SUCCESSION TSN

From the lectures of Atty. Lielanie Yangyang-Espejo, CPA

Ateneo de Davao College of Law | Tres Manresa 2015

So dapat na una ka-exist ang document to be incorporated

August 13, 2015 (GG)
because precisely, the law allows inocorporation by reference
for convenience. Like for example, the testator has already
Subsection 5. - Codicils and Incorporation by made an inventory of all his properties, and because he has
Reference several properties his inventory consists of 100 pages. So,
murag na xag libro. Now he wants to execute a last will and
testament, and the subject of this last will and testament
would be those properties already inventoried. Now, in his last
Art. 825. A codicil is supplement or addition to a will, made will and testament? Does he have to enumerate again in that
after the execution of a will and annexed to be taken as a will all the properties in his inventory? That is one purpose of
part thereof, by which any disposition made in the original incorporation, you don’t have to copy all those provisions in
will is explained, added to, or altered. the inventory. You can just mention in the will that “on august
13, 2015, I executed an inventory consisting of 100 pages, so
So as defined in Art. 825, it is a ‘supplement or addition’ to a those properties mentioned in the inventory are the same
will. So, it is made after the execution of a will. You cannot properties subject of this last will and testament. So, no need
make a codicil before you make a will. It should follow not to copy again. So that is the reason why the document has to
precede the execution of the will. The codicil is a part of the be in existence already because that document is still to be
will, it may also explain the provisions of a will, or it may executed then you might as well write that down in your will.
modify the provisions of a will. As we have discussed before, Okay, so it has to be in existence already at the time of the
for example, if you want to add some more dispositions in execution of the will.
your notarial will, you cannot do that by inserting notarial will.
You need to execute a codicil. (2) The will must clearly describe and identify the same,
Now, what if the provisions of the original will and the codicil stating among other things the number of pages thereof;
are not compatible with each other, they contravene each
other, what will prevail? Is it the codicil or the original will? It Of course, in number 2, the will must clearly describe… So it
is the codicil. As I have mentioned, one purpose of the codicil can really be identified as the document as referred to by the
is to alter or modify the provisions of the will, or amend the testator.
will. So because the codicil is the later expression of the will or
the last wishes of the testator, then the provisions of the (3) It must be identified by clear and satisfactory proof as
codicil should prevail over that of the will. the document or paper referred to therein; and

Art. 826. In order that a codicil may be effective, it shall be Again, to assure that it is the same document.
executed as in the case of a will. (n)
(4) It must be signed by the testator and the witnesses on
So what are the formalities required by law for codicils? Art. each and every page, except in case of voluminous books of
826 says it should be in the form of the will. So, you can have account or inventories. (n)
a notarial codicil, you can also have a holographic codicil. So Take note of number 4, so ang document must be signed in
you follow the formalities of a notarial will or a holographic each and every page. Again, not only by the testator but also
will. Codicil came from the word “codex” which means written by the witnesses but the law says EXCEPT in case of
will. But, it is not literally a written will, it is just intended to voluminous books of account or inventories.
supplement or modify, but in reality, the provisions of the
codicil may be longer than the provisions of the original will. Does that mean to say that if you have a 200-page inventory
Do not imagine na mura siyag codal. that inventory need not to be signed by the witnesses
because the law says “except in case of voluminous books”
If you have a notarial will, can you supplement it with a etcetera? NO! What is exempted here is not the signing but
holographic codicil? YES! There is no prohibition. the signing in each and every page. So meaning, they still
If you have a holographic will, can you supplement it with a need to sign a sufficient number of pages but not each and
notarial codicil? YES! There is no prohibition as long as the every page, because again of the volume of the document
notarial codicil is in itself valid. Meaning, it has complied with involved. But again, there should still be signatures.
the formalities required by law for notarial wills or holographic Now, can you incorporate by reference into a holographic will
wills, as the case may be. a document which is not in a handwriting of the testator? Naa
siyay inventory na naka-computerized but he executed a
Art. 827. If a will, executed as required by this Code, holographic will, can you incorporate that document into the
incorporates into itself by reference any document or paper, holographic will? Remember, the document to be
such document or paper shall not be considered a part of the incorporated, unlike a codicil na it should be in itself valid as a
will unless the following requisites are present: xxx will. Kaning document incorporated by reference is not in a
form of a will. Okay, so it is really now being incorporated into
Article 827 talks of INCORPORATION BY INFERENCE. As a a will by the process of incorporation by reference. AND,
rule, only those documents which are executed in the form of under Article 810, the holographic will must be entirely written
a will can be probated. If the document is not in a form of a and signed by the hands of the testator. So, you cannot
will, it cannot be probated. But an exception to that rule is the incorporate by reference into a holographic will, a document
rule provided in Article 827. It is because even if the which is not in the handwriting of the testator because it
document incorporated by reference in a will is not in a form would now violate the provisions of Art. 810. But if the
of a will, that document can also be probated as part of a will. document to be incorporated is also in the handwriting of the
testator, there’s no problem, you can incorporate.
REQUISITES FOR
VALID INCORPORATION BY REFERENCE If you are talking of a notarial will, it’s okay as long as you
comply with the requisites under Art. 827.
(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
Subsection 6. - Revocation of Wills and Testamentary
Dispositions

Ad Majorem Dei Gloriam

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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

 When the revocation is done outside the

Art. 828. A will may be revoked by the testator at any time Philippines.
before his death. xxx Then you also have to take into account if the testator is
a resident of the Philippines or non-resident.
What is revocation? Whose act is revocation? Who revokes the
If you are a resident of the Philippines and you
will?
revoke the will outside the Philippines, what law
Okay, so, it is the testator who revokes his will. It cannot be should you observe for the revocation?
revoked by some other person.
 You can observe the law of his domicile. If he is
REVOCATION – The act of the testator in terminating the the resident of the Philippines he can observe
potential capacity of his will to operate upon his death. Philippine law.
So, ‘potential capacity’ because at the time when he executes  You can also follow the law of the place of
the will even if he already signed the will, signed by the revocation. Kung asa niya gi-revoke ang iyahang
witnesses, acknowledged before the notary public, still it is will, he can follow the law of that place.
not operative. It will take effect only upon his death. So, by
If he is a non-resident?
revocation, he terminates the capacity of that will coming into
effect or from being effective. So, ‘at any time before his o Law of his domicile. Actually this is also applicable,
death’, the law says. Of course he cannot revoke his will after if the testator is a non-resident. He can follow the
his death. He can only do it during his lifetime. Because again, law of his domicile or residence. So if he is the
it is only the testator who can revoke his will. resident of the US and he revoked his will in the US,
he can follow the law in the US.
Now if we go to Art. 830, there is in number 1, by implication
of law. So here, the law implies revocation but still the act o In addition, he can follow the law of the place of
here from which implies revocation is the act of the testator. execution (where it was made). Kung asa niya gi
Here, the acts of the testator, the law implies that he intended execute ang will, he can follow the formalities
to revoke his will. So we will discuss that later. So let’s go involved in that law where he made the will.
back to 828.
REMEMBER: In revocation, we don’t consider the national law
of the testator. We only consider his domicile. So the law of
Art. 828. xxx the country of the testator has no significance in revocation.
Any waiver or restriction of this right is void.
Art. 830. No will shall be revoked except in the following
You cannot subject the right of the testator to revoke his will cases: xxx
to any agreement, prohibition, etcetera. It is almost absolute.
Why almost absolute, not absolute, Almost lang? Naa pay So, how can the testator revoke his will? What are the modes
laing limitation under right to revoke? YES! I think we of revocation? There are 3 modes of revocation under Art.
discussed this before when we discussed… Did we? So, the 830.
testator to effectively revoke his will, he should have animus
revocandi, so intent to revoke. If you have animus revocandi, (1) By implication of law; or
you have soundness of mind because you should know the
consequence of this act, the nature of the act of revocation.
It may also be BY OPERATION OF LAW. Here because the
And if the testator, in the meantime, loses the soundness of
testator did some act, the law presumes that because he did
his mind like if he becomes insane, he cannot effectively
that particular act, he intended to revoke.
revoke his will while in the state of insanity. In that case, such
revocation is not valid. So that is the only limitation of the Example 1:
right of the testator to revoke. Kung na ayo na siya, he can
revoke for any reason. Even if no reason, if dili na siya He gave a specific land to A in the will as a devise. Now after
ganahan sa imoha. Okay, so he can revoke. That is the nature he devised it to A, he sold it to X. So what will now happen to
of revocation. the devise of the land to A? By operation of law, the devise to
A is revoked.
So let us go to the laws governing revocation.
What if the testator did not have that intention to revoke the
devise? He just sold it because he needed money at that time
Art. 829. A revocation done outside the Philippines, by a and he had the intention to repurchase it in the future so he
person who does not have his domicile in this country, is
may give it to the devisee. So which will prevail, the intention
valid when it is done according to the law of the place where of the testator or the presumption of law? Because the law
the will was made, or according to the law of the place in
presumes that by such an act by subsequently selling the
which the testator had his domicile at the time; and if the property, the testator intended to revoke the devise but in
revocation takes place in this country, when it is in
reality, there is no such intention. Here, the presumption of
accordance with the provisions of this Code. (n) law will prevail. So how about the intention of the testator?
Authorities say that, he should make manifest his intention by
So we discussed before, the laws governing the intrinsic some overt act. Like for example, kay wala man jud kay
validity of the wills and the extrinsic validity of the will. So intention to revoke the devise, then under the law on legacies
now let us now discuss the law governing revocation. When and devises, if the sale is with a right of repurchase, there is
you speak of revocation, so, there are only two things to no revocation. Because by reserving the right of repurchase,
remember, if the revocation is done in the Philippines or if it is the testator really intended to give effect to the devise, so the
done outside the Philippines or abroad. law can see from that reservation of the right to repurchase
 When the revocation is done in the Philippines. that there is intention to honor the devise. So without that, if
it is just a deed of absolute sale, the law will presume
Here is no problem. You only have to remember one law, revocation. So you should make manifest your intention by
you should revoke it in accordance with Philippine laws. some overt acts.
Example 2:

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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

In case of preterition. There is in a concept of preterition that 3. The second document or instrument must
if in a will, a compulsory heir in the direct line is omitted, the mentioned either contain a revocatory clause or be
institution of heirs in the will shall be allowed. In short, if completely incompatible with the first will.
there is preterition, the will cannot be given effect. Even if it is
4. The second will must be probated.
not the intention of the testator to annul his will, the law
annuls the will because of preterition. So here we have the How is it different from a requirement that the second will
revocation by operation of law. must be valid as a will? Diba, the second requisite is the
second document must be valid as a will. Why do we
(2) By some will, codicil, or other writing executed as have this 4th requisite? Okay for example the testator
provided in case of wills; or made a will in 1990, it is a notarial will, in this will he
gave all his properties to A. In year a 2000, he made a
Or we call it REVOCATION BY A SUBSEQUENT DOCUMENT OR holographic will, this time giving all his properties to B,
INSTRUMENT, so here, the testator made a first will, and the assuming that the first will complied with all the requisites
first will is valid, and then subsequent to that first will, he for notarial wills and the second will complied with all the
made another will, a second will. So in a revocation by a requisites for holographic wills, so it is valid as a
subsequent document or instrument, the second will or holographic will. But you cannot reconcile the two wills
document or instrument, revoked the first will either impliedly because in the 1st “all properties to A”, in the 2nd “all
or expressly. properties to B”. So the second will must have revoked
the 1st will.
When can there be revocation by a subsequent document or
instrument? Now assuming the holographic will was burnt, completely.
Nasunog siya and abo na lang ang nabilin and the
REQUISITES FOR REVOCATION testator died. So the will is probated and *** wala nay
BY SUBSEQUENT DOC/ INSTRUMENT copy sa will because it is a holographic will, he only made
one copy. So a person saw it before it was burnt and
1. The first document or instrument must be valid as memorized all the contents of his will. So now they filed
will. for the probate of the holographic will. What is the effect
2. The subsequent document or instrument should be if you cannot present the copy of the holographic will,
in the form of a will. It should be valid as a will. even in the presence of the witness who is ready to
testify to its contents?
Because if it turns out did that the second instrument did
not comply with the formalities of a will, then it could not Gan vs. Yap
validly revoke a previous will. It may be express or
implied revocation. The holographic will must be presented in court even if
not the original, you can present a carbon copy, a
When can there be express revocation? For example in photocopy, and whatever, as long as there is a copy.
the will, the testator gave his properties to A, B, and C. Because in holographic wills the only safeguard in the
And then he made a second will, in it he gave his authenticity of the will is the will itself. It enables the
properties to X, Y, and Z and he even mentioned in the court to compare the writings of the testator in the will
will that his last will and testament revokes and with the other handwritings in the document executed
supersedes all other instruments, codicils, or wills, by the testator. So he cannot make a comparison if he
executed before this day. We have what we call a cannot see the will.
“revocatory clause” in the second will. If we have a
revocatory clause in the second will, there is no doubt
The witness cannot testify “Your Honor, ang agi sa
that the second will revoked the first will.
testator kay “pinahiwi” ug ang iyahang letter E kay ing-
Another type of revocation is implied revocation as ani. [Translation: Your Honor, the testator’s penmanship
opposed to express revocation. When we say implied is cursive, he writes letter E this way. (CHAROOOT!)] He
revocation, we do not have a revocatory clause in the cannot testify like that. There has to be a physical
second will or document or codicil. But the provisions of examination.
the first will and the second will are completely
So even if the holographic will was validly executed, it
incompatible with each other. In the first will, the testator
cannot be probated. So now, who will get the properties
said I give to A all my properties. In the second will, I
of the testator. Was the 1990 notarial will validly
give to B all my properties. So it is still ‘all’ but now to B,
revoked? In that case NO because the 2nd will cannot be
so how do we construe these wills? Can they stand
probated even if it was validly executed, it cannot be
together? Can we say “share na lang mo kay ikaw man si
probated. A will get the properties of the testator because
first ikaw man si second para fair”? NO! We cannot share
the notarial will was not validly revoked by the
because that is not the intention of the testator, the
holographic will.
intention of the testator is to give only to one. And to
whom? They cannot be reconciled. They are completely (3) By burning, tearing, cancelling, or obliterating the will
incompatible. So under the law on revocation, the 2nd will with the intention of revoking it, by the testator himself, or
must have revoked the 1st will because the 2nd will is the by some other person in his presence, and by his express
latest expression of the intention of the testator. So that direction. If burned, torn, cancelled, or obliterated by some
is implied revocation. other person, without the express direction of the testator,
The subsequent document or will must be valid as a will, the will may still be established, and the estate distributed in
again because even they are completely incompatible accordance therewith, if its contents, and due execution, and
with each other but the second document or second will, the fact of its unauthorized destruction, cancellation, or
for example it is a notarial will, and it only has two obliteration are established according to the Rules of Court.
witnesses there, so it is not valid as a will. Any revocation (n)
contained in that document will not be effective. So it has Or we call this revocation BY OVERT ACT. There are four
to be valid as a will. overt acts mentioned in paragraph 3 of Article 830. We have
burning, tearing, cancelling, or obliterating.

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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

 BURNING, at least a portion of the will bears the fact there is no express revocatory clause in the 2nd will, then
that it was burnt. It must appear that it was really there is only implied revocation.
burnt even if the will is not entirely burnt or you can
There may also be total or partial. For example when only
still read a part of the provisions of the will.
portions of the first will are affected of the inconsistency in
 TEARING, you don’t have to tear it into a thousand the second will. Only those which are affected are considered
pieces. You can even tear it in two parts and still, the revoked.
will can be considered as revoked.
 CANCELLING, so you cancel llke how you cancel your Art. 832. A revocation made in a subsequent will shall take
answers in your exams. You put a line across the effect, even if the new will should become inoperative by
will, so that’s cancelling. reason of the incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation. (740a)
 OBLITERATING, you obliterate the words in the will.
Even if the words can still be read after the testator There is a revocation in a subsequent will. Again we are
tried to obliterate the will is still revoked as long as talking here of revocation by a subsequent document or
there is an act of obliterating manifested in the will. instrument. The first will is revoked by a second will.
Now, take note that revocation under this mode of revocation, Example:
we have the overt acts plus the intent to revoke or
animus revocandi. They should go together. Overt act alone In the first will the testator instituted A, B, and C to his entire
without intent to revoke will not produce revocation. Intent estate. In the second will, the same testator instituted X, Y,
alone without overt act also will not produce revocation. Even and Z to the same entire estate. So, under the concept of
if the will was torn, if it was torn accidentally without intent to implied revocation by a subsequent document or instrument
revoke, then there is no revocation. the first will has been revoked by a second will. The
consequence of that revocation is that A, B, and C will no
One example given by authorities is, for example, the testator longer be entitled to receive from the testator. It will now be
wanted to revoke his will, so he had all the intention to revoke X, Y, and Z. However, X, Y, and Z became incapacitated.
his will. His will was sealed inside an envelope. Then he threw Maybe X predeceased, Y became disqualified, and Z
the envelope into a stove which was burning. And then when renounced his inheritance. So, we now have an ineffective
he saw it starting to burn, the testator left and he was will, the second will. The second will is still a valid will but now
satisfied na the will was really burnt. And then a person, who it is considered an ineffective will because of the predecease,
is an heir, but a voluntary heir only, he did not want the will incapacity, repudiation of the heirs instituted in that will.
to be revoked. He tried to save the will, and when he opened
it, the will is still intact. Now, the question is, was the will Would it now mean that the first will is revived? Will it be now
revoked? Diba, overt act plus intent to revoke. The overt act A, B, and C? The law says NO! The first will still remains to be
must be made manifest in the will. Here, there is no act of revoked. A revocation made in a subsequent will shall take
burning which is manifest in the will, only the envelope, but effect even if the new will should become inoperative by
the envelope is not part of the will. Here, there is no reason of the incapacity of the heirs, devisees, or legatees or
revocation by overt acts. But in so far as the heir who by their renunciation. So this is what we now call the
prevented the testator in revoking his will is concerned, there DOCTRINE OF ABSOLUTE REVOCATION. So the
is revocation by operation of law because that act of the heir revocation still stands.
is one of the grounds for disqualification under the law on
incapacity to succeed. So, there is no revocation by overt act Art. 833. A revocation of a will based on a false cause or an
but there is revocation by operation of law in so far as that illegal cause is null and void. (n)
heir who prevented the testator in revoking his will is
concerned. Again, both act and intent.
So a REVOCATION based on a FALSE CAUSE or an
Now, the law mentions only 4 acts: burning, tearing, ILLEGAL CAUSE, meaning, he was mistaken in the reason
cancelling, or obliterating. Can there be other acts which could for his revocation. The law says that revocation fails, that
be used to revoke the will? Are we limited to the four acts revocation is not effective. It is as if there is no revocation.
mentioned?
In relation to that, we have the DOCTRINE OF DEPENDENT
RELATIVE REVOCATION. It says, the rule is established
ROXAS vs. ROXAS (GR 4808177) that where the act of destruction is connected with the
It was mentioned there that the overt acts may not limited to making of another will so as fairly to raise the inference that
burning, tearing, cancelling, or obliterating. In this case, the the testator meant the revocation of the old to depend upon
act of the testator was crumpling. Gi-kumot niya iyahang last the efficacy of a new disposition intended to be substituted,
will and testament. the revocation will be conditional and dependent upon the
efficacy of the new disposition; and if, for any reason, the new
The court here impliedly admitted the act of crumpling as an will intended to be made as a substitute is inoperative, the
act of revocation because there was also animus testandi. revocation fails and the original will remains in full force and
So, as long as the act is an act of destruction with animus effect.
revocandi, that can be considered an act of revocation.
Example:
The testator made a will, a notarial will in 1990. In that will he
Art. 831. Subsequent wills which do not revoke the previous instituted A as his heir. So the will is valid, it complied with all
ones in an express manner, annul only such dispositions in the formalities required by law. Then, he changed his mind.
the prior wills as are inconsistent with or contrary to those He revoked his will. So he executed another will in year 2000.
contained in the latter wills. (n) This time leaving all his properties to B. it is also valid. It
complied with all the requisites required for notarial will. So
here, we have a subsequent document or instrument. This
We have already discussed this under Art 830 par. 2,
instrument is intended to revoke the first will. Now, thinking
revocation by subsequent document or instrument. This is the
that okay na iyahang second will, he burned the first will with
CONCEPT OF IMPLIED REVOCATION; that the two
intent to revoke also on the belief that the second will is
documents are completely incompatible with each other. So,
already valid. It turned out that the 2nd will is not valid, it

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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

lacked one formality, for example, there are only two It is not valid. He made it during the state of insanity. Even if
witnesses or there are margins left unsigned. So it is not valid. he regains sanity later on as long as he was insane at the time
that will is made, the will remains to be void. Subsequent
So the question here is: who is entitled to the estate? Will it
capacity does not validate the will.
be A or B or if none of them, the legal heirs? Was the first will
revoked by the second will? What is the proper thing to do in that case since he really
wanted that will to become his last will and testament?
First, can you give the estate to B? No, because the second
will is not valid. Definitely, B is out of the picture. But it was The proper way for him to adopt that will is by republication.
contended, since when you say revocation by a subsequent He should republish the will. We have the concept of
document or instrument, one of the requisites for the second REPUBLICATION. It is the re-establishment of the testator
document to revoke the first will is that the second document of a previously revoked will or one invalid for want of proper
must be valid as a will. As we said, this is not valid since it execution as to form or for other reasons so as to give validity
lacked the formalities. So, definitely, here the 2nd will did not to said will.
revoke the 1st will. But it was argued that yes, the first will
was not revoked by the 2nd will, but the first will was revoked Subsection 7. - Republication and
by an overt act since it was burned by the testator. So the Revival of Wills
first will was revoked not by a subsequent will but by an overt
act. So the estate should now go to the legal heirs. Is this
contention correct?
Art. 835. The testator cannot republish, without reproducing
DE MOLO vs. MOLO in a subsequent will, the dispositions contained in a previous
one which is void as to its form. (n)
The SC used the Doctrine of Dependent Relative Revocation.
Here, although he intended to revoke the 1st will by the overt
act of burning but such act of burning was prompted by the It talks about a will which is void as to its form. The law says
false belief of the testator that the 2nd will was already valid he cannot republish without reproducing in a subsequent will
that is why he burned the first will. But it turned out that the the dispositions contained in the previous one which is void in
second will was not valid, so the reason for the revocation its form. Here, the law talks of the one mode of republication;
fails and the 1st will is not validly revoked. So the cause of this is EXPRESS REPUBLICATION or REPUBLICATION
the burning was caused by the false belief. So that is the BY RE-EXECUTION. This is required if the original will is
meaning of the Doctrine of Dependent Relative Revocation. void as to form.

From full text: “xxx the revocation of the old to depend When is the will void as to form? When the formalities
upon the efficacy of a new disposition intended to be required by law has not been complied with. If it is a notarial
substituted, the revocation will be conditional and dependent will, the formalities required under 804-808 are not complied
upon the efficacy of the new disposition; and if, for any with. If it is a holographic will, the formalities required under
reason, the new will intended to be made as a substitute is 810-814 are not complied with. So these are the will which
inoperative, the revocation fails and the original will remains are void as to form. Like wala na notaryohan ang notarial will,
in full force and effect.” or the attestation clause lacks the statements required by law.
If it is holographic will, maybe the date is stamped. So, void
as to form.
So that is an example of revocation based on a false cause.
How about if the testator was insane at the time of the
Art. 834. The recognition of an illegitimate child does not execution or he was not 18 years old? Well, that will is also
lose its legal effect, even though the will wherein it was void but not as to form. Void as to form does not include the
made should be revoked. (714) testamentary capacity of the testator. So under Art, 835, if the
will is void as to form, the only way to republish the will, is to
reproduce all the provisions of the old will. This time, you
I think we discussed this before in the essential elements and
have to comply with the formalities. Again, that is express
characteristics of wills. As we mentioned, for a document to
republication or republication by re-execution, you have to re-
be considered as a will it must contain the disposition of
execute.
property. So when it only contains the recognition of an
illegitimate child, that is not a will, therefore, to be effective, If the will is void but not as to form, how do you republish the
that does not have to comply with the formalities of wills. will? That revoked will is not void as to form, like the example
was that when the testator was insane, and he wanted to give
Under article 834, also even if the will where the recognition is
effect to it. Like if he tore it apart and realized he wanted to
made shall be revoked, the recognition shall still stand
make it his last will and testament. You have to republish the
because the recognition of an illegitimate child is not a
will. How? You can republish that kind of will by implied
testamentary disposition. It does not need a probate to be
republication or REPUBLICATION BY REFERENCE or
effective.
IMPLIED. So in republication by reference, you need not
Under the Family Code, we have there evidence required to copy all the provisions of the old will, you just state “I
prove illegitimate filiation. We have a public record of birth, or executed a last will and testament last Nov. 1, 2010 that will
a private handwritten document, or a private document is already revoked or at that time I was insane or minor, but I
subscribed by the putative parents, or a will where there is a want to give effect to that will, so all the provisions of the old
recognition of an illegitimate child is valid as a recognition will dated Nov. 1, 2010 are hereby reproduced and
although it is not valid as a will. republished.” So you need not copy the provisions of the old
will. Although you have to have a copy of the old will to have
Example:
a reference. How would you know the contents of the first will
You have a testator who made a will when he was insane, he since you did not have to write it in your 2nd will. You can
was 18 years old but insane. So the will is not valid. annex it. You don’t to re-execute everything. That is allowed if
Subsequently, he was cured. He regained sanity. He wanted the will is void but not as to form.
to keep the will which he made when he was insane. He
If for example, you really want to re-execute it? It is void but
adopted the will, he even showed it to his relatives. Then, he
not as to form? Is it valid? YES, there is no prohibition. But
died. Can that will be probated? Is that will valid?
what you cannot do is if the old will is void as to form and

Ad Majorem Dei Gloriam

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

then you just republish it by reference. That is not allowed. It expressly revoked, the first will is not revivied. So that is the
should be by republication. PRINCIPLE OF INSTANTER. The first will is not revived.
Unlike that situation where the first will is just impliedly
Art. 836. The execution of a codicil referring to a previous revoked by a 2nd will. If that 2nd will is itself revoked, what will
will has the effect of republishing the will as modified by the happen to the first will? It is now revived. So that is the
codicil. (n) concept of REVIVAL. We discussed republication, diba?

