WILLS AND SUCCESSION

Article 774. Succession is a mode of acquisition by virtue of 3. Mixed Succession

which the property, rights and obligations to the extent of Mixed succession is that which is affected partly by will and
the value of the inheritance, of a person are transmitted partly by operation of law.
through his death to another or others either by his will or
by operation of law. Kinds of Heirs:
1. The compulsory heirs;
Elements of Succession: The compulsory heirs are those who succeed by force of
1. The decedent; law to some portion of the inheritance in an amount
predetermined by law of which they cannot be deprived by
2. The successors; the testator; except by a valid disinheritance.

These are the heirs or those who are called to the whole or 2. The voluntary or testamentary heirs; and
to an aliquot portion of the inheritance either by will or by Voluntary or testamentary heirs are those who are
operation of law. instituted by the testator in his will to succeed to the portion
of the inheritance of which the testator can freely dispose
The devisees or legatees or the persons to whom gifts of of
real or personal property are respectively given by virtue of
a will 3. The legal or intestate heirs
The legal or interstate heirs those who succeed to the
3. The death of the person; and estate of the decedent who dies without a valid will or to
the portion of such estate not disposed of by will
However, a person may be presumed dead for the purpose
of opening his succession. In this case, succession is only Article 775. In this Title, "decedent" is the general term
of a provisional character because there's always the applied to the person whose property is transmitted
chance that the absentee may be alive. through succession, whether or not he left a will. If he left a
will, he is also called the testator. (n)
Article 390 of the Civil Code provides an absence of seven
years it being unknown whether or not the absentee still Article 776. The inheritance includes all the property, rights
lives, he shall be presumed dead for all purposes except and obligations of a person which are not extinguished by
for those of succession. The absentee shall not be his death. (659)
presumed dead for the purpose of opening his succession
till after an absence of 10 years if he disappeared after the Article 777. The rights to the succession are transmitted
age of 75 years an absence of five years shall be sufficient from the moment of the death of the decedent.
in order that his succession may be opened.
 Succession opens from the moment of the death
4. The inheritance of the decedent.

It is the subject matter of succession and it includes Article 778. Succession may be:
property and transmissible rights and obligations existing at (1) Testamentary;
the time of his death and those which have accrued thereto (2) Legal or intestate; or
since the opening of succession. (3) Mixed.

Distinction between Succession and Inheritance: Article 779. Testamentary succession is that which results
Succession refers to the legal mode by which inheritance is from the designation of an heir, made in a will executed in
transmitted to the persons entitled to it; while Inheritance the form prescribed by law.
refers to the universality or entirety of the property rights
and obligations of a person who died Article 780. Mixed succession is that effected partly by will
and partly by operation of law. (n)
Kinds of Succession:
1. Testamentary Succession; Article 781. The inheritance of a person includes not only
Testamentary succession is that which results from the the property and the transmissible rights and obligations
designation of an heir made in a will executed in a form existing at the time of his death, but also those which have
prescribed by law accrued thereto since the opening of the succession.

2. Legal or Intestate Succession; and Article 782. An heir is a person called to the succession
Legal or Intestate succession is that which takes place by either by the provision of a will or by operation of law.
operation of law in the absence of a valid will. Devisees and legatees are persons to whom gifts of real
and personal property are respectively given by virtue of a
will.
Page | 1
WILLS AND SUCCESSION
WILLS a will is a unilateral act heirs cannot accept
while the testator is still alive
Article 783. A will is an act whereby a person is permitted, 4. It is an act mortis causa or one to take effect
with the formalities prescribed by law, to control to a certain upon the death of the testator and
degree the disposition of this estate, to take effect after his 5. It is purely statutory
death.
 The making of a will is purely a personal act. As
 The execution of a will must be in writing. Every a consequence of which, the law provides now
will must be in writing pursuant to Article 804 of that the making of a will cannot be left in whole or
the Civil Code. in part to the discretion of a third person. That the
 The right to make a will is purely statutory. This is making of will cannot be accomplished through
stated in Article 783 when it provides that a the instrumentality of an agent or attorney. the
person is only permitted with the formalities testator cannot make a testamentary disposition
prescribed by law to dispose of his estate in such a manner that another person has to
effective upon his death through a will the determine whether or not it is to be operative.
formalities required by law must be complied with (Art. 787, CC)
and these are the formalities provided for under
Articles 804 to 819 of the New Civil Code. Article 785. The duration or efficacy of the designation of
 The execution of a will is to control to a certain heirs, devisees or legatees, or the determination of the
degree the disposition of his estate. The power of portions which they are to take, when referred to by name,
the testator to dispose of his estate is subject to cannot be left to the discretion of a third person.
the limitations provided under the rules on
legitimes.  It has been held, that it is the making of the
 The disposition of his estate takes effect after the disposition or the exercise of the disposing power
after his death; such disposition can be done that is not subject to delegation. The testator
either: cannot substitute the mind or will of another for
a. Directly - by the institution of heirs or his own. Hence the mere mechanical act of
designation of devisees or legatees and the drafting the will may be done by a third person
property or share they are to receive or because this does not fall within the prohibition
b. Indirectly - by validly disinheriting those who  Under Article 785, this matters are testamentary
would otherwise inherit by operation of law. in nature they constitute expressions of the will or
 The disposition of his estate will take effect after disposition of the testator hence pursuant to
his death. Article 784 they cannot be delegated to a third
 A will is a disposition mortis causa or it takes person.
effect only upon the death of the testator.  The following may not be delegated:
1. The designation of heirs, devisees or
Article 784. The making of a will is a strictly personal act; it legatees;
cannot be left in whole or in part to the discretion of a third 2. The duration or efficacy of such designation
person, or accomplished through the instrumentality of an including such things as conditions terms or
agent or attorney. substitutions; or
3. The determination of the portions they are to
 This refers to one of the characteristics of a will: receive when referred to by name
It is purely personal.  The exceptions to this non-delegability rule are
 The other characteristics of a will are: the following:
1. It is a free act - without violence, fraud, or 1. That testator may validly delegate to a third
deceit person the following:
2. It is essentially revocable - revocability a. The manner of distribution of specific
springs from the fact that the will does not property or sums of money that testator
take effect except upon the death of the may leave in general to specified
testator up to that moment of such death the classes or causes (Art. 786, CC)
mind of the testator may still change, he provided, that the testator has already
may therefore revoke what he has already determined the property or amount of
expressed as his will and substitute his new money to be given
wishes or desires in as much as that which b. The designation of the persons,
has been previously expressed has not yet institutions, or establishment to which
taken effect such property or sums are to be given
3. It is formally executed - the testator must or applied. Provided that the stator has
have testamentary capacity. The making of
Page | 2
WILLS AND SUCCESSION
already determined the class or cause made. The disposition itself is considered as
to be benefited. void.

