof, or caused some other person to write signatures is for identification.
his name, under his express direction; • As to
3. The signing attesting signatures, the attesting witnesses are
by the testator or by the person requested by supposed to own the statements mentioned in
him in the presence of the instrumental the attestation clause. Therefore, their
witnesses; and signatures should appear at the bottom of the
attestation clause. If you just write on the
4. That the
margin, the purpose here is not to own the
instrumental witnesses witnessed and signed
statements mentioned here but just to identify
the will and all he pages thereof in the
this page, later on, as the same page which you
presence of the testator and of one another.
attested before.
ARTICLE 806. Every will must be acknowledged before a
Requisites of Article 809:
notary public by the testator and the witnesses. The notary
public shall not be required to retain a copy of the will, or file 1. The defects and imperfections refer to the
another with the office of the Clerk of Court. (n) form of the attestation or the language used
therein;
• Acknowled 2. There is no bad faith, forgery or fraud, or
undue or improper pressure and influence;
gment is a statement made by the notary public
3. The will was executed and attested in
that the testator and the witnesses have personally
substantial compliance with all the
come before him, that they voluntarily executed
requirements; and
the will and that they understood the contents.
4. The fact of such execution and attestation is
• “To proved.
acknowledge” means to admit, to avow, to own
as genuine Defects or imperfections excused under Article
• A 809:
holographic will need not be acknowledged before 1. Defects/imperfections in the form of
a notary public attestation clause;
• The testator
acknowledges the execution of the will. The 2. Defects/imperfections in the language used in
witnesses acknowledge the attestation clause. the attestation clause.
• Acknowledg
Formal requisites to be observed in the
ment need not be made in the presence of the
execution of Notarial Wills:
testator and each and everyone of the witnesses. It
is just required that the testator and the witnesses 1. The will must be in writing (Article 804);
appear before the notary public, not actually at the 2. It must be in the language or dialect known to
same time the testator;
• It is not 3. The will must be signed by the testator or by
required that the notary public before whom the another person in his presence or under his
will is acknowledged be present during the express direction (Article 805);
execution of the will 4. That the signing by the testator or by the
• Absence of person under his express direction and in his
an acknowledgment is a fatal defect presence must be done in the presence of at
least 3 instrumental witnesses;
ARTICLE 807. If the testator be deaf, or a deaf-mute, he 5. That the will is attested and subscribed by at
must personally read the will, if able to do so; otherwise, he least 3 credible witnesses in the presence of the
shall designate two persons to read it and communicate to testator and of each and every one of them;
him, in some practicable manner, the contents thereof. (n) 6. That the will must be signed by the testator
and by at least 3 credible witnesses on the left
ARTICLE 808. If the testator is blind, the will shall be read hand margin on each and every page;
to him twice; once, by one of the subscribing witnesses, and
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
7. That the will must be numbered correlatively in testator. EXPLICIT meaning you must possibly
letters; and unconditionally declare
8. That the signing by the 3 witnesses must be • If probate is CONTESTED, at least 3 of such
done in the presence of the testator and each and witnesses should be presented
every one of them;
• A photocopy or carbon copy of a holographic
9. There must be an Attestation clause stating
is allowed
therein the number of pages upon which the will is
written, a statement that the testator signed the
GENERAL RULE: The requirement of presenting an
will or another person signed the will under the
expert witness is discretionary on the part of the
express direction of the testator;
court.
10. The will is signed at the left margin by the
EXCEPTION: It is mandatory when after the
testator and the 3 instrumental witnesses in the
presenting witnesses who allegedly know the hand
presence of the testator and of one another;
writing of the testator, the court still is not convince
11. The will must be acknowledged before a notary as to the authenticity and genuineness of the will
public (Article 806); then the court should require expert testimony.
12. The will must be read twice by 2 persons
designated by the testator if the testator is deaf or ARTICLE 812. In holographic wills, the dispositions of the
deaf-mute (Article 807); testator written below his signature must be dated and
signed by him in order to make them valid as testamentary
13. If the testator is blind the will must be read to dispositions. (n)
him once, by one of the subscribing witnesses, and
again, by the notary public (Article 808); and
14. There must be substantial compliance with all • If there is no signature and date, then it is
presumed that the testator has no testamentary
the requirements of the law (Article 809).
intent as to his additional dispositions
ARTICLE 810. A person may execute a holographic will • If dated without signature, the additional
which must be entirely written, dated, and signed by the hand disposition is void. If signed only without date,
of the testator himself. It is subject to no other form, and may the additional disposition is void. But the
be made in or out of the Philippines, and need not be holographic will itself is not affected
witnessed. (678, 688a)
• With respect to notarial wills, the presence of
these additional dispositions will invalidate the
• A holographic will is a will that is entirely entire will because in a notarial will, the signature
written, dated and signed by the hand of the should appear at the logical end. Those
testator himself additional dispositions after the signature will
• It is important to know the date of execution invalidate the entire will.
because after the effectivity of the Spanish Civil
Code, which was overtaken by the Code of Civil ARTICLE 813. When a number of dispositions appearing
Procedure August 7, 1901 – August 1950 – in a holographic will are signed without being dated, and the
holographic wills, during that period, were not last disposition has a signature and a date, such date
allowed. validates the dispositions preceding it, whatever be the time
of prior dispositions. (n)
• Strictly speaking, in notarial wills, attestation
clause is not part of the will because it contains no
dispositions. The fact that the attestation clause is • If the dispositions are merely signed without
typewritten will not invalidate the will. the date, and the last disposition is signed and
dated, the effect is that it validates the
Requisites in the execution of holographic wills: disposition preceding it.
1. It must be written in a language or dialect • If the additional dispositions in a holographic
known to the testator will are not in the handwriting of the testator and
2. It must be ENTIRELY written by the testator; they are not signed by the testator, then, these
3. It must be dated in the hand writing of the additional dispositions are not valid but the will
testator; itself remains valid.
4. It must be signed in the hand writing of the
testator; and • But, if these additional dispositions are signed
5. It must be with animus testandi. by the testator, the testator is owning or adopting
the additional dispositions as his own. They will
now form part of the will because it now owned
ARTICLE 811. In the probate of a holographic will, it shall
be necessary that at least one witness who knows the by the testator or adopted. In that case, the
handwriting and signature of the testator explicitly declare entire will is void. The will now is not entirely in
that the will and the signature are in the handwriting of the the handwriting of the testator.
testator. If the will is contested, at least three of such • Signed but not dated and the last disposition
witnesses shall be required.
In the absence of any competent witness referred to in is signed and dated – validated
the preceding paragraph, and if the court deem it necessary, • Date only and the last disposition is dated
expert testimony may be resorted to. (691a) and signed – only the last disposition is valid, all
the previous dispositions are void because the
• Probate is the allowance of the will by the law says signed not dated. Only the disposition
court after its due execution is proved unsigned is invalid.
• Not signed and not dated even if the last
• Questions addressed during probate
disposition is signed and dated – void
proceedings: question of identity, question of
testamentary capacity and question of due
ARTICLE 814. In case of any insertion, cancellation,
execution erasure or alteration in a holographic will, the testator must
• If probate is UNCONTESTED, one witness who authenticate the same by his full signature. (n)
knows the hand writing of the testator must be
presented and who must explicitly declare that the • The insertion, cancellation erasure or
will and the signature are in the handwriting of the alteration mentioned in Article 814 are the ones
written in the hand writing of the testator
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
*** Articles 815, 816 and 817 were previously • A blind person, under Article 808, can be a
discussed under extrinsic validity of wills from the testator. But he cannot be a witness
viewpoint of place or country
ARTICLE 821. The following are disqualified from being
ARTICLE 818. Two or more persons cannot make a will witnesses to a will:
jointly, or in the same instrument, either for their reciprocal (1) Any person not domiciled in the
benefit or for the benefit of a third person. (669) Philippines;
(2) Those who have been convicted of
• JOINT WILL is one wherein the same falsification of a document, perjury or false testimony.
(n)
testamentary instrument is made as the will of 2 or
more persons and it is jointly executed and signed
by them. Qualification of witnesses to a will:
1. He must be of sound mind
• MUTUAL WILLS or RECIPROCAL WILLS are 2. At least 18 yrs of age
wills of 2 persons wherein the disposition of one is 3. Not blind, deaf or dumb
made in favor of the other and the other also 4. Able to read and write;
makes dispositions in favor of the other. This is 5. Domiciled in the Philippines
also called TWIN WILLS. The Mutual or reciprocal 6. Not convicted of falsification of document, perjury
wills are embodied in separate instruments. of false testimony
• When the 2 dispositions are made in the same
will, it becomes a joint will. Now, we have a Joint Essential elements of domicile:
and Mutual will. When you have a Joint and Mutual 1. The fact of residing, or the physical
will, it is prohibited under Article 818. presence in a fixed place
• Article 818 may cover a joint and mutual will or 2. The intention of remaining
joint will wherein the benefit is not for the 2 parties permanently, or the animus manendi
who execute the will but for a third person.
• Not all mutual and reciprocal wills are joint • These disqualifications apply only if the will is
wills. executed in the Philippines
• Conviction here should be by final judgment
Why are joint wills not allowed? • If pardoned and the pardon is by reason of
1. It tends to convert a will into a contract innocence then you become qualified again to
2. It destroys the character of wills as a strictly become a witness to a will because when you
personal act were acquitted because of innocence, that means
3. It runs counter to the idea that wills are you are trustworthy as witness.
essentially revocable or ambulatory; • If the pardon is by reason of an executive
4. It may subject one to undue influence. It clemency, you are still disqualified because the
induces Parricide. pardon erases only the penalty or the civil
5. It makes probate more difficult especially if the consequences of the conviction but it does not
testators dies at different times. change the fact that you are dishonest and
untrustworthy.
ARTICLE 819. Wills, prohibited by the preceding article, • A notary public cannot be one of the attesting
executed by Filipinos in a foreign country shall not be valid in
witnesses
the Philippines, even though authorized by the laws of the
country where they may have been executed. (733a)
ARTICLE 822. If the witnesses attesting the execution of
a will are competent at the time of attesting, their becoming
• Joint wills executed by a Filipino in a foreign subsequently incompetent shall not prevent the allowance
country are not valid in the Philippines, even of the will. (n)
though allowed in the place of execution
• Article 819 is not applicable to foreigners • As long as the witness is qualified at the time
executing their will. If a joint will is executed by a of the execution of the will, it does not matter if
foreigner abroad and it is valid in the place of subsequently he becomes incapacitated. The
execution, it shall be recognized by our courts, validity of the will remains.
because of lex loci celebrationes (law of the place
of execution). If it is valid in the place of execution ARTICLE 823. If a person attests the execution of a will,
it is valid here in the Philippines. to whom or to whose spouse, or parent, or child, a devise or
• If a joint will is executed by a Filipino and a legacy is given by such will, such devise or legacy shall, so
foreigner, the will is void as to the Filipino and valid far only as concerns such person, or spouse, or parent, or
with respect to the foreigner. child of such person, or any one claiming under such person
or spouse, or parent, or child, be void, unless there are three
• If a foreigner executes a joint will in the
other competent witnesses to such will. However, such
Philippines:
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
person so attesting shall be admitted as a witness as if such original will, then the The one revoking the
devise or legacy had not been made or given. (n) original will and the other.
codicil are taken as one.
