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Civil Law Succession Guide

This document provides an overview of succession and inheritance under civil law, including: 1. Succession occurs at the moment of a person's death and refers to the legal mode of transmitting their property, rights, and obligations to their successors. Inheritance refers to the entirety of the decedent's estate. 2. The elements of succession are the decedent, successors (heirs and devisees/legatees), and the death of the decedent. Succession can be testamentary (by will), legal (by operation of law), mixed, or by partition inter vivos. 3. A will is an act allowing a person to control the disposition of their estate after death

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0% found this document useful (0 votes)

254 views27 pages

Civil Law Succession Guide

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Lex Aña

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San Beda College of Law

MEMORY AID IN CIVIL LAW

SUCCESSION  Moment when rights to succeed are

transmitted (Art 777)
 However, a person may be
SUCCESSION “presumed” dead for the purpose of
 A mode of acquisition by virtue of opening his succession (see rules on
which the property, rights and presumptive death). In this case,
obligations to the extent of the succession is only of provisional
value of the inheritance, of a character because there is always the
person are transmitted through his chance that the absentee may still be
death to another or others either alive.
by his will or by operation of law. 4. Inheritance (objective element);
(Art. 774)
NOTE: Whatever may be the time when
Kinds: actual transmission takes place, succession
1. Testamentary or Testacy (by will); takes place in any event at the moment of
2. Legal or intestacy (by operation of law the decedent’s death. (Lorenzo vs.
based on the decedent’s presumed Posadas 64 Phil 353)
will);
3. Mixed (Partly Testamentary and SUCCESSION INHERITANCE
Legal); and Refers to the legal Refers to the
4. Partition inter vivos (to a certain mode by which universality or
degree). inheritance is entirety of the
transmitted to the property, rights
Elements: persons entitled and obligations of a
1. DECEDENT (subjective element) to it person who died
2. SUCCESSORS (subjective element)
a. Heirs - those who are called to the Inheritance includes:
whole or to an aliquot portion of 1. PROPERTY, RIGHTS AND OBLIGATIONS
the inheritance either by will or by NOT EXTINGUISHED BY DEATH
operation of law General rules on rights and
1) Voluntary – those instituted by obligations extinguished by his death
the testator in his will, to a) Rights which are purely personal
succeed to the inheritance or are by their nature and purpose
the portion thereof of which intransmissible for they are
the testator can freely extinguished by death (e.g. those
dispose. relating to civil personality, family
2) Compulsory or Forced – those rights, discharge of office).
who succeed by force of law to b) Rights which are patrimonial or
some portion of the relating to property are generally
inheritance, in an amount part of inheritance as they are not
predetermined by law, known extinguished by death.
as the legitime. c) Rights of obligations are by nature
3) Legal or Intestate – those who transmissible and may constitute
succeed to the estate of the part of inheritance both with
decedent who dies without a respect to the rights of the
valid will, or to the portion of creditor and as regards to the
such estate not disposed of by obligations of the debtor.
will.
b. Devisees or legatees - persons to 2. ALL WHICH HAVE ACCRUED THERETO
whom gifts of real or personal SINCE THE OPENING OF SUCCESSION
property are respectively given by (Article 781 Civil Code)
virtue of a will
I. TESTAMENTARY SUCCESSION
NOTE: The distinctions between heirs
and devisees/legatees are significant A. CONCEPT
in these cases:
1. Preterition (pretermission) WILL - an act whereby a person is
2. Imperfect disinheritance permitted, with the formalities prescribed
3. After-acquired properties by law, to control to a certain degree the
4. Acceptance or non-repudiation disposition of his estate to take effect
of the successional rights. after his death (Art. 783)

3. DEATH OF THE DECEDENT (casual NOTE: Thus, a document that does not
element) purport to dispose of one’s estate either

CIVIL LAW COMMITTEE

& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John
Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
San Beda College of Law
2

MEMORY AID IN CIVIL LAW

by the institution of heirs or designation of supreme law in succession is the intent of

devisees/legatees or, indirectly, by the testator. All rules of construction are
effecting a disinheritance, is not to be designed to ascertain and give effect to
governed by the law on testamentary that intention. It is only when the
succession but by some other applicable intention of the testator is contrary to
laws. law, morals, or public policy that it cannot
be given effect.
Kinds of Wills:
1. Notarial or ordinary In case of doubt, that interpretation by
2. Holographic which the disposition is to be operative
shall be preferred. That construction is to
Characteristics of a Will: be adopted which will sustain and uphold
1. UNILATERAL the will in all its parts, if it can be done
2. STRICTLY PERSONAL ACT - The consistently with the established rules of
disposition of property is solely law.
dependent upon the testator.

NOTE: The following acts MAY NOT be left Kinds of Ambiguities: (Article 786)
to the discretion of a third person: 1. LATENT OR INTRINSIC AMBIGUITIES –
(Article 785, 787 Civil Code) that which does not appear on the face of
duration or efficacy of the designation of the will and is discovered only by extrinsic
heirs, devisees or legatees; evidence.
determination of the portions which they 2. PATENT OR EXTRINSIC AMBIGUITIES –
are to take, when referred to by that which appears on the face of the will
name; and itself
determination of whether or not the
testamentary disposition is to be NOTES:
operative.  There is no distinction between patent
and latent ambiguities, in so far as the
NOTE: However, the following acts MAY admissibility of parol or extrinsic
be entrusted to a third person: (Article evidence to aid testamentary
786 Civil Code) disposition is concerned.
a. distribution of specific property or  Extrinsic evidence to explain
sums of money that he may leave in ambiguities in a will cannot include
general to specified classes or causes; oral declarations of the testator as to
and his intention.
b. designation of the persons,  The validity of a will as to its form
institutions or establishments to which
depends upon the observance of law in
such property or sums are to be given
force at the time it is made. (Art.
or applied.
795).
3. FREE AND VOLUNTARY ACT – Any vice
affecting the testamentary freedom can
 If a law different from the law in force
cause the disallowance of the will. at the time of the execution of the
4. FORMAL AND SOLEMN ACT – The will goes into effect before or after
formalities are essential for the validity of the death of the testator, such a law
the will. shall not affect the validity of the will,
5. ACT MORTIS CAUSA provided that such will was duly
6. AMBULATORY AND REVOCABLE DURING executed In accordance with the
THE TESTATOR’S LIFETIME formalities prescribed by law in force
7. INDIVIDUAL ACT – Two or more persons at the time it was made.
cannot make a single joint will, either for
their reciprocal benefit or for another AFTER-ACQUIRED PROPERTY (Art. 793)
person. However, separate or individually Gen. Rule: Property acquired during the
executed wills, although containing period between the execution of the will
reciprocal provisions (mutual wills), are and the death of the testator is NOT
not prohibited, subject to the rule on included among the property disposed of.
disposicion captatoria. Exception: When a contrary intention
8. DISPOSITION OF PROPERTY expressly appears in the will

B. INTERPRETATION OF WILLS (ARTS. NOTE: This rule applies only to legacies

788-792) and devises and not to institution of heirs.
The testator’s intent (animus testandi), as
well as giving effect to such intent, is C. TESTAMENTARY CAPACITY
primordial. It is sometimes said that the

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

– refers to the ability as well as the power excessively to such an extent as to

to make a will. impair his mind, so that at the time
- must be present at the time of the the will is executed, he does not know
execution of the will. the extent and value of his property,
or the names of persons who are the
natural objects of his bounty, the
instrument thus executed will be
Requisites: denied probate for lack of
1. At least 18 years of age testamentary capacity.
2. Of sound mind, i.e., the ability to
know: D. FORMALITIES OF WILLS
a. the nature of the estate to be (EXTRINSIC VALIDITY)
disposed of;
b. the proper objects of his bounty; COMMON FORMALITIES
and 1. Every will must be in writing; and
c. the character of the testamentary 2. Executed in a language or dialect
act. known to the testator.

NOTE: The law presumes that the testator SPECIAL FORMALITIES

is of sound mind, UNLESS: I. NOTARIAL OR ORDINARY WILL
a. he, one month or less, before making a. SUBSCRIPTION – made at the end
his will, was publicly known to be insane; thereof by the testator himself or by
or the testator's name written by some
b. was under guardianship at the time of other person in his presence and by his
making his will. (Torres and Lopez de express direction;
Bueno vs. Lopez 48 Phil 772)  Subscription refers to the manual
In both cases, the burden of proving act of testator and also of his
sanity is cast upon proponents of the will. instrumental witnesses of affixing
their signature to the instrument.
Effect of Certain Infirmities: b. ATTESTATION AND SUBSCRIPTION -
1. mere senility or infirmity of old age (evidenced by an “attestation clause”)
does not necessarily imply that a by 3 or more credible witnesses in the
person lacks testamentary capacity; presence of the testator and of one
2. physical infirmity or disease is not another;
inconsistent with testamentary  Attestation consists in the act of
capacity; witnesses of witnessing the
3. persons suffering from idiocy (those execution of the will in order to
congenitally deficient in intellect), see and take note mentally that
imbecility (those who are mentally such will has been executed in
deficient as a result of disease), and accordance with requirements
senile dementia (peculiar decay of the prescribed by law.
mental faculties whereby the person
afflicted is reduced to second ATTESTATION SUBSCRIPTION
childhood) do not possess the 1. an act of the 1. an act of the
necessary mental capacity to make a senses hand
will; 2. mental act 2. mechanical act
3. purpose is to 3. purpose is
4. an insane delusion which will render
render available identification
one incapable of making a will may be proof during
defined as a belief in things which do probate of will
not exist, and which no rational mind
would believe to exist; c. MARGINAL SIGNATURES – affixed by the
5. if the insane delusion touches to testator or the person requested by
subject matter of the will, him to write his name and the
testamentary disposition is void. instrumental witnesses of the will on
6. a deaf-mute and blind person can each and every page thereof, except
make a will (i.e. Art. 807-808). A blind the last, on the left margin;
man with a sound and disposing mind
can make a holographic will. Exceptions to the rule that all of the
7. an intoxicated person or person under pages of the will shall have to be signed
the influence of drugs may make a will on the left margin by the testator and
as there is no complete loss of witnesses::
understanding. (1) in the last page, when the will
Exception: where the testator has consists of two or more pages;
used intoxicating liquor or drugs