Article 786. The testator may entrust to a third person the

distribution of specific property or sums of money that he RULES OF CONSTRUCTION AND INTERPRETATION
may leave in general to specified classes or causes, and
also the designation of the persons, institutions or The following provisions on succession refer to the
establishments to which such property or sums are to be interpretation of wills:
given or applied.
Art. 788. If a testamentary disposition admits of different
Article 787. The testator may not make a testamentary interpretations, in case of doubt, that interpretation by
disposition in such manner that another person has to which the disposition is to be operative shall be preferred.
determine whether or not it is to be operative. - In case of doubt as to different interpretations.

 Articles 785 and 787 prevent the delegation of Under the rules for the interpretation of wills, all rules of
the exercise of testamentary discretion as to construction are designed to ascertain and to give effect to
whom and how much is to be given. that intention of the testator.
 In the cases provided under Article 786, there is
no delegation of the will or testamentary Note: Testate succession has always been preferred over
disposition. The testator has already expressed intestacy.
his will by leaving specific property or sums of
money in general to specified classes or causes. Doubts should be resolved in favor of testacy, and that
The third person entrusted to make the intestacy should be avoided, and the wishes of the testator
distribution to the extent of choosing the persons, should prevail.
institutions, or establishments to which the
property or money will be given or applied does Substance rather than form must be regarded, and the
not make any disposition. It simply carries out instrument should receive the most favorable construction
details in the execution of the testamentary to accomplish the purpose intended by the testator.
disposition made by the testator himself in his
will. Such delegation is allowed because the The intention of the testator is always the controlling factor.
testamentary discretion has already been
exercised and what is merely delegated is the It has been held that the object of construction of the will is
implementation of such discretion this is to sustain it if legally possible.
considered ministerial in nature.
 When the class institution is too broad, the law When the language of the testamentary disposition,
already provides the limits: however, is plain and unambiguous, courts are not
For instance; permitted to rest it from its natural meaning in order to save
a. If the beneficiaries of the estates are the it from nullity.
poor, the law will interpret such provision as
the poor living in the locality where the Art. 789. When there is an imperfect description, or when
testator lived; no person or property exactly answers the description,
b. If the provision states to charity, the law will mistakes and omissions must be corrected, if the error
divide the amount in half and give half to the appears from the context of the will or from extrinsic
local government for public schooling and evidence, excluding the oral declarations of the testator as
charitable works and the other half will go to to his intention; and when an uncertainty arises upon the
the conference of the testator’s church to be face of the will, as to the application of any of its provisions,
used for whatever the church wants the testator's intention is to be ascertained from the words
 Under article 787, to delegate a third person the of the will, taking into consideration the circumstances
power to determine whether or not a under which it was made, excluding such oral declarations.
testamentary disposition is to be operative is in - Ambiguity; Latent or Patent
effect delegating the power to make the
testamentary disposition and this is not permitted Under article 789 it refers to ambiguities in the will. The
pursuant to the general rule laid down in Article ambiguities in the will can be:
784. In such cases, not only the delegation is 1. Patent or extrinsic ambiguity; or
void, the testamentary disposition whose 2. Latent or intrinsic ambiguity.
effectivity will depend upon the determination of
the third person is the one which cannot be Ambiguities, whether latent or patent, shall be resolved as
follows:

Page | 3
WILLS AND SUCCESSION
a. by determining the intention of the testator;
b. by examining the words of the will; and/or Such oral declarations are inadmissible whether made
c. by resorting to parole or extrinsic evidence. before or after the execution of the will.