Here, we have a codicil referring to a previous will. So the What is revival? It is the re-establishment of validity by
scenario here is, there is a will and then after the will is made, operation of law of a previously revoked will. The concepts of
the testator made a codicil and then in the codicil he also republication and revival are more or less similar because
referred to the first will. Maybe in the codicil, he added some there is a first will and then it is not valid but the 1st will is
dispositions or corrections and in that codicil he mentioned again, given effect.
that the provisions of the first will, insofar as are not In republication, the will is re-established to validity by the
inconsistent with this codicil are still in full force and effect. It testator.
made reference to the first will. What is the effect of this
referencing? That has the effect of republishing the first will. In revival, the will, which is no longer valid, is ‘revalid’ by law.
Meaning, it is as if you re-executed the first will, but because, It is giving effect again to an otherwise void will.
like for example the will was made in 1990 and the codicil in The difference there is that revival is the act of law, while
year 2015. So by making a codicil in year 2015, which made republication is the act of the testator. So those are the
reference to the will made in 1990 it is as if the 1990 will is similarities and the distinctions.
republished in year 2015, and it is as if the 1990 will is made
in 2015. So that’s the new date of publication as republished Again, Article 837 is the Principle of Instanter. Take note that
by the codicil. in 1st will is expressly revoked by the 2nd will.

One important consequence of this is in relation to Article 793. In revival, the 1st will is just impliedly revoked by the 2nd will
Under 793, the legacy or devise does not include those and then if the 2nd will is revoked, then the 1st will is revived.
properties acquired after the execution of the will but before So that’s the example of revival.
the death of the testator. So only those properties existing at Another example of revival would be, diba I mentioned to you
the time of the execution of the will can be made part of the the concept of preterition. So if there is preterition, the will is
legacy or devise. So after-acquired properties are not annulled, but assuming that the preterited or omitted heir dies
included. ahead of the testator, and the preterited heir has no heirs of
Also under 793, we discussed one exception, it is when the his own, has no representatives, then in that case the will is
testator expressly provides otherwise. When he mentions in a revived. I don’t know if you understand, maybe we can
will that if there is addition to his properties after the understand that when we go to preterition. But again, that is
execution of the will, those additional properties are also an example of revival.
included in the devise or legacy, so when the testator dies, So, we now go to probate.
the devisee or the legatee can claim those additional
properties. So that’s one exception.
Subsection 8. - Allowance and
The second exception is the one which we are discussing now, Disallowance of Wills
under Art 836, where the will is republished by a codicil. For
example, in 1990, the testator made a will giving to A a 10-
hectare land, “I hereby give to A my land in Calinan, Davao
City, the land has 10 hectares”. Supposedly near 2005, there Art. 838. No will shall pass either real or personal property
is accretion which increased the area. It now became 12 unless it is proved and allowed in accordance with the Rules
hectares. Under 793, would this be included in the legacy or of Court.
devise? NO! The 2 hectares additional is considered as after-
The testator himself may, during his lifetime, petition the
acquired property. So it will not be included in the legacy or
court having jurisdiction for the allowance of his will. In such
devise. When the testator dies, he can only claim 10 hectares.
case, the pertinent provisions of the Rules of Court for the
Unless the testator expressly provided in his will that the
allowance of wills after the testator's a death shall govern.
additional properties are likewise included.
The Supreme Court shall formulate such additional Rules of
Second, under Art. 836, for example, in year 2015, the
Court as may be necessary for the allowance of wills on
testator made a codicil and in that codicil he reiterated the
petition of the testator.
provisions of his will made in 1990, “I hereby give to A my
land in Calinan, Davao City, the land has 10 hectares”. So in Subject to the right of appeal, the allowance of the will,
2015, how many hectares are there? 12 hectares already either during the lifetime of the testator or after his death,
because of the accretion. And the codicil republished this will shall be conclusive as to its due execution.
in 2015. Upon the death of the testator, what can the devisee
claim? The 10 hecatares only or the 12 hectares? Because of So, Article 838 provides that the will has to be probated. No
republication it is as if the 1990 will was made in 2015. So, will shall pass either real or personal property unless it is
strictly speaking, we cannot call the 2 hectares as after- proved and allowed in accordance with the Rules of Court. So
acquired property. It is considered as an exception. this is the process of probate.

Art. 837. If after making a will, the testator makes a second LASAM VS. UMENGAN
will expressly revoking the first, the revocation of the second GR 168156, Dec. 2006
will does not revive the first will, which can be revived only
by another will or codicil. (739a) As just discussed what is probate, to probate a will means to
prove before some officer or tribunal, vested by law with
authority for that purpose, that the instrument offered to be
Here, we have a first will and then the 1st will is expressly
proved is the last will and testament of the deceased person
revoked by a 2nd will. So we are talking here of revocation by
whose testamentary act it is alleged to be, and that it has
subsequent document or instrument. But the 2nd document
been executed, attested and published as required by law,
has revocatory clause, express revocation. If that 2nd will is

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

and that the testator was of sound and disposing mind. It is Last meeting, we discussed probate under article 838. As we
a proceeding to establish the validity of the will. already discussed, an un-probated will cannot be used as a
foundation of any right or claim. Probate is mandatory. It is
So based on Article 838, probate is mandatory. In this case, required by public policy because unless the will is probated,
there was an unlawful detainer case filed, and ejectment the right of a person to dispose of his property mortis causa
case. Lasam here filed a complaint for ejectment against may also be rendered nugatory. That is why probate is
Vicenta Umengan who was occupying the property but then mandatory.
Umengan said the she was occupying the property not
because of tolerance or any contract of lease with Rosendo
Mercado v. Santos
Lasam but because her children inherited the property by
intestate succession from the deceased Pedro Cantupay. So As mentioned by the Supreme Court in this case as in other
that was their defense. However, Lasam there presented a cases, probate is a proceeding in rem. When you say that it
copy of a last will and testament allegedly executed by Isabel is a proceeding in rem, it is binding against the whole world.
Cantupay, the wife of Pedro. So in that will, the land was You cannot say that you were not able to participate in the
devised to Rosendo Lasam, so he said he was entitled to the proceeding or that you are not bound. That is not correct. It
land. The will was not yet probated at the time but the RTC is distinguished from an action in personam where you have
ruled in favor of Lasam on the basis of that last will and to be a participant to be bound.
testament. And the court just mentioned that since probate
does not prescribe, this ruling is without prejudice to the Here, the decree of the probate court, once entered, is
probate of the will. The question is, was the court correct in binding against the world. The minimum requirement here is
relying upon the last will and testament as basis in saying just publication. You have to publish the notice of the court
that Lasam had a right over the property? Because the court setting the case for hearing unless it is the testator himself
also said here that testacy is favored over intestacy. We have who filed the petition. That is not required to be published.
a will, in the will, Lasam was instituted or given a property In post mortem probate, it is publication that serves as
and while the defendant is relying upon legal succession or notice to the whole world. It is jurisdictional. If the notice is
intestate succession, so we give effect or favor testacy. not published, the whole proceeding is null and void.

The SC said that the RTC committed an error in relying upon Alsua-Betts v. CA
the will because we should note that the will was not yet
probated, so it is basic that no will shall pass either real or The Supreme Court said that the principle of estoppel is not
personal property unless it is proved and allowed in applicable in probate proceedings. You cannot say that the
accordance with the Rules of Court. And an unprobated will parties are already estopped from filing the petition for
cannot be a basis of any right, it cannot be used as a probate.
foundation. Until admitted to probate, it has no effect For example, we have the heirs and we have a last will and
whatever and no right can be claimed thereunder, the law testament but the heirs did not probate the last will and
being quite explicit. testament. Instead, they entered into an extrajudicial
partition. They partitioned the property among themselves.
VDA. DE KILAYKO VS. JUDGE TENGCO. (GR NO. L- Later on, one of them who was a participant in the
45425) extrajudicial partition, filed a petition for probate even if he
So that is one characteristic of probate proceeding, it is already received shares from the extrajudicial partition.
mandatory. If you have a will, if it is not probated you cannot Can he be said to be already in estoppel because he already
use it as basis or foundation of your claim. That was participated in the extrajudicial partition and, therefore, he
discussed in this case. cannot subsequently impugn the extrajudicial partition and
petition the court for the probate of the will?
Next is, probate is required by public policy. As discussed also
in the case of Lasam vs. Umengan. No, he cannot be said to be in estoppel. There is no estoppel
in probate proceeding. The principle of estoppel will not
apply here. That is the basic principle.
MANINANG vs. COURT OF APPEALS
(114 S 478)
In Re: Pilapil
The law enjoins the probate of the Will and public policy
requires it, because unless the Will is probated and notice The Supreme Court said that the right to ask for probate
thereof given to the whole world, the right of a person to does not prescribe. There is no prescriptive period within
dispose of his property by Will may be rendered nugatory. which to institute a probate proceeding. Even if the decedent
or the testator died a hundred years before, still, probate can
What is the reason why is it required for us to undergo the be availed of.
process of probate when there is already a document?
Because even if there is a document purporting to be the last Just remember that once the petition is filed, you are already
will and testament of Juan Dela Cruz for example, but they bound by the reglementary periods under the rules of court.
are not sure if it is really his last will and testament. For example, you filed a petition for probate and then the
What if you just distributed properties in accordance with court disallowed the probate, so you have a period within
that document when in truth and in fact he did not execute which to appeal. What if you did not file an appeal? You just
the will? So his desire was just to distribute among his legal waited for two years, then afterwards, you filed another
heirs? So without probating the will, we did not comply with petition for probate. The rule is that the right to ask for
the real wishes of the testator, we defeated his intentions. probate does not prescribe. Are you allowed to refile the
petition? No, because once you have filed, you have to avail
So that’s when his right to dispose of his properties was of all the possible remedies under the rules of court, and you
rendered nugatory because we did not probate the will. We are already bound by the reglementary periods.
did not make sure if that was really his intention.
Dela Rosa v. Archangel
The Supreme Court clarified that there is no action for an
August 20 (FJB) annulment of a will. You are not allowed to institute an

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

action for the annulment of the will. direct interest in the proceeding.
What if you do not agree to the contents of the will? Your
remedy is to oppose the probate. Maloles v. Philips
This is involving testamentary succession, there is a will and
What if nobody files a petition of the probate of the will? then a nephew intervened in the probate proceeding.
I think I already mentioned a case I handled wherein nobody Can a nephew participate in a probate proceeding? Is he an
filed a petition for the probate of the will. Not even the person interested party? The Supreme Court said no because a
appointed as executor instituted the probate proceeding. nephew is not a compulsory heir.
Maybe he was scared that there will be a disallowance Take note that in testamentary succession, the testator can
because the will may be defective. He was threatening his co- even exclude his brothers, sisters, uncles, aunts, nephews,
heirs that they are disinherited in the will. Nevertheless, he and nieces because they are just legal heirs. If there is no
was willing to give them a little because he pity them. What will, they are considered as proper parties. They have
we did was we just delivered to the court a copy of the will personalities only if they are not excluded also by the
because, as discussed in the case of Rodriguez v. Borja, under presence of other relatives like the children and ascendants.
rule 76 of the rules of court, the court acquires jurisdiction In that case, they are allowed only if there are no other
once a copy of the will is delivered to the court or a petition relatives. But in testamentary succession, they are not
for probate is instituted. compulsory heirs, so, according to the Supreme Court, they
are not proper parties to intervene,
So, once the court receives a copy of the will, it shall set the
time, date, and place for hearing. The persons who want to We already discussed before the rules in probate of
oppose may present their opposition. So, you do not have to holographic wills. If the will is not contested, at least one
wait for the will to be probated. You can deliver a copy of the witness who can explicitly identify the handwriting and the
will to the court. signature of the decedent is required. If the will is contested,
atleast three of such witnesses is required.
Dela Rosa v. Archangel
AZAOLA v. SINGSON
Also, if there is a petition for probate, you can file an
As discussed in this case, we know whether or not a witness
opposition. There is no such thing as annulment of probate
is mandatory in the probate proceedings.
of the will.
From 2014 TSN: In the case of, the presentations of expert
Who may be allowed to intervene in probate proceedings? witnesses are permissive, not really mandatory. During the
execution of holographic wills, there were no witnesses, so it
LEVISTE V. CA is really possible that during the probate of the holographic
will, there were no such witnesses who know the handwriting
How did Atty. Leviste intervened in the case?He filed a of the testator. So, it was not mandatory to present expert
motion to intervene in the case to claim for his professional witnesses. Take note that in the execution of the holographic
services as counsel but this was denied by the court. will, no witnesses are required. When you require 3
witnesses, you are requiring not merely 3 witnesses but 3
That was before the court disallowed the will, but after the
witnesses who can explicitly declare that signature or
disallowance, what did Atty. Leviste do?He appealed to the
handwriting is really that of the testator and sometimes it is
ca the disallowance of the will.
just close to impossible. Because you cannot just find that
What was his reason?He cited article 1052 which says that witnesses.
he has a right to protect his interest in the case.
Issue: WON he can appeal the disallowance of the will. In our discussion, we also clarified when a will is considered
WON he is the proper party to appeal the disallowance. as contested.

How about his contention that he is a creditor of Del Rivera v. IAC

Rosario?
The oppositor there was proved to be not the illegitimate son
How about the status of del Rosario as an heir? of the testator, so even if he contested the probate, there
What does 1052 presuppose? was no contest in the legal sense because the one who
opposed has no personality to intervene in the proceeding.
Who was supposedly liable? Del Rosario, but del Rosario is Therefore, the presentation of three witnesses in thatcase is
not an heir, therefore, 1052 does not apply. not required.
Here, did Atty. Leviste have personality to participate? No.
As to probate of notarial wills, you also have rule 76 of the
What would it take for one to be allowed to intervene or rules of court. If the will is not contested, then the testimony
participate in probate proceedings? What is required?He of one subscribing witness is sufficient. If the will is contested,
must have a direct interest in the case. Strangers are not all the subscribing witnesses and the notary public must
allowed to participate in probate proceedings. testify. If they are insane, dead, absent in the Philippines, or
What is the reason for the rule? they testify against the due execution of the will, or they are
of doubtful credibility, or they do not remember the contents
Even if they know the circumstances when the will was of the will, then the testimony of all the witnesses is required.
executed, they cannot be participant or intervenors but they
can be witnesses. They cannot be oppositors because they We have two kinds of probate:
do not have a direct interest in the proceedings. To have a  Ante mortem probate – It is the testator himself
direct interest means that they should be directly affected by who petitions the court for the probate of his will.
the result of the proceedings, either they will be benefitted
or they will be adversely affected or injured. In this case,  Post-mortem probate – It is the interested party
Atty. Leviste was not considered as a person who has a who files the petition for probate. It can be filed by

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

any interested party whether the executor, they have to file a separate action in another proceeding in
administrators, any one of the heirs, or creditors. the regular courts to litigate the issue on ownership.
There are two phases in probate proceedings: Or, another example, like in this case, the executor said that
these properties are to be included but in the title the
 Probate proper – In this phase, the court looks into
properties are not in the name of the testator. The court
the extrinsic validity of the will.
should exclude the properties from the inventory. Should the
 Distribution phase – In the second phase, after executor insist that these properties are owned by the
the will is allowed probate, then they go to the testator, he should file a separate case for the recovery of
distribution [of properties] in accordance to the will. those properties alleged to be part of the estate. Again, this is
The court now looks into the intrinsic validity of the because the probate court does not dwell into matters
will. pertaining to the intrinsic validity of a will. Ownership pertains
to the intrinsic validity of the will.
We go now to the probate proper. During probate, what are
the matters discussed and resolved by the probate court? Also, under your land titles and deeds, if you have a title and
Matters pertaining to the extrinsic validity of the will. What are you are alleging that it is null and void, what is the principle
these matters specifically? there? A certificate of title is not subject to collateral attack. In
this particular case of Kayanan, is that a collateral attack or a
1. Question of identity – whether the will presented direct attack? Collateral attack. The main action in this case is
is the same will executed by the testator; for the probate of the will. So, you have to file a separate
2. Question of testamentary capacity – whether petition for the cancellation of title which is a direct action.
the testator had testamentary capacity at the time he That is more reason why the probate court should not rule on
executed the will; and, the validity of titles.

3. Question of due execution – whether the testator

CHING V. RODRIGUEZ
executed the will voluntarily. He was not coerced.
There was no fraud, mistake, or violence. Whether In relation to our topic, what is the issue in this case? WON
he understood what he executed. the case should be resolved in a special proceeding and not in
an ordinary civil action.
Those are the three matters pertaining to the extrinsic validity
of the will that are discussed during probate proper. What was the nature of the action filed here? Complaint for
disinheritance, waiver, and extra-judicial settlement.
What is the consequence of this? During probate:
Is this case a special proceeding or an ordinary civil action?
 You cannot raise questions relating to filiation as a
How do you distinguish them as their nature? As defined in
general rule. You cannot say that the testator is
the rules of court, a special proceeding is a remedy by which a
disqualified to give to the mistress.
party seeks to establish a status, a right, or a particular fact.
 So, the qualifications of the heirs or their capacity to For example, probate of wills when you seek to establish the
succeed are not discussed during probate proper. status of the testator, adoption when you seek to establish
the status of a person as an adopted child, correction of
 Whether or not there is impairment of the legitimes entries in the civil register, habeas corpus, etc.
is not discussed during probate proper.
What is a civil action? [It is] when you sue for the
 Whether or not the testator owns the property enforcement of or protection of a right, or the prevention or
included in the will [is likewise not discussed during redress of a wrong. When you committed a wrong or a
probate proper]. violation was committed against you, so you file a civil action
These are matters pertaining to the intrinsic validity of the in court for relief.
will. They are discussed during the distribution but not during In a special proceeding, you do not have an adverse party. In
probate proper. This was discussed in several cases. a civil action, you have a specific opponent.

MAGALLANES V. KAYANAN In this case, is this a special proceeding or an ordinary civil

action? Ordinary civil action.
What was the ruling of the probate court with respect to the
codicil? In the first place, why was this issue brought up? Because
there was a prayer for disinheritance.
What is the status of the title? Null and void.
What did the Supreme Court say about this?
What did the probate court order the ROD?To transfer the
testatrix’s title to the Kayanans. Remember, in special proceedings, the court can only discuss
the three matters pertaining to the intrinsic validity of a will.
Wat is the issue in this case? Whether or not the probate So, how can it be a special proceeding if, in the first place,
court has jurisdiction to declare as null and void the certificate there was no will presented? Therefore, it is was not a special
of title. proceeding but merely an ordinary action for recovery of
Ruling: No ownership to the property.

If there is a property sought to be included in the proceeding, Let us go to the exceptions. Again, the general rule is that
what is the proper remedy?[The court’s jurisdiction extends] only matters pertaining to the extrinsic validity are resolved in
only to determine whether it is to be included or excluded in the probate proceeding. Meaning, only questions of identity,
the inventory. testamentary capacity, and due execution. What are the
But what if there is an issue as to ownership?There must be a exceptions? When can the probate court determine issues
separate action filed with the regular courts to resolve the pertaining to the intrinsic validity of the will?
issue of ownership. For example, the properties are under the
name of the testator. The presumption is that these properties CAYETANO V. LEONIDAS
are owned by the testator. So, the court will have to order the What is the alleged issue on the intrinsic validity of the will?
inclusion of these properties in the inventory. If third parties
claim that these properties are actually owned by them, then We discussed before in article 16 the matters pertaining to the

Ad Majorem Dei Gloriam

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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

extrinsic validity of the will. What law governs the intrinsic proceeding. That decision of the court to include the property
validity of the will? The national law of the decedent. So, to in the inventory is not a final determination and does not
determine whether or not the will is intrinsically valid, we have constitute res judicata. That ruling is merely provisional. The
to look at the national law of the decedent. But again, in a issue on ownership can still be threshed out in another
probate proceeding, the court is limited to matters pertaining proceeding to determine ownership.
to the extrinsic validity of the will. So, why should we, in the
Again, these are provisions relating to the exercise of the
first place, examine the national law of the decedent when it
probate court of its jurisdiction. The jurisdiction of the probate
is a matter pertaining to the intrinsic validity of the will? What
court is what we call as limited jurisdiction, involving those
is the ruling of the SC?
three matters pertaining to the extrinsic validity of the will. If
What is the specific term used if a compulsory heir, for the court, in the meantime, goes beyond its jurisdiction to
example a child, is deprived of his legitime? Preterition. resolve those matters pertaining to the intrinsic validity of a
Whether or not there is preterition is a matter pertaining to will, these are not final. These would not constitute res
the intrinsic validity of a will. Why should the probate court judicata. These are merely provisional. These are just
resolve that even if that is a matter pertaining to the intrinsic exceptions to the general rule. But as to the matters
validity of a will? Why would it be practical to resolve the issue pertaining to the extrinsic validity of the will, the decree of the
of preterition even during probate proper? [It is] because court will constitute res judicata. What happened in the case
when there is preterition, the institution of heirs will be of Mercado v. Santos?
allowed. So, even if the will is validin form, still the will cannot
be given effect [due to preterition]. We will just be wasting MERCADO V. SANTOS
the time, resources, and efforts of the court and the parties in
going through these questions pertaining to the extrinsic What is the effect of the decree of the probate court?It
validity of wills if, after twenty years of probate, you will say establishes an incontrovertible or conclusive presumption as to
that the will is valid but sorry it cannot be given effect the due execution of the will.
because there is preterition. That would be a waste of time. What would happen if for example a criminal case for perjury
So, if preterition is alleged, it would be more practical to meet would be allowed to prosper?
the issue to determine if there is sense in going through the
process. Why did the court not allow the criminal prosecution for
perjury?
Preterition was evident in the face of the will, so it has to be
resolved. When you say that the decree of the probate court is a
conclusive presumption as to the due execution of the will, it
But not in all cases where preterition is alleged that the court means that it is already settled that the will was executed by
will resolve the issue during probate proper. For example,the the testator. If you allow the criminal prosecution for perjury
issue is whether or not it is preterition or disinheritance, you to prosper, you will be disturbing the final, executory, and
still have to resolve the extrinsic issues of identity, conclusive decree of the probate court as to its execution.
testamentary capacity, and due execution. Meaning, you have That would not be allowed. The decree of the probate court is
to resolve the extrinsic validities of a will because if conclusive as to the three extrinsic matters of identity,
disinheritance is alleged, you first have to determine whether testamentary capacity, and due execution of the will and
the will is extrinsically valid. Even if preterition is alleged but constitutes res judicata.
there are legacies and devises also mentioned in the will, the
institution of heirs is allowed but the legacies and devises,
insofar as they are not inofficious, meaning it will not impair Sept. 3, 2015 (ZM)
the legitime of the heirs, will be given effect. A legacy or
devise cannot be given effect without going over the extrinsic
Art. 839. The will shall be disallowed in any of the following
validity of a will, so even if preterition is alleged, you do not
cases:
skip the probate proper. You still have to determine the
extrinsic validity of the will. (1) If the formalities required by law have not been complied
with;
In other cases, the probate court resolves the issue on
ownership, which is a question pertaining to the intrinsic (2) If the testator was insane, or otherwise mentally incapable
validity of a will during probate proper. If the question of of making a will, at the time of its execution;
ownership is for the purpose of determining whether or not
the property should be included or excluded in the inventory, (3) If it was executed through force or under duress, or the
the court may determine the question of ownership. Again, influence of fear, or threats;
going back to the case of: (4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
Rivera v. IAC person;
On the question of filiation, which is a matter pertaining to (5) If the signature of the testator was procured by fraud;
the intrinsic validity of a will, in this case, the court has to
determine the issue during probate proper so as to know if (6) If the testator acted by mistake or did not intend that the
the person opposing the probate has personality to oppose instrument he signed should be his will at the time of affixing
the proceeding. his signature thereto. (n)

In most cases where the court decides to resolve the intrinsic Under article 839, we have the grounds for the disallowance
validity of the will, the ruling of the probate court on this of wills. So the wills mentioned under 839 are void wills
aspect would not be final and would not constitute res because of the grounds mentioned.
judicata. So, even if the court says that this property should 1. The formalities required had not been
be included in the inventorybecause the title is in the name of complied with. So the forms required by law
the testator, such is not a final determination as to the for notarial and holographic wills.
ownership of the property. For all we know, even if the title is
in his name, he may have sold the property before. So, the
question of ownership can be threshed out in a separate

Ad Majorem Dei Gloriam

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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

2. If he was not of sound mind so he was insane properties. So the probate of the will was opposed by his
or incapable of making then will. So sister on the ground that the will was not executed and
testamentary incapacity. attested as required by law, that the will was executed under
duress of the influence of fear or there was undue or
3. If there was force or was under duress or
improper pressure or influence and there was fraud and he
influence of fear or threats. So his consent
did not intend that the instrument should be his will at the
was vitiated. The same with numbers 4, 5 and
time he affixed his signature.
6. His consent was vitiated.
The sister alleged that it was highly dubious for a woman at a
The grounds mentioned are EXCLUSIVE. There are no other
young age to plunge into a marriage with a man who was
grounds to disallow a will except perhaps for another ground,
thrice her age and who happened to be a Fil-American
REVOCATION. Because if the will has been revoked even if
pensionado. According to her, it defies human reason, logic
the will complied with all the formalities and the testator had
and experience for an old man with a severe psychological
testamentary capacity, even if he executed the will freely and
condition to really have signed the last will and testament.
voluntarily and not with vitiated consent, but if you revoke the
Under this circumstances, the sister alleged that there was
will, the will is now void and it will be disallowed if it is proved
fraud, undue influence etc.
that the will presented for probate has already been revoked.
The SC said that fraud is a trick, secret, device, false
As so what is force, fear, force, threat, fraud, you discussed
statement or pretense by which the subject is instituted. It
that under your obligations and contracts, vices of consent,
may be of such character that the testator is misled or
those are the same concepts.
deceived as to the contents of the document which he
So when you say force, duress, fear or threat, these would executes, or it may related to some extrinsic fact in
connote the idea of coercion whether mental or physical. consequence of the deception regarding which the testator is
led to make a certain will, which but for the fraud, he would
Undue influence when a person takes unfair advantage of not have made. The party who alleges fraud has the burden
his power over the will of another, depriving the latter of a of proof that the fraud existed during the executed of the will.
reasonable freedom of choice.
So the allegations of the sister here were not sufficient to
Fraud is the use of insidious words or machinations to prove fraud because aside from her allegations, that because
convince a person to do what ordinarily he would not have of the age of the testator and the wife, there is already fraud.
done. Gi insulto jud niya iyang igsuon.
In your oblicon, the presence of vitiated consent will render The fact that the relatives were omitted in the will, it is a
the contract voidable. So the contract is valid but can be settled doctrine that the omission of some relatives does not
annulled. But if these vices of consent are present at the time affect the due execution of the will. That the testator was
of the execution of the will, the will is void. It is not voidable made into signing the will does not sufficiently establish fraud
but void so it can be disallowed because of the presence of by the fact that he instituted his wife who is more than 50 yrs.
vitiated consent. of his age as the sole beneficiary, and disregarded his sister
and his family who has taken care of the testator in his
Revocation Disallowance twilight years.

