Art.

825 The codicil must follow the formalities in the

execution of a will, whether it is notarial or
Codicil is a supplement or addition to a will holographic.
made after the execution of a will.
What is the effect if the applicable formalities
Must follow the formalities prescribed by the are not followed?
law for a will.
The codicil will be considered void. But, it will
For clarifications that the testator wants to not affect the validity of the original will if it
incorporate. followed the formalities required under the law.

The original wil is explained, addes or altered. What is the effect of the codicil on after-
acquired properties?
Applicable to both holographic and notarial will.
Codicil cannot exist independently from a will. The after-acquired properties will be part of the
property given to the heir.
Requirements:
Art. 827 INCORPORATION BY REFERENCE
1. It is a supplement or addition to a will
Hence, there must be a pre-existing By virtue of incorporation by reference the
valid will. document being referred to pertaining to the
2. It is made after the execution of the will properties of the testator can easily be refered
3. It is to be annexed and taken as part to in the will through the inventory made.
thereof.
4. It explains, adds or alters the original the testator is incorporating in his will by
will reference the existence of that inventory which
5. It must be executed following the was already made earlier.
formalities of a will
A codicil must follow the formalitie of a notarial Requisites of Incorporation by reference:
and holographic will . Failure to do so the codicil
cannot be admitted to probate. 1. The document or paper referred to must
already be in existence at the time of the
What would be the effect if the provisions in execution of the will
the original will and the codicil are not
consistent, which should prevail? From the lectures of Atty. Jazzie M. Sarona-
Lozare, CPA LLM, ESQ
The codicil will prevail because that is the very
purpose of a codicil – to explain, add, alter, or 1. These documents under Art 827 have to be
amend the original will. signed by the testator and the witnesses. Do
remember that in notarial wills are required to
The codicil essentially expresses the latest have witnesses. But in holographic wills it’s not
intention, latest wishes of the testator which of required that there is a witness upon the
course must be given effect. execution thereof.

Art. 826 If the document is yet to be executed, then the

purpose of incorporation by reference will be
defeated. Why prepare another document
when you can already include it in the execution GENERAL RULE: Holographic wills cannot be
of the will? incorporated by reference.

2. The pages of the documents referenced must However, it can be incorporated by reference, as
be stated in the will long as the following are present:

3. The will must clearly describe and identify the EXCEPTIONS: It may be a holographic will
document by clear and satisfactory proof as the
document or paper referred to Do remember that’s the general because if the
documents are voluminous in nature, this fourth
2. In notarial wills, the contents can either be in requirement is not applicable.
the handwriting of the testator, typewritten or a
combination thereof. So when you say that the But we are not saying that we do not need the
documents are to be incorporated in the will signatures of the testator and the witnesses at
then these documents can also be typewritten all if there are voluminous pages. What we are
or in the hand of the testator. Accordingly, in a saying is that they are not required to sign each
notarial will which has an attestation clause that and every page thereof but only a sufficient
meets the requirements under the law, a number of pages. Even the signatures of the
reference is made to an inventory of the testator and the witnesses appearing in at least
properties attached to the will, no separate 25% of the total number of pages would be
attestation clause is needed for the said sufficient.
inventory. But it is sufficient that the will
contains the said attestation clause and the Requirements that must be stated in the face of
effect is that the will as well as the inventory the will:
incorporated by reference will be considered as
valid. 1. The fact that you (the testator) are referring
to the document or paper
This is the reason why some authors or
commentators say that this incorporation by 2. The clear description and identification of the
reference is an exception to the rule that a document
document must observe the formalities of a will
before it can be probated. 3. The number of pages

As to Holographic will Requirements to appear on the face of the

document to be incorporated or being referred
Now how about a holographic will, can there be to:
incorporation by reference.
1. When the holographic will has at least 3
In other words, the document referred to witnesses, because these subscribing witnesses
should be identifiable. There must be a in the holographic will, although a surplusage
description in the will as to the nature of that and not required for its validity, can sign the
document. document to be incorporated; or

4. The document must be signed by the testator 2. Even if there are no witnesses but the
and the witnesses in each and every page, document to be incorporated are entirely
except if voluminous. written, signed and dated in the hand of the
testator.
-or if there no witnesses at the time of the the right of the testator to revoke his will during
execution of the holographic will but the his lifetime is absolute. The heirs cannot prevent
document to be incorporated are entirely the testator from revoking his will. Even if the
written, signed and dated in the hand of the will has already been allowed or it has already
testator been probated and allowed by the court, the
testator may still revoke his will until his death.
How can you incorporate by reference into a
holographic will a document that which is not in GENERAL RULE: The testator can always revoke
the handwriting of the testator? his will during his lifetime.