• This article refers to an attesting witness to the
execution of the will but at the same time he is a ARTICLE 826. In order that a codicil may be effective, it
shall be executed as in the case of a will.
devisee or legatee in that will
• The will is still valid but he is disqualified from
receiving the devise or legacy 2 kinds of Codicil:
1. NOTARIAL CODICIL – it follow the rules
• Even if the attesting witness is not the devisee required by law for notarial will.
or legatee himself but his spouse, the parents, the 2. HOLOGRAPHIC CODICIL – it follow the rules
child of that witness, so the mother of the attesting required by law for holographic will
witness, the will is still valid but such person cannot
receive the legacy or devise
• But this article will not apply if there are more
• If the codicil does not follow the requirements
of the law, the codicil is void. But the invalidity of
than 3 witnesses.
the codicil will not affect the validity of the will.
• In voluntary heirs, the inheritance which they
are to receive under the will is void. Voluntary ARTICLE 827. If a will, executed as required by this
heirs are those who receive by virtue of the Code, incorporates into itself by reference any document or
liberality by the testator but they do not receive paper, such document or paper shall not be considered a
something if the testator does not provide for them. part of the will unless the following requisites are present:
• As to compulsory heirs, they may still get their (1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
legitime. But with respect to the free portion (2) The will must clearly describe and identify the same,
accorded to the compulsory heirs in the will, it is stating among other things the number of pages thereof;
void if such compulsory heir is also one of the 3 (3) It must be identified by clear and satisfactory proof as
witnesses. the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on
ARTICLE 824. A mere charge on the estate of the testator each and every page, except in case of voluminous books of
for the payment of debts due at the time of the testator's account or inventories. (n)
death does not prevent his creditors from being competent
witnesses to his will. (n)
• This is the Rule on Incorporation by
Reference. It is incorporation of an intrinsic or
• A creditor is not disqualified to receive if the separate document or paper into a will by
testator provides in the will that such portion shall reference so as to become a part thereof and
be given to the said creditor as payment for an probated as such.
obligation. Whether or not he is instituted in the
will, the creditor is entitled to be paid for his credit. Requisites of 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.
2. The will must clearly describe and
identify the same, stating among other things the
SUBSECTION 5 number of pages thereof
Codicils and Incorporation by Reference 3. It must be identified by clear and
satisfactory proof as the document or paper
ARTICLE 825. A codicil is a supplement or addition to a referred to therein
will, made after the execution of a will and annexed to be 4. It must be signed by the testator and
taken as a part thereof, by which any disposition made in the
original will is explained, added to, or altered. (n)
the witnesses on each and every page, except in
case of voluminous books of account or
inventories
• The validity of the codicil depends upon the
validity of the will Requirements to be stated in the face of the
• If the provisions of the will and the codicil are will:
inconsistent, the codicil should prevail because the 1. The fact that you are referring to the document or
purpose of a codicil is to amend, alter, or add to a paper
previously executed will. 2. The clear description and identification of the
document
CODICIL NEW WILL 3. The number of pages
When you execute a When you say after
codicil after you execute executing the first will, Requirements to appear on the face of the
a will, the codicil is taken you again execute document to be incorporated or being referred
as a part of the will. another will then the new to:
will exists independently 1. The signature of the testator;
of the original will and 2. The signature of the witnesses
without reference to the
original will. Requirements that can be proved by extrinsic
The codicil explains, adds Has no regard to the evidence:
to, supplements, and previous will, it does not 1. That the document is inexistence at the time of
alters the provisions in explain, or add to, or the execution of the will;
the original will. supplement the original 2. That the document is the one being referred to in
will. . the will.
The codicil may revoke When you execute a new
only a PART of the will, the ENTIRE previous GENERAL RULE: Only notarial wills shall have
original will. will is revoke as a general incorporation by inference because:
rule. 1. These documents under Article 827
Because a codicil is When you execute a new have to be signed by the testator and the
taken as a part of the will, they are separate.
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
witnesses. In notarial wills, there are witnesses. In
holographic wills, there are no witnesses. 3 ways of revocation:
2. In a notarial will, the contents can 1. By implication of law
either be in the handwriting of the testator, 2. By some will, codicil, or other writing
typewritten or a combination. When you say executed as provided in case of will (by
documents to be incorporated into the will, these subsequent instrument)
documents may either be typewritten or in the 3. By means of an overt act
hand of the testator.
EXCEPTION: It may be a holographic will: Acts considered by law as an act of revocation:
1. When the holographic will has at least 3 1. Article 957 of the NCC – When after
the testator has made a will, he sells, donate the
witnesses, there can be incorporation by reference
legacy or devise
because by then, the subscribing witnesses in the
2. Article 106 of the FC – Provisions in
holographic will, although a surplusage, can sign
the will in favor of the spouse who has given
the document to be incorporated.
cause to legal separation
2. Even if there are no witnesses but the 3. Article 1032 of the NCC - When an
document to be incorporated are entirely written, heir, legatee or devisee commits an act of
signed and dated in the hand of the testator. In unworthiness
this case, what we have is a purely holographic will. 4. Article 936 of the NCC – When a
You may have a valid incorporation by reference. credit has been given as a legacy is judicially
demanded by the testator
SUBSECTION 6 5. Article 854 of the NCC – Preterition
Revocation of Wills and Testamentary
Dispositions Kinds of Revocation by Subsequent Instrument:
ARTICLE 845. Every disposition in favor of an unknown • There is only a presumption. There is nothing
person shall be void, unless by some event or circumstance which can prevent the testator from providing in
his identity becomes certain. However, a disposition in favor of his will that the institution shall be successive and
a definite class or group of persons shall be valid. (750a) not simultaneous.
ARTICLE 846. Heirs instituted without designation of GENERAL RULE: The statement of a false cause for
shares shall inherit in equal parts. (765) the institution of an heir shall not vitiate the
institution. The false cause shall always be
considered as not written.
• Article 846 refers to PRINCIPLE OF EQUALITY The law presumes that in giving a legacy or
• It is presumed that the testator intended to give devise or inheritance, the real motivation or the real
equal shares to the heirs instituted. Otherwise, he cause is the liberality or generosity of the testator not
would have specifically mentioned the shares of the he false cause.
heirs had he intended that each heir shall get EXCEPTION: Unless it appears from the will that the
different portion or unequal portions testator would not have made such institution if he
had known the falsity of such cause.
GENERAL RULE: Heirs instituted without designation of
shares shall inherit in equal parts. • According to some authorities in succession, the
EXCEPTION: Article 846 cannot apply when there are statement of Illegal cause for the institution will
compulsory heirs. not invalidate the institution. The illegal cause is
deemed not written.
ARTICLE 847. When the testator institutes some heirs
individually and others collectively as when he says, "I
ARTICLE 851. If the testator has instituted only one heir,
designate as my heirs A and B, and the children of C," those
and the institution is limited to an aliquot part of the
collectively designated shall be considered as individually
inheritance, legal succession takes place with respect to the
instituted, unless it clearly appears that the intention of the
remainder of the estate.
testator was otherwise. (769a)
The same rule applies, if the testator has instituted
several heirs each being limited to an aliquot part, and all
• This article refers to the PRINCIPLE OF the parts do not cover the whole inheritance. (n)
INDIVIDUALITY
• As long as the intention to have the estate • Aliquot part means a fraction or undivided
collectively distributed does not appear in the will, interest
the presumption is individual institution • Article 851 should be applied when there is NO
• When there are compulsory heirs, you have to first INTENTION on the part of the testator to give the
satisfy the portion pertaining to the legitime of the remaining part of the estate. So, only the specific
compulsory heirs. portions mentioned.
• INSTITUTION refers to FREE PORTION
ARTICLE 852. If it was the intention of the testator that
ARTICLE 848. If the testator should institute his brothers the instituted heirs should become sole heirs to the whole
and sisters, and he has some of full blood and others of half estate, or the whole free portion, as the case may be, and
blood, the inheritance shall be distributed equally unless a each of them has been instituted to an aliquot part of the
different intention appears. (770a) inheritance and their aliquot parts together do not cover the
whole inheritance, or the whole free portion, each part shall
be increased proportionally. (n)
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
• In Article 852, the intention of the testator is to give If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without prejudice
the entire estate to the instituted heir or heirs but to the right of representation. (814a)
the shares given to the instituted heirs when added
do not comprise the entirety of the estate
• PRETERITION is the total omission generally due
Problem1 to mistake or oversight by the testator in his will
Q: A, B and C are instituted as heirs: A = 1/4, B = 1/4 and C = of one, some or all of the compulsory heirs in the
1/4. The testator says that he is giving the entire estate to A, B direct line living at the time of the testator’s
and C. The estate is worth P120,000. Does the institution death.
comprise the entire estate? No, because the institution only
• The omission may be voluntary or involuntary
amounts to 3/4. How do we divide the estate among A, B and
C?
Requisites of Preterition
A: A = P30,000 1. The omission from the inheritance must be total
B = P30,000 or complete
C = P30,000 • No preterition in the following situations:
------------- a. If the compulsory heir is given a
P90,000
devise or a legacy, he is not
P120,000 - 90,000 = P30,000 considered preterited even if the
P30,000 / 3 = P10,000 legacy or devise is worth less than
the legitime of the compulsory heirs.
Total share of: b. If the estate is worth P100T but the
A = P30,000 + 10,000 = P40,000 testator says, “I hereby institute my
B = P30,000 + 10,000 = P40,000 heir to one-half of my estate.” That is
C = P30,000 + 10,000 = P40,000 the only provision in the will. For
------------
P120,000
example, A is a son, an heir. There is
no preterition even if A is not
Problem2 mentioned because something is
Q: A = 1/6, B = 1/8, C = 2/3. The estate is worth P120,000. being left for A in the inheritance.
c. As long as there is still a balance after
A: A = (P120,000 / 6) * 1 = P20,000 all the provisions in the will have
B = (P120,000 / 8) * 1 = P15,000 been given effect, there are still
C = (P120,000 / 3) * 2 = P80,000
undisposed properties which the
-------------
P115,000 omitted compulsory heir may partake
so there is no preterition.
A = (20,000 / 115,000) * 5,000 = P 869.565 2. The omission must be the compulsory heir in the
B = (15,000 / 115,000) * 5,000 = P 652.179 direct line
C = (80,000 / 115,000) * 5,000 = P3,478.826 • Compulsory heirs:
---------------- 1. The children whether legitimate
P5,000.00
or illegitimate
Total share of: 2. The parents in the absence of the
A = P20,000 + 869.565 = P20,869.565 children
B = P15,000 + 652.179 = P15,652.179 • A spouse is a compulsory
C = P80,000 + 3,478.862 = P83,478.862 heir but NOT in the direct line
------------------
P120,000.00 • By fiction of law, an
adopted child is a compulsory heir in
ARTICLE 853. If each of the instituted heirs has been given the direct line
an aliquot part of the inheritance, and the parts together 3. The omitted compulsory heir must survive the
exceed the whole inheritance, or the whole free portion, as the testator.
case may be, each part shall be reduced proportionally. (n)
• If the omitted heir died ahead of the testator,
• Article 853 is the reverse of Article 852 there is no preterition because by reason of his
early death, he is deemed not to have inherited
from the testator
Problem1
Q: A =1/4, B = 1/8, C = 2/3. The estate is worth P120,000. • However, the omitted compulsory heir dies ahead
and he has children who can represent him.