What is a latent or intrinsic ambiguity? In resolving these ambiguities:

Latent or intrinsic ambiguity - It is the kind of ambiguity  If it is a latent or intrinsic ambiguity, it can be
which cannot be seen from a mere perusal of the will, but resolved from the context of the will or extrinsic
which appears only upon consideration of extrinsic evidence, excluding the oral declaration of the
circumstances. It is an ambiguity not apparent on the face testator.
of the will. It may exist when there is an imperfect  If it is a patent or extrinsic ambiguity, the words of
description or when no person or property exactly answers the will should be considered or the
the description. circumstances under which the will was made,
but not the oral declarations of the testator.
Example:
One that does not appear on the face of the will and is Summary:
discovered only by extrinsic evidence: • Latent = not obvious on the face of the will
 For instance that the testator states in his will that • Patent = Obvious on the face of the will
he institutes his sister, but it turns out that the
testator has two sisters; or Art. 790. The words of a will are to be taken in their
 Let us say, he provides that he gives his house to ordinary and grammatical sense, unless a clear intention to
a friend, but the stator has two houses. use them in another sense can be gathered, and that other
can be ascertained.
What is a patent or extrinsic ambiguity? Technical words in a will are to be taken in their technical
Patent or extrinsic ambiguity – An ambiguity appears upon sense, unless the context clearly indicates a contrary
the face of the instrument when the testator gives a device intention, or unless it satisfactorily appears that he was
or legacy. unacquainted with such technical sense.
- Words; Technical Words
Example:
 For instance, “to some of the six children of my Article 790 provides that the words of a will are to be taken
brother Juan.” in their ordinary and grammatical sense, unless a clear
intention to use them in another sense can be gathered
Additional Notes: and that can be ascertain.
Latent or intrinsic is one which cannot be seen from a mere
perusal or reading of the will but which appears only after The supreme law in succession is the intent of the testator.
considering extrinsic circumstances. All rules of construction are designed to assert and give
effect to that intention of the testator. It is only when the
The latent or intrinsic ambiguity may arise either: when a intention of the testator is contrary to law, morals or public
will names a person as the beneficiary of a gift or a thing, policy, that it cannot be given effect. To give effect to the
as the subject matter of such gift, and there are two or intention of the testator, words and provisions in the will
more persons that answer to such name, or two or more must be plainly construed in order to avoid a violation of
things that meet such description. the testator’s intention and real purpose.