In both cases, we presupposed that there is a will but by So, the omission of some relatives is not an indication of fraud
reason of revocation or disallowance, the will is declared null because as long as they are not compulsory heirs, you are not
and void and cannot be given effect. obliged to institute them as heirs. If you only have the
brothers and sisters, you can give all your properties to some
other person. You can entirely deprive them because again,
it is the voluntary act of the It is by means of a judicial
they are not compulsory heirs.
testator. It is his act of decree. It is the court that
terminating the capacity of issues an order denying the As to the allegation that there was a defect in the will because
his will to operate at the time probate. the dates did not coincide with the will. The SC said that it is
of his death. not enough to invalidate the will because the dates are not
important in notarial wills so the facts that there were
It can be done by the It is only based on the differences in the dates that will not matter. in fact, a will can
testator with or without a grounds mentioned under be acknowledged before the notary public on separate dates.
cause. article 839. They are not required to be acknowledged on the same date.
The will can also be executed on a date different from the
May be partial or total; not As a general rule, it is total. date of acknowledgement. So I execute ninyo tanan, the
necessarily complete Except when fraud or undue testator and the witness then two days after ni adto si testator
especially when the influence affects only certain sa notary public nag acknowledge siya then five days later ni
revocation affects only parts of the will adto and isa ka witness then so on and so forth. So it does
certain provisions of the will. not matter or important to the validity of the will.

Done during the lifetime of Usually invoked after the

the testator testator’s death. SECTION 2. Institution of Heir

Ortega vs. Balmonte Art. 840. Institution of heir is an act by virtue of which a
GR. No. 157451 December 16, 2005 testator designates in his will the person or persons who are
to succeed him in his property and transmissible rights and
Here, Placido was the testator. He came home to stay in the
obligations. (n)
Philippines where he lived in a house which he owned in
common with his sister. Two years after his arrival from the This is the concept of institution of heirs. Here, the testator
united states, at the age of 80, he married Josephina who was designated in the will the person or persons who are to
then 28 years old. He executed a last will and testament succeed him this is a kind of direct disposition. When you
written in English. In the will, he gave to his wife all of his

Ad Majorem Dei Gloriam

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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

institute heirs you are giving your properties to the persons personality. If he has an intra-uterine life of 7
named in the will. months, the only requirement for that fetus to attain
civil personality is he should be born alive because
First, when we say institution of heirs, we already discussed
birth determines personality. Meaning, pag gawas
the distinction of heirs and legatees and devises.
niya, buhi siya but what if he died after 2 minutes?
So when we say institution of heirs we are referring to the Did he attain civil personality? If he was given an
heirs. The ones who are given the entirety of the estate or inheritance, did he inherit? Yes because he had an
universality of the estate or an aliquot, fraction, ideal or intra-uterine life of at least 7 months as long as he
spiritual share in the estate, these are the ones instituted as was born alive. So basta ang intra-uterine life kay at
heirs least 7 months dapat maanak siya nga buhi. Bahala
nag mamatay siya 1 hour after.
The institution of heirs that we will discuss is different from
legatees and devises. That would be in another chapter. But if he had an intra-uterine life of less than 7
Although some provisions here can also be applied to legatees months, he must live for at least 24 hours for him to
and devises. acquire civil personality. So halimbawa 6 months lang
siya sa tiyan unya gi anak siya ug buhi siya, that is
Characteristics of an instituted heir: not enough. He must live for at least 24 hours. Kung
 Here, the instituted heir is the testamentary heir and namatay siya after 23 hours and he was given an
the voluntary heir, the one that is given a free inheritance because he did not attain civil
portion of the estate. We are not referring to the personality, he did not inherit.
compulsory heirs because we don’t need to institute What is the significance of determining whether the
the compulsory heirs to their legitimes and even if child has civil personality?
they are not mentioned, they are entitled. We are
referring to the free portion. We are also to Example, there is a pregnant mother and then the
distinguish this from legal heirs because legal heirs grandfather donated a certain property to his unborn
are the ones who inherit when there is intestacy. grandson. And then the fetus did not reach seven
Institution of heirs is during testacy or testate months so premature. Nanganak iyang mama and
succession. then the fetus died after 6 hours. So he did not
attain civil personality. What happens to this
 The instituted heir continues the personality of the donation? As if wala siya naadto kay fetus because
testator; he steps into the shoes of the testator but dili siya valid and because wala siyay civil personality.
he is not personally liable for the debts of the
testator. Meaning if there are obligations, his liability How about if he had attained 8 months and then he
is only up to the value of his inheritance and he was born and lived only 2 hours but prior to that the
cannot be compelled to pay more than his grandfather made a donation. So in that case valid
inheritance. and donation.

 An instituted heir is a natural person. A juridical For example the father instituted his unborn child, so
person can be instituted if the latter is allowed under when we say instituted, we are referring to the free
its charter to succeed. If ot is a natural person, he portion although the legitime, no need for institution.
must have juridical capacity as distinguished from So the father gave that to his son so 6 months
capacity to act. palang and then gi anak, namatay after 3 hours. So
he did not acquire civil personality. So the fetus did
When you say juridical capacity, the capacity to be not inherit from his father.
the subject of legal relations while capacity to act is
the capacity to act into acts with legal effects. A The father gave a parcel of land to his unborn child
person who is just 1 year old has juridical capacity and then the father died. Gianak ang bata after 2
but does not have the capacity to act because he hours (6 months lang siya sa tiyan) namatay pud
cannot enter into contracts; he cannot do acts with iyang mother. So in that example, what happens to
legal effects. One who is 20 years old, he has the property na gikan sa father? When the father
juridical capacity and capacity to act because he is of died the supposed inheritance of the fetus did not
legal age. In fact, 18 is the age of majority. materialize because the fetus did not attain civil
personality so he did not receive the property
But an instituted heir needs only juridical therefore when the mother subsequently died, this
capacity, he need not have capacity to act although property did not go to the mother. Again, dili valid
we have to comply with the requirements of articles ang inheritance. It remained in the estate of the
40 and 41 as to when is there juridical capacity or father. Kinsay mag inherit ani? Pwede si mother apil
when does a person attain civil personality. sa mga legal heirs pero apil pud ang mga igsuon.
Art. 40. Birth determines personality; but the If this fetus attained civil personality, so 8 months
conceived child shall be considered born for all siya. the father previously instituted the fetus, he
purposes that are favorable to it, provided it be born died but then the fetus also died but he was 8
later with the conditions specified in the following months so he acquired civil personality so the
article. (29a) property was inherited by the fetus even for just 2
Art. 41. For civil purposes, the fetus is considered hours. When the fetus dies acquiring civil personality
born if it is alive at the time it is completely delivered so he was able to get his property as part of his
from the mother's womb. However, if the fetus had estate, so when the fetus died, the property was
an intra-uterine life of less than seven months, it is inherited by his mother. So when the mother died,
not deemed born if it dies within twenty-four hours and mag inherit ani, iyaha ng mga relatives unlike
after its complete delivery from the maternal atong wala siyay civil personality maadto siya sa
womb. (30a) relatives of the father although pwede siya maka
share pero dili sa iyaha ang tanan. So that is the
So a natural person can be instituted as an heir. How difference between attaining civil personality and not
about an unborn child? Can that be instituted? That acquiring it.
depends if that conceived child attains civil

Ad Majorem Dei Gloriam

12
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

You have to remember that consequence because it will go by intestacy to the legal heirs. And 1/3 maadto kang
can also apply when you go to article 891 on reserva instituted heir. So this is a case of mixed succession.
troncal.
Even if the person so instituted does not accept the
 The instituted heir acquires rights limited to the inheritance or should be incapacitated, I hereby institute as
disposable portion. And they cannot impair the heir to my entire estate. If A repudiates or becomes
legitime. So even if the testator is allowed to institute incapacitated or he was disqualified to inherit, the properties
heirs and as I have said, the institution covers the will go by way of intestacy. But what would be the
free portion, that is not without limitation. He can significance? Nganong mu-ingon man ta na the will is valid
only institute up to the extent of the free portion even if the instituted heir becomes incapacitated or
because if he exceeds he would be affecting the repudiates, assuming that is the xxx. Previously, the testator
legitimes of the compulsory heirs and that will not be executed a will giving to B all his properties and then later on
allowed by law. The compulsory heirs are assured by he changed his mind and made a will giving to A all his
law of their legitimes. properties. So ang mahitabo the second will has revoked the
first will because their provisions are incompatible. What if A
 In institution there is presumption of equality. If
repudiates his inheritance? The revocation of the first will still
several persons have been instituted without
stands because even if A repudiates or becomes incapacitated
designation as to their specific shares, the
the will itself where A was instituted remains valid. So there is
presumption is that they have been instituted in
still an effect, it still revoked the first will. That is the
equal shares
doctrine of absolute revocation.
REQUISITES FOR VALID INSTITUTION OF HEIRS
In such cases, the testamentary dispositions may in
1. The will must be extrinsically valid. The institution accordance with law shall be complied with and the remainder
can only happen in testamentary succession and of the estate shall pass to the legal heirs. So in my kast
testamentary succession cannot happen without a will so example A repudiated his inheritance so we cannot give to A
without a valid will, the institution of heirs cannot be because he repudiated and we cannot give the one first
given effect. instituted because his institution was already revoked then the
estate shall go by way of intestacy to his legal heirs.
2. The institution must also be intrinsically valid. As
to the content, the instituted heir must be identifiable, if Art. 842. One who has no compulsory heirs may dispose by
magbutang ka dirag heir unya di siya identifiable dili will of all his estate or any part of it in favor of any person
gihapon mahatagan ug effect and institution. having capacity to succeed.
There must be no impairment of the legitime. Even if you One who has compulsory heirs may dispose of his estate
made some institution of the heirs but the legitime of the provided he does not contravene the provisions of this Code
compulsory heirs are affected, then the entire institution with regard to the legitime of said heirs.(763a)
cannot be given effect. Pwede mabawasan ang imong
gihatag sa instituted heirs. So freedom of disposition. If you have no compulsory heirs
you can give your entire properties to anybody as long as
There must be no preterition (article 854) because if that person is not disqualified. So even if you have brothers
there is preterition the law says that the institution of and sisters, aunts and uncles, nephews and nieces, they are
heirs shall be annulled. So kung naay preterition, not compulsory heirs. The compulsory heirs are the legitimate
mabalewala gihapon and institution of heirs even if the children or descendants or in their absence the legitimate
will is valid parents or ascendants, the surviving spouse and the
3. The institution must be effective. The instituted heir illegitimate children. So in the absence of these persons you
should not predecease, should not be incapacitated and can give your properties to anyone, you have no obligation to
should not be disqualified. Because even if the will is give to your legal heirs.
extrinsically valid, even if the institution is intrinsically If you have compulsory heirs then the freedom to dispose is
valid, but the instituted heir dies ahead of the testator, limited only to the free portion so you have to respect the
then you cannot give that to him because the premise legitimes of your compulsory heirs. For example you have
here is that you are an heir, you are the survivor so you children, under the law they are entitled to ½ of the net
cannot die ahead of the testator or even if you did not die hereditary estate. So the other half is free. So you can
ahead but you repudiated so di gihapon ka makadawat or institute heirs in the free portion but you have to comply with
you were disqualified to inherit. the legitimes.
Art. 841. A will shall be valid even though it should not Art. 843. The testator shall designate the heir by his name
contain an institution of an heir, or such institution should not and surname, and when there are two persons having the
comprise the entire estate, and even though the person so same names, he shall indicate some circumstance by which
instituted should not accept the inheritance or should be the instituted heir may be known.
incapacitated to succeed.
Even though the testator may have omitted the name of the
In such cases the testamentary dispositions made in heir, should he designate him in such manner that there can
accordance with law shall be complied with and the remainder be no doubt as to who has been instituted, the institution
of the estate shall pass to the legal heirs. (764) shall be valid. (772)
The law says a will shall be valid even though it should not Again because one requisite for a valid institution is that the
contain an institution of an heir. So bisag diay wala kay institution should be intrinsically valid one of which is that the
gihatagan sa imong property and you made a will valid instituted heir should be identifiable or can be ascertained. So
gihapon na siya. you should describe the heir. Ideally, by name or surname.
what is an example of a will that does not contain the Kung halimbawa, pangalan lang as long as he can be
institution of heirs? A will containing only disinheritance. That identified by description. “my most beautiful aunt” kung ma
is still valid even if there is no institution of heirs. identify then pwede. Or kung nickname lang “baboy”
halimbawa mao ng term of endearment niya so siya to.
Or if the institution does not comprise the entire estate. So I
hereby institute A to 1/3 of my hereditary estate. So ang 2/3 it

Ad Majorem Dei Gloriam

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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

Under this provision we can also use the rules which we nahimong tao at the time of death when transmission is
discussed in article 789 katong extrinsic or intrinsic ambiguity supposed to occur then there can be no inheritance.
and those provisions relating to the interpretation of wills.
Art. 846. Heirs instituted without designation of shares shall
Art. 844. An error in the name, surname, or circumstances of inherit in equal parts. (765)
the heir shall not vitiate the institution when it is possible, in
any other manner, to know with certainty the person So this is the PRINCIPLE OF EQUALITY.
instituted. If the heir are instituted without designation of heirs like “I
If among persons having the same names and surnames, hereby institute A,B,C,D as my heirs” so walay gi-mention as
there is a similarity of circumstances in such a way that, even to their shares unya ang estate sa testator is P10M. so P10M
with the use of the other proof, the person instituted cannot divided by 4 so that would be P2.5M each. Nganong equal
be identified, none of them shall be an heir. (773a) man? Because had the testator wanted to give them different
shares, he would have specified so in his will but because he
Errors in the name, surname or circumstances shall not vitiate did not, the presumption is he intended to give them equal
an institution. shares.
Example: I hereby institute A B C and D as my heirs (no mention of any
particular shares). Assuming A and B are the children of the
“To my pretty niece Juana” and it turns out that Juana is not
testator and as children they are compulsory heirs so they are
pretty but it will not vitiate the institution because the
entitled to their legitime. So if the estate is 10M.
underlying reason for the institution is the affection liberality
generosity of the testator. It is not a condition precedent for When we say institution we are referring to the free portion.
juana to inherit that she should be pretty its just a description. So first we give the legitimes of the children A and B. under
“my adopted child Ramon” and it turns out that ramon is not the law, they are entitled to ½. So 5M pertains to the
legally adopted. Well it is just a description when it turns out legitime, because there are 2 children, divide it by 2 so 2.5M
to be erroneous then Ramon can still inherit. each si A and B. ang free portion is 5M. So ang free portion I
divide ug 4 kay 4 man ka instituted heirs. Nganong iapil pa
If there is a similarity of circumstances, you should be able to
man si A and B na naa naman silay legitime? Kay gi-institute
identify by means of proof. For example you cannot identify
man sila so the free portion is presumed to be equally divided
who is being instituted. “my pretty niece juana” unya duha
among A B C and D. so 5M divided by 4, 1.25M each sila A B
sila ka Juana unya mga gwapa pud sila. So kinsa man sa ilang
C and D.
duha? If you can find any other proof to identify then use the
rules that we discussed. But what if di jud niya ma-identify Art. 847. When the testator institutes some heirs individually
masking unsaon. Tunga-on na nila? NO, because the intention and others collectively as when he says, "I designate as my
is to give it only to one. So here if the heir cannot be heirs A and B, and the children of C," those collectively
identified then none of them shall be an heir as mentioned in designated shall be considered as individually instituted,
the last sentence of the article 844. unless it clearly appears that the intention of the testator was
otherwise. (769a)
Art. 845. Every disposition in favor of an unknown person
shall be void, unless by some event or circumstance his Article 847 is what we call the PRINCIPLE OF
identity becomes certain. However, a disposition in favor of a INDIVIDUALITY.
definite class or group of persons shall be valid. (750a)
So A and B and the children of C. the children of C are X and
Every disposition in favor of an unknown person shall be void. Y and then the estate is 10M. the law says those collectively
When we say unknown someone who cannot be identified. “I designated shall be considered to be individually instituted
hereby give my one million to my student” so kinsa mana na meaning katong giingon na children of C they are actually
student ang tagaan? If it cannot be identified then the considered as individually instituted. They enjoy the same
institution is void unless by some event or circumstance, his share as the ones who are also mentioned individually like A
identity becomes certain. There are provisions on the CC and B. so its like saying A, B, X and Y. So the estate shall be
where the disposition is in favor of persons who are at divided by 4.
someway called unknown because at the time of the
institution dili pa jud mahibal-an kung kinsa jud like in article NABLE vs. UNSON
859 “my relatives” so kinsa mana na relatives. There are rules
under 959 which says the nearest in degree or in article 1030 The testator has 5 nieces and 6 sisters but 2 of them already
the poor in general. “so I hereby leave my P1M to the poor”. died. The 5 nieces (children of the 2 sisters) represent the
So lisod siya i-identify but there are certain criteria given deceased 2 sisters. SC ruled that the nieces and the sisters
under article 1030 and in that case they are limited to the will inherit equally because they are individually referred to in
poor living in the locality where the testator decided and there the case at bar. It will be divided by 9 each of them will
are certain persons there who will decide. inherit 1/9 of the estate.

The circumstance here may happen before or after the death They are considered as individually instituted. They should
of the testator. “to my nephew who will make it to the top 10 counted as individuals kay if you count them xxx 3 nieces
of the bar exam. “ so at the time when he made the will wala (children of deceased sister) would share 1/6. So they should
pa nahitabo but before he died naay nag top so kato na siya. have the same status as the other sisters.
Or pagkamatay ni testator naay nagtop then apil gihapon. The
identifying circumstance may happen before or after the death Art. 848. If the testator should institute his brothers and
of the testator but it is important the heir should be living or sisters, and he has some of full blood and others of half blood,
at least conceived at the time of the death of the testator. the inheritance shall be distributed equally unless a different
Halimbawa si nephew na nagtop wala pa naanak at the time intention appears. (770a)
namatay si testator, naa pa siya sa heaven so wa pa siya na
conceive kaan siya wa na na siyay apil. When you say Here the heirs instituted are brothers and sisters, some are
conceived, remember the conditions under article 40 and 41. full blood, some are half blood. So A B C and D. A and B full
He must acquire civil personality because it is at the time of blood, C and D half blood. But under the law, they shall have
death when transmission happen to kung wala pa ka the same shares. So they are to be given equal shares unless
there is a contrary intention. This is because the testator did

Ad Majorem Dei Gloriam

14
 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

not specify that the full blood brothers and sisters should known the falsity of the cause then he would not give effect
receive more than the half blood brothers and sisters. So in to the institution.
the absence of that specification, the presumption is they
Example:
should receive equal shares.
I wanted to institute my friend A as my heir but because it
Remember this because when you go to legal succession, if
was B who took care of me while I was in coma, then I will
the survivors are half blood brother and sisters and full blood
give ½ to B and it turns out later on that B was not really the
brothers and sisters, those of the full blood will inherit twice
one who took care of the testator. So, if it was clear from the
as much as those of the half blood. Those of the half blood
will that he would not have instituted B had he known the
are only entitled to ½ of the share of the full blood. That is in
falsity of the cause because he wanted to institute A in the
legal succession, the presumption of law is that the affection
first place but because he thought B took care of him then he
of the decedent of the full blood relatives is more than its
instituted B. So here, it is clear from the will that the testator
affection for half blood relatives.
would not have the institution had he known the falsity of the
In testamentary succession, there is an opportunity for the cause, so again, B cannot receive the property if it can be
testator to specify their shares because he made a will. But if proved that the cause of the institution was false. How about
he did not specify then the presumption is equal iyang pag A, will A inherit? Because the testator said I wanted to
tan-aw. He could have specified but he did not so the institute A but it was B who took care of me. NO. Why?
presumption is equal. Because he did not institute A. What will happen to that
portion? If there is no substitute, accretion, it will go to the
Art. 849. When the testator calls to the succession a person legal heirs by legal or intestate succession.
and his children they are all deemed to have been instituted
simultaneously and not successively. (771)
Art. 851. If the testator has instituted only one heir, and the
This is the PRINCIPLE OF SIMULTANEITY. institution is limited to an aliquot part of the inheritance,
legal succession takes place with respect to the remainder of
“I hereby institute A and his children.” The meaning here is the estate.
that they are instituted simultaneously. Meaning at the same
time they will inherit. Halimbawa is A ang iyang children kay si The same rule applies if the testator has instituted several
X Y and Z so A will inherit having the same share as X Y and Z heirs, each being limited to an aliquot part, and all the parts
so 4 equal shares. do not cover the whole inheritance. (n)

When you say successively, A first then when he dies, then his So here, I hereby institute A as heir to ½ of my estate, so the
children but that is not the intention of the law. The intention institution does not cover the entire estate. So, what happens
here is if that is the tenor of the testamentary disposition then to that portion not mentioned in the will? It shall go by
simultaneous and not successive. You can apply this intestacy. So ½ will go to the heir by testamentary succession
successive when you go to fidei commissary substitution. The and the other half will go to the heirs by legal succession. This
inheritance there is first heir then after first heir, the second is a case of mixed succession.
heir. That is successive but if it is not clearly in the nature of
fidei commissary substitution, 849 says simultaneous and not Or several heirs are instituted I hereby give to A, B and C ¼
successive. each of my property. So that will not cover the entire
property because the ¼ remaining will go by legal succession.
This article applies if there is no intention on the part of the
September 7, 2015 (JCP) testator to give everything to the heirs. Because again we
have Art 852.
Art. 850. The statement of a false cause for the institution
of an heir shall be considered as not written, unless it Art. 852. If it was the intention of the testator that the
appears from the will that the testator would not have made instituted heirs should become sole heirs to the whole estate,
such institution if he had known the falsity of such cause. or the whole free portion, as the case may be, and each of
them has been instituted to an aliquot part of the inheritance
So, statement of a false cause for the institution of an heir. and their aliquot parts together do not cover the whole
inheritance, or the whole free portion, each part shall be
The law says, if it happens that the institution there is a
increased proportionally. (n)
statement of a false cause, “I hereby give to my beautiful
niece one half of my estate” and that the niece is not
beautiful, so does it follow that she cannot inherit? It will not So here again, the testator instituted heirs and gave aliquot
vitiate the institution. So the false cause shall be considered portions to the heirs. Now he thought that the portions given
as not written. The underlying reason for the institution is the would already cover his entire estate. But it so happens that it
liberality of the testator not the false cause. Just give effect to does not cover the entire estate.
the institution and disregard the false cause.
Estate – P120,000
Unless it appears from the will that the testator would not
have made such institution if he had known the falsity of such The testator instituted A, B and C to his estate. A will receive 1/6, B
cause. will receive 1/8 and C will receive 2/3.
A 1/6 of P120K = 20K
Example:
B 1/8 of P120K = 15K
My friend took care of me while I was in coma. I hereby
institute my friend A to ¼ of my estate. Now assuming the C 2/3 of P120K = 80K
friend A was not the one who really took care of the testator So we total, P115K, so kulang ng 5K.
while he was in coma, it was again a false cause, the general
rule is you just disregard the false cause give effect to the It was his intention to give everything to A, B and C. So we dispose
institution but how about the intention of the testator when the remaining 5K in the proportion that they had been instituted. How
do we divide? We cannot divide directly because it did not reach one
can it be made clear? Because if it is clear from the will that whole.
the testator would not have instituted the heir if he had
(Amount over total multiply by remaining):

