SUCCESSION

NEW CIVIL CODE OF THE PHILIPPINES

Christopher de Guzman, CPA, CAT

General Provisions
 Succession Defined
➢is a mode of acquisition by virtue of which the
property, rights and obligations to the extent of the
value of the inheritance, of a person are transmitted
through his death to another or others either by his
will or by operation of law. (Art. 774 of NCC)
 Elements of Succession

▪ Decedent – pertains to the person whose property is

transmitted through succession;
• Testator – a decedent who left a will;
• Intestator – a decedent who does not left a will;
(Art. 775 of NCC)
 Elements of Succession

▪ Inheritance – includes all the properties, transmissible rights,

and obligations of a person which are not extinguished by his
death and existing at the time of his death; also includes
those which have accrued thereto since the opening of the
succession (Art. 776 & 781 of NCC).
 Elements of Succession

▪ Successors – a person called to the succession either by

the provision of a will or by operation of law; must survived
the decedent and must be living at the time of death of
decedent; must be capacitated and did not repudiate
the inheritance.
• Either heirs, devisees or legatees (Art. 782 of NCC)
 Presumption of Death (Art. 390 & 391 of NCC)

▪ Absence of seven years will be presumed death except in

case of succession;

▪ Succession opens at the end of the ten year period from the
disappearance of an absentee, or five year period if the
absentee was 75 of age when he disappeared.

▪ However, the succession is deemed to have opened at the

time of disappearance in cases enumerated in Art. 391 of
NCC.
 Danger of Death (Art. 391 of NCC)
▪ Presumption of death when the following person does not
appear after four (4) years of disappearance;
▪ A person on board a vessel lost during a sea voyage, or an aero
plane which is missing;
▪ A person in armed force who has taken part in war and missing;
▪ A person who has been in danger of death under other
circumstances.

Note: Upon reappearance, absentee can recover his properties except fruits and rents thereto.
 Types of Succession (Art. 778 of NCC)

1. Testamentary – results from the designation of an heir,

made in a will executed in the form prescribed by law.
(Art. 779 of NCC)

2. Legal or intestate – results from, by the operation of the

law.

3. Mixed – partly by will or by operation of law. (Art. 780 of NCC)

 Provisions under the Family Code

▪ Donation of future properties shall be governed by the provisions of

testamentary succession and formalities of the law (Art. 82 of Family Code).

▪ In case of annulment or declaration of nullity of marriage, the

presumptive legitimes of all common children shall be delivered to
them (Art. 50,51,52,40,43,44,45 of Family Code).

▪ No contractual succession because donation mortis causa must

comply with the formalities of the will (Art. 84 of Family Code).
 Kinds of Successors

1. Heirs – acquired property by universal title

• Voluntary heirs – those instituted by the testator in his will, and succeed
the free portion of the inheritance.
• Compulsory Heirs – those who will succeed by force of law to some
portion of the inheritance, in an amount predetermined by law called
legitime.
• May also be voluntary heirs
• Legal or Intestate Heirs – those who succeed to the estate, or a portion
thereof, not disposed of by a will.
 Kinds of Successors

2. Devisee or Legatee – acquired property by particular title

• Devisee – who succeeds real property
• Legatee – who succeeds personal property
 Inheritance

▪ Includes all the properties, transmissible rights, and

obligations of a person which are not extinguished
by his death and existing at the time of his death;
also includes those which have accrued thereto
since the opening of the succession.
 Rules on Rights and Obligations

▪ Only transmissible rights; those rights personal in nature, by

agreement and provided by law cannot be transferred;

▪ Patrimonial rights are not extinguished by death;

▪ Obligation are by nature transmissible, but up to the extent of

the value of the inheritance;
 When Vested to the Heirs

▪ The rights to succession are transmitted to the heirs from the

moment of the death of the decedent;

▪ Right of Possession
• Executor or administrator has the right of possession when it is
necessary to the payment of debts and expenses;
• Heirs have the right of possession, in the absence of that
necessity, without depriving the co – heirs;
 When Vested to the Heirs

▪ Right of Ownership
• The heirs become the co-owner of the estate after paying the
debts;

