TAX ii PRELIMS

SUCCESSION REVIEWER
PRELIMS REVIEWER
2019 - 2020

JOSE RIZAL
UNIVERSITY
 SUCCESSION  In GENERAL, ALL OBLIGATIONS ARE TRANSMISSIBLE unless
SUCCESION – A mode of acquisition by virtue of which the PURELY PERSONAL OR NON-TRANSFERABLE BY LAW OR
property, rights and obligations to the extent of the value of the CONTRACT;
inheritance, of a person are transmitted through his death to another ***Children of a decedent CANNOT BE HELD PERSONALLY
or others either by his will or by operation of law; (ARTICLE 774) LIABLE with their own individual properties, despite substitution in
a case of their deceased father. The remedy of the creditor is to
DECEDENT – A general term applied to person whose property is proceed against the estate of the deceased father;
transmitted through succession, whether or not he left a will; IF HE ***MONEY DEBTS ARE NOT INHERITED AT ALL; That while the
LEFT A WILL, he is also called TESTATOR. (ARTICLE 775) debts of the deceased still remain unpaid, no residue may be divided
among the heirs, legatees, and devisees. Indeed, the court may
***INTESTATE – If there is no will; order the sale of sufficient property for the satisfaction of the debts
and the heirs cannot question this. Such a step is necessary for the
eventual partition of the estate. No residue may also be divided
WHAT ARE INCLUDED IN INHERITANCE? – It includes ALL
among the creditors of said heirs without first settling the debts of
THE PROPERTY, RIGHTS AND OBLIGATIONS of a person which
the deceased.
are not extinguished by his death; (ARTICLE 776)
***A creditor of an HEIR (who is not the creditor of the DECEASED),
and ALSO those which have accrued thereto SINCE THE OPENING
who intervenes in the estate proceedings, cannot therefore ask the
OF THE SUCCESSION; (ARTICLE 781).
court to sell the properties which the HEIR-DEBTOR expects to
receive. This is because the debts of the DECEASED himself must
EXAMPLE OF RIGHTS EXTINGUISHED BY DEATH:
first be paid. Then and only then can we determine if there is a
 Right to Claim acknowledgement or recognition as a natural
sufficient residue left for the HEIRS or for the HEIRS’ CREDITORS;
child;
 Right to hold public office or private office or job;
SAMPLE CASE:
 Personal Rights;
FACTS: A has a child B who has a child C. B is indebted to a
stranger, but dies before he pays the same. A then died, leaving C
EXAMPLE OF RIGHTS NOT EXTINGUISHED BY DEATH: as heir. In A’s intestate proceedings, the stranger presents his claim
 Right to bring or continue an action for forcible entry or for the credit.
unlawful detainer; QUESTION: Is C bound to pay for the debt, or will A’s estate
 Right to cancel the execution of a document necessary for answer, or will no one be held responsible?
convenience; ANSWER: Neither A’s estate nor C is liable, for neither contracted
 Right to continue a lease contract either as lessor or lessee; the debt, nor may it be said that C is inheriting from B — for the
UNLESS otherwise provided in the contract; truth is, C in the case presented, is inheriting only from A. Therefore,
the creditor-stranger must shoulder the loss himself.
OBLIGATIONS NOT EXTINGUISHED BY DEATH;

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 #GOALDIGGERS
WHEN RIGHTS TO SUCCESSION IS TRANSMITTED: AT THE HEIRS, LEGATEES AND DEVISEES; (ARTICLE 782)
MOMENT OF THE DEATH OF THE DECEDENT; 1. HEIR – a person called to the succession either by the provision of
2 KINDS OF PRESUMPTION OF DEATH: a will or by operation of law;
 ORDINARY – An absentee shall be presumed dead for the a. 2 KINDS:
i. COMPULSORY – an heir called by law to succeed to a
purposes of opening his succession – AT THE END OF 10
portion of the testator’s estate known as the LEGITIME;
YEARS or 5 YEARS (in case he disappeared after the age of
ii. VOLUNTARY - an heir called to succeed to the whole or
75); an aliquot part of the disposable free portion of the
 EXTRAORDINARY – Under Article 391, the following shall hereditary estate by virtue of the will of the testator
be PRESUMED DEAD FOR ALL PURPOSES including the ***In LEGAL OR INTESTATE SUCCESSION, all heirs are called
division of the estate; LEGAL or INTESTATE HEIRS;
o A person on board a vessel lost during a sea voyage, or an 2. DEVISEES – a person to whom a gift of real property is/are given
aeroplane which is missing, who has not been heard of for by virtue of a will;
four years since the loss of the vessel or aeroplane; 3. LEGATEES - a person to whom a gift of personal property is/are
o A person in the armed forces who has taken part in war, given by virtue of a will;
and has been missing for four years; ***Devises and Legacies can only be charged against the
o A person who has been in danger of death under other disposable free portion;
circumstances and his existence has not been known for
four years. DISTINGUISH
***SUCCESSION REALLY TOOK PLACE 4 YEARS BEFORE BUT
ACTUAL DIVISION OF THE ESTATE WILL ONLY BE AT THE END HEIRS DEVISES AND LEGACIES
OF 4 YEARS; Succeed to an indeterminate or Always succeed to individual items
aliquot portion of the decedent’s of property; succeed to particular
KINDS OF SUCCESSION: (ARTICLE 778) hereditary estate; succeed to title;
1. TESTAMENTARY – that which results from the designation of an universal title;
heir, made in a will executed in the form prescribed by law Succeed either by means of a will or Always succeed by means of a will;
(ARTICLE 779); by operation of law
 May be done thru a will or a codicil;
 May be NOTARIAL or HOLOGRAPHIC; VOLUNTARY HEIR DEVISES AND
 It is PREFERRED than Legal or Intestate; LEGACIES
2. LEGAL OR INTESTATE; OR IN CASE OF INSTITUTION of HEIRS is VALID insofar as they
3. MIXED – that which is effected partly by will and partly by PRETERITION ANNULED ENTIRELY; are not inofficious or
operation of law; (ARTICLE 780) does not affect the
legitime of compulsory
heirs;
IN CASE OF INSTITUTION of HEIRS is VALID insofar as they