A: A = 1/4 * P120,000 = P30,000 There is representation wherein the
B = 1/8 * P120,000 = P15,000 representative is exalted to the position of the
C = 2/3 * P120,000 = P80,000
------------
one they are representing. In this case, there is
P125,000 preterition.
• If there was a donation given to the compulsory
A = (P30,000 / 125,000) * 5,000 = P1,200 heir during the lifetime of the testator, and such
B = (P15,000 / 125,000) * 5,000 = P600 heir is omitted from the will, there is no
C = (P80,000 / 125,000) * 5,000 = P3,200 preterition because he is not omitted from the
inheritance. There must be omission from the
Total share of:
A = P30,000 - 1,200 = P28,800
inheritance, not merely from the will.
B = P15,000 - 600 = P14,400 • The donations made to compulsory heirs during
C = P80,000 - 3,200 = P76,800 the lifetime of the testator, upon the death of the
------------- testator, the values of these donations are
P120,000
brought back to the value of the estate through
collation.
ARTICLE 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 Effects of Preterition
the testator, shall annul the institution of heir; but the devises 1. It shall annul the institution of heir (Article
and legacies shall be valid insofar as they are not inofficious. 854)
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
2. The legacy or devise shall be valid in so far as other. (Fideicommissary substitution – Article
they are not inofficious (do not impair the 863)
legitime).
Purposes of substitution
ARTICLE 855. The share of a child or descendant omitted 1. To avoid intestate succession
in a will must first be taken from the part of the estate not 2. To prevent the descent of the estate
disposed of by the will, if any; if that is not sufficient, so much of the testator to whom the testator does not
as may be necessary must be taken proportionally from the want to succeed him in his property whether by
shares of the other compulsory heirs. (1080a)
right of representation, or by right of accretion or
by right of intestate succession
• Article 855 talks about the share of a child or 3. To allow the testator greater freedom
descendant omitted in the will. to help or reward those who by reasons of
• This article can also be applied when what is at services rendered are more worthy of his
hand is merely an impairment of the legitime, so, affection and deserving of his bounty than
you just have to complete the legitime. intestate heirs
4. To enable the testator to make
• Article 855 talks only of the legitime. It has no arrangements for his succession in the manner
concern of the Free Portion. most convenient for him
ARTICLE 856. A voluntary heir who dies before the testator
5. To realize some honorable purpose of
transmits nothing to his heirs. the testator like the maintenance of the property
A compulsory heir who dies before the testator, a person within his property because in substitution, the
incapacitated to succeed, and one who renounces the testator to some extent may preserve the
inheritance, shall transmit no right to his own heirs except in property within the confines of his own
cases expressly provided for in this Code. (766a) immediate family and prevent the estate from
descending to the other legal heirs like the
• The term voluntary heir here covers brothers or sisters
also legacies or devises. So, if a legacy or devise is
given, it transmits nothing to the heir of the • You can have a substitute for a legatee or
voluntary heir if the voluntary heir dies before the devisee because Article 857 applies to the free
testator portion and not to the legitime
GENERAL RULE: If a compulsory heir is predeceases, ARTICLE 858. Substitution of heirs may be:
is incapacitated or renounces or repudiates the (1) Simple or common;
(2) Brief or compendious;
inheritance, he transmits nothing to his own heirs.
(3) Reciprocal; or
EXCEPTION : Right of Representation (4) Fideicommissary. (n)
5. Both of the 1st heir and the 2nd heir must be ARTICLE 867. The following shall not take effect:
living at the time of the death of the testator (1) Fideicommissary substitutions which are not made in an
or at least conceived. express manner, either by giving them this name, or
imposing upon the fiduciary the absolute obligation to
deliver the property to a second heir;
ARTICLE 41 NEW CIVIL CODE. For civil (2) Provisions which contain a perpetual prohibition to
purposes, the foetus is considered born if it is alive alienate, and even a temporary one, beyond the limit fixed
at the time it is completely delivered from the in Article 863;
mother's womb. However, if the foetus had an (3) Those which impose upon the heir the charge of paying
intra-uterine life of less than seven months, it is to various persons successively, beyond the limit prescribed
not deemed born if it dies within twenty-four hours in Article 863, a certain income or pension;
after its complete delivery from the maternal (4) Those which leave to a person the whole or part of the
womb. (30a) hereditary property in order that he may apply or invest the
same according to secret instructions communicated to him
by the testator. (785a)
ARTICLE 874. An absolute condition not to contract a first Potestative Condition Potestative Condition
or subsequent marriage shall be considered as not written
in Obligations and in Succession
unless such condition has been imposed on the widow or
widower by the deceased spouse, or by the latter's ascendants Contract
or descendants. Valid Valid because the heir is
Nevertheless, the right of usufruct, or an allowance or But when it is naturally interested in
some personal prestation may be devised or bequeathed to suspensive at the same fulfilling the condition.
any person for the time during which he or she should remain time on the part of the So even if potestative
unmarried or in widowhood. (793a) debtor, it is not valid. and suspensive, the
This means that the condition is still valid.
• Article 874 refers to the prohibition to marry or obligation will arise if
remarry subject to a condition
• RELATIVE PROHIBITION is allowed. But if this which is to be fulfilled by
would amount to an absolute prohibition like to the debtor. That is what
marry for 60 years then it is not allowed. An is potestative and
example is prohibition to marry or re-marry a suspensive. It is not valid
particular person or prohibited to marry a particular because naturally the
time debtor would not fulfill
the condition because if
• ABSOLUTE PROHIBITION is not allowed. An the condition is fulfilled
example is prohibition to marry or re-marry then he is obliged already
anybody or prohibited to marry at all because he is the debtor
• The effect of an absolute prohibition is that it will
be considered as not written and shall be • The potestative condition is to be complied with
disregarded as soon as the heir learns of the testator’s death
because since the will is revocable during the
Exceptions to Absolute Prohibition lifetime of the testator, it would be useless for the
a. When the condition is imposed heir to comply with the condition knowing that it
upon the spouse by a deceased spouse may be revoked by the testator anytime
b. If imposed by the ascendants or
descendants of a deceased spouse to the spouse of • Only substantial compliance is required because
a deceased spouse it is presumed that by imposing a purely
potestative condition the testator trusted the
heirs enough to comply with the condition
• Even if it is the deceased spouse who provides for
the prohibition, that prohibition will not apply to the • As a general rule, if already complied with by the
legitime of the spouse. Only that which pertains to heir, it must be complied with again unless it is of
her as a voluntary heir (free portion) is forfeited such a nature that it cannot be complied with
again
• In the 1st paragraph of Article 874, the property is ARTICLE 877. If the condition is casual or mixed, it shall
not yet enjoyed. In the 2nd paragraph, there is be sufficient if it happen or be fulfilled at any time before or
already the right of usufruct or allowance or some after the death of the testator, unless he has provided
personal prestation. That is allowed but it is only otherwise.
limited to usufruct, allowance or personal Should it have existed or should it have been fulfilled at
prestation. If it is not among these 3, it is not the time the will was executed and the testator was
considered as a valid prohibition. 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
ARTICLE 875. Any disposition made upon the condition can no longer exist or be complied with again. (796)
that the heir shall make some provision in his will in favor of
the testator or of any other person shall be void. (794a)
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
• Article 877 talks about casual or mixed condition • If the heir contravenes the condition, the heir will
• CASUAL CONDITION is a condition which depends now return what he or she received by way of
upon chance and/or upon the will of a third person inheritance and all the fruits and interest
• MIXED CONDITION is a condition which depends • When monthly allowance, monthly pension,
upon monthly income, usufruct or personal prestation
1. the will of the heir AND are given by way of inheritance and the heir is
upon chance; or prohibited from doing something, otherwise, he
shall forfeit the inheritance, there is no
2. the will of the heir AND requirement of giving a security. If the heir
upon the will of a 3rd person contravenes the condition, the heir is not obliged
• Example of a mixed and casual condition: “I to return the fruits and interest because in this
hereby give to A my jewelry provided that A will example we apply by analogy Article 874 wherein
bear a child” no security is required and the heir is not
required to return the fruits and interest.
• There must be actual or strict compliance because
by subordinating the condition upon chance, the
ARTICLE 880. If the heir be instituted under a suspensive
testator presumably did not trust the heir enough condition or term, the estate shall be placed under
administration until the condition is fulfilled, or until it
ARTICLE 878. A disposition with a suspensive term does becomes certain that it cannot be fulfilled, or until the
not prevent the instituted heir from acquiring his rights and arrival of the term.
transmitting them to his heirs even before the arrival of the The same shall be done if the heir does not give the
term. (799a) security required in the preceding article. (801a)
• Article 878 talks about suspensive term • Article 880 refers to a situation wherein the
• A term is a day certain which must necessarily institution is subject to a suspensive condition
come although it may not be known when or term
• When the disposition is subject to a suspensive • When the institution is subject to a suspensive
term, it means that the heir is sure to inherit but term or a suspensive condition, the heir instituted
the demandability of the inheritance is just will NOT get the inheritance right away. The heir
suspended. The heir is not prevented from instituted still will have to wait for the arrival of
acquiring his right when the institution is subject to the term or for the happening of the condition.
a suspensive term. The right of the instituted heir Pending the arrival of the term or the happening
becomes vested from the moment of the death of of the condition, the property but shall be placed
the testator, although the enjoyment of the under administration.
property is just suspended. What is suspended is • As to who will be selected as the administrator,
just the demandability of the inheritance but his the provisions of the Rules of Court in Special
right to demand becomes vested upon the moment Proceedings must be complied with. Those who
of death. are preferred in the appointment as
• In a suspensive condition, unless the condition is administrators are also the legal heirs.
fulfilled, the instituted heir acquires no right to the • The property is also placed under administration
inheritance. if is bond is not furnished
• In TERM, the rights will pass
ARTICLE 881. The appointment of the administrator of
• In CONDITION, until after the condition is fulfilled, the estate mentioned in the preceding article, as well as the
then the heir instituted has no right to demand. manner of the administration and the rights and obligations
• When institution is subject to a condition, the of the administrator shall be governed by the Rules of Court.
(804a)
acquisition of rights must be determined AT THE
TIME OF THE FULFILLMENT OF THE CONDITION. So,
at the time of the fulfillment of the condition when • This article speaks for the appointment of
the heir is already dead then, there is no right to administrator, which are discussed in Special
speak of. Proceedings
• The testator can institute can heir subject to a • Administrator is a person appointed by the
resolutory term because the law does not prohibit it court to take care of the properties of the testator
who died without a will
ARTICLE 879. If the potestative condition imposed upon
the heir is negative, or consists in not doing or not giving • Executor is the person provided by the testator
something, he shall comply by giving a security that he will in his will who will take care of his properties
not do or give that which has been prohibited by the testator, pending settlement of his estate
and that in case of contravention he will return whatever he
may have received, together with its fruits and interests. ARTICLE 882. The statement of the object of the
(800a) 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
• Article 879 talks of NEGATIVE POTESTATIVE
his intention.