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

(2) when the will consists of only one - memorandum or record of facts wherein
page; the witnesses certify that the will has
(3) when the will consists of two been executed before them, and that it
pages, the first of which contains all has been executed in accordance with the
the testamentary dispositions and is formalities prescribed by law.
signed at the bottom by the testator  Absence of this clause will render the
and the witnesses and the second will a nullity.
contains only the attestation clause
duly signed at the bottom by the It must state the following ESSENTIAL
witnesses. FACTS:
1. the number of pages used upon
 The inadvertent failure of one witness which the will is written;
to affix his signature to one page of a HOWEVER, even if number of pages is
testament, due to the simultaneous omitted in the AC BUT if there is an
lifting of two pages in the course of acknowledgment clause which states the
signing, is not per se sufficient to number of pages or the will itself
justify denial of probate (Icasiano vs. mentioned such number of pages, it may
Icasiano II SCRA 422). still be considered valid applying the
Liberal Interpretation of the law.
d. PAGE NUMBERINGS – Written (Tabuada vs. Rosal)
correlatively in letters placed on the
upper part of each page; 2. the fact that the testator signed
the will and every page thereof, or
NOTE: This is not necessary when all of caused some other person to write
the dispositive parts of a will are written his name, under his express
on one sheet only. direction, in the presence of the
instrumental witnesses;
e. ACKNOWLEDGMENT – Done before a  When the testator expressly caused
notary public by the testator and the another to sign the former’s name,
instrumental witnesses. this fact must be recited in the
attestation clause. Otherwise, the will
NOTE: The notary public before whom the is fatally defective. (Garcia vs.
will was acknowledged cannot be Lacuesta 90 Phil 489)
considered as the third instrumental
witness since he cannot acknowledge 3. that the witnesses witnessed and
before himself his having signed the will. signed the will and all the pages
If the third witness were the notary public thereof in the presence of the
himself, he would have to avow, assent, or testator and of one another.
admit his having signed the will in front of
himself. To allow such would have the TEST OF PRESENCE: Not whether they
effect of having only two attesting actually saw each other sign, but
witnesses to the will which would be in whether they might have seen each
contravention of Arts. 805 and 806. (Cruz other sign had they chosen to do so
vs. Villasor 54 SCRA 31) considering their mental and physical
condition and position with relation to
MANNER OF SIGNING: each other at the moment of
 The use of any signature, marks or inscription of each signature.
design intended by the testator to (Jaboneta vs. Gustilo)
authenticate renders the will
sufficiently signed by the testator.  In the case of an ordinary or attested
 A signature by mark will be sufficient will, its attestation clause need not be
even if at the time of placing it, the written in a language or dialect
testator knew how to write and is able known to the testator since it does not
to do so. form part of the testamentary
 It is sufficiently signed by writing his disposition.
initials, or his first name, or he may  The language used in the attestation
use even an assumed name. clause likewise need not even be
 A complete signature is not essential known to the attesting witnesses. Art.
to the validity of a will, provided the 805 merely requires that, in such a
part of the name written was affixed case, the attestation clause shall be
to the instrument with intent to interpreted to said witnesses. (Caneda
execute it as a will. vs. CA 222 SCRA 781)

ATTESTATION CLAUSE

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

Effects of defects or imperfections in the a. ordinary will: not an essential

Attestation Clause: part;
 If the defect of the attestation clause b. holographic will: an essential part.
goes into the very essence of the 8. Failure or error to state the place of
clause itself or consists in the omission execution will not invalidate the will.
of one, some, or all of the essential 9. Signing of a will by the testator and
facts, and such omission cannot be witnesses and acknowledgment before
cured by an examination of the will a notary public, need not be a single
itself, the defect is substantial in act.
character, as a consequence of which 10. Testamentary capacity must also
the will is invalidated. exist at the time of acknowledgment.
ADDITIONAL REQUIREMENTS FOR SPECIAL
 However, In the absence of bad faith, CASES
forgery, fraud, or undue and improper 1. Deaf or deaf-mute testator:
pressure and influence, defects and a) personal reading of the will, if
imperfections in the form of able to do so; OR
attestation or in the language used b) if not possible, designation of 2
therein shall not render the will persons to read the will and
invalid if it is proved that the will was communicate to him, in some
in fact executed and attested in practicable manner, the contents
substantial compliance with Art. 805 thereof. (Article 807)
(formal requirements). This is known 2. Blind testator:
as the DOCTRINE OF LIBERAL  Double-reading requirement:
INTERPRETATION (Art. 809) a. first, by one of the subscribing
witnesses, AND
b. second, by the notary public
Purposes of requiring witness to attest before whom the will is
and to subscribe to a will: acknowledged. (Article 808)
1. identification of the instrument  Art. 808 applies not only to blind
2. protection of the testator from fraud testators but also to those who, for
and deception one reason or another are incapable of
3. the ascertainment of the testamentary reading their wills (e.g. poor,
capacity of the testator. defective or blurred vision).

NOTE: Certain points to consider  In a case where the testator did not
(Tolentino) read the final draft of the will, but the
1. Mere knowledge by testator that lawyer who drafted the document,
another is signing, and acquiescing in read the same aloud in the presence
it, there being no express direction, of the testator, 3 witnesses, and
is NOT sufficient. notary public, the Court held that the
2. Not required that the name of the formal imperfections should be
person who writes the testator’s name brushed aside when the spirit behind
should also appear on the will; enough the law was served though the letter
that testator’s name is written. was not. (Alvarado vs. Gaviola 226
3. If the required numbers of attesting SCRA 347)
witness are competent, the fact that
an additional witness, who was WITNESS TO NOTARIAL WILLS
incompetent also attested to the will, (ARTS. 820 & 821)
cannot impair the validity. Requirements:
4. Immaterial in what order the acts are 1. of sound mind;
performed provided the signature or 2. able to read and write;
acknowledgment by the testator and 3. not blind, deaf or dumb;
the attestation of the witnesses be 4. at least 18 years of age;
accomplished in one occasion, and as
5. domiciled in the Philippines;
part of one transaction.
5. The law refers to page and not to
6. has not been convicted of falsification
of a document, perjury, or false
sheet or leaf or folio, so every page
testimony
used in the will should be signed on
the left margin.
NOTE: A witness need not know the
6. An attestation clause need be signed
contents of the will, and need not be
ONLY by the witnesses and not by the
shown to have had a good standing in the
testator as it is a declaration made by
community where he lives. Also, the
the witnesses.
acknowledging notary public cannot be
7. date of will:

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

one of the 3 minimum numbers of a. If the insertion was made after the
witnesses. execution of the will, but without the
Interested witness consent of the testator, such insertion
 A witness to a will who is is considered as not written, because
incapacitated from succeeding from the validity of the will cannot be
the testator by reason of a defeated by the malice or caprice of
devise/legacy or other testamentary third person.
disposition therein in his favor, or in b. If the insertion after the execution of
favor of his spouse, parent, or child. the will was with the consent of the
However, his competence as a witness testator, the will remains valid but
subsists. the insertion is void.
c. If the insertion after the execution is
2. HOLOGRAPHIC WILL (Article 810) validated by the testator by his
a. entirely written by the hand of the signature thereon, then the insertion
testator; becomes part of the will, and the
b. entirely dated by the hand of the entire will becomes void, because of
testator; and failure to comply with the
c. entirely signed by the hand of the requirement that it must be wholly
testator. written by the testator.
d. If the insertion made by a third person
NOTE: The law exacts literal compliance is made contemporaneous to the
with these requirements. HENCE, THE execution of the will, then the will is
DOCTRINE OF LIBERAL INTERPRETATION void because it is not written entirely
CANNOT BE APPLIED. by the testator.

 Nevertheless, the Court held in a case Probate of Holographic Will

that as a general rule, the “date” in a 1. If UNCONTESTED, requires that at
holographic will should include the least 1 witness who knows the
day, month, and year of its execution. handwriting and signature of the
However, when there is no appearance testator explicitly declare that the will
of fraud, bad faith, undue influence and signature are in the handwriting of
and pressure and the authenticity of the testator; if no witness, expert
the will is established and the only testimony may be resorted to.
issue is whether or not the date 2. If CONTESTED, requires at least 3 of
“FEB./61” appearing on the will is a such credible witnesses, if none expert
valid compliance with Art. 810, witness.
probate of the holographic will should
be allowed under the principle of NOTE: Where the testator himself
substantial compliance. (In the matter petitions for the probate of his holographic
of Intestate Estate of Andres de Jesus will and no contest is file, the fact that he
and Bibiana Roxas de Jesus, 134 SCRA affirms that the holographic will and the
245) signature are in his own handwriting, shall
be sufficient evidence thereof. If the
Rule in case of insertion, cancellation, holographic will is contested, the burden
erasure or alteration: of disproving the genuineness and due
 Testator must authenticate the same execution thereof shall be on the
by his FULL SIGNATURE. (Article 814) contestant.

NOTE: In the case of Kalaw vs. Relova  A photostatic or xerox copy of a lost or
(134 SCRA 241), the holographic will in destroyed holographic will may be
dispute had only one substantial provision, admitted because the authenticity of
which was altered by substituting the the handwriting of the deceased can
original heir with another, but which be determined by the probate court,
alteration did not carry the requisite of as comparison can be made with the
full authentication by the full signature of standard writings of the testator.
the testator, the effect must be that the (Rodelas vs. Aranza, 119 SCRA 16)
entire will is voided or revoked for the
simple reason that nothing remains in the GOVERNING LAW ON FORMALITIES
will after that which could remain valid. 1. As to time:
 The validity of a will as to its form
Effects of words written by another and depends upon the observance of the
inserted in the words written by the law in force at the time it is made.
testator: Its intrinsic validity, however, is