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IMPERFECT OR ANNULED ENTIRELY; are not inofficious or GENERAL RULE: What are given by the will are only those
DEFECTIVE does not affect the properties already possessed and owned by the testator AT THE
DISINHERITANC legitime of compulsory TIME THE WILL WAS MADE, NOT THOSE ACQUIRED AFTER;
E heirs; EXCEPTIONS:
PROPERTIES NOT INCLUDED unless INCLUDED; 1. EXPRESSLY STIPULATED IN THE WILL;
ACQUIRED BY expressly appear in the
2. IF THE WILL IS REPUBLISHED OR MODIFIED BY A
TESTATOR AFTER will;
SUBSEQUENT WILL OR CODICIL;
EXECUTION OF
THE WILL 3. IF TESTATOR ERRONEOUSLY THOUGHT HE OWNED CERTAIN
PROPERTIES;
TESTAMENTARY SUCCESSION 4. LEGACY OF CREDIT OR REMISSSION ARE EFFECTIVE ONLY
WILLS IN GENERAL AS REGARDS THAT PART OF THE CREDIT OR DEBT
WILLS - is an act whereby a person is permitted, with the formalities EXISTING AT THE TIME OF THE DEATH OF THE TESTATOR;
prescribed by law, to control to a certain degree the disposition of his ***ARTICLE 793 applies also to Instituted Heirs (since the law
estate, to take effect after his death; ( ARTICLE 783); makes no distinction);
 MAKING OF A WILL IS A STRICTLY PERSONAL ACT; (ARTICLE
784)(mechanical act of drafting may be entrusted to another) ***VALIDITY OF AW WILL AS TO ITS FORM DEPENDS UPON THE
 DETERMINATION OF DESIGNATION OF INHERITANCE CANNOT BE OBSERVANCE OF THE LAW AT THE TIME IT IS MADE; (ARTICLE
LEFT TO A THIRD PERSON (ARTICLE 785);
795);
 DISTRIBUTION OF SPECIFIC PROPERTY OR SUMS OF MONEY MAY BE
ENTRUSTED TO THIRD PERSONS; (ARTICLE 786);
2 KINDS OF VALIDITY:
 THIRD PERSON CANNOT BE MADE TO DETERMINE THE 1. EXTRINSIC VALIDITY – refers to the forms and solemnities
OPERATIVENESS OF THE WILL; (ARTICLE 787); needed;
 IN CASE OF DOUBT, DISPOSITION THAT WILL MAKE THE WILL 2. INTRINSIC VALIDITY – refers to the legality of the
OPERATIVE SHALL BE PREFERRED; (ARTICLE 788); provisions in an instrument, contract or will;
 In the interpretation of wills, when an uncertainty arises on the
face of the wills, as to the application of only of its provisions,
the testator’s intention is to be ascertained from the words of TESTAMENTARY CAPACITY AND INTENT (ARTICLES 796 –
the wills, taking into consideration the circumstances under 803)
which it was made. (ARTICLE 789). GENERAL RULE: ALL persons may make a WILL;
 WILL MUST BE INTERPRETED IN THEIR ORDINARY AND EXCEPTION: Those who are expressly prohibited by law;
GRAMMATICAL SENSE, UNLESS OTHERWISETHE INTENTION OF
THE TESTATOR; (ARTICLE 790). GENERAL QUALIFICATIONS TO MAKE A WILL:
 WILLS MUST BE INTERPRETED AS A WHOLE; (ARTICLE 791). 1. 18 years old;
2. Soundness of mind at the time the will is made;

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REQUISITES FOR SOUNDNESS OF MIND: REQUIREMENTS OF A NOTARIAL WILL:
1. Testator knows the nature of the estate to be disposed of; 1. Will MUST BE IN WRITING;
2. Testator knows the proper objects of his bounty; (children, 2. Will must be executed in a language or dialect known to the
wife, etc.); testator;
3. Testator knows the character of the testamentary act; 3. Will MUST BE SUBSCRIBED (SIGNED) AT THE END
thereof by the testator himself or by the testator’s name
written by another person in his presence, and by his express
GENERAL RULE: PRESUMPTION ON SOUNDNESS OF MIND direction;
EXCEPTION: INSANITY ***A testator can sign with his thumbmark or with his initials, or
***He who alleges Insanity, must prove the same; even with a rubber stamp or an engraved dye, provided he intends
the same to be his signature;
***Somebody else may write the TESTATOR’S NAME for the latter,
Supervening incapacity does not invalidate an effective will, nor is provided this is done in the latter’s presence and at the latter’s
the will of an incapable person validated by the supervening of express direction. (ARTICLE 806)
capacity; (ARTICLE 801). ***The delegate must sign in the TESTATOR’S PRESENCE [this does
not necessarily mean that the testator must actually see the signing;
FORMS OF WILLS – (ARTICES 804 -819)
it is enough that he could have done so, or felt it — (as when he is
KIND OF WILLS:
blind) — without any physical obstruction, had he wanted to];
1. ORDINARY OR NOTARIAL WILL – that which requires,
***“Express direction” — means that the delegate must be expressly
among other things, an attestation clause, and
authorized to do so. Hence, mere knowledge on his part that the will
acknowledgement before a notary public;
is being signed in his behalf or his acquiescence to such an act is
2. HOLOGRAPHIC WILL – a will being written entirely, from
NOT sufficient. However, an express direction may be given by the
the date to the signature, in the handwriting of the testator;
testator even without using words — mere clear gestures or motions
***EVERY WILL MUST BE IN WRITING and executed in a
or conduct is sufficient;
language or dialect known to the testator;
***ATTESTATION – consists in witnessing the testator’s execution
***It is the attestation clause which contains the utterances reduced
of the will on order to see and take note mentally that those things
into writing of the testamentary witnesses themselves –– it is the
are done which the statute requires for the execution of a will and
witnesses, and not the testator, who are required under Art. 805 of
that the signature of the testator exists as a fact;
the new Civil Code to state the number of pages used upon which
PURPOSES OF ATTESTATION CLAUSE:
the will was written.
1. To preserve in permanent form a record of the facts attending
the execution of the will so that in case of failure of the