CONDITION, a condition that is purely dependent That which has been left in this manner may be claimed
upon the will of the heir, devisee or legatee which at once provided that the instituted heir or his heirs give
consists of not doing or not giving something security for compliance with the wishes of the testator and
• Under this article, inheritance is immediately for the return of anything he or they may receive, together
demandable from the moment of death of the with its fruits and interests, if he or they should disregard
testator this obligation. (797a)
• Under the theory of reserva minima, only half fulfillment of the condition. Since there is no will,
of the property received from the origin to the then, the reservees inherit by virtue of intestate
descendant is reservable. So, half of P 1M and half succession, the decedent being the propositus. The
of P 500,00 will be part of the legitime, which is inheritance of the reservees are delayed.
equal to P 750,000. Thus, the reservable property is
only P 500,000, which is half of the property ARTICLE 892. If only one legitimate child or descendant
of the deceased survives, the widow or widower shall be
received from the origin to the descendant. 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.
• The reserva maxima theory is more in keeping If there are two or more legitimate children or
with Article 891. Reserva minima is more in descendants, the surviving spouse shall be entitled to a
keeping with equity and justice. What is followed portion equal to the legitime of each of the legitimate
is reserva minima. 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
If there is no will: the testator. (834a)
• The entire property which came from the other
ascendant is reservable because the entire
property was transferred to the ascendant by • If there is only one legitimate child, the
operation of law because there is no will. So, the legitime of the surviving spouse would be ¼ of
entire P 500,000 is reservable from the first the net hereditary estate to be taken from the
example and the entire P 1M is reservable from the free portion
second example if there was no will. • The guilty spouse shall be disqualified from
• When there is a will, only that part which inheriting from the innocent spouse but the
corresponds to the legitime is transferred by innocent spouse can still inherit from the guilty
operation of law. spouse.
• But if there is no will then everything is • If there are 2 or more legitimate children, the
reservable surviving spouse can inherit from the deceased
even if there was legal separation and the
How is reserva maxima extinguished? deceased spouse gave cause for the legal
separation
1. Upon the death of reservoir
2. Upon the death of ALL the would-be reservees ARTICLE 893. If the testator leaves no legitimate
ahead of the reservoir descendants, but leaves legitimate ascendants, the
3. Upon the loss of the reservable properties surviving spouse shall have a right to one-fourth of the
hereditary estate.
without the fault or negligence of the reservoir
This fourth shall be taken from the free portion of the
4. Upon prescription – Adverse possession as estate. (836a)
against reservees by the reservoir or a stranger of
the reservable property as free from reserva for 30
years if it is a real property and 8 years if it is a
• In here, the surviving spouse concurs with the
legitimate ascendants. There are no legitimate
personal property. In order for prescription to run,
children
the fact that the reservor repudiates or hold the
property free from the reserva must be • The share of the legitimate ascendant is one-
communicated to the reservees, the reservees half. The share of the surviving spouse is ¼ to be
must know that the reservor is holding the property taken from the free portion
as free from the reserva otherwise there will be no • In order to memorize effectively, you have to
prescription. memorize first the share of the surviving spouse.
5. Upon registration under the Torrens System as
free from the reservation. ARTICLE 894. If the testator leaves illegitimate children,
the surviving spouse shall be entitled to one-third of the
6. Upon renunciation or waiver by ALL reservees hereditary estate of the deceased and the illegitimate
AFTER the death of the reservoir children to another third. The remaining third shall be at the
free disposal of the testator. (n)
• Reservable property is not extinguished by the
government. It will just continue on the indemnity • In this scenario, the survivors are the spouse
or just compensation and the illegitimate children.
• If the reservable property is insured and then, • The share would be 1/3 each. The remaining
destroyed, there is reserve on the insurance 1/3 would be the free portion.
indemnity or proceeds thereof • The share of the surviving spouse is not taken
from the free portion
Bar Question: What do you understand by the • The legitimes of the legitimate children and
DELAYED INTESTACY THEORY? the legitimate parents would always be ½
This is the theory that is applied in RESERVA • The legitimes of the surviving spouse and the
TRONCAL. Remember, in RESERVA TRONCAL, the illegitimate children may vary.
reservor inherits from the propositus. The reservee
also inherit from the propositus.
ARTICLE 895. The legitime of each of the acknowledged
However, the inheritance by the reservee from the natural children and each of the natural children by legal
propositus is delayed until after the death of the fiction shall consist of one-half of the legitime of each of the
reservor. The inheritance of the reservee from the legitimate children or descendants.
propositus is by virtue of legal or intestate succession. The legitime of an illegitimate child who is neither an
Remember, even if the propositus dies testate or with a acknowledged natural, nor a natural child by legal fiction,
will, that only refers to the inheritance of the reservor. shall be equal in every case to four-fifths of the legitime of
But, with respect to the reservee, what governs is the an acknowledged natural child.
The legitime of the illegitimate children shall be taken
law on legal or intestate succession. from the portion of the estate at the free disposal of the
That is the concept of DELAYED INTESTACY – when testator, provided that in no case shall the total legitime of
the resolutory condition of the reservor is fulfilled, the such illegitimate children exceed that free portion, and that
properties are distributed to the reservees as if they the legitime of the surviving spouse must first be fully
are inheriting from the propositus at the time of the satisfied. (840a)
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
legitime of the surviving spouse as the sole heir shall be
one-third of the hereditary estate, except when they have
• Note that under the Family Code, there are no
been living as husband and wife for more than five years. In
longer acknowledged natural, natural child by legal the latter case, the legitime of the surviving spouse shall be
fiction. We only have legitimate or illegitimate that specified in the preceding paragraph. (n)
children.
• With respect to illegitimate children, they are • The only survivor here is the spouse
entitled to one-half of the share of one legitimate
child GENERAL RULE: The spouse shall be entitled to ½ of
• In the distribution of legitimes, you first have to the net hereditary estate if he/she is the only
satisfy the legitime of legitimate children and then, survivor.
the surviving spouse which should be taken from EXCEPTION: The spouse shall be entitled to 1/3 if:
the free portion. And whatever remains, divide it 1. The marriage was
equally among the illegitimate children celebrated in articulo mortis and
2. the other spouse died
ARTICLE 896. Illegitimate children who may survive with within 3 months from the celebration of the
legitimate parents or ascendants of the deceased shall be marriage
entitled to one-fourth of the hereditary estate to be taken from
the portion at the free disposal of the testator. (841a)
• The spouse who is at the point of death
during the marriage must be the one who
should die
• In this scenario, the illegitimate children survive
with the legitimate parents of the testator • The cause of death must be the very same
• ½ to the parents and ¼ to the illegitimate reason why the marriage was in articulo
children mortis
EXCEPTION TO THE EXCEPTION: Surviving spouse
• Illegitimate children DO NOT exclude the gets 1/2 even if the testator or the testatrix died
legitimate parents or ascendants whereas within 3 months from time of celebration of marriage
legitimate children excludes legitimate parents or wherein the couple had been living previously as
ascendants husband and wife for more than 5 years
ARTICLE 898. If the widow or widower survives with • If the illegitimate child died ahead of his
legitimate children or descendants, and with illegitimate parents and he also has his own children
children other than acknowledged natural, or natural children legitimate or illegitimate, all of these children will
by legal fiction, the share of the surviving spouse shall be the inherit by Right of Representation. They will
same as that provided in the preceding article. (n) get whatever rights their parents have.
ARTICLE 900. If the only survivor is the widow or widower, • The parents under this article are the
she or he shall be entitled to one-half of the hereditary estate illegitimate parents (parents of an illegitimate
of the deceased spouse, and the testator may freely dispose of child)
the other half. (837a) • The presence of legitimate children will
If the marriage between the surviving spouse and the
testator was solemnized in articulo mortis, and the testator
exclude the legitimate parents. But legitimate
died within three months from the time of the marriage, the
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
parents, in the absence of legitimate children, will • You can waive your right to the inheritance
concur with the illegitimate children. and that can be executed because from the
• With respect to the illegitimate parents of the moment of death of the testator, the right of heirs
testator, they are excluded by the presence of the to the estate already becomes vested even if
children of the testator whether his children are there is still no distribution.
legitimate or illegitimate.
• The illegitimate parents are only secondary ARTICLE 906. Any compulsory heir to whom the testator
compulsory heirs because they inherit their has left by any title less than the legitime belonging to him
legitimes only in the absence of the legitimate or may demand that the same be fully satisfied. (815)
illegitimate children or descendants of the
decedent • Article 906 talks about completion of
• Article 903 refers to only to illegitimate parents legitime
and not to other ascendants like the parents of the
illegitimate parents.
• In this case, a compulsory heir has been
given his legitime by means of donation,
• Thus, the rule here is different from the case of condonation, remission, devise, legacy as long as
the grandparents of a legitimate child, for they may the giving of the title is gratuitous
inherit in default of both legitimate parents
COMPLETION OF PRETERITION
ARTICLE 904. The testator cannot deprive his compulsory LEGITIME (Article 906)
heirs of their legitime, except in cases expressly specified by Part of the estate is given There is total omission so
law.
to the compulsory heirs nothing is given to the
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind although the amount is compulsory heir during
whatsoever. (813a) equivalent to the the lifetime or in the will,
legitime but less than the nothing at all in the
• Even without the will of the testator, the legitime. inheritance.
compulsory heirs are always entitled to their All you have to do is to We annul the institution
legitimes give whatever amount of heirs.
that is lacking.
• The only way to deprive the compulsory heirs The will remains The will is invalidated but
of their legitime is by expressly disinheriting them legacies and devises
in a will, wherein the legal cause therefore shall be which are not inofficious
specified. shall be respected.
• Only the Free portion of the estate that the
testator can give away is subject to certain ARTICLE 907. Testamentary dispositions that impair or
condition, substitution or burden. diminish the legitime of the compulsory heirs shall be
• But the law states except in cases expressly reduced on petition of the same, insofar as they may be
inofficious or excessive. (817)
specified by law.
Burdens that the testator may impose on the • Article 907 talks about testamentary
legitime: disposition that impair or diminish the legitime of
In accordance with law: compulsory heirs
1. A prohibition to partition the legitime is valid for • By analogy, this article applies to donation
a period not exceeding 20 years
inter vivos. Donations which impair (donation
2. Reserva Troncal is also a burden insofar as the
inter vivos) the legitime shall be reduced on
legitime of the reservor or reservista is
petition of the compulsory heirs.
concerned.
• When you apply inofficious donation, only the
ARTICLE 905. Every renunciation or compromise as compulsory heirs can assail that the donation
regards a future legitime between the person owing it and his shall be reduced because it impairs their legitime.
compulsory heirs is void, and the latter may claim the same
upon the death of the former; but they must bring to collation
• The creditor cannot petition that donation
whatever they may have received by virtue of the inter vivos which are inofficious be reduced
renunciation or compromise. (816)
ARTICLE 908. To determine the legitime, the value of
the property left at the death of the testator shall be
• During the lifetime of the testator, the heirs considered, deducting all debts and charges, which shall not
only have inchoate right over the properties of the include those imposed in the will.
To the net value of the hereditary estate, shall be
testator as well as to their legitime
added the value of all donations by the testator that are
• The right to their legitime only becomes vested subject to collation, at the time he made them. (818a)
when the testator dies
• There can be no renunciation or compromise • If you do not arrive at the correct net
that can be made based upon a right that is yet an hereditary estate, all your computation of the
expectancy or an inchoate right legitimes would be wrong
• Even if the compromise is made among the • You add the donations made during the
compulsory heirs themselves, such compromise lifetime of the testator. That is the process of
would still not be valid. COLLATION.