Extrinsic evidence is admissible to show the situation of the In case there are technical words, the technical sense of
testator and all the relevant facts and circumstances words if it is drafted by a skilled draftsman, such as a
surrounding him at the time of the making of the will, for the lawyer, it should be construed with some strictness
purpose of explaining or resolving a patent ambiguity. This emphasis being placed upon their accepted technical
includes evidence on the estate of his property, the meaning. Where the will is prepared by persons who have
condition of his family, and other matters which may no knowledge of the law, they are to be interpreted
introduce and enable the court to construe the intent of the liberally, with reference to their popular meaning or the
testator. meaning they would commonly have to a person in the
situation of the one who used them.
Note: The extrinsic evidence to explain ambiguities in a will
cannot include, however, oral declarations of the testator. It was held that in case of holographic wills, being usually
prepared by one who is not learned in the law, should be
Reason: The admission of oral declarations of the testator construed more liberally than one’s drawn by an expert,
whose lips have been sealed by death and therefore can and the words and phrases employed in such instruments
no longer deny or affirm the truth of what witnesses may should be interpreted according to their ordinary
say he declared would create confusion and give rise to acceptation even though they may have a different
false claims.
Page | 4
WILLS AND SUCCESSION
technical legal meaning where the circumstances transmitted, it is understood that his whole interest passes.
surrounding the execution of the will indicate that the But the testator under the present article may manifest his
testator so intended. intention to convey a less interest. Under Article 929, he
may expressly convey a larger interest. In such cases, it is
Art. 791. The words of a will are to receive an interpretation the intention of the testator that will be followed.
which will give to every expression some effect, rather than
one which will render any of the expressions inoperative; Art. 795. The validity of a will as to its form depends upon
and of two modes of interpreting a will, that is to be the observance of the law in force at the time it is made.
preferred which will prevent intestacy. Article 795 refers to the law on formal validity of the will.
- Preference to testacy
The validity of a will, as to its form, depends upon the
Effect should if possible be given to all words, clauses and observance of the law in force at the time it is made. The
provisions of the will, if they are not inconsistent with each law governing the execution and effect of wills may be
other or with the general intent of the whole will - take in its amended by the legislature subsequent to the death of the
entirety. Where two constructions are possible, the one testator - this does not affect the operation of the will. As
disregarding a word or clause for the will, and the other the property passes on the death of the testator, either to
giving effect to the will as a whole, it is the latter his heirs or next of kin by intestate succession, or to the
interpretation that must be followed. No part of the will devisees and legacies in case of a will, and as vested
should be discarded, unless in conflict with some other property rights are not permitted to be taken away without
part, in which case, that part will be enforce which compensation and due process.
expresses the intention of the testator. This is to prevent
intestacy. On the other hand, if the will was valid, or any gift in the
will took effect on the death of the testator, the rights of the
Art. 792. The invalidity of one of several dispositions devisee or legacy cannot be divested by any law passed
contained in a will does not result in the invalidity of the afterwards changing the requirements for wills or for the
other dispositions, unless it is to be presumed that the validity of any gifts by them.
testator would not have made such other dispositions if the
first invalid disposition had not been made. The general rule is that, the validity of the execution of a
- Invalidity of one of several dispositions will is controlled by the statute in force at the time of the
execution; and a statute enacted subsequent to the
Where a will has been executed, the reasonable and execution and prior to the death of the testator, changing
natural presumption is that the testator intends to dispose the rules respecting the form of the instrument, the capacity
of all his property. The presumption against intestacy is so of the testator and the like has no retroactive effect.
strong that courts will adopt any reasonable construction of
a will in order to avoid it. With respect to the intrinsic validity, such issues
concerning: legitimes, capacity of the heirs, those involving
Art. 793. Property acquired after the making of a will shall disqualification of certain heirs, preteration, collation
only pass thereby, as if the testator had possessed it at the representation and valid substitution, this will be governed
time of making the will, should it expressly appear by the by Article 16 paragraph 2 of the New Civil Code which
will that such was his intention. provides that interstate and testamentary successions
,both with respect to the order of succession and to the
- Property acquired after will was made
amount of successional rights and to the intrinsic validity of
With respect to Article 793, property acquired after the
the testamentary provisions, shall be regulated by the
making of a will shall only pass thereby as if the testator
national law of the person whose succession is under
had possessed it at the time of the making of the will
consideration whatever may be the nature of the property
should it expressly appear by the will that such was his
and regardless of the country where said property may be
intention. This refers to after acquired property.
found.
Property acquired during the period between the execution
of the will and the death of the testator is not included
The place of execution here has no effect, whatever, upon
among the property dispose of, except when a contrary
the validity of the provisions of the will. It is the law at the
intention expressly appears on the will.
time when the succession opens which must determine the
intrinsic validity of the provisions of the will, because it is at
Art. 794. Every devise or legacy shall cover all the interest
this time that the rights are transmitted to the heirs,
which the testator could device or bequeath in the property
devisees or legacies.
disposed of, unless it clearly appears from the will that he
intended to convey a less interest.
In the case of Bellis v. Bellis, the Supreme Court held, the
- Devise/Legacy intrinsic validity of a will is determined by the national law of
When the testator does not state the extent of the interest the decedent, regardless of the place where the will was
that he gives to the legacy or the devisee in the property executed or the residence of the testator.
Page | 5
WILLS AND SUCCESSION
 The testator must have mental capacity to
Therefore, provision in the testator's will which mandates understand the nature and effect of his act. He
the application of the laws of another country, instead of his must know that the instrument is an act mortis
national law, is illegal and it is without effect. causa which will dispose of his property upon his
death.
 That the preparation and the execution of the will
TESTAMENTARY CAPACITY AND INTENT involves dispositions affecting his properties to
take effect upon his death. The testsator must
Art. 796. All persons who are not expressly prohibited by have sufficient recollection of his properties. He
law may make a will. must be able to remember the natural objects of
his bounty and he must have sufficient mental
 The determination of testamentary capacity has ability to make a disposition of his property
three components: (1) age, (2) soundness of among the objects of his bounty according to
mind; and (3) express statutory prohibition. some plan which he has formed in his mind.
 The law presumes capacity to make a will.  There is no presumption of incapacity by reason
 In order that the person may be disqualified to only of advance age.
make a will, he must be expressly prohibited by  One who is deaf or dumb and blind are not
law. prohibitions in making a will.
 A person under civil interdiction can make a will.  There is no presumption of incapacity from
He is disqualified for dispositions of property making a will by reason of blindness alone. The
only, by an act inter vivos but not by an act mortis determination of soundness of mind of the
causa. testator must be determined as of the execution
of the will. If he was not of sound mind at that
Art. 797. Persons of either sex under eighteen years of age time, the will is invalid regardless of his state of
cannot make a will. mind. Before or after such execution, if he was of
sound mind when the will was made it will be
NOTE: Sex or gender is immaterial in determining the upheld even if he should later become insane
capacity to make a will for as long as one is 18 years and and die in that condition.
above, he or she can make a will.
NOTE: A person suffering from civil interdiction is qualified
Art. 798. In order to make a will it is essential that the to make a will. He is deprived of the power to dispose of his
testator be of sound mind at the time of its execution.  properties through acts inter vivos but not through acts
mortis causa. The burden of proving that the testator acted
Art. 799. To be of sound mind, it is not necessary that the in lucid interval lies on the person who maintains the
testator be in full possession of all his reasoning faculties, validity of the will
or that his mind be wholly unbroken, unimpaired, or Art. 800. The law presumes that every person is of sound
unshattered by disease, injury or other cause. mind, in the absence of proof to the contrary.
It shall be sufficient if the testator was able at the time of The burden of proof that the testator was not of sound mind
making the will to know the nature of the estate to be at the time of making his dispositions is on the person who
disposed of, the proper objects of his bounty, and the opposes the probate of the will; but if the testator, one
character of the testamentary act. month, or less, before making his will was publicly known
to be insane, the person who maintains the validity of the
SOUNDNESS OF MIND will must prove that the testator made it during a lucid
 Soundness of mind is determined at the time of interval
the execution of the will. This means that the
testator is able to execute his or her will with an  There must be conclusive proof of the mental
understanding of (1) the nature of the act, such incapacity at the time that the testator executed
as the recollection of the property he means to his will before the will may be set aside on the
dispose of, (2) the persons who are or who might ground of the mental incapacity of the testator.
reasonably be the objects of his bounty, and (3)  It was held that the testimony of subscribing
the manner in which it is to be distributed among witnesses to a will concerning that the testator’s
them. mental condition is entitled to great weight when
 It is sufficient if he or she understands what it is they are truthful and intelligent.
about even if he or she has less mental capacity  The evidence of those present at the execution of
than would be required to make a contract. the will and of the attending physician is also to
 Soundness of mind, for purposes of determining be relied upon.
testamentary capacity, does not mean complete
possession of mental and physical faculties.
Page | 6
WILLS AND SUCCESSION
Art. 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by the
supervening of capacity. The common requirements for both attested and
holographic wills are the following:
 The capacity of the person who leaves a will is to 1. It must be in writing;
be determined as of the time of the execution of A holographic will must be written by the hand of the
such will. testator himself or herself.