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memory of the subscribing witnesses, or any other casualty, 3. Must be proved in the probate proceedings;
they may still be proved;
2. To render available proof that there has been a compliance
with the statutory requisites for the execution of the will; RULES IF TESTATOR IS BLIND; (ARTICL E 808)
3. To minimize the commission of fraud or undue influence;  MUST BE READ TWICE;
a. by subscribing witnesses;
***SUBSCRIPTION – the signing of the witnesses’ names upon b. by the notary public;
the same paper for the purpose of identifying such paper as the will
which was executed by the testator;
QUESTION: If a testator is a deaf-mute and also blind, may
PURPOSE OF REQUIRING “PRESENCE”: to avoid fraudulent he still make a will?
substitution of the will; and to make more difficult the invention of
false testimony by the witnesses, since they may be the witnesses of ANSWER: NO, unless in some way, the contents thereof may
one another. properly be communicated to him in accordance with the legal
requirements;
***The testator or the person requested by him to write his name,
and the instrumental witnesses of the will shall sign each and every FORMALITIES OF A HOLOGRAPHIC WILL:
page thereof except the last, on the left margin. 1. Language must be known to the testator;
2. Will must be entirely written in the hand of the testator
***Failure to have the marginal signatures of the testator himself;
and of the witnesses, when needed, is a FATAL DEFECT. Thus, 3. Will must be DATED;
even if the second page bears the signature or thumb mark, as the 4. Will must be signed by the testator himself;
case may be, of the testator, but absent on said first page, the will 5. There must be ANIMUS TESTANDI;
cannot be admitted to probate. 6. Must be executed at the time that holographic wills are
allowed, not before, the time of death being immaterial;
***A notarial will is NOT a public instrument, although PROBATE OF HOLOGRAPHIC WILLS: ( ARTICLE 811)
acknowledged;  Proof of identity of the signature and handwriting of the
testator is important, otherwise, the will cannot be valid;
RULES WHEN TESTATOR IS DEAF (ARTICLE 807)  Probate may be; UNCONTESTED or CONTESTED;
1. If testator cannot read the will (illiterate), 2 persons  If UNCONTESTED, at least 1 identifying witness is required to
must communicate its contents to him; avoid possibility of fraud; If no witness is available, experts
2. 2 persons designated neeed not be the attesting may be resorted to;
witnesses;

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 IF CONTESTED, at least 3 identifying witnesses should be EFFECT OF PARDON:
required; (a) If the pardon was given because of the man’s innocence, as
FORMALITIES FOR WILLS EXECUTED BY ALIENS ABROAD: when somebody else had been proved to be the really guilty person,
(ARTICLE 816) he can now act as a witness to a will. This is because there is no
mental dishonesty.
 An alien abroad may make a will in accordance with the (b) If the absolute pardon was an act of Executive grace of
formalities (extrinsic validity) prescribed by the law of: clemency, it is submitted that the disqualification remains, for even
an absolute pardon does not remove civil consequences. The would-
(a) the place of his residence or domicile; be witness still has a taint of mental dishonesty.
(b) his own country or nationality;
(c) the Philippines; WITNESSES CANNOT INHERIT (ARTICLE 823)
(d) the law of the place of execution. -Under such provision, persons named are incapacitated to inherit,
but not incapacitated as witnesses;
DISQUALIFICATION EXTENDS TO:
***JOINT WILLS are those which contain in ONE instrument the 1. WITNESS;
will of two or more persons jointly signed by them; (Under the law, 2. SPOUSE OF THE WITNESS;
they are VOID); 3. PARENT OF THE WITNESS;
***RECIPROCAL OR MUTUAL WILLS - those that provide that 4. CHILD OF THE WITNESS;
the survivor of the testators will succeed to all or some of the 5. ANYONE CLAIMING THE RIGHT OF SAID WITNES, SPOUSE,
properties of the decedent. PARENT OR CHILD;
NOTE: Mutual wills or reciprocal wills by them EFFECT IF WITNESS IS A COMPLUSORY HEIR:
are VALID, but if made in one instrument, they are void, not  Still entitled to the LEGITIME; but not insofar as he ahs been
because they are reciprocal, but because they are joint. given the free portion or an excess of his legitime;

WITNESSES TO WILLS (ARTICLE 820-824)