Ad Majorem Dei Gloriam

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

20K over 115K x 5K = P869.56 or devise and he is not also expressly excluded, he is just
15K over 115K x 5K = P652,17
omitted. Omission in the sense that he is not given anything
at all in the will.
80K over 115K x 5K = P3,478.26
 NOT HEIR, LEGATEE, DEVISEE NOR DONEE
So that should be equivalent to 5K after rounding off the result.
 Not given any inheritance;
Again if there is an intention on the part of the testator to  Not given any legacy or devise in the will; or any
dispose of his entire estate to his instituted heirs because gratuitous disposition in his favor and;
again in the preceding article there is no intention to dispose
the entire estate the rest will go by intestacy.  Also during the lifetime of the testator the heir did not
receive any donation or any gratuitous disposition that
can be considered as an advance to his legitime.
Art. 853. If each of the instituted heirs has been given an
aliquot part of the inheritance, and the parts together exceed  ENTIRE ESTATE IS DISPOSED OF IN THE WILL
the whole inheritance, or the whole free portion, as the case
may be, each part shall be reduced proportionally. (n) Because even if the heir is omitted in the will and he was not
given donation during the lifetime of the testator but only ½
has been disposed of in the will the other half was not
So opposite ang sa Article 853. The intention is to give the
mentioned, there is no preterition. Why? Because the heir
whole inheritance to the heirs but if you add up those given to
even if omitted in the will, is not omitted from the inheritance
the heirs they exceed the estate.
since there is still legal succession as to the portion not
mentioned in the will.
Estate – P120,000
What if gamay nalang ang estate which is not disposed of in
A 1/4 of P120K = 30K
the will? For example his supposed legitime is 500K and then
B 1/8 of P120K = 15K if we just rely on legal succession katong portion nawala na
C 2/3 of P120K = 80K
dispose of the will, he will only receive say 2K kay gamay
nalang portion by legal succession, so, what is his remedy?
So we total, P125K, so SOBRA ng 5K. Well, that is still not preterition. Although he is entitled to
It was his intention to give everything to A, B and C. So we dispose completion of his legitime. So ihatag gihapon ang balance to
the remaining 5K in the proportion that they had been instituted. How complete his legitime but there is no preterition.
do we divide? We cannot divide directly because it did not reach one
whole.
What if during the lifetime of the testator the omitted heir has
received a donation but he is not mentioned in the will and all
(Amount over total multiply by excess): So we will adjust the estate have been disposed of in the will. So again, as we
proportionately. 30/125, 15/125 and 80/125 x 5K. mentioned there is no preterition. However, he is entitled to
30K over 125K x 5K = P1,200 the completion of his legitime, it is not preterition. Omitted
from the will and omitted from the inheritance.
15K over 125K x 5K = P600
What if in the will it says, I have 3 beautiful children A, B and
80K over 125K x 5K = P3,200
C. I want to dispose of the property in the following manner:
(Then deduct that from amount): To A ½ and to B ½ mao lang. How about C? Is there
30K – 1,200 = 25,800 goes to A
preterition. There is preterition, even if C was mentioned in
the opening sentence there was no legacy, devise or
15K – 600 = 14,400 goes to B inheritance given. Again, there is omission.
80K – 3,200 = 76,500 goes to C  OMISSION OF ONE, SOME OR ALL OF THE
COMPULSORY HEIRS IN THE DIRECT LINE
Who are the heirs that can be preterited? The law is clear,
Art. 854. The preterition or omission of one, some, or all of compulsory heirs in the direct line. Who are the
the compulsory heirs in the direct line, whether living at the compulsory heirs? We have the legitimate children and
time of the execution of the will or born after the death of descendants, in default of descendants legitimate
the testator, shall annul the institution of heir; but the parents and ascendants, surviving spouse and
devises and legacies shall be valid insofar as they are not illegitimate children.
inofficious.
So who among these compulsory heirs could be preterited?
If the omitted compulsory heirs should die before the The direct line, ascending or descending, children
testator, the institution shall be effectual, without prejudice legitimate or illegitimate, parents, grandparents. The
to the right of representation. (814a) spouse is not included but his/ her legitime will be respected.
Compulsory heirs in the direct whether living at the time of
This is a very important provision. When we say preterition the execution of the will or born after the death of the
there is an omission of a compulsory heir in the direct line. testator.
 OMISSION Pursuant to our discussion before that an instituted heir living
or at least conceived at the time of death of the testator.
First, what is the kind of omission being referred to? Is it
deliberate omission or inadvertent omission? Before if there Example:
was deliberate omission the rule was it was disinheritance and
its rules will apply and if it was inadvertent then preterition. The testator made a will and he disposed of his properties
But it has been settled that whatever kind of omission it pero that time he did not know that his wife was pregnant, so
may be either deliberate or inadvertent it does not he disposed of all his properties in favor of his children,
matter as long as there is omission. nothing was left for disposal for legal or intestate succession
and then he died and turns out that naa pa diay isa ka bata
If it is an omission which says “I hereby exclude my son A na wala na-mention. How would that affect the will? Again,
from the will”, that is not preterition, that is disinheritance the omission in preterition could be deliberate or inadvertent.
because he is now expressly excluding. In preterition the heir The law says living or at least conceived, born after the death
is just not mentioned. He is not given any inheritance, legacy of the testator. When you say born after the death of the
Ad Majorem Dei Gloriam
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

testator, this has to be at least conceived because kung wala Let us assume that C has been preterited. How do we divide
siya na conceive pero born after the death of the testator dili the estate?
na sya anak ni testator so dili na sya compulsory heir because
o Again because there is preterition, so the institution
it has to be the child of the testator.
of A and B is already annulled but we respect the
What is the effect now if there is preterition? legacy or devise which is not inofficious.
o What do we mean by not inofficious? Meaning, they
Illustration 1:
do not impair the legitimes, so how do we know, if
A, B and C are the children of the testator. So the testator left the legacy or devise is not inofficious? We determine
an estate worth 1.2M, during his lifetime, he executed a last first how much is the Free Portion, if the legacy or
will and testament. What if the testator said, “I hereby devise can be covered in the Free Portion then it is
institute A and B as my heirs”. Is there preterition? not inofficious.
o The estate is 1.2M divided by 2 so 600K legitime and
o Again the first principle in institution is it covers Free Portion is 600K. So can the 200K be covered? It
only the free portion. So he only institute A and can be covered. The legacy of 200K will be
B as his heirs covering only the Free Portion. We respected.
do not need to institute heirs in the legitime. o The remaining portion (of Free Portion) will be
o So here there is no preterition since it cover only divided equally by A, B and C by way of legal
the Free Portion. succession.
o Remember, if a will is capable of two
interpretations one which makes the will valid Illustration 5:
and the other invalid, we follow the
How about if the legacy is 700K? Estate is 1.2M and C has
interpretation which makes the will valid.
been preterited. How do we distribute the estate? Is the
o So 1.2M divided by 2 is 600K Free Portion and
legacy to X inofficious?
600k legitime divided by 3, therefore, 200K each
for their legitime. o Yes it is inofficious, because it exceeds the free
o How about the Free Portion? Well the testator portion.
instituted a will A and B to the free portion, o What happens if it is inofficious? We don’t give the
therefore, as to the free portion, only A and B legacy? NO. We still give, we JUST REDUCE to cover
will inherit. So 600K divided by 2, this is how we the legitime of the compulsory heir. We only reduce
distribute. to the extent of the exceeded portion. Pila atong
ibawas sa 700K? Only 100K.
Illustration 2:
o Give to X 600K (Free Portion) and the remaining
If the will says, “I hereby institute as sole heir to my entire 600K will be divided equally among A, B and C by
estate of 1.2M A and B only”. Then that is very clear that C legal succession.
has been preterited. Assuming that he did not receive any
Illustration 6:
donation during the lifetime of the testator.
X is a friend. The testator at the time of his death his
o So, what is the effect of preterition? The institution
remaining estate is 1M then he INSTITUTED his sole heir to
of heirs shall be annulled. So you annul the
his entire estate only A, B and his best friend X but during his
institution of A and B, and because the entire
lifetime he gave a donation valued at 200K to his son C. Is he
institution has been annulled, we will divide the
preterited?
estate by legal succession.
o So divide the estate by according to the number of o No, C is not preterited because he received a
heirs. So A, B and C, 400K each, that is one donation. The donation shall be considered as an
consequence. advance to his legitime. So there is no preterition in
this case. Therefore, the institution of heirs shall
Illustration 3:
remain.
“I hereby institute as my sole heirs to my entire estate of o How do we distribute the estate? Value of the estate
1.2M, my children A, B and (additionally) best friend X”, so at the time of death is 1M plus the donation given to
clearly, C has been preterited. What is now the effect of this C, the value of all donation given by the testator
preterition? during his lifetime shall be brought back to the
estate. That is what we call collation. It will be added
o The institution of heirs shall be annulled. So, the back in order to prevent the testator from
institution of A, B and X will be annulled. The law circumventing the law on legitimes because you
says, but legacies and devisees which are not cannot just deprive your heirs on the laws of legitime
inofficious will be respected. Is X a legatee or unless there is a valid ground. The valid grounds are
devisee? No he is an instituted heir. And the law provided under the provisions of disinheritance. So, if
says, when there is preterition, the institution of heirs we do not collate the testator can just donate all his
shall be annulled. properties and leave nothing to his compulsory heirs.
o Distribute the estate by legal succession because you o So, the value of the estate is 1.2M, how do we
do not follow the will anymore. So 1.2M will be distribute the 1.2M, again because there is no
divided only to the legal heirs, divided by 3 for A, B preterition , we give effect to the will.
and C 400K each. o First, give the legitimes A, B and C are compulsory
o X will not receive anything because his institution has heirs, the legitime is 600K. But because C already
been annulled because of preterition. He is not a received 200K in advance, upon death wala na siyay
compulsory heir or legal heir. He does not receive madawat, it will be charged as his advance on the
anything in legal succession. legitime.
Illustration 4: o And the Free Portion of 600K will be divided equally
between A, B and X. X will receive because there is
What if instead of having instituted X is given a legacy of no preterition. That is how we distribute.
200K, so I hereby institute A and B as my sole heir to the
entire estate but I give a legacy of 200K to my best friend X. Illustration 7:

Ad Majorem Dei Gloriam

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

There is a spouse omitted. Assuming, the estate is 2M, the If there is no preterition, the omitted heir has been given a
testator gave his property to A, B and C his children and to his donation during the lifetime of the testator but he is just
best friend. He did not give anything at all to his spouse. entitled to the completion of his legitime. Where do we get
that portion to be used to complete the legitime of the
o Is the spouse preterited? NO. She is not a
omitted heir? First, it should be taken from the portion of the
compulsory heir in the direct line.
estate which has not disposed of by the will, katong wala pa
o First, distribute the legitime, under the law on
nahatag maski kinsa. For example it is not enough you reduce
testamentary succession, the spouse is entitled to
the legacies, devisees and voluntary heirs. In all cases you do
equal share of one legitimate child if there are two or
not deduct from the legitime of the compulsory heirs. Respect
more legitimate children. 2M divided by 2 is 1M and
the legitime. So didto lang jud ka sa first priority na not
then 1M divided by 3, pila man na siya?
disposed of by will, katong wala pa nahatag maski kinsa.
o In the Free Portion, wala nay labot si spouse because
she is not instituted. So divide the free portion to all
of them (4 = 3 children and best friend). The Art. 856. A voluntary heir who dies before the testator
institution shall be respected because there is no transmits nothing to his heirs.
preterition. A compulsory heir who dies before the testator, a person
What if during the lifetime of the testator, he donated to his incapacitated to succeed, and one who renounces the
spouse? What is the consequence of this donation? Shall we inheritance, shall transmit no right to his own heirs except in
consider that donation an advance to the legitime of the cases expressly provided for in this Code. (766a)
spouse? NO. Because during the lifetime of the spouses
during marriage they are NOT allowed to make a sale or Please remember this principle, a voluntary heir when he
donate to each other. So any donation that is given by the dies that is the end of it. He transmits nothing to his
spouse to the other is void that being considered as a own heirs. He cannot be represented.
deduction on the estate of the testator, it will not be deducted
Example:
on the value of his estate, part gihapon toh siya sa iyang
estate. Assuming during his lifetime he donated 200K to his The testator gave ½ of his estate to his best friend. But his
spouse, it will not be deducted on the value of his estate. best friend died ahead of the testator but the best friend was
There is no collation because in the first place the donation is survived by his own children. What will happen now to the ½
not valid. Part lang toh siya sa estate, wala siya na deduct sa of the estate given by the testator to his best friend as his
whole, that is how we compute. inheritance. Can the children of the best friend get it back?
NO. Because the bestfriend being a voluntary heir, he is just
So again in preterition, if a compulsory heir in the direct line is
instiuted to the Free Portion. He did not become an heir in the
omitted the institution of an heir will be annulled. Just
first place because he predeceased, again, he should survive
remember that the omitted heir should survive the testator
the testator to be enable to inherit. So a voluntary heir cannot
because even if he has been preterited in the will but he dies
be represented.
ahead of the testator so here the effect of preterition will be
extinguished. Meaning the institution of heirs in the will, will How about a compulsory heir?
still be respected. Because the supposedly preterited heir that
has predeceased did not in fact become an heir of the Example:
testator. For you to become an heir you should survive the A compulsory heir, we are referring to the legitimes because
testator except if the preterited heir has a representative. there are cases when a compulsory heir can also be given part
Halimbawa, si C is preterited but died ahead of the testator of the free portion. For example, the testator has a son, the
pero naa siyay anak. His child can represent him under the son is a compulsory heir, assuming the estate is 1.2M. Duha
concept of representation. The representative is elevated to iya anak. Divide by 2 600K and divide by 2 for the legitime is
the degree and status of the person represented. So, naa 300K. Now, the testator can also institute the son as an heir
gihapon preterition. to the free portion. With respect to the free portion, the son
Can an adopted child be preterited? Yes. Because an adopted who is a compulsory heir is also a voluntary heir. We follow
child has the same successional rights as a legitimate child. the first paragraph insofar that portion is concerned. He is a
voluntary heir, kung mamatay sya una sa testator. As to that
portion, nagihatag saiyaha gikan sa Free Portion he cannot be
JLT Agro v. Balansag
represented it can go to the mass of his estate and distributed
In this case the Supreme Court said that there is no among all the legal heirs. Kung naay anak si heir, so dili
preterition. In order to have preterition there must be total maka-claim iyahang mga anak sa katong portion na gihatag
omission in the will and in this case there was no will out of the Free Portion.
executed. Without a will being executed there could be no
Pero ang legal heirs pud tong iyahang mga anak possible na
preterition. It was premature if not irrelevant to speak of
maka-claim sila pero dli tanan.
preterition in the absence of the will. Please remember that.
Example:
This is the estate (1.2M) so 600K legitime, 600K free portion
Art. 855. The share of a child or descendant omitted in a so A & B are the children of the testator. For example A has
will must first be taken from the part of the estate not been instituted to one half of the free portion 300K, so he is a
disposed of by the will, if any; if that is not sufficient, so voluntary heir to this portion. Halimbawa si A naa pud anak si
much as may be necessary must be taken proportionally A1. Pagnamatay si A ahead of the testator, A1 cannot claim
from the shares of the other compulsory heirs. (1080a) the 300K by right of representation. Asa man ni ma-adtoang
300K? Sa estate. Tungaon tanan sa legal heirs, so dili iyaha
What if a child or descendant has been omitted in the will, (A1) tanan ang 300K, mutunga pa sya kay B na legal heir
actually, this can apply both whether there is preterition or no with respect to the portion na nahimong vacant because of
preterition because if you are omitted and there is preterition the predecease of A. But as to his legitime, A is also a
the institution of heirs will be annulled. If there is preterition compulsory heir, he is entitled to the legitime of 300K. If A
you just divide the entire estate equally among the dies ahead of the testator, A can be represented. A
compulsory heirs. compulsory heir as a general rule also transmits nothing to his
own heirs except by virtue of the the right of representation.

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

He can be represented, so, insofar his legitime is concerned incapacitated to accept the inheritance.
na P300K, if he predeceases the testator his share can now be
claimed by A by right of representation. A simple substitution, without a statement of the cases to
which it refers, shall comprise the three mentioned in the
So that is the difference. So kung katong sa free portion dli preceding paragraph, unless the testator has otherwise
sya pwede i-represent ni A, it would go to the mass of provided. (774)
intestate katong pwede i-dispose by legal succession, so sa
legal heirs which may include A but not A alone but sa A. Simple or common substitution
legitime kay A jud sya ma-adto dli sa representative.
What are the grounds for simple or common
Again. A compulsory heir as a general rule transmits nothing substitution? We have predecease, renunciation or
to his heirs except in case of the right of representation. But incapacity. In case such heir should die before the
again, a person can be represented only if he predeceases, testator, renounced or incapacitated to inherit.
becomes incapacitated, if he is disinherited, but if he
repudiates or renounces he cannot be represented. That is the In those cases, it will be the substitute who will
rule insofar Art 856 is concerned. receive the property because in the order of priority,
testacy is favored over intestacy. As much as
Going back to the first par. of Art 856, it mentions that a possible we have to give effect to the will of the
voluntary heir who dies before the testator transmits nothing testator.
to his heirs. When you say heir, one that has been instituted
to an aliquot share, does this also covers legatees or So the rule here is that, first institution, if the testator
devisees? YES. Because legatees or devisees, they are instituted an heir then give effect to the institution.
also given properties from the Free Portion, not from
If the instituted heir cannot for some reason receive the
the legitimes.
inheritance then we determine if there is a substitute.

SECTION 3. Substitution of Heirs Now if there is no substitute, then, we evaluate if the right of
representation can apply. Because in representation, if the
original heir cannot receive due to predecease, incapacity his
representative will receive in his behalf.
Art. 857. Substitution is the appointment of another heir so
But if the right of representation is not proper. Then we will
that he may enter into the inheritance in default of the heir
go to the rule on accretion. If accretion is possible. What do
originally instituted. (n)
we mean by accretion? Basically, if there are two or more
heirs instituted to one inheritance and if one of them cannot
If the first or original heir cannot receive then he will be receive either because of predecease, incapacity or
substituted by another. Based on the definition on Art 857. It repudiation his share will be given to the co-heir. So it will
is either A or B because in default of the heir originally accrue to the co-heir. If accretion still is not possible, then the
instituted. So this is actually not correct definition of last result will be intestacy.
substitution. Why? Because under the New Civil Code, we
actually have two kinds of substitution. The first kind is the So please do not forget the order of priority. ISRAI:
direct substitution, that is the one being referred in Art 857. 1. Institution
The second kind is Indirect Substitution, the original heir and 2. Substitution
the substitute both inherit but one after the other. It is not OR 3. Representation
but AND. Both of them will enjoy the property one after the 4. Accretion
other. The only kind of indirect substitution under the New 5. Intestacy
Civil Code is the Fidei commissary substitution, that is the only
kind of indirect substitution. Whereas, direct substitution we So here in the 2nd paragraph of Art 859, if the testator
have simple or common, brief or compendious, reciprocal provides for a substitution but did not mention what is the
which we will discuss later. ground for the substitution then it can cover the three
incapacity, predecease and repudiation.
There is a suggestion for the definition, substitution is a
disposition by virtue of which a third person is called to
Art. 860. Two or more persons may be substituted for one;
receive a hereditary property in lieu of another person. So this
and one person for two or more heirs. (778)
will cover both direct substitution and indirect substitution. We
can also insert that in Art 857. Substitution is the appointment
of another heir so that he may enter the inheritance in default This article refers to two kinds of substitution:
of or after the heir originally instituted. Again, that will also B. Brief substitution
cover indirect substitution.
So this is two or more heirs take the place of one.
Art. 858. Substitution of heirs may be: Compendious substitution
(1) Simple or common; There are two or more heirs originally instituted but
(2) Brief or compendious; the substitute is only one.

(3) Reciprocal; or Art. 861. If heirs instituted in unequal shares should be

(4) Fideicommissary. (n) reciprocally substituted, the substitute shall acquire the share
of the heir who dies, renounces, or is incapacitated, unless it
clearly appears that the intention of the testator was
As I said before items 1 to 3 is direct substitution and item 4
otherwise. If there are more than one substitute, they shall
is Indirect Substitution. Direct substitution is mentioned in Art
have the same share in the substitution as in the institution.
859.

C. Reciprocal substitution
Art. 859. The testator may designate one or more persons
to substitute the heir or heirs instituted in case such heir or The heirs instituted is also the substitute for the other.
heirs should die before him, or should not wish, or should be
Example:

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

A and B is instituted. If A becomes incapacitated or he or the portion of the property. So he cannot sell or dispose, he
predeceases etc., B is the substitute. Si B pud sa iyang share. is just like a usufructuary na only use lang ang naa kay first
Walay problema pag ang share is ½ of A and B. Kung mawala heir. And then, after a certain period of time provided by the
si A, ang iyahang share ma-adto kay B. For example kay A is testator in the will, the property will eventually go to the
2/3 kay B is 1/3. Again, it doesn’t matter noh. Halimbawa, it is second heir. What is given to the second heir, is not merely
B who becomes incapacitated, then his share will go to A. It usufruct but is full ownership. Sa second heir wala nay
doesn’t matter if B is only instituted 1/3 because he limitation or restriction, so, he becomes the full owner of the
substituted A. property.
Example: SPECIFIC REQUIREMENTS
A B and C are heirs and they are also instituted as substitute (1) There is an obligation upon the first heir to
for each other so kung A dies B and C will substitute and vice preserve and transmit to a second heir the whole
versa. For example, it is C who becomes incapacitated, how or part of the inheritance;
do we effect the substitution? First, we determine the shares
as originally instituted. SO A and B have the same right to C’s (2) The first heir and the second heir, their
share in the substitution as well as the institution. Proportional relationship should not go beyond one degree.
distribution not dividing it equally among the two if different What do we mean by one degree, it means one
sharing when instituted. generation, so parent and child or child and parent basta
one generation.
Art. 862. The substitute shall be subject to the same
Can a corporation or juridical person be instituted? NO.
charges and conditions imposed upon the instituted heir,
Because we cannot apply the rule on one generation or
unless and testator has expressly provided the contrary, or
degree. Juridical entities cannot have generation only
the charges or conditions are personally applicable only to
natural persons have generation.
the heir instituted. (780)
(3) First and second heir should be living at the time
General rule: If the original heir have been given conditions, of death of the testator.
it is understood that the substitute will be imposed the same
With respect to the term living, at least conceived and
conditions and charges. So kung gibutang sa original heir na
follow Art 40 and 41 at the time of death.
dapat maka-pasar pud sya sa bar exam mao pud na sya
supposedly ang condition sa substitute. What if the second heir dies ahead of the first heir? Is
fideicommissary substitution still possible? It does not
Except: If the testator has expressly provided the contrary na
matter as long as they did not die ahead of the testator.
dili sya subject sa same condition or the charges or conditions
What is important is that they should not predecease the
are personally applicable to the heir originally instituted. For
testator.
example the original heir is a law student and the substitute is
a lawyer dili na man na mag-apply sa iyaha ang condition to
pass the Bar Exam. Art. 864. A fideicommissary substitution can never burden
the legitime. (782a)
Art. 863. A fideicommissary substitution by virtue of which
the fiduciary or first heir instituted is entrusted with the Again, in fideicommissary substitution it allows entailment of
obligation to preserve and to transmit to a second heir the the property for a certain period of time. For example, the
whole or part of the inheritance, shall be valid and shall take first heir because of the fideicommissary substitution cannot
effect, provided such substitution does not go beyond one dispose of the property. When we go to legitimes, the law
degree from the heir originally instituted, and provided says that you cannot impose any condition, burden, charge,
further, that the fiduciary or first heir and the second heir are substitution upon the legitime. Because legitimes are given to
living at the time of the death of the testator. (781a) the compulsory heirs as a matter of force of law. This portion
of property is reserved by law for the compulsory heirs, in
fact, again the testator cannot deprive his compulsory heirs of
Again, this is the only indirect substitution provided in the
their legitimes without a valid ground. There has to be a valid
New Civil Code. So based on Art 863 you can see that the first
ground. If you are allowed, to impose conditions for example
heir and the second heir both inherit. They will enjoy the
substitution upon the legitime the testator may easily
property although not at the same time but one after the
circumvent the law on legitimes. For example, he imposes
other.
very difficult conditions on the legitime already amounts to
In direct substitution, simple, compendious or reciprocal they deprivation of the legitime.
will not enjoy with the original heir. It is only either the
So again, that is the reason why you cannot burden the
original or the substitute.
legitime. There are only two situations under the New Civil
D. Fideicommissary substitution Code where the legitime can be burdened. No. 1 that is the
concept of reserve troncal and No. 2 the testator may prohibit
Under the NCC, there is a limitation on the right of the the partition of the estate even the legitime but for a period
testator to prohibit the disposition of the property. He can not exceeding 20 years.
prohibit the partition of the property but for a period not
exceeding 20 years.
Art. 865. Every fideicommissary substitution must be
In a fideicommissary substitution, the entailment of the expressly made in order that it may be valid.
property may even exceed 20 years if it is a fideicommissary
The fiduciary shall be obliged to deliver the inheritance to the
substitution.
second heir, without other deductions than those which arise
What is the concept of a fideicommissary substitution? There from legitimate expenses, credits and improvements, save in
is a first heir, he will enjoy the property. He has the right to the case where the testator has provided otherwise. (783)
use the property, benefit from the property but he cannot
dispose of the property, he cannot destroy the property. Why? How can you institute a fidei commissary substitution. There
Because as provided in the article, the fiduciary or the first are two ways:
heir has the obligation to preserve and to transmit the
property to a second heir. It may be the whole of the property
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

(1) You name it as a fidei commissary years. If he says, you will not partition this property forever.
substitution; or This provision will be valid but only up to 20 years and the
rest will be void even a temporary one which is beyond the
(2) Even without labeling it as a fidei commissary
limits fixed by Article 863. If he say-perpetual, the heir cannot
substitution, you expressly impose upon the
have partition the property forever. If he say-temporary,
first heir to reserve the property and transmit
there might be a period which should not exceed 20 years and
the property to a second heir.
even beyond the limit provided by Article 863.
Although, you do not have to use the exact words
Example:
preserve and transmit. As long as the effect would be
the same that there is an obligation to preserve and The testator instituted A as heir to a parcel of land. He said, I
transmit like in one case the term was passed on and hereby give to A the land in Calinan, Davao City but A shall
unimpaired to the second heir. That is the same as keep it and shall not alienate it for 15 years. Is it a valid
preserving and transmitting. So not exactly the same prohibition? Yes, as this does not exceed 20 years. The
words used in the law. testator died in the year 2000, so A effectively became the
owner of the land upon the death of the testator. After 5
The second paragraph just refer to the allowable expenses
years, A died and survived by his son B and the land was
because if we just allow any expenses to be deducted, the
inherited by B. Is B subject to the same prohibition? Yes
second heir might not have receive something from the first
because he just stepped into the shoes of his predecessor.
heir because of all the deductions.
Whatever obligation of the predecessor will be passed on to
the heirs. So in 2005, he already consumed 5 years on which
Art. 866. The second heir shall acquire a right to the he is obliged to keep the property intact and not alienate it for
succession from the time of the testator's death, even a period. Thus, the remaining period is 10 years.
though he should die before the fiduciary. The right of the
second heir shall pass to his heirs. (784) If after 5 years (2010), B also died and survived by his son C.
Only 5 years remain from the prohibition by the testator. The
same property is inherited by C. Is C obliged to respect the
Again, what is important is that the first and second heir are
prohibition? No more since it is already beyond the limit as
living at the time of death of the testator. It does not matter if
provided by Article 863 which means the prohibition does not
the second heir dies ahead of the first heir. What will happen
go beyond one degree from the heir originally instituted.
to the fidei commissary substitution? Does the first heir has
Thus, the prohibition is only binding to B and does not bind C
the same obligation to deliver? Yes because what is important
anymore.
is that at the time of death of the testator, silang duha buhi.
So after 10 years naa gihapon obligation si first heir to deliver If it is a fideicommissary substitution, the testator instituted A
to the second heir but because the second heir is already as first heir subject to the condition that A will reserve the
dead. He should deliver to the heirs of the second heir. property for a period of 30 years and transmit it afterwards to
B which is one degree related to A. Is it valid? Yes because it
is a fideicommissary substitution so that is the only time that
SEPT 10 (RJV) he can hold the property for a longer period of time. If it is
not a fideicommissary substitution, the answer is no.
Article 867. The following shall NOT take effect: xxx
(3) Those which impose upon the heir the charge of paying
Take note of the prohibitions in Article 867. As discussed to various persons successively, beyond the limit prescribed
before, how can Fideicommissary substitution be constituted? in article 863, a certain income or pension; xxx