• There can be renunciation of or compromise on • In collation, you do not actually return the
present legitime because the subject matter is no property physically but only the value thereof is
longer a future inheritance considered as part of the estate
• To reconcile with a waiver of a hereditary right, • Donations are collated because it would be
a waiver of hereditary right is executed after the easy for the testator to circumvent the law on
death of the testator. Hereditary right means your legitime by donating all his properties during his
right to the inheritance. But in Article 905, we are lifetime so that nothing would be left for his
talking here of future inheritance or future legitime compulsory heirs at the time of his death.
executed during the lifetime of the testator.
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
• Donations which are inofficious cannot be This is not inofficious because it can be
assailed by creditors except when the donation is in accommodated in the free portion.
fraud of the creditor Assuming that the testator in his will made a
legacy to M worth P 500,000. The testator is survived
• The value to be considered is the value of the a by a spouse, a legitimate child and an illegitimate
property donated at the time it was donated, not child. A donation to Y worth P 350,000 was also
the value upon the death of the testator made.
• Remember that donations to spouses are void. Legitimate child P 1,275,000
Since it is void, it is still part of the estate and so, Spouse 637,500 (1,275,000/2)
there is nothing to collate because it was not Y 350,000
deducted Illegitimate child 637,500
The estate is already consumed with what due to
Example: the legitimate child, the spouse and the illegitimate
Donations child. In this case, there is no more free portion left.
X P 100,000 Estate: P2,500,000 Thus, the donation becomes inofficious. In addition,
Y P 350,000 Debts: 250,000 the legacy to M cannot be given effect because there
Taxes: 150,000 is no free portion anymore
2. If there is still an excess, then you charge the and the devisee will just pay the compulsory heirs
legacies & devises; for such value
3. If still insufficient, all others. • If the reduction absorbs more than ½ of its
value, it shall go to the compulsory heirs and the
• Article 911 is when there are compulsory heirs compulsory heirs will just pay the devisee for
AND/OR there are donations subject to collations such value
• If it is exactly ½ of its value, the real property
Example: shall go to the devisee if you apply the article
Net Hereditary Estate P 2,550,000 literally, you would be defeating the intent of the
Donations: Legitimate child P 100,000 testator. The devisee will just pay the
X (friend) 350,000 compulsory heirs for the value
M (legacy) 500,000
N (devise) 200,000 ARTICLE 913. If the heirs or devisees do not choose to
Testator is survived by a spouse and a legitimate avail themselves of the right granted by the preceding
child. article, any heir or devisee who did not have such right may
exercise it; should the latter not make use of it, the property
Legitimate child P 1,275,000 shall be sold at public auction at the instance of any one of
the interested parties. (822)
Spouse 637,500
---------------
Free Portion P 637,500 • If the legatee or devisee does not want to
exercise the right under Article 912, the other
The free portion is not sufficient to accommodate parties (heir or devisee) may exercise the right
the donation, the legacy, and the devise. on behalf of the party who does not wish to
Donations are preferred as long as the legitime can exercise the right
be covered, reducing or annulling, if necessary, the
devises or legacies made in the will.
• If none of the parties have the interest to
exercise the right or reimbursement or retention,
the property may just be sold at a public auction
Free Portion P 637,500
at the instance of any interested party such as a
Donation to X (friend) 350,000
creditor of the estate
------------
Remaining Free Portion P 287,500
ARTICLE 914. The testator may devise and bequeath the
The remaining free portion is to be distributed pro- free portion as he may deem fit. (n)
rata since the testator did not prefer a certain devise or
legacy. • After all the legitimes of the compulsory heirs
have been satisfied, including the surviving
Legacy: 5/7 x 287,500 = P 205, 357.14 spouse and the illegitimate children, the free
Devise: 2/7 x 287,500 = P 82, 142.86 disposal may be given by the testator to anybody
provided that there is no prohibition by law.
• If there are preferred legacy or devise, for • If he gives the free disposal to his concubine,
example, the testator says that the legacy to M is that is not allowed
preferred, therefore, of the P287,500 remaining,
this will all be given as legacy to M. The whole P Review on LEGITIME
500,000 cannot be given because the net estate is
not sufficient. But because it is preferred, it shall • MEMORIZE the legitime of the
be given ahead of the devise. In that case, the compulsory heirs
devise will not be given anymore. • For easy memorization, maybe, you first start
• If there were 2 or more donations, they shall be with the legitime of the surviving spouse because
respected equally if made at the same time. It the legitime of the surviving spouse varies
shall be apportioned the same with the legacy and according to the other concurring heirs.
devise, which means pro-rata.
• If there were 2 or more donations made on 1. Surviving spouse with 1 legitimate child =¼
different dates, the earlier one shall be respected. Legitimate child =½
The more recent donations are less preferred than
the donations earlier made because there is a 2. If there are 2 or more legitimate children, the
presumption that it was made first. This means share of the surviving spouse changes:
that the testator has more preference or affection Surviving spouse = share of 1 legitimate child
for that person to whom he made that first Legitimate child ren? = 1/2
donation. That is if the donations are made on
different dates. 3. Spouse surviving with the parents of the testator:
Surviving spouse = ¼
ARTICLE 912. If the devise subject to reduction should
Parents =½
consist of real property, which cannot be conveniently divided,
it shall go to the devisee if the reduction does not absorb one- If there are illegitimate children:
half of its value; and in a contrary case, to the compulsory Surviving spouse = 1/8
heirs; but the former and the latter shall reimburse each other
in cash for what respectively belongs to them. 4. Spouse survives with illegitimate children only:
The devisee who is entitled to a legitime may retain the Surviving spouse = 1/3
entire property, provided its value does not exceed that of the Illegitimate children= 1/3
disposable portion and of the share pertaining to him as
legitime. (821)
5. If the spouse is the only survivor =½
If marriage celebrated articulo mortis and the
• In this case, the devise subject to reduction other spouse died within 3 months = 1/3
cannot be conveniently divided If they have been living together for 5 years = ½
• According to Article 912, if the reduction does
not absorb ½ of its value, it shall go to the devisee • Legitimate children always ½
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
• Legitimate parents always ½
ARTICLE 917. The burden of proving the truth of the
• Illegitimate children always ½ of the share of 1
cause for disinheritance shall rest upon the other heirs of
legitimate child unless there are many illegitimate the testator, if the disinherited heir should deny it. (850)
children and the estate is not enough to
accommodate their share. In that case, divide the
ARTICLE 918. Disinheritance without a specification of
remainder among the illegitimate children. the cause, or for a cause the truth of which, if contradicted,
is not proved, or which is not one of those set forth in this
Code, shall annul the institution of heirs insofar as it may
SECTION 6 prejudice the person disinherited; but the devises and
Disinheritance legacies and other testamentary dispositions shall be valid
to such extent as will not impair the legitime. (851a)
ARTICLE 915. A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for causes
expressly stated by law. (848a)
• Article 918 talks of invalid disinheritance
• Article 915 talks about the consequence of Instances wherein there is ineffective
being disinherited disinheritance:
• DISINHERITANCE is the process or act, thru a 1. Disinheritance without specification of the cause
testamentary disposition of depriving in a will any 2. For a cause which is not a true cause
compulsory heir of his legitime for true and lawful 3. For a cause not given in law
causes.
Consequence if there is an invalid
• Disinheritance refers only to a compulsory heir
disinheritance
• Disinheritance is made through a testamentary
• It shall annul the institution of the heirs but in
disposition. There must be a will.
so far as only for the purpose of completing the
• There is no disinheritance in legal or intestate legitime of the compulsory heir
succession, only in testate succession • But the devises and legacies and other
• Disinheritance can be made only for causes testamentary dispositions shall be valid to such
expressly stated by law extent as will not impair the legitime
• This article deals with the causes (7) The refusal to support the children or
descendants without justifiable cause
disinheriting an ascendant
• The same with Article 919
• The disinherited heir may controvert the
grounds stated in the will (8) An attempt by one of the parents against the life
of the other, unless there has been a reconciliation
(1) When the parents have abandoned their children or between them.
induced their daughters to live a corrupt or • The child, the son, the daughter or the
immoral life, or attempted against their virtue grandchild may disinherit his parent who has
• Abandonment here does not even have to attempted against the life of the other parent
amount to a crime as long as he has already • No need for conviction because the law says
deprived his child of the basic necessity or he attempt, so mere attempt
has not been seen for a number of years • But if there is a reconciliation between the
• Abandonment refers to either physical, parents, then, the child cannot anymore
educational or moral as long as you neglect disinherit because if the offended party has
your child deemed it proper to forgive the other spouse,
• This may be applied by analogy to sons then, with more reason the child because he
is not the party directly offended
(2) When the parent or ascendant has been convicted
of an attempt against the life of the testator, his or ARTICLE 921. The following shall be sufficient causes for
her spouse, descendants, or ascendants disinheriting a spouse:
(3) When the parent or ascendant has accused the (1) When the spouse has been convicted of an attempt
testator of a crime for which the law prescribes against the life of the testator, his or her descendants,
or ascendants;
imprisonment for six years or more, if the (2) When the spouse has accused the testator of a crime
accusation has been found to be false for which the law prescribes imprisonment of six
(4) When the parent or ascendant has been convicted years or more, and the accusation has been found to be
of adultery or concubinage with the spouse of the false;
testator (3) When the spouse by fraud, violence, intimidation, or
(5) When the parent or ascendant by fraud, violence, undue influence cause the testator to make a will or to
intimidation, or undue influence causes the testator change one already made;
(4) When the spouse has given cause for legal separation;
to make a will or to change one already made
(5) When the spouse has given grounds for the loss of
• Numbers 2, 3, 4, and 5 are the same as those parental authority;
in Article 919 (6) Unjustifiable refusal to support the children or the other
spouse. (756, 855, 674a)
(6) The loss of parental authority for causes specified
in this Code When the spouse has given cause for legal
• In this case, this should refer to those causes separation
by which the parent or ascendant is at fault. • In this case, there is yet no decree of legal
These causes are provided for in Article 330 separation but only the occurrence of the
and 332 of the Civil Code. cause for legal separation.
• You do not have to secure a decree of legal
ARTICLE 330 NEW CIVIL CODE. The father and in a separation first before you can disinherit your
proper case the mother, shall lose authority over spouse who has given ground
their children:
(1) When by final judgment in a criminal case the
penalty of deprivation of said authority is imposed Grounds for Legal Separation:
upon him or her; ARTICLE 55 NEW CIVIL CODE. A petition for legal
(2) When by a final judgment in legal separation separation may be filed on any of the following
proceedings such loss of authority is declared. (169a) grounds:
(1) Repeated physical violence or grossly abusive
ARTICLE 332 NEW CIVIL CODE. The courts may conduct directed against the petitioner, a
deprive the parents of their authority or suspend the common child, or a child of the petitioner;
exercise of the same if they should treat their (2) Physical violence or moral pressure to compel
children with excessive harshness or should give the petitioner to change religious or political
them corrupting orders, counsels, or examples, or affiliation;
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
(3) Attempt of respondent to corrupt or induce the disinherited parent shall not have the usufruct or
petitioner, a common child, or a child of the administration of the property which constitutes the
petitioner, to engage in prostitution, or connivance legitime. (857)
in such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if • Article 923 talks about the right of
pardoned; representation of the heirs of the
(5) Drug addiction or habitual alcoholism of the disinherited heir
respondent;
(6) Lesbianism or homosexuality of the respondent; EXAMPLE: Testator has 2 children, A and B. A has 2
(7) Contracting by the respondent of a subsequent
children, C and D. A is disinherited. Even if A can no
bigamous marriage, whether in the Philippines
or abroad; longer inherit, C and D will now represent A but only
(8) Sexual infidelity or perversion; with respect to the legitime of A. The fault of A
(9) Attempt by the respondent against the life of the should not be imputed against A’s heirs.
petitioner; or
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one
• An heir who has been disinherited can be
year. represented
For purposes of this Article the term "child" shall • PER CAPITA means one inherits in his own
include a child by nature or by adoption. (97a) right. In the example, B inherits in his own right.