QUALIFICATIONS FOR WITNESSES TO NOTARIAL WILLS: CODICILS AND INCORPORATION BY REFERENCE (ARTICLE
1. OF SOUND MIND; 825 -827)
2. AT LEAST 18 YEARS;
3. BE ABLE TO READ AND WRITE; CODICIL – a supplement or addition to a will, made after the
4. NOT BLIND, DEAF, OR DUMB; execution of a will and annexed to be taken as a part thereof;
5. DOMICILED IN THE PHILIPPINES; ***must be made in accordance with formalities of a will;
6. NOT HAVE BEEN CONVICTED OF FALSIFICATION OF A ***Incorporation can be done ONLY in Notarial will; (Article 827);
DOCUMENT; PERJURY; OR FALSE TESTIMONY;

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REVOCATION OF WILLS AND TESTAMENTARY PROBATE OF WILLS (ARTICLE 838 – 839)
DISPOSITIONS (ARTICLE 828-834) PROBATE – is the act of proving before a competent court the due
***Revocable any time before the death of testator; (ARTICLE execution of a will by a person possessed of testamentary capacity,
828) as well as approval thereof by said court;
CONFLICTS RULES FOR REVOCATION OF WILLS WHY THE NEED TO PROBATE?
(A) FOR REVOCATION OUTSIDE THE PHILIPPINES. It is essential because under the law “no will shall pass either
1) If not domiciled in the Philippines — real or personal property unless it is proved and allowed in
a) follow law of place where will was MADE accordance with the Rules of Court.’’
b) or follow law of place where testator was
DOMICILED at the time. AS A GENERAL RULE, courts in probate proceedings are
2) IF DOMICILED IN THE PHILIPPINES (NOT PROVIDED FOR limited only to passing upon the extrinsic validity of the will sought
IN THE LAW) — to be probated and the compliance with the requisites or solemnities
a) follow law of the Philippines (since his domicile is prescribed by law.
here) — Well-entrenched is the rule that a co-owner can only alienate
b) or follow the general rule of lex loci celebrationis of his pro indiviso share in the co-owned property.
the REVOCATION. (Art. 17).
(B) IF REVOCATION IS IN THE PHILIPPINES, FOLLOW PHILIPPINE The RULE OF ESTOPPEL DOES NOT APPLY TO PROBATE
LAW.(CIVIL CODE). PROCEEDINGS for they are invested with public interest, and if
estoppel would be applied, the ascertainment of the truth may be
***Intention to revoke must be proved; blocked. This should be avoided for the primary purpose of a
probate is not the protection of the interest of living persons.
REPUBLICATION AND REVIVAL OF WILLS (ARTICLE 835 -
837) MATTERS THAT SHOULD BE BROUGHT UP BEFORE THE
REPUBLICATION – the process of re-establishing a will, which has PROBATE COURT:
become useless because it was void, or had been revoked;  Determination of Heirs;
HOW MADE?  Proof of Filiation;
(a) re-execution of the original will (the original provisions are  Determination of estate of decedent; and
COPIED)  Claims thereto;
(b) execution of a codicil (also known as implied
republication).
***A will republished by a codicil is governed by a statute enacted GROUNDS FOR DISALLOWANCE OF A WILL (ARTICLE 839)
subsequent to the execution of the will, but which was operative ***list is EXCLUSIVE;
when the codicil was executed; (1) If the formalities required by law have not been complied with;

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(2) If the testator was insane, or otherwise mentally incapable of **Mere error in designation of name or circumstances is NOT
making a will, at the time of its execution; important as long as the intent is CLEAR, and there is POSITIVE
(3) If it was executed through force or under duress, or the infl IDENTIFICATION; (ARTICLE 844)
uence of fear, or threats; ***Disposition in favor of UNKNOWN PERSONS shall be VOID;
(4) If it was procured by undue and improper pressure unless by SOME EVENT OR CIRCUMSTANCE his identity BECOMES
and infl uence, on the part of the benefi ciary or of some other CERTAIN; (ARTICLE 845).
person; ***Institution of a compulsory heir to the legitime is VALID but
(5) If the signature of the testator was procured by fraud; SUPERFLUOUS (unnecessary since by law, he is entitled to it)
(6) If the testator acted by mistake or did not intend that the ***Institution of a voluntary heir (not compulsory heir) to the
instrument he signed should be his will at the time of affi xing his legitime is of course VOID
signature thereto. *** COLLECTIVE INSTITUTION shall be considered
INDIVIDUALLY INSTITUTED; unless it clearly appears that the
INSTITUTION OF HEIR (ARTICLE 840 – 856) intention of the testator was otherwise (ARTICLE 847)
***If the testator should institute his brothers and sisters, and he
INSTITUTION OF HEIR - it is an act by virtue of which a testator has some of full blood and others of half blood, the inheritance shall
designates in his will the person o persons who are to succeed him be distributed equally, unless a different intention appears.
in his property and transmissible rights and obligations; (ARTICLE (ARTICLE 848);
840). ***The statement of a false cause for the institution of an heir shall
***There can only be an instituted heir in TESTAMENTARY be considered as not written, unless it appears from the will that the
SUCCESSION; testator would not have made such institution if he had known the
falsity of such cause.(ARTICLE 850)
GENERAL RULE: A TESTATOR MAY DISPOSE BY WILL ALL OF REASON: The real cause is the testator’s liberality;
HIS ESTATE OR ANY PART OF IT IN FAVOR OF ANY PERSON ***ARTICLE 852 WILL ONLY APPLY IF THE INTENTION OF THE
HAVING CAPACITY TO SUCCEED; TESTATOR IS TO GIVE ALL OR THE WHOLE ESATE TO INSTITUTED
HEIRS;
EXCEPT: IF THERE IS COMPULSORY HEIRS; (Legitime must be
respected); (ARTICLE 842) PRETERITION – omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of
***If There is doubt in determining as to who was instituted in a the will or born after the death of the testator; (ARTICLE 854)
will, NO ONE INHERITS;
WHY NOT DIVIDE THE ESTATE TO ALL? EFFECT OF PRETERITION: INSTITUTION OF HEIR IS
-To divide would be to frustrate the testators intention; ANNULLED; However DEVISES AND LEGACIES SHALL BE
VALID INSOFAR AS THEY ARE NOT INOFFICIOUS;

