EH403 Succession Finals

Disclaimer: The authors/compilers do not guarantee that this material is 100% free from error.
Use at own risk, and God bless!

DY · GAVIOLA · TORRES · SEVILLA (DGST NOTES)
SUCCESSION CONSTRUCTIVE PARTITION (ARTICLE 1086) ............................ 21

Finals Coverage LEGAL REDEMPTION (ARTICLE 1088) ........................................ 21
EFFECTS OF PARTITION ............................................................. 21
EH403 I ATTY. JOHN LOUIE LOOD | 2019-2020 RECIPROCAL WARRANTIES ....................................................... 21
WARRANTY OF CREDIT............................................................... 21
RESCISSION AND ANNULMENT OF PARTITION ........................ 21
CONTENTS RESCISSION OF PARTITION DUE TO LESION ........................... 21
ESCHEAT (RULE 91, RULES OF COURT) .......................................... 2 OPTIONS FOR THE SUED HEIR .................................................. 21
REQUISITES FOR FILING OF PETITION ........................................ 2 PRETERITION OF COMPULSORY HEIRS IN THE PARTITION ... 22
WHO MAY BE PARTIES IN A PETITION FOR ESCHEAT? ............. 2 INCLUSION OF A PERSON NOT AN HEIR ................................... 22
WHEN AND BY WHOM MAY A CLAIM TO ESCHEATED PARTY BE
FILED? ............................................................................................. 2
HOW ESTATE INHERITED BY THE STATE DISTRIBUTED:........... 2
PROVISIONS COMMON TO TESTATE AND INTESTATE

SUCCESSION....................................................................................... 2
A. RIGHT OF ACCRETION.............................................................. 2
HOW TO AVOID ACCRETION ......................................................... 3
RIGHT OF ACCRETION IN TESTAMENTARY SUCCESSION ........ 3
REQUISITE FOR ACCRETION IN TESTAMENTARY SUCC. .......... 3
REQUISITES FOR ACCRETION IN INTESTATE SUCCESSION ..... 3
B. CAPACITY TO SUCCEED BY WILL OR INTESTACY ................ 3

CAPACITY TO SUCCEED ............................................................... 3
CAPACITY OF ENTITIES OR ASSOCIATIONS ............................... 4
INCAPACITY BASED ON UNDUE INFLUENCE OR INTEREST ...... 4
DISQUALIFICATION OF PRIEST OR MINISTER ............................. 4
DISQUALIFICATION OF RELATIVES OF THE PRIEST/MINISTER . 4
DISQUALIFICATION OF GUARDIANS ............................................ 4
DISQUALIFICATION OF WITNESSES ............................................. 4
DISQUALIFICATIONS OF PHYSICIANS OR NURSES .................... 5
INCAPACITY BASED ON MORALITY OR PUBLIC POLICY ............ 5
DISPOSITIONS FOR THE BENEFIT OF THE TESTATOR’S SOUL. 5
DISPOSITIONS IN FAVOR OF THE POOR ..................................... 5
DISPOSITIONS IN FAVOR OF A DISQUALIFIED PERSON ............ 5
INCAPACITY DUE TO UNWORTHINESS ........................................ 6
PARDON OF ACTS OF UNWORTHINESS ...................................... 7
TIME TO DETERMINE CAPACITY................................................... 7
EFFECT OF INCAPACITY UPON COMPULSORY HEIRS ............... 7
EFFECT OF ACTS OF DISQUALIFIED HEIRS ................................ 8
INDEMNITIES TO BE REIMBURSED THE EXCLUDED HEIR ......... 8
INCAPACITATED HEIR WHO DISREGARDS PROHIBITION .......... 8
GOVERNING LAW IF DECEDENT IS A FOREIGNER ..................... 8
REMEDY AGAINST DISQUALIFIED HEIR ....................................... 8
SLIDES & DISCUSSION (VERBATIM) ............................................. 9
C. ACCEPTANCE AND REPUDIATION OF THE INHERITANCE . 12

REQUISITES OF ACCEPTANCE OR REPUDIATION.................... 12
WHO MAY ACCEPT OR REPUDIATE ........................................... 13
WHO MAY ACCEPT OR REPUDIATE ........................................... 13
MANNER OF ACCEPTANCE ......................................................... 13
HOW MAY ACCEPTANCE BE MADE? .......................................... 13
EFFECT OF REPUDIATION UPON CREDITORS .......................... 14
REPUDIATION AS TESTAMENTARY OR AS LEGAL HEIR .......... 14
IRREVOCABILITY OF ACCEPTANCE/REPUDIATION .................. 14
WHEN ACCEPTANCE OR REPUDIATION MUST BE SIGNIFIED
TO THE COURT............................................................................. 14
SLIDES & DISCUSSION (VERBATIM) ........................................... 14
D. EXECUTORS AND ADMINISTRATORS ................................... 16

LETTERS TESTAMENTARY .......................................................... 16
WHEN LETTERS OF ADMINISTRATION GRANTED .................... 16
EXECUTOR ................................................................................... 16
ADMINISTRATOR .......................................................................... 16
ADMINISTRATOR WITH A WILL ANNEXED.................................. 16
SPECIAL ADMINISTRATOR – RULE 80 ........................................ 16
WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR AS
ADMINISTRATORS........................................................................ 16
PREFERENCES IN THE APPOINTMENT OF ADMINISTRATOR OF
AN ESTATE ................................................................................... 16
POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS
....................................................................................................... 17
GROUNDS FOR REMOVAL OF ADMINISTRATOR – RULE 82 .... 17
E. COLLATION, DEFINED.................................................................. 18
VALUE TO BE COLLATED ............................................................ 18
OBLIGATION TO COLLATE – COMPULSORY HEIRS .................. 18
WHEN COMPULSORY HEIRS WILL NOT COLLATE .................... 18
EQUALIZATION OF SHARES ........................................................ 18
OTHER MATTERS NOT INCLUDED IN THE SLIDES/DISCUSSION
....................................................................................................... 19
F. PARTITION AND DISTRIBUTION OF ESTATE ........................ 20
KINDS OF PARTITION................................................................... 20
WHO MAY EFFECT PARTITION ................................................... 20
WHO CAN DEMAND PARTITION .................................................. 20
PROVISIONAL PARTITION (ARTICLE 1084) ................................ 21
Page 1 of 22
Disclaimer: The authors/compilers do not guarantee that this material is 100% free from error. Use at own risk, and God bless!
Survivor Intestate Share When and by Whom May a Claim to Escheated Party be
LCD Entire Estate Filed?
LCD; Entire Estate
LPA; Excluded
A devisee, legatee, heir widow, widower or other persons entitled
Bros/Sis/Nephews/Nieces Excluded to the estate, may appear and file a claim thereto within the court
1LC ½ within 5 years from the date of such judgment.
SS ¼
2 or more LC; SS Divided equally with SS having the A claim not made within the 5-year period shall forever be barred.
same share as 1 LC
LCD; Each IC gets ½ of the share of a LC Rationale
IC (2:1) To encourage would be claimants to be punctual in asserting their
LCD; IC gets ½ of the share of 1 LC. SS has claims.
SS; the same share as1 LC
IC
How Estate Inherited by The State Distributed:
LPA Entire Estate
LPA; 1/2
SS 1/2 (1) Debts and charges must first be paid
LPA; 1/2 (2) Assignment of property
SS; 1/4
BSNN Excluded If personal property, it shall be assigned to the city or
LPA; 1/2 municipality where the deceased last resided in the
SS; 1/4 Philippines.
IC 1/4
IC 1/2
SS 1/2
If real property, it is the city or municipality in which the
LPA; 1/2 property is situated.
IC 1/2
IP; xx Note: Such estate shall be for the benefit of public
SS xx schools and public charitable institutions and centers in
IP Entire Estate such municipalities or cities. The court shall distribute
IC Entire Estate the estate as the respective needs of each beneficiary
SS; 1/2 may warrant.
BSNN 1/2
Right of Representation
BS Entire Estate
BSNN Per capita; Per stirpes
PROVISIONS COMMON TO TESTATE AND INTESTATE
NN Per capita
Collaterals Entire Estate
SUCCESSION
State Entire Estate (1) Right of accretion
(2) Capacity to Succeed by Will or by Intestacy
Order of Concurrence (3) Acceptance and Repudiation of the Inheritance
(1) LCD; ICD and SS (4) Executor and Administrator
(2) LPA; ICD and SS (5) Collation
(3) ICD and SS (6) Partition and Distribution of the Estate
(4) SS and IP
(5) BS/NN and SS
(6) CS (alone) [collateral relatives] A. RIGHT OF ACCRETION
(7) State (alone)
Art. 1015. Accretion is a right by virtue of which, when two or
more persons are called to the same inheritance, devise or
legacy, the part assigned to one who renounces or cannot receive
his share, or who died before testator, is added or incorporated
ESCHEAT (Rule 91, Rules of Court) to that of his co-heirs, co-devisees, or co-legatees.
Is a proceeding where the real and personal property of a
deceased person in the Philippines, who dies without leaving any
A right by virtue of which, when two or more persons are call to
will and legal heirs, becomes the property of the State, upon his
the same inheritance, devise or legacy, the part assigned to the
death.
one who renounces or cannot receive his share, or who died
before the testator, is added or incorporated to that of his co-
Requisites for Filing of Petition
heirs, co-devisees, or co-legatees. (Article 1015)
(1) The person died intestate Right based on the presumed will of the deceased that he prefers
(2) The decedent left properties in the Philippines to give certain properties to certain individuals, rather than to his
(3) He left no heirs or persons entitled to such properties legal heirs.
Who May Be Parties in A Petition for Escheat?
Art. 1017. The words "one-half for each" or "in equal shares" or
(1) Any escheat proceeding must be initiated by the any others which, though designating an aliquot part, do not
government through the OSG or his representative. identify it by such description as shall make each heir the
(2) All interested parties, especially the occupants and the exclusive owner of determinate property, shall not exclude the
adjacent lot owners shall be personally notified of the right of accretion.
proceeding and given the opportunity to present their
valid claims; otherwise, it will be reverted to the State. In case of money or fungible goods, if the share of each heir is
(3) Any person alleging to have a direct right or interest in not earmarked, there shall be a right of accretion.
the property sought to be escheated, likewise an
interested and necessary party, may property oppose
Example:
the petition for escheat or file a claim thereto with the
court within the period provided. T, in his will, gives the first floor of his house to A, and the second
(4) A depositary bank should be joined as a respondent in floor to B. If A repudiates, B ordinarily does not get the first floor,
because here, there has been an earmarking or specification
an action for escheat since a decree of escheat would
of determinate property.
necessarily deprive it of the use of such deposit.
Had it been that T instituted A and B to share equally his 2-storey
house, there will be right of accretion because there is no
earmarking or specification of their shares in the inheritance.
Page 2 of 22
• Pro – indiviso – undivided

Note: When the thing to be inherited becomes determinate,
there’s no more accretion. Requisites for Accretion in Intestate Succession
Art. 1019 The heirs to whom the portion goes by the right of There must be a vacancy in the inheritance as a result of
accretion take it in the same proportion that they inherit. predecease, incapacity, or repudiation.
Ex:
T institutes A, B, and C, to inherit pro indiviso ½(600), 1/3(400),
1/6(200) of his 1200sqm land, respectively.
If A repudiates his share, B gets +400 and C gets +200. B. CAPACITY TO SUCCEED BY WILL OR INTESTACY
Art. 1021. Among the compulsory heirs the right of accretion shall Art. 1024. Persons not incapacitated by law may succeed by
take place only when the free portion is left to two or more of will or ab intestate.
them, or to any one of them and to a stranger.
The provisions relating to incapacity by will are equally
Should the part repudiated be the legitime, the other co-heirs applicable to intestate succession.
shall succeed to it in their own right, and not by the right of
accretion. Art. 1025. In order to be capacitated to inherit, the heir,
Accretion only takes place in the free portion, not legitime. devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it
Ex: is proper.
Estate is P600,000. T institutes as his heirs his two legitimate
children (X and Y), and a friend (Z). A child already conceived at the time of the death of the
X – 150k (legitime) | 100k (FP) decedent is capable of succeeding provided it be born later
Y – 150k (legitime) | 100k (FP) under the conditions prescribed in Article 41.
Z–x | 100k (FP)
Art. 41. For civil purposes, the fetus is considered born if it is
If X predeceases T: alive at the time it is completely delivered from the mother's
Y gets X’s legitime (+150k); Y and Z will divide X’s share in the womb. However, if the fetus had an intra-uterine life of less
FP. than seven months, it is not deemed born if it dies within
twenty-four hours after its complete delivery from the
maternal womb.
How to Avoid Accretion
Art. 845. Every disposition in favor of an unknown person
shall be void, unless by some event or circumstance his
(1) By expressly designating a substitute
identity becomes certain. However, a disposition in favor of a
(2) By expressly providing that although accretion may take
definite class or group of persons shall be valid.
place, still decedent does not want accretion to occur
Note: Accretion is a right, not an obligation. Therefore, it may be

Capacity to Succeed
accepted or repudiated by those entitled.
• Under our Code, there is a disputable presumption that
Where there has been an invitation of heirs:
every person, whether natural or juridical, can succeed
(1) If the institution fails, substitution occurs
either ex testament or ab intestate.
(2) If there is no substitution, the right of representation
• In order to show that a person does not have the
applies in the direct descending line to the legitime if the
capacity to succeed, it must be proved that he falls
vacancy is caused by predecease, incapacity or
under an incapacity expressly provided for in the Code.
disinheritance
• Capacity is the general rule, while incapacity is the
(3) The right of accretion applies to the free portion when
exception.
the requisites in Article 1016 are present
(4) If there is no substitute, and the right of representation
Requisites
or accretion does not apply, the rules on intestate
In order that a person can inherit by will or by intestacy, the
succession shall take over
following requisitesmust concur:
Right of Accretion in Testamentary Succession
(1) The heir, legatee or devisee must be living or in
existence at the moment the succession opens (at
In testamentary succession, right of accretion takes place in the the death of the decedent);
following cases: (2) That such heir, legatee or devisee must not be
(1) Predecease of the instituted heir; incapacitated by law to succeed.
(2) Incapacity of the instituted heir;
(3) Repudiation of the instituted heir; Incapacity to Succeed
(4) Nonfulfillment of the suspensive condition imposed Incapacity to succeed may be either:
upon the instituted heir;
(5) Ineffective testamentary dispositions (1) Absolute – the incapacity of a person, whether natural
or juridical, to succeed any person in any form with
regard to any property;
In intestate succession, right of accretion takes place in the
following cases: (2) Relative – the incapacity of a person, whether natural
(1) Predecease of a legal heir or juridical, to succeed by reason of a special relation
(2) Incapacity of a legal heir which has to the decedent, or to other persons, or to the
(3) Repudiation by a legal heir property disposed of.
Who are those that are absolutely incapacitated to succeed?