Let us say we have a will, a holographic will EXCEPTION: If the testator during his lifetime
entirely written, dated and signed in the hands loses his testamentary capacity or become of
of the testator but he has an inventory of his unsound mind.
properties which is typewritten or
computerized. Now can you incorporate that  If at the time of the revocation the
typewritten or computerized inventory in the testator is already of unsound mind, the
holographic will? revocation shall be deemed void.
 In revocation intent to revoke must be
1. The signature of the testator present and to which he must revoke
his will voluntarily, intelligently—
2. The signature of the witnesses meaning he knows what he is doing
with the knowledge of the consequence
Note: the document to be incorporated, unlike a of his acts.
codicil which is considered a will and therefore  If such requirement is not present to
must observe the formalities of the will, the the effect that a testator is already of
documents incorporated by reference are not unsound mind then such revocation
really considered or is not really considered as a could not be upheld.
will. It is not required to be in a form of a will. Art. 829
What we have here is that such document is
being incorporated in the will by virtue of Article Under this provision you have to consider 2
827. things:

Requirements that can be proved by extrinsic 1. Whether or not the revocation is valid
evidence: here in the Philippines and
2. Whether valid outside of the
1. That the document is in existence at the time Philippines.
of the execution of the will
If the revocation is done outside the Philippines,
2. That the document is the one being referred you have to consider whether or not the one
to in the will. who executed the revocation is a resident of the
Philippines or not. If the testator who revoked
Art. 828 his will is:

Revocation is an act of the mind terminating the 1. A resident of the Philippines –

potential capacity of the will to operate at the applicable law is the domicile or the law
death of the testator manifested by some of the place of revocation.
outward or visible act or sign symbolic thereof.
 2. Non-resident of the Philippines – 1. Revives the previous will.
applicable law is the domicile or the law 2. The dispositions in the original will that
of the place of execution. were later republished shall be dated on
Art. 830 the date of the republished will and is
governed by the law enacted
3-ways to revoke a will: subsequently to the execution of the
original will but was operative when the
1. Implication of law- the testator did not execution was made.
express the revocation but through his
acts or circumstances the law presumed Implied republication – this is the execution of a
that the testator intended to revoke his codicil referring to a previously revoked will or
will. the will was void due to extrinsic defects.
2. Subsequent instrument - Testator
executed a first will, and then, Requisites:
subsequently, he will execute another 1. Will is void for reasons other than the
will or a codicil. form.
2. This refers to the second will.
The second or subsequent instrument, 3. Must be executed according to the
whether it is another will or a codicil, must formalities of a will.
conform with the formalities of a will to be
able to revoke the previously executed will. Effect: Codicil revives the will revoked.

3. Through an overt act Art. 836

Art 835 Previously void will as to form.

 Incorporation by reference is not

Instances when there is Republication: allowed.
1. Testator executed a void will and he  Only remedy is Republication by Re-
wants to give life to the void will. execution (express republication)
2. Testator revoked his will and wants to
give life again to the revoked will. Previous will is void but not as to form.
Ex. If there is intention to revoke for  Both express and implied republication
whatever means (tearing the will) is allowed.
republication is still the proper remedy.
Art. 837 (REVIVAL OF A WILL)
Express republication- there is republication by
virtue of a subsequent will. Revival of a will takes place by operation of law.
It is the re-establishment of validity of the will
Requisites: by operation of law of a previouslt revoked will.
1. Original will is void as to the its form Only applicable to impliedly revoked wills.
only.
2. All testamentary dispositions in the SCENARIO:
original will must be reproduced.
3. New will must be executed based on There is no revival of the 1st will if it was
the formalities required by law. expressly revoked by the 2nd will and then the
latter was revoked by a 3rd will.
Effect:
There is revival of the 1st will is it was impliedly 4. Voluntarily executed by the testator.
revoked by the 2nd will. And if the 2nd will is
impliedly revoked, the 1st will, will be revived. If the court is satisfied, the testator may be able
to distribute the properties in accordance with
Principle of Instanter: his will.

Has the same implication with the Doctrine of

Absolute revocation. Revocation is absolute and The right to ask for probate is imprescriptible.
takes effect immediately.
If there is express revocation of the 1st will the If there are issues or questions regarding the
2nd will takes effect immediately. due execution of the will you will file an appeal
within the probate proceedings because once
Ex. If the testator executed a will wherein he the will is admitted to probate and there is
instituted Juan as an heir to the entire estate, judgment rendered and the case has attained
and later on the testator changed his mind and finality, it can no longer be overturned by filing a
executed another will this time giving the entire separate case.
estate to Pedro, what is the effect?
General rule is that probate courts can only
The 2nd will revoked the first will because the address questions regarding extrinsic validity.
provisions are incompatible. The first will Exception is whencertain questions about
instituted Juan the entire estate, the second will intrinsic validity may be enterained by the
instituted Pedro for the entire estate. But if probate court pertaining to ownership, filiation,
Pedro repudiates the inheritance the will is still and where there is preterition or not.But the
valid and there is no republication of the 1st will. decision rendered by the provate court are only
provisional in nature and may be resoved in
Art 838 another proceeding. NO RES JUDICATA.