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***Article 854 talks about TOTAL omission in the inheritance; and ***Article 861 also applies to Legacy and devises;
that the person omitted is a COMPULSORY HEIR;
***If a compulsory heir is named in the will, but he is not given GENERAL RULE: If the substitute inherits, he must fulfill the
any share, although there is no express disinheritance, there is conditions imposed on the original heir;
EXCEPTIONS:
preterition;
(1) If the testator has expressly provided the contrary (this must
***if a compulsory heir is given a share in the inheritance no matter appear in the will);
how small, there is no preterition; (2) If the charges or conditions are personally applicable, only to the
QUESTION: IS THE OMISSION OF THE SURVIVING SPOUSE heir instituted; (ARTICLE 862).
CONSTITUTE PRETERITION ?
ANSWER: NO. The surviving spouse is not in the direct line, her  FIDEICOMMISSARY SUBSTITUTION – is that by virtue of
omission in the will does not constitute preterition. which a testator institutes a first heir, and charges him to
***A voluntary heir who dies before the testator transmits nothing preserve and transmit the whole or part of the inheritance
to his heirs; later on to a second heir. (ARTICLE 863);
***A compulsory heir who dies before the testator, a person ***Both heirs inherit the property or right to it
incapacitated to succeed, and one who renounces the inheritance, SIMULTANEOUSLY, although the enjoyment and
shall transmit no right to his own heirs; (ARTICLE 856) possession are SUCCESSIVE;
PURPOSE: This is necessary for the prosperity and prestige
SUBSTITUTION OF HEIR (ARTICLE 857 – 870) of the family, bearing in mind the lack of intelligence,
SUBSTITUTION - is the appointment of another heir in default of weakness of character, and vanity and prodigality of the
or after the heir originally instituted; (ARTICLE 857); descendants to whom the property may go.
KINDS OF SUBSTITUTION: (ARTICLE 858) REQUISITES AND LIMITATIONS OF THE FIDEICOMMISSARY
 SIMPLE OR COMMON – the testator designate one or more SUBSTITUTION
persons to substitute the heir or heirs instituted in case such (a) There must be a FIRST HEIR called primarily or preferentially to
heir or heirs should the enjoyment of the property.
o Die before him; (b) There must be an obligation clearly imposed upon him to
o Renounce or repudiates; preserve and transmit to a third person the whole or part of the
o Be Incapacitated; (ARTICLE 859) inheritance (part only if the substitution refers merely to that part).
 BRIEF SUBSTITUTION – When 2 or more heir takes place (c) A SECOND HEIR.
one heir; OR COMPEDIOUS – When one takes the place of (d) The 1st and the 2nd heirs must be only one degree apart.
2 or more heir; (ARTICLE 860); (e) Both heirs must be alive (or at least conceived) at the time of
 RECIPROCAL – instituted heirs are also made the the testator’s death. (Art. 863).
substitutes of each other (ARTICLE 861)

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[NOTE: A conceived child is already considered born for all purposes ***NO CONDITIONS CAN BE IMPOSE UPON LEGITIMES
favorable to it.]. (ARTICLE 872); Except PROHIBITION AGAINST PARTITION
(f) Must be made in an EXPRESS manner; (ARTICLE 865) OF THE LEGITIME;
(g) Must not burden the legitime; (ARTICLE 864) ***IMPOSSIBLE CONDITIONS/THOSE CONTRARY TO LAW
(h) Must not be conditional. OR GOOD CUSTOMS shall be considered as NOT IMPOSED;
***In the absence of a period fixed by the testator, the inheritance (ARTICLE 873);
must be delivered at death of the first heir; ***Condition for absolute prohibition to contract a first
***ARTICLE 866 applies only when all the essential requisites for a marriage is ABSOLUTELY VOID; (ARTICLE 874);
fideicommissary substitution are present, particularly the
requirement that both heirs must be alive when the testator dies. In GENERAL RULE — void because it is contrary to morality and
other words, while it is permissible for the second heir to predecease public policy.
the first heir, neither must predecease the testator. EXCEPTIONS — valid
***The dispositions of the testator declaring all or part of the estate
inalienable for more than twenty years are VOID. (a) when imposed on the widow or widower by the deceased spouse
(b) when imposed on the widow or widower by the ascendants or
INSTANCES WHEN SUBSTITUTION IS EXTINGUISHED: descendants of the deceased spouse (not the ascendants or
 When the substitute PREDECEASES THE TESTATOR; descendants of the widow or widower)
 When the substitute is INCAPACITATED; (REASON: justified because of sentimental and economic reasons.)
 When the substitute RENOUNCES the inheritance;
 When the INSTITUTION OF HEIR IS ANNULLED; *** Any disposition made upon the condition that the heir shall
 When the institution or the substitution is REVOKED BY THE make some provision in his will in favor of the testator or of any
TESTATOR; other person shall be void (ARTICLE 875);
 When a will is VOID or DISALLOWED or REVOKED; ***POTESTATIVE CONDITION imposed MUST BE FULFILLED as
soon as he learns of the testator’s death; (ARTICLE 876);
CONDITIONAL TESTAMENTARY DISPOSITIONS AND - Potestative condition is one the fulfillment of which
TESTAMENTARY DISPOSITIONS WITH A TERM (ARTICLE depends purely on the heir. He must perform it personally. Nobody
871-885) else must do it for him;