Requisite for Accretion in Testamentary Succession
(1) Those who are not living or in existence at the time of
(1) Two or more persons are called to the same inheritance, death of the decedent, subject to the ff. exceptions:
legacy or devise jointly, or pro indiviso
(2) There is a vacancy in the inheritance, legacy or devise i. Associations for religious, scientific, cultural,
as a result of predecease, incapacity, repudiation, or educational or charitable (Memory Aid: CERS-C),
some other cause
Page 3 of 22
while not considered juridical persons, have the right • Only the free portion given to the incapacitated heir is
to succeed. (Art. 1026) affected, and not his legitime.
ii. Dispositions for the benefit of the testator’s soul (Art.
1029) Disqualification of Priest or Minister
iii. Testamentary provisions in favor of the poor in
general (Art. 1030) Requirements for a priest or minister to be disqualified:
(2) Those who cannot be identified (refer to Art. 845); (1) The priest must have heard the confession of the
(3) Individuals, associations and corporations who are not testator during the latter’s last illness, or that the
permitted by law to inherit. minister must have extended spiritual aid to him
during the same period; and
What are the classifications of relative incapacity? (2) The testator must have executed the will during
Relative incapacity may be classified as follows: such last illness and not before.
(1) Incapacity based on the possibility of undue EXCEPTION: The disqualification does not apply if the
influence or on interest; testamentary disposition was made long after the last illness,
(2) Incapacity based on morality or public policy; such that there was time to reflect on the wisdom of the
(3) Incapacity based on acts of unworthiness; testamentary disposition.
(4) Incapacity by operation of law.
Example: Suppose that the testator, after he was pronounced
CAPACITY OF ENTITIES OR ASSOCIATIONS hopeless by doctors, made a will disposing all his disposable
properties in favor of the minister who is extending spiritual aid to
Art. 1026. A testamentary disposition may be made to the him. After a few months, he is still very much alive and feeling
State, provinces, municipal corporations, private much stronger. However, he makes no effort to change the
corporations, organizations, or associations for religious, testamentary disposition.
scientific, cultural, educational, or charitable purposes.
The failure of the testator to rectify the testamentary disposition
All other corporations or entities may succeed under a will, is deemed to be a ratification or confirmation of the same. After
unless there is a provision to the contrary in their charter or all, the basis of the disqualification is that at the threshold of
the laws of their creation, and always subject to the same. death, the testator becomes easy prey to the scheming priest or
minister.
The following associations, while without juridical existence, have
the right to succeed ex testamento as an exception to the rule in Notes:
the first paragraph of Art. 1025: (Memory Aid: CERS-C) • “Last illness” – It must be the illness of which the testator
died;
(1) Charitable • The fact that the testator died from some other cause does
(2) Educational not necessarily exclude the application of the
(3) Religious disqualification.
(4) Scientific  For example: A was pronounced by his physicians as
(5) Cultural dying from cancer. However, he died in a car accident. The
disqualification still applies.
INCAPACITY BASED ON UNDUE INFLUENCE OR INTEREST  Hence, what is essential is that there must be an imminent
or impending danger of the illness being the last as far as
Art. 1027. The following are incapable of succeeding: the testator is concerned at the time he executed his will.
(Memory Aid: PR GAP) • The law says “heard the confession”. Hence, a priest who
extends other kinds of spiritual aid, such as “extreme
(1) The priest who heard the confession of the testator unction”, is not disqualified.
during his last illness, or the minister of the gospel who  Extreme unction: a former name for the sacrament of
extended spiritual aid to him during the same period; anointing of the sick, especially when administered to the
dying.
(2) The relatives of such priest or minister of the gospel
within the fourth degree, the church, order, chapter, Disqualification of Relatives of the Priest/Minister
community, organization, or institution to which such priest or
minister may belong; • The reason for the disqualification is the possibility of
(XPN: The spouse of the minister) undue influence.
• Relatives here refer to relatives by consanguinity.
(3) A guardian with respect to testamentary dispositions • It must be observed however, that the law does not
given by a ward in his favor before the final accounts of the include among the persons disqualified the spouse of
guardianship have been approved, even if the testator should the priest or minister.
die after the approval thereof; nevertheless, any provision
made by the ward in favor of the guardian when the latter is Disqualification of Guardians
his ascendant, descendant, brother, sister, or spouse, shall
be valid; • For a guardian to be disqualified, the will of the ward
must have been executed before the approval of the
(4) Any attesting witness to the execution of a will, the final accounts of the guardianship.
spouse, parents, or children, or any one claiming under such • The disqualification applies even if the ward should die
witness, spouse, parents, or children; after the approval thereof.
• The disqualification does not apply if the guardian is the
(5) Any physician, surgeon, nurse, health officer or druggist testator’s: (SADBroS)
who took care of the testator during his last illness; (1) Spouse
(2) Ascendant
(6) Individuals, associations and corporations not permitted (3) Descendant
by law to inherit. (4) Brother
(5) Sister
• No. 6 of above is excluded because the individuals,
associations and corporations referred to are Disqualification of Witnesses
absolutely and not relatively incapacitated to succeed.
• The enumeration is possible only in testamentary • The basis of the disqualification of a witness, his SPC
disposition. (spouse, parents, or children), or of anyone claiming
Page 4 of 22
under such witness, spouse, parent or child is the not

the possibility of undue influence but interest. The court, at the instance of an interested party, or on its own
• The disqualification is not absolute, “if there are three motion, may order the establishment of a permanent trust, so
other competent witnesses” to the execution of the that only the income from the property shall be used.
will.
Disqualifications of Physicians or Nurses
Requisites for Art. 1029 to Apply

• Any (PSNHD) physician, surgeon, nurse, health officer,
or druggist who took care of the testator during his last (1) The testator must have disposed in whole or in part of
illness is also disqualified to succeed by will. his estate for prayers and pious works for the benefit
• Their position is similar to that of a priest or minister of of his soul;
the gospel. (2) The disposition must be general in terms without
• The disqualification however is not extended to the specifying its application.
relatives of the physician or nurse, or to the organization
or institution to which such physician or nurse may
belong.  Once these two requisites concur, the
• If the physician or nurse of the testator is also his executor/administrator, with the court’s approval, shall
spouse, ascendant, descendant, brother or sister, the deliver one-half to the church/denomination to which the
disqualification shall not apply (even if not expressly testator belongs to be used for prayers or pious works,
stated by law due to the illogicality). and the other half to the State for the purposes
mentioned in Art. 1013.
INCAPACITY BASED ON MORALITY OR PUBLIC POLICY  Art. 1029 will only apply if the testator did not specify
how much of his estate will be used for pious works.
Art. 1028. The prohibitions mentioned in Article 739, concerning  So if the testator specified that one-half or one-fourth of
donations inter vivos shall apply to testamentary provisions. the property shall be used for prayers and masses, Art.
1029 is no longer applicable and his will must be
Art. 739. The following donations shall be void: (ASP) complied with literally.
(1) Those made between persons who were guilty of adultery

or concubinage at the time of the donation; DISPOSITIONS IN FAVOR OF THE POOR
(2) Those made between persons found guilty of the same

Art. 1030. Testamentary provisions in favor of the poor in general,
criminal offense, in consideration thereof;
without designation of particular persons or of any community,
shall be deemed limited to the poor living in the domicile of
(3) Those made to a public officer or his wife, descendants
the testator at the time of his death, unless it should clearly
and ascendants, by reason of his office.
appear that his intention was otherwise.
In the case referred to in No. 1, the action for declaration of The designation of the persons who are to be considered as poor
nullity may be brought by the spouse of the donor or donee; and and the distribution of the property shall be made by the person
the guilt of the donor and donee may be proved by appointed by the testator for the purpose; in default of such
preponderance of evidence in the same action. person, by the executor, and should there be no executor, by the
justice of the peace, the mayor, and the municipal treasurer, who
shall decide by a majority of votes all questions that may arise. In
• For No. 1 (adultery or concubinage), criminal conviction all these cases, the approval of the Court of First Instance shall
is not necessary, while for No. 2 (same criminal be necessary.
offense) criminal conviction is necessary.
• They are applicable only in testamentary disposition. The preceding paragraph shall apply when the testator has
• They are not only relative in character, but they are disposed of his property in favor of the poor of a definite locality.
also partial in the sense that if the heir who is disqualified
is a compulsory heir, the incapacity shall refer only to
Applicability of the Article
the free portion given to him, but not to his legitime.
This Article applies if the disposition is in favor of:
(1) The poor in general;
DISPOSITIONS FOR THE BENEFIT OF THE TESTATOR’S
(2) The poor of a definite locality.
SOUL
Art. 1029. Should the testator dispose of the whole or part of The Poor in General
his property for prayers and pious works for the benefit of his Unless clearly appearing otherwise, only the poor in the testator’s
soul, in general terms and without specifying its application, the domicile at the time of his death should be considered.
executor, with the court's approval shall deliver one-half thereof
or its proceeds to the church or denomination to which the
testator may belong, to be used for such prayers and pious Who designates the poor?
works, and the other half to the State, for the purposes (In order:)
mentioned in Article 1013. (1) The person appointed for the purpose;
(2) If none appointed, the executor;
Art. 1013. After the payment of debts and charges, the personal (3) If no executor, then three people (by majority vote):
property shall be assigned to the municipality or city where the a. Justice of the peace (now an MTC judge)
deceased last resided in the Philippines, and the real estate to b. Mayor
the municipalities or cities, respectively, in which the same is c. Municipal treasurer
situated.
If the deceased never resided in the Philippines, the whole DISPOSITIONS IN FAVOR OF A DISQUALIFIED PERSON
estate shall be assigned to the respective municipalities or cities
where the same is located.
Art. 1031. A testamentary provision in favor of a disqualified
Such estate shall be for the benefit of public schools, and public person, even though made under the guise of an onerous
charitable institutions and centers, in such municipalities or contract, or made through an intermediary, shall be void.
cities. The court shall distribute the estate as the respective
needs of each beneficiary may warrant. What is the purpose of the article?
Page 5 of 22
To prohibit the testator from violating indirectly what he cannot  Requisites:

violate directly. (1) The child or descendant must have committed
either frustrated or attempted parricide;
How may the interposition of a third party be done? (2) There must have been a previous criminal
(1) If the disposition is disguised as an onerous contract; conviction.
(2) If fictitious debts are ordered paid; or
(3) If an intermediary is interposed (for him later on to give
to the incapacitated person). When the child/descendant has accused the testator of a
crime for which the law prescribes imprisonment of 6 years
Who is a “disqualified” person? or more, if the accusation has been found groundless
A disqualified person refers to one incapacitated by reason of
possible undue influence or morality, and not to those  Requisites:
incapacitated by reason of unworthiness. (1) The child/descendant must have accused the
testator of a crime;
INCAPACITY DUE TO UNWORTHINESS (2) The penalty prescribed by law for such crime must
be imprisonment of 6 years or more; and
Art. 1032. The following are incapable of succeeding by reason (3) The accusation must have been groundless.
of unworthiness: (Memory Aid: CAVFAFAP)  Accusation includes not only the act of the disinherited
heir of instituting the criminal action in the capacity of a
(1) Parents who have abandoned their children or induced their complainant, but also any act of intervention such as
daughters to lead a corrupt or immoral life, or attempted against being a witness for the prosecution.
their virtue;  For the third requisite, it does not matter whether the
accusation was found groundless during preliminary
(2) Any person who has been convicted of an attempt against investigation, the trial or on appeal.
the life of the testator, his or her spouse, descendants, or
ascendants;
When the child/descendant has been convicted of
(3) Any person who has accused the testator of a crime for which adultery/concubinage with the spouse of the testator.
the law prescribes imprisonment for six years or more, if the
accusation has been found groundless;  A final judgment of conviction is an essential requisite.
 The heir who is incapable of succeeding by reason of
(4) Any heir of full age who, having knowledge of the violent death unworthiness is the person who is convicted of adultery
of the testator, should fail to report it to an officer of the law within or concubinage with the spouse of the decedent, not the
a month, unless the authorities have already taken action; this spouse himself/herself.
prohibition shall not apply to cases wherein, according to law,  As far as the law is concerned, the husband/wife who is
there is no obligation to make an accusation; convicted of either adultery/concubinage is not unworthy
to inherit from the decedent.
(5) Any person convicted of adultery or concubinage with the o The only time they will be disqualified is when
spouse of the testator; the offended spouse will act positively either by
securing a decree of legal separation, or by
(6) Any person who by fraud, violence, intimidation, or undue disinheriting him or her.
influence should cause the testator to make a will or to change  So strong is the presumption in favor of the solidarity of
one already made; marriage that even where one of the spouses has been
convicted of such grievous offense against the sanctity
(7) Any person who by the same means prevents another from of marriage vows, the law refuses to pronounce
making a will, or from revoking one already made, or who judgment.
supplants, conceals, or alters the latter's will;
(8) Any person who falsifies or forges a supposed will of the Example: H caught his wife, W, committing adultery
decedent. with his own brother B. The two were subsequently
 Three fundamental characteristics applicable to Art. convicted as a result of a criminal action H brought
1030: against them. A few days ago, H died intestate leaving
(1) They are based on offenses committed by the considerable properties. His only surviving relatives are
disqualified persona against the decedent which (1) W, (2) B, and (3) C and D, his first cousins. Who shall
render him unworthy to succeed; inherit from him?
(2) They are applicable not only in testamentary
succession, but also in legal or intestate W alone shall inherit from H. Legally, the criminal
succession; conviction of W for adultery is not an act of unworthiness
(3) Although they are relative in character, they are within the meaning of Art. 1032 of the CC. The only
also total in the sense that if the heir who is time when a guilty spouse is considered unworthy
disqualified is a compulsory heir, the incapacity to inherit from the other is when there is a decree of
shall not only apply to the disposition of the free legal separation.
portion of the estate, but also to his legitime.
When the child/descendant by fraud, violence, intimidation
 Most acts of unworthiness, in particular (1), (2), (3), (5) or undue influence causes the testator to make a will or
and (6) are also grounds for disinheritance. The change one already made/prevents testator from making a
provisions governing such grounds are also applicable will/forges a will
in the disqualification of persons based on
unworthiness.  The fraud, violence, intimidation or undue influence
must have been employed for the purpose of causing
the testator to change a will which has already been
*Those highlighted in gray are also grounds for disinheritance. made, or to make one.
 There are 6 offenses connected with the
When a child/descendant has been found guilty of an execution/revocation of wills which the law considers as
attempt against the life of the testator, his/her spouse, acts of unworthiness:
descendants or ascendants (1) Causing the testator to make a will;
(2) Causing the testator to change one already made;
 This ground refers to attempted or frustrated parricide (3) Preventing the testator from making a will;
under the RPC
Page 6 of 22
(4) Preventing the testator from revoking one already (2) Those made between persons found guilty of the same
made; criminal offense, in consideration thereof;
(5) Supplanting, concealing or altering the testator’s
will; and (3) Those made to a public officer or his wife, descendants and
(6) Falsifying a supposed will of the decedent. ascendants, by reason of his office.
 It is only in offenses (1) to (4) where fraud, violence,
intimidation or undue influence must be proved. In all the  GEN: Capacity is determined at the moment of death of
others, the very act itself signifies fraud on the part of the decedent. This is because transmission of rights and
the heir responsible. properties through succession occur at that moment.
Any heir of full age who has knowledge of the violent death XPN:
of the decedent, should fail to report it to an officer of the law (1) Those who are disqualified under Nos. 2, 3, and 5
within a month, unless the authorities have already taken of Art. 1032 or No. 2 of Art. 739 will have to wait
action until final judgment is rendered;
(2) Those who are disqualified under No. 4 of Art 1032,
 This incapacity shall not apply in cases when there is no it will be necessary to wait for the expiration of the
obligation to make an accusation. month allowed for the report;
 Requisites: (3) If the institution of heirs, legacy or devise is
(1) The heir must be of full age; conditional, the time of the compliance with the
(2) He must have knowledge of the violent death of the condition shall also be considered.
decedent;
(3) He must have failed to report the matter to the
proper authorities;  The third exception refers to the institution of an heir,
(4) There must be a legal obligation to make an legacy or devise subject to a suspensive condition. In
accusation. such case, the law requires that the heir, legatee or
 It is clear that the last requisite has rendered the devisee not only have capacity at the time of death, but
incapacity useless for all practical purposes. also at the time of the fulfillment of the condition.
 This is because the institution as an heir, legatee or
PARDON OF ACTS OF UNWORTHINESS devisee is only a hope or expectancy converted into a
perfected right at the time the condition is fulfilled.
Art. 1033. The cause of unworthiness shall be without effect if the
testator had knowledge thereof at the time he made the will, or if,
having known of them subsequently, he should condone them in EFFECT OF INCAPACITY UPON COMPULSORY HEIRS
writing.
SLIDES
 Only the decedent himself and no other can erase the
acts of unworthiness. Effect of Incapacity upon compulsory heirs:
 Pardon can be done: (1) Incapacity based on undue influence and morality
(1) Expressly – when the decedent condones the act or public policy
of unworthiness in writing; • Only the free portion given to the heir is
(2) Impliedly – when the testator, with knowledge of affected, but not his legitime.
the act of unworthiness, executes a will instituting
the person who has committed the offense as an (2) Incapacity based on acts of unworthiness
heir. Disqualifies a compulsory heir from succeeding even to
his legitime.
 Express pardon can take place in either testamentary
or intestate succession; implied pardon can only take (a) In testamentary succession – children or
place in testamentary succession. descendants of the unworthy child or descendant
shall acquire his right to the legitime.
 Pardon is not the same as reconciliation. The first is a
(b) In intestate succession – children or descendants
unilateral act, while the latter is a bilateral act requiring
the concurrence of the offender. of the unworthy child or descendant shall succeed
to the entire share which is rendered vacant.
Note: 1 and 2 applies only if the compulsory heir is a child or
 The fact that there is reconciliation between the parties
descendant of the decedent.
does not mean that the acts of unworthiness are erased.
While it may deprive the offended party the right to
disinherit, there must be a pardon to erase the effects of Art. 1035. If the person excluded from the inheritance by reason
unworthiness as required by Art. 1033. of incapacity should be a child or descendant of the decedent and
should have children or descendants, the latter shall acquire his
TIME TO DETERMINE CAPACITY right to the legitime.
The person so excluded shall not enjoy the usufruct and

Art. 1034. In order to judge the capacity of the heir, devisee or administration of the property thus inherited by his children.
legatee, his qualification at the time of the death of the
decedent shall be the criterion.
 If the heir incapable of succeeding is a compulsory heir,
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be whether or not his right to legitime will be affected will
depend on the cause of his incapacity.
necessary to wait until final judgment is rendered, and in the case
falling under No. 4, the expiration of the month allowed for the
report.  If the incapacity is because of undue influence or
interest, or because of being a void donation, then
If the institution, devise or legacy should be conditional, the time only the free portion is affected. He can still inherit as a
of the compliance with the condition shall also be considered. compulsory heir.
Art. 739. The following donations shall be void: Sample Problem:
(1) Those made between persons who were guilty of adultery or When the attending physician of Z finally informed the
concubinage at the time of the donation; latter that he is suffering from the last stages of cancer
and that he cannot live longer than one month, X called
Page 7 of 22
up his son, A, a priest. It was the latter who heard his

last confession. After the confession, X executed a will
wherein he gave the disposable free portion of his estate  This article talks about two rights:
in proportion of “one-third for each” of his two sons, A (1) The right to collect necessary expenses (for
and B, who are his only compulsory heirs, and to a preservation, regardless of good faith or bad faith)
friend, F. He died 10 days afterwards. (2) To collect credit (because while he is
incapacitated to inherit, he is still a creditor)
The net value of his estate is P120,000. During the  Useful and luxurious expenses are deemed governed
administration proceedings, B, who was not in good by the rules on possession, and therefore in this case,
terms with his brother A, contended that the latter is good faith or bad faith is important.
incapacitated to inherit from the testator pursuant to the
provisions of No. 1 of Art .1027 of the Civil Code. Is he
correct? Reasons. INCAPACITATED HEIR WHO DISREGARDS PROHIBITION
B is correct. A is certainly incapacitated under No. 1 of Art. 1038. Any person incapable of succession, who,
Art. 1027 of the Civil Code. But B is also incapacitated disregarding the prohibition stated in the preceding articles,
to inherit from the testator under No. 2 of the same entered into the possession of the hereditary property, shall be
article, being a brother of A, and therefore a collateral obliged to return it together with its accessions.
relative of the latter within the 4th degree.
He shall be liable for all the fruits and rents he may have
It must be noted however, that their legitime will not be received, or could have received through the exercise of due
affected by their disqualification. What is affected is diligence.
their share in the free disposable portion. Such
shares shall pass to their co-heir, F, by right of
GOVERNING LAW IF DECEDENT IS A FOREIGNER
accretion, pursuant to Arts. 1016 and 1017 of the Civil
Code. Therefore, A shall still be entitled to his legitime
of P30,000; B, to his legitime of P30,000; and F, to the Art. 1039. Capacity to succeed is governed by the law of the
entire free portion of P60,000. nation of the decedent.
 If the incapacity is due to unworthiness, even the  In case of conflict of laws, we adhere to the nationality
legitime of the heir who committed the acts of principle.
unworthiness is affected. o (Art. 15, CC) “Family rights and duties, or the
 However, the incapacity is personal and cannot be status, condition and legal capacity of Filipino
attached to such unworthy heir’s children or citizens who are living abroad are governed by
descendants. Philippine law.”
 Therefore, if the heir who committed the act of  In case of foreigners, their national law shall govern their
unworthiness is a compulsory heir who has children or family rights and duties or their status, condition and
descendants of his own, the latter shall acquire his legal capacity if they are living in the Philippines.
legitime. Should there be no children or descendants, it  In succession, there are four aspects of succession
shall be given to those entitled to represent him in which are governed by the national law of the decedent
accordance with the rules of intestate succession. if he is a foreigner:
(1) The order of succession
(2) The amount of successional rights
EFFECT OF ACTS OF DISQUALIFIED HEIRS (3) The intrinsic validity of testamentary provisions
(4) The capacity to succeed.
Art. 1036. Alienations of hereditary property, and acts of
administration performed by the excluded heir, before the judicial
order of exclusion, are valid as to the third persons who acted in Sample Problem
good faith; but the co-heirs shall have a right to recover damages Gold was a citizen of State X under whose law an illegitimate child
from the disqualified heir. is not an intestate heir. He died in the Philippines without a will
leaving considerable properties in Manila. Can Octavio, an
acknowledged illegitimate son of Gold by a Filipino woman,
 Alienations of hereditary property by the disqualified heir
legally claim inheritance by invoking the succession rights of
before he is excluded from the succession by a judicial
acknowledged illegitimate children under Philippine law?
order of exclusion are valid as to third persons who
acted in good faith (a purchaser for good faith and for
Octavio cannot legally claim inheritance from his father Gold by
value).
invoking the successional rights of acknowledged illegitimate
o However, the co-heirs who are ultimately
children under Philippine law. Capacity to succeed is governed
adjudged to be the real heirs of the decedent
by the law of the nation of the decedent. So what is applicable is
shall have to recover the damages from the
the law of State X, which declares that illegitimate children cannot
disqualified heir.
inherit by intestate succession.
 The same rules are applicable with respect to acts of REMEDY AGAINST DISQUALIFIED HEIR
administration performed by the disqualified heir
before the judicial order of exclusion.
o This is especially apparent when the heir is in Art. 1040. The action for a declaration of incapacity and for the
possession of the property or estate. recovery of the inheritance, devise or legacy shall be brought
o Third persons who are affected by such acts, within five years from the time the disqualified person took
relying upon the apparent authority of the possession thereof. It may be brought by anyone who may have
possessor, shall be protected. But the co-heirs an interest in the succession.
shall have the right to recover damages from
the disqualified heir.  This article has a two-fold purpose:
(1) A declaration of incapacity;
(2) Recovery of the inheritance, devise or legacy.
INDEMNITIES TO BE REIMBURSED THE EXCLUDED HEIR  The action for declaration of incapacity and for recovery
of the property may or may not be part of the
Art. 1037. The unworthy heir who is excluded from the administration proceedings.
succession has a right to demand indemnity or any expenses o If it is not part of the administration
incurred in the preservation of the hereditary property, and to proceedings, it becomes an ordinary action by
enforce such credits as he may have against the estate.
Page 8 of 22
anyone who may have interest in the

succession. (4) Any attesting witness to the execution of a will, the spouse,
 Period of prescription: The executor, administrator or parents, or children, or any one claiming under such witness,
anyone who may have an interest in the succession has spouse, parents, or children;
five years from the time the disqualified person took
possession of the inheritance, devise or legacy (5) Any physician, surgeon, nurse, health officer or druggist who
within which to file the action. took care of the testator during his last illness;
(6) Individuals, associations and corporations not permitted by