▪ Right of legal redemption as Co-owner

• The other heir can redeem within 30 days the share in the property
sold by the other heir

▪ Redemption in sale of hereditary rights

• Right to subrogate to the rights of the purchaser
 When Vested to the Heirs

▪ Requisites of redemption:

• One of the heirs sells his hereditary rights;

• He sells it to the strangers;
• The sale is before the partition;
• The redeemer must do so within one month from the
time he was notified in writing of the sale by the vendor.
 Future inheritance

▪ Any contract upon future inheritance is VOID;

▪ Requisites:
• The succession has not yet been opened;
• The object of the contract forms part of the inheritance;
• The promisor has, with respect to the object, an
expectancy of a right which is purely hereditary in nature.
 Future Properties

• General rule: The will covers only properties of the testator at the
time of the making of the will.

• Exceptions: Properties acquired after the making of the will shall

pass to the heirs in the ff: cases.
• Intention to include expressly appear in the will;
• Covered by the will through republication;
• Not owned by the testator but disposed in the will;
Republications –

▪ An act or an instance of publishing again or anew;

▪ Reestablishment of the validity of a previously revoked will by
repeating the formalities of execution or by using a codicil;
▪ The result is to make the old will effective from the date of
republication. (Art. 835 – 837 of NCC)
Testamentary
Succession
 Wills in General
Wills - is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree
the disposition of his estate, to take effect after his death.
(Art. 783 of NCC)

❑ Art. 784 to 795 of the NCC –

• Strictly personal act (Art. 784 to 787);
• Interpretation of the wills (Art. 788 to 791);
• Invalidity of one of several disposition (Art. 792);
• Property acquired after making the will (Art. 793);
• Conveyance of all interest of the testator (Art. 794);
• Law in force at the time the will is made (Art. 795);
 Testamentary Capacity and Intent

▪ All persons who are not expressly prohibited by

law may make a will. (Art. 796 of NCC)

❑ Art. 797 – 803 of the NCC

• Majority of age (Art. 797);
• Be of sound mind (Art. 798 to 799);
• Presumption of sound mind (Art. 800);
• Supervening incapacity (Art. 801);
• Will made by a married woman (Art. 802).
 Forms of Wills
1. Notorial or Ordinary or Attested Will – executed in accordance with the
formalities prescribed by law.

• Requisites of a valid notarial will:

• It must be in writing and executed in a language or dialect known to
the testator (Art. 804 of NCC);
• It must be subscribed by the testator himself, or by the testator’s
name written by some other person in his presence, and by his
express direction (Art. 804 of NCC); and
• attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another. (Art. 805 of NCC)
 Forms of Wills
❑ Art. 805 – 808 of NCC
• Signing and numbering the will (Art. 805);
• Interpreting the language used (Art. 805);
• Acknowledgement before notary public (Art. 806);
• Testator is deaf, or deaf – mute (Art. 807);
• Testator is blind (Art. 808);
• Validity of the will despite defects and imperfections or the language used(Art.
809);

▪ The will is valid if it complies with the requirements provided under Art. 805
except when there is bad faith, forgery, fraud, or undue and improper
pressure and influence.
 Forms of Wills
2. Holographic Will – a will that is entirely written, dated, and signed by the
HAND of the testator himself. It is subject to no other form, may be made in
or out of the Philippines, and need not be witnessed. (Art. 810 of NCC)

❑ Art. 811 – 819 of NCC –

• Probate of a holographic will (Art. 811);
• Signed and dated to be valid (Art. 812);
• Signed without being dated, but the last disposition has signature and dated (Art. 813);
• Insertion, cancellation, erasure or alteration (Art. 814);
• Will made by a Filipino in a foreign country (Art. 815);
• Will made by an alien who is abroad (Art. 816);
• Will made in the Philippines by a citizen or subject of another country (Art. 817);
• Joint will, prohibited (Art. 818 and 819);
 Qualifications of a Witness
Any person:
✓ Of sound mind, majority of age, not blind, deaf or dumb, and able to
read and write (Art. 820 of NCC);
✓ Domiciled in the Philippines;
✓ Not convicted of falsification of document, perjury, or false testimony
(Art. 821 of NCC);

❑ Art. 822 – 824 of NCC

• Becoming subsequently incompetent (Art. 822);
• Successors as a witness is void, unless there are three other competent witness (Art. 823);
• Creditors as a witness is valid (Art. 824);
 Codicils
Codicil – is a supplement or addition to a will, made after the execution of a will and
annexed to be taken as part thereof, by which any disposition made in the original will is
explained, added to, or altered (Art. 825 of NCC)
❑ To be effective, it must be executed as in the case of a will (Art. 826 of NCC).