THE INSTITUTION OF HEIR MAY BE MADE: *** If the POTESTATIVE CONDITION imposed upon the
heir is NEGATIVE, or CONSISTS IN NOT DOING OR NOT
(a) WITH A CONDITION. (Arts. 871-877, 883-884) GIVING SOMETHING, he shall comply by giving a security
that he will not do or give that which has been prohibited by
the testator, and that in case of contravention he will return

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whatever he may have received, together with its fruits and together with its fruits and interest, if he should disregard this
interests. obligation. (Art. 882, 2nd par.). Inasmuch as there is an obligation,
***The bond or security is called CAUCION MUCIANA; and inasmuch as a violation of the obligation results in forfeiture,
QUESTION: IS THE CONDITION TO MARRY POTESTATIVE OR
NOT? *** If
the heir be instituted under a suspensive condition or term,
ANSWER: If it is to marry ANY girl, then it is potestative; but if it is THE ESTATE SHALL BE PLACED UNDER ADMINISTRATION
to marry a PARTICULAR GIRL, it does not depend purely upon the UNTIL THE CONDITION IS FULFILLED, or UNTIL IT BECOMES
will of the heir, for the girl may REFUSE. (On the other hand, for all CERTAIN THAT IT CANNOT BE FULFILLED, or UNTIL THE
girls in the world to REFUSE is impossible.) ARRIVAL OF THE TERM.

The same shall be done if the heir does not give the security
EFFECT OF SUBSTANTIAL OR CONSTRUCTIVE COMPLIANCE required in the preceding article. (ARTICLE 880).
Substantial or constructive compliance (“tried his best”) is sufficient
for potestative conditions; it is also suffi cient for mixed conditions LEGITIME (ARTICLE 886 – 914)
when non-fulfi llment is caused by a person interested in the non- LEGITIME – that part of the testator’s property which he cannot
fulfi llment. In other cases however, there must be actual, not dispose of because the law has reserved it for certain heirs;
merely constructive compliance. (ARTICLE 886);
PURPOSE OF THE LEGITIME
(b) WITH A TERM. (Arts. 878, 880, 885). (a) To protect the children and the surviving widow or widower from
***Disposition with a suspensive term does not the unjustifi ed anger or thoughtlessness of the other spouse — this
prevent the instituted heir from acquiring his rights and is the purpose of the legitime.
transmitting them to his heirs EVEN BEFORE THE ARRIVAL OF (b) If there are no compulsory heirs, it follows that there can be no
THE TERM; (ARTICLE 878); legitime.
A SUSPENSIVE TERM is one that MERELY SUSPENDS the (c) Legitime may be received from two aspects: first as a right; and
DEMANDABILITY OF A RIGHT. It is sure to happen. A suspensive second, as the property itself. This means that when a person refers
condition however suspends, not merely the demandability, but even to his legitime from his father, he talks either of the right to succeed
the acquisition itself of the right. to a certain portion of the inheritance; or he may be referring to the
actual property itself.
(c) FOR A CERTAIN PURPOSE OR CAUSE (modal institution). (d) The testator cannot deprive his compulsory heirs of their
(Arts. 871, 882 and 883). legitime, except in cases expressly specified by law. Neither can he
The modal institution is not a condition (Art. 881, 1st par.) but impose upon the same any burden, encumbrance, condition, or
when and if it is violated, the instituted heir is supposed to forfeit the substitution of any whatsoever (Art. 904), except, of course, the
inheritance; to return indeed anything he may have received

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condition that the property will not be divided for a period not ART. 893 - NO LEGIT-
exceeding 20 years. ARTICLE 892 - 2/MORE
LEGITIMATE CHILD; 897 IMATE DESCEN-
DANTS
AND 898
WHO ARE COMPULSORY HEIRS:
(1) Legitimate children and descendants, with respect to LEGIT CHILD 1 PARENTS

1/4 1/4 1/4 SURVIVING

their legitimate parents and ascendants; LEGIT CHILD 2 SPOUSE
DISPOSABLE FREE
(2) In default of the foregoing, legitimate parents and SURVIVING 1/2 PORTION
SPOUSE
ascendants, with respect to their legitimate children and
descendants; DISPOSABLE
FREE PORTION
1/4
1/4 1/4
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by
legal fi ction;
(5) Other illegitimate children referred to in Article 287. ARTICLE 894 ARTICLE 896

ARTICLE 888 ARTICLE 892 - 1 LEGIT-

IMATE CHILD SURVIVING LEGITIMATE
SPOUSE 1/4 PARENT
1/3 1/3 ILLEGITIMATE ILLEGITIMATE
CHILDREN/ CHILD CHILD
DESCEN- 1 LEGIT DISPOSABLE FREE 1/2 DISPOSABLE FREE
DANTS 1/4 CHILD PORTION PORTION

DISPOSABLE SURVIVING 1/4

1/2 1/2 FREE POR- SPOUSE
1/2
TION 1/3
DISPOSABLE
FREE POR-
1/4 TION

ARTICLE 896 - NO LEGIT ARTICLE 900 - SURVIVING

CHILD SPOUSE ONLY
LEGITIMATE
PARENT SURVIVING
ILLEGITIMATE SPOUSE
CHILD
1/8 DISPOSABLE
SURVIVING
1/8 SPOUSE FREE POR-
DISPOSABLE FREE 1/2 1/2 TION
1/2 PORTION