Under the law it is an obligation on the part of

the person who is in possession of the will to HEIRS OF LASAM VS UMENGAN
submit the will for probate.
Probate is the proceeding that intended to Purported last will and testament of Isabel
determine the due execution of the will. Cuntapay could not properly be relied upon to
Probate is a proceeding in rem. It cannot be establish petitioners’ right to possess the
dispensed with by any other proceeding, subject lot because, without having been
judicial or extrajudicial. probated, the said last will and testament could
There is a prerequisite of notice by publication not be the source of any right.
which serves as the constructive notice to the
whole world. When the probate is granted the A will is essentially ambulatory; at any time
judgment is binding against and upon prior to the testator’s death, it may be changed
everybody. or revoked; and until admitted to probate, it has
no effect whatever and no right can be claimed
During probate, the court will determine if: thereunder, the law being quite explicit.

1. If it is the very same will executed by PASCUAL VS CA

the testator.
2. Testator had the testamentary capacity. REMEDIOS anchors her right in filing this suit on
3. Compliance with the formalities of a her being a devisee of CATALINA’s LAST WILL.
will. However, since the probate court has not
admitted CATALINA’s LAST WILL, REMEDIOS has
not acquired any right under the LAST WILL. ANTILADO MERCADO VS SANTOS
REMEDIOS is thus without any cause of action
either to seek reconveyance of Lot Nos. 2-A and Whether or not the allegation of forgery of the
2-E or to enforce an implied trust over these lots will is sufficient to disallow the already probated
will of Mercado’s deceased wife. – NO.
The appellate court tried to go around this
deficiency by ordering the reconveyance of Lot The law creates a conclusive presumption as to
Nos. 2-A and 2-E to REMEDIOS in her capacity as the due execution of the will after it is admitted
executrix of CATALINA’s LAST WILL. This is into probate.
inappropriate because REMEDIOS sued
petitioners not in such capacity but as the Section 306. Effect of judgment
alleged owner of the disputed lots.
In case of a judgment or order against a specific
Important: A. probate proceeding must first be thing, or in respect to the probate of a will, or
held to assure that the will was the very same the administration of the estate of a deceased
will and whether or not it was executed with person, or in respect to the personal, political,
proper testamentary capacity and whether or or legal condition or relation of a particular
not it was executed with the formalities of the person, the judgment or order is conclusive
law. upon the title of the thing, the will or
administration, or the condition or relation of
VDA. DE KILAYKO VS JUDGE TENGCO the person Provided, That the probate of a will
or granting of letters of administration shall only
The only instance where a party interested in a be prima facie evidence of the death of the
probate proceeding may have a final liquidation testator or intestate.
set aside is when he is left out by reason of
circumstances beyond his control or through Section 333. Conclusive Presumptions. – The
mistake or inadvertence not imputable to following presumptions or deductions, which
negligence. Even then, the better practice to the law expressly directs to be made from
secure relief is the opening of the same by particular fact, are deemed conclusive.
proper motion within the reglementary period,
instead of an independent action, the effect of The judgment or order of a court, when
which if successful, would be for another court declared by this code to be conclusive.
or judge to throw out a decision or order
already final and executed and reshuffle CORONADO VS CA
properties long ago distributed and disposed of.
Normally, the probate of a will does not look
t cannot be denied that when Celsa L. Vda. de into its intrinsic validity. The authentication of a
Kilayko, et al. moved for the reopening of the will decides no other questions than such as
testate estate proceedings of Maria Lizares, the touch upon the capacity of the testator and the
judicial decree of partition and order of closure compliance with those requisites or solemnities
of such proceedings was already final and which the law prescribes for the validity of the
executory. Therefore, they cannot now be wills. It does not determine nor even by
permitted to question the adjudication of the implication prejudge the validity or efficiency of
properties left by will of Maria Lizares, by filing the provisions of the will, thus may be
an independent action for the reconveyance of impugned as being vicious or null,
the very same properties subject of such notwithstanding its authentication. The
partition. question relating to these points remain entirely
unaffected, and may be raised even after the
will has been authenticated. Art 839 Instances when wills are disallowed:

MAGALLANES VS KAYANAN
These are the only instances when wills are
The probate court has no jurisdiction to pass disallowed and nothing else.
finally and definitely upon the title or ownership
of the properties involved in the summary A.Formalities for a will have not been complied
settlement of the estate of the deceased with.
Filomena Magallanes instituted by the
petitioner.  Formalities of notarial wills (Art.
804-809)
whether real or personal, which are alleged to  Formalities of a holographic
form part of the estate of a deceased person wills ( Art. 810-814)
but claimed by another to be his property by 1. Must be entirely written,
adverse title to that of the deceased and his dated and signed in the
estate and not by virtue of any right of handwriting of the testator.
inheritance from the deceased, cannot be 2. Executed at the the time
determined by the probate court. Such when holographic wills are
questions must be submitted to the Court of allowed in the Philippines.
First Instance in the exercise of its general 3. Languange known to the
jurisdiction to try and determine ordinary testator.
actions. B. Proven that testator was insane or mentally
incapable at the time of the execution of a will.
What does the probate court do?  Effect: Null and void.