ARTICLE 781 NEW CIVIL CODE. The inheritance of a ARTICLE 950. If the estate should not be sufficient to
person includes not only the property and the cover all the legacies or devises, their payment shall be
transmissible rights and obligations existing at the made in the following order:
time of his death, but also those which have accrued (1) Remuneratory legacies or devises;
thereto since the opening of the succession. (n) (2) Legacies or devises declared by the testator to be
preferential;
(3) Legacies for support;
ARTICLE 793 NEW CIVIL CODE. Property acquired
(4) Legacies for education;
after the making of a will shall only pass thereby, as
(5) Legacies or devises of a specific, determinate thing
if the testator had possessed it at the time of making
which forms a part of the estate;
the will, should it expressly appear by the will that
(6) All others pro rata. (887a)
such was his intention. (n)
In case of repudiation, there being no • The nearer excludes the farther
substitution, no representative and no right of
accretion then, there is intestacy. RULE OF EQUAL DIVISION
4. Incapacity GENERAL RULE: Relatives in the same degree shall
inherit in equal share
If incapacitated, it shall go by way of legal EXCEPTIONS:
succession
(1) Article 1006 with respect to the
relatives of full blood and half blood. In legal
Other instances where legal or intestate
succession, the full blood relatives are entitled to
succession takes place:
twice as much as those of the half-blood
1. Preterition
relatives.
2. Improper disinheritance (2) Article 987 concerning the division
3. Fulfillment of a resolutory condition between the maternal and paternal lines
4. Arrival of the resolutory period (3) Right of representation
(4) In legal succession and the same in
Forced Succession Legal/intestate testamentary succession, illegitimate children
succession only get ½ of the share of one legitimate child.
Succession to the The dispositions are
legitime regardless of provided for by law SUBSECTION 1
the will of the testator. because it is based on the Relationship
Even if it is against the presumed will of the
desire of the testator, testator. ARTICLE 963. Proximity of relationship is determined by
but the heirs are the number of generations. Each generation forms a degree.
compulsory heirs then, (915)
the testator has to give
to these compulsory
heirs. • Relationship is blood (consanguinity) or
marriage (affinity) tie uniting a person to another
ARTICLE 961. In default of testamentary heirs, the law person
vests the inheritance, in accordance with the rules hereinafter
set forth, in the legitimate and illegitimate relatives of the ARTICLE 964. A series of degrees forms a line, which
deceased, in the surviving spouse, and in the State. (913a) may be either direct or collateral.
A direct line is that constituted by the series of degrees
among ascendants and descendants.
• The legal and intestate heirs of the decedent
are legitimate children and descendants,
illegitimate children or descendants. In the
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
A collateral line is that constituted by the series of • The adoptee can inherit from the adopter
degrees among persons who are not ascendants and • An adopted child cannot represent
descendants, but who come from a common ancestor. (916a)
• Neither may an adopted child be represented
ARTICLE 965. The direct line is either descending or ARTICLE 971. The representative is called to the
ascending. succession by the law and not by the person represented.
The former unites the head of the family with those who The representative does not succeed the person
descend from him. represented but the one whom the person represented
The latter binds a person with those from whom he would have succeeded. (n)
descends. (917)
• This is true even if the children come from • Descendants in this article refers to
different marriages, for after all, the dead parent is legitimate and illegitimate descendants, since the
the common parent law does not distinguish
• The grandchildren inherit by right of
ARTICLE 981. Should children of the deceased and representation in order not to prejudice the
descendants of other children who are dead, survive, the children left
former shall inherit in their own right, and the latter by right of
representation. (934a)
ARTICLE 990. The hereditary rights granted by the two
preceding articles to illegitimate children shall be
ARTICLE 982. The grandchildren and other descendants transmitted upon their death to their descendants, who shall
shall inherit by right of representation, and if any one of them inherit by right of representation from their deceased
should have died, leaving several heirs, the portion pertaining grandparent. (941a)
to him shall be divided among the latter in equal portions.
(933)
• According to Paras, it is believed that Articles
989 and 990 apply not only to predecease but
• When the children are ALL dead, the
also to incapacity and disinheritance
grandchildren inherit by right of representation,
provided that representation is proper • In repudiation, there is no right of
representation
• When ALL the children repudiate, there is no
right of representation and therefore the
ARTICLE 991. If legitimate ascendants are left, the
grandchildren inherit in heir own right, per capita
illegitimate children shall divide the inheritance with them,
and in equal portions taking one-half of the estate, whatever be the number of the
ascendants or of the illegitimate children. (942, 841a)
ARTICLE 983. If illegitimate children survive with
legitimate children, the shares of the former shall be in the
proportions prescribed by article 895. (n) • If illegitimate children survive with legitimate
ascendants, the sharing would be one-half
• The shares of the illegitimate children are to be • When there are illegitimate children and no
taken only from the half, which is the free portion legitimate children, the legitimate ascendants
inherit half in intestate succession
ARTICLE 984. In case of the death of an adopted child, • When there are legitimate children,
leaving no children or descendants, his parents and relatives legitimate ascendants are excluded
by consanguinity and not by adoption, shall be his legal heirs.
• Although illegitimate children are placed 3rd in
(n)
the order of intestate succession, the presence of
the legitimate descendants and ascendants does
• The adopted child shall become the legal heir of not exclude them. They are concurring intestate
his adoptive parents and shall also remain the legal heirs.
heir of his natural parents
• In case of the death of the adopted child, his GENERAL RULE for all cases of PARTIAL INTESTACY:
parents and relatives by nature, and not by Charge the legacies to the intestate shares of
adoption, shall be his legal heirs those given by law on intestate succession more than
their respective legitimes, without impairing said
SUBSECTION 2 legitimes. Moreover, the charging must be
Ascending Direct Line proportionate to the amount in the intestate share
over and above that given by law as legitime.
ARTICLE 985. In default of legitimate children and
descendants of the deceased, his parents and ascendants ARTICLE 992. An illegitimate child has no right to inherit
shall inherit from him, to the exclusion of collateral relatives. ab intestato from the legitimate children and relatives of his
(935a) father or mother; nor shall such children or relatives inherit
in the same manner from the illegitimate child. (943a)
• Parents and ascendants referred to in this
article should be legitimate • Article 992 is the Principle of Absolute
Separation with the legitimate family and the
ARTICLE 986. The father and mother, if living, shall inherit illegitimate family. There is Reciprocal
in equal shares. prohibition. This is prohibition is also called the
Should one only of them survive, he or she shall succeed
IRON-CLAD BARRIER.
to the entire estate of the child. (936)
• If the person to be represented is an
ARTICLE 987. In default of the father and mother, the
ILLEGITIMATE, he can be represented by his
ascendants nearest in degree shall inherit. legitimate and illegitimate children
Should there be more than one of equal degree belonging • If the person to represented is a LEGITIMATE
to the same line they shall divide the inheritance per capita; child, he can only be represented by his own
should they be of different lines but of equal degree, one-half legitimate children
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
ARTICLE 993. If an illegitimate child should die without • Article 996 speaks of “children”, and does not
issue, either legitimate or illegitimate, his father or mother expressly provide for a case when there is only
shall succeed to his entire estate; and if the child's filiation is one legitimate child, unlike in the case of the
duly proved as to both parents, who are both living, they shall
legitime
inherit from him share and share alike. (944a)
• If there is only one legitimate child concurring
with the surviving spouse and there are no other
ARTICLE 994. In default of the father or mother, an
relatives, both will get equal intestate shares, in
illegitimate child shall be succeeded by his or her surviving
spouse, who shall be entitled to the entire estate. accordance with the clear intent of the law to
If the widow or widower should survive with brothers and consider the spouse as a child
sisters, nephews and nieces, she or he shall inherit one-half of
the estate, and the latter the other half. (945a) ARTICLE 997. When the widow or widower survives with
legitimate parents or ascendants, the surviving spouse shall
Heirs of the ILLEGITIMATE CHILD: be entitled to one-half of the estate, and the legitimate
parents or ascendants to the other half. (836a)
1. Legitimate children and other legitimate
descendants ARTICLE 998. If a widow or widower survives with
2. Illegitimate children and other descendants illegitimate children, such widow or widower shall be
3. Illegitimate parents; ( NB: An illegitimate child entitled to one-half of the inheritance, and the illegitimate
has no legitimate ascendants) children or their descendants, whether legitimate or
4. Surviving spouse illegitimate, to the other half. (n)
5. Illegitimate brothers and sisters subject to
article 992; ARTICLE 999. When the widow or widower survives with
6. Nephews & nieces subject to rule in article 992 legitimate children or their descendants and illegitimate
(because nephews & nieces who are legitimate children or their descendants, whether legitimate or
cannot inherit from the illegitimate child.) illegitimate, such widow or widower shall be entitled to the
same share as that of a legitimate child. (n)
7. Other collateral relatives up to the 5th civil
degree of consanguinity ARTICLE 1000. If legitimate ascendants, the surviving
8. The State spouse, and illegitimate children are left, the ascendants
shall be entitled to one-half of the inheritance, and the other
half shall be divided between the surviving spouse and the
Heirs of the LEGITIMATE CHILD: illegitimate children so that such widow or widower shall
have one-fourth of the estate, and the illegitimate children
1. Legitimate children and heir legitimate the other fourth. (841a)
descendants
2. Legitimate parents and other legitimate
ARTICLE 1001. Should brothers and sisters or their
ascendants children survive with the widow or widower, the latter shall
3. Illegitimate children and their descendants be entitled to one-half of the inheritance and the brothers
and sisters or their children to the other half. (953, 837a)
4. Surviving spouse, without prejudice to the
rights of brothers & sisters, nephews & nieces
should there be any
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
• Brothers and sisters do not concur with
recognized illegitimate children of the deceased. In ARTICLE 1007. In case brothers and sisters of the half
fact, the former are excluded by the latter. blood, some on the father's and some on the mother's side,
are the only survivors, all shall inherit in equal shares
without distinction as to the origin of the property. (950)
ARTICLE 1002. In case of a legal separation, if the surviving
spouse gave cause for the separation, he or she shall not have
any of the rights granted in the preceding articles. (n) ARTICLE 1008. Children of brothers and sisters of the half
blood shall succeed per capita or per stirpes, in accordance
with the rules laid down for brothers and sisters of the full
Rules for SURVIVING SPOUSE: blood. (915)
The decedent and the surviving spouse must be
legally married. ARTICLE 1009. Should there be neither brothers nor
The surviving spouse must not be the guilty sisters, nor children of brothers or sisters, the other
party when there is legal separation. collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or
There must be a decree of legal separation. If
preference among them by reason of relationship by the
there is no decree, she is not disqualified but whole blood. (954a)
she can be disinherited.