1/4

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ORDER OF PREFERENCE IN HEREDITARY ESTATE;
ARTICLE 900 PAR. 2 - IN ARTICLE 901 - ILLEGIT- 1. GIVE THE LEGITIMES;
CASE OF MARRIAGE IN IMATE CHILD ONLY
ARTICULO MORTIS 2. THEN, DONATION INTER VIVOS;
3. PREFERRED LEGACIES AND DEVISES;
SURVIVING ILLEGITIMATE 4. ALL OTHER DEVISES AND LEGACIES PRO RATA;
SPOUSE CHILD
1/3 DISPOSABLE DISPOSABLE IF ESTATE IS INSUFFICIENT TO COVER ALL LEGACIES OR
FREE PORTION FREE PORTION
1/2 1/2 DEVISES;
2/3 1. REMUNERATORY LEGACIES OR DEVISES;
2. LEGACIES OR DEVISES DECLARED BY THE TESTATOR
TO BE PREFERENTIAL;
3. LEGACIES FOR SUPPORT;
ARTICLE 903 PAR. 1 - ARTICLE 903 PAR. 2 - 4. LEGACIES FOR EDUCATION;
ILLEG. CHILD DIED W/ ILLEG. PARENT & SUR-
NO ISSUE VIVING SPOUSE 5. LEGACIES OR DEVISES OF A SPECIFIC, DETERMINATE
ILLEGITIMATE
THING;
PARENT OF ILLEGITIMATE PAREN T
OF ILLEGITIMATE CHILD
6. ALL OTHERS PRO RATA;
ILLEGITIMATE
CHILD 1/4 SURVIVIN G SPOUSE
DISPOSABLE FREE
DISINHERITANCE (ARTICLE 915 – 923)
DISPOSABLE PORTION

1/2 1/2 FREE PORTION 1/2 It is the process or act, thru a testamentary disposition of
1/4 depriving in a will any compulsory heir of his legitime for true and
lawful causes;

***BROTHERS AND SISTERS ARE NOT COMPULSORY HEIRS; ***There is no implied disinheritance; must be EXPRESSED;
***Rights of illegitimate children are transmitted upon their death to grounds for disinheritance should be stated;
their descendants, whether legitimate or illegitimate; (ARTICLE
902) REQUISITES FOR DISINHERITANCE;
***No deprivation of or burden on the legitime; (ARTICLE 904) 1. Expressly made in a will;
***LEGITIME = VALUE OF THE PROPERTY – DEBTS AND 2. In the valid will, the name of the compulsory heir must be
CHARGES; (ARTICLE 908, 1ST PAR.) identified;
***NET VALUE OF ESTATE = VALUE OF THE PROPERTY – 3. State the ground/s for disinheritance;
DEBTS AND CHARGES + VALUE OF ALL DONATIONS BY THE 4. Grounds must be provided by law
TESTATOR (ARTICLE 908, 2ND PAR.) 5. The heirs alleging that there is disinheritance must prove
the disinheritance;

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rd
***ARTICLE 919 – GROUNDS FOR THE DISINHERITANCE OF the 3 degree and who belong to the line from which the property
CHILDREN AND DESCENDANTS; came.
***If such relatives exist, they acquire ownership of the property at
***ARTICLE 920 – GROUNDS FOR DISINHEITANCE OF the death of the ascendant; if they do not exist, the ascendant
PARENTS OR ASCENDANTS; can freely dispose the property;
NATURE – The right of ascendant-reservista in the reservable
***ARTICLE 921 – GROUNDS FOR DISINHERITANCE OF A property is similar to that of as a usufructuary; meaning that the
SPOUSE; ultimate or naked title being vested in the person in whose favor the
reserve is established.
RESERVA TRONCAL – reservation by virtue of which an ascendant ***The ascendant-reservista acquires the ownership of the property
who inherits from his descendant any property which the latter may subject to the resolutory condition that there must exist relatives of
have acquired by GRATUITOUS TITLE from another ascendant, or a the descendant-propositus who are within the 3rd degree and who
brother or sister, is OBLIGED to reserve such property as he may belong to the line from which the said property came.
have acquired by OPERATION OF LAW FOR THE BENEFIT OF
RELATIVES who are WITHIN THE 3RD DEGREE AND WHO BELONG PEOPLE INVOLVED IN RESERVA TRONCAL:
TO THE LINE FROM WHICH SAID PROPERTY CAME. 1. The ascendant or brother or sister from whom the property
came (ORIGIN);
PURPOSE: To prevent persons who are strangers to the family from ***It does not apply to property inherited by a descendant
acquiring, by some chance or accident, property which otherwise from his ascendant;
would have remained with said family. ***What is MATERIAL is that the PROPOSITUS should have
acquired it from anyone of his ascendant, brother, sister by
REQUISITES: In order that there will be a reservation of the GRATUITOUS TITLE;
property in accordance with the provisions of Art. 891: 2. The descendant who acquired the property
1. The property should have been acquired by operation of law GRATUITOUSLY(PROPOSITUS);
by an ascendant from his descendant upon the death of the ***ACQUISITION BY GRATUITOUS TITLE means that
latter; the recipient should not have given anything in return for the
2. The property should have been previously acquired by property; transmission by the ascendant, brother or sister
gratuitous title by the descendant from another ascendant or should have been an act of liberality, without imposing any
from a brother or sister; and obligation whatsoever upon the beneficiary;
3. The descendant should have died without any legitimate issue ***As long as the transmission is free from any condition by
in the direct descending line who could inherit from him; the deceased himself and the property is given out of pure
th
***4 requisite or a resolutory condition to which the reserve is generosity, it is GRATUITOUS;
subject – There must be relatives of the descendant who are within