The probate court may do so only for the C. Executed through force under duress or the
purpose of determining whether or not a given influence of fear or threats.
property should be included in the inventory of  Mental or physical aspect.
the estate of the deceased, but such  Effect: vitiation of consent.
determination is not conclusive and is still D. Procured by undue and improper pressure
subject to a final decision in a separate action to and influence on the part of the beneficiary or
be instituted between the parties. Likewise, the other person.
probate court may also determine questions of  A person takes advantage of the power
title to property if the parties voluntarily of the will of another person essentially
submitted to its jurisdiction and introduced depriving such person the freedom of
evidence to prove ownership. choice. The testator is deprived of his
freedom of choice.
If there is a will, the probate court can address  For Undue Influence the person knows
the issues but not with finality. It is only for the that he is executing a will/
purpose whether or not it should be included in  Effect: Cannot be ratified.
the inventory of the estate but such is not
conclusive hence, not yet final it is still subjec to COSO VS FERNANDEZ DEZA et al.
a final decision in a separate action to be
instituted between the parties. The influence exerted must be of a kind that so
makes him express the will of another rather
than his own. It must overpowers and
subjugates the mind of the testator as to
actually be exerted on the mind of the testator The party challenging the will bears the burden
in regard of the destroy his free agency. of proving the existence of fraud at the time of
its execution. The burden to show otherwise
The burden is upon the parties challenging the shifts to the proponent of the will only upon a
will to show that undue influence, in the sense showing of credible evidence of fraud.
above expressed, existed at the time of its
execution. The party challenging the will bears the burden
of proving the existence of fraud at the time of
He was an intelligent man, a lawyer by its execution. The burden to show otherwise
profession, appears to have known his own shifts to the proponent of the will only upon a
mind, and may well have been actuated only by showing of credible evidence of fraud.
a legitimate sense of duty in making provisions
for the welfare of his illegitimate son and by a Because the law does not even require that a
proper feeling of gratitude in repaying Rosario notarial will x x x be executed and
Lopez for the sacrifices she had made for him. acknowledged on the same occasion.”

Mere affection, even if illegitimate, is not undue F. Testator acted by mistake or did not intend
influence and does not invalidate a will. that the instrument he signed should be his
will at the time of affixing his signature
E. Signature of the testator was procured by thereto.
fraud.
 Even if a will was already signed
 Person does not know that he is followed by the formalities of the will
executing a will. were complied with but has no
 Effect: Cannot be ratified. intention of considering as such as the
 Fraud and undue influence under Art last will and testament.
839 (D) are mutuallty exclusive, cannot
co-exist or occur at the same time. REVOCATION VS DISALLOWANCE
 You cannot say that there is fraud and at
the same time undue influence because In BOTH, the wills cannot be enforced.
these are two different concepts, both
are repugnant to each other. If you Revocation Disallowance
allege fraud together with undue Revocation is the It is the court
influence in the same will, your prayer voluntary act of that will say that
for the disallowance of the will cannot the testator. the will cannot
be granted because you are not clear on Hence, there be admitted to
the grounds for disallowance. must ba probate.
ORTEGA VS BALMONTE testamentary
capacity on the
Fraud may be of such character that the testator part of the
is misled or deceived as to the nature or testator.
contents of the document which he executes, or
it may relate to some extrinsic fact, in There must be
consequence of the deception regarding which animus
the testator is led to make a certain will which, revocandi.
but for the fraud, he would not have made. Testator can Always for legal
revoke thewill cause.
with or without
 cause as long as. 2.He continues the judicial personality of the
He has testator but only in relation to the inheritance
testamentary without being personally liable for the
capacity and of testator’s debts.
soundmind.  Heir inherits the rights, properties and
Testator can General rule: obligations of the testator but does not
revoke only Always all of the exveed the value of the inheritance
certain dispositions. received by the heir.
dispositions.
Exception: 3.He is a natural person or a juridical person
Portions of the permitted by law to succeed.
will tainted with  Instituted heir only requires juridical
fraud or undue capacity, and not capacity to act.
influence.  Important are Art 40 and 41.
Done during the Invoked after  Even an unborn child can be given
lifetime of the the testator’s property or he can be subject of a
testator. death. donation or inheritance. Although the
child does not have the capacity to act.
 Pwede maging heir ang unborn child
Art. 840 Institution of heirs. provided that he has an intrauterine life
of less than 7 months, premature in
 Institution of heirs is the designation of other words, then it’s possibile that he
another person (making him an heir) by will attain juridical personality provided
the testator to receive a fractional part that he has lived for at least 24 hours.
of his estate. Pero kung more than 7 months or more
 Institution only refers to the free na, as long as he is born alive, then he
portion of the estate because there is attained juridical personality at that
no need to institute compulsory heirs to time even if he was just alive for a few
their legitime. Legitime is already minutes.
provided by the law.  Ex. father instituted his unborn child in
his last will and testament. Institution—
Requisites: referring to the free portion of the
estate. Kung iapply natin itong Art. 41,
1. The will must be extrinsically valid. entitled sya sa kanyang legitime and
entitled din sya dun sa free portion by
2.The institution must be intrinsically valid. virtue of the institution.
3.The institution must be effective.
4. There is no vice of consent. But if it had an intrauterine life of less
5.Institution refers to the naming of the person than 7 months and dies within 24 hours,
and the specification of the share. so wala nakainherit yung fetus because
6.Heirs must be identifiable. he did not acquire civil personality. So,
what is the effect with regard to the
Characteristics of an instituted heir: property supposedly given to the
unborn child? When the father dies, the
1.He is a testamentary heir supposed inheritance of the fetus would
not materialize because he did not
attain civil personality and therefore he
 did not receive the inheritance. So, the will as required by the law
mapunta doon sa mother. and that by virtue of the
disinheritance provided therein,
What if the mother also died giving there is a disposition of the
birth? Hindi valid yung institution of heir property.
ni testator kay na-predecease man sya B. A will shall be valid even though the
sa iyang anak and wife. Ang result is ang institution should not comprise the
estate ni testator will now be inherited entire estate.
by the legal heirs.
 What would happen to the
other half? We will apply the
4. He acquires rights which are limited to the rule in intestate succession.
disposable portion of the inheritance and Recall that such is called a
cannot impair that portion known as legitime. mixed succession.