SLIDES & DISCUSSION (Verbatim) law to inherit.
Capacity to Succeed by Will or by Intestacy
Capacity to Succeed – it is the ability to inherit and retain (1) The priest who heard the confession of the testator
property obtain mortis causa during his last illness, or the minister of the gospel who
extended spiritual aid to him during the same period
Requisites
(1) The heir, legatee/devisee must be living or in existence Reason: To safeguard the rights of the heirs who may be
at the moment the succession opens; and defrauded by the sinister and undue influence which may be
(2) The heirs, legatee/devisee must not be incapacitated or exercised by some priests or ministers over a dying man
disqualified by law to succeed
Requisites:
Kinds of Incapacity to Succeed (1) The will must have been executed during the last illness
(1) Absolute Incapacity – incapacitated to succeed in any and after the confession because if it were before, the
form reason for the incapacity does not exist
(2) Relative Incapacity – incapacitated by reason of (2) That the testator died of illness wherein the confession
special relation was made even though there should exist an interval
(a) Based on undue influence or interest (Article 1027) between the confession and death or that the death
(b) Based on morality or public policy (Article 1026; proceeds from an accident which may or may not
Article 739) proceed from said illness; and
(c) Based on Acts of Unworthiness (Article 1032) (3) That the disposition in the will should be in favor of said
(d) By operation of law priest or minister, his relative within the 4th degree or his
church
1 Absolute Incapacity – incapacitated to succeed in any form Notes:

(a) Those not living at the time of death The disqualification does not extend to: the legitime, to intestacy
Exceptions: and to dispositions which do not extend a testamentary benefit
(1) Testamentary disposition in favor of associations
for religious, scientific, cultural education or A priest who extends spiritual aid other than confession like
charitable purposes (Article 1026) extreme unction is not disqualified
(2) Testamentary disposition in favor of a church or
denomination to which the testator may belong for In the case of minister of the gospel other than priests, the
prayers or pious works (Article 1029) extension of spiritual aid disqualifies him
(3) Testamentary disposition in favor of the poor in
general (Article 1030) (2) The relatives of such priest or minister of the gospel
(4) When the child although not yet born is already within the fourth degree, the church, order, chapter,
conceived at the time of the death of the decedent community, organization, or institution, to which such
and it is born later under the conditions prescribed priest or minister may belong
in the Civil Code, Article 41 (Article 1025)
Notes:
(b) Those who cannot be identified – uncertain persons Relatives here by consanguinity
(Article 845) Disqualification extends to the 4th degree
(c) Those who are not permitted by law to inherit (Article (3) A guardian with respect to the testamentary
1027) disposition given by a ward in his favor before the final
accounts of the guardianship have been approved,
2 Relative Incapacity – by reason of special relation even if the testator should die after the approval
(a) Based on undue influence or interest thereof; nevertheless, any provision made by the ward
(b) Based on morality or public policy in favor of the guardian when the latter is his ascendant,
(c) Based on acts of unworthiness descendant, brother, sister, or spouse, shall be valid
(d) By operation of law
Requisites:
(a) The will was executed by the ward in favor of the
(A) Based on Undue Influence or Interest guardian; and
(b) It was executed before the final accounts of the
Art. 1027. The following are incapable of succeeding: guardianship have been approved; even if the testator
(1) The priest who heard the confession of the testator during his should die after the approval thereof
last illness, or the minister of the gospel who extended spiritual
aid to him during the same period; Notes:
May be guardian of the person or of the property
(2) The relatives of such priest or minister of the gospel within the Guardians are disqualified to inherit unless:
fourth degree, the church, order, chapter, community, (1) The will was made after the approval of the “final
organization, or institution to which such priest or minister may accounts” (those that terminate the financial
belong; responsibility of the guardian; are given to the court
when the guardian is removed, resigns, or where there
(3) A guardian with respect to testamentary dispositions given by is no need for the guardianship to continue)
a ward in his favor before the final accounts of the guardianship (2) The guardian is a relative (ascendant, descendant,
have been approved, even if the testator should die after the brother, sister, or spouse)
approval thereof; nevertheless, any provision made by the ward
in favor of the guardian when the latter is his ascendant, (4) Any attesting witness to the execution of a will, the
descendant, brother, sister, or spouse, shall be valid; spouse, parents, or children, or any one claiming under such
witness, spouse, parents, or children
Page 9 of 22
Witnesses cannot inherit; they are capacitated to inherit, they are Art. 1032. The following are incapable of succeeding by
incapacitated to receive any inheritance; the disposition shall be reason of unworthiness:
disregarded (Article 823)
(1) Parents who have abandoned their children or induced their
The disqualification extends to: daughters to lead a corrupt or immoral life, or attempted
(a) The witness against their virtue.
(b) The spouse of the witness
(c) The parent of the witness (2) Any person who has been convicted of an attempt against the
(d) The child of the witness life of the testator, his or her spouse, descendants, or
(e) Anyone claiming the right of said witness, spouse, ascendants;
parent or child
(f) Other relatives of the witness, like brother or sister, to (3) Any person who has accused the testator of a crime for which
whom a devise or legacy has been given, can get the the law prescribes imprisonment for six years or more, if
inheritance the accusation has been found groundless;
(5) Any physician, surgeon, nurse, health officer, or druggist, (4) Any heir of full age who, having knowledge of the violent death
who took care of the testator during his last illness of the testator, should fail to report it to an officer of the law within
To disqualify these people from inheriting as testamentary heirs, a month, unless the authorities have already taken action; this
legatees, or devisees, it is essential that: prohibition shall not apply to cases wherein, according to law,
(a) The will or disposition in their favor was made during the there is no obligation to make an accusation;
last illness and after the “care” by them had
commenced; (5) Any person convicted of adultery or concubinage with the
(b) They “took care” of the testator – this presupposes a spouse of the testator;
continuing or regular caring, and not an isolated service
(6) Any person who by fraud, violence, intimidation, or undue
These persons are not disqualified to inherit by influence should cause the testator to make a will or to change
INTESTACY because the law uses the term “testator” one already made;
and intestacy takes place by operation of law.
(7) Any person who by the same means prevents another from
(6) Individuals, associations, corporations not permitted by making a will, or from revoking one already made, or who
law to inherit supplants conceals, or alters the latter’s will;
Prohibition is absolute
Prohibition is imposed by law (8) Any person who falsifies or forges a supposed will of the
decedent
RELATIVE INCAPACITY BASED ON UNDUE INFLUENCE OR
INTEREST
The following are incapable of succeeding because of
Characteristics: unworthiness:
(1) Possible only in testamentary succession
(2) Relative in character (1) Parents who abandoned their children or induced their
(3) Partial in the sense that if the heir who is incapacitated daughters to lead a corrupt or immoral life, or attempted
or disqualified is a compulsory heir, only the free portion against their virtue
given to him is affected, but not to his legitime
 Abandonment – exposure to danger; also failure to
(B) Based on Morality or Public Policy give due care or attention; physical, moral, social or
educational abandonment
Art. 1028. The prohibitions mentioned in Article 739, concerning  Daughters include other descendants
donations inter vivos shall apply to testamentary provisions.  Attempt against virtue does not have to be in a final
judgment; no criminal conviction is needed
The provisions mentioned in Article 739 of the Civil Code
concerning donations inter vivos shall apply to testamentary (2) Any person who have been convicted of an attempt
provisions against the life of the testator, his or her spouse,
descendants, or ascendants
The following donations shall be void:
(1) Those made in favor of a person with whom the testator  The attempt must be before, not after the testator’s
was guilty of adultery or concubinage at the time of the death
making of the will.
 There should be a final judgment of conviction; the
Previous criminal conviction is not necessary judgment may come before or after the execution of the
will; conviction need not be done before the testator’s
(2) Those made in consideration of a crime of which both death; it is enough that the heir is convicted later on
the testator and the beneficiary have been found guilty
Previous criminal conviction is necessary  The law states that to determine the qualification of the
heir, the rendition of the final judgment must be awaited
(3) Those made in favor of a public officer or his spouse, (Article 1034, paragraph 2)
descendants and ascendants, by reason of his public
office  Although conviction be after the death, the fact of
conviction and its effects retroact to the time of the
RELATIVE INCAPACITY BASED ON MORALITY OR PUBLIC decedent’s death
POLICY
Characteristics: (3) Any person who has accused the testator of a crime for
(1) Possible only in testamentary succession which the law prescribes imprisonment for six years or
(2) Relative in character more, if the accusation has been found groundless
(3) Partial in the sense that if the heir who is incapacitated
or disqualified is a compulsory heir, only the free portion Elements:
given to him is affected, but not to his legitime (1) The act of accusing
(2) The fact that the accusation has been found groundless
(C) Based on Acts of Unworthiness (Article 1032) (3) The offense or crime charged carries a penalty of
imprisonment for at least six years
Page 10 of 22
(4) Any heir of full age who, having knowledge of the 2. Incapacity based on acts of unworthiness
violent death of the testator, should fail to report it to an Disqualifies a compulsory heir from succeeding even to
officer of the law within a month, unless the authorities his legitime
have already taken action; this prohibition shall not
apply to cases wherein, according to law, there is no (c) In testamentary succession – children or
obligation to make an accusation descendants of the unworthy child or descendant
shall acquire his right to the legitime
Requisites:
(a) The heir must be of full age (d) In intestate succession – children or descendants
(b) The heir must have knowledge of the violent death of of the unworthy child or descendant shall succeed
the testator to the entire share which is rendered vacant
(c) There is failure to report such death within a month
unless the authorities have already taken action Note: 1 and 2 applies only if the compulsory heir is a child or
(d) There is an obligation to make the accusation descendant of the decedent
 Under the present Philippine laws, there is no one really CONDONATION

obliged to make any accusation unless it be the state The causes of unworthiness shall be without effect if the testator
officials concerned. had knowledge thereof at the time he made the will, or if, having
known of them subsequently, he should condone them in writing
 Purpose: To consider unworthy the heir who should (Article 1033)
have made the report so that the criminal might be
brought to justice Notes:
(a) If at the time he made the will, testator already knew of
(5) Any person convicted of adultery or concubinage with the causes of unworthiness, the mere fact of instituting
the spouse of the testator the person concerned or giving him a devise or legacy,
is an implied condonation
Notes: Conviction by final judgment is essential as required by (b) If knowledge comes only after the execution of the will,
law. condonation must be in writing (public or private)
The heir who is incapable of succeeding by reason of Article 1033 is applicable only to incapacity by reason of
unworthiness is the person who is convicted of adultery or unworthiness
concubinage with the spouse of the decedent.
TIME TO DETERMINE CAPACITY
General Rule: At the moment of the death of the decedent
(6) Any person who by fraud, violence, intimidation, or
undue influence should cause the testator to make a Exceptions:
will or to change one already made In cases falling under number 2,3 or 5 of Article 1032, it shall be
necessary to wait until final judgment is rendered.
(7) Any person who by the same means prevents
another from making a will, or from revoking one In the case falling under number 4 of Article 1032, the expiration
already made, or who supplants, conceals, or alters of the month allowed for the report
the latter’s will In case of suspensive conditional institution, the heir must be
capacitated both:
(8) Any person who falsifies or forged a supported will (a) At the time of the testator’s death
of the decedent (b) At the time the condition is fulfilled
Notes: (2) Any person who has been convicted of an attempt against
The offenses are: the life of the testator, his or her spouse, descendants, or
(1) Causing the testator to make a will ascendants
(2) Causing the testator to change one already made
(3) Preventing the testator to make a will Notes:
(4) Preventing the testator from revoking one already made  The attempt must be before, not after the testator’s
(5) Supplanting, concealing, or altering the testator’s will death.
(6) Falsifying a supposed will of the decedent
 There should be a final judgment of conviction; the
 Instances (a) – (d) where it is necessary that fraud, judgment may come before or after the execution of the
violence, intimidation or undue influence must be proved will; conviction need not be done before the testator’s
in order that the heir responsible is incapacitated to death; it is enough that the heir is convicted later on.
succeed by reason of unworthiness.
 The law states that to determine the qualification of the
 In (e) – (f), such proof is no longer necessary because heir, the rendition of the final judgment must be awaited
the very act itself signifies fraud on the part of the heir (Article 1034, par 2)
responsible.
 Although conviction be after the death, the fact of
conviction and its effects retroact to the time of the
(D) By operation of Law decedent’s death.
(1) Incapacity of the guilty spouse to inherit from the innocent
spouse if there is a decree of legal separation (Article 63, (3) Any person who has accused the testator of a crime for
FC) which the law prescribes imprisonment for six years or
(2) Incapacity of illegitimate children and legitimate relatives of more, if the accusation has been found groundless
the decedent to inherit from each other (Article 992)
(3) Individuals, associations, and corporations not permitted by Notes:
law to inherit  For the accusation to be groundless, there must be a
definite acquittal and not one which is based merely on
EFFECT OF INCAPACITY UPON COMPULSORY HEIRS: reasonable doubt. If the acquittal is because of
1. Incapacity based on undue influence and morality reasonable doubt, there was some ground for the
or public policy accusation, and therefore, incapacity does not arise.
Only the free portion given to the heir is affected, but not
his legitime
Page 11 of 22
 The law states that to determine the qualification of the C. ACCEPTANCE AND REPUDIATION OF THE
heir, the rendition of the final judgment must be awaited. INHERITANCE
(Article 1034, par 2)
Art. 1041. The acceptance or repudiation of the inheritance is an
(5) Any person convicted of adultery or concubinage with the act which is purely voluntary and free.
spouse of the testator
Art. 1042. The effects of the acceptance or repudiation shall
Notes: always retroact to the moment of the death of the decedent.
 Conviction by final judgment is essential as required by
law. Acceptance refers to the act by virtue of which an heir, legatee
 The person who is incapable of succeeding by reason or devisee manifests his desire in accordance with the formalities
of unworthiness is the person who is convicted of prescribed by law to succeed to the inheritance, legacy or
adultery or concubinage with the spouse of the devise.
decedent.
Repudiation refers to the act by virtue of which an heir, legatee
REMEDIES AGAINST A DISQUALIFIED HEIR or devisee manifests his desire in accordance with the formalities
In case the disqualified heir has already taken possession of the prescribed by law not to succeed to the inheritance, legacy or
property, the remedy is an action for: devise.
(1) Declaration of incapacity
(2) Recovery of the inheritance (Article 1040) Characteristics of acceptance or repudiation:
(3) The disqualified heir shall be considered as possessor (1) It is voluntary and free;
in bad faith, hence, he is obliged to return the hereditary (2) It is retroactive; and
property together with its accessions (3) Once made, it is irrevocable.
(4) Being in bad faith, the disqualified heir shall always be  While successional rights are transmitted at the moment of
liable for damages the decedent, those who are called to succession either by
will or by operation of law must accept their inheritance,
PRESCRIPTIVE PERIOD FOR DECLARATION OF legacy or devise.
INCAPACITY AND FOR RECOVERY OF THE INHERITANCE  As long as there is no manifestation of acceptance, there can
It must be brought within 5 years from the time the disqualified be no transmission of successional rights.
heir took possession of the inheritance.  The heirs, legatees or devisees however, cannot be
compelled to accept their inheritance, legacy, or devise,
Note: If the action is only for declaration of incapacity, the party because the very nature of acceptance is that is voluntary
cannot recover possession, it must be both for declaration and and free.
recovery
Anyone who may have an interest in the succession can bring the Effects in General
action. If the heir, legatee or devisee accepts the inheritance, legacy or
devise, his right thereto is perfected. But if he repudiates, the
inheritance, legacy or devise is rendered vacant and shall pass
to those who are entitled thereto either by right of accretion or in
their own right.
REQUISITES OF ACCEPTANCE OR REPUDIATION
Art. 1043. No person may accept or repudiate an inheritance