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***Possible only in DONATIONS AND IN TESTATE AND
INTESTATE SUCCESSION;
3. The ascendant who in turn acquired the property from the
descendant by operation of law(RESERVOR OR
RESERVISTA);
***WHEN CAN THE PROPERTY BE CONSIDERED AS HAVING
BEEN ACQUIRED BY OPERATION OF LAW?
***In INTESTATE SUCCESSION – the whole estate
of the descendant, in default of legitimate children or
descendants, passes to the reservista or ascendants by
operation of law;
***In TESTATE SUCCESSION – APPLIES ONLY TO ***Reserva troncal is possible only in the LEGITIMATE FAMILY;
THE TRANSMISSION OF THE LEGITIME, but not to the
transmission of the entirety or of a part of the free portion; What if the ascendant-reservista is survived by several
4. The relatives within the 3rd degree belonging to the line from relatives of the propositus and all of them are within the 3rd
which the property came (RESERVEES OR degree belonging to the line from which the reservable
RESERVATARIOS); property came, who shall be entitled to such property?
** The reservatario or person for whose benefit the property ***RULES OF INTESTATE SUCCESSION SHALL APPLY,
is reserved must not only be a relative by consanguinity of the ***If some are in the direct ascending line, while others are in the
propositus within the 3rd degree, but he must also be a collateral line; RULE OF PREFERENCE BETWEEN LINE, by virtue of
relative by consanguinity of the source or origin of the which those in the direct ascending line shall exclude those in the
property; collateral line, is applicable.
***1st Degree – Legitimate Father or Mother of the
propositus; ***Proximity by virtue of which the nearest in degree shall exclude
***2nd Degree – Grandparents, Brothers and the more remote ones;
Sisters(Full/Half Blood of the propositus) belonging to the line ***Right of Representation in Reserva Troncal is recognized,
from which the reservable property came from; provided that the representative is a relative of the propositus within
***3rd Degree – Great grandparents, uncles/aunts, and the 3rd degree, and provided further that he belongs to the line from
nephews or nieces belonging to the line from which the which the reservable property came from;
reservable property came;
RIGHTS OF RESERVOR/ RESERVISTA:
***Ownership on the reservable property was acquired upon the
death of propositus subject to a resolutory condition;

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***Reservor can then alienate or encumber the property if he so reservista, must reserve the property for the benefi t of the relatives of H who are
desires, but he will only alienate or encumber what he had within the third degree and who belong to the line from which the property came.
This reservation, however, is subject to two resolutory conditions, namely:
and nothing more; As a consequence, the acquirer will only (1) the death of the ascendant reservista, and
receive a limited and revocable title. (2) the survival, at the time of his death, of relatives of the descendant-
propositus who are within the third degree and who belong to the line from which
OBLIGATIONS OF RESERVISTA: the reservable property came.
1. To make an inventory of all reservable property;
(b) As far as the first sale is concerned, undoubtedly, it is valid, but the reservista
2. To appraise the value of all reservable movable property; can only alienate that which he has and nothing more — a limited and revocable
3. To annotate in the Registry of Property the reservable title to the reservable property.
character of all reservable immovable property; and Hence, the alienation transmits only the conditional and revocable title of
4. Pay the reservatarios for the value of the property alienated by the reservista, the rights acquired by the transferee being revoked or resolved by
the resrevista; the survival of reservatarios at the time of the death of the reservista.
Consequently, in the instant case, in as much as the reservatarios, D, E,
F, and G, were still alive at the time of the death of the reservista, C, the
PROBLEM — The lot in question originally belonged to A. With his fi rst wife, B, A conclusion becomes inescapable that the previous sale made by such reservista in
had four children, D, E, F, and G, while with his second wife, C, he had only one
favor of X became of no legal effect, and as a consequence, the reservable
child, H. Upon his death in 1956, said lot was left to H. When H died in 1952,
property passed automatically and by operation of law to the reservatarios. But
single and without any descendant, his mother, C, sold the property to X.
then, the reservatarios had also alienated their right or expectancy over the
Subsequently, D, E, F and G sold the same property to Y. Several years later, C
reservable property during the pendency of the reserva. Was this sale valid? This
died.
question was answered in the affirmative . But, of course, it is subject to the same
(a) Is the property reservable?
conditions to which the previous sale is subject.
(b) How about the two sales which were executed — are they valid or
not?
(c) Premises considered, it is clear that Y is now entitled to the subject property.
(c) Who is now entitled to the property?

ANSWER
(a) In order that the property shall be considered as reservable under Art. 891 of WHEN CAN THE RESERVATARIO ACQUIRES RIGHT OVER
the Civil Code, it is necessary that the following requisites must concur: THE RESRVABLE PROPERTY/RESERVA?
(1) The property should have been inherited by operation of law by an ***Upon (1) the death of the ascendant reservista, and (2) the
ascendant from his descendant upon the death of the latter; survival, at the time of his death, of relatives of the descendant-
(2) the property should have been previously acquired by gratuitous title propositus who are within the third degree and who belong to the
by the descendant from another ascendant or from a brother or sister; and
(3) the descendant should have died without any legitimate issue in the
line from which the reservable property came.
direct descending line who could inherit from him. It is clear that all of these ***Upon the death of the reservista, the reservatario nearest the
requisites are present in the instant case. propositus becomes, AUTOMATICALLY AND BY OPERATION OF
Consequently, when H died in 1952, and the property passed by operation LAW, the absolute owner of the reservable property.
of law to his mother, C, it became reservable. In order words, C, who is the

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WHEN CAN THERE BE EXTINCTION OF RESERVABLE
PROPERTY/RESERVA?
1. Death of the reservor;
2. Death of all would be reserves ahead of the
reservoir/reservista;
3. Loss of the reservable properties, PROVIDED the reservoir had
no fault or negligence;
4. Prescription (Starts from the death of the reservoir)

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