5. He is presumed to have been instituted, C. A will shall be valid even though the
where there are several heirs, equally, person so instituted should not accept
individually, and simultaneously with the the inheritance.
others, unless the contrary intention appears.
 The refusal of the sole
instituted heir to accept the
Art. 841 inheritance does not invalidate
the will. The will becomes
A will shall be valid even though it ineffective will. The disposition
should not contain an institution of an will not be given any effect
heir, or such institution should not hence ,the estate will be
comprise the entire estate, and even distributed through intestate
though the person so instituted should succession.
not accept the inheritance or should
be incapacitated to succeed. D. A will shall be valid even though the
person so instituted should be
In such cases the testamentary incapacitated to succeed.
dispositions made in accordance with  E.g Instituted heir attempted on
law shall be complied with and the
the life of the testator. The will
remainder of the estate shall pass to
is still vald but the disposition
the legal heirs.
cannot be given effect. The
portion of the inheritance
which will pertain supposedly to
A. A will shall be valid even though it
that heir who is now
should not contain an institution of an
incapacitated to succeed will be
heir.
governed by legal or intestate
succession.
 Even if a will only contains a
disinheritance and, in the sense,
Art. 842
it does not constitute an
 Freedom of disposition but not
institution of an heir, the will is
absolute because testator still
considered as valid, as long as it
has to abide what is provided
complies with the formalities of
under the law.
  Note: Brothers and sisters,
cousins, nephews, aunts, uncles
are not compulsory heirs.
Art. 843

Questions: Art. 843 in relation to Art. 789

1. What if the designation is only by
nickname, no first and surname? Does it When there is an imperfect description, or
mean that the designation is not valid? when no person or property exactly answers
the description, mistakes and omissions must
Ans: As long as the person can be be corrected, if the error appears from the
identified even if what is provided is context of the will or from extrinsic evidence,
merely his nickname and without the excluding the oral declarations of the testator
surname, it is allowed; or it can be as to his intention; and when an uncertainty
determined by association – it can be arises upon the face of the will, as to the
given effect. application of any of its provisions, the
2. What if the testator provided in his will testator's intention is to be ascertained from
that his estate will go to his best friend the words of the will, taking into
Juan, but he has two friends who are consideration the circumstances under which
named Juan with different surnames. it was made, excluding such oral declarations.

Ans: This is allowed provided that there

is some circumstance indicate or make Art. 844
the instituted heir be known. If it cannot
be determined who is being referred to  Refers to errors in the name, surname
in the last will and testament you resort or circumstances.
to evidence. To clarify the disposition  The errors would not matter as long as
made by the testator in his will, the identifiable who are the real heirs are
court can resort to extrinsic evidence in intended by the testator to be
order to resolve the ambiguity. instituted.
 In relation to Art 789, oral evidence is
3. What if the name is omitted? not allowed to prove.