unless he is certain of the death of the person from whom he is
to inherit, and of his right to the inheritance.
Requisites:
(1) He is certain of the death of the person from whom he is
to inherit;
(2) He is certain of his right to the inheritance.
Presumptions of Death
(1) After an absence of seven years, it being unknown

whether or not the absentee still lives, he shall be
presumed dead for all purposes except for those of
succession.
 The absentee shall not be presumed dead for the
purpose of opening his succession until after an
absence of ten years.
 If he disappeared after the age of 75 years, an
absence of five years shall be sufficient in order
that his succession may be opened.
(2) The following shall be presumed dead for purposes,

including the division of the estate among the heirs:
1) A person on board a vessel lost during sea
voyage, or an aeroplane which is missing, who has
not been heard of for 4 years since the loss of the
vessel or aeroplane;
2) A person in the armed forces who has taken part
in the war, and who has been missing for 4 years;
3) A person who has been in danger of death under
other circumstances, and his existence, and his
existence has not been known for 4 years.
Page 12 of 22
Effect if Absentee Reappears relatives within the fourth degree without her husband’s
He shall recover his property in the condition in which it may be consent).
found, and the price of the property that may have been alienated
or the property acquired therewith, but he cannot claim either Her right to repudiate however, is absolute, unless the
fruits or rents. system of absolute community governs the marriage, in
which either spouse cannot renounce/repudiate any
inheritance without the consent of the other. (Art. 200).
WHO MAY ACCEPT OR REPUDIATE
Other Notes
Art. 1044. Any person having the free disposal of his property
may accept or repudiate an inheritance.  To be valid and effective, a waiver must be couched in
clear and unequivocal terms which leave no doubt as
Any inheritance left to minors or incapacitated persons may be to the intention of a party to give up a right or benefit
accepted by their parents or guardians. Parents or guardians may which legally pertains to him.
repudiate the inheritance left to their wards only by judicial
authorization.
MANNER OF ACCEPTANCE
The right to accept an inheritance left to the poor shall belong
to the persons designated by the testator to determine the Art. 1049. Acceptance may be express or tacit.
beneficiaries and distribute the property, or in their default, to
those mentioned in Article 1030. An express acceptance must be made in a public or private
document.
Art. 1045. The lawful representatives of corporations,
associations, institutions and entities qualified to acquire A tacit acceptance is one resulting from acts by which the
property may accept any inheritance left to the latter, but in order intention to accept is necessarily implied, or which one would
to repudiate it, the approval of the court shall be necessary. have no right to do except in the capacity of an heir.
Art. 1046. Public official establishments can neither accept nor Acts of mere preservation or provisional administration do not
repudiate an inheritance without the approval of the government. imply an acceptance of the inheritance if, through such acts, the
title or capacity of an heir has not been assumed. (999a)
Art. 1047. A married woman of age may repudiate an
inheritance without the consent of her husband. Art. 1050. An inheritance is deemed accepted:
Art. 1048. Deaf-mutes who can read and write may accept or (1) If the heirs sells, donates, or assigns his right to a stranger, or
repudiate the inheritance personally or through an agent. Should to his co-heirs, or to any of them;
they not be able to read and write, the inheritance shall be
accepted by their guardians. These guardians may repudiate the (2) If the heir renounces the same, even though gratuitously, for
same with judicial approval. the benefit of one or more of his co-heirs;
Art. 114. The wife cannot, without the husband's consent acquire (3) If he renounces it for a price in favor of all his co-heirs
any property by gratuitous title, except from her ascendants, indiscriminately; but if this renunciation should be gratuitous, and
descendants, parents-in-law, and collateral relatives within the the co-heirs in whose favor it is made are those upon whom the
fourth degree. portion renounced should devolve by virtue of accretion, the
inheritance shall not be deemed as accepted. (1000)
Art. 200. Neither spouse may renounce any inheritance without
the consent of the other. In case of conflict, the court shall decide Art. 1051. The repudiation of an inheritance shall be made in a
the question, after consulting the family council, if there is any. public or authentic instrument, or by petition presented to the
court having jurisdiction over the testamentary or intestate
 In order that the heir, legatee or devisee may accept or proceedings.
repudiate, the law requires that he must have the free
disposal of property. How May Acceptance Be Made?
 Acceptance – mere acceptance by those in charge, in
behalf of incapacitated is sufficient even without judicial Acceptance may either be:
authorization, unless there be burdens.
 However, repudiation, being an act of alienation, needs (1) Express – when it is made in a public or private
court approval. document;
(2) Tacit – when it results from acts by which the intention
to accept is necessarily implied, which one would have
Who May Accept or Repudiate no right to do except in the capacity of an heir.
A. If the beneficiary is the poor – the person designated by Three examples of implied/tacit acceptance are given in Art.
the testator to determine the beneficiaries and distribute 1050. Note that these are acts which only the one who had
the property. already accepted the inheritance may perform.
 No such person, then the executor. • They are acts of disposition, which are acts which
 As far as the right to repudiate is concerned, only the owner is empowered to perform.
however, such right may be exercised only be the
beneficiaries themselves once they are finally
determined. How about repudiation?
B. If the beneficiary is a corporation, association, institution The act of repudiation is more solemn and formal than the act of
or entity, the right to accept or repudiate belongs to the acceptance. It must be done in a manner that is clear, expressed,
legal representative, but in case of repudiation, and formal.
judicial authorization is necessary.
Considerations on acceptance and repudiation:
C. If the beneficiary is a married woman of age, her right to
accept is subject to the limitation in Art. 114 (she cannot (1) Acceptance involves merely the confirmation of
acquire any property by gratuitous title, except from transmission of successional rights, while repudiation
ascendants, descendants, parents-in-law and collateral renders such transmission ineffective. Thus, repudiation
being more violent and disturbing, cannot be governed
by mere presumptions.
Page 13 of 22
(2) Repudiation is by its very nature is equivalent to an act  However, if he repudiates his share in the inheritance as
of disposition and alienation. a legal/intestate heir without knowledge of his being
(3) The publicity required for repudiation is necessary for a testamentary heir, he may still accept his share in his
the protection of other heirs and also of creditors. capacity as a testamentary heir.
Three ways by which repudiation of an inheritance, legacy or

devise may be made: IRREVOCABILITY OF ACCEPTANCE/REPUDIATION
(1) By public instrument Art. 1056. The acceptance or repudiation of an inheritance, once
(2) By means of an authentic instrument made, is irrevocable, and cannot be impugned, except when it
(3) By means of a petition presented to the court having was made through any of the causes that vitiate consent, or when
jurisdiction over the testamentary or intestate an unknown will appears.
proceedings.
GEN: Once acceptance or repudiation is made, it is irrevocable
and can no longer be impugned.
EFFECT OF REPUDIATION UPON CREDITORS
XPN:
Art. 1052. If the heir repudiates the inheritance to the prejudice
of his own creditors, the latter may petition the court to authorize (1) When the acceptance or repudiation was made through
them to accept it in the name of the heir. any of the causes that vitiate consent; and
(2) When an unknown will appears.
The acceptance shall benefit the creditors only to an extent What is the basis of the rule?
sufficient to cover the amount of their credits. The excess, should To permit the heir who renounced to change his mind with respect
there be any, shall in no case pertain to the renouncer, but shall to the acceptance or repudiation of his inheritance would result in
be adjudicated to the persons to whom, in accordance with the the violent disturbance of rights which are already vested or
rules established in this Code, it may belong. perfected; it would destroy the stability of rights.
 In order that the right granted by Art. 1052 be availed of

by creditors, the following requirements have to be met: WHEN ACCEPTANCE OR REPUDIATION MUST BE
SIGNIFIED TO THE COURT
(1) That the heir who repudiated his inheritance must
have been indebted at the time when the Art. 1057. Within thirty days after the court has issued an order
repudiation is made; for the distribution of the estate in accordance with the Rules of
(2) That the heir-debtor must have repudiated his Court, the heirs, devisees and legatees shall signify to the court
inheritance in accordance with the formalities having jurisdiction whether they accept or repudiate the
prescribed by law; inheritance.
(3) That such act of repudiation must be prejudicial to
the creditor/s; If they do not do so within that time, they are deemed to have
(4) There must be judicial authorization. accepted the inheritance.
 The creditor may only accept the repudiated inheritance

to the extent sufficient to cover the amount of credits SLIDES & DISCUSSION (verbatim)
owing him.
o Any excess shall not pertain to the renouncing
heir, but shall be adjudicated in accordance
Acceptance and Repudiation of Inheritance
with the rules established by the Civil Code.
o It may pass to co-heirs in their own right, or by
right of accretion, depending on the case.
Acceptance - The act by virtue of which an heir, legatee, or
devisee manifests his desire in accordance with the formalities
prescribed by law to succeed to the inheritance, legacy, or devise.
REPUDIATION AS TESTAMENTARY OR AS LEGAL HEIR
Repudiation - The act by virtue of which an heir, legatee, or
Art. 1053. If the heir should die without having accepted or devisee manifests his desire in accordance with the formalities
repudiated the inheritance his right shall be transmitted to his prescribed by law not to succeed to the inheritance, legacy or
heirs. devise.
Art. 1054. Should there be several heirs called to the inheritance, Note: Acceptance or repudiation is purely voluntary and free.
some of them may accept and the others may repudiate it.
Retroactivity
Art. 1055. If a person, who is called to the same inheritance as
an heir by will and ab intestato, repudiates the inheritance in his The effects of the acceptance or repudiation shall always retroact
capacity as a testamentary heir, he is understood to have to the moment of the death of the decedent (Article 1042)
repudiated it in both capacities.
Reason: To prevent any stage where the property will be without
Should he repudiate it as an intestate heir, without knowledge of an owner and possessor.
his being a testamentary heir, he may still accept it in the latter
capacity. KNOWLEDGE OF DEATH
No persons may accept or repudiate an inheritance unless he is
 If a person is called to succeed as a testamentary and certain:
as a legal heir at the same time, and he repudiates his (1) Of the death of the person from whom he is to inherit;
inheritance in his capacity as a testamentary heir, he is and
considered to have repudiated the inheritance in both (2) Of his right to the inheritance
capacities.
o Basis of the rule: If such heir refuses to heed
the expressed will of such testator, how can he IRREVOCABILITY
heed the presumed will of the decedent?
Page 14 of 22
General Rule: Once an acceptance or repudiation is made, it is (2) If the heir renounces the same, even though
irrevocable (Article 1056) gratuitously, for the benefit of one or more of his co-heirs
(3) If he renounces it for a price in favor of all his co-heirs
Exceptions: indiscriminately; but if this renunciation should be
(a) When the acceptance or repudiation was made through gratuitous, and the co-heirs in whose favor it is made
any of the causes vitiate consent are those upon whom the portion renounced should
(1) Mistake (of substance or on the principal devolve by virtue of accretion, the inheritance shall not
conditions) be deemed accepted
(2) Violence
(3) Intimidation
(4) Undue influence MANNER OF REPUDIATION
(5) Fraud Repudiation can only be done expressly (Article 1051)
Reasons:
1. It is an act of disposing of property rights
(b) When an unknown will appears provided that such will 2. It is unnatural and resultantly disturbs juridical relations
substantially change the rights of a person who has 3. Creditors of the renouncer should be more or less
repudiated or accepted informed, hence the need for an express renouncing
WHO CAN ACCEPT AND REPUDIATE How repudiation is made:

Persons with capacity to act – any person having free disposal
of his property (Article 1044) (1) By a public instrument (acknowledged before a notary
public)
(1) Minors and incapacitated (Article 1044) (2) By an authentic (genuine, not forged) instrument;
Any inheritance left to (1) minors or (2) incapacitated persons; or (3) By a petition to the court having jurisdiction over the
(3) deaf-mutes who cannot read and write, may be accepted by testamentary or intestate proceedings but must be
their parents or guardians. Parents or guardians may repudiate presented within 30 days from the order of the court for
the inheritance left to their wards only with judicial authorization. the distribution of the estate, otherwise, this is deemed
to be an acceptance (Article 1057)
(2) Poor (Article 1044)
The right to accept an inheritance left to the poor shall belong to
the persons designated by the testator to determine the REPUDIATION AS TESTAMENTARY HEIR
beneficiaries and distribute the property, or in their default, to If a person, who is called to the same inheritance as an heir by
those mentioned in Article 1030. will and ab intestate, repudiates the inheritance in his capacity as
a testamentary heir, he is understood to have repudiated it in
(3) Creditors (Article 1052) both capacities (Article 1055)
If the heir repudiates the inheritance to the prejudice of his own Reason: A testamentary heir who repudiates does not seem to
creditors, the latter may petition the court to authorize them to appreciate the generosity of the testator; Therefore, he is not
accept it in the name of the heir. The acceptance shall benefit the worthy to receive his intestate share.
creditors only to an extent sufficient to cover the amount of their
credits REPUDIATION AS INTESTATE HEIR
Should he repudiate it as an intestate heir, without knowledge of
(4) Beneficiary is a corporation, association, institution or his being a testamentary heir, he may still accept it in the latter
entity (Article 1045) capacity (Article 1055)
It shall be done through its lawful representatives. Acceptance Reason

does not need court approval but repudiation requires court It is always possible that the heir may respect the express will of
approval. the testator and would not desire to see the wishes of the testator
unfulfilled.
(5) Public Official Establishments (Article 1046)
Acceptance or repudiation needs government approval.
(6) Married Woman (Article 1047)
Acceptance or repudiation may be done without the husband’s

consent.
KINDS OF ACCEPTANCE
1. Express – made in a public or private instrument (Art 1049)
2. Implied or TACITY – one resulting from acts by which the
intention to accept is necessarily implied, or which one
would have no right to do except in the capacity of an heir
(Article 1049)
3. PRESUMED – if within 30 days after the court has issued
an order for the distribution of the estate, the people
concerned have not signified their acceptance or
distribution (Article 1057)
Note: Acts of mere preservation or provisional administration do
not imply an acceptance of the inheritance if, through such acts,
the title or capacity of an heir has not been assumed
IMPLIED ACCEPTANCE (ARTICLE 1050)
An inheritance is deemed accepted:
(1) If the heir sells, donates, or assigns his right to a

stranger, or to his co-heirs or to any of them;
Page 15 of 22
D. EXECUTORS AND ADMINISTRATORS ADMINISTRATOR WITH A WILL ANNEXED
Art. 1058. All matters relating to the appointment, powers and duties of RULE 79 SECTION 6. When letters of administration granted to any
executors and administrators and concerning the administration of applicant. — Letters of administration may be granted to any qualified
estates of deceased persons shall be governed by the Rules of Court. applicant, though it appears that there are other competent persons
having better right to the administration, if such persons fail to appear
Art. 1059. If the assets of the estate of a decedent which can be applied when notified and claim the issuance of letters to themselves.
to the payment of debts are not sufficient for that purpose, the provisions
of Articles 2239 and 2251 on Preference of Credits shall be observed, RULE 77 SECTION 4. Estate, how administered. — When a will is thus
provided that the expenses referred to in Article 2244, No. 8, shall be allowed, the court shall grant letters testamentary, or letters of
those involved in the administration of the decedent’s estate. administration with the will annexed, and such letters testamentary or of
administration, shall extend to all the estate of the testator in the
Art. 1060. A corporation or association authorized to conduct the Philippines. Such estate, after the payment of just debts and expenses of
business of a trust company in the Philippines may be appointed as an administration, shall be disposed of according to such will, so far as such
executor, administrator, guardian of an estate, or trustee, in like manner will may operate upon it; and the residue, if any, shall be disposed of as
as an individual; but it shall not be appointed guardian of the person of a is provided by law in cases of estates in the Philippines belonging to
ward. persons who are inhabitants of another state or country.
See also Rules 78-90 of the Rules of Court.

SPECIAL ADMINISTRATOR – RULE 80
Letters Testamentary SECTION 1. Appointment of special administrator. — When there is

delay in granting letters testamentary or of administration by any cause
including an appeal from the allowance or disallowance of a will, the court
RULE 78, SECTION 4. Letters testamentary issued when will allowed – may appoint a special administrator to take possession and charge of the
When a will has been proved and allowed, the court shall issue letters estate of the deceased until the questions causing the delay are decided
testamentary thereon to the person named as executor therein, if he is and executors or administrators appointed.
competent, accepts the trust and gives bond as required by these rules.
SECTION 2. Powers and duties of special administrator. — Such
Definition special administrator shall take possession and charge of the goods,
The appointment issued by a probate court, after the will has chattels, rights, credits, and estate of the deceased and preserve the
same for the executor or administrator afterwards appointed, and for that
been admitted to probate, to the executor named in the will to purpose may commence and maintain suits as administrator. He may sell
administer the estate of the deceased testator, provided the only such perishable and other property as the court orders sold. A
executor named in the will is competent, accepts the trust and special administrator shall not be liable to pay any debts of the deceased
gives a bond. unless so ordered by the court.
Letters of Administration – the appointment issued by a court SECTION 3. When powers of special administrator cease. Transfer
to a competent person to administer the estate of a deceased of effects. Pending suits. — When letters testamentary or of
who died without a will provided such person accepts the trust administration are granted on the estate of the deceased, the powers of
the special administrator shall cease, and he shall forthwith deliver to the
and gives a bond executor or administrator the goods, chattels, money, and estate of the
deceased in his hands. The executor or administrator may prosecute to
When Letters of Administration Granted final judgment suits commenced by such special administrator.
(1) No executor is named in the will; or Principal duty of an administrator – administer, settle and
(2) The executor is: close the administration without delay (inventory and accounting)
(a) Incompetent; or
(b) Refuses the trust; or
(c) Fails to give bond WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR
(3) The decedent died intestate
AS ADMINISTRATORS
Concepts Rule 78, Section 1. Who are incompetent to serve as executors or

administrators. — No person is competent to serve as executor or
administrator who:
EXECUTOR (a) Is a minor;
(b) Is not a resident of the Philippines; and
RULE 78, SECTION 4. Letters testamentary issued when will allowed (c) Is in the opinion of the court unfit to execute the duties of the trust by
– When a will has been proved and allowed, the court shall issue letters reason of drunkenness, improvidence, or want of understanding or
testamentary thereon to the person named as executor therein, if he is integrity, or by reason of conviction of an offense involving moral
competent, accepts the trust and gives bond as required by these rules. turpitude.
No person is competent to serve as executor or

ADMINISTRATOR administrator who:
(1) Is a minor;
RULE 78, SECTION 6. When and to whom letters of Administration (2) Is not a resident of the Philippines
is Granted – If no executor is named in the will, or the executor or (3) Is in the opinion of the court unfit to execute the duties
executors are incompetent, refuse the trust, or fail to give bond, or a of the trust by reason of drunkeness, improvidence, or
person dies intestate, administration shall be granted: want of understanding or integrity, or by reason of
(a) To the surviving husband or wife, as the case may be, or next of kin, conviction of an offense involving moral turpitude
or both, in the discretion of the court, or to such person as such surviving
(Rule 78, Sec 1 ROC)
husband or wife, or next of kin, requests to have appointed, if competent
and willing to serve;
Preferences in The Appointment of Administrator of an
(b) If such surviving husband or wife, as the case may be, or next of kin, Estate
or the person selected by them, be incompetent or unwilling, or if the
husband or widow, or next of kin, neglects for thirty (30) days after the (1) Surviving spouse or next of kin or their nominee – the
death of the person to apply for administration or to request that
administration be granted to some other person, it may be granted to one
surviving husband or wife or next of kin, or both, in the
or more of the principal creditors, if competent and willing to serve; discretion of the court, or to such person as such surviving
spouse or next of kin requests to be appointed, if competent
(c) If there is no such creditor competent and willing to serve, it may be and willing to serve;
granted to such other person as the court may select.
Page 16 of 22
(2) Principal creditor(s) – if the surviving spouse or the next of such former executor or administrator. An authority granted by the court
of kin or the person selected by them be incompetent or to the former executor or administrator for the sale or mortgage of real
unwilling to serve, or if the surviving spouse or next of kin estate may be renewed in favor of such person without further notice or
hearing.
neglects for 30 days after the death of the decedent to apply
for administration by them or their nominee, any one or
more of the principal creditors, if competent and willing to
serve; E. COLLATION
(3) Stranger – if there is no such creditor competent and willing
to serve, it may be granted to such other person as the court Art. 1061. Every compulsory heir, who succeeds with other compulsory
may select (Rule 78, Sec 6 ROC) heirs must bring into the mass of the estate any property or right which
he may have received from the decedent, during the lifetime of the latter,
by way of donation, or any other gratuitous title, in order that it may be
The order of preference is not absolute. If the person enjoying
computed in the determination of the legitime of each heir, and in the
such preferential rights is unsuitable, the court may appoint account of the partition
another person. The determination of one’s suitability rests in the
sound judgment of the court. Art. 1062. Collation shall not take place among compulsory heirs if the
donor should have so expressly provided, or if the donee should repudiate
the inheritance, unless the donation should be reduced as inoffi cious
POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS – RULE 84 Art. 1063. Property left by will is not deemed subject to collation, if the
testator has not otherwise provided, but the legitime shall in any remain
unimpaired.
SECTION 1. Executor or administrator to have access to partnership
books and property. How right enforced. — The executor or Art. 1064. When grandchildren, who survive with their uncles, aunts, or
administrator of the estate of a deceased partner shall at all times have cousins, inherit from their grandparents in representation of their father or
access to, and may examine and take copies of, books and papers mother, they shall bring to collation all that their parents, if alive, would
relating to the partnership business, and may examine and make invoices have been obliged to bring, even though such grandchildren have not
of the property belonging to such partnership; and the surviving partner inherited the property.
or partners, on request, shall exhibit to him all such books, papers, and
property in their hands or control. On the written application of such They shall also bring to collation all that they may have received from the
executor or administrator, the court having jurisdiction of the estate may decedent during his lifetime, unless the testator has provided otherwise,
order any such surviving partner or partners to freely permit the exercise in which case his wishes must be respected, if the legitime of the co-heirs
of the rights, and to exhibit the books, papers, and property, as in this is not prejudiced.
section provided, and may punish any partner failing to do so for
contempt. Art. 1065. Parents are not obliged to bring to collation in the inheritance
of their ascendants any property which may have been donated by the
SECTION 2. Executor or administrator to keep buildings in repair. — latter to their children.
An executor or administrator shall maintain in tenantable repair the
houses and other structures and fences belonging to the estate, and Art. 1066. Neither shall donations to the spouse of the child be brought
deliver the same in such repair to the heirs or devisees when directed so to collation; but if they have been given by the parents to the spouses
to do by the court. jointly, the child shall be obliged to bring to collation one-half of the thing
donated
SECTION 3. Executor or administrator to retain whole estate to pay
debts, and to administer estate not willed. — An executor or Art. 1067. Expenses for support, education, medical attendance, even in
administrator shall have the right to the possession and management of extraordinary illness, apprenticeship, ordinary equipment, or customary
the real as well as the personal estate of the deceased so long as it is gifts are not subject to collation.
necessary for the payment of the debts and the expenses of
administration. Art. 1068. Expenses incurred by the parents in giving their children a
professional, vocational or other career shall not be brought to collation
unless the parents so provide, or unless they impair the legitime; but when
GROUNDS FOR REMOVAL OF ADMINISTRATOR – RULE 82 their collation is required, the sum which the child would have spent if he
had lived in the house and company of his parents shall be deducted
therefrom.
SECTION 1. Administration revoked if will discovered. Proceedings
thereupon. — If after letters of administration have been granted on the Art. 1069. Any sums paid by a parent in satisfaction of
estate of a decedent as if he had died intestate, his will is proved and the debts of his children, election expenses, fines, and similarexpenses
allowed by the court, the letters of administration shall be revoked and all shall be brought to collation.
powers thereunder cease, and the administrator shall forthwith surrender
the letters to the court, and render his account within such time as the Art. 1070. Wedding gifts by parents and ascendants consisting of jewelry,
court directs. Proceedings for the issuance of letters testamentary or of clothing, and outfit, shall not be reduced as inofficious except insofar as
administration under the will shall be as hereinbefore provided. they may exceed one-tenth of the sum which is disposable by will.
SECTION 2. Court may remove or accept resignation of executor or Art. 1071. The same things donated are not to be brought to collation and
administrator. Proceedings upon death, resignation, or removal. — partition, but only their value at the time of the donation, even though their
If an executor or administrator neglects to render his account and settle just value may not then have been assessed.
the estate according to law, or to perform an order or judgment of the
court, or a duty expressly provided by these rules, or absconds, or Art. 1072. In the collation of a donation made by both parents, one-half
becomes insane, or otherwise incapable or unsuitable to discharge the shall be brought to the inheritance of the father, and the other half, to that
trust, the court may remove him, or, in its discretion, may permit him to of the mother. That given by one alone shall be brought to collation in his
resign. When an executor or administrator dies, resigns, or is removed or her inheritance.
the remaining executor or administrator may administer the trust alone,
unless the court grants letters to someone to act with him. If there is no Art. 1075. The fruits and interest of the property subject to collation shall
remaining executor or administrator, administration may be granted to not pertain to the estate except from the day on which the succession is
any suitable person. opened.
SECTION 3. Acts before revocation, resignation, or removal to be For the purpose of ascertaining their amount, the fruits and interest of the
valid. — The lawful acts of an executor or administrator before the property of the estate of the same kind and quality as that subject to
revocation of his letters testamentary or of administration, or before his collation shall be made the standard of assessment.
resignation or removal, shall have the like validity as if there had been no
such revocation, resignation, or removal. Art. 1076. The co-heirs are bound to reimburse to the donee the
necessary expenses which he has incurred for the preservation of the
SECTION 4. Powers of new executor or administrator. Renewal of property donated to him, though they may not have augmented its value.
license to sell real estate. — The person to whom letters testamentary
or of administration are granted after the revocation of former letters, or The donee who collates in kind an immovable, which has been given to
the death, resignation, or removal of a former executor or administrator, him, must be reimbursed by his co-heirs for the improvements which have
shall have the like powers to collect and settle the estate not administered increased the value of the property, and which exist at the time of the
that the former executor or administrator had, and may prosecute or partition is effected.
defend actions commenced by or against the former executor or
administrator, and have execution on judgments recovered in the name
Page 17 of 22
As to works made on the estate for the mere pleasure of the donee, no P200,000. The deed of donation is silent with respect to whether
reimbursement is due him for them; he has, however, the right to remove or not the donation shall be brought to collation. In 1980, X died
them, if he can do so without injuring the estate. intestate survived by his four sons, A, B, C and D. The net value
of his estate is P280,000. Distribute the estate.
Art. 1077. Should any question arise among co-heirs upon the obligation
to bring to collation or as to the things which are subject to collation, the
distribution of the estate shall not be interrupted for this reason provided
Answer — We must collate or add the value of the land donated
adequate security is given. at the time when the donation was made to the net value of the
estate. The result is P320,000.
Collation, defined
Although X died intestate, we must now determine the legitime of
the four children using this amount as basis. The reason is
An act of returning or restoring to the common mass of the estate,
obvious. The donation given by X to his son, A, in 1960 is
either actually or fictitiously, any property which a person may
considered an advance of the latter’s legitime. Additionally, there
have received from the decedent during the latter’s lifetime, but is always the possibility that the donation is inofficious.
which is understood for legal purposes as an advance from the
inheritance.
In order to be able to determine whether the donation is
inofficious or not, we must first determine the disposable free
Computing or adding certain values to the estate and charging
portion of the estate, and this can be done only when we have
the same to the legitime.
already determined the legitime of the compulsory heirs.
(See Articles 1061, 1062, 1063, 1064)
At any rate, using the amount of P320,000 as basis, the legitime
Computing or adding certain values to the estate and charging
of A, B, C and D is 1/2, or P160,000, or P40,000 each. The
the same to the free portion.
disposable free portion is P160,000. It is evident that the donation
(See Articles 1062, 1063)
is not inofficious.
Jurado Commentaries:
Against what portion shall the value of the land donated be
RULES. charged of imputed? The answer is: against the legitime of A.
(a) Donations to compulsory heirs – imputable against In other words, when X donated to A land valued at P40,000,
their legitime what he merely did was to advance to the latter his legitime.
(b) Donations to strangers – imputable against the Pursuant to the mandate of Art. 1061 of the Civil Code, this must
disposable portion. be taken into account in the partition.
Value to be Collated Since the legitime of A is P40,000, therefore, in the partition, he
Not the value at the time of the collation but the value at the time shall not be entitled to any legitime anymore because he had
the donation were made. already received it in advance. Consequently, the distribution of
the estate shall be as follows:
Consequently, any loss, deterioration, or improvement of the
thing donated from the time when the donation was made up to A ...................... 40,000
the time of the settlement of the donor’s estate shall be for the B ...................... 80,000
account of the donee. D ...................... 80,000
C ...................... 80,000
Reason: When the donation is made, ownership is transferred 280,000
over the property once the donation is accepted.
Problem No. 2 — Suppose that in the deed of donation, X, in the
Obligation to Collate – Compulsory Heirs above problem, expressly stated that the donation shall not be
brought to collation, how shall the distribution be made?
Every compulsory heir, who succeeds with other compulsory
heirs, must bring into the mass of the estate any property or right Answer — Since the donor had expressly stated that the
which he may have received from the decedent, during the donation shall not be brought to collation, the value thereof shall,
lifetime of the latter, by way of donation, or any other gratuitous therefore, not be considered an advance of the legitime of the
title, in order that it may be computed in the determination of the donee. Instead, it will be considered as an ordinary donation inter
legitime of each heir, and in the account of the partition. (See vivos to a stranger. Consequently, since it is not inofficious, the
Article 1061) net value of the estate shall be divided equally among the four
children.
Note: Add the value to the estate and charge the same to the
legitime – the purpose is to produce equality as among the
compulsory heirs Equalization of Shares
When Compulsory Heirs Will Not Collate