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

judged at the time of the decedent’s 2. contrary to the revocable character of

death by the law of his nationality. a will
3. may expose the testator to undue
2. As to place: influence, and may even induce one of
a. Filipino testator executing a will in the the testators to kill the other.
Philippines: Philippine law
b. Filipino testator executing a will NOTE: Joint wills executed by Filipinos in
outside of the Philippines: either a foreign country shall not be valid in the
1) The law of the country in which it Philippines, even though authorized by the
is executed; or foreign country in which they may have
2) The law of the Philippines. been executed (Article 819 Civil Code).
c. Alien testator executing a will in the This prohibition is applicable
Philippines: either only in joint wills executed by Filipinos in
1) The law of the Philippines; or a foreign country; it does NOT APPLY to
2) The law of the country of which he joint wills executed by aliens.
is a citizen or subject.
d. Alien testator executing a will outside
of the Philippines: either E. CODICIL AND INCORPORATION BY
1) The law of the place where it is REFERENCE
executed; or
2) The law of the place in which he CODICIL
resides; or  A supplement or addition to a will,
3) The law of his country; or made after the execution of a will and
4) The law of the Philippines. annexed to be taken as a part thereof,
by which any disposition made in the
Aspects of the will governed by National original will is explained, added to, or
Law of the Decedent (Article 1039 and altered. (Article 825)
Article 16 Civil Code) NOTE: To be effective, it must be
a. Order of succession executed as in the case of a will. Its
b. Amount of successional rights execution has the effect of republishing
c. Intrinsic validity the will as modified.
d. Capacity to succeed
INCORPORATION BY REFERENCE
Joint will – a single testamentary (ART 827)
instrument which contains the wills of two  Contemplates only lists of properties,
or more persons, jointly executed by books of accounts, and inventories.
them, either for their reciprocal benefit or  Provisions which are in the nature of
for the benefit of a third person testamentary dispositions must be
--will of 2 or more persons is made in the contained in the will itself.
same instrument and is jointly signed by
them Requisites for a valid incorporation by
reference: (ART 827)
Mutual wills – wills executed pursuant to 1. The document or paper referred to in
an agreement between two or more the will must be in existence at the
persons to dispose of their property in a time of the execution of the will;
particular manner, each in consideration 2. The will must clearly describe and
of the other identify the same, stating among other
--separate wills of 2 persons, which are things the number of pages thereof;
reciprocal in their provisions. 3. It must be identified by clear and
satisfactory proof as the document or
Reciprocal wills- wills in which the paper referred to therein;
testators name each other as beneficiaries 4. It must be signed by the testator and
under similar testamentary plans the witnesses on each and every page,
except in case of voluminous books of
NOTE: A will that is both joint and mutual account or inventories.
is one executed jointly by two or more
persons, the provisions of which are F. REVOCATION OF WILLS AND
reciprocal and which shows on its face TESTAMENTARY DISPOSITIONS
that the devises are made in consideration
of the other. Such is prohibited. REVOCATION
 An act of the mind, terminating the
Reasons: potential capacity of the will to
1. will is purely personal and unilateral operate at the death of the testator,
act manifested by some outward or visible

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

act or sign, symbolic thereof. Such b. Implied – when the provisions

right to revoke a will cannot be waived thereof are partially or entirely
or restricted. inconsistent with those of the
previous will
LAWS WHICH GOVERN REVOCATION (ART NOTE: While express revocation may be
829) effected by a subsequent will, or a codicil,
1. If the revocation takes place in the or a nontestamentary writing executed as
Philippines, whether the testator is provided in case of wills, implied
domiciled in the Philippines or in revocation may be effected only by either
some other country, it is valid when it a subsequent will, or a codicil.
is in accordance with the laws of the
Philippines 3. By burning, tearing, cancelling, or
2. If the revocation takes place outside obliterating the will.
the Philippines, by a testator who is Requisites:
domiciled in the Philippines, it is valid a. testamentary capacity at the time
when it is in accordance with the laws of performing the act of
of the Philippines destruction;
3. Revocation done outside the b. intent to revoke (animus
Philippines, by a testator who does revocandi);
not have his domicile in this country, c. actual physical act of destruction;
is valid when it is done according to d. completion of the subjective
the: phase; and
a. laws of the place where the will e. performed by the testator himself
was made, or or by some other person in his
b. laws of the place in which the presence and express direction
testator had his domicile at the (THE LIST IS EXCLUSIVE.)
time of revocation;
NOTE: The act of revocation is a personal
MODES OF REVOCATION (ART 830) act of the testator. He cannot delegate to
1. By implication of law: an agent the authority to do the act for
a. legal separation revokes him. Another person, however, may be
testamentary provisions in favor of selected by him as an instrument and
the offending spouse; directed to do the revocatory acts in his
b. preterition revokes the institution presence. A destruction not accomplished
of heir; in the testator’s presence is an ineffective
c. judicial action for recovery of debt revocation of the will.
revokes a legacy of
credit/remission of debt; DOCTRINE OF PRESUMED REVOCATION
d. transformation, alienation, or loss  Whenever it is established that the
of bequeathed property revokes a testator had in his possession or had
legacy of such property; ready access to the will, but upon his
e. act of unworthiness by an heir, death it cannot be found or located,
devisee/legatee revokes the presumption arises that it must
testamentary provisions in his have been revoked by him by an overt
favor; act.
f. if both spouses of the subsequent  Where it is shown that the will was in
marriage acted in bad faith, said custody of the testator after its
marriage shall be void ab initio execution, and subsequently, it was
and testamentary dispositions found among the testator’s effects
made by one in favor of the other after his death in such a state of
are revoked by operation of law mutilation, cancellation or obliteration
(Art. 44, Family Code); and as represents a sufficient act of
g. void ab initio or annulled revocation, it will be presumed in the
marriages revoke testamentary absence of evidence to the contrary,
dispositions made by one spouse in that such act was performed by the
favor of the other (Art. 50, Family testator with the intention of revoking
Code). the will.
2. By some will, codicil, or other writing,
executed as provided in case of wills, DOCTRINE OF DEPENDENT RELATIVE
which may either be: REVOCATION (ART 832)
a. Express – when there is a  A revocation subject to a condition
revocatory clause expressly does not revoke a will unless and until
revoking the previous will or a part the condition occurs. Thus, where a
thereof testator “revokes” a will with the

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

proven intention that he would operative when the codicil was

execute another will, his failure to executed.
validly make a latter will would permit
the allowance of the earlier will. REPUBLICATION REVIVAL

 Where the act of destruction is 1. Takes place by 1. Takes place by

connected with the making of another an act of the operation of law.
will so as fairly to raise the inference testator
that the testator meant the revocation
of the old to depend upon the efficacy 2. Corrects extrinsic 2. Restores a
and intrinsic revoked will
of the new disposition intended to be
defects.
substituted, the revocation will be
conditional and dependent upon the
REVIVAL
efficacy of the new disposition; and if
 The restoration to validity of a will
for any reason, the new will intended
previously revoked by operation of law
to be made as a substitute is
(implied revocation).
inoperative, the revocation fails and
the original will remains in full force
PRINCIPLE OF INSTANTER
(Vda. De Molo vs. Molo 90 Phil 37).
 The express revocation of the first will
renders it void because the revocatory
Revocation by mistake
clause of the second will, not being
 A revocation of a will based on a false
testamentary in character, operates to
cause or an illegal cause is null and
revoke the previous will instantly upon
void. Thus, where a testator by a
the execution of the will containing it.
codicil or later will, expressly
NOTE: In implied revocation, the first will
grounding such revocation on the
is not instantly revoked by the second will
assumption of fact which turns out to
because the inconsistent testamentary
be false, as where it is stated that the
dispositions of the latter do not take
legatees/devisees named therein are
effect immediately but only after the
dead, when in fact, they are living,
death of the testator.
the revocation does not take effect.
H. ALLOWANCE AND DISALLOWANCE OF
WILLS
G. REPUBLICATION AND REVIVAL OF
WILLS
PROBATE
 A special proceeding mandatorily
REPUBLICATION required for the purpose of
 The act of the testator whereby he establishing the validity of a will.
reproduces in a subsequent will  The statute of limitations is not
(express) the dispositions contained in applicable to probate of wills.
a previous will which is void as to its
form, or he executes a codicil Questions determinable by the probate
(constructive) to his will. court: (ICE)
 Its purpose is to cure the will of its 1. identity of the will;
formal defects. 2. testamentary capacity of the testator
at the time of the execution of the
NOTES: will; and
 To republish a will void as to its form, 3. due execution of the will.
all the dispositions must be
reproduced or copied in the new or  GENERAL RULE: In probate proceeding,
subsequent will; the court’s area of inquiry is limited to an
 To republish a will valid as to its form examination of, and resolution on the
but already revoked the execution of a extrinsic validity if the will, the due
codicil which makes reference to the execution thereof, the testatrix’s
revoked will is sufficient. testamentary capacity and the compliance
with the requisites or solemnities
Effects of Republication by virtue of a prescribed by law. The probate court
Codicil: cannot inquire into the intrinsic validity of
1. Codicil revives the previous will testamentary provisions.
2. The old will is republished as of the
date of the codicil— makes it speak, as  EXCEPTION: Practical considerations,
it were, from the new and later date. e.g. when the will is intrinsically void on
3. A will republished by a codicil is its face.
governed by a statute enacted to the
execution of the will, but which was
CIVIL LAW COMMITTEE
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John
Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
San Beda College of Law
10

MEMORY AID IN CIVIL LAW

 In Nuguid vs Nuguid (17 SCRA 449), the 4. Will was procured by undue and
Supreme Court held that, if the case improper pressure and influence, on
were to be remanded for probate of the part of the beneficiary or of some
the will, nothing will be gained. On other person;
the contrary, this litigation would be 5. Signature of the testator was procured
protracted. And for aught that by fraud;
appears in the record, in the event of 6. Testator acted by mistake or did not
probate or if the court rejects the intend that the instrument he signed
will, probability exists that the case should be his will at the time of
will come up once again before us on affixing his signature thereto.
the same issue of the intrinsic validity NOTE: GROUNDS ARE EXCLUSIVE.
or nullity of the will. RESULT: waste of
time, effort, expense, plus added
anxiety.  Fair arguments, persuasion, appeal to
emotions, and entreaties which,
 In Nepomuceno vs CA (139 SCRA 207), without fraud or deceit or actual
the Court ruled that “the court can coercion, compulsion or restraint do
inquire as to the intrinsic validity of not constitute undue influence
the will because there was an express sufficient to invalidate a will. (Barreto
statement that the beneficiary was a vs. Reyes 98 Phil 996)
mistress.  Burden is on the person challenging
NOTES: the will to show that such influence
 Criminal action will not lie against the was exerted at the time of its
forger of a will which had been duly execution.
admitted to probate by a court of  To make a case of UNDUE INFLUENCE,
competent jurisdiction. (Mercado vs. the free agency of the testator must
Santos 66 Phil. 215) be shown to have been destroyed; but
to establish a ground of contest based
 The fact that the will has been on FRAUD, free agency of the testator
allowed without opposition and the need not be shown to have been
order allowing the same has become destroyed.
final and executory is not a bar to the  Allegations of fraud and undue
presentation of a codicil, provided it influence are mutually repugnant and
complies with all the formalities for exclude each other; their joining as
executing a will. It is not necessary grounds for opposing probate shows
that the will and codicil be probated absence of definite evidence against
together as the codicil may be the validity of the will (Icasiano vs.
concealed by an interested party. Icasiano 11 SCRA 422)
They may be probated one after the
other. (Macam vs. Gatmaitan 60 Phil REVOCATION DISALLOWANCE
358)
1. voluntary act of 1. given by judicial
 When a will is declared void because it the testator. decree.
has not been executed in accordance
with the formalities required by law, 2. with or without 2. must always be
cause. for a legal cause.
but one of the intestate heirs, after
the settlement of the debts of the
3. may be partial or 3. always total
deceased, pays a legacy in compliance total. except: when the
with a clause in the defective will, the ground of fraud or
payment is effective and irrevocable influence for
(Article 1430, NCC; Natural example affects
Obligations). only certain
portions of the
Grounds for Disallowance of a Will (ART will.
839)
1. Formalities required by law have not I. INSTITUTION OF HEIRS
been complied with; (ARTS. 840-856)
2. Testator was insane, or otherwise
incapable of making a will, at the time INSTITUTION
of its execution;  An act by virtue of which a testator
3. Will was executed through force or designates in his will the person or
under duress, or the influence of fear, persons who are to succeed him in his
or threats; property and transmissible rights and
obligations. (Art 840)