If there is a reconciliation between the • If the deceased is survived by children of a
surviving spouse and the decedent prior to the predeceased full blood sister, and by children of a
death of the decedent, even if there is a decree predeceased half blood brother, each of the first
of legal separation, the surviving spouse is now group gets twice the share of each of the second
qualified. group
In intestate succession there is no similar rule • The absence of brothers, sisters, nephews,
on death in articulo mortis. and nieces of the decedent is a precondition of
the other collaterals
If there is a surviving spouse with 1 legitimate
child and 1 illegitimate child, there is no such
ARTICLE 1010. The right to inherit ab intestato shall not
provision in intestate succession applicable in extend beyond the fifth degree of relationship in the
this case. The rule is, give ½ to the legitimate collateral line. (955a)
child then the illegitimate child gets ½ of the
share of the legitimate child (same as testate
succession). The spouse gets the remainder • The collateral relatives are the brothers,
(which is ¼) because in testate succession the sisters, nephews and nieces, and the uncles and
spouse gets ¼. aunts and cousins.
If there is partial intestacy, you charge the Rules for COLLATERAL RELATIVES:
legacy/devise to the share of one gets more by
intestacy than by testacy. In testate, the share The nearer relative excludes the
of the spouse concurring with the parent is ¼, farther subject to the right of representation
while in intestacy ½. As long as the legitime of when proper.
the surviving spouse is not impaired. If they are all in the same degree,
those who are in direct line are preferred over
SUBSECTION 5 those who are in the collateral line
Collateral Relatives If both are in the direct line, those
who are in the descending line are favored over
ARTICLE 1003. If there are no descendants, ascendants, those who are in the ascending line. That is
illegitimate children, or a surviving spouse, the collateral why the descendants excludes the parents or
relatives shall succeed to the entire estate of the deceased in
ascendants.
accordance with the following articles. (946a)
If both are in the collateral and the
same degree, those who are in the descending
• The collaterals referred to in this article are are favored over those in the ascending. That
intestate, but not compulsory heirs is why the nephews & nieces are favored over
• Among said collaterals, the nearer excludes the the uncles & aunts.
farther All of the brothers & sisters on the full
• Collaterals cannot inherit in the presence of blood will inherit in equal shares.
descendants Those who are in the half blood, as
long as married, not illegitimate, entitled to ½
ARTICLE 1004. Should the only survivors be brothers and of the share of the full blood.
sisters of the full blood, they shall inherit in equal shares.
(947) With respect to the heirs in the
collateral line, the right of representation
ARTICLE 1005. Should brothers and sisters survive together
extends only to the nephews & nieces (children
with nephews and nieces, who are the children of the of brothers & sisters).
descendant's brothers and sisters of the full blood, the former Grandnephews & nieces and the
shall inherit per capita, and the latter per stirpes. (948) great grandnephews & nieces can no longer
represent.
• Although it is a fact that brothers and sisters of
a decedent, and their children, are collateral heirs,
Between uncles & aunts vis-à-vis the
nephews & nieces, the nephews & nieces are
they are not given any share in the inheritance if
preferred
there is a will instituting the widow as the sole heir
of the estate
Requisites of Accretion:
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
1. If the testator expressly provide that the other ARTICLE 1026. A testamentary disposition may be made
heirs will not be subject to the same rights and to the State, provinces, municipal corporations, private
corporations, organizations, or associations for religious,
obligations scientific, cultural, educational, or charitable purposes.
2. If the rights and obligations are personal to the All other corporations or entities may succeed under a
heir whose portion becomes vacant will, unless there is a provision to the contrary in their
charter or the laws of their creation, and always subject to
the same. (746a)
ARTICLE 1021. Among the compulsory heirs the right of
accretion shall take place only when the free portion is left to
two or more of them, or to any one of them and to a stranger. • Juridical persons inherit only by WILL
Should the part repudiated be the legitime, the other co-
heirs shall succeed to it in their own right, and not by the right • Under article 1026, some of these entities are
of accretion. (985) not juridical persons. Juridical personality is
acquired when it is registered.
• There can be no accretion insofar as the • Article 1026 grants capacity to succeed even
legitime is concerned to non-juridical persons
• Accretion, if it takes place, concerns only the • The STATE inherits by will or by intestacy by
free portion virtue of its caduciary right
What is important is that at the time of the 6. No place is specified or date is fixed for the
making of the will, the final accounts have not prayers
been approved. It does not matter that he is no
longer the guardian at the time of death. ARTICLE 1030. Testamentary provisions in favor of the
poor in general, without designation of particular persons or
The prohibition only applies when the of any community, shall be deemed limited to the poor
institution is during the subsistence of the living in the domicile of the testator at the time of his death,
guardianship prior to the approval of the final unless it should clearly appear that his intention was
account otherwise.
The designation of the persons who are to be
Unlike the priest, the relatives (spouse, considered as poor and the distribution of the property shall
ascendant, descendant, brother or sister) are be made by the person appointed by the testator for the
not disqualified, For the priest up to the 4th purpose; in default of such person, by the executor, and
degree they are disqualified. should there be no executor, by the justice of the peace, the
mayor, and the municipal treasurer, who shall decide by a
4. Attesting witnesses
majority of votes all questions that may arise. In all these
If you give a legacy or devise only, the legacy cases, the approval of the Court of First Instance shall be
or devise is void but the witness is still qualified necessary.
The preceding paragraph shall apply when the testator
But applying Article 823, if there are 3 other has disposed of his property in favor of the poor of a definite
witnesses who are competent, then the witness locality. (749a)
to whom the legacy or devise is given is
capacitated to inherit
5. Physicians, surgeons, etc • This is disposition in favor of the poor
The will must be made DURING the LAST • This refers only to the poor living in the
ILLNESS and AFTER THE CARE had commenced domicile of the testator at the time of his death,
The disqualification does not apply if the unless the testator has provided otherwise
physician or nurse is a compulsory heir • The institution is for the poor in general.
6. Individuals, associations and corporations not • When the testator says a poor of a definite
permitted by law to inherit locality, then the poor in that place.
• Insane persons have no testamentary
• Article 1027 still applies even if it is proved that capacity
there was no undue influence on the part of the
priest, guardian, or physician • But with respect to being heirs, insane
persons are capacitated
• Article 1027 provides for a conclusive
• Incapacity should be construed strictly
presumption. Being conclusive, you cannot present
controverting evidence Who will designate the persons who are
considered poor?
ARTICLE 1028. The prohibitions mentioned in article 739, 1. The person designated by the testator;
concerning donations inter vivos shall apply to testamentary
provisions. (n)
2. The executor;
3. Three people by majority vote
• This is incapacity by reason of public morality
Kinds of Incapacity
Applying the law on succession, the following 1. ABSOLUTE INCAPACITY – You cannot inherit from
donations shall be void: anybody under any circumstance.
1. When the testator and the recipient are 2. RELATIVE INCAPACITY – You can inherit only from
guilty of adultery or concubinage certain persons or can only inherit certain properties
2. When the testator and the recipient are under certain circumstances.
guilty of the same criminal offense in consideration
thereof Classes under Absolute Incapacity
3. Those made by the testator to a public 1. Article 1026 last paragraph : “All other
officer, or his wife, descendant and ascendant by corporations or entities may succeed under a will,
reason of his office unless there is a provision to the contrary in
their charter or the laws of their creation, and
ARTICLE 1029. Should the testator dispose of the whole or always subject to the same.”
part of his property for prayers and pious works for the benefit
2. Article 1027 paragraph 6 : “Individuals,
of his soul, in general terms and without specifying its
application, the executor, with the court's approval shall associations and corporations not permitted by
deliver one-half thereof or its proceeds to the church or law to inherit.”
denomination to which the testator may belong, to be used for 3. Those who lacks juridical personality
such prayers and pious works, and the other half to the State,
for the purposes mentioned in article 1013. (747a) Classes under Relative Incapacity
1. Article 1027: Incapacity by reason of possible
• Article 1029 is commonly called the undue influence
Institution of the Soul. The soul is considered as 2. Article 1027 paragraphs 1-5: Incapacity by
an entity which does not have a juridical reason of public policy
personality but may otherwise inherit 3. Article 1028 Incapacity by reason of public
policy and morality
Requisites for the institution of the soul: 4. Article 1032: Incapacity by reason of
1. The disposition must be for prayers and pious unworthiness.
works
ARTICLE 1031. A testamentary provision in favor of a
2. The prayers and pious works must for the disqualified person, even though made under the guise of
benefit of the testator’s soul an onerous contract, or made through an intermediary, shall
3. The disposition must be in general term be void. (755)
4. It does not specify the application
5. No particular person is charged with the duty of • This article applies only to incapacity by
giving the money or property reason of possible influence and Incapacity by
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
reason of public morality. With respect to legitime and as well to the free portion. But
incapacity by reason of unworthiness, Article 1031 the incapacitated heir can be represented.
will not apply
ARTICLE 1033. The causes of unworthiness shall be
ARTICLE 1032. The following are incapable of succeeding by without effect if the testator had knowledge thereof at the
reason of unworthiness: time he made the will, or if, having known of them
(1) Parents who have abandoned their children or induced subsequently, he should condone them in writing. (757a)
their daughters to lead a corrupt or immoral life, or
attempted against their virtue;
(2) Any person who has been convicted of an attempt against • This article talks about PARDON OR
the life of the testator, his or her spouse, descendants, or CONDONATION
ascendants;
(3) Any person who has accused the testator of a crime for Condonation / Pardon Reconciliation
which the law prescribes imprisonment for six years or It is the unilateral of the It is a bilateral act. There
more, if the accusation has been found groundless;
testator. must be forgiveness and
(4) Any heir of full age who, having knowledge of the violent
death of the testator, should fail to report it to an officer of the the heir must accept.
law within a month, unless the authorities have already
taken action; this prohibition shall not apply to cases Rules for Condonation:
wherein, according to law, there is no obligation to
make an accusation;
• If the testator already knew the cause of the
(5) Any person convicted of adultery or concubinage with the unworthiness at the time of making the will
spouse of the testator; but still he provides something for that
(6) Any person who by fraud, violence, intimidation, or undue unworthy heir in the will, there is now an
influence should cause the testator to make a will or to IMPLIED CONDONATION.
change one already made; • The will in which the implied condonation is
(7) Any person who by the same means prevents another made must be valid and it must not be
from making a will, or from revoking one already made, or
revoked in order that there is implied
who supplants, conceals, or alters the latter's will;
(8) Any person who falsifies or forges a supposed will of the condonation because implied condonation is
decedent. (756, 673, 674a) dependent on the will.