Art. 1073. The donee’s share of the estate shall be reduced by an amount
equal to that already received by him; and his co-heirs shall receive an
Collation shall not take place among compulsory heirs if the donor equivalent, as much as possible, in property of the same nature, class
should have so expressly provided, or if the donee should and quality.
repudiate the inheritance, unless the donation should be reduced
as inofficious. Art. 1074. Should the provisions of the preceding article be impracticable,
(See Article 1062) if the property donated was immovable, the co-heirs shall be entitled to
receive its equivalent in cash or securities, at the rate of quotation; and
Note: Express provision by the testator exempting an heir from should there be neither cash nor marketable securities in the estate, so
much of the other property as may be necessary shall be sold at public
collation does not mean no collation at all. The heir is merely auction.
considered as a stranger and what he has received from the
testator must be charged to the free portion. If the property donated was movable, the co-heirs shall only have a right
to select an equivalent of other personal property of the inheritance at its
just price.
Jurado Commentaries:
When Collation shall not take place: Notes:
(1) Donor should have so expressly provided Co-heirs shall receive an equivalent, as much as possible, in
(2) When the donee repudiated his inheritance property of the same nature, class, and quality (See Article 1073)
Problems (1) Real Property

Problem No. 1 — In 1960, X donated a piece of land to his eldest (a) Get property of same kind
son, A. The value of the land then was P40,000; the value now is (b) If none, get cash or securities
Page 18 of 22
(c) If none, sell property to get cash available for distribution is P20,000, such amount shall, therefore,
be given to B.
(2) Personal Property
(a) Get the property of the same kind Donations to Children of Compulsory Heirs
(b) If none, get equivalent (in value) personal property (no
Art. 1065. Parents are not obliged to bring to collation in the inheritance
right to demand cash or to demand a sale to get cash) of their ascendants any property which may have been donated by the
latter to their children.
Other matters not included in the slides/discussion Parents are not obliged to collate any property which their
ascendants may have donated to their children. In such case, the
beneficiaries are not the parents, but the children. Hence, with
Jurado Commentaries: respect to the inheritance coming from an ascendant, the parents
are compulsory heirs, while the children of such parents are mere
Collation of Representation strangers. Therefore, such donation shall be imputed against the
disposable portion as in the case of donations inter vivos to
Art. 1064. When grandchildren, who survive with their uncles, aunts, or strangers.
cousins, inherit from their grandparents in representation of their father or
mother, they shall bring to collation all that their parents, if alive, would
Wedding Gifts
have been obliged to bring, even though such grandchildren have not
inherited the property. Art. 1070. Wedding gifts by parents and ascendants consisting of jewelry,
clothing, and outfit, shall not be reduced as inofficious except insofar as
They shall also bring to collation all that they may have received from the they may exceed one-tenth of the sum which is disposable by will.
decedent during his lifetime, unless the testator has provided otherwise,
in which case his wishes must be respected, if the legitime of the co-heirs
is not prejudiced. General Rule: Wedding gifts coming from parents and
ascendants consisting of jewelry, clothing, and outfit are not
subject to collation. Hence, they shall not be reduced as
When a grandchild, who survives with uncles, aunts, or fi rst
inofficious.
cousins, inherits by right of representation, he is obliged to bring
to collation not only what may have been directly donated to him
Exception: Unless they exceed one-tenth (1/10) of the sum
by the decedent, but also
which is disposable by will.
what may have been donated to his father or mother.
The excess, therefore, shall be collated in the sense that it shall
However, it must again be noted that what the law means when
be imputed against the legitime of the beneficiary.
it says that the grandchild shall bring to collation all that his father
or mother, if alive, would have been obliged to bring, is that the
Notes: Wedding gift shall not be considered as an advance of the
value of the donation shall be imputed against his lifetime as a
legitime of the recipient so long as it does not exceed one-tenth
representative and not against the disposable portion. This may
(1/10) of the disposable free portion. As such, it will be considered
be illustrated by the following problem:
as a donation inter vivos chargeable against the disposable free
portion.
Problem — A died in 1970 without a will survived by his son, B,
and his grandson, D, child of a deceased son, C. During his
However, once it exceeds one-tenth (1/10) of the disposable free
lifetime, he had executed three donations. The first, worth
portion, the excess will then be considered as an advance of the
P40,000, was executed in 1950 in favor of a stranger, X; the
legitime of the recipient. This is illustrated by the following:
second, worth P10,000, was executed in 1955 in favor of his son,
C, now deceased; and the third, worth P10,000, was executed in
Problem — When his youngest daughter C got married in 1975,
1960 in favor of his grandson, D. The net remainder of the estate
X gave to her as a wedding gift jewelries valued at P40,000. He
after liquidation is P20,000. How shall the distribution be
died intestate in 1980, survived by his three daughters, A, B and
made?
C. The net value of his estate is P200,000. Divide the estate.
Answer — In the first place, we must collate or add the value of
Answer — We must first add the value of the gift to the net value
all the donations inter vivos to the net remainder of the estate.
of the estate. The result is P240,000. Using this amount as basis,
The result is P80,000.
the legitime of the three children is one-half (1/2), or P120,000, or
P40,000 for each of them, while the disposable free portion is also
Although A died without a will, yet we must still determine the
one-half (1/2), or P120,000. Now, one-tenth (1/10) of P120,000 is
respective legitimes of B, who is inheriting in his own right, and
P12,000. The value of the gift (P40,000) is charged against this
D, who is inheriting by right of representation, for the purpose of
amount. There is an excess of P28,000. This excess is
determining whether the donations are inofficious or not. It is
considered as an advance of the legitime of C. Hence, in the
evident that the legitime of B is P20,000, while the legitime of D
partition, she will be entitled to a legitime of only P12,000. As far
is also P20,000. The disposable free portion, on the other hand,
as the balance of P108,000 of the disposable free portion is
is P40,000. Under Art. 1064 of the Civil Code, D must bring to
concerned, since X died intestate, said amount will be divided
collation, not only the P10,000 donated to him by the decedent,
equally among the three daughters. Consequently, the estate
but also the P10,000 donated to C, the person represented.
shall be divided as follows:
This means that both donations shall be charged against the
A ............... P40,000 + P36,000, or P76,000
legitime because, under the law such legitime has already been
B ............... P40,000 + P36,000, or P76,000
advanced to him.
C ............... P12,000 + P36,000, or P48,000
P200,000
How about the donation given to X? According to Art. 909 of
the Civil Code, such donation shall be charged against the
disposable free portion. Since the free portion is P40,000 and the
value of the donation
imputable against the free portion is also P40,000, it is clear that
nothing remains out of such free portion. It is also equally clear
that the donation is not inoffi cious; consequently, it must be
respected.
How then shall the distribution be made? Since the legitime of

D had already been advanced to him, and since the legitime of B
of P20,000 has not yet been satisfi ed and the only amount now
Page 19 of 22
(a) Act Inter Vivos – it may be oral or written and need not
F. PARTITION AND DISTRIBUTION OF ESTATE be in the form of a will, provided that the partition does
not prejudice the legitime of compulsory heirs
Art. 1078. Where there are two or more heirs, the whole estate
of the decedent is, before its partition, owned in common by Note: The testator may still revoke the partition done by
such heirs, subject to the payment of debts of the deceased. his own act inter vivos because during such time, that
is, before his death, he is still the owner of the property
Art. 1079. Partition, in general, is the separation, division and
assignment of a thing held in common among those to whom The rights to succession are transmitted from the
it may belong. The thing itself may be divided, or its value. moment of death of the decedent
Co-Heirship before Partition

Where there are two or more heirs, the whole estate of the (b) By will – it must be effected by a valid will duly executed
decedent is, before its partition, owned in common by such heirs, in accordance with the formalities prescribed by law
subject to the payment of debts of the deceased (Article 1078)
2 - Third person designated by the decedent (Article 1081)
Co-Heirs are Co-Owners.
Art. 1081. A person may, by an act inter vivos or mortis causa,
Partition intrust the mere power to make the partition after his death to
It is the separation, division, and assignment of a thing held in any person who is not one of the co-heirs.
common among those to whom it may belong. It includes every
act which is intended to put an end to indivision among co-heirs The provisions of this and of the preceding article shall be
and legatees or devisees, although it should purport to be a sale, observed even should there be among the co-heirs a minor or
an exchange, compromise, or any other transaction (Article 1079, a person subject to guardianship; but the mandatary, in such
1082) case, shall make an inventory of the property of the estate,
after notifying the co-heirs, the creditors, and the legatees or
Kinds of Partition devisees.
As regards to extent: A person may, by an act inter vivos or mortis causa, intrust the
(1) Total – when all of the thing comprised in the whole mere power to make the partition after his death to any person
estate are divided among all of the participants or co- who is not one of the co-heirs
owners.
(2) Partial – When some of the things are divided among Note: This is just the power to make a physical division of the
all or some of the participant or co-owners, the rest hereditary property. The third person is not allowed to make the
remaining in a state of indivision or community disposition or distribution of property. The disposition must have
ownership. been made by the declaration by the decedent or testator himself.
As regards to duration: “Mandatary” – The person entrusted to make the partition.