Art. 802. A married woman may make a will without the In attested wheels it is immaterial who performs the
consent of her husband, and without the authority of the mechanical act of writing the will so long as the testator
court. signs it or has somebody sign his name in his presence.

Art. 803. A married woman may dispose by will of all her 2. It must be in a language known to the testator
separate property as well as her share of the conjugal
partnership or absolute community property. The language or dialect used in the will must be known to
the testator.

FORMS OF WILLS It was held that when a will is executed in a certain

province or locality in the dialect currently used in such
Art. 804. Every will must be in writing and executed in a province or locality, there arises the presumption that the
language or dialect known to the testator. testator knew the dialect so used in the absence of
evidence to the contrary.
 This is with respect to the forms of will.
 The legislature has the power to prescribe the In the case of SIXTO ACOP v. SALMING PIRASO the
formalities to be observed in the execution of a Supreme Court held that the decedent’s alleged will, being
will. written in English, a language unknown to said decedent,
 The failure to comply with and satisfy the cannot be probated, because it is prohibited by the law,
statutory requirements as to the execution of a which clearly and positively requires that the will be written
will, the document will be denied probate. in the language or dialect known by the testator.
 The rule is that the intention of the testator must
govern. But this applies to the interpretation of The probate court denied the probate of the will since it
wills. It does not apply to the execution of the will. was in English where the testator was an Igorot and the will
 The liberalization of the manner of the execution was executed in Baguio city where the testator lived and
of a will is to give the testator more freedom in died, there was no evidence that English is the language in
expressing his last wishes. the City of Baguio and there is no positive proof that the
 But the sufficient safeguards and restrictions to testator knew only the Igorot dialect and did not know
prevent the commission of fraud and the exercise English.
of undue and improper pressure and influence
upon the testator are assured by the formalities There is no statutory requirement that the will should
in the execution of a will. express that the testator knows the language or dialect
used. That fact may be established by extrinsic evidence or
KINDS OF WILL THAT ARE ALLOWED IN THE NCC proof alliuende, such as in one case, the Supreme Court
1. Ordinary or attested will; and held that the failure of the petitioner's witness to testify that
 requires an attestation clause, an the testator knew the language in which the will was
acknowledgement before a notary written, does not of itself suffice to give the conclusion that
public; this important requirement has not been complied with
when there is enough evidence on record which supplies
2. Holographic or hand written will. the technical omission. Example, where the will is in
 must be entirely written, dated and Spanish, the fact that the testratirx was a mestiza Espanol
signed in the handwriting of the married to a Spaniard made several letters in her own
testator. handwriting written in Spanish, all of this gave rise to the
presumption that she knows Spanish which presumption
NOTE: A noncupative will is an oral will made by the would stand unless the contrary is proved.
testator in contemplation of death. The new civil code does
not recognize noncupative wills. Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
Article 804 provides that every will must be in writing and the testator's name written by some other person in his
executed in a language or dialect known to the testator. presence, and by his express direction, and attested and

Page | 7
WILLS AND SUCCESSION
subscribed by three or more credible witnesses in the In the case of JOSE S. LOPEZ vs. AGUSTIN LIBORO, the
presence of the testator and of one another. testator affixed his thumbmark to the instrument instead of
The testator or the person requested by him to write his signing his name. The reason for this was that the testator
name and the instrumental witnesses of the will, shall also was suffering from "partial paralysis." While another in
sign, as aforesaid, each and every page thereof, except the testator's place might have directed someone else to sign
last, on the left margin, and all the pages shall be for him, as appellant contends should have been done,
numbered correlatively in letters placed on the upper part there is nothing curious or suspicious in the fact that the
of each page. testator chose the use of mark as the means of
The attestation shall state the number of pages used upon authenticating his will. It was a matter of taste or
which the will is written, and the fact that the testator preference. Both ways are good. A statute requiring a will
signed the will and every page thereof, or caused some to be "signed" is satisfied if the signature is made by the
other person to write his name, under his express direction, testator's mark.
in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages NOTE: In notarial wills, subscription by fingerprint is
thereof in the presence of the testator and of one another. allowed as long as it is voluntarily made but not in
If the attestation clause is in a language not known to the holographic wills given the explicit requirement for a
witnesses, it shall be interpreted to them holographic will to be entirely written, dated and signed
with the hand of the testator.
The object of the solemnities surrounding the execution of
a will: In the case of ROSARIO GARCIA vs. JULIANA
1. To close the door against bad faith and fraud, LACUESTA, the Supreme Court ruled that the attestation
2. To avoid substitution of wills and testaments and clause is fatally defective for failing to state that Antero
3. To guarantee their truth and authenticity. Mercado caused Atty. Florentino Javier to write the
testator’s name under his express direction, as required by
NOTE: The fact that the will was executed in a language Section 618 of the Code of Civil Procedure. Petitioner’s
known to the testator NEED NOT be stated in the argument that such recital is unnecessary because the
attestation clause. This fact can be established by extrinsic testator signed the will himself using a cross mark which
evidence or evidence aliunde. should be considered the same as a thumb-mark (which
has been held sufficient in past cases) is not acceptable. A
NOTE: This rule does NOT apply to witnesses in a notarial cross mark is not the same as a thumb mark, because the
or attested will because the witnesses do not need to know cross mark does not have the same trustworthiness of a
the contents of the will. The attestation clause, on the other thumb mark.
hand, must be understood by the witnesses even if it is in a
language not known to them. CROSS AS SIGNATURE
GR: A cross is not a sufficient signature
 The body of the will must be in a language known XPNs: The cross appearing on the will is:
to the testator. a) The customary, habitual signature of the testator
 The attestation clause need not be in a language or
known to the testator. b) One of the ways the testator signs his signature.
 With respect to the witnesses need not know the
language in which the attestation clause is The one who alleges that it is the customary, habitual or
written. It is only required to know the contents one of the ways he signs his signature has the burden of
thereof. Meaning, that if that the attestation proof.
clause is in a language not known to the
witnesses, it shall be interpreted to them.  The purpose of the signature is to authenticate
 The will must be signed at the end thereof by the the will. The placement of the signatures of both
testator himself or by the testator’s name written the testator and of the witnesses as required
by another person in his presence and by his under this provision of the New Civil Code, must
express direction. be found at the logical end of the will. The logical
 The signature need not be the complete end of the will is after all the significant property
signature. It is not essential to the validity of the dispositions in the will. This is to ensure that
will. For greater authenticity that the status there will be no insertions of other property
customary signature is enough. Since the law dispositions not belonging to the testator.
does not require his full signature, the initials or  The signature at the end of the will signifies the
even a thumb mark by the testator may be completion of intent and confirmation to all the
deemed sufficient to comply with the requirement dispositions found above.
provided it is his customary signature.  It is mandatory that there must be the signing on
every page in the presence of the witnesses.