• If knowledge comes only AFTER the execution
2nd paragraph: Any person who has been convicted of of the will, condonation must be in writing.
an attempt against the life of the testator, his or her This is EXPRESS CONDONATION
spouse, descendants, or ascendants
• If the cause for unworthiness is also a ground
The incapacity must be measured AT THE TIME for disinheritance, the rule on disinheritance
of death of the testator applies. Thus, reconciliation is enough. There
Such person is not incapacitated if the attempt is no requirement that the testator should
against the wife of the testator was made after condone it in writing. But if there is no
the death of the testator disinheritance and there is only act of
4th paragraph: Any heir of full age who, having unworthiness, if the testator knew of the act
knowledge of the violent death of the testator, should only after the execution of the will, there has
fail to report it to an officer of the law within a month, to be condonation in writing.
unless the authorities have already taken action; this • The only instance wherein an incapacitated
prohibition shall not apply to cases wherein, according heir is restored to capacity by the mere act of
to law, there is no obligation to make an accusation reconciliation is when there is a decree of
18 years old is the legal age but 21 is the full legal separation the guilty spouse becomes
age incapacitated. But when there is subsequent
Death must be violent. It must be caused by a reconciliation the decree shall be set aside
crime and the spouse will now be restored to
Under the last sentence, paragraph 4 applies capacity.
only when there is an obligation to make an
accusation but there is no law in the Philippines ARTICLE 1034. In order to judge the capacity of the heir,
which obliges anyone to make an accusation devisee or legatee, his qualification at the time of the death
because in criminal cases, it is People of the of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of article 1032, it
Philippines versus the criminal. It is the State shall be necessary to wait until final judgment is rendered,
which prosecutes. As of the present, paragraph and in the case falling under No. 4, the expiration of the
4 has no application. month allowed for the report.
5th paragraph: Any persons convicted or adultery or If the institution, devise or legacy should be conditional,
concubinage with the spouse of the testator the time of the compliance with the condition shall also be
considered. (758a)
The person convicted is the one incapacitated,
he is the unworthy. The spouse of the testator
is not incapacitated or unworthy. But the • In case of a suspensive conditional institution,
infidelity of the spouse constitutes a ground for the heir must be capacitated BOTH:
disinheritance. If there is a decree of legal 1. At the time of the testator’s death
separation, by law, the spouse who is guilty is 2. At the time the condition is fulfilled
disqualified from inheriting.
ARTICLE 1035. If the person excluded from the
If there is now reconciliation between the guilty
inheritance by reason of incapacity should be a child or
spouse and the innocent spouse after the descendant of the decedent and should have children or
decree of legal separation has been granted, descendants, the latter shall acquire his right to the
the decree shall be set aside so the spouse will legitime.
now be reinstated to succeed to capacity. The person so excluded shall not enjoy the usufruct and
8th Paragraph: Any person who falsifies or forges a administration of the property thus inherited by his children.
supposed will of the decedent. (761a)
Article 1032 applies to both testate or intestate
succession • In disinheritance, if a person is disinherited
When it is the compulsory heir who becomes he can still be represented.
unworthy, the compulsory heir loses the
legitime and all other rights pertaining to the
SUCCESSION REVIEWER (4th Year : 2008-2009) Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
• But the disinherited parent shall have no of the property, rights and obligations which are
usufruct and administration of the property transmitted to him thru the death of the decedent
received by the representative (Article 923). • Repudiation is the act by which the person
• This same rule applies to incapacity. The called to succeed to the inheritance manifest his
incapacitated heir can still be represented but the unwillingness to succeed to the same
incapacitated heir has no right of usufruct or • Rights may be waived provided that the
administration over the property received by the waiver is not contrary to law, morals, public
representative. policy, good customs or prejudicial to the right of
the person recognized by law. This is applicable
ARTICLE 1036. Alienations of hereditary property, and acts in acceptance and repudiation.
of administration performed by the excluded heir, before the • No person can be forced to accept the
judicial order of exclusion, are valid as to the third persons generosity of another
who acted in good faith; but the co-heirs shall have a right to
recover damages from the disqualified heir. (n) • Repudiation and acceptance are subsequent
to the death of the decedent. But their effects
retroact from the moment of death.
• The unworthiness must be declared by the
court • If you accept or repudiate before the death of
the decedent, it is void because it involves future
ARTICLE 1037. The unworthy heir who is excluded from the inheritance. Moreover, a will is essentially
succession has a right to demand indemnity for any expenses revocable so, the acceptance or repudiation is
incurred in the preservation of the hereditary property, and to premature
enforce such credits as he may have against the estate. (n)
GENERAL RULE: Acceptance and repudiation once
ARTICLE 1038. Any person incapable of succession, who, made are irrevocable
disregarding the prohibition stated in the preceding articles, EXCEPTION: When it was made through any of the
entered into the possession of the hereditary property, shall causes that vitiate consent or when an unknown will
be obliged to return it together with its accessions. appears.
He shall be liable for all the fruits and rents he may have
received, or could have received through the exercise of due
diligence. (760a) • Acceptance may be EXPRESS, TACIT or
PRESUMED
• Repudiation being an act of disposition, it
• Articles 1037 and 1038 speak of the rights and requires greater capacity and more formalities
obligations of the excluded unworthy heir than acceptance
• Education under this article means only up to 1. Property of the same nature, class and
HIGH SCHOOL education because there is separate quality
provision under Article 1068 as to professional, 2. If no property of the same nature, cash or
vocational and other careers security
3. Other property as may be necessary shall be
Items which are not collated to the legitime and sold at public auction
to the free portion because they are not included
in the computation in the net hereditary estate: Rules for movables:
1. Properties received from the testator by the 1. Property of the same nature, class or quality
children of the heir (Article 1065)
2. If none, the equivalent value of the property
2. Donations by the testator to the spouse of the
compulsory heir (Article 1066) – If the donation
was made to the spouses jointly, ½ is subject to • When the property donated is a MOVABLE
collation pertaining to the share of the heir property, there is NO RIGHT to sell at a public
3. Expenses for support, education, medical auction
attendance
ARTICLE 1075. The fruits and interest of the property
subject to collation shall not pertain to the estate except
from the day on which the succession is opened.
For the purpose of ascertaining their amount, the fruits
and interest of the property of the estate of the same kind
and quality as that subject to collation shall be made the
standard of assessment. (1049)
ARTICLE 1073. The donee's share of the estate shall be ARTICLE 1077. Should any question arise among the co-
reduced by an amount equal to that already received by him; heirs upon the obligation to bring to collation or as to the
and his co-heirs shall receive an equivalent, as much as things which are subject to collation, the distribution of the
possible, in property of the same nature, class and quality. estate shall not be interrupted for this reason, provided
(1047) adequate security is given. (1050)
• Note that if even ONE heir should demand a ARTICLE 1092. After the partition has been made, the co-
public auction, this must be done heirs shall be reciprocally bound to warrant the title to, and
the quality of, each property adjudicated. (1069a)
ARTICLE 1087. In the partition the co-heirs shall reimburse
one another for the income and fruits which each one of them
may have received from any property of the estate, for any • For warranty against eviction
useful and necessary expenses made upon such property, and to be enforceable, it is enough that there be a
for any damage thereto through malice or neglect. (1063) burden or encumbrance that must be respected.
It is not necessary that the heir be deprived full
Reimbursement made by co-heirs: ownership
1. Income and fruits • Eviction here does not have
2. Useful and necessary expenses to be by final judgment before recourse to the
3. Damages thru malice or neglect warranty can be sought, as long as no heir
objects
ARTICLE 1088. Should any of the heirs sell his hereditary
rights to a stranger before the partition, any or all of the co- Effects of partition:
heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so
1. Once there is partition, the heirs will be the
within the period of one month from the time they were exclusive owners of the thing given to them
notified in writing of the sale by the vendor. (1067a) or delivered to them (Article 1091)
2. There is a reciprocal and proportionate
• This article talks about LEGAL REDEMPTION warranty (Article 1092)
Requisites for the exercise of legal redemption: ARTICLE 1093. The reciprocal obligation of warranty
referred to in the preceding article shall be proportionate to
1. There are two or more heirs
the respective hereditary shares of the co-heirs, but if any
2. There is a sale of hereditary right one of them should be insolvent, the other co-heirs shall be
• There must be a sale or other liable for his part in the same proportion, deducting the part
onerous disposition corresponding to the one who should be indemnified.
• The sale must be voluntary or Those who pay for the insolvent heir shall have a right
forced as in the case of sales on execution of action against him for reimbursement, should his financial
condition improve. (1071)
3. The buyer must be a stranger
4. The sale must be made BEFORE
partition ARTICLE 1094. An action to enforce the warranty among
5. At least one co-heir must demand co-heirs must be brought within ten years from the date the
right of action accrues. (n)
partition
• If all of the of the co-heirs • The period of exercise of the
demand partition, they shall be allowed to warranty is 10 years
redeem the proportionate share pertaining
to them ARTICLE 1095. If a credit should be assigned as
6. The demand must be made within one collectible, the co-heirs shall not be liable for the
month from Notification in Writing subsequent insolvency of the debtor of the estate, but only
7. The redemptioner must reimburse the for his insolvency at the time the partition is made.
The warranty of the solvency of the debtor can only be
price of the sale
enforced during the five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and
GENERAL RULE: The right of legal redemption is a accepted by, the distributee. But if such debts are not
PERSONAL RIGHT. They cannot assign or sell this right. assigned to a co-heir, and should be collected, in whole or in
EXCEPTION: If the heir who wants to exercise the right part, the amount collected shall be distributed
of legal redemption dies prior to the exercise, his right proportionately among the heirs. (1072a)
may be transmitted to his own heirs.
• This is Warranty as to
ARTICLE 1089. The titles of acquisition or ownership of each
Insolvency
property shall be delivered to the co-heir to whom said
property has been adjudicated. (1065a) • There is a warranty of
insolvency provided that the debtor was solvent
ARTICLE 1090. When the title comprises two or more pieces at the time of the partition, not later
of land which have been assigned to two or more co-heirs, or • Such warranty is good for 5
when it covers one piece of land which has been divided years, following the date of partition
between two or more co-heirs, the title shall be delivered to • There is no warranty for bad
the one having the largest interest, and authentic copies of debts. An heir accepts them at his own risk
the title shall be furnished to the other co-heirs at the expense
of the estate. If the interest of each co-heir should be the
same, the oldest shall have the title. (1066a)
ARTICLE 1099. The partition made by the testator cannot be GENERAL RULE: Such preterition in the partition will
impugned on the ground of lesion, except when the legitime of NOT cause rescission.
the compulsory heirs is thereby prejudiced, or when it appears EXCEPTION: If there was
or may reasonably be presumed, that the intention of the 1. Fraud
testator was otherwise. (1075)
2. Bad faith
GENERAL RULE: In order that that you may be justified ARTICLE 1105. A partition which includes a person
in asking for rescission on the account of lesion, the believed to be an heir, but who is not, shall be void only with
deduction must at least be ¼. If it is less than ¼, you respect to such person. (1081a)
can only ask for a completion.
EXCEPTION: If the partition is made by the TESTATOR,
even if the deduction is less than ¼, you cannot ask for • This speaks of an intrusion
rescission of a stranger in the partition
EXCEPTION TO THE EXCEPTION: • The partition in this case is
1. When the legitime of the compulsory heirs has not completely void.
been impaired.
2. If the intent of the testator is for his partition to
• Only the part corresponding
to the non-heir is void.
be rescinded should there be lesion
ARTICLE 1101. The heir who is sued shall have the option of
indemnifying the plaintiff for the loss, or consenting to a new
partition.
Indemnity may be made by payment in cash or by the
delivery of a thing of the same kind and quality as that
awarded to the plaintiff.
If a new partition is made, it shall affect neither those who
have not been prejudiced nor those have not received more
than their just share. (1077a)