(1) Provisional – when the division is merely temporary or
transitory until a final or definite division is made. 3 - Heirs themselves (Rule 74, ROC)
(2) Definite – when it is stable, final and absolute.
Extrajudicial Settlement of the Estate:
As regards to manner or method by which it is done: (a) The decedent died intestate;
(1) Extrajudicial – when it is effected by the testator (b) The estate has no outstanding debts at the time of the
himself, or by some person named by such testator, or settlement;
by the participants or co-owners themselves amicably or (c) Decedent’s heirs are all of age or the minors are
by common accord. represented by their judicial or legal representatives;
(2) Judicial – when the court intervenes in the division. (d) The settlement was made by means of a public instrument
or affidavit filed with the register of deeds; and
Under the Rules of Court, there are 4 ways by which the (e) The fact of such settlement must be published in a
estate of the decedent may be partitioned: newspaper of general circulation in the province once a
(1) Extrajudicial Settlement (Rule 74, Sec 1) week for three consecutive weeks.
(2) Ordinary Action for Partition (Rule 69)
(3) Judicial Summary Settlement (Rule 74, Sec 2) 4 - Competent Court
(4) Administration Proceedings (Rule 78 to 90) Ordinary Action for Partition – Rule 69
Judicial Summary Settlement – Rule 74, Sec 2
Who May Effect Partition Administration Proceedings – Rules 78 to 90
Who may Effect Partition Who Can Demand Partition

(1) Decedent himself during his lifetime by an act inter vivos
or by will; (1) Any Compulsory heir
(2) Third person designated by the decedent; (2) Any Voluntary heir
(3) Heir themselves; (3) Any Legatee or devisee
(4) Competent court in accordance with the ROC. (4) Any person who has acquired an interest in the estate
When partition can be demanded:

1 - Decedent himself during his lifetime by an act inter vivos General Rule: It can be demanded any time.
or by will (Article 1080) Note: The heir desiring partition must make parties to the suit all
persons interested in the estate. Partition ca be demanded only
Art. 1080. Should a person make partition of his estate by an if the co-ownership still exists.
act inter vivos, or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the compulsory Exceptions/When Partition Cannot Be Demanded:
heirs. (1) When expressly prohibited by the testator himself for a
period not exceeding twenty years (Article 1083);
A parent who, in the interest of his or her family, desires to (2) When the co-heirs have agreed that the estate shall not
keep any agricultural, industrial, or manufacturing enterprise be divided for a period which shall not exceed 10 years,
intact, may avail himself of the right granted him in this article, renewable for another 10 years (Article 494);
by ordering that the legitime of the other children to whom the (3) When the partition is prohibited by law (Article 494);
property is not assigned, be paid in cash.
Page 20 of 22
(4) When to partition the estate would render it Warranty of Credit

unserviceable for the use for which it is intended (Article
495). Art. 1095. If a credit should be assigned as collectible, the co-
heirs shall not be liable for the subsequent insolvency of the
Provisional Partition (Article 1084) debtor of the estate, but only for his insolvency at the time the
partition is made.
Voluntary heirs upon whom some condition has been imposed
cannot demand a partition until the condition has been fulfilled; The warranty of the solvency of the debtor can only be
but the other co-heirs may demand it by giving sufficient security enforced during the five years following the partition.
for the rights which the former may have in case the condition
should be complied with, and until it is known that the condition Co-heirs do not warrant bad debts, if so known to, and
has not been fulfilled or can never be complied with, the partition accepted by, the distributee. But if such debts are not assigned
shall be understood to be provisional. to a co-heir, and should be collected, in whole or in part, the
amount collected shall be distributed proportionately among
the heirs.
Constructive Partition (Article 1086)
When a credit is assigned to a co-heir as good or collectible, the
Where the thing owned in common is indivisible or a division other co-heirs are liable in case of insolvency of the debtor of the
thereof would impair its value or render it unserviceable for the estate if such insolvency existed at the time the partition was
use for which it is intended, it may be adjudicated to one of the made (Article 1095).
heirs who shall pay the others in excess in cash.
If any of the heirs should demand that the thing be sold at public Obligation of Warranty shall cease in the following (Article
auction and that strangers be allowed to bid, this must be done. 1096):
(1) When the testator himself has made the partition, unless it
appears, or it may be reasonably presumed, that his
Legal Redemption (Article 1088) intention was otherwise, but the legitime shall always
remain unimpaired;
Art. 1088. Should any of the heirs sell his hereditary rights to (2) When it has been so expressly stipulated in the agreement
a stranger before the partition, any or all of the co-heirs may of partition, unless there has been bad faith;
be subrogated to the rights of the purchaser by reimbursing (3) When the eviction is due to a cause subsequent to the
him for the price of the sale, provided they do so within the partition, or has been caused by the fault of the distribute of
period of one month from the time they were notified in writing the property.
of the sale by the vendor.
Rescission and Annulment of Partition (Article 1097)
Requisites:
(1) Two or more heirs Partition, once made, may be rescinded or annulled for the same
(2) One must sell his hereditary rights causes as in contracts.
(3) The buyer must be a stranger
(4) The sale must be before partition of the estate but after Rescission of Partition Due to Lesion
the death of the decedent
(5) At least one co-heir must demand the redemption Art. 1098. A partition, judicial or extra-judicial, may also be
(6) The demand must be made within a period of one month rescinded on account of lesion, when any one of the co-heirs
from the time of notification in writing received things whose value is less, by at least one-fourth,
(7) The redemptioner must reimburse the vendee for the than the share to which he is entitled, considering the value of
price of the sale the things at the time they were adjudicated.
Effects of Partition If in the partition anyone of the co-heirs should receive a share
whose value is less, by at least 1/4, than the share to which he is
(1) Partition legally made confers upon each heir the entitled, considering the value of the things at the time they were
exclusive ownership of the property adjudicated to him. adjudicated, the partition, whether judicial or extrajudicial, may be
(Article 1091) rescinded on account of the lesion.
(2) Obligation of warranty – After the partition, the co-heirs
shall be reciprocally bound to warrant the title to General Rule: If the partition was effected by the decedent
(warranty against eviction) and the quality of (warranty himself either by an act inter vivos or by will, it cannot be
against hidden defects) each property adjudicated impugned on the ground of lesion.
(Article 1092)
Exceptions:
Reciprocal Warranties (Article 1093, Article 1094) (1) When the legitime of the compulsory heir is prejudiced;
and
Art. 1093. The reciprocal obligation of warranty referred to in (2) When it appears or may reasonably be presumed that
the preceding article shall be proportionate to the respective the intention of the testator was otherwise.
hereditary shares of the co-heirs, but if any one of them should
be insolvent, the other co-heirs shall be liable for his part in the Note: In both cases, the lesion may be less than 1/4.
same proportion, deducting the part corresponding to the one
who should be indemnified. Options for the Sued Heir
Those who pay for the insolvent heir shall have a right of action Art. 1101. The heir who is sued shall have the option of
against him for reimbursement, should his financial condition indemnifying the plaintiff for the loss, or consenting to a new
improve. partition.
Art. 1094. An action to enforce the warranty among heirs must Indemnity may be made by payment in cash or by the delivery
be brought within ten years from the date the right of action of a thing of the same kind and quality as that awarded to the
accrues. plaintiff.
After the partition has been made, the co-heirs shall be If a new partition is made, it shall affect neither those who have
reciprocally bound to warrant title to, and the quality of each not been prejudiced nor those have not received more than
property adjudicated. The action to enforce the warranty their just share.
prescribes in 10 years.
Page 21 of 22
(1) Indemnification
(2) New Partition
Prescriptive Period of Rescission Due to Lesion

Four years from the date of judicial partition
(Court Approval)
Preterition of Compulsory Heirs in the Partition
Art. 1104. A partition made with preterition of any of the

compulsory heirs shall not be rescinded, unless it be proved
that there was bad faith or fraud on the part of the other
persons interested; but the latter shall be proportionately
obliged to pay to the person omitted the share which belongs
to him.
General Rule: A partition made with preterition cannot be

rescinded. (Art 1104)
Exception: When it can be proved that there was bad faith or

fraud on the part of the other persons interested (Article 1104).
Remedy: Demand that the persons interested be proportionately

liable for his share in the inheritance.
Inclusion of a Person not an Heir
Art. 1105. A partition which includes a person believed to be

an heir, but who is not, shall be void only with respect to such
person.
A partition which includes a person believed to be an heir, but

who is not, shall be void only with respect to such person (Article
1105)
Note: Those who are able to get shares, although they are not
entitled thereto, must give them to one who is an heir and lawfully
entitled to receive the same.
-FIN-
We wish to extend our deepest gratitude to our professor,

Atty. John Louie Lood, for his dedication in this course;
to esteemed authors Justice Edgardo L. Paras and Justice

Desiderio P. Jurado, for sharing to the world their wealth
of knowledge and experience on the “most complicated, yet
most interesting, branch of Civil Law”; and
to our classmates – thank you for doing your best.
Page 22 of 22

EH403 Succession Finals

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SUCCESSION CONSTRUCTIVE PARTITION (ARTICLE 1086) ............................ 21

PROVISIONS COMMON TO TESTATE AND INTESTATE

B. CAPACITY TO SUCCEED BY WILL OR INTESTACY ................ 3

C. ACCEPTANCE AND REPUDIATION OF THE INHERITANCE . 12

D. EXECUTORS AND ADMINISTRATORS ................................... 16

• Pro – indiviso – undivided

Note: Accretion is a right, not an obligation. Therefore, it may be

Who are those that are absolutely incapacitated to succeed?

under such witness, spouse, parent or child is the not

Disqualifications of Physicians or Nurses

Requisites for Art. 1029 to Apply

(1) Those made between persons who were guilty of adultery

(2) Those made between persons found guilty of the same

To prohibit the testator from violating indirectly what he cannot  Requisites:

The person so excluded shall not enjoy the usufruct and

Art. 739. The following donations shall be void: Sample Problem:

up his son, A, a priest. It was the latter who heard his

anyone who may have interest in the

(6) Individuals, associations and corporations not permitted by

1 Absolute Incapacity – incapacitated to succeed in any form Notes:

 Under the present Philippine laws, there is no one really CONDONATION

REQUISITES OF ACCEPTANCE OR REPUDIATION

Art. 1043. No person may accept or repudiate an inheritance

(1) After an absence of seven years, it being unknown

(2) The following shall be presumed dead for purposes,

Three ways by which repudiation of an inheritance, legacy or

 In order that the right granted by Art. 1052 be availed of

 The creditor may only accept the repudiated inheritance

WHO CAN ACCEPT AND REPUDIATE How repudiation is made:

It shall be done through its lawful representatives. Acceptance Reason

Acceptance or repudiation needs government approval.

(6) Married Woman (Article 1047)

Acceptance or repudiation may be done without the husband’s

IMPLIED ACCEPTANCE (ARTICLE 1050)

An inheritance is deemed accepted:

(1) If the heir sells, donates, or assigns his right to a

D. EXECUTORS AND ADMINISTRATORS ADMINISTRATOR WITH A WILL ANNEXED

See also Rules 78-90 of the Rules of Court.

Letters Testamentary SECTION 1. Appointment of special administrator. — When there is

Concepts Rule 78, Section 1. Who are incompetent to serve as executors or

No person is competent to serve as executor or

When Compulsory Heirs Will Not Collate

Problems (1) Real Property

How then shall the distribution be made? Since the legitime of

Co-Heirship before Partition

As regards to duration: “Mandatary” – The person entrusted to make the partition.

Who may Effect Partition Who Can Demand Partition

When partition can be demanded:

(4) When to partition the estate would render it Warranty of Credit

Prescriptive Period of Rescission Due to Lesion

Preterition of Compulsory Heirs in the Partition

Art. 1104. A partition made with preterition of any of the

General Rule: A partition made with preterition cannot be

Exception: When it can be proved that there was bad faith or

Remedy: Demand that the persons interested be proportionately

Inclusion of a Person not an Heir

Art. 1105. A partition which includes a person believed to be

A partition which includes a person believed to be an heir, but

We wish to extend our deepest gratitude to our professor,

to esteemed authors Justice Edgardo L. Paras and Justice

to our classmates – thank you for doing your best.