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

 The proper test in order to determine bequests, such universal institution of

the validity of an institution of heir is petitioner, by itself, is void. Intestate
the possibility of finally ascertaining succession ensues. (Nuguid vs.
the identity of the instituted heir by Nuguid, et al. 17 SCRA 449)
intrinsic or extrinsic evidence.
PRETERITION (ART. 854)
PRESUMPTIONS  Omission in the testator’s will of one,
1. Presumption of Equality – Heirs some, or all of the compulsory heirs in
instituted without designation of the direct line, whether living at the
shares shall inherit in equal parts. time of the execution of the will or
This is limited only to the case where born after the death of the testator.
all of the heirs are of the same class or
juridical condition, and where there Requisites:
are compulsory heirs among the heirs 1. The heir omitted must be a
instituted, it should be applied only to compulsory heir in the direct line;
the disposable free portion. 2. The omission must be complete and
2. Presumption of Individuality – When total in character; and
the testator institutes some heirs 3. The compulsory heir omitted must
individually and others collectively, survive the testator.
those collectively designated shall be
considered as individually instituted,  There is no total omission when:
unless it clearly appears that the a. A devise/legacy has been given to
intention of the testator was the heir by the testator
otherwise. b. A donation inter vivos has been
3. Presumption of Simultaneity – when previously given to the heir by the
the testator calls to the succession a testator; or
person and his children, they are all c. Anything is left from the
deemed to have been instituted inheritance which the heir may get
simultaneously and not successively. by way of intestacy.

INSTITUTION BASED ON A FALSE CAUSE NOTE: In the above cases, the remedy
(Article 850) of the heir is completion of legitime
GENERAL RULE: The statement of a false under Art. 906, in case the value of
cause for the institution of an heir shall be the property received is less than the
considered as not written. value of the legitime.
 Reason: Generosity of the testator is
the real cause of the testamentary Effects of Preterition:
disposition. 1. It annuls the institution of heir;
EXCEPTION: If it appears from the face 2. The devises and legacies are valid
insofar as they are not inofficious; and
of the will that the testator would not
3. If the omitted compulsory heir should
have made the institution had he known
die before the testator, the institution
the falsity of the cause.
shall be effectual, without prejudice
 Example: Where the person instituted
to the right of representation.
is a total stranger to the testator, it is
NOTE: In case of omission without
obvious that the real cause of the
preterition, the rule in Art. 855 should be
testamentary disposition is not the
followed. The suggested alternate
generosity of the testator but the fact
phrasing of Dr. Tolentino to the said
itself which turned out to be false.
article is: “The share of the compulsory
heir omitted in a will must be first taken
REQUISITES FOR THE ANNULMENT OF
from the part of the estate not disposed
INSTITUTION OF HEIRS:
of by the will, if any; if that is not
1. cause of institution of heirs must be
sufficient, so much as may be necessary
stated in will;
must be taken proportionally from the
2. cause must be shown to be false;
shares of the heirs given to them by will.”
3. it must appear from the face of the
will that the testator would not have
made the institution had he known the PRETERITION DISINHERITANCE
falsity of the cause.
1. deprivation of a 1. deprivation of a
compulsory heir of compulsory heir of
 Where the one-sentence will his legitime is tacit his legitime is
institutes the petitioner as the sole, express.
universal heir and preterits the
parents of the testatrix, and it 2. may be voluntary 2. always
contains no specific legacies or but the law voluntary.

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

presumes that it is instituted (Tolentino). It may be

involuntary considered as a subsidiary and
conditional institution.
3. law presumes 3. done with a
that there has been legal cause. Kinds:
merely an oversight
or mistake on the
1. Simple or Common (that which takes
part of the testator. place when the testator designates
one or more persons to substitute the
4. omitted heir gets 4. if disinheritance heirs/s instituted in case such heir/s
not only his legitime is not lawful, should die before him, or should not
but also his share in compulsory heir is wish, or should be incapacitated to
the free portion not merely restored to accept the inheritance)
disposed of by way his legitime. 2. Brief or Compendious: brief (there
of legacies/ devises. are two or more persons designated by
the testator to substitute for only one
 Where the deceased left no heir), compendious (one heir is
descendants, legitimate or designated to take the place of two or
illegitimate, but she left forced heirs more heirs)
in the direct ascending line—her
parents, and her holographic will does  Instances when substitution takes
not explicitly disinherit them but place:
simply omits them altogether, the a. instituted heir predeceases the
case is one of preterition of parents, testator;
not a case of ineffective b. incapacity of the instituted heir to
disinheritance. (Nuguid vs. Nuguid 17 succeed from the testator; and
SCRA 449) c. repudiation of the inheritance.
NOTE: Preterition of the surviving spouse Effect of substitution:
(SS) does not entirely annul the institution General rule: once the substitution
of the heir since SS is not a compulsory has taken place, the substitute shall
heir in the direct line. However, since not only take over the share that
Article 842 protects the legitime of the SS, would have passed to the instituted
the institution is partially annulled by heir, but he shall be subject to the
reducing the rights of the instituted heir same charges and conditions imposed
to the extent necessary to cover the upon such instituted heir.
legitime of SS. (Tolentino) Exceptions:
(1) When the testator has expressly to
EFFECT OF PREDECEASE the contrary;
--an heir who dies before the testator shall (2) When the charges or conditions are
transmit no right to his own heirs (rule is personally applicable only to the heir
absolute with respect to a voluntary heir) instituted.
--what is transmitted to the
representatives of compulsory heir is his 3. Fideicommissary
right to the legitime and not to the free Requisites:
portion a. First heir (fiduciary) called to the
EFFECT OF INCAPACITY succession.
--A voluntary heir who is incapacitated to b. An obligation clearly imposed upon
succeed from testator shall transmit no such first heir to preserve the property
right to his own heirs. and to transmit it to the second heir.
--compulsory heir may be represented, but c. Second heir (fideicommissary) to
only with respect to his legitime whom the property is transmitted by
the first heir.
EFFECT OF REPUDIATION  Without the obligation clearly
--whether voluntary or compulsory, the imposing upon the first heir the
heir who repudiates his inheritance cannot preservation of the property and its
transmit any right to his own heirs. transmission to the second heir, there
is no fideicommissary substitution
J. SUBSTITUTION OF HEIRS (Rabadilla vs. CA 334 SCRA 522)
(ARTS 857-870)
NOTE: Pending transmission of property,
SUBSTITUTION the fiduciary is entitled to all the rights of
 The act by which the testator a usufructuary, although the
designates the person or persons to fideicommissary is entitled to all the rights
take the place of the heir or heirs first of a naked owner.

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

marriage, she loses her right to said

Limitations: inheritance.
a. Substitution must not go beyond one
degree from the heir originally NOTE: However, the following relative
instituted. conditions regarding marriage have been
b. “Degree” means degree of considered as valid and binding:
relationship. a. generic condition to contract
c. Fiduciary and fideicommissary must be marriage;
living at the time of the death of the b. specific condition to contract
testator. marriage with a determinate
d. Substitution must not burden the person; and
legitime of compulsory heirs. c. specific condition not to contract
e. Substitution must be made expressly. marriage with a determinate
 A fideicommissary substitution is void person.
if the first heir is not related in the 1 st
degree to the second heir (Ramirez vs. 5. Any disposition made upon the
Vda. De Ramirez 111 SCRA 704) condition that the heir shall make
some provisions in his will in favor of
K. CONDITIONAL, MODAL TESTAMENTARY the testator or of any other person
DISPOSITIONS, AND TESTAMENTARY shall be void (disposicion
DISPOSITIONS WITH A TERM (ART 871-885) captatoria).
6. Conditions imposed by the testator
 GENERAL RULE: The institution of an upon the heirs shall be governed by
heir may be made 1) conditionally, 2) for a the rules established for conditional
term, or 3) for a certain purpose or cause obligations in all matters not provided
(modal). Conditions, terms, and modes for by the law on succession.
however, are not presumed; they must be
clearly expressed in the will. The Kinds of Conditions
condition must fairly appear from the 1. Potestative Condition – depends
language of the will. Otherwise, it is not exclusively upon the will of the heir,
binding. devisee, or legatee, and must be
performed by him personally.
 LIMITATIONS: 2. Causal Condition –depends upon the
1. The testator cannot impose any will of the heir, devisee, or legatee,
charge, burden, encumbrance, but upon the will of a third person.
condition, or substitution whatsoever 3. Mixed – depends jointly upon the will
upon the legitime of compulsory heirs. of the heir, devisee, or legatee and
2. Impossible conditions and those upon chance and/or will of a third
contrary to law or good customs are person.
presumed to have been imposed
erroneously or through oversight, thus, Fulfillment of Conditions:
are considered as not imposed. 1. Potestative Conditions must be
3. An absolute condition not to contract fulfilled after the death of the
a first marriage is always void and will testator (except when it has already
be considered as not written. been fulfilled and is of such nature
4. An absolute condition not to contract that it cannot be repeated);
a subsequent marriage is generally 2. Causal or mixed conditions may be
void, unless imposed upon a widow or fulfilled either before or after such
widower by the deceased spouse or by death, unless the testator has
the latter’s ascendants or provided otherwise.
descendants. Even so, however, the
legitime of the surviving spouse
cannot be impaired.
MODAL INSTITUTION (INSTITUCION SUB
 An absolute condition not to contract MODO)
marriage when validly imposed is  Attachment by the testator to an
resolutory in character. Consequently, institution of heir, or to a devise or
if the testator institutes his wife as legacy, of a statement of the:
heir subject to the condition that she a. object of the institution;
will never marry again, she b. application of the property left by
immediately acquires a right to the testator; or
inheritance upon the death of c. charge imposed by him.
testator, but if she violates the
condition by contracting a 2nd NOTES:

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

 When in doubt as to whether there is a  Those for whom the legitime is

condition or merely a mode, consider reserved by law, and who succeed
the same as mode. whether the testator likes it or not.
 When in doubt as to whether there is a They cannot be deprived by the
mode or merely a suggestion, consider testator of their legitime except by
same only as a suggestion. disinheritance properly effected.
 The ‘condition’ suspends but does not
Kinds of Compulsory Heirs:
obligate; the ‘mode’ obligates but
1. Primary – those who have precedence
does not suspend (for he who inherits
over and exclude other CH. E.g. LCD.
with a mode is already an heir; one
2. Secondary – those who succeed only
who inherits conditionally is not yet an
in the absence of the primary CH. E.g.
heir)
LPA or IP.
3. Concurring – those who succeed
DOCTRINE of CONSTRUCTIVE
together with the primary or
FULFILLMENT: When without the fault of
secondary CH. E.g. ICD and SS.
the fault of the heir, an institucion sub
modo cannot take effect in the exact
manner stated by the testator, it shall be If the testator is If the testator is
complied with in a manner most analogous a LEGITIMATE an ILLEGITIMATE
to and in conformity with his wishes. person person

1. Legitimate 1. Legitimate
NOTE: children and children and
 If the condition is casual, the doctrine descendants descendants
is not applicable since the fulfillment (LCD) (LCD)
of the event which constitutes the
condition is independent of the will of 2. In default of 2. Illegitimate
the heir, devisee/legatee. If the the foregoing, children and
condition is potestative or mixed, the legitimate descendants
doctrine is applicable. parents and (ICD)
ascendants
(LPA)
L. LEGITIMES (ARTS 886 – 914)
LEGITIME 3. Surviving 3. In default of
 That part of the testator’s property spouse (SS) the foregoing,
which he cannot dispose of because illegitimate
the law has reserved it for certain parents only
heirs who are, therefore, called (IP)
compulsory heirs.
4. Illegitimate 4. Surviving
children and spouse (SS)
descendants
(ICD)
 The course of action to enforce a
NOTES:
legitime accrues upon the death of the
donor-decedent since it is only then  See Sections 17 & 18 of R.A. 8552.
that the net estate may be ascertained  By force of the Family Code, adopted
and on which basis, the legitime may children are deemed legitimate
be determined. (Imperial vs. CA 316 children of the adopters.
SCRA 313)  By force of the Family Code, IC
without distinction and so long as their
NOTE: One half of the estate is always filiation is duly established or proved
reserved for the primary or secondary in accordance with law, are each
compulsory heirs. The other half is what is entitled to 1/2 of the legitime of a LC,
termed under the NCC as the “free thus abrogating the 5:4 ratio between
portion” from which the legitime of the “natural” and “non-natural” IC.
concurring compulsory heirs are taken.
This “free portion” is different from the RULES:
“disposable free portion” over which the 1. Direct descending line
testator has testamentary control. The a. Rule of preference between lines
“disposable free portion” is that which b. Rule of proximity
remains after the legitime has been c. Right of representation ad
covered. infinitum in case of predecease,
incapacity, or disinheritance (LC:
COMPULSORY HEIRS (CH) LD only; IC: both LD and ID)

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

d. If all the LC repudiate their IC 1/3

legitime, the next generation of
LD succeed in their own right
2. Direct ascending line SS ½ 1/3 if
a. Rule of division by lines marriage is in
b. Rule of equal division articulo
mortis and
3. Non-impairment of legitime
deceased
spouse dies
TABLE OF LEGITIMES within 3 mos.
SURVIVOR LEGITIME NOTES after the
marriage.
LC ½ Divide by the
# of LC, IP ½
whether they
survive alone
or with IP -excluded- Children
concurring Any child It depends inherit in the
CH. amounts
established in
1 LC ½ the foregoing
SS ¼ rules.

2 or more ½ IP ¼ Only the

LC equal to 1 SS ¼ parents are of
SS LC IC are
included.
LC ½ Grandparents
IC ½ of 1 LC and other
ascendants
LC ½ All the are excluded.
SS ¼ concurring CH
IC ½ of 1 LC get from the
half free
portion, the
share of the STEPS IN DETERMINING THE LEGITIME OF
SS having COMPULSORY HEIRS:
preference 1. Determination of the gross value of
over that of the estate at the time of the death of
the IC, whose
share may
the testator;
suffer 2. Determination of all debts and
reduction pro charges which are chargeable against
rata because the estate;
there is no 3. Determination of the net value of the
preference estate by deducting all the debts and
among charges from the gross value of the
themselves. estate;
4. Collation or addition of the value of
LPA ½ Whether they
survive alone
all donations inter vivos to the net
or with value of the estate;
concurring 5. Determination of the amount of the
CH. legitime from the total thus found;
6. Imputation of the value of all
LPA ½ IC succeed in donations inter vivos made to
IC ¼ the ¼ in compulsory heirs against their legitime
equal shares. and of the value of all donations inter
vivos made to strangers against the
LPA ½
disposable free portion and restoration
SS ¼
to the hereditary estate if the
LPA ½ donation is inofficious; and
SS 1/8 7. Distribution of the residue of the
IC ¼ estate in accordance with the will of
the testator
IC ½ Divide equally
among the IC. COLLATION
1. Fictitious mathematical process of
adding the value of the thing donated
SS 1/3

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

to the net value of the hereditary 1. Originator – the ascendant, or brother

estate (Art. 908 and Arts. 1061-1077). or sister from whom the propositus
2. Act of charging or imputing such value had acquired the property by
against the legitime of the compulsory gratuitous title (e.g. donation,
heir to whom the thing was donated remission, testate or intestate
(Arts. 1061-1077). succession);
3. Actual act of restoring to the 2. Propositus – the descendant who died
hereditary estate that part of the and from whose death the reservista in
donation which is inofficious in order turn had acquired the property by
not to impair the legitime of operation of law (e.g. by way of
compulsory heirs. legitime or intestate succession). The
so-called “arbiter of the fate of the
RESERVA TRONCAL (ART 891) reserva troncal.”
 The reservation by virtue of which an 3. Reservista – the ascendant, not
ascendant who inherits from his belonging to the line from which the
descendant any property which the property came (Justice Vitug) that is
latter may have acquired by gratuitous the only compulsory heir and is obliged
title from another ascendant or a to reserve the property.
brother or sister, is obliged to reserve NOTE: Dr. Tolentino is of the view that
such property for the benefit of even if the reservista and the originator
relatives who are within the 3rd degree belong to the same line, there is still an
and who belong to the line from which obligation to reserve.
such property came. 4. Reservatarios – the relatives of the
 It constitutes as an exception to both propositus within the 3rd degree and
the system of legitime and the order who belong to the line from which the
of intestate succession. property came and for whose benefit
Purposes: the reservation is constituted. They
1. To reserve certain property in favor of must be related by blood not only to
certain persons; the propositus but also to the
2. To prevent persons outside a family originator.
from acquiring, by some chance or
accident, property which otherwise NOTE: All personal elements must be
would have remained with the said joined by bonds of legitimate
family; relationship.
3. To maintain a separation between
paternal and maternal lines. NOTE: In determining the right of the
NOTE: Considering the rationale for reservatarios over the reservable property,
reserva troncal which is to ultimately there are 2 events to consider:
revert ownership of property that 1. Death of propositus: all qualified
originally belongs to a line of relatives but reservatarios acquire an inchoate
which by force of law passes to a different right. Reservista owns the property
line, the reserva would have no reason to subject to a resolutory condition.
arise where the ascendants who acquire 2. Death of reservista: surviving
the property themselves belong to the line reservatarios acquire a perfect right.
of relatives from which the property was,
in turn, acquired by the descendant. NOTE: The NCC did not provide for the
rules on how the reservatarios would
Requisites: succeed to the reservista. However, the
1. The property should have been following rules on intestacy have been
acquired by operation of law by an consistently applied:
ascendant (reservista) from his a. Rule of preference between lines
descendant (propositus) upon the b. Rule of proximity
death of the latter. c. Right of representation (provided
2. The property should have been that the representative is a
previously acquired by gratuitous title relative of the descendant-
by the descendant (propositus) from propositus within 3rd degree, and
another ascendant or from a brother that he belongs to the line from
or sister (originator). which the reservable property
3. The descendant (propositus) should came)
have died without any legitimate issue d. “Full blood/double share” rule in
in the direct descending line who Art. 1006
could inherit from him.
 Property subject to reservation: must
Personal elements: be the same property which the