1. By expressly naming the institution as subject to a For example, the testator instituted A as heir and A should
Fideicommissary substitution. In an express manner
remit a certain income to B for a period of 3 years. Then B to
by giving the name as Fideicommissary substitution. C, and C to D. Would that be valid? No, the law says, you can
2. Even without naming it as Fideicommissary only go one degree and in this case, it is only A to B only.
substitution but imposing upon the first heir an Thus, it is only one degree from the person originally
obligation to preserve and transmit the property to a instituted.
second heir.
(4) Those which leave to a person the whole or part of the
(1) Fideicommissary substitutions which are not made in an hereditary property in order that he may apply or invest the
express manner, either by giving them this name, or same according to secret instructions communicated to him
imposing upon the fiduciary the absolute obligation to deliver by the testator.
the property to a second heir; xxx
For example, the testator provides that he leaves a certain
So without naming it as Fideicommissary substitution or property to A so that he may be able to invest the same
without imposing an obligation upon the first heir, there can according my secret instructions communicated to him. The
be no Fideicommissary substitution. There is no obligation on same is not allowed because how can it be insured that heir
the first heir to deliver on the second heir. But in relation to complied with the instructions of the testator. It would be very
Article 868, if the Fideicommissary substitution does not take dangerous.
effect, it does not prejudice the rights of the first heir. The
first heir can receive without being subjected to a Article 868. The nullity of the fideicommissary substitution
Fideicommissary substitution does not prejudice the validity of the institution of the heirs
first designated; the fideicommissary clause shall simply be
(2) Provisions which contain a perpetual prohibition to considered as not written. (786)
alienate, and even a temporary one, beyond the limit fixed in
article 863; xxx It was already discussed that when a fideicommissary
substitution is null and void, it does not prejudice the first heir
This is the prohibition to alienate or partition which can be designated. There is simply no fideicommissary clause,
imposed by the testator but only a period not exceeding 20

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

making the substitution absolute without the obligation to As to cause:

preserve and transmit.
i. Potastative Condition – The fulfillment of
the obligation depends upon the will of the
Article 869. A provision whereby the testator leaves to a heir, legatee or devisee. Example: A will
person the whole or part of the inheritance, and to another give a car to B (heir) will learn how to drive.
the usufruct, shall be valid. If he gives the usufruct to various
persons, not simultaneously, but successively, the provisions ii. Casual Condition – The fulfillment of the
of article 863 shall apply. (787a) obligation depends upon chance or will of a
3rd person. Example: A will give his car to B
Here, the testator gives the legal ownership to one and the if B’s name will be picked or if C agrees.
usufruct to another. The first paragraph says it is valid. For iii. Mixed Condition – The fulfillment of the
example, the testator instituted X as heir to his land. X is the obligation depends partly upon the will of
legal owner which means he has the title and not beneficial the heir and partly upon chance or will of 3rd
use of the land since it belongs to b, C, D and E. If these are person. Example: A will give his car to B if
simultaneous, as they were allowed to use the land at the B’s name will be picked in a raffle and if B
same time, it is valid since there is no prohibition. will accept the same.
Illustration: As to mode:
X holds the title but the beneficial use belongs to A, then goes i. Positive
to B if A dies, to C if B dies, etc. But it can only be limited to
the limitations provided by Article 863 if only successive. Thus, ii. Negative
it is only one degree as to the enjoyment of the property. As to form:
i. Express
Article 870. The dispositions of the testator declaring all or
part of the estate inalienable for more than twenty years are ii. Implied
void. (n)
As to possibility of fulfillment:
This was already discussed. Take note that 20 years is the i. Possible
maximum. This was answered before in the bar examinations.
ii. Impossible
Before going to Article 871, the next section talks about
In Obligations and Contracts, if the obligation
institution subject to condition, subject to term and subject to
depends upon a potestative condition, the validity of
a mode.
the obligation depends upon what or whom the
There are 4 kinds of institution: condition is imposed. It is void when an obligation is
subject to a suspensive and potestative condition on
1) SIMPLE or Pure Institution – One that is not
the part of the debtor since the obligation will not
subject to condition, terms or mode. Upon the death
arise until after the happening of the condition. But
of the testator, the instituted heir already acquired
the happening of the condition is purely dependent
ownership over the property. It has not to be for a
upon the will of the debtor, so in that case, the
period; it does not necessarily observe the
obligation will never arise since it is of human nature
conditions; and it does not bound to comply with any
that humans do not like obligations and as much as
requisite.
possible, we like to be free. On the other hand, all
2) CONDITIONAL Institution – There is a condition others, it is valid, for instance, when an obligation is
imposed. It can be a condition and the fulfillment of subject to resolutory and potestative conditions on
which is required for the effectivity of the institution the part of the debtor because the obligation will
or the fulfillment of which extinguishes the immediately arise and it will end upon the fulfillment
institution. Just like in Obligations and Contracts, of the obligation so the debtor will comply the
condition refers to future and certain event upon condition.
which the effectivity or extinguishment of an
The institution subject of suspensive and potestative
institution depends.
condition on the part of the heir is valid because an
heir would really fulfill the condition. Unlike in the
SECTION 4. Conditional Testamentary Dispositions concept of ObliCon, it is another concept when it
and Testamentary Dispositions With a Term comes to institution.
3) Institution subject to a TERM – There is a need
to wait for the arrival of the term or period before
Article 871. The institution of an heir may be made the institution is given effect or for the institution to
conditionally, or for a certain purpose or cause. (790a) end.
4) MODAL Institution – There is a certain purpose or
As to conditions, there are several kinds of conditions cause which is further explained in Article 882.
which can be imposed in an institution.
As to effect: Article 872. The testator cannot impose any charge,
condition, or substitution whatsoever upon the legitimes
i. Suspensive Condition – The effectivity of the prescribed in this Code. Should he do so, the same shall be
obligation depends upon the happening or considered as not imposed. (813a)
fulfillment of the condition. Example: I will
give a car to A if he passes the bar.
It was already mentioned before that a testator cannot
ii. Resolutory Condition – The happening or impose any charge, condition, or substitution upon the
the fulfillment of the condition extinguishes legitimes because if he can do that, he might impose difficult
the obligation. Example: I will give a car to and unreasonable conditions that would be able to effectively
A as long as he remains single.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

defeat the law on legitimes. Thus, the legitimes should go to mentioned, will must be unilateral not bilateral. The giving
the heirs unimpaired, unburdened and without any condition. must be because of one’s desire and generosity and not of
expecting something in return as it turn now into a contract.
The only kind of burden that may be imposed by the testator
upon the legitime would be: In disposition captatoria, it is both the condition and
disposition is void.
(1) prohibition of partition only for 20 years;
(2) and reserva troncal as provided by law.
Article 876. Any purely potestative condition imposed upon
Article 873. Impossible conditions and those contrary to law an heir must be fulfilled by him as soon as he learns of the
or good customs shall be considered as not imposed and shall testator's death.
in no manner prejudice the heir, even if the testator should
This rule shall not apply when the condition, already complied
otherwise provide. (792a)
with, cannot be fulfilled again. (795a)

Impossible conditions are contrary to law and public customs.

Here, it is a purely potestative condition. The rule is when
These should just be disregarded because the underlying
a potestative condition is imposed, the heir must fulfill as soon
principle in institution is the liberality and generosity of the
as he learns the testator’s death. Meaning, it should be
testator.
fulfilled upon the day of knowledge on the death of the
Example: testator. The heir is not required to fulfill the condition within
the lifetime of the testator since as we all know, will is
“I hereby institute A as my heir if a can fly using his hands”.
irrevocable at anytime during the lifetime of the testator.
Of course, it is not possible.
The second paragraph provides that the rule shall not apply
If for example it says, “I hereby institute A as my heir if she
when the condition, already complied with, cannot be fulfilled
becomes beautiful”, is it possible? The answer is it depends.
again. For example, I hereby give to A my jewelries if he puts
(HAHA!)
a flower tattoo in his left arm. If he already had the tattoo
during the lifetime of the testator, then, the testator died and
Article 874. An absolute condition not to contract a first or it came to his knowledge. This time, he is not required to put
subsequent marriage shall be considered as not written unless another tattoo.
such condition has been imposed on the widow or widower by
the deceased spouse, or by the latter's ascendants or With respect to the fulfillment, substantial compliance will
descendants. suffice because the testator gives the discretion upon the heir
for being purely potestative and having this kind of discretion,
Nevertheless, the right of usufruct, or an allowance or some the testator could have trusted the heir.
personal prestation may be devised or bequeathed to any
person for the time during which he or she should remain
Article 877. If the condition is casual or mixed, it shall be
unmarried or in widowhood. (793a)
sufficient if it happen or be fulfilled at any time before or after
the death of the testator, unless he has provided otherwise.
Here, the condition is not to contract a first or subsequent
marriage. Should it have existed or should it have been fulfilled at the
time the will was executed and the testator was unaware
General Rule: It shall be considered as not written. thereof, it shall be deemed as complied with.
Why is it not considered not written? Because this condition If he had knowledge thereof, the condition shall be considered
would lead instead to moral arrangements. In prohibiting a fulfilled only when it is of such a nature that it can no longer
person to marry and the person really wanted to marry the exist or be complied with again. (796)
other, in order not to circumvent the condition, they end up
living in without marriage. So, it ends up something to this
Here, the condition is casual and mixed. These are not
kind of arrangement. Thus, it is not allowed.
dependent entirely upon the will of the heir. The law says it
Exception: Unless such condition has been imposed on the shall be sufficient if it happen or be fulfilled at any time before
widow or widower by the deceased spouse, or by the latter's or after the death of the testator because it is difficult to
ascendants or descendants. comply with this since it is beyond the control of the heir.
Thus, it is sufficient that it will be complied at any time before
Take note, this applies only to the free portion because we or after the death of the testator, unless he has provided
cannot impose anything in the legitime. If the testator says, I otherwise.
hereby give to my wife a house and lot in Davao City provided
that she will not remarry. This condition is valid for With respect to compliance, authorities suggest that because
sentimental reasons. Also, the testator can control since it is a the testator mandated that the condition is dependent upon
free portion, but it could be reasonable in his part because it chance, being casual and mixed, the testator does not trust
is his property. If he will allow the wife to remarry, the the heir that much. Here, it should be strict compliance.
property which inherited to the wife from him forms part of
Further, the law says should it have existed or should it have
the wife’s absolute community with the new husband. Another
been fulfilled at the time the will was executed and the
thing is when the property is given by the ascendant or the
testator was unaware thereof, it shall be deemed as complied
descendant of the testator for the same reason.
with. For example, I will give a parcel of land to A if he
becomes a lawyer BUT (1) he does not know that at the time
Article 875. Any disposition made upon the condition that of making of the will, A is already a lawyer OR (2) he has
the heir shall make some provision in his will in favor of the knowledge that A is already a lawyer and he still imposed that
testator or of any other person shall be void. (794a) condition, in both cases, it shall be deemed as complied with if
it is in a nature that it cannot be complied with again. But, if
Here, it is a condition imposed by the testator to the heir. For the heir can comply it again, he should comply it again.
example, I hereby give to A my car provided that A will also
give to me (or to my son), his house. This is what is called Article 878. A disposition with a suspensive term does not
Disposition Captatoria and according to Article 875, it is not prevent the instituted heir from acquiring his rights and
valid as it tends to convert the will into a contract. As transmitting them to his heirs even before the arrival of the

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

term. (799a) 2. If it is subject to suspensive condition, when it

becomes certain that the condition cannot be fulfilled
Here, it is an institution subject to a term or period. Also, and the property shall be delivered to the heir.
there is the element of certainty. The period or time will really 3. If it is subject to a term, upon the arrival of the term.
arrive. For example, in 2000, the testator provided that I
hereby give my car to A after two years from the day of my The second paragraph applies to situation where the
death. So, in 2002, A will get the car. But if A died in 2001, institution is subject to a negative potestative condition.
the law says it does not prevent the instituted heir from Supposedly, it is immediately executor upon the payment of
acquiring his rights and transmitting them to his heirs even the bond. In the meantime that the heir has not yet paid the
before the arrival of the term. So if heir-A dies before the bond, the property will be placed under administration.
arrival of the term, his right will be transferred to his own
heirs. In 2002, the estate of the testator will give the car to Article 881. The appointment of the administrator of the
the heirs of A. estate mentioned in the preceding article, as well as the
manner of the administration and the rights and obligations of
This is different from a suspensive condition because in a the administrator shall be governed by the Rules of Court.
suspensive condition, unless the condition is fulfilled, the heir
(804a)
does not acquire any right in the inheritance so the effectivity
of the inheritance is subordinate to the fulfillment of the
condition. Administration of property will be discussed deeply in your
special proceedings. Just remember that if the testator left a
However, if it is a term, there is already a right acquired. Only will and he appointed a person who shall administer his
that, the enjoyment of the right is suspended in the estate. The person is known as the executor. If he made a will
meantime. Even if the heir dies before the arrival of the term, but did not appoint an executor, there has to be someone to
he already acquired rights to the inheritance and he can administer the properties, so that person will be the
transfer it to his own heirs. administrator. If there is no will and no appointed executor,
during the pendency of the distribution, the court will appoint
Article 879. If the potestative condition imposed upon the an administrator. If a person is male, his is called executor or
heir is negative, or consists in not doing or not giving administrator and if female, she is called an executrix or
something, he shall comply by giving a security that he will administratrix. The administrator has several duties.
not do or give that which has been prohibited by the testator,
Basically, his duties are:
and that in case of contravention he will return whatever he
may have received, together with its fruits and interests.  to oversee the estate,
(800a)
 to reserve the estate,

It talks about a negative potestative condition. The  to pay the debts of the estate, and
condition is purely dependent upon the heir and that condition  to distribute the estate among the heirs.
is not to do or not to give. It is the security of the estate that
the heir will not do or not give what has been prohibited. For
example, I hereby give my car to A if he will not cut his hair. Article 882. The statement of the object of the institution, or
It is potestative on the part of A since it is depends on him if the application of the property left by the testator, or the
he cuts his hair or not. Also, it is immediately executory but charge imposed by him, shall not be considered as a condition
the heir must give a security that he will not do what is unless it appears that such was his intention.
prohibited. If he does, he must return what he has received. That which has been left in this manner may be claimed at
It is caucion muciana (the term given for the security). once provided that the instituted heir or his heirs give security
for compliance with the wishes of the testator and for the
Article 880. If the heir be instituted under a suspensive return of anything he or they may receive, together with its
condition or term, the estate shall be placed under fruits and interests, if he or they X should disregard this
administration until the condition is fulfilled, or until it obligation. (797a)
becomes certain that it cannot be fulfilled, or until the arrival
of the term. This is called modal institution. As mentioned in Article 882,
The same shall be done if the heir does not give the security it is an institution where there is a statement of the object of
required in the preceding article. (801a) the institution, or the application of the property left by the
testator, or the charge imposed by him, shall not be
considered as a condition unless it appears that such was his
These are the instances when the estate is placed under intention. For example, I hereby institute A as heir of my
administration. property but he has to set up a foundation and use the
1. If the heir be instituted under a suspensive condition. proceeds of the inheritance for the said foundation or I hereby
In the meantime that the condition is not yet fulfilled, give to A this riceland and a quarter will be given to X for the
it should still not be delivered to the heir. The proceeds of harvest each year so that is an application. A
property will be under administration until the charge would be- I hereby give to a half of my estate but he
condition is fulfilled or until it becomes certain that it will give an allowance to X until he dies.
cannot be fulfilled. The rule says if there is a statement of the object of the
2. If the heir be instituted under a term. In the institution, or application of the property left, or a charge
meantime that the term does not yet arrived, the imposed by him, these will not be considered as condition.
property will be under administration until the arrival The institution is effective immediately. There is no need to
of the term. So when the term ends, the property will wait for the heir to apply the property based on the instruction
be delivered to the heirs. of the testator or no need to wait to pay all charges before he
can enter into the inheritance. These are obligations of the
The administration ends: heir but they do not determine the effectivity of the
1. If institution is subject to suspensive condition, when inheritance. The heir has to do these charges as part of his
the condition is fulfilled and the property shall be obligation. Effective upon the death of the testator, he enters
delivered to the heir. into the property. He assumes all the rights and obligations of

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

the heir instituted but he has to comply, otherwise, he forfeits in the Codicil, the property referred to shall be seized and
the inheritance. This is the negative aspect of the institution. turned over to the testatrix’s near descendants.
There is a need to distinguish a condition and a mode as it No fideicommissary substitution.
determines when an heir acquired ownership on the property
left. In a fideicommissary substitution, the first heir is strictly
mandated to preserve the property and to transmit the same
later to the second heir. Here, the instituted heir is in fact
Mode Condition
allowed under the Codicil to alienate the property provided
the negotiation is with the near descendants or the sister of
Heir immediately enters Heir cannot enter or enjoy the the testatrix. Thus, a very important element of a
and enjoys the property property until after the fideicommissary substitution is lacking, the obligation clearly
condition has been fulfilled imposing upon the first heir, the preservation of the property
and its transmission to the second heir. Also, the near
Obligatory: Heir has to do Not obligatory: Heir is not descendants' right to inherit from the testatrix is not definite.
what is imposed by the obliged to fulfill the condition The property will only pass to them should Dr. Rabadilla of
testator under the pain of as it may depend upon chance his heirs not fulfill the obligation to deliver part of the
forfeiting the inheritance in or of 3rd persons and the usufruct to private respondent. Moreover, fideicommissary
case of non-compliance condition may or may not substitution is void if the first heir is not related by first
happen and even beyond the degree to the second heir. In the case under scrutiny, the
control of the heir. near descendants are not all related to the instituted heir, Dr.
Rabadilla.
If in doubt if the institution is modal or conditional, the doubt
Not a conditional institution.
shall be resolved in favor of a mode.
It is clear that the testatrix intended that the lot be inherited
For example, I hereby give my properties to A but A has to
by Dr. Rabadilla. It is likewise clearly worded that the
form a foundation and he will apply a half of the income of
testatrix imposed an obligation on the said instituted heir and
this inheritance to the foundation. Is it a mode or condition? If
his successors-in-interest to deliver sugar to Belleza, during
it is a condition, the heir has to first form the foundation
the lifetime of the latter. However, the testatrix did not make
before he can get the inheritance. If it is a mode, he
Dr. Rabadilla‟s inheritance and the effectivity of his
immediately gets his inheritance and he must form a
institution as a devisee, dependent on the performance of
foundation in order not to forfeit it. In case of doubt, the
the said obligation. It is clear though that should the
setting up of foundation is a mode because between mode
obligation be not compiled with the property shall be turned
and condition, the mode is more consistent with the liberality
over to the testatrix near descendants. Since testamentary
and generosity of the testator. In a mode, the inheritance is
dispositions are generally acts of liberality an obligation
immediately effective whereas in a condition, it may or may
imposed upon the heir should not be considered a condition
not happen. Thus, there is more certainty in the part of the
unless it clearly appears from the Will itself that such was the
mode other than condition.
intention of the testator. In case of doubt, the institution
If there is doubt whether one is of a mode or a suggestion, should be considered as modal not conditional.
the doubt shall be resolved in favor of the suggestion.
The manner of institution of Dr. Rabadilla is modal in nature
Suggestion is more in keeping with the concept of liberality
because it imposes a charge upon the instituted heir without,
and generosity of the testator which is the underlying reason
however, affecting the efficacy of such institution. A “mode”
for succession. If it is suggestion, even if the heir does not
imposes an obligation upon the heir or legatee but it does
follow, he shall not lose the inheritance. But if it is a mode,
not affect the efficacy of his rights to the succession. On the
non-compliance means forfeiture.
other hand, in a conditional testamentary disposition, the
condition must happen or be fulfilled in order for the heir to
Rabadilla vs Court of Appeals be entitled to succeed the testator. The condition suspends
In the Codicil of testatrix, Dr. Rabadilla (predecessor in but does not obligate; and the mode obligates but does not
interest of petitioner) was instituted as a devisee of Lot No. suspend. To some extent, it is similar to a resolutory
1392 contained the following provisions among others: condition.

 Rabadilla shall have the obligation until he dies,

every year to give to Belleza 100 piculs of sugar
until Belleza dies; September 21 (EAE)
 Should Rabadilla die, his heir to whom he shall give Art. 883. When without the fault of the heir, an institution
Lot No. 1392 shall have the obligation to still give referred to in the preceding article cannot take effect in the
yearly, the sugar as specified to Belleza. exact manner stated by the testator, it shall be complied with
 In the event that the lot is sold, leased, or in a manner most analogous to and in conformity with his
mortgaged, the buyer, lessee, mortgagee shall have wishes.
also the obligation to respect and deliver yearly If the person interested in the condition should prevent its
sugar to Belleza. Should the command be not fulfillment, without the fault of the heir, the condition shall be
respected Belleza shall immediately seize the lot and deemed to have been complied with. (798a)
turn it over to the testarix near descendants.
Under Article 883, in the institution, meaning the modal
Not a simple substitution.
institution referred to in 882, diba there are certain obligations
In simple substitutions, the second heir takes the inheritance imposed by the testator, if those cannot be complied with in
in default of the first heir by reason of incapacity, predecease the exact manner stated by the testator, substantial
or renunciation. The Codicil does not provide that should Dr. compliance will be sufficient.
Rabadilla default due to predecease, incapacity or
Now insofar as a conditional institution is concerned, if the
renunciation, the testatrix's near descendants would
heir also is not able to fulfill the condition and the reason for
substitute him. What the Codicil provides is that, should Dr.
the nonfulfillment is due to the fault of the persons interested
Jorge Rabadilla or his heirs not fulfill the conditions imposed
in the condition, like for example, what will happen if the

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

instituted heir cannot get the share? We’re referring here to As we have discussed, the period can be suspensive or
the voluntary heir. To whom shall his share go? It will go to resolutory. When you say suspensive period, we have to wait
the legal heirs because supposedly if the condition cannot be for the arrival of the period so that the institution can become
fulfilled the institution will not be given effect. The share of effective. If it is a resolutory period, upon the arrival of the
the instituted heir will go to the legal heirs. period the institution is ended. So effective immediately upon
the death of the testator, the institution becomes effective.
Example:
That is in a resolutory period. But it ends upon the death of
The legal heirs themselves prevented the heir from fulfilling the testator.
the condition? What will happen? Will the instituted heir forfeit
But as we have also discussed, let us go back to a suspensive
the inheritance? The law says it shall be deemed complied
period, even if we say that in a suspensive period the heir
with. So there shall be constructive fulfillment.
does not yet enjoy the property until the arrival of the period,
The first paragraph refers to substantial compliance; the but it is only the enjoyment that is being referred in the
second paragraph refers to constructive fulfillment. Even if it meantime, in the reality the heir already acquired some rights
is not fulfilled it is deemed complied with, so that the to the inheritance. If for example the period is 5 years after
instituted heir will still get the inheritance. the death of the testator, but 2 years pa lang after the death
the heir instituted subject to the period dies, will the heir get
Art. 884. Conditions imposed by the testator upon the heirs the inheritance? Yes. Because there was already transmission,
shall be governed by the rules established for conditional although it was just suspended or deferred. What will happen
obligations in all matters not provided for by this Section. is after 5 years, because A is already dead, the heir is already
dead, then his own heirs can get the property. Unlike in a
You already discussed in your Obligations and Contracts the suspensive condition where the condition really has to happen
concept of conditional obligations. We just discussed the before the rights of the heirs can become effective. So if the c
concept of institution subject to conditions. The same rules in condition will not happen, then the heir instituted will never
conditional obligations can be applied to conditional inherit. So that is the distinction between a period and a
institutions except when certain rules specifically apply only to condition.
conditional institutions.
The law also mentions a security. “But in the first case he
Example: shall not enter into possession of the property until
The concept of impossible conditions. If an institution is after having given sufficient security, with the
subject to an impossible condition, what will happen? The intervention of the instituted heir.” What do we mean by
condition will be deemed not written. So give effect to the this? To which kind of institution will it apply? Will it apply to a
institution. But in Obligations, if the obligation is subject to an suspensive period or a resolutory period?
impossible condition, the conditional obligation is void. So, we It will not apply to a suspensive period because again, if the
don’t say na it is deemed not written. Because in obligations, institution is subject to a suspensive period, prior to the arrival
the imposition of the condition is an important part of the of the period, the property shall be under administration.
obligation. It goes into the consideration of the obligation. When the period arrives, then it will go to the instituted heir.
If there is an impossibility that is attached to the It applies to an institution subject to a resolutory period. So
consideration, the existence of the obligation is itself affected. immediately the heir will get the inheritance. But upon the
We cannot say that in an obligation the underlying arrival of the term, and it is definite that the term will arrive,
consideration is the liberality or generosity of the creditor, no. he will have to return the property to the estate. But what if
But in succession it is really the underlying consideration— the the heir has already destroyed the property? Or it has
generosity or the liberality of the testator, so we just deteriorated through the fault of the heir? So that is the
disregard the impossible condition. reason why a security is required. It will answer for
anydeterioartion or diminution in the value of the property
Art. 885. The designation of the day or time when the effects
due to the fault of the heir.
of the institution of an heir shall commence or cease shall be
valid. Just like in an institution subject to a mode, there is a
requirement of giving security, or also an institution which is
In both cases, the legal heir shall be considered as called to
subject to a negative potestative condition, it is also subject to
the succession until the arrival of the period or its expiration.
the giving of a security. These are some of the instances
But in the first case he shall not enter into possession of the
where the heir is to give a security.
property until after having given sufficient security, with the
intervention of the instituted heir. (805) Now we go to legitimes. Legitime is very important ha. So you
cannot pass Succession without knowing legitime.
We’re now referring to an institution subject to a term or
period.
SECTION 5. Legitime
Again, as we have already discussed, a period is a certain and
future event which must necessarily come. So certainty plus What is a legitime?
futurity.
“I will give this one hectare land to B five years after my Art. 886. Legitime is that part of the testator's property
death.” That is a period. It will necessarily come. which he cannot dispose of because the law has reserved it
for certain heirs who are, therefore, called compulsory
“I will give one half of my property to X but X will enjoy this heirs. (806)
upon the death of A.” The death of A is a period because
everybody dies, although again it may not be known when. This is the portion reserved by law for the compulsory heirs. If
we have the estate of the testator—just imagine nalang a
“If the testator says, I will give to A one half of my estate if X pizza—usually, mao na siya ang totality sa estate. Naay
will die by year 2017.” Is that a period or condition? The portions dira na the testator cannot give to anybody else
death of X is definite. But whether or not he will die by 2017 except to the compulsory heirs. Like for example, he left
is not definite, it is uncertain. So it is a condition; it is not a children, illegitimate children. The law provides what are the
period. legitimes of the compulsory heirs. So the legitimate children
are entitled to one half. 1/2 of the pizza or the estate (basin