Page | 8
WILLS AND SUCCESSION
 The test of presence is not whether they actually the testator as it is a declaration made by the
saw each other sign, but whether they might witnesses.
have seen each other sign had they chosen to do
so considering their mental and physical In ICASIANO V. ICASIANO the Supreme Court held that
condition and position in relation to each other at The inadvertent failure of one witness to affix his signature
the moment of the inscription of each signature. to one page of a testament, due to the simultaneous lifting
 The place of the signature is merely directory. It of two pages in the course of signing, is not per se
should be placed at the left margin however; the sufficient to justify denial of probate. Impossibility of
signature can be affixed anywhere on the page. substitution of this page is assured not only the fact that the
Each and every page except the last page must testatrix and two other witnesses did sign the defective
be signed by the testator or by the person page, but also by its bearing the coincident imprint of the
requested by him to write his name and by the seal of the notary public before whom the testament was
instrumental witnesses of the will on the left ratified by testatrix and all three witnesses. The law should
margin. not be so strictly and literally interpreted as to penalize the
 Signatures on the left margin must be placed on testatrix on account of the inadvertence of a single witness
each and every page of the will. over whose conduct she had no control, where the purpose
 Each and every page of the will must be of the law to guarantee the identity of the testament and its
numbered correlatively in letters placed on the component pages is sufficiently attained, no intentional or
upper part of each page. deliberate deviation existed, and the evidence on record
 The signatures on the left-hand corner of every attests to the full observance of the statutory requisites.
page signify, among others, that the witnesses
are aware that the page they are signing forms In CRUZ V. VILLASOR the Supreme Court held that The
part of the will. On the other hand, the signatures notary public cannot be considered as the third
to the attestation clause establish that the instrumental witness since he cannot acknowledge before
witnesses are referring to the statements himself his having signed the said will. An acknowledging
contained in the attestation clause itself. officer cannot serve as witness at the same time.
 It is mandatory that there must be depagination To acknowledge before means to avow, or to own as
by means of a conventional system. It is merely genuine, to assent, admit, and ‘before’ means in front of or
directory that the pagination will be in letters on preceding in space or ahead of. The notary cannot split his
the upper part of each page. personality into two so that one will appear before the other
to acknowledge his participation in the making of the will.
NOTE: The question whether the testator and the To permit such situation would be absurd.
subscribing witnesses to an alleged will sign the instrument
in the presence of each other does not depend upon proof Finally, the function of a notary among others is to guard
of the fact that their eyes were actually cast upon the paper against any illegal or immoral arrangements, a function
at the moment of its subscription by each of them, but defeated if he were to be one of the attesting or
whether at that moment existing conditions and the position instrumental witnesses. He would be interested in
of the parties, with relation to each other, were such that by sustaining the validity of the will as it directly involves
merely casting their eyes in the proper direction they could himself and the validity of his own act. he would be in an
have seen each other sign. inconsistent position, thwarting the very purpose of the
acknowledgment, which is to minimize fraud.
NOTE: If the entire document consists only of two sheets,
the first containing the will and the second, the attestation Subscription on the other hand, is the manual act of
clause, there need not be any marginal signatures at all instrumental witnesses in affixing their signature to the
instrument.
Attestation and Subscription
We must distinguish an attestation signature from a
Attestation is an act of witnessing execution of will by the subscription signature.
testator in order to see and take note mentally those things
are done which the statute requires for the execution of a ATTESTATION SUBSCRIPTION
will and that the signature of the testator exists as a fact. Is an act of the census Act of the hand
Mental act Mechanical act
A. Attestation clause need not be written in a Its purpose is to render A subscription signature is
language or dialect known to the testator nor to available proof during the for purposes of
the witnesses. Since it does not form part of the probate that such will had identification
testamentary disposition, the attestation clause been executed in
need only be signed by the witnesses and not by accordance with the
formalities prescribed by