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

reservista had acquired by operation 3. Loss of the reservable property for

of law from propositus upon the death causes not due to the fault or
of the latter and which the latter, in negligence of the reservista.
turn had acquired by gratuitous title 4. Waiver or renunciation by the
during his lifetime from another reservatarios;
ascendant, brother/sister. 5. Prescription of the right of the
reservatarios, when the reservista
Obligations of Reservista: holds the property adversely against
(1) To make an inventory of all them in the concept of an absolute
reservable property; owner;
(2) To appraise value of all reservable 6. Registration by the reservista of the
movable property; property as free property under the
(3) To annotate in Registry of Land Registration Act
property the reservable character
of all reservable immovable M. DISINHERITANCE (ART 915 – 923)
property;  A testamentary disposition by which a
(4) To secure by mortgage (a) person is deprived of, or excluded
restitution of movables not from, the inheritance to which he has
alienated, (b) payment of a right.
damages caused by his fault or  A disinheritance properly effected
negligence, (c) return of price totally excludes the disinherited heir
received for movables alienated from the inheritance. The disinherited
and (d) payment of value of heir is deprived not only of the
immovable alienated. legitime but also of such part of the
free portion that would have passed to
 A reservatorio may dispose of his him by a previous will (which is
expentancy to the reservable property revoked, as inconsistent with, the
during pendency of the reserve in its subsequent disinheritance) or by
uncertain and conditional form. If he intestate succession.
dies before the reservista, he has not
transmitted anything, but if he
survives such reservista, the Requisites:
transmission shall become effective. 1. Effected only through a valid will;
2. For a cause expressly stated by law;
 A will may prevent the constitution of 3. Cause must be stated in the will itself;
a reserva. In case of testate 4. Cause must be certain and true;
succession, only the legitime passes by 5. Unconditional;
operation of law. The propositus may, 6. Total; and
by will, opt to give the legitime of his 7. The heir disinherited must be
ascendant without giving to the latter designated in such a manner that
properties he had acquired by there can be no doubt as to his
gratuitous title from another identity.
ascendant, or brother or sister. In such
case, a reserva troncal is avoided. Effects of Disinheritance:
However, if the ascendant was not 1. Deprivation of the compulsory heir
disentitled in the will to receive such who is disinherited of any participation
properties, the reserva minima rule in the inheritance including the
(proportional reserva) should be followed. legitime.
The rule holds that all property passing to 2. The children/descendants of the
the reservista must be considered as person disinherited shall take his or
passing partly by operation of law and her place and shall preserve the rights
partly by will of the propositus. Thus, one of compulsory heirs with respect to
half of the properties acquired by the legitime.
gratuitous title should be reservable, and 3. The disinherited parent shall not have
the other half should be free. the usufruct or administration of the
property which constitutes the
Causes for Extinguishment of Reserva legitime.
Troncal:
1. Death of reservatarios; IMPERFECT DISINHERITANCE
2. Death of all relatives of propositus  A disinheritance which does not have
within the 3rd degree who belong to one or more of the essential requisites
the line from which the property for its validity.
came;  Effects:

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

1. If testator had made disposition of the concubinage with the spouse of

entire estate: annulment of the the testator;
testamentary dispositions only in so far b. Maltreatment of the testator by
as they prejudice the legitime of the word or deed by the
person disinherited; does not affect child/descendant;
the dispositions of the testator with c. When the child/descendant leads a
respect to the free portion. dishonorable or disgraceful life;
2. If testator did not dispose of the free Conviction of a crime which carries
portion: compulsory heir is given all with it a penalty of civil
that he is entitled to receive as if the interdiction.
disinheritance has not been made,
without prejudice to lawful
dispositions made by the testator in
favor of others.
3. Devises, legacies and other 2. Parents/Ascendants:
testamentary dispositions shall be a. When the parents have abandoned
valid to such extent as will not impair their children or induced their
the legitime. daughters to live a corrupt or
immoral life, or attempted against
their virtue;
b. When the parent/ascendant has
IMPERFECT PRETERITION been convicted of adultery or
DISINHERITANCE concubinage with the spouse of
the testator;
1. The person 1. The person c. Loss of parental authority for
disinherited may be omitted must be a causes specified in the Code; and
any compulsory heir compulsory heir in d. Attempt by one of the parents
the direct line against the life of the other, unless
there has been reconciliation
2. Always express 2. Always implied
between them.
3.Always intentional 3. May be 3. Spouse:
intentional or a. When the spouse has given cause
unintentional for legal separation; When the
spouse has given grounds for the
4. Effect: Partial 4. Effect: Total loss of parental authority.
annulment of annulment of
institution of heirs institution of heirs Revocation of Disinheritance:
1. Reconciliation;
Common Causes for Disinheritance of 2. Subsequent institution of the
children or descendants, parents or disinherited heir; and
ascendants, and spouse: 3. Nullity of the will which contains the
1. When the heir has been found guilty of disinheritance.
an attempt against the life of the
testator, his/her descendants or NOTE: Once disinheritance has been
ascendants, and spouse in case of revoked or rendered ineffectual, it cannot
children and parents; be renewed except for causes subsequent
2. When the heir has accused the to the revocation or based on new
testator of a crime for which the law grounds.
prescribes imprisonment for 6 years or
more, if the accusation has been found RECONCILIATION
groundless;  It is the resumption of genuine cordial
3. When the heir by fraud, violence, relationship between the testator and
intimidation, or undue influence the disinherited heir, approximating
causes the testator to make a will or that which prevailed before the
to change one already made; testator learned of the cause for
4. Refusal without justifiable cause to disinheritance, reciprocally manifested
support the testator who disinherits by their actions subsequent to the act
such heir. of disinheritance.
 A subsequent reconciliation between
Peculiar Causes for Disinheritance the offender and the offended person
1. Children/Descendants: deprives the latter of the right to
a. When the child/descendant has disinherit, and renders ineffectual any
been convicted of adultery or disinheritance that may have been
made. (Art. 922)

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

1. Belonging to the
testator at the time of Effective
the execution of the
will until his death

2. Belonging to the
NOTES:
testator at the time of Revoked
 Mere civility which may characterize the execution of the
their relationship, a conduct that is will but alienated in
naturally expected of every decent favor of a 3rd person
person, is not enough.
 In order to be effective, the testator 3. Belonging to the No revocation.
must pardon the disinherited heir. testator at the time of There is a clear
the execution of the intention to
Such pardon must specifically refer to will but alienated in comply with
the heir and to the acts causing the favor of the legacy or devise.
disinheritance. The heir must accept legatee/devisee
the pardon. gratuitously
 No particular form is required. It may
be made expressly or tacitly. 4. Belonging to the Legatee/devisee
testator at the time of can demand
NOTE: Where the cause for disinheritance the execution of the reimbursement
will but alienated in from the heir or
is likewise a ground for unworthiness to
favor of the legatee or estate
succeed, what is the effect of a devisee onerously
subsequent reconciliation upon the heir’s
capacity to succeed? 5. Not belonging to the
1. If disinheritance has been made: Rule testator at the time Effective
on reconciliation applies. The the will is executed but
disinheritance becomes ineffective. he has ordered that the
2. If disinheritance has not been made: thing be acquired in
Rule on reconciliation does not apply. order that it be given
The heir continues to be incapacitated to the legatee/devisee
to succeed unless pardoned by the
6. Not belonging to the
testator under Art. 1033. The law testator at the time Void
effects the disinheritance. the will is executed
and the testator
N. LEGACIES AND DEVISES (ARTS. 924 – erroneously believed
959) that the thing
pertained to him
Persons charged with legacies and
devises: 7. Not belonging to the Effective
(1) compulsory heir; testator at the time
the will is executed but
(2) voluntary heir;
afterwards becomes his
(3) legatee or devisee; by whatever title
(4) estate
8. Already belonged to
NOTES: the legatee/devisee at Ineffective
 If the will is silent with regard to the the time of the
person who shall pay or deliver the execution of the will
legacy/devise, there is a presumption even though another
person may have
that such legacy or devise constitutes
interest therein
a charge against the decedent’s
estate. 9. Already belonged to
 Since legacies and devises are to be the legatee or devisee Ineffective
taken from the disposable free portion at the time of the
of the estate, thus, the provisions on execution of the will
institution of heirs are generally even though it may
applicable to them. have been
subsequently alienated
by him

STATUS OF EFFECT ON THE

PROPERTY GIVEN BY LEGACY/DEVISE
LEGACY/DEVISE

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

10.Testator had Legatee/devisee  When the question of reduction is

knowledge that the can claim nothing exclusively among legatees and
thing bequeathed by virtue of the
devisees themselves, Article 950
belonged to a third legacy/devise
person and the governs; but when there is a conflict
legatee/devisee between compulsory heirs and
acquired the property devisees and legatees, Article 911
gratuitously after the applies.
execution of the will
GROUNDS FOR REVOCATION OF LEGACIES
11.Testator had Legatee/devisee AND DEVISES (ART 957)
knowledge that the can demand 1. Testator transforms the thing
thing bequeathed reimbursement bequeathed in such a manner that it
belonged to a third from the heir or
person and the estate
does not retain either the form or the
legatee/devisee denomination it had.
acquired the property
by onerous title 2. Testator by any title or for any cause
alienates the thing bequeathed, or any
part thereof, it being understood that
ART. 911 ART. 950 in the latter case the legacy or devise
shall be without effect only with
Order of Order of preference: respect to the part alienated.
preference: (RPSESO) Except: when the thing should again
(LIPO) belong to the testator after alienation.
1. Legitime of 1. Remuneratory L/D 3. Thing bequeathed is totally lost during
compulsory 2.Preferential L/D the lifetime of the testator, or after
heirs 3.L for support
2. Donations inter 4.L for education
his death without the heirs fault
vivos 5.L/D of a specific,
3. Preferential determinate thing 4. Other causes: nullity of the will;
legacies or which forms a part noncompliance with suspensive
devices of the estate conditions affecting the bequests; sale
4. All other All others pro rata of the thing to pay the debts of the
legacies or deceased during the settlement of his
devices pro estate.
rata
NOTE: LIST IS NOT EXCLUSIVE

Application: Application: II. LEGAL OR INTESTATE

SUCCESSION
(1) When the (1) When there are no
reduction is compulsory heirs and
necessary to the entire estate is  That which is effected by operation of
preserve the distributed by the law in the absence or default of a will.
legitime of testator as legacies
compulsory heirs or devises; or CAUSES OF INTESTACY
from impairment 1. If a person dies without a will, or with
whether there are a void will, or one which has
subsequently lost its validity;
donations inter (2) When there are 2. Absence of an institution of heir;
vivos or not; or compulsory heirs but
3. Partial institution of heir. In such case,
(2) When, their legitime has
although, the already been intestacy takes place as to the
legitime has been provided for by the undisposed portion (mixed succession);
preserved by the testator and there 4. Non-fulfillment of suspensive condition
testator himself are no donations attached to the institution of heir;
there are inter vivos. 5. Predecease of the instituted heir;
donations inter 6. Repudiation by the instituted heir;
vivos. 7. Incapacity of instituted heir;
8. Preterition. Intestacy may be total or
partial depending on whether or not
NOTES: there are legacies/devises;
 In case of reduction in the above 9. Fulfillment of resolutory condition;
cases, the inverse order of payment 10. Expiration of term or period of
should be followed. institution;