Ans: There is no problem if the name is ERRORS AS TO SPELLING

not indicated as long as you can
determine who is that person, that  Can be disregarded if it can be
there is no doubt as to who has been determined who is that person referred
instituted. Despite exhausting all rules in the will.
of interpretation and despite resorting
to extrinsic and intrinsic evidence, the ERRORS AS TO THE CIRCUMSTANCE OR
heir mentioned in the will cannot be DESCRIPTION
identified: The portion given to that
particular unidentified heir shall go by Will not invalidate the disposition as long as:
way of legal or intestate succession.
1. The error is only descriptive. It will not
invalidate as long as there is an
intention on the part of the testator to
 make that particular disposition in favor stranger. Even if not known to the
of an heir. testator but Is the one being described ,
that person is entitled to inherit.
Examples of errors in description valid:  Except when an event or circumstance
makes the identity identifiable.
a. Instituted heir is described as a  Disposition over a class or group shall
natural child but not really is a be valid.
natural child. It is still valid.
b. A person comments ay adopted Examples of unknown persons:
man na siya”. So in the last will and
testament nilagay “to my adopted 1. A definite class or group of persons. E.g
son, Juan”, but in reality he was not Class of 3-SR.
legally adopted. As long as that 2. Disposition made in general terms as to
circumstance only refer to a the relatives of the testator is still valid
description, even if it is erroneous, becaue Art 959 is a guide as to the
Juan would still be able to inherit. relatives in the respective degrees.
c. “I hereby institute my siter Juan”, 3. In favor of the poor the guideline is
but actually it should have been based under Art. 1030
written as “Juana”. It is still valid, it
was only an error. 4. The testator provides in his will that he
will give ¼ of his estate to his nephew if
Example of error in description not he will make it in the top 10 of the bar
valid: exam. Only after he died, did the
nephew top the bar exam.
a. “I hereby institute Juan, my nephew
to the estate”. If he has two Still a valid will because when we talk
nephews with the same name and about a person who is instituted as an
there is impossibility of heir, the identification must be in the
identification, we go back to Art. sense that the person must be living or
843, in the sense that the institution at least conceived at the time of the
is not valid. death of the testator.

Exception: Errors on the condition The qualification may happen after the
death of the testator. The disposition
Ex. Legitimate child – and it turns out will nevertheless be valid as long as the
that he is not legitimate. If that is a instituted heir, is living or existing at the
condition, the heir will not inherit time of the testator’s death.
because it’s already a conditional
institution and since such condition is Art. 846 Heirs instituted without any
not fulfilled, the institution cannot be designation of shares shall inherit in equal parts.
given effect.  Principle of Equality provides that heirs
institued without designation of shares
Art. 845 shall inherit in equal parts.
 Applicable if the heirs are in the same
 Disposition of an unknown person is juridical position.
VOID. Unknown person refers to a  Ex. Juan, Pedro, Maria and Clara.
person that cannot be identified or
determined and not necessarily a
 No problem here if the testator has no It would be different if the testatrix
compulsory heirs at the time of his mentioned in the will “to my sisters”
death. In other words, there is no and that some of his sisters have
legitime. All those 4 will inherit equally. already died. If the testatrix mentioned
only the sisters, then the estate shall be
What if Juan is a legitime son of the divided into 6. But in this case, he
testator and he is the only compulsory placed in the will that he will be giving it
heir. Do not be excited that you will to his sisters and the nieces therefore
apply immediately the principle of named in the will that can succeed him
equality. Here, the principle of equality as heir.
will only apply to the free portion. That
means, Juan should first be given his Art. 848
legitimate. He gets ½ of the 1 million,
500 thousand. The other 500 thousand  In Intestate succession testator is
will be divided into four. Juan is still survived by his brothers and sisters.It is
included. Each will each 125 thousand. important to determine if the siblings
So Juan gets 500 thousand legitime plus are full or half blood. Full blooded
the 125 thousand. siblings get to inherit twice as much as
the half blood siblings.