Ad Majorem Dei Gloriam

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

pizza inyong ianswer sa bar) cannot be disposed of, cannot be If the testator dies, who shall succeed from him? Should it be
given to anybody else except to the children who are the A and B because the law says legitimate children and
compulsory heirs. The other half, that is the free portion. The descendants? No. We follow the rule on proximity. The nearer
testator has discretion to whom he shall give the free portion. relatives exclude those who are far.
There are certain compulsory heirs whose shares, even if you So A is nearer to the testator, therefore A will exclude the
call them legitimes, but they are taken from the free portion. descendant.
For example, the testator left legitimate children and a
Pero halimbawa si A predeceased the testator, then it will be
spouse. So the legitimate children are entitled to ½ of the net
the descendant. Or if A repudiated the inheritance, and there
hereditary estate. How about the spouse? The spouse is also
are no other children, si descendant gihapon. So the
entitled to a legitime. If there are two or more legitimate
descendant may inherit by representation or in his own right,
children, the spouse is entitled to a share equivalent to the
depending on the situation. Again we follow the rule on
share of one legitimate child. So asanatokwaonang share sa
proximity.
spouse? Didto sa free portion. So free portion is not actualy
really free, kay naa pa man makuha na share didto sa Adopted children, are they entitled to inherit? Yes they are
surviving spouse, makuha pa didto ang share sa illegitimate considered as legitimate children.
children. So after satisfying the share of the surviving spouse,
kadtong nabilin, mao na gyud to siya ang tinuod na Free Number two: in default of legitimate children and
Portion. That is what we call the free disposal. The legitime is descendants, so halimbawawalayanak, walayapo, etc., then
provided for by law, and this is reserved to the compulsory the parents, legitimate parents and ascendants. The parents
heirs. So it is important that you should know who are the are what we call secondary compulsory heirs. Why? Because
compulsory heirs. they are excluded by the children and descendants. They only
inherit if there are no children and descendants.
Art. 887. The following are compulsory heirs:
Now if the survivors are the father of the testator and
(1) Legitimate children and descendants, with respect to their grandfather of the testator, who will inherit? Again we follow
legitimate parents and ascendants; the rule on proximity. The nearer relatives exclude those who
are far.
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and Now widow or widower. Here, we are referring to the legal
descendants; spouse. The legal husband or the legal wife. Even if the
spouses had lived together as husband and wife for 50 years
(3) The widow or widower; but without the benefit of marriage, the widow or widower will
[(4) Acknowledged natural children, and natural children by legal fiction; not inherit, will not be considered as a compulsory heir. We
(5) Other illegitimate children referred to in Article 287.
are referring here to the legal spouse.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in And illegitimate children.So illegitimate children are also
Nos. 1 and 2; neither do they exclude one another.] entitled to inherit. Before, they were not given successional
rights, but under the New Civil Code, clearly, they have rights;
In all cases of illegitimate children, their filiation must be duly
they are entitled to inherit from their parent.
proved.
The widow or the widow and the illegitimate children concur
The father or mother of illegitimate children of the three
with the legitimate children. So they are concurring
classes mentioned, shall inherit from them in the manner and
compulsory heirs. They are not excluded by the presence of
to the extent established by this Code. (807a)
other heirs. They concur with the children; they concur with
You have to revise Article 887 because there are certain the parents; they concur with the spouse, with all of them.
classes here of compulsory heirs who no longer exist because Unlike sakadtong parents na they are excluded by the
of the Family Code. So to simplify who are the compulsory presence of the legitimate children.
heirs, we have the: Going back, the second to the last paragraph of Article 887
1. legitimate children and descendants, with respect to says, “In all cases of illegitimate children, their filiation
their legitimate parents and descendants must be duly proved.”
2. in default of the foregoing, legitimate parents and So if you are an illegitimate child, your right to inherit is
descendants dependent on you having proved your illegitimate filiation.
3. widow or widower Even if you successfully prove that you are really an
4. illegitimate children illegitimate child, it is not sufficient. There has to be a
So these are the compulsory heirs. We no longer have the recognition, either voluntary or involuntary.
acknowledged natural children, natural children by legal Now you have under the Family Code the pieces of evidence
fiction, wala na ni sila. So four. admissible to prove filiation: you have the primary evidence
Let’s go back to the first group: the legitimate children and and the secondary evidence. If you are an illegitimate child,
descendants. We call them primary compulsory heirs. They you can also prove your illegitimate filiation by the same
are not excluded by any class of heir. As long as they survive, evidence for legitimate children.
they always inherit. The law says legitimate parents and
Ilano vs. CA
ascendants.
Here the Supreme Court discussed the right of the illegitimate
So for example this is the testator, and naa siyay anak na si A,
child to inherit from the parent. The Supreme Court clarified
and si A pud naa anak na si B.
that even if the illegitimate children can inherit, there must
Testator first be a recognition of paternity either voluntarily or by court
action.
This arises from the legal principle that an unrecognized
A spurious child like a natural child has no rights from his
parents or to their estate because his rights spring not from
the filiation or blood relationship but from his
B acknowledgment by the parent. In other words, the rights of

Ad Majorem Dei Gloriam

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

an illegitimate child arose not because he was the true or real portion, subject to the legitime of the surviving spouse and
child of his parents but because under the law, he had been illegitimate children.
recognized or acknowledged as such a child.
Estate: P1,000,000
You have to prove that you were acknowledged beforehand,
before you can invoke your right to inherit from the testator. Legitime: ½ of P1,000,000 = P500,000
Going back to the Family Code, what are the pieces of One legitimate child
evidence allowed to prove filiation? We have again the
primary evidence and the secondary evidence. Examples of A – ½ of P1,000,000 = P500,000
primary evidence: public record of birth, your birth certificate, Two legitimate children
there is there a signature by your father acknowledging that
A – ½ of P500,000 = P250,000
he is your father; or not in a birth certificate, in a private
document subscribed by the parent. Wala siya sa birth B – ½ of P500,000 = P250,000
certificate pero nay other document signed by the father
where he acknowledged that you are his illegitimate child. Now you have to memorize the table of legitimes. You cannot
Those are called primary evidence. just recall. You have to memorize, because lahibayanang ½
In the absence of those kinds of evidence, you can also prove sa ¼. Kay kung marecall niya, murag ½ man to, murag ¼ --
your illegitimate filiation by common reputation, you discussed dili pwede na murag. It should be absolute kay dira
about that in your Evidence? Halimbawa, when you were a magdepend imong answer. Okay ra man nag essay kay
child, you had enjoyed the reputation of being the illegitimate machikachika man na nimo gamay. Ang computation dili
child of this man, or you had been recognized by the relatives, machikachika. So tama gyud dapat imong answer.
etc.DNA evidence—that is secondary evidence that can also Now we go to Article 889.
be used to prove filiation. But, these secondary evidence can
only be invoked during the lifetime of the putative parent. You Art. 889. The legitime of legitimate parents or ascendants
cannot use them upon the death of the putative parent. consists of one-half of the hereditary estates of their children
and descendants.
Halimbawa namatay si testator, and here comes A, claiming
that he is an illegitimate child of the testator, therefore he The children or descendants may freely dispose of the other
intervenes in the proceeding, whether probate or intestate, he half, subject to the rights of illegitimate children and of the
intervenes. If he has with him a primary evidence, like he has surviving spouse as hereinafter provided. (809a)
with him a birth certificate where his father signed, then he
can prove his illegitimate filiation. But if wala, anolang, he had 889, the legitime of the legitimate parents or ascendants. How
been recognized lang by the relatives, even by the father, much? ½ of the net hereditary estate. Take note ha, the
ginapaadto siya sa balay, kadtong buhi pa, sige siya adto sa legitimate parents and ascendants, they inherit in the absence
birthday, mga pictures na gitauran siyag ribbon tapos ang of the legitimate children. They just take the place of the
iyang papa tapad sa iyaha, sa iya ha pud baptism naa siya’y legitimate children. Take note the same sila ug legitime. ½ of
picture, would that be allowed? No, because those pieces of the net hereditary estate.
evidence are what we call secondary evidence. They are not
Art. 890. The legitime reserved for the legitimate parents
allowed upon the death of the putative parent.
shall be divided between them equally; if one of the parents
You cannot use them to prove your filiation, and because you should have died, the whole shall pass to the survivor.
were not recognized during the lifetime, you do not have
If the testator leaves neither father nor mother, but is
primary evidence, then you cannot inherit, because you
survived by ascendants of equal degree of the paternal and
cannot prove. You cannot inherit because you cannot prove
maternal lines, the legitime shall be divided equally between
anymore your illegitimate filiation. You cannot compel
both lines. If the ascendants should be of different degrees, it
recognition because what you have are merely pieces of
shall pertain entirely to the ones nearest in degree of either
secondary evidence which are not allowed. Even DNA
line. (810)
evidence—patay naman, so pwede siguro hair na lang. Dili na
siya upon the death of the putative parent, because again that Example:
is considered as secondary evidence.
This is the testator, his estate is P1,000,000. No children, so
Now we go to the specific legitimes. We will first discuss the his heirs will be his parents. He left a will, so testate
specific legitimes of the compulsory heirs. We will skip 891 succession. The legitime of the parents will be ½. P500,000.
because this talks of reserve troncal. We will discuss this after If both the mother and the father survive, they shall divide the
we have discussed all the legitimes of the compulsory heir. P500,000 in equal shares. P250,000 for the father, P250,000
First we go to the specific legitime. for the mother.

Art. 888. The legitime of legitimate children and descendants (250k) Father Mother (250k)
consists of one-half of the hereditary estate of the father and
of the mother.
Testator
The latter may freely dispose of the remaining half, subject to
the rights of illegitimate children and of the surviving spouse For example the mother predeceased the testator, so died
as hereinafter provided. (808a) ahead of the testator. Who shall inherit from the testator? Of
course the father. Who else? The grandparents on the
The legitime of the legitimate children and descendants, the mother’s side? No. Why, how about the right of
law says 1/2. So if you only have one child and legitimate, representation? No.
that child gets ½. If you have two, then the two of them will
divide the half. If the estate is 1 million, so you have two Remember, in Succession, the right of representation applies
children, legitimate, the legitime is P500,000. So they will only to the descending line. There is no right of representation
divide the P500,000 by two. Each will get P250,000. Kung tulo in the ascending line. We follow here the law on gravity.
sila, tungaon ni (P500,000) equally. Basta ½ divided by all of Always down.
the legitimate children. The other half, the law says, the free The testator died, survived by his father. The entire legitime
of P500,000 goes to the father. How about if the father also

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

died? The survivors are grandparents both on the father’s side This fourth shall be taken from the free portion of the estate.
and the mother’s side. They will divide the P500,000. We
divide it by line: maternal line, paternal line. To the maternal So ½ to the legitimate parents or ascendants, ¼ to the
line, P250,000; to the paternal line, P250,000. surviving spouse.
Kinsamagtungadidtosagranparents? Both surviving, so
Art. 894. If the testator leaves illegitimate children, the
P250,000 divided by two, P125,000. So upatka P125,000.
surviving spouse shall be entitled to one-third of the
(250k) Grandparents Grandparents (250k) hereditary estate of the deceased and the illegitimate children
to another third. The remaining third shall be at the free
disposal of the testator. (n)
(deceased) Father Mother (deceased)
So here the survivors are the spouse and illegitimate children.
So 1/3 to the spouse, 1/3 to the illegitimate children, and 1/3
the free portion.
Testator
If you’re asked, when will be that situation where the free
Now what if the grandmother in the paternal line also portion is 1/3? You can answer: if the survivors are the
predeceased? So the only survivors are the grandfather, spouse or the illegitimate children.
paternal line, and grandparents both, maternal line. How do
we divide? Do we divide by 3? We divide by line. Always by Art. 896. Illegitimate children who may survive with
line, maternal, paternal. So sa father’s side, P250,000, si legitimate parents or ascendants of the deceased shall be
grandfather lang magenjoy. Mother’s side, P125,000, entitled to one-fourth of the hereditary estate to be taken
P125,000. That is how we decide in so far as the ascending from the portion at the free disposal of the testator. (841a)
line is concerned.
Del Rosario vs. Cunanan
We now proceed to Article 892.
An adopted child has the status and enjoys the same rights as
Art. 892. If only one legitimate child or descendant of the legitimate children. What will be the successional rights of
deceased survives, the widow or widower shall be entitled to legitimate parents when they concur with a legitimate child?
one-fourth of the hereditary estate. In case of a legal They are excluded. Here, the problem is we have an
separation, the surviving spouse may inherit if it was the illegitimate child. Supposedly under the law, the illegitimate
deceased who had given cause for the same. child has the same rights as the legitimate child. So if he has
If there are two or more legitimate children or descendants, the same rights as the legitimate child, he should exclude the
the surviving spouse shall be entitled to a portion equal to the parents of the adopter.
legitime of each of the legitimate children or descendants. Here the Supreme Court did not rule that the parents should
In both cases, the legitime of the surviving spouse shall be be excluded, because comparing with the adopted child, the
taken from the portion that can be freely disposed of by the adopter and the parents are bound by the ties of blood,
testator. (834a) whereas the adopter and the adopted are only bound by
fiction of law. The relationship was created by fiction of law.
The legitime of the surviving spouse who survives with Here, the adopted child was treated, and iyahang share lang
children or a child. Just take note, if there is one legitimate ha, was treated like the share of an illegitimate child. So wala
child who survives with the spouse, the child is entitled to ½, giexclude sa adopted child ang parents.
the spouse is ¼. The share is to be taken from the free
With the Family Code and the Domestic Adoption Act, how do
portion. If there are two or more legitimate children, the share
of the spouse becomes equivalent to the share of one we apply this provision? Actually, if you examine the Civil
Code on adoption, and then the Family Code, and then the
legitimate child.
Domestic Adoption Act, they all say that the adopted child has
Again for example, the estate is P1,000,000 the testator left the same rights as a legitimate child. But kaning provision,
only one child and only one spouse, the child gets P500,000 there’s no specific provision on excluding the legitimate
as legitime, the spouse gets P250,000 as legitime, ¼. If there parents if an adopted child survives. And this case of Del
are four legitimate children, so they shall divide the P500,000 Rosario vs. Cunanan, this was decided in, March 30, 1977,
by 4. They shall inherit P125,000 each. The spouse is also under the Civil Code, there is actually no change sakadtong
entitled to P125,000. Take note, the legitime of the spouse insofar as the rights of an adopted child are concerned. DIli
varies. Primer okay P250,000, niya karon P125,000 na lang. kayo siyaklaro. So there are actually two views on the matter.
So beneficial gyud nang gamay lang kaganak, kay kung
daghan, madilute imong legitime. The legitime of the spouse The question is under the present laws, what if an adopted
child concurs with legitimate parents? How do we divide the
is also what we call variable legitime, because its amount
varies. Also taken from the free portion. estate?
 One view: you can still follow the ruling in the case
Now the law says if there is legal separation, if here is a
decree of legal separation as you have learned in the Family of Del Rosario vs. Cunanan. Under the rationale
Code, the guilty spouse is disqualified to inherit by testate or that the ties that bind the testator or the decedent
and the parents, they are bound by blood. It would
intestate succession from the innocent spouse. If it is the
testator who was the guilty spouse, so ang surviving spouse be unfair to treat the adopted with more priority who
is only bound by legal fiction to the adopter. And
makainherit gihapon. But if it is the testator who is the
innocent spouse, then the surviving spouse forfeits the besides, we cannot say that under the Domestic
Adoption Act and the Family Code, that they changed
legitime, disqualified to inherit. That is, kung nay decree.
Kung pending lang ang case, walay pronouncement sa court, the application, because there is no specific
provision, even if you examine. And authorities say
qualified gihapon.
that implied repeals are not favored. So good law
Now we go to Article 893. gihapon.

Art. 893. If the testator leaves no legitimate descendants,  The other view. It is simpler — just follow the
but leaves legitimate ascendants, the surviving spouse shall concept na if an adopted child has the same rights as
have a right to one-fourth of the hereditary estate. a legitimate child, and a legitimate child excludes the
parents, then the parents are excluded. So wala pay

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

bago na ruling aside from the case of Del Rosario. halimbawa ang himalatyon diay didto kay ang surviving
Wala pay bago na ruling and then the laws are not spouse, we cannot apply this.
clear.
The reason for the reduction of the share of the spouse is to
If you have a case like this in the future, it will depend kung prevent marriage by reason of money. Kay “Hala sige
kinsa imong client. musugot nalang ko, mamatay na bitaw ka. Mga siguro pila
nalang ni kaadlaw, hala sige musugot nalang ko.” Niya
 If your client is the adopted child, then you follow
namatay gyud. Naa siyay legitime tuon pero 1/3 lang.
the concept na ang adopted child has the same
rights as the legitimate child, and being a legitimate Pero kung kadtong nagtinga kay kadtong nakasurvive diay, dili
child, he excludes the legitimate parents. siya mag-apply. It should be the testator who was at the point
of death at the time of the marriage in Articulo Mortis. Take
 But if you are the lawyer for the parents, then you
note, 3 months from the celebration of marriage.
follow the case of Del Rosario vs. Cunanan. And
you cite that there is no specific provision in the Again so general rule, ½. Exception, 1/3.
Family Code or in the Domestic Adoption Act saying
Exception to the exception: Even if the marriage was
that the parents are excluded, and that implied
celebrated in Articulo Mortis, and the testator died 3 months
repeals are not favored.
from the celebration of the marriage, but if prior to the
Kung sa bar exam, to be safe, duha nalang imong ianswer. marriage they had been living together as husband and wife
Because there is no specific and categorical declaration as to for at least 5 years, then ½ ang share sa spouse.
this.
Because here, the law sees that it is not really for money that
Art. 899. When the widow or widower survives with the spouse married the other, but because of love. Because
legitimate parents or ascendants and with illegitimate even before that they had been living together as husband
children, such surviving spouse shall be entitled to one-eighth and wife.
of the hereditary estate of the deceased which must be taken Pero kung didto lang sila nagkita sa eroplano, nagpakasal, or
from the free portion, and the illegitimate children shall be two months lang before— basta 5 years, living as husband
entitled to one-fourth of the estate which shall be taken also and wife for 5 years. Diba exception napud na sa marriage
from the disposable portion. The testator may freely dispose license. So ½.
of the remaining one-eighth of the estate. (n)
Art. 902. The rights of illegitimate children set forth in the
Here, the survivors are the spouse and then the legitimate preceding articles are transmitted upon their death to their
parents and ascendants, and the illegitimate children. So how descendants, whether legitimate or illegitimate. (843a)
do we divide the estate?½ to the parents, ¼ to the
illegitimate children, 1/8 to the spouse. So halimbawa si illegitimate child inherited from the father,
and then (illustrations)
When you say ¼ to the illegitimate children, so if there are
three of them, they will divide equally the ¼. Not the ¼ each, First scenario: testator namatay, survivor the illegitimate child,
but ¼ for the group to be divided equally among them. of course the illegitimate child inherited. If he dies (illegitimate
child), he will also be succeeded by his children.
Take note here that the spouse gets only 1/8. So it seems
that the spouse is being penalized for not having children with Now what if the illegitimate child died ahead of the testator?
the testator. Some authorities would say that this is one of the
many unholy provisions in the Civil Code. Here, number one, Testator
because unfair sa spouse, kay tungod lang wala siya
nakaanak sa testator, gamay na iyahang share.
A (illegitimate)
Then we go to Article 900.

Art. 900. If the only survivor is the widow or widower, she or

he shall be entitled to one-half of the hereditary estate of the (legitimate) X Y (illegitimate)
deceased spouse, and the testator may freely dispose of the So now, ang nabilin nalang si X ug si Y. Si X legitimate child ni
other half. (837a) A, si Y illegitimate child ni A. Si A illegitimate. Namatay si A
If the marriage between the surviving spouse and the testator ahead of the testator. And then namatay napud si testator.
was solemnized in articulo mortis, and the testator died within Can X represent A? Can Y represent A? Meaning sila na ang
three months from the time of the marriage, the legitime of mustep sa shoes ni A to get the share of A? Can they
the surviving spouse as the sole heir shall be one-third of the represent A? Yes.
hereditary estate, except when they have been living as The law is very clear. He transmits his right to his
husband and wife for more than five years. In the latter case, descendants, whether legitimate or illegitimate. We are talking
the legitime of the surviving spouse shall be that specified in of testamentary succession. We will discuss another similar
the preceding paragraph. (n) concept in legal succession.
Here, we have the spouse as the only survivor, the only Let’s go to 903.
compulsory heir who survives. Take note of the legitime of the
spouse. Art. 903. The legitime of the parents who have an illegitimate
child, when such child leaves neither legitimate descendants,
GR: The spouse is entitled to ½ if he or she is the only nor a surviving spouse, nor illegitimate children, is one-half of
survivor. the hereditary estate of such illegitimate child. If only
Exception: But if the marriage between the spouse— the legitimate or illegitimate children are left, the parents are not
surviving spouse and the testator—was celebrated in Articulo entitled to any legitime whatsoever. If only the widow or
Mortis (at the point of death) and the testator died within 3 widower survives with parents of the illegitimate child, the
months from the celebration of the marriage, how much is the legitime of the parents is one-fourth of the hereditary estate
legitime of the spouse? Reduced to? How much? 1/3. Take of the child, and that of the surviving spouse also one-fourth
note ha, at the time of marriage in Articulo Mortis, it should be of the estate. (n)
the testator who was in the point of death. Kay kung

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

Legitimate parents surviving with illegitimate children. How 1. Reserva troncal

much ang sa parents? Remember, sa testamentary
2. Prohibit the partition of the legitime for a period not
succession, always, if legitimate parents survive, ½ angiyaha.
exceeding 20 years even if that is the legitime of the
Didto nalang ka mamroblema sa isa, kadtong iyahang
compulsory heir
kapartner. So si illegitimate children pila man? ¼. Surviving
with the spouse? ¼. Now we go to Article 891.
If you notice, diba, ang surviving spouse, as I said, variable Art. 891. The ascendant who inherits from his descendant
legitime. And I said that you have to memorize the legitimes any property which the latter may have acquired by gratuitous
of the compulsory heirs. So to better memorize the table of title from another ascendant, or a brother or sister, is obliged
legitimes, you start with the legitime of the surviving spouse. to reserve such property as he may have acquired by
Surviving spouse surviving alone, spouse surviving with operation of law for the benefit of relatives who are within the
children, etc. So unahon ninyong memorize para mas dali third degree and who belong to the line from which said
ninyo makuha. property came. (871)
Now with respect to the parents, the article talks not only of
So Article 891 is the concept of reserve troncal.
legitimate parents but also of illegitimate parents. Kinsa man
ang illegitimate parents? Sila ang parents sa illegitimate child. Here, the principle is, if a property comes from another line of
If you are an illegitimate child, your parent is your illegitimate the family, and for some reason that property strayed into the
parent. other side of the family, eventually that property has to go
back to the line from which it originated from. Because it is
Legitimate parents surviving with legitimate children, pila ang
reserved to the line of the origin. This is the only remaining
legitime sa parents? Zero.
reserva under the New Civil Code. The others have already
Legitimate parents surviving with illegitimate children? ½. Sa been abolished.
illegitimate ¼.
This was asked last year in the bar exam.
Now under this article, illegitimate parents surviving with
What is reserve troncal? First, para mas mavisualize ninyo
children, whether legitimate or illegitimate, how much? Take
(illustration) just remember the V sign.
note ha, if we are talking of illegitimate parents, they are
excluded by the presence of children, whether legitimate or Origin Reservor/ Reservista
illegitimate children. So basta illegitimate parents excluded by
children. Mao na siya ang under sa article 903.
Now we go to Article 904. Prepositus

Art. 904. The testator cannot deprive his compulsory heirs of In reserva, there is a property which comes from the origin.
their legitime, except in cases expressly specified by law. And then the ascendant transferred this property by
gratuitous title to his descendant. And then the descendant
Neither can he impose upon the same any burden, kept the property without issue, meaning wala siya’y anak. So
encumbrance, condition, or substitution of any kind who inherited? Another ascendant in another line. For
whatsoever. (813a) example, if this is the paternal, then this is the maternal. For
example, it was inherited by operation of law by the ancestor
I think we discussed this also before. First is, the legitime is or the ascendant in his other line.
reserved by law to the compulsory heirs. So even if the
testator did not mention about this in his will, it is implied that Under the law on reserva, this ascendant who inherited, this
he has to give ½ or whatever to his compulsory heirs as their reservor, has to reserve the property. Dili na siya actually
legitime. And he cannot even expressly deprive his heirs of malilaha gyud. Naa siya’y burden Diba inheritance niya. Even
their legitimes without a valid ground. if it is his inheritance, it is burdened by the reserva. So unsa
man nang reserva? Unsa man nang burden sa reserva?
So for example, if the testator forgets about the legitime of his
compulsory heirs and disposes of all his properties to other Meaning, if namatay siya, dili maadto s aiyahang estate kini
people, what will happen? There will be preterition. So the na property, kundi maadto sa relatives ni prepositus within the
institution of heirs shall be annulled. The estate shall be given third degree. Iuli na siya didto.
to the legal heirs, the compulsory heirs who are also the legal
Again, first, there has to be a distinction of line. If the origin is
heirs. So satisfied gihapon ang legitime.
paternal line, this side should be maternal or vice versa. Kay
Now if the testator expressly excluded a child or compulsory kung ang lolo nimo sa father’s side ang naghatag, and then
heir from his estate but the ground is not valid, what will namatay, nainherit napud saiyahang papa, walay reserve
happen? This is a case of invalid disinheritance. The law says diha. Ngano man? Because wala may distinction of line.
the legitime of the invalidly disinherited heir shall be satisfied. Paternal lang tanan. There has to be a distinction. Because
In all cases. He can only deprive a compulsory heir of his again ang reason for the reserva is to prevent the property
legitime for causes provided for by law. When we go to from straying from one line of the family to the other. So kung
disinheritance, we will discuss what are those grounds. So he walay distinction sa line, walay nag-stray. In the ultimate
cannot deprive his compulsory heirs of their legitime, except analysis walay reserva.
in cases specified by law. And he cannot impose any burden,
Again, these are the parties in the reserva. The origin. Who is
encumbrance, condition, or substitution of any kind
the origin? He might be an ascendant or a brother or sister.
whatsoever.
But when it is a brother or sister, it has to be a half-brother or
Again this is to preserve the legitime. Because if he can a half-sister. Why? For example, this is the grandfather,
impose some substitution, burden, condition, and this will be paternal. We have a brother on the father’s side. Half-brother
so difficult, the heir may not be able to comply, effectively his niya sa father’s side. Take note ha in reserva, even if we are
legitime will be forfeited. So this cannot be allowed by law. So talking of half-brother or half-sister, the relationship must be
you cannot impose any burden, encumbrance, condition, or legitimate. Dili pwede na illegitimate half-brother or half-
substitution on the legitime, except when—I already discussed sister. Dapat legitimate. So meaning, naminyo sauna,
this before—there are only two instances when the legitime nabyudo, tapos nagminyo na pud.
can be burdened:
Origin Reservor/Reservista