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

11. Non-compliance or impossibility of

compliance with the will. B. RELATIONSHIP (ARTS. 963 – 969)
1. Number of generations determines
NOTE: In all cases where there has been proximity.
an institution of heir, follow the I.S.R.A.I. 2. Each generation forms a degree.
order of Justice Paras. If the Institution 3. A series of degrees forms a line.
fails, Substitution occurs. If there is no 4. A line may be direct or collateral. A
substitute, the right of Representation direct line is that constituted by the
applies in the direct descending line to the series of degrees among ascendants
legitime if the vacancy is caused by and descendants (ascending and
predecease, incapacity, or disinheritance. descending).
The right of Accretion applies to the free 5. A collateral line is that constituted by
portion when the requisites in Art. 1016 the series of degrees among persons
are present. If there is no substitute, and who are not ascendants or
the right of Representation or Accretion descendants, but who come from a
does not apply, the rules on Intestate common ancestor.
succession shall take over. 6. Full blood: same father and mother;
half blood: only one of either parent is
A. RULES the same.
1. Rule of Preference between lines 7. In adoption, the legal filiation is
 Those in the direct descending line personal and exists only between the
shall exclude those in the direct adopter and the adopted. The adopted
ascending and collateral lines, and is deemed a legitimate child of the
those in the direct ascending line adopter (AP), but still remains as an
shall, in turn, exclude those in the intestate heir of his natural parents
collateral line. and other blood relatives.
2. Rule of Proximity
 The relative nearest in degree C. RIGHT OF REPRESENTATION (RR)
excludes the more distant ones, (ARTS. 970 – 977)
saving the right of representation  A right created by fiction of law, by
when it properly takes place. virtue of which the representative is
 This rule is subject to the rule of raised to the place and degree of the
preference between lines. person represented, and acquires the
3. Rule of Equal Division rights which the latter would have if
 Relatives in the same degree shall he were living or if he could have
inherit in equal shares. inherited. The representative is called
 EXCEPTIONS: to the succession by the law not by the
a) Division in the ascending line person represented. He succeeds the
(between paternal and maternal one whom the person represented
grandparents); would have succeeded.
b) Division among brothers and sisters,
some of whom are of the full and NOTES:
others of half blood; and  In the direct line, representation takes
c) Division In cases where the right of place ad infinitum in the direct
representation takes place. descending line, never in the
NOTE: This rule is subject to the rule ascending.
of preference between lines.  In the collateral line, representation
4. Rule of Barrier between the legitimate takes place only in favor of the
family and the illegitimate family children of brothers or sisters
 The illegitimate family cannot (nephews and nieces), whether of the
inherit by intestate succession full or half-blood, and only if they
from the legitimate family and concur with at least 1 uncle or aunt.
vice-versa.
5. Rule of Double Share for full blood 1. Testamentary Succession
collaterals a) When a compulsory heir in the
 When full and half-blood brothers direct descending line had
or sisters, nephews or nieces, predeceased the testator and was
survive, the full blood shall take a survived by his children or
portion in the inheritance double descendants.
that of the half-blood. b) When a compulsory heir in the
direct descending line is excluded
NOTE: In case of a disposition made in from the inheritance due to
general terms under Article 959, only the incapacity or unworthiness and he
Rule of Proximity applies. has children or descendants.
CIVIL LAW COMMITTEE
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John
Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
San Beda College of Law
22

MEMORY AID IN CIVIL LAW

c) When a compulsory heir in the 5. Brothers and sisters, nephews and

direct descending line is nieces (BS/NN)
disinherited and he has children or 6. State
descendants; representation
covers only the legitime.
d) A legatee/devisee who died after ORDER OF CONCURRENCE
the death of the testator may be 1. LCD, ICD, and SS
represented by his heirs. 2. LPA, ICD, and SS
3. ICD and SS
2. Intestate Succession 4. SS and IP
a) When a legal heir in the direct 5. BS/NN and SS
descending line had predeceased 6. C5 (alone)
the decedent and was survived by 7. State (alone)
his children or descendants.
b) When a legal heir in the direct
descending line is excluded from TABLE OF INTESTATE SHARES
the inheritance due to incapacity
or unworthiness and he has SURVIVOR INTESTATE SHARE
children or descendants. Any class Entire estate
c) When brothers or sisters had alone
predeceased the decedent and 1 LC 1/2
they had children or descendants. SS 1/2
(Diongson vs. Cinco, 74
d) When illegitimate children SCRA 118)
represent their illegitimate 2 or more LC Consider SS as 1 LC,
parents who already died in the SS then divide estate by
estate of their grandparents. total number.
e) When nephews and nieces inherit LPA 1/2
together with their uncles and SS 1/2
aunts in representation of their LPA 1/2
deceased parents who are the SS 1/4
brothers or sisters of said uncles IC 1/4
and aunts. IP 1/2
SS 1/2
(The law is silent. Apply
D. INTESTATE OR LEGAL HEIRS
concurrence theory.)
 Those who are called by law to the SS 1/2
succession either in the absence of a BS/NN 1/2
will or of qualified heirs, and who are 1 LC First, satisfy legitimes.
deemed called based on the presumed SS Estate would be
will of the decedent. IC insufficient. Reduction
must be made according
REGULAR ORDER OF SUCCESSION to the rules on
(Decedent is a legitimate person): legitimes. The legitimes
1. Legitimate children or descendants of LCD and SS shall
always be first satisfied
(LCD)
in preference to the ICD.
2. Legitimate parents or ascendants (LPA) 2 or more LC First, satisfy legitimes.
3. Illegitimate children or descendants SS There would be an
(ICD) IC excess in the estate.
4. Surviving spouse (SS) Distribute such excess in
5. Brothers and sisters, nephews and the proportion 1:2:2, in
nieces (BS/NN) accordance with the
6. Other collateral relatives within the 5th concurrence theory.
degree (C5)
7. State
ORDER OF CONCURRENCE IN THE CASE
OF ADOPTED CHILD
SURVIVORS SHARE
IRREGULAR ORDER OF SUCCESSION 1. LPA/IP ½
(Decedent is an illegitimate person): AP ½
1. Legitimate children or descendants
2. LPA/IP
(LCD) AP ½
2. Illegitimate children or descendants SS
(ICD) ½
3. Illegitimate parents (IP)
4. Surviving spouse (SS) 3. LPA ½
CIVIL LAW COMMITTEE
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John
Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
San Beda College of Law
23

MEMORY AID IN CIVIL LAW

AP 2. If among the concurring intestate heirs

ICD ½ there are compulsory heirs, whose
4. LPA 1/3 legal or intestate portions exceed
AP their respective legitimes, then the
SS 1/3
1/3 amount of the testamentary
ICD
disposition must be deducted from the
disposable free portion, to be borne by
all the intestate heirs in the
CARDINAL PRINCIPLES OF INTESTATE
proportions that they are entitled to
SUCCESSION (Justice Paras)
receive from such disposable free
1. Even if there is an order of intestate
portion as intestate heirs.
succession, the Compulsory Heirs (CH)
3. If the intestate share of a compulsory
are never excluded. The Civil Code
heir is equal to his legitime, then the
follows the concurrence theory, not
amount of the testamentary
the exclusion theory.
disposition must be deducted only
2. Right of Representation (RR) in the
from the intestate shares of the
collateral line occurs only in intestate
others, in the proportions stated
succession, never in testamentary
above.
succession because a voluntary heir
4. If the testamentary dispositions
cannot be represented (collateral
consume the entire disposable free
relatives are not CH).
portion, then the intestate heirs who
3. The intestate shares are either equal
are compulsory heirs will get only their
to or greater than the legitime.
legitime, and those who are not
4. GENERAL RULE: Grandchildren
compulsory heirs will get nothing.
always inherit by RR, provided
representation is proper.
EXCEPTION: Whenever all the
children repudiate, the grandchildren
IV. PROVISIONS COMMON TO
inherit in their own right because RR
TESTAMENTARY AND INTESTATE
would not be proper.
SUCCESSIONS
5. Nephews and nieces inherit either by
RR or in their Own Right (OR).
A. RIGHT OF ACCRETION (A)
a. RR: when they concur with aunts
(ARTS 1015 – 1023)
and uncles (provided that RR is
 A right by virtue of which, when two
proper)
or more persons are called to the same
inheritance, devise or legacy, the part
assigned to one who renounce or
cannot receive his share, or who died
before testator, is added or
b. OR: when they do not concur with
incorporated to that of his co-heirs,
aunts and uncles.
co-devisees, or co-legatees.
6. ICD of legitimates cannot represent
 A right based on the presumed will of
because of the barrier, but both the
the deceased that he prefers to give
ICD and LCD of illegitimates can.
certain properties to certain
7. There can be reserva troncal in
individuals, rather than to his legal
intestate succession.
heirs.
8. A renouncer can represent, but cannot
be represented.
Requisites:
9. A person who cannot represent a near
1. 2 or more persons must have been
relative cannot also represent a
called to the same inheritance, legacy
relative farther in degree.
or devise, or to the same portion
thereof, pro indiviso; and
III. MIXED SUCCESSION OR PARTIAL 2. there must be a vacancy in the
INTESTACY inheritance, legacy or devise (caused
by predecease, incapacity,
 Succession that is effected partly by repudiation, nonfulfillment of
will and partly by operation of law. suspensive condition or void or
ineffective testamentary
RULES: dispositions.)
1. The law of legitimes must be brought
into operation in partial intestacy, EFFECTS of PREDECEASE, INCAPACITY,
because the testamentary dispositions DISINHERITANCE, or REPUDIATION in
can affect only the disposable free both TESTAMENTARY and INTESTATE
portion but never the legitimes. SUCCESSION