• Documents and papers as Codicil:

• The document or paper referred to in the will must be in existence at the time of the
execution of the will;
• The will must clearly describe and identify the same, stating among other things the
number of pages thereof;
• It must be identified by clear and satisfactory proof as the document or paper
referred to therein; and
• It must be signed by the testator and the witnesses on each and every page,
except in case of voluminous books of account or inventories. (Art. 827 of NCC)
 Revocation of Wills
▪ A will may be revoked by the testator at any time before his death.
Any waiver or restriction of this right is void. (Art. 828 of NCC)

• No will shall be revoked except for the ff:

• By implication of law;
• By some will, codicil, or other writing executed as provided in case of
wills; or
• By burning, tearing, cancelling, or obliterating the will with the intention
or revoking it, by the testator himself, or by some other person in his
presence, and by his express direction. When the said acts are without
the express direction of the testator, the will may still be established…
according to the Rules of Court (Art. 830 of NCC).
 Revocation of Wills

❑Art. 829 to 834 of NCC:

❑ Revocation done outside the Philippines (Art. 829);
❑ Subsequent wills without express revocation of the previous one (Art. 831);
❑ New will shall not be inoperative by reason of incapacity of the heirs, devisees
or legatees (Art. 832);
❑ Revocation of a will based on a false cause or an illegal cause is void (Art.
833);
❑ The recognition of illegitimate child, no legal effect (Art. 834);
 Republication and Revival of Wills

❑ Art. 835 – The testator cannot republish, without reproducing in a subsequent

will, the dispositions contained in a previous one which is void as to its form.

❑ Art. 836 – The execution of a codicil referring to a previous will has the effect of
republishing the will as modified by the codicil.

❑ Art. 837 – If after making a will, the testator makes a second will expressly
revoking the first, the revocation of the second will does not revive the first will,
which can be revived only by another will or codicil.
 Allowance or Disallowance of Wills
▪ No will shall pass unless it is proved and allowed in accordance with the Rules of Court.
(Art. 838 of NCC):

▪ The will shall be disallowed in any of the following cases:

▪ If the formalities required by law have not been complied with;
▪ If the testator was insane, or otherwise mentally incapable of making a will, at the
time of the execution;
▪ If it was executed through force or under duress, or the influence of fear, or threats;
▪ If it was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other persons;
▪ If the signature of the testator was procured by fraud;
▪ If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto. (Art. 839 of NCC)
 Institution of Heirs

▪ It is an act by virtue of which a testator designates in his will the

person or persons who are to succeed him in his property and
transmissible rights and obligations. (Art. 840 of NCC)

▪ Requisites of Institution of heirs:

• Extrinsic and intrinsic validity of the will (i.e. no preterition)
• Capacity of the heir;
• Institution must be voluntary or personal (no vices of consent);
• The heir must be at least identifiable.
 Institution of Heirs

❑Art. 841 – 849 of NCC:

❑ The non – institution of the heir on the will… (Art. 841);
❑ No compulsory heirs and with compulsory heirs (Art. 842);
❑ Designation and identification of an heirs (Art. 843 – 845);
❑ Institution without designation; Presumption of equality applies (Art. 846)
❑ Presumption of equality and individuality of designation, unless intention is
different (Art. 847 & 848);
❑ Presumption that Institution is simultaneous (Art. 849);
 Institution Based on False Cause

• Effect is not deemed instituted; the false cause shall be ignored;