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

(Brother from PT) (mother from MT) keeps the thing, then there is a possibility that there could be
reserva. If he destroys, then there would be no reserva.
Now, from the prepositus, another requisite is that the very
same property received by the descendant prepositus should
Prepositus be transferred by operation of law to another ascendant in the
other line. So, for example, the grandfather *** donated a
Half-brother land to his grandson, the grandson kept the land, he did not
have any children, he died without issue or children, so the
So brother on the father’s side. Naghatag sa iyaha ug
property is now inherited by his mother. So another ascendant
property, sa iyahang brother, sa prepositus. And then he died,
in the other side of the family. So in that case, there is now
and the property is inherited by his mother. So now there is a
reserva troncal. The land which inherited by the mother
distinction of line, because the property came from the
should be reserved by the mother, the reservor, in favor of
brother in the father’s side, and it went to the line of the
the relatives of the descendant who belong to the third
mother. It has to go back. Because if it is not a half-brother,
degree (3 degrees) from the land line of origin, from the line
like a full-blood brother, his gave a property to the prepositus,
where the property originally came from. So here, if the
his brother, the prepositus died, the property is inherited by
property came from the paternal side, so the reservees are
his mother, walay distinction sa line because the mother is
the relatives of the prepositus in the father side within the 3rd
also the same line as the origin. Anak man naniya, so dili
degree.
mag-apply dinha ang reserva. It has to be a half-brother or a
half-sister coming from the other side, or the other line of the Now, as we mentioned that the transfer from the prepositus
family. That is the origin. to the reservors should be by operation of law. So when can
there be transfer by operation of law? (1) Legal succession, it
Now the property is given to the descendant. So here, what is
is clear that it is by operation of law. How about testamentary
the mode of transfer? It should be by gratuitous title. For
succession? The son executed a last will and testament giving
example si grandfather, paternal, donated a parcel of land to
to his mother the land, can it be considered as transfer by
his grandson, so that is gratuitous. Unsa pay other modes na
operation of law? If there is a will, there can still be transfer
gratuitous? Succession. Tagaan niya iyang grandson ug
by operation of law. To what extent? To the extent of the
property by will, or by legal succession. That is gratuitous.
legitime of the reservor. If you just give by will all his
Chua vs. CFI properties to his mother which included the land, so that land
could be part of the legitime. So here, if we are talking of
We look into the transfer from the origin himself, whether he testamentary succession, the transfer by operation law is
imposed any charge or condition. Here there was none. It was limited only to the legitime. So, please remember, even if the
the court who imposed that obligation. The transfer was still transfer is by will (not really by operation of law), there could
gratuitous. Meaning, because it was gratuitous, reservatroncal still be reserva only to the portion covered by the legitime
will be possible. because that is the portion transferred by operation of law.
Remember that.
Now, as I said upon the death of the prepositus and the
September 24, 2015 (GG)
property was inherited by the reservor, the property is now
So, last meeting we discussed Article 895. We have discussed burdened by the reserva. So again, as we said, even if that
about Reserva Troncal. We already discussed that the transfer property is the legitime of the mother, that is burdened by the
in order to be covered under the concept of Reserva Troncal, reserva. As we have discussed before, there are only two
from the origin to the descendant prepositus, should be burdens that can be imposed by law to the legitime, one is the
gratuitous. concept of Reserva Troncal.
Here, what is that burden? If you receive something as your
CHUA vs. CFI
legitime, supposedly, it shall be given to you freely. There are
To determine whether or not the transfer is gratuitous, we no conditions. Now, the mother, she inherited that property
only look at the point of view of the transferor. If the which is subject to reserva, what is the nature of her
transferor did not impose any charge or burden, then the inheritance or ownership? Is she an owner? YES! She is the
transfer is gratuitous. So it could be a donation, and it could owner but upon her death, when she dies, if there are
be by means of succession whether testate or intestate. So reservees or relatives of the prepositus within the 3rd degree
now, the property has been transferred by origin to the coming from the line of origin, that property inherited by the
descendant prepositus. The same property should be kept by mother need not form part of her estate. It will go to the
the prepositus because if he sold the property, then there reservees.
could be no longer any opportunity for the reserva prosper,
So, the ownsership of the reservor is called an ownership that
because the property is no longer there. So the property
is subject to resolutory condition. She is the owner but if the
must remain with the prepositus.
condition is fulfilled, then her ownership is ended and the
property is given to the reservees.
If it is a parcel of land, for example, so the land should be
disposed of by the prepositus. Now, for example, the What is the resolutory condition? The survival of the reservees
GRANDFATHER donated a lotto ticket to his GRANDSON and upon the death of the reservor. So she is the owner, subject
the lotto ticket won P50 million, and the money was kept by to a resolutory condition.
the descendant. Is it possible that the reserva to happen in
that case for the property, assuming that all the other Once the reservor inherited the property subject to the
requisites will be present? Take note the property which is reserva, what is the right of the reservees? Can they question
kept by the prepositus should be the very same property any alienation or disposition made by the reservor? How can
given by the origin. So in my example, what was given was a they protect their rights over the property subject of the
lotto ticket, what was kept was the money, the prize. So it is reserva? If for example, there is a parcel of land and it is
not susceptible to reserva. So the same property must be kept registered under the Torrens System, you have in your Land
by the prepositus. That is why the prepsoitus is also called the Registration Law, the procedure by which the reservees may
arbiter of the reserva because in his hands depend whether or annotate the fact of the reserva in the title, so whoever deals
not the reserva could happen or there could be reserva if he with the property may be aware that this property is subject

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

to reserva. The registered owner here is the owner but her If these relatives survive, again only those coming from the
ownership may end if upon her death, there are reservees line of origin, if the origin is the father, we only consider the
who survived. So that is the reason for the annotation, if it is relatives in the father side, if all of these survive, will they get
not annotated, then anyone who deals with property are not all the property? Will they just divide? NO. Reserva Troncal
charged with the knowledge of the those non-existing only determines the class of relatives to whom the property
burdens, liens, or charges. So he becomes an innocent will be given after the death of the reservor but between and
purchaser for value. So what is the remedy of the reservees if among themselves we follow the rule on legal or intestate
they failed to annotate, they cannot recover the land to the succession.
innocent purchasers for value. They may go against the estate
RULES IN LEGAL OR
of the reservor for the indemnity or against the Land
INTESTATE SUCCESSION
Registration Fund. So that is if the property is registered. If
not, they can require a security or bond. That is to protect 1st Rule – PROXIMITY RULE.
them in case of deterioration, or loss of the property, they can
require the reservor to put up a bond or a security. That is to The nearer relatives exclude those who are far.
protect their rights. 2nd Rule – THOSE WHO ARE IN THE DIRECT LINE ARE
Now, the reservor, for example, the mother in that case, can FAVORED THAN THOSE WHO ARE IN THE COLLATERAL
she sell the properties during her lifetime? How about the LINE.
reservees, can they also deal with the property during the Example they are of the same degree. Like we have brothers
lifetime of the reservor aside from their right to annotate the and sisters, 2nd degree we have grandparents, diba, 2 degrees
fact of the reserva or to demand a security? pud.

SIENES vs. ESPARCIA 3rd Rule – THOSE WHO ARE IN THE DESCENDING LINE
ARE FAVORED OVER THOSE WHO ARE IN THE
The reservor in this case is Andrea. The reservee was ASCENDING LINE.
Cipriana.
For example, they are in the same degree; they are in the
Could Andrea, the reservor, validly sell the property subject same collateral line, to whom shall we give? Like, to uncles
of the reserva? YES, the nature of the sale is a conditional and aunts concurring with the nephews and nieces.
sale. Such sale is valid but it is subject to a resolutory
condition that when she dies and there are reservees who Between uncles and aunts, nephews and nieces, they are two
survived, the sale be cancelled or extinguished because the degrees away from the prepositus, they are both in the
property will be transferred to the reservee. But if upon her collateral line, but the nieces belong to the descending line.
death there are no reservees who survived, if he did not sell So, they are favored over the uncles and aunts. So that’s how
the property, it will form part of her estate. If he sold it, we we distribute the property.
do not disturb that sale because the resolutory condition did
not happen. Resolutory is valid until the happening of the Line of Origin DIRECT COLLATERAL
condition.
How about reserve Cipriana? Could she sell the property
1st degree Parents
subject of the reserva during the lifetime of Andrea? YES, the
nature of the sale is a conditional sale subject to a 2nd Grandparents Siblings
suspensive condition. What is that suspensive condition? She
could also sell the property during the lifetime of the reservor 3rd Great grandparents Uncle/ aunts &
but the sale is subject to a suspensive condition, it will not
Nephews/ nieces
take effect until after the fulfillment of the condition. What is
that condition? The death of the reservor and the survival of
the reservee. Take note that the relationship of all these parties involve in
reserva should be legitimate, it cannot be illegitimate. If the
Take note that what is resolutory on the part of the reservor is origin is illegitimate, there will be no reserva. If those who are
suspensive on the part of the reservee. in the reservees side are illegitimate, the reservor or the
ascendant has no obligation to reserve for them because they
Is it not a sale of future inheritance? What is the justification? are not legitimate relatives.
That is not future inheritance, remember that the reservees
does not inherit from the reservor. But from the prepositus. Now, what is the concept of DELAYED INTESTACY
That is what we called deferred inheritance. They already THEORY? Actually, we are just referring to the inheritance of
inherited but it is deferred in the meantime because it is first the reservees.
inherited by the reservor. That is now what we call a SALE OF Why is it called delayed intestacy? Because the reservees are
FUTURE PROPERTY. In Law on Sales, it is emptio rae speratae supposed to inherit from the prepositus but because there is
(sale of future property) as distinguished from emptio spei still a relative of the prepositus who inherits from him, in the
(sale of hope or expectancy). mean time, the reservees cannot yet enter into the
Now, we go to the reservees. As we have discussed, the inheritance. However, once the reservor dies, and they
reservees are the relatives of the prepositus within the third survive, and then that is the time they enter into the property.
degree coming from the line of origin. So who are these That is called delay because their inheritance is delayed and it
relatives within the third degree? So you know that in your is intestacy because the succession by the reservees to the
persons. Who are the relatives in the first degree? We have prepositus is by legal or intestate succession. That is why we
the parents, the mother and father. Prepositus does not have apply the rules on legal or intestate succession.
a child because if he has a child, there will be no reserva. In So now let’s go to the computation . How do we compute
the direct line, in the 2nd degree, we have the grandparents. the value of the reserva?
In the 3rd degree, great grandparents. In collateral
relationship, prepositus, parents, uncles and aunts, and Ma’am was INTERRUPTED by LEGAL LUMINARY VON LAO.
brothers and sisters. 3rd degrees, uncles and aunts, nephews Von: Question Ma’am, until when can you claim for reserva?
and nieces. 1st degree, again, parents. 2nd degrees, brothers
and sisters.

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

Ma’am: Actually, there is no specific prescriptive period for covered in the legitime, So how much is the legitime? P750,
reserva so we follow the general rule on prescription. I have 000. So, what is the value of the reserva? Is it P1 Million? NO,
not seen any in the New Civil Code on how long can you claim because as much as can be covered by the legitime, meaning
for the inheritance. General rule, 5 years, I’m not sure. If it cannot exceed the legitime. Even if you received 1 million
there is no specific period in the New Civil Code, we follow the from the origin, but the legitime, the portion which is
general prescriptive period to claim for the inheritance. (But I transferred by operation of law is only P750, 000, so under
think Ma’am answered more categorically the next meeting). this theory, the value of the reserva is P750, 000.
So, now we go to the computation. Did I already mention the How about in reserva minima? Under the theory of reserva
2 theories? The theory of Reserva Maxima and Reserva minima, the property consists of one-half legitime one-half
Minima. free portion. So what are the properties involved in the
example? P1 Million and P500, 000. One-half of that is
First, if the transfer from the prepositus to the reservor is by
legitime, so P500, 000, one-half of that is legitime and one-
legal succession then we have no problem.
half of that is free portion. The same goes with 1 million. So
For example: that is why the legitime is 750, 000 and the free portion is
P750, 000. So the legitime which is P750, 000 is composed of
The value of the land inherited by theprepositus, so the origin P500, 000 from this (1M) property and P250, 000 from this
came from property by will to the prepositus. It is the (P500K) property. So, how much is the value of the reserva
grandfather and the grandson. The value of the land is for under the theory of reserva minima? Do not include the
example, P1 Million. Then the prepositus died intestate property not coming from the origin. So, it is only P500, 000,
without issue, so the entire land is inherited by the mother by because only one half of this (1M property, which came from
legal succession. So how much is the value of the reserva? the origin) is the legitime and therefore, subject to the
How much of the land should be reserved by the mother? The reserva.
entire P1 Million because that is the one subject of reserva,
that is the property coming from the origin going to the How about if during his lifetime the descendant acquired
prepositus then going to the reservor by operation of law. So, properties worth P2 million? So his estate is? P3 Million. Upon
the entire P1 Million. No problem if he died intestate. his death, the legitime is one-half, P1.5 Million. Let’s go back
to the theory of reserva maxima. Under this situation, how
What if he died with a will, he has a last will and testament? much is the reserva? The legitime is P1.5 Million, the reserva
Diba, if there is a will, the extent of the reserva will be only up is? It cannot be P1.5 million because you only received P1
to the legitime. That’s only what can the reserva cover. So, million from the origin. So even if you say as much as can be
we have the 2 theories. covered in the legitime, but you cannot stretch the P1 million
TWO THEORIES: received from the origin. So it is only P1 million, the value of
the reserva.
1. Reserva Maxima – Under this theory, as much as
can be covered by the legitime. So, P1 Million ang In reserva minima, P1 million is the legitime, P1 million is the
value of the property and there is a will. How much free portion, that is why you have the same value. The
is the legitime of the mother? One-half (½), then question is, how much of that is reserva? Because reserva is
P500, 000. Under the theory of Reserva Maxima, limited only to the legitime, so, this is the reservable portion
P500, 000 ang covered sa legitime. of P1 million (the P500k).

2. Reserva Minima – In this theory, we always Now, which theory shall be followed? Reserva maxima or
presume that from this property one half is the minima? Some authorities would say reserva maxima because
legitime one half is the free portion. Under this it is more in keeping with the concept of reserva. Okay, as
situation, the value of the reserva is the same, much as can be reserved of the property coming from the
whether Reserva Minima and Reserva Maxima.Also, origin. But, the more prevailing theory is the reserva minima,
P500, 000. because it is more equitable. So reserva minima is the
prevailing rule.
By the way, with respect to the question earlier [By legal
luminary Von Lao], is it for recovery or delivery? I think it will HOW IS RESERVA TRONCAL EXTINGUISHED?
fall more appropriately on the rule on recovery of the 1. Upon the death of the reservoir
property. When the reservor dies and his estate does not yet
deliver the land to the reservees, so they are now claiming for No more obligation to reserve, because he/she is
the delivery of the property, the rule on prescriptive period for already dead.
recovery of property will apply here. Dili diay siya general rule
2. Upon the death of all the would be reservees
because there is a specific provision na mag apply.
ahead of the reservor
So, now computation. We discussed reserva minima. Now,
Because in this case, there is no more obligation to
since on the example earlier, they are just the same amount,
deliver the property to the reservees.
P500, 000, whether minima or maxima. For example, during
his lifetime aside from the property acquired from the origin, 3. Upon the loss of the reservable property
the prepositus also acquired properties of his own. Assuming, without the fault of the reservor
that he was able to obtain P500, 000 worth of properties, and
We apply here the concept of force majeure, the
upon his death, by virtue of his last will and testament, he
obligation is extinguished if the thing is lost without
gave all his properties to his mother. So the value of his
the fault of the debtor or the obligor.
estate is P1.5 Million. Now, under the theory of Reserva
Maxima, as much as can be covered in the legitime. So, the 4. Upon prescription
legitime is P1.5 million divided by 2, because the survivor or
heir is the mother, P750, 000, that is the legitime. The free When can there be prescription? For example, the
portion is also P750, 000. So, now, how much is the value of reservor repudiates the reserva, and makes known
the reserva under the theory of reserva maxima in this kind of the repudiation to the reservees, either adverse
situation? Again, it is as much as the legitime. How much is possession by the reservor or by a third person. So
the property which came from the origin? How much is the they are holding the property now free from reserva.
value? P1 Million. The P500, 000, napalit to niya. So, ang So, if it is in bad faith, we apply the extraordinary
reservable is only the P1 Million. Since as much as can be acquisitive prescription under the rule on

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

prescription. We have 30 years, if real property. If collation whatever they may have received by virtue of the
personal property, 8 years. renunciation or compromise. (816)
5. Upon registration under Torrens System as
free from the reserva Example:

As I said, if the reserva is not annotated in the title, As long as your parents are still alive, your right to the
the persons dealing with the property have no properties are still inchoate or expectancy. You cannot waive
obligation to go beyond the title. They are or renounce something which is still an expectancy. That is
considered as innocent purchasers for value unless why every renunciation or compromise as regards a future
they have knowledge. Here, the reservees can no legitime is void. You can renounce upon the death of the
longer recover from those third parties the property. decedent. By that time, your right is already a vested one. No
They have to go against the reservor, his estate, or longer an expectancy.
the Lad Registration Fund. Example:
6. Upon renunciation or waiver by all the You have several properties and then you agree with your
reservees after the death of the reserver sisters or brothers, just give me P100, 000 now, I will no
longer claim my inheritance. So, you already signed an
MENDOZA vs. DELOS SANTOS agreement or waiver to that effect. You were given P100,
First, we have parents of Ezekiel, spouses Mendoza. They 000. When your parents died, the value of their estate, for
have 4 children and one of them is Ezekiel. He is married to example, P10 million. Then you are only 4 siblings. Then the
Leonor. They have a child named Greogria. Ezekiel died legitime of the P10 million is P5 million. So, the 4 children will
causing properties to pass upon Gregoria. The sons and share with the P5 million. So, P1.25 million each. But you only
daughters of Ezekiel’s brothers claim that properties are had P100, 000. Can you still claim? Can you not be bound by
reservable and could not have passed to Julia who is your prior renunciation especially it is coupled with a
Greogria’saunt from the mother side. consideration of P100k? NO! Because that is an agreement
regarding a future inheritance, a future legitime. That is void.
If we are to consider a reserva, we cannot start here (?) So what will happen to the P100, 000? That will be considered
because reserva involves property coming from the origin as advance to your legitime. So, if you are entitled to 1.25
and then to the descendant and to other ascendant. It did million as your legitime, what you will receive upon the death
not happen here. If reserva would be possible, it could start of your parents is 1.25 million less 100k. Okay, that is the
here, so Ezekiel. meaning of Article 905.
The mode of transfer to Gregoria is grauituous succession. But of course, if the compromise happened after the death,
Gregoria dies without issue. Leonor died ahead of Gregoria. that is already valid agreement. It cannot be revoked.
But the property from her was transferred to Julia, the sister Dilinaxamabawi. So, the P100 thousand, that is the meaning
of Leonor. The subject of the property is being claimed as of “they must bring to collation whatever they may have
part of the reserva by the sons and daughters of brothers of received by virtue of the renunciation or compromise.” You
Ezekiel (Ezekiel’s nephews and nieces). should still account it as part of your legitime.
In this case, there is no reserva. We first go to the requisites
of reserva. What requisite is missing? The fact that there is Art. 906. Any compulsory heir to whom the testator has left
no transmission from the paternal line to the maternal line. by any title less than the legitime belonging to him may
Diba in reserva, from the origin transferred by operation of demand that the same be fully satisfied. (815)
law to the descendant, check. The descendant died without
issue, check. The descendant transferred property by Here, the share received by the heir is less than his legitime.
operation of law to another ascendant. So what is the right of the heir? He may demand that his
legitime be completed. So, completion of the legitime. This
Is Julia the ascendant contemplated under Reserva Troncal?
article presupposes that something was given to the
NO. She is Gregoria’s collateral relative. When you say an
compulsory heir but it is less than his legitime because if none
ascendant, she is in the direct line of ***.
at all was given to the compulsory heir, and there is a will, he
Here the requisite that the property should be transferred by is not mentioned. We apply the rule on PRETERITION, not
operation of law to the ascendant was not satisfied because completion of legitime.
Julia is not the ascendant contemplated by the reserva
troncal. She is not the mother, she is the aunt, a collateral Art. 907. Testamentary dispositions that impair or diminish
relative. the legitime of the compulsory heirs shall be reduced on
Another reason why petitioners could not claim the property? petition of the same, insofar as they may be inofficious or
They are 4 degrees relative counted from Gregoria and excessive. (817)
therefore, they cannot be reservees. Even assuming for the
sake of argument, that there is reserva, they could still not For example, the testator have 2 children, his estate is P1
claim because the reservees are supposed to be relatives million and then, in his will, he devised or bequeath cash to
within the third degree. In the collateral line, the right of his neighbor, P700k. The estate is P1 million, the legitime is
representation is only up to nephews and nieces. But in half of the so P500k. So that legacy to the neighbor is
reserva, there could be right of representation but the inofficious because it exceeds the free portion and it impairs
representatives themselves must also be within the the legitime of the compulsory heirs. So, here, the law says
3rddegreee. So, they cannot claim the property being 4th that it may be reduced on petition of the compulsory heirs but
degree relatives. only to the extent that they are inofficious. The P700k legacy
may be reduced by P200k.
So, we are done with Reserva Troncal. Take note also that the law says, upon petition of the same.
We are referring here to the compulsory heirs. A petition to
Art. 905. Every renunciation or compromise as regards a reduce a testamentary disposition (legacy, devise or
future legitime between the person owing it and his donation), for example testator donated a property valued at
compulsory heirs is void, and the latter may claim the same P700k to X. At the time of his death, he only left P300k. In the
upon the death of the former; but they must bring to computation of his estate, under the rules on collation, that

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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

P700 shall be brought back to the estate. So 300k + 700k, 1 Insofar as they may be inofficious or may exceed the
million. That is the basis of the computation of the legitime. disposable portion, they shall be reduced according to the
P1 million divided by 2, 500k. But what was left is P300k. The rules established by this Code. (819a)
compulsory heirs’ action is to get a portion from the donation
because the donation is inofficious, it impairs the legitime. In So, let us go back. P620k divided by 2, that is P310 thousand.
that kind of petition, that can only be brought by the That is the legitime of the child. But his donation to A of
compulsory heirs. Without compulsory heirs, it will not be P200k shall be collated, it shall be considered as an advance
collated. It will not be added back to the estate. to his legitime. So, upon actual distribution, he will be given
only P110k to complete his legitime. Now, the donation made
Art. 908. To determine the legitime, the value of the to strangers, shall be charged to the free portion. So, the free
property left at the death of the testator shall be considered, portion is also P310k. Out of the P310, we charge this P70K.
deducting all debts and charges, which shall not include What remains now is P240k as free portion.
those imposed in the will.
For example, in his will, he has a legacy to X worth P250k,
To the net value of the hereditary estate, shall be added the what will happen to that legacy since what remained is P240k
value of all donations by the testator that are subject to as the free portion? In that case, the P250k cannot be given
collation, at the time he made them. (818a) only P240k. X will only receive P240k.
Assuming that the value of the estate, forget about what was
This article gives us the procedure of the computation of the
stated above, is P620k. During his lifetime again to his son,
NET HEREDITARY ESTATE. So, again, value of the property
200k.And to his friend, 400k. Out of the P620K, the legitime is
left at the time of death less all his debts and charges. Debts
P310k, and the free portion is also P310k. So, as we said, the
like from his creditors, taxes, funeral expenses, and etcetera.
donation to A shall be charged to his legitime. The donation to
Those charges, which shall not include those imposed in the
B shall be charged to the free portion. Now, the free portion is
will, meaning, he gave a legacy or devise, it has nothing to do
only P310k. We charge this to the free portion. It cannot be
with your *** because they are part of the estate. They are to
covered. This donation is inofficious. This exceeds the free
be deducted from the estate during the distribution. In the
portion and it impairs the legitime of the compulsory heirs.
mean time, you are still computing the net hereditary estate.
Here, the donation can be reduced on the ground of being
As I mentioned, all donations made by the testator or inofficious. Now, donee B shall return to the estate which
decedent during his lifetime, the value of those donations impairs the legitime of the compulsory heirs. Return to the
shall be added back to the estate to arrive at the net estate or to the compulsory heir the P90, 000. This is the
hereditary estate. meaning of the third paragraph.

Assuming at the time of his death, he left properties

Art. 910. Donations which an illegitimate child may have
amounting to P500k. He has debts amounting to P100k. Taxes
amounting to P50k. During his lifetime, he made a donation to received during the lifetime of his father or mother, shall be
charged to his legitime.
his son, A, amounting to P200k. He also donated to B, P70K.
So, how do we compute the net hereditary estate? Should they exceed the portion that can be freely disposed
of, they shall be reduced in the manner prescribed by this
P500, 000 - Value at the time of death Code. (847a)
LESS
Donations to the illegitimate children are considered as
P100, 000 - Debts
advances to their legitimes and therefore, in the actual
P50, 000 - Taxes distribution, those donation should be collated. If the
donations are inofficious, they shall be reduced.
---------------------------
P 350, 000 - Net Estate
Art. 911. After the legitime has been determined in
accordance with the three preceding articles, the reduction
shall be made as follows:
Next is, we add back the donations.
(1) Donations shall be respected as long as the
legitime can be covered, reducing or annulling, if
P200, 000 - Donation to A necessary, the devises or legacies made in the will;
P70, 000 - Donation to B (2) The reduction of the devises or legacies shall be
---------------------------- pro rata, without any distinction whatever.