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

CAUSE OF TESTAMENTARY INTESTATE spiritual aid to him during the same

VACANCY SUCCESSION SUCCES- period;
Legitime Free SION
Portion (IS) 2. Individuals, associations and
Predecease 1. RR 1. A 1. RR corporations not permitted by law to
2. IS 2. IS 2. IS inherit;
Incapacity RR A 1. RR 3. Guardian with respect to testamentary
2. IS IS 2. IS dispositions given by a ward in his
Disinheri- 1. RR _ _
tance 2. IS
favor before the final accounts of the
Repudia- IS A A guardianship have been approved,
tion even if the testator should die after
the approval thereof; nevertheless,
Summary: any provision made by the ward in
(A) In favor of the guardian when the latter
testamentary succession: is his ascendant, descendant, brother,
(1) Legitime: sister, or spouse, shall be valid;
(a) In case of predecease of an 4. Relatives of such priest or minister of
heir, there is representation the gospel within the 4th degree, the
if there are children or church, order, chapter, community,
descendants; if none, the organization or institution to which
others inherit in their own such priest or minister may belong;
right. 5. Attesting witness to the execution of a
(b) In case of incapacity, results will, the spouse, parents or children,
are the same as in or any one claiming under such
predecease. witness, spouse, parents or children;
(c) In case of disinheritance, and
results are the same as in 6. Physician, surgeon, nurse, health
predecease. officer or druggist who took care of
(d) In case of repudiation by an the testator during his last illness.
heir, the others inherit in
their own right. B. Based on Morality or Public Policy
(ART 739)
(2) Disposable free portion: 1. Those made in favor of a person with
Accretion takes place when whom the testator was guilty of
requisites are present; but if such adultery or concubinage at the time of
requisites are not present, the the making of the will.
others inherit in their own right. 2. Those made in consideration of a crime
of which both the testator and the
(B) In intestate succession: beneficiary have been found guilty.
(1) In case of predecease, there is 3. Those made in favor of a public officer
representation if there are children or or his spouse, descendants and
descendants; if none, the others ascendants, by reason of his public
inherit in their own right. office
(2) In case of incapacity, results are the
same as in predecease. C. Based on Acts of Unworthiness (A4F3P)
(3) In case of repudiation, there is always 1. Parents who have abandoned their
accretion. children or induced their daughters to
lead a corrupt or immoral life, or
B. CAPACITY TO SUCCEED BY WILL OR BY attempted against their virtue;
INTESTACY (ARTS. 1024 – 1040) 2. Any person who has been convicted of
an attempt against the life of the
Requisites: testator, his/her spouse, descendants
1. The heir, legatee/devisee must be or ascendants;
living or in existence at the moment 3. Any person who has accused the
the succession opens; and testator of a crime for which the law
2. He must not be incapacitated or prescribes imprisonment for 6 years or
disqualified by law to succeed. more, if the accusation has been found
groundless;
THE FOLLOWING ARE INCAPABLE OF 4. Any person convicted of adultery or
SUCCEEDING: concubinage with the spouse of the
A. Based on Undue Influence or Interest: testator;
(PIGRAP) 5. Any heir of full age who, having
1. Priest who heard the confession of the knowledge of the violent death of the
testator during his last illness, or the testator, should fail to report it to an
minister of the gospel who extended officer of the law within a month,

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

unless the authorities have already necessary for the protection of other
taken action; this prohibition shall not heirs and also of creditors.
apply to cases wherein, according to
law, there is no obligation to make an Form of Acceptance
accusation; 1. Express Acceptance – one made in a
6. Any person who by fraud, violence, public or private document.
intimidation, or undue influence 2. Tacit Acceptance – one resulting from
should cause the testator to make a acts by which the intention to accept
will or to change one already made; is necessarily implied or which one
7. Any person who falsifies or forges a would have no right to do except in
supposed will of the decedent; and the capacity of an heir
8. Any person who by the same means
prevents another from making a will, Tacit acceptance is presumed from
or from revoking one already made, or certain acts of the heir as:
who supplants, conceals, or alters the 1. When heir sells, donates, or assigns his
latter's will. right.
2. When heir renounces it for the benefit
NOTE: The moment the testator uses one of one or more heirs.
of the acts of unworthiness as a cause for 3. When renunciation is in favor of all
disinheritance, he thereby submits it to heirs indiscriminately for consideration
the rules on disinheritance. Thus, 4. Other acts of tacit acceptance
reconciliation renders the disinheritance a. heir demands partition of the
ineffective. inheritance
b. heir alienates some objects of the
Pardon of Acts of Unworthiness inheritance
EXPRESS IMPLIED c. Under Art 1057, failure to signify
1. made by the 1. effected when acceptance or repudiation within
execution of a testator makes a 30 days after an order of
document or any will instituting the distribution by the probate court.
writing in which the unworthy heir with
decedent condones knowledge of the  REPUDIATION must be made in a
the cause of cause of incapacity
public instrument (acknowledged
incapacity
before a notary public) or authentic
2. cannot be 2. revoked when
revoked the testator document (equivalent of an
revokes the will or indubitable writing or a writing whose
the institution authenticity is admitted or proved) or
by petition presented to the court
C. ACCEPTANCE AND REPUDIATION OF having jurisdiction over the
INHERITANCE (ARTS. 1041 – 1057) testamentary or intestate proceeding.

Characteristics: (VIR)
1. Voluntary and free
2. Irrevocable, except if there is vitiation  Reason for formality: Law considers
of consent or an unknown will appears that the act of repudiation is more
3. Retroactive solemn than the act of acceptance and
that repudiation produces a more
Requisites: violent and disturbing consequences.
1. certainty of the death of the decedent
2. certainty of the right to the  Heir in two capacities: An heir who is
inheritance such by will and by law, and he
repudiates the inheritance as a
testamentary heir, will be considered
Acceptance vs. Repudiation: to have repudiated the inheritance as
(1) Acceptanc a legal heir. But when an heir
e involves the confirmation of repudiates as a legal heir, he may
transmission of successional rights, later on accept as a testamentary
while repudiation renders such heir.
transmission ineffective.
(2) Repudiatio D. COLLATION (ARTS. 1061-1077)
n is equivalent to an act of disposition  Every compulsory heir, who succeeds
and alienation. with other compulsory heirs must bring
(3) The into the mass of the estate any
publicity required for repudiation is property or right which he may
received from the decedent, during
CIVIL LAW COMMITTEE
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John
Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
San Beda College of Law
26

MEMORY AID IN CIVIL LAW

the lifetime of the latter, by way of

donation, or any other gratuitous title, Properties not subject to collation (2 nd
in order that it may be computed in concept):
the determination of the legitime of 1. Absolutely no collation (all concepts):
each heir, and in the account of a. Expenses for support, education
partition. (Art. 1061) (elementary and secondary only),
 An act of returning or restoring to the medical attendance, even in
common mass of the estate, either extraordinary illness,
actually or fictitiously, any property apprenticeship, ordinary
which a person may have received equipment, or customary gifts
from the decedent during the latter’s (Art. 1067).
lifetime, but which is understood for 2. Generally not imputable to legitime:
legal purposes as an advance from a. Expenses incurred by parents in
inheritance. giving their children professional,
vocational or other career unless
OPERATIONS RELATED TO COLLATION the parents so provide, or unless
1. Collation – adding to the mass of the they impair the legitime.
hereditary estate the value of the b. Wedding gifts by parents and
donation or gratuitous disposition ascendants consisting of jewelry,
2. Imputing or Charging – crediting the clothing, and outfit except when
donation as an advance on the they exceed 1/10 of the sum
legitime (if the donee is a compulsory disposable by will.
heir) or on the free portion (if the
donee is a stranger) E. PARTITION AND DISTRIBUTION OF
3. Reduction – determining to what ESTATE (ARTS. 1078 – 1105)
extent the donation will remain and to  It is the separation, division and
what extent it is excessive or assignment of a thing held in common
inofficious. among those to whom it may belong. It
4. Restitution – return or payment of the includes every act which is intended to
excess to the mass of hereditary put an end to indivision among co-
estate. heirs, and legatees or devisees,
although it should purport to be a
sale, exchange, compromise, or any
Persons obliged to collate other transaction. It is not subject to
1.  GENERAL RULE: compulsory heirs any form.
 EXCEPTIONS:
a. When the testator should have so Who may effect partition:
expressly provided; and 1. decedent himself during his lifetime
b. When the compulsory heir should by an act inter vivos or by will;
have repudiated his inheritance 2. heirs themselves;
2. Grandchildren who survive with their 3. competent court;
uncles, aunts, or 1st cousins, and 4. 3rd person designated by the decedent.
inherit by right of representation.
Who can demand partition:
NOTE: Grandchildren may inherit from 1. compulsory heir;
grandparent in their own right (i.e. heirs 2. voluntary heir;
next in degree) and not by right of 3. legatee or devisee;
representation if their parent repudiates 4. any person who has acquired interest
the inheritance of the grandparent, as no in the estate.
living person can be represented except in
cases of disinheritance and incapacity. In When partition cannot be demanded:
such case grandchildren are not obliged to (PAPU)
bring to collation what their parent has 1. when expressly prohibited by the
received gratuitously from their testator himself for a period not
grandparent) exceeding 20 years;
2. when the co-heirs agreed that the
What to collate: estate shall not be divided for a
1. Any property or right received by period not exceeding 10 years,
gratuitous title during the testator’s renewable for another 10 years;
lifetime 3. when prohibited by law;
2. All that they may have received from 4. when to partition the estate would
the decedent during his lifetime render it unserviceable for the use for
3. All that their parents would have which it is intended.
brought to collation if alive

CIVIL LAW COMMITTEE

MEMORY AID IN CIVIL LAW

Prohibition to Partition
1. The prohibition to partition for a
period not exceeding 20 years can be
imposed on the legitime.
2. If the prohibition to partition is for
more than 20 years, the excess is void.
3. Even if a prohibition is imposed, the
heirs by mutual agreement can still
make the partition.

PARTITION INTER VIVOS (ART 1080)

 It is one that merely allocates specific
items or pieces of property on the
basis of the pro-indiviso shares fixed
by law or given under the will to heirs
or successors.

NOTE: Partition is not itself a mode of

acquiring ownership, nor a title therefore.
This partition, being predicated on
succession, necessitates relationship to
the decedent (in case of intestacy) or a
will duly probated (in case of testacy). A
partition inter vivos made in favor of
intestate heirs could be operative.
Dispositions, however, to non-intestate
heirs may suffer an impediment unless
based on a valid will, except perhaps when
such dispositions are intended to take
effect during the life of the testator and
the formalities of donations are properly
complied with.

EFFECTS OF INCLUSION OF INTRUDER IN

PARTITION:
1. Between a true heir and several
mistaken heirs – partition is VOID.
2. Between several true heirs and a
mistaken heir – transmission to
mistaken heir is VOID.
3. Through error or mistake, share of
true heir is allotted to mistaken heir –
partition shall not be rescinded unless
there is bad faith or fraud on the part
of the other persons interested, but
the latter shall be proportionately
obliged to pay the true heir of his
share
NOTE: partition with respect to the
mistaken heir is VOID.

A VOID WILL MAY BE A VALID PARTITION:

1. If the will was in fact a partition; and
2. If the beneficiaries in the void will
were legal heirs.

CIVIL LAW COMMITTEE

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