• Annullable when:
• The cause of the institution of the heirs must be stated in the will;
• The cause must be false;
• It must appear from the face of the will that the testator would
not have made such intention if he had known the falsity of the
cause (Art. 850 of NCC).
 Estate Available for Disposition (Art. 851 – 853)
▪ No compulsory heirs – the entire net estate;
▪ With compulsory heirs – free portion;

▪ Institution of an heirs with aliquot share of inheritance – legal succession

applies to the remainder;

▪ The value of the inheritance is more than or less than the value of the will –
proportionate increase or decrease in the share of each heir, as the case
,maybe;
▪ (Formula): Actual share of the heir = net estate x Instituted value per heir/ Total
instituted value
 LEGITIMES

▪ A part of the estate that is reserved to compulsory heirs

(Art. 886 NCC);

▪ the testator cannot:

• deprive the heirs except for disinheritance (Art. 904 of NCC);
• dispose of the legitime in the will or donation intervivos;
• Impose a burden, encumbrance, condition or substitution
(Art. 904 NCC) except,

• he may order the (1) non – partition of not exceeding 20 years; or (2)
the legitime of the other children to whom the property is not assigned
be paid in cash;
 LEGITIMES

▪ Compulsory heirs includes:

▪ Legitimate children and descendants, with respect to their legitimate parents
and ascendants (Primary);
▪ Acknowledged natural children, and natural children by legal fiction (Primary);
▪ In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants (secondary);
▪ In the absence of legitimate or illegitimate descendants, illegitimate parents,
with respect to their illegitimate children (secondary);
▪ Widow or widower(concurring);
▪ Other illegitimate children under Art. 287 (duly proved) (concurring); Each
illegitimate child has one half share of legitimate child.
 LEGITIMES
Extent of Legitime
General Rule: Primary or secondary ½ of the Net Estate, the ½ may be
compulsory heirs (in case of freely dispose subject to rights of the
inheritance) illegitimate children and surviving
spouse; (Art. 888 and 889 of NCC);
EXCEPTIONS: When the sole surviving
compulsory heirs are:
1. Surviving spouse and illegitimate 1/3 for surviving spouse; 1/3 for
children illegitimate children; 1/3 as free
portion (Art. 894 of NCC)
2. Surviving spouse (articulo mortis 1/3 of Net Estate
marriage)
Art. 903 – Total legitimes of surviving spouse and illegitimate parents is ½; ¼ each.
 Disinheritance

❑ A compulsory heir may be deprived of legitime for causes expressly provided

by law (Art. 915 NCC);
❑The legal cause shall be expressly specified in the will (Art. 916 NCC);
❑The burden of proving the truth of the cause for disinheritance shall rest upon
the other heirs of the testator (Art. 917 NCC);
❑Otherwise, the institution of heirs will be annulled as it is prejudicial to the
disinherited heirs (Art. 918 NCC);
❑However, the devises and legacies and other testamentary disposition shall be
valid to such extent that it will not impair the legitime (Art. 918 NCC).
 Legal Grounds for Disinheritance
(children, descendants, legitimate or illegitimate)

1. Guilty of an attempt against the life of the testator, his or her spouse, descendants or
ascendants;
2. Groundless accusation of a crime, with imprisonment of more than six years, against the
testator;
3. Convicted of adultery or concubinage with the spouse of the testator;
4. Through vices, it causes the testator to make a will or change a will that is already made;
5. Refusal without justifiable cause to support the testator;
6. Maltreatment through words or deeds of the testator;
7. Leads a dishonorable or disgraceful life;
8. Conviction of crime with penalty of civil interdiction. (Art. 919 of NCC)
 Legal Grounds for Disinheritance
(parents or ascendants, legitimate or illegitimate)