Art. 847 The basis is the law because the law

 Principle of Individuality. presumes that the testator has more
affection to his brothers or sisters in full
Ex. C may dalawang anak X and Y. Then the blood than those who are half blood
testator has an estate of 1,200,000. Paano related to him na siblings.
ihati ang estate among A, B, and the
children of C? Should it be divided by 3? Or  In testamentary succession if the
should it be divided by 4? testator instituted his siblings but did
not specify if how much will be received
ANSWER: When we say principle of by the full or half-blooded siblings.
individuality as in this example, it should be Testamentary succession gives the
divided by 4. Wherein the children of C are testator the opportunity for the testator
treated individuality, kase "children of C" to specify their shares because he made
ang ginamit. So, A, B, and children of C (X a will.
and Y).
The fact that they are instituted equally
JOSE VS USON means they enjoy equal preference as
far as the testator is concern, because if
 It was the intention of the testatrix to he would have preferred that his full
divide her property equally between blooded siblings will get to inherit more
her sisters and nieces. than his half blooded siblings nilagay na
 The Supreme Court said that applying sana niya sa last will and testament.
Article 847, the proper distribution shall
be made into 9. The children of the “I hereby institute my brothers and
deceased sisters shall be considered to sisters to my estate”, so the
be individually instituted. presumption is they should receive
equal shares, again in the absence of
specification.
 resulted to the institution, the one who actually
Art. 849 did the act mentioned in the will, will also not
 PRINCIPLE OF SIMULTANEITY inherit because he was not instituted in the will.
 Testator calls to succession a person and
his children. They are insituted General rule: If there is false cause, just give
simultaneously andnot successively. effect to the institution and disregard the false
cause . It will be considered as not written.
 Ex. Maria and her children were
instituted as heirs of an estate. Exception: Unless it appears from the will that
Apply the principle of equality, the testator would not have made such
individuality and principle of institution if he had known the falsity of such
simultaneity. cause.

The principle of simultaneity means False Cause- a mistake in the institution which
that the four of them, Maria and her vitiates consent.
three children will inherit simultaneous
not successive meaning they will all Examples:
inherit at the same time, no need to
wait for their mother, Maria to die Juan took care of me while I was in coma or
before the children can inherit. The hospitalized and because of that “I hereby
presumption is they will enjoy the institute Juan to one-fourth of my estate”, but if
inheritance at the same time. That is it turned out that Juan was not the one who
what we mean simultaneous and not took care of the testator when he was comatose
successive. that is what we mean by false cause.

Art. 850 While the general rule is disregard the false

An institution of an heir based on a false cause. It is clear from the will that the testator
cause. would not have instituted Juan if he had known
the falsity of the cause, if he had known that
Requisites: Juan was not the one who took care of him
while he was comatose in the hospital.
1. The cause for the institution of the
heirs must be stated in the will Institution of an heir based on an illegal cause.
2. The cause must be shown to be false
3. It must appear from the face of the will The institution will not be considered as written
that the testator would not have made because in institution, the underlying reason is
such institution if he had known the the generosity or liberality on the part of the
falsity of the cause. testator. But if the testator in heir instituted
have no relations with that of the illegal cause,
There is always a presumption that under Art then the institution cannot be given effect.
850, the institution of the heirs is based on the
generosity and liberality of the testator. Hence, If there are no other reasons other than the
to raise the exception, there must be BURDEN illegal cause, then, the institution is void. But if
OF PROOF that there exists a false cause or you can find another reason which need not
illegal cause. appear in the face of the will showing the
intention or the generosity and liberality of the
IIn false cause , if it was proven that the one testator, the institution can be considered valid.
instituted is not the person who did the act that
AUSTRIA VS HON. REYES & CRUZ share of the heir will be increased
proportionally of what was left of the estate.
The decedent’s will does not state any specific
or unequivocal manner the cause for such Example:
institution of heirs. Therefore, it cannot be I hereby institute to my whole estate these
annulled on the basis of guesswork or certain three heirs, but if you total the specific portions,
implication even if it turns out that they are not
legally adopted or legally considered as
compulsory heirs.

The phrases “sapilitang tagapagmana &

sapilitang mana” were borrowed from the
language on law on succession. If you translate
that, sapilitang tagapagmana is compulsory
heirs and sapilitang mana is legitimes.

Art. 851

Requisites:

1. The institution of an heir or several

heirs is limited each to an aliquot part it will not equal to one whole free portion.
(undivided interest of the estate).
2. There is a remainder or balance FORMULA TO GET THE PROPROTIONATE
3. There is no intention on the part of the SHARE:
testator to institute the heir or heirs to You increase proportionately not equally.
the entire estate or the whole free
portion of the estate. ESTATE AMOUNT X AMOUNT ACTUALLY
RECEIVED / TOTAL AMOUNT ALREADY GIVEN
The institution is limited to a specific portion of TO THE HEIRS.
the estate. The instituted heir, maybe one heir
or two, as long as the share of the instituted
heirs refer only to an aliquot part, an undivided
interest of the estate and there is no intention
on the part of the testator to give the entire
estate to the heir instituted.

Example: Let us say the estate is worth 1 million

and Juan is instituted to ¼ of that estate. So, he
will have 250,000. What about the remaining
750k? It will go by legal or intestate succession.

Art. 852

TThere is an intention to institute the entire

estate but the testator made a wrong
computation. What will happen is that each
 Preterition is the total omission due to mistake
or oversight by the testator in his will depriving
the compulsory heirs in the direct line living at
the time of the testator’s death or born after
the death of the testator.