Page | 9
WILLS AND SUCCESSION
law.  It depends upon the opportunity of the witnesses
The attestation signature Subscription is found at to see the execution of the will by merely casting
is found after the the left side margin of their eyes had they opted to see the same.
attestation clause at the every page of the will
end or last page of the In NERA V. RIMANDO, The Supreme Court emphasized
will. that the true test of presence of the testator and the
witnesses in the execution of a will is not whether they
 If it is the name of the testator that displays in lieu actually saw each other sign, but whether they might have
of his or her signature instead of a signature that seen each other sign, had they chosen to do so,
the testator’s name must appear at the end of the considering their mental and physical condition and
will written by some person in the presence of the position with relation to each other at the moment of
testator and by his expressed direction, the inscription of each signature.
person writing that the testator’s name need not The position of the parties with relation to each other at the
place his own signature. moment of the subscription of each signature, must be
 The law merely requires the name of the testator. such that they may see each other sign if they choose to
do so.
In the case of LUCIO BALONAN v. EUSEBIA ABELLANA,
a will subscribed at the end thereof by some person other D. The next requirement for an attested will, it must
than the testator in such manner that the signature of said be attested and subscribed by three or more
person appears above the typewritten statement "Por la credible witnesses in the presence of the testator
Testadora Anacleta Abellana . . . Ciudad de Zamboanga," and of one another.
may not be admitted to probate for failure to comply with
the express requirement of the law that the testator must What does credible mean?
himself sign the will or that his name be affixed thereto by
some other person in his presence and by his express Art. 820. Any person of sound mind and of the age of
direction. The law requires the name of the testator written eighteen years or more, and not blind, deaf or dumb, and
at the end of the will not the phrase containing the name of able to read and write, may be a witness to the execution
the testator. of a will mentioned in Article 805 of this Code. (n)

The person signing should not be one of the attesting Art. 821. The following are disqualified from being
witnesses unless there are more than three other witnesses to a will:
witnesses. 1. Any person not domiciled in the Philippines;
2. Those who have been convicted of falsification of
B. Another requirement in an attested will is that a document, perjury or false testimony.
each and every page of the will must be
numbered correlatively in letters placed on the Qualifications of witnesses
upper part of each page. 1. Of Sound mind.
 This is to prevent fraud, substitution or to 2. At least 18 years of age.
detect loss of any page. 3. Able to read and write
 Substantial compliance is sufficient. 4. Not Blind, deaf or dumb

C. The next requirement for an attested will is that, NOTE: While a blind or deaf may not be witness, he could
each and every page must be signed by the be a testator in a notarial will
testator or by the person requested by him to
write his name and by the instrumental witnesses 5. Not have been Convicted by final judgment of
in the presence of each other on the left margin falsification of a document, perjury or false
of the will except the last page. testimony.
 The signature may be on the right. 6. Domiciled in the Philippines – his habitual
residence must be in the Philippines
 It may be on top or at the bottom of the
margin of the page of the will.
Purpose of the qualifications of the witnesses
 If the witnesses possess all the qualifications and
Meaning of “in the presence of” none of the disqualifications under the law, the
law assumes that they would likely give credible
 The presence of the witnesses does not simply
testimony and the will will be admitted to probate.
mean physical presence in the vicinity of the
place of the execution of the will.  The qualifications are meant to benefit the
testator.

Page | 10
WILLS AND SUCCESSION
In the case of VDA. DE RAMOS VERSUS THE COURT  The law requires the presence of at least three
OF APPEALS, the issue involves whether or not the last witnesses in the execution of wills for the primary
will and codicil were executed in accordance with the purpose of safeguarding the authenticity of the
formalities of the law, considering two of the attesting document being signed by the testator since the
witnesses testified against their due execution while other testator who would testify as to its genuineness
non-subscribing witnesses testified to the contrary. and authenticity would be already dead by the
time the will is presented for probate.
The Supreme Court held that the last will and codicil were  There is a need for witnesses to testify with
executed in accordance with the formalities required by respect to the compliance with all the
law. There is no question that each and every page of the requirements of law in the execution of the
will and codicil carry the authentic signatures of Eugenia testator's will.
Danila and the three (3) attesting witnesses. Similarly, the
attestation claims far from being deficient, were properly E. An attested will must contain an attestation
signed by the attesting witnesses. Neither is it disputed that clause which must state
these witnesses took turns in signing the will and codicil in i. The number of pages where the will is
the presence of each other and the testatrix. Both written;
instruments were duly acknowledged before a Notary ii. That the testator signed in the
Public who was all the time present during the execution. presence of the witnesses; and
There is no showing that the lawyers had been remiss in iii. The witnesses signed in the presence
their sworn duty. Consequently, respondent court failed to of the testator and each other.
consider the presumption of regularity in the execution of
the questioned documents. There were no incidents The purpose of the attestation is to preserve in permanent
brought to the attention of the trial court to arouse form the records of the fact, to have proof of compliance,
suspicion of anomaly. While the opposition alleged fraud and to minimize commission of fraud or undue influence.
and undue influence, no evidence was presented to prove
their occurrence. The attestation clause of an ordinary will does not have to
With regard to the testimonies of the witnesses against the be written in a language or dialect known to the testator.
due execution of a will, it does not necessarily disallow its
probate. Although the subscribing witnesses to a contested The language used in the attestation clause does not even
will are the best witnesses in connection with its due have to be known to the witnesses. It should however be
execution, to deserve full credit, their testimony must be translated to them.
reasonable, and unbiased; if otherwise, it may be
overcome by any competent evidence, direct or The attestation clause is a memorandum of facts required
circumstantial. by law to be made and signed by the witnesses; that the
testator has no participation in the attestation clause; that
As a rule, if any or all of the subscribing witnesses testify his signature at the bottom may be considered merely
against the due execution of the will, or do not remember inconsequential a mere surplus edge.
having attested to it, or are otherwise of doubtful credibility,
the will may, nevertheless, be allowed if the court is In TESTATE ESTATE OF CAGRO VS. CAGRO, the
satisfied from the testimony of other witnesses and from all appellants insisted that the will is defective because the
the evidence presented that the will was executed and attestation was not signed by the witnesses at the bottom
attested in the manner required by the law. although the page containing the same was signed by the
witnesses on the left hand margin.
It has been regarded that the function of the Notary Public
is, among others, to guard against any illegal or immoral Petitioner contended that the signatures of the 3 witnesses
arrangements in the execution of a will. In the absence of on the left hand margin conform substantially to law and
any showing of self-interest that might possibly have may be deemed as their signatures to the attestation
warped his judgment and twisted his declaration, the clause.
intervention of a Notary Public, in his professional capacity, The Supreme Court held that the will is not valid. The
in the execution of a will deserves grave consideration. attestation clause is a memorandum of the facts attending
the execution of the will. It is required by law to be made by
 In the attestation clause the witnesses not only the attesting witnesses and it must necessarily bear their
attest to the signature of the testatrix but also the signatures.
proper execution of the will
 Their signature implicitly certifies the validity of An unsigned attestation clause cannot be considered as an
the will and the truth of the facts stated therein. act of the witnesses since the omission of their signatures
 Note that a blind or an illiterate can make a will at the bottom negatives their participation.
but cannot be a witness to a will.