1. Abandoned their children or induced their daughters to live a corrupt or immoral life, or
attempted against their virtue;
2. Guilty of an attempt against the life of the testator, his or her spouse, descendants or
ascendants;
3. Groundless accusation of a crime, with imprisonment of more than six years, against the
testator;
4. Convicted of adultery or concubinage with the spouse of the testator;
5. Through vices, it causes the testator to make a will or change a will that is already made;
6. Loss of parental authority;
7. Refusal to support the children or descendants without justifiable cause;
8. An attempt by one of the parents against the life of the other, unless there has been a
reconciliation between them. (Art. 920 NCC)
 Legal Grounds for Disinheritance
(Spouse)
1. Guilty of an attempt against the life of the testator, his or her descendants or
ascendants;
2. Groundless accusation of a crime, with imprisonment of more than six years,
against the testator;
3. Through vices, it causes the testator to make a will or change a will that is
already made;
4. Legal separation;
5. Loss of parental authority;
6. Refusal to support the children or descendants without justifiable cause; (Art.
1921 NCC)
Legal or Intestate
Succession
 Intestate Succession, Takes Place
1. If a person dies without a will, or with a void will, or one which subsequently lost its validity;
2. When the will does not institute an heir to, or dispose of all the property belonging to the
testator. In such case, legal succession shall take place only with respect to the property
of which the testator has not disposed of;
3. If the suspensive condition attached to the institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no
substitution, and no right of accretion taken place;
4. When the heir instituted is incapable of succeeding, except in cases provided in the NCC;
5. Upon the happening of the resolutory condition imposed in the will;
6. Upon the expiration of a resolutory term stated in the will; and
7. In case of preterition. (Art. 960 of NCC)
 Order of Intestate Succession

1. Legitimate children or descendants;

2. Legitimate parents or ascendants;
3. Illegitimate children or descendants;
4. Surviving spouse;
5. Brothers and sisters, nephews, and nieces;
6. Other collateral relatives within the 5th degree;
7. The State.
 Mixed Succession

❑Also known as partial intestacy, means the decedent left a will but
the will does not cover all the disposable portion of the estate.
❑In this succession, the testamentary disposition shall be given effect
first. The balance of the free portion (after deducting the
testamentary disposition) shall be given to the intestate heir.
❑The intestate heir who should have received the free portion under
intestacy shall bear any reduction due to the testamentary
disposition.
 Common
Provisions
(Testate or Intestate Succession)
 Right of Accretion

❑A right by virtue of which, when two or more persons are called to the
same inheritance, devise or legacy, the part assigned to the one who (1)
renounces or (2) cannot receive his share, or (3) predeceased or who
died before the testator, is added or incorporated to that of his co-heirs,
co-devisees, or co-legatees.
❑The heirs to whom the portion goes by the right of accretion take it in the
same proportion that they inherit.
❑The heirs to whom the inheritance accrues shall succeed to all the rights
and obligations which the heir renounced or could not receive it would
have had.
 Limitations on Right of Accretion

❑For the compulsory heirs, 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.
❑The right of accretion does not apply to a vacant portion of the legitime. The
co-heirs shall succeed it by their own right.
❑The right of accretion is subordinate to the right or representation, same with
the right of substitution if the testator so provides.
❑In the testamentary succession, when the right of accretion does not take
place, the vacant portion of the instituted heirs, if no substitution has been
designated, shall pass to the legal heirs of the testator, who shall receive it with
the same charges and obligations.
 Right of Accretion
❑ Right of accretion in testamentary succession, requisites:
• Two or more persons called to the same inheritance, or to the same portion
thereof, pro indiviso; and
• That one of the persons thus called die before the testator, or renounce the
inheritance, or be incapacitated to receive it.

❑ Right of accretion in intestate succession:

• Several relatives of the same degree, and one or some of them are unwilling
(repudiates) or incapacitated to succeed, his portion shall accrue to the other of
the same degree. The rule is consistent with preference of lines.
• Exception: In case of predecease or incapacity or unworthiness, the right of
representation prevails over the right of accretion. In repudiation, the applicable
right is the right of accretion.
Summary of Rules on Vacancies
 Capacity to Succeed

❑Capable to succeed are:

1. Not incapacitated or disqualified by law at the time of the death of the
decedent and at the time of the compliance of the attached
conditions;
2. Heir, devisee or legatee who must be living at the moment the
succession opens, except in case of representation;
3. Child already conceived at the time of the death of the decedent
subject to conditions of Art. 41 of NCC;
4. Juridical persons (State, corporations, whether public or private, and
associations), unless there is a contrary provisions in their charter.
 Capacity to Succeed
❑Incapable to Succeed by reason of undue influence:
1. Priests, or the minister of the gospel…, their relatives within the 4th
degree, and the organization where such priest or minister may
belong;
2. Guardian of the ward except the guardian is the latter’s ascendant,
descendant, brother, sister or children…
3. Any attesting witness to the execution of a will…
4. Any physician, surgeon, nurse, health officer or druggist…
5. Individuals, associations, and corporations prohibited by law to inherit.
❑1 to 4 applies to testamentary succession ONLY while 5 applies to both
testate and intestate succession
 Capacity to Succeed

❑Art. 739 – void donations by reason of public policy:

1. Those made between persons who were guilty of adultery or
concubinage at the time of the donation; the action for declaration of
nullity may be brought by the spouse of the donor or donee, which
preponderance of evidence is required.
2. Those made between the persons found guilty of the same criminal
offense, in consideration thereof;
3. Those made to a public officer or his wife, descendants, and ascendants,
by reasons of his office;
 Capacity to Succeed
❑Disposal for prayers and pious works
• For the benefit of the soul of the testator;
• Done in general terms and without particular designation;
• With the approval of the court;
• Shall deliver one-half of the proceeds to the church or denomination to which the
testator belongs;
• And half shall go the State.
❑Disposal in favor of the poor in general and without particular designation
• Be given to the poor living in the domicile of the testator at the time of his death;
• Done by the executor, in its absence, the justice of peace, the mayor, and the
municipal treasurer;
• With approval of the court
❑A testamentary provision in favor of disqualified person shall void.
 Capacity to Succeed

❑Incapable to succeed by reason of unworthiness:

1. Parents who abandoned their children or induced 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 the life of the
testator, his or her spouse, descendants, or ascendants;
3. Any person who has accused the testator of a crime with imprisonment of six
years or more, if the accusations found to be groundless;
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 law within a month, unless
the authorities have already taken action; this prohibition shall not apply to
cases wherein, according to law, there is no obligation to make an
accusation;
 Capacity to Succeed
❑Incapable to succeed by reason of unworthiness:
5. Any person convicted of adultery or concubinage with the spouse of the
testator;
6. Any person who by fraud, violence or intimidation, or undue influence should
cause the testator to make a will or to change one already made;
7. Any person who by the same means prevents another from making a will, or
from revoking one already made, or who supplants conceals, or alters the
latter’s will;
8. Any person who falsifies or forges a supposed will of that decedent.
▪ Exception to incapability due to unworthiness:
• Knowledge of the testator at the time he made the will;
• Having it known subsequently, but condone it.
❑Incapacity to succeed under the Family Code:
 Effect of Incapacity to Succeed

▪ If the person excluded from the inheritance should be a child or

descendant of the decedent and should have children or descendants,
the latter shall acquire his right to the legitime.
▪ The person so excluded shall not enjoy the usufruct and administration of
the property thus inherited by his children.
▪ Alienation of hereditary property, and acts of administration performed by
the excluded heir, before the judicial order of exclusion, are valid as to
third persons who acted in good faith; but the co-heirs shall have a right to
recover damages against from the disqualified heir;
 Effect of Incapacity to Succeed

▪ The unworthy heir has a right to demand indemnity for the expenses he
incurred in the preservation of hereditary rights, and to enforce such
credits as he may have against the estate.
▪ Any person incapable of succession who entered into possession of the
hereditary property shall be obliged to return it together with its
accessions. He shall be liable for all the fruits and rent that he may have
received, or could have received through the exercise of due diligence.
 Law and Prescriptive Period

• Capacity to succeed is governed by the law of the nation of the

decedent;
• The action for declaration and for the recovery of the inheritance, devise
or legacy shall be brought within five years from the time the disqualified
person took possession thereof.
• It may be brought by any one who may have interest in the succession.
Acceptance and Repudiation of Inheritance
 Executors or Administrators

❑Governed by the Rules of Court;

❑Insufficiency of assets, Rules on preference of credits apply;
❑Trust company may be an executor or administrator.
Collation
Partition and Distribution of the Estate
 End of Presentation

• References:
• New Civil Code of The Philippines;
• Reviewer on Civil Law, Aquino, 2018;