P 620, 000 - NET HEREDITARY ESTATE If the testator has directed that a certain devise or
legacy be paid in preference to others, it shall not
So, this is the basis for the computation of the legitime. So if suffer any reduction until the latter have been
he left 1 child, P620k divided by 2, then that is P310k. That is applied in full to the payment of the legitime.
his legitime. If the disposition is silent, the P200k shall be (3) If the devise or legacy consists of a usufruct or
collated. It shall be considered as an advance to his legitime. life annuity, whose value may be considered greater
We will discuss that later when we go to collation. Here, we than that of the disposable portion, the compulsory
add the donations because if you don’t, it would be very easy heirs may choose between complying with the
for the decedent to circumvent the law on legitimes. The law testamentary provision and delivering to the devisee
on collation exists to preserve and protect the legitimes. or legatee the part of the inheritance of which the
testator could freely dispose. (820a)
Art. 909. Donations given to children shall be charged to
their legitime. We will follow this article if the testator, during his lifetime,
Donations made to strangers shall be charged to that part of made several donations and then in his will, he also provided
the estate of which the testator could have disposed by his for some legacies and devises.
last will.

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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

Assuming at the time of his death, the testator left properties The devisee who is entitled to a legitime may retain the entire
worth P500k. During his lifetime, he made a donation in 1990 property, provided its value does not exceed that of the
amounting in P100K. In the year 2000, P200K. In his will, he disposable portion and of the share pertaining to him as
also gave legacies: (1) P300K (2) P100K (3) P50K. How do we legitime. (821)
compute the Net Hereditary Estate? He has no debts and
liabilities. We learned before that a devise can only be accommodated in
the free portion. If the devise exceeds the free portion, it has
P 500, 000 - Estate to be reduced. What if the devise consists of a property which
Add the donations cannot be conveniently divided? For example, a house was
devised to A. The value of the house is one million but the
P 100, 000 - Year 1990
value of the free portion is only 700,000? The devise has to
P200, 000 - Year 2000 be reduced by 300,000. But considering that the property is a
house, how can it be reduced? Should we take off the ceiling
----------------------------
or the floors and give them to the compulsory heirs? That is
P800, 000 - NET HEREDITARY ESTATE not practical and convenient.
Take note of the rule under article 912, if the reduction does
So he left children, the legitime is P400K and the free portion
not absorb one-half of its value, the property shall go to the
is P400K.
devisee. In the above example, the house is valued at one
To the free portion, we charge the donations. The legacies will million but the devise is only 700,000. Still, the devise is more
be covered by the free portion. Between donation and than one-half of the value of the property, so the house will
legacies, which shall be preferred? The donations are be given to A but he has to pay in cash the 300,000 to the
preferred because the donations are already made long compulsory heirs.
before. The legacies are still to be given. So, in that sense,
If, for example, the free portion is only 300,000 and the
the decedent really give priority to the donations. Respected
devise is one million, what is the rule? The reduction is in the
ang donations more than legacies.
reverse. In such case, the reduction is more than one-half. It
In case of two or more donations, which shall be preferred? has to be reduced by 700,000. The house will go to the heirs
The donations which are made earlier. Again, first in time, and they will just pay the devisee the 300,000. That is the
first in right. Masdugay maskusog! (LOL). rule under article 912.
The free portion is P400K. The amount of donation is P300K. What if the reduction is exactly one-half of the value of the
So, it can still be covered. We still have P100K. This will be property? The house is valued at one million and the devise is
distributed to the legacies and devises. Now, in legatees and 500,000. What is the rule? The property will be given to the
devisees, if there was a declaration as to who is preferred, so devisee but he has to give 500,000 to the heirs.
that is preferred. If the testator said, legacy 1 (P300K), then
what shall be given is the P100K only. Art. 913. If the heirs or devisees do not choose to avail
If there is no mention as to preference, then it shall be themselves of the right granted by the preceding article, any
satisfied pro rata. How do we prorate? heir or devisee who did not have such right may exercise it;
should the latter not make use of it, the property shall be sold
P 450, 000 - Total amount of all the legacies
at public auction at the instance of any one of the interested
parties. (822)
P 100, 000 - Remainder of Free portion
The right is not only limited to the heir whose inheritance or
st legitime has been prejudiced or to the devisee but to any heir
1 legacy P300, 000
or devisee. They can exercise the right [provided in article
----------------------- X 100, 000 = P66, 666. 66 912] or the property may be sold at public auction at the
P450, 000 instance of any one of the interested parties.

Art. 914. The testator may devise and bequeath the free
2nd legacy P100, 000 portion as he may deem fit. (n)
---------------------- X 100, 000 = P22, 222. 22
We already discussed about the freedom of the testator to
P450, 000
dispose the free portion. Remember that the free portion will
still answer for the legitime of the surviving spouse and the
illegitimate children. The free portion is that which the testator
3rd legacy P50, 000
has freedom of disposition but, again, this freedom is not
--------------------- X 100, 000 = P11, 111. 11 unlimited. He can dispose of the free portion but the recipient
P450, 000
must be qualified to receive.

That is how we distribute under Art. 911.  SECTION 6. Disinheritance

Sept 28, 2014 (FJB)

Art. 915. A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for causes
Art. 912. If the devise subject to reduction should consist of expressly stated by law. (848a)
real property, which cannot be conveniently divided, it shall go
to the devisee if the reduction does not absorb one-half of its
This is the process by which a compulsory heir may be
value; and in a contrary case, to the compulsory heirs; but the
deprived of his legitime but only for causes expressly stated
former and the latter shall reimburse each other in cash for
by law. We have already discussed the concept and
what respectively belongs to them.
importance of legitimes. The law, as we can see, really
protects the legitimes of the compulsory heirs.
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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

We discussed before the possible ways when the testator may If the testator says that he is disinheriting A because she
attempt to reduce the legitimes and the remedies or is living a dishonorable and disgraceful life as a prostitute,
protections provided for by law to the compulsory heirs. For does it follow that she is already disinherited on that
example, if the testator just forget about his compulsory heirs ground? No, it is not automatic that the child is
by not mentioning them in his will and then dispose of his disinherited. Of course, if she admits it, then there is no
properties in favor of the persons stated therein, that is problem, but if she denies it, the burden is on the
preterition. opponent to prove the truth. So, the disinheritance must
be for a true cause.
We also discussed a situation when the testator donated all
his properties during his lifetime so that nothing will be left for 5. The disinheritance must be for an existing cause;
his compulsory heirs. That is what we call collation.
You cannot say that you will disinherit your child, A, if she
What if the heir will be deprived by the testator in his will? We becomes a prostitute. That is not yet present now. Even if
have the law on disinheritance which limits that right. He can she becomes a prostitute in the future, the disinheritance
only disinherit a compulsory heir for causes provided for by will not be valid. It has to be for an existing cause. In the
law. If the cause for disinheritance is not among those given example, A must have to be a prostitute now for
provided for by law, then the disinheritance will be invalid, so the disinheritance to be valid.
the heir is entitled still to his legitime.
6. The disinheritance must be total or complete;
The law says “a compulsory heir”. This is because there is no
You cannot say that you will disinherit A of the free
need to disinherit a legal heir. You can just omit them in the
portion or one-half of her legitime. It must be total
will.
because you cannot divide the offense committed which
For example, your brothers and sisters. You can give to them is a ground for disinheritance.
but you are not obliged to give to them. You can just give
7. The cause must be stated in the will;
your properties to your neighbor and not to your siblings
[provided you have no compulsory heirs]. There is no Even if she is really living a dishonorable and disgraceful
problem. But if it is a compulsory heir and you do not want to life but you failed to mention this as a ground for
give to that compulsory heir anything, there has to be a valid disinheritance in the will, it is not valid. It has to be stated
disinheritance. so that the heir disinherited can also defend herself
should she deny the truth of the cause.
Art. 916. Disinheritance can be effected only through a will 8. The heir disinherited must also be identified; and
wherein the legal cause therefor shall be specified. (849)
9. In relation to number 1 (it must be made in a valid will),
Remember, disinheritance can only be effected through a will. the will must not have been revoked.
When you disinherit, you do it in a will. The will has to be Even if the will is valid but is already revoked, then the
valid for the disinheritance to be effective. If you make a will disinheritance mentioned in the revoked will is likewise
where you disinherit a compulsory heir but the will turned out ineffective.
to be void extrinsically, the will is not valid and therefore the
disinheritance cannot be effected. For example, there is a
Art. 918. Disinheritance without a specification of the cause,
notarial will embodying a disinheritance but there is only one
or for a cause the truth of which, if contradicted, is not
witness or it lacks the required marginal signatures. In that
proved, or which is not one of those set forth in this Code,
case, the will is not valid, so the disinheritance cannot be
shall annul the institution of heirs insofar as it may prejudice
effected.
the person disinherited; but the devises and legacies and
REQUISITES FOR VALID DISINHERITANCE other testamentary dispositions shall be valid to such extent
as will not impair the legitime. (851a)
1. It must be made in a valid will;
[It can be made] whether in a notarial or a holographic The disinheritance mentioned in article 918 is not valid. We
will or even in a codicil because a codicil also has to already discussed the requisites for a valid disinheritance. If
comply with the formalities of a will. the disinheritance is not valid like the one mentioned in article
918, then the disinheritance is invalid. What is the
2. The disinheritance must be made expressly; consequence? The law says it shall annul the institution of
Meaning, you really make it clear that you are heirs insofar as it may prejudice the person disinherited but
disinheriting A, for example. If you just omit A in the will, the devises and legacies and other testamentary dispositions
that is not disinheritance. That could be preterition if he is shall be valid to such extent as will not impair the legitime. If
omitted entirely in the will. you still remember article 854 on preterition, they are just the
same. If there is preterition, the institution of heirs shall be
3. The disinheritance must be for a cause stated in annulled but the devises and legacies shall be valid insofar as
the civil code or expressly provided for by law; they are not inofficious.
We have under the new civil code the grounds to What is the difference between the consequence of preterition
disinherit a child or descendant, grounds to disinherit a and the consequence of aninvalid disinheritance? Let us go
spouse, and grounds to disinherit parents or descendants. back first to preterition. (Ma’am illustrates on board) A, B, and
The grounds given are exclusive. You cannot have other C are the children of the testator, and D is the friend. In his
grounds not mentioned in the law. will, C is preterited. The testator only instituted A, B, and D.
4. The disinheritance must be also for a true cause as His estate is 1.2 million. What is the consequence of C’s
discussed under article 917. preterition? The institution of heirs shall be annulled and the
estate shall be distributed by legal succession but the devises
Let us go first to article 917. and legacies that are not inofficious shall be respected.
There is no devise or legacy in this example. D here is
Art. 917. The burden of proving the truth of the cause for
instituted as an heir. He is a voluntary heir. By reason of
disinheritance shall rest upon the other heirs of the testator, if
preterition, the institution of heirs shall be annulled and so the
the disinherited heir should deny it. (850)
property shall be distributed by legal succession. D is not a

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

legal heir. Therefore, D will not receive anything. The estate of a crime for which the law prescribes imprisonment
will be distributed only among A, B, and C. That is in for six years or more, if the accusation has been
preterition. found groundless;
In disinheritance, if C is disinherited because the testator does
not like his face. It that valid? No, it is not valid. Otherwise, This is what we call groundless accusation. Take note
many will be disinherited. The estate is 1.2 million. C is of the time. What if the testator identifies his heir to
invalidly disinherited. How do we distribute the estate? The be the killer of his dog? Such crime is not punishable
law says it shall annul the institution of heirs insofar as it may by imprisonment for six years or more. So, even if it
prejudice the person disinherited, but the devises and legacies is groundless, it has to be crime for which the law
and other testamentary dispositions shall be valid to such prescribes imprisonment for six years or more.
extent as will not impair the legitime. So, we look if the What kind of accusation [is contemplated]? It is
testamentary dispositions are inofficious. either the heir (1) filed an action directly against the
First, we give the legitime of the heir who was invalidly testator (for instance, he filed a criminal complaint
disinherited along with the other heirs. 1.2. million divided by for serious physical injuries against the testator
two equals 600,000. There are three compulsory heirs (A, B, punishable by imprisonment for six years or more),
and C), so each will get 200,000 as legitime. To whom shall or (2) testified in a case filed against the testator, or
we distribute the free portion? Is C and D entitled to the free (3) refused to testify in favor of the testator if his
portion? Now that we have satisfied the legitimes, we can now testimony is material to the acquittal or conviction of
give effect to other testamentary dispositions such as legacies the testator. Of course later on, it must be proven
and devises, if any. Here, we give the free portion only to A, that the case against the testator is groundless.
B, and D. C is not included because he has not been
instituted. D can still receive because his institution is not 3. When a child or descendant has been convicted of
annulled. It is not inofficious. adultery or concubinage with the spouse of the
testator;
Take note that in preterition, the institution of heirs shall be
annulled. Only the legacies and devises that are not inofficious
shall be respected. In invalid disinheritance, the institution of Again, the conviction here must be by final
heirs, as long as the legitime of the compulsory heir invalidly judgment. The crime is adultery or concubinage, so it
disinherited are not prejudiced, will now be given effect. That is a relationship either with the testator or with the
is the difference between the consequence of preterition and spouse of the testator. Take note that we are talking
the consequence of aninvalid disinheritance here of a child or descendant who has been
convicted of adultery or concubinage. When we go
Let us go to the grounds. later on to the grounds to disinherit a spouse, there
is no similar ground when a spouse has been
Art. 919. The following shall be sufficient causes for the convicted of adultery or concubinage with the child
disinheritance of children and descendants, legitimate as well or parent of the testator. That is not found there.
as illegitimate: x x x
4. When a child or descendant by fraud, violence,
You should know the grounds under article 919. I do not intimidation, or undue influence causes the testator
expect you to memorize them but at least be familiar with to make a will or to change one already made;
them. Anyway, most of the grounds to disinherit a child are
also the same grounds to disinherit a spouse, and parents or 5. A refusal without justifiable cause to support the
ascendants. parent or ascendant who disinherits such child or
descendant;
1. When a child or descendant has been found guilty of
an attempt against the life of the testator, his or her The refusal must be without justifiable cause. To
spouse, descendants, or ascendants; know whether the refusal is justifiable, we have to
know the needs of the person to be supported and
The law mentions “found guilty”. We need here a the capacity of the person from whom support is
final judgment or conviction because if the case is being demanded. For example, the parent is a
still on appeal, there is still a chance that it will be billionaire and the child who asks for support is a
reversed. We really have to be sure that there is minimum wage earner, he can refuse to give
really conviction. He must be really guilty, so there support.
must be conviction by final judgment.
The law also says “attempt”. Note that we have 6. Maltreatment of the testator by word or deed, by the
stages of execution. We have attempted, frustrated, child or descendant;
and consummated. For example, if the offense was
merely frustrated, is that already considered as a The law says by word or deed. It can be that you
valid ground? We do not have to be really literal. It punch him every day or you badmouth him every
covers frustrated and consummated stages. Take day.
note that the law only contemplates a crime which
has an intent to kill. Thus, reckless imprudence is not Seangio v. Reyes
covered. There must really be an intent to kill.
The will here is entitled Kasulatan Sa Pag-Aalis Ng
We also have the degree of participation. We have Mana. (Ma’am reads will written in Tagalog) Here,
principals whether by direct participation, the question is will this ground constitute
cooperation, inducement. Accomplices and maltreatment sufficient to disinherit a child? The
accessories to the crime are likewise covered. So, it Supreme Court said, taking the totality of the
is regardless of the degree of participation. circumstances mentioned by the testator and
assuming that these are proven, this will be
2. When a child or descendant has accused the testator considered as a sufficient ground to disinherit the
heir by reason of maltreatment. So, [maltreatment
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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

is] not necessarily by deed. It can be by word. These are the grounds for the disinheritance of parents or
ascendants. Most of the grounds are also the grounds to
Pecson v. Mediavillo disinherit a child or descendant. Number 1 is also found under
article 919.
In this case, the testator disinherited his grandchild.
The testator declared in his will that he disinherited
1. When the parents have abandoned their children or
his granddaughter, Rosario, because she was grossly
induced daughters to live a corrupt or immoral life, or
disrespectful to the testator and that she raised her
attempted against her virtue;
hand against said testator. Raising a hand against
the testator constitutes maltreatment by deed under
article 919 (6). Here, the abandonment need not amount to a crime
as long as the parent deprived the child of the basic
Based on the records of the case, the SC said that necessities in life. Those which are required of him in
when Rosario was 14 years of age, she had received order to support the child like clothing, shelter,
some attentions from a young man and that her education, or medical assistance. If he refused to
grandfather, the testator, took steps to sever the provide such things, that is already abandonment.
relations between her and the young man. It was on
that occasion that the alleged disrespect and The law also provides “induced daughters to live a
disobedience was made against the testator. That corrupt or immoral life”. Here, the parent is already
was the cause of the disinheritance. pimping the child. That is already a ground to
disinherit. Also, the attempt to commit the act of
The record further shows that at some point, she lost rape or seduction is also a ground to disinherit. Take
the use of her mental faculties. A conclusion was note that the law speaks of daughters. How about if
reached that Rosario was probably not responsible the act was committed against a son? Would that be
for the disrespect and disobedience to her a ground to disinherit the parent? Yes. Do not be
grandfather in the year 1894 or 1895. So, even if she literal. This is not limited to daughters. It can apply
raised her hand against her grandfather, the by analogy to sons.
Supreme Court concluded that it could not have been
done voluntarily or intentionally. Her disinheritance
2. When the parent or ascendant has been convicted of
was considered invalid. Just take note of the
an attempt against the life of the testator, his or her
circumstances of this case.
spouse, descendants, or ascendants;
Maltreatment should be made voluntarily or
intentionally with knowledge of the consequences of 3. When the parent or ascendant has accused the
such acts. Take note that maltreatment is present testator for which the law prescribes imprisonment
only with respect to a descendant. [It should be] a for six years or accusation has been found to be
descendant who maltreats an ascendant, the false;
testator. It does not appear in the ground for
disinheritance of parents or ascendants by children. 4. When the parent or ascendant has been convicted of
So, maltreatment by a parent of a child is not a concubinage with the spouse of the testator;
ground in the disinheritance of parents although
there are other similar grounds. Maybe it is because
it is somehow acceptable for a parent to badmouth 5. When the parent or ascendant by fraud, violence,
his or her child. It is likewise normal for a parent to intimidation, undue influence causes the testator to
inflict tolerable pain to discipline the child but it is not make a will or to already made;
normal for a child to do so. That is why maltreatment
is not a ground to disinherit a parent or ascendant. 6. The loss of parental authority for causes specified in
this Code;

We should only refer to cases for loss of parental

7. When a child or descendant leads a dishonorable or
authority when the loss of such authority is due to
disgraceful life;
the fault of the parent because even emancipation is
a ground for the loss of parental authority. When the
What is a dishonorable or disgraceful life? It is child reaches 18 years old, the parent losses parental
relative, so you can argue. For example, you authority. That is not a ground to disinherit the
engaged in a one night stand. Your parents knew parents. We only refer to the loss of parental
about it, then they decided to disinherit you on that authority due to the fault of the parents.
ground. Is that valid? Is that dishonorable or
disgraceful life? It is not a lie if you argue. It
presupposes habituality or continuity. You can argue 7. The refusal to support the children or descendants
justifiable cause;
because it is relative. But even if it is relative, that
act has to be habitual or continuous, and not just an
isolated event. 8. An attempt by one of the parents against the life of
the other unless there has been a reconciliation
between them.
8. Conviction of a crime which carries with it the penalty
of civil interdiction.
For example, the father attempted to kill the mother.
The child, X, can disinherit the father because he
If a child has been convicted of a crime, that is a
attempted against the life of the mother. Will this
ground to disinherit.
need conviction just like in number 2 (when the
parent or ascendant has been convicted of an
Article 920. The following shall be sufficient causes for the attempt against the life of the testator, his or her
disinheritance of parents or ascendants, whether legitimate or spouse, descendants, ascendants), which requires
illegitimate: x x x conviction? No.

Ad Majorem Dei Gloriam

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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

In number 2, we need conviction by final judgment. We should know the grounds for legal separation
In number 8, mere attempt can be proved by because these are also the grounds to disinherit a
preponderance of evidence. There is no need for spouse in addition to ones mentioned in article 921.
conviction but there might be situations in number 8 That would be article 85 of the family code.
which can be covered by number 2. Is conviction
required in number 8? No. Mere attempt is sufficient Article 55. A petition for legal separation may be
in number 8. No need for conviction. Number 2 filed on any of the grounds:
needs conviction by final judgment.
(1) Repeated physical violence or grossly
Take note that the law says “unless there has been a abusive conduct against the petitioner, a
reconciliation between them”. So, if your parents common child, or a child of the petitioner;
have reconciled, you can no longer disinherit your
father [on this ground]. This is because if your (2) Physical violence or moral pressure to
mother has found in her heart to forgive your father, compel the petitioner change religious or
what more on your part? You are not the offended political affiliation;
party. (3) Attempt of respondent to corrupt or
induce the petitioner, common child, or a
Article 921. The following shall be sufficient causes for child of the petitioner, to engage in
disinheriting a prostitution, connivance in such corruption
or inducement;
1. When the spouse has been convicted of an attempt
against of the testator, his or her descendants, or (4) Final judgment sentencing the
ascendants; respondent to imprisonment for more than
six years, even if pardoned;
2. When the spouse has accused the testator of a crime
for law prescribes imprisonment of six years or more, (5) Drug addiction or habitual alcoholism of
and the has been found to be false; the respondent;
3. When the spouse by fraud, violence, intimidation, (6) Lesbianism or homosexuality of the
influence cause the testator to make a will or to respondent;
change made;
(7) Contracting by the respondent of a
xxx subsequent bigamous marriage, whether in
the Philippines or abroad;
5. When the spouse has given grounds for the loss
authority; (8) Sexual infidelity or perversion;
6. Unjustifiable refusal to support the children or the (9) Attempt by the respondent against the
other. life of the petitioner; or
(10) Abandonment of petitioner by
These are the grounds to disinherit a spouse. Again, respondent without justifiable cause for
grounds number 1, 2, 3, 5, and 6 are similar to those more than one year.
previously discussed in articles 919 and 920.
For purposes of this Article, the term "child" shall
4. When the spouse has given cause for legal include a child by nature or by adoption. (9a)
separation; x x x
These are also the grounds to disinherit a spouse.
Take a look at number 8 on sexual infidelity or
Let us discuss number 4 (When the spouse has given
perversion. Even if under article 921, there is no
cause for legal separation). Can you disinherit your
provision which says when the spouse has committed
son or spouse because he is gay? You cannot find
adultery or concubinage with the parent or child of
that in article 921. You cannot disinherit your parent
the testator, that can still fall under article 55 (8).
because he or she is gay, lesbian, or homosexual.
You do not even need conviction as long as he
We also discussed article 919 when a child or committed an act which is considered as sexual
descendant has been convicted of adultery or infidelity or perversion.
concubinage with the spouse of the testator and
Number 9 provides for an attempt by the respondent
article 920 when the parent or ascendant has been
against the life of the petitioner. When, for example,
convicted of concubinage with the spouse of the
the husband attempted against the life of the wife,
testator.
that is a ground to disinherit the husband without
There is no specific provision in 921 which says when need of conviction by final judgment. This can be
the spouse has been convicted of adultery or proved by preponderance of evidence.
concubinage with the child or parent of the testator.
Take note again of number 1 when the spouse has
What is now the remedy of an offended spouse when
been convicted of an attempt against of the testator,
that happens? Take note of number 4 when the
his or her descendants, or ascendants. An attempt
spouse has given legal spouse for legal separation, in
against the life of the testator himself can be covered
a sense, the innocent spouse may disinherit a guilty
by number 9 (attempt by the respondent against the
spouse. A decree of legal separation is not required.
life of the petitioner) of article 55 of the family code
Merely giving cause for legal separation [is required]
and likewise in number 4 (when the spouse has
because if there is already a decree of legal
given cause for legal separation) of article 921. If the
separation, by operation of law, the guilty spouse is
attempt is against the testator himself, you do not
disqualified to inherit from the innocent spouse, so
need a prior conviction because, again, it is a ground
there is really no need to disinherit because he is
for legal separation, which requires no conviction.
already disqualified to inherit.

Article 922. A subsequent reconciliation between the

Ad Majorem Dei Gloriam

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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

offender and the person deprives the latter of the right to

disinherit, and renders ineffectual disinheritance that may
have been made. (856)

When you say reconciliation, it is a mutual restoration and

resumption of feelings between the testator and the
disinherited heir prior to the offense. Reconciliation implies a
bilateral and mutual act between the testator and disinherited
heir. The heir asks for forgiveness and the testator gives such
forgiveness. What is the consequence? There has already
been a disinheritance in the will but because of the
reconciliation, that disinheritance can no longer be given
effect.
Example:
I hereby disinherit my son because he attempted against my
life. In fact he was already convicted and is now imprisoned.
But I forgive him after he sought my forgiveness because I
love him. Such disinheritance was not erased from the will
despite the forgiveness, so when the will was presented for
probate, the other heirs may exclude him because of that.
Nevertheless, the disinherited heir may use as a defense that
there has already been reconciliation between him and the
testator. Because of the reconciliation, the disinheritance was
no longer effective,
Or, when there has already been reconciliation prior to the
execution of the will, the testator can no longer disinherit the
son based on the same offense because there has already
been reconciliation. That deprives the testator of the right to
disinherit the heir. But take note that reconciliation
presupposes a bilateral act. So, if only the father forgave the
son, even if he published such forgiveness, but the son did
not ask for forgiveness, there is no reconciliation. It has to be
a mutual act.

Article 923. The children and descendants of the person

disinherited shall take his or her place and shall preserve the
rights of compulsory heirs with respect to the legitime; but
the disinherited parent shall not have the usufruct or
administration of the property which constitutes the legitime.

What is the effect of a valid disinheritance? It deprives the

compulsory heir of his legitime. He is excluded from the entire
estate.
Example:
The testator in his will disposed only half of his properties
along with the disinheritance, can the disinherited heir claim a
share in the other half of the estate not disposed by the
testator? No. The disinheritance must be total. If A was
disinherited, he is totally excluded from the estate, but A can
still be represented. The share of A shall go to his child B if he
has a child or representative. Again, a disinherited heir can
still be represented.
Under the family code, if the child is a minor, parents as the
natural guardian of the minor have the usufruct and
administration over the properties of their minor children.
However, that will not apply in properties received by the
minor child by virtue of his representation of the disinherited
parent. In the given example, A cannot manage or administer
the property received by his child, B, from the A’s parents.
Who will then manage said properties? The spouse of A can
administer. If there is none, a guardian must be appointed.

COMPLETE COVERAGE FOR THE SECOND EXAM.

GOD BLESS US. KJ

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