Protects the legitime of compulsory heirs

because of the omission from the will.

Intentional or not important is there is omission.

There is preterition as long as the preterited

heir is already conceived at the time of
execution of the will or before the death of the
testator or as long as the pretireted heir
acquires juridical personality.

Omission of an illegitimate child will also result

to preterition. An illegitimate child is considered
a compulsory heir in the direct line.

Art. 853
EFFECTS OF PRETERITION
Opposite of Art. 852
There is the reduction of the instituted parts Preterition under Article 854 of the Civil Code,
because it exceeds the whole inheritance. provides that preterition"shall annul the
institution of heir". This annulment is in toto,
unless in the will there are, in addition,
testamentary dispositions in the form of devises
or legacies.

The institution will be disregarded because

there is no valid will in preterition. In effect, the
estate will be distributed by legal or intestate
succession.

If there are legacies and devices which are not

inofficious shall be respected in the will. Only
the institution of heir will be annulled.

There is a big difference when a compulsory heir

is mentioned in the will but was not instituted
as an heir. If there was no legacy or devisee in
favor there is still omission.

Art. 854 (PRETERITION) Omission refers to not being given anything by

virtue of a will.
If the institution only covers the free portion heir was omitted from the will is there
and there was an omission of a compulsory heir preterition?
in the direct line, there is no preterition because
there is a legitime left. There is no preterition because the compulsory
heir received something during the lifetime of
NO AUTOMATIC PRETERITION the testator. He is entitled to the completion of
legitime.
There is no automatic preterition because it is
imperative to determine if during the lifetime of Who are considered as compulsory heirs?
the testator as to constitute his advance
legitime. 1. Legitimate children and descendants,
with respect to their legitimate parents
TEST IF THERE IS PRETERITION OR NOT and ascendants;
2. In default of the foregoing, legitimate
If the will disposed the entire state omitting a parents and ascendants, with respect to
compulsory heir = preterition. their legitimate children and
descendants;
If the will disposed a part of the estate even if 3. The widow or widower;
only 1% of the estate is left = no preterition
4. Acknowledged natural children, and natural
What if there is a mixed succession? children by legal fiction; [note: we don’t have
this classification anymore]
Meaning, there was disposal of a part of the 5. Other illegitimate children referred to in
property and there are still portions which are Article 287 of the Civil Code.
still to be divided by legal or intestate
succession. MALOLES VS PHILLIPS

In this case, if a compulsory heir is omitted Maloles here was not considered as a direct line
there is no preterition because he can still heir because Maloles was a supposed nephew
participate in the estate of the testator with of the decedent. The court ruled that he was
respect to the portion left. not an heir or legatee under the will of the
decedent, that he is not a compulsory heir. He
What if there is an advance of the giving of an was the only nearest collateral relative of the
estate? decedent; hence, he can only inherit in case of
intestacy. But since the decedent has left a will
There is still no preterition because such which has already been probated, Maloles can
donation made by the testator during his inherit only if the said will is annulled. His
lifetime to the omitted heir shall be considered interest is, therefore, not direct or immediate.
as an advance of his legitime.
Even if Malones is the nearest next of kin of Dr.
If the amount of the donation does not amount De Santos, he cannot be considered an "heir" Of
to the supposed legitime , the compulsory heir the testator. It is a fundamental rule of
is still entitled to the compltion of his legitime. testamentary succession that one who has no
compulsory or forced heirs may dispose of his
What if there is already the delivery of entire estate by will (Art. 842).
presumptive legitime after the annullment of
the marriage to the children and a compulsory ACAIN VS IAC
A legally adopted person can be preterited There is preterition because Rosario left forced
because he is a compulsory heir in the direct heirs which are her parents. Their complete
line. omission is preterition.

As to the spouse, even if the surviving spouse is

a compulsory heir, there is no preterition even if
she is omitted from the inheritance, for she is
not in the direct line.

On the other hand, adoption gives to the

adopted person the same rights and duties as if
he were a legitimate child of the adopter and
makes the adopted person a legal heir of the
adopter.

HACBANG VS ALO

The compulsory heirs in the direct line of the

testator Bishop Sofronio were his parents and in
this case they were not omitted in the last will
and testament because they were given ½ of
the estate. Hence, Bishop Sofronio was free to
dispose of his estate without prejudice to the
legitime of his compulsory heirs where in this
case, he gave it to his sister Dolores.

There is preterition if a person is omitted from

the will of a testator and that he is a compulsory
heir in the direct line.

NERI VS AKUTIN

There is PRETERITION in this case which

rendered the will as invalid.

1. The testator left all his property by

universal title to the children by his
second marriage.
2. No disinheritance on the children of the
first mariage.
3. No property has ever been advanced by
the testator to the children by his first
marriage.

NUGUID VS NUGUID