Page | 11
WILLS AND SUCCESSION
Moreover, the signatures affixed on the left hand margin is be noted that the subject instrument is consecutively
not substantial conformance to the law. The said lettered with pages A, B, and C which is a sufficient
signatures were merely in conformance with the safeguard from the possibility of an omission of some of
requirement that the will must be signed on the left-hand the pages. The error must have been brought about by the
margin of all its pages. If the attestation clause is unsigned honest belief that the will is the whole instrument consisting
by the 3 witnesses at the bottom, it would be easier to add of three (3) pages inclusive of the attestation clause and
clauses to a will on a subsequent occasion and in the the acknowledgement. The position of the court is in
absence of the testator and any or all of the witnesses. consonance with the "doctrine of liberal interpretation"
The probate of the will is denied. enunciated in Article 809 of the Civil Code.

In re: Petition for the probate of the will of the deceased In fine, the court finds that the testator was mentally
LEONA SINGSON. MANUEL SINGSON, vs. EMILIA capable of making the will at the time of its execution, that
FLORENTINO and GONZALEZ VERSUS GONZALEZ, the notarial will presented to the court is the same notarial
there is an error in the number of pages of the will as will that was executed and that all the formal requirements
stated in the attestation clause material to invalidate the (See Article 805 of the Civil Code) in the execution of a will
will. The Supreme Court held that error in the number of have been substantially complied with in the subject
pages of the will as stated in the attestation clause is not notarial will.
material to invalidate the will. The position of the court is in
consonance with the Doctrine of Liberal Interpretation In the case of AL-WADA VS AL-WAD October 17 2008,
enunciated in Article 809 of the Civil Code which reads: aside from signing at the logical end of the will, the testator
must also sign at the left margin of each and every page of
Art. 809. In the absence of bad faith, forgery, or fraud, or the will. The placement of the signature of the testator at
undue and improper pressure and influence, defects and the end of the will is crucial to its validity, while the
imperfections in the form of attestation or in the language placements of the signature on each and every page on
used therein shall not render the will invalid if it is proved the left margin will not invalidate the will. The difference
that the will was in fact executed and attested in substantial between a subscribing and attesting signature lies in the
compliance with all the requirements of Article 805. purpose of the signature.

In SAMANIEGO - CELADA VS ABENA, with [regard] to the The signature as required in the first paragraph of Article
contention of the oppositors [Paz Samaniego-Celada, et 805 is to attest, declare and confirm that all the dispositions
al.] that the testator [Margarita Mayores] was not mentally above it are off and by the testator, while the signature as
capable of making a will at the time of the execution required in the second paragraph of Article 805 is merely to
thereof, the same is without merit. The oppositors failed to identify each and every page of the will.
establish, by preponderance of evidence, said allegation
and contradict the presumption that the testator was of An attesting signature must be found below the
sound mind (See Article 800 of the Civil Code). In fact, dispositions in the will as a matter of necessity while an
witness for the oppositors, Dr. Ramon Lamberte, who, in identifying or subscribing signature may be placed
some occasions, attended to the testator months before anywhere in the will preferably on the left margin as a
her death, testified that Margarita Mayores could engage in matter of style.
a normal conversation and he even stated that the illness
of the testator does not warrant hospitalization'. Not one of In TABUADA VS ROSAL the Supreme Court held that the
the oppositor's witnesses has mentioned any instance that signatures of the witnesses required at the end of the will
they observed act/s of the testator during her lifetime that are for are for identification purposes only similar to the
could be construed as a manifestation of mental incapacity. signatures on the left margin. As such, these signatures
The testator may be admitted to be physically weak but it need not be found at the end of the will or on the left
does not necessarily follow that she was not of sound margin. The placement of the attesting signatures of the
mind. [The] testimonies of contestant witnesses are pure testator must be found at the logical end of the will
aforethought. otherwise, the will is void.

Anent the contestants' submission that the will is fatally The attesting signature of the witnesses must be found at
defective for the reason that its attestation clause states the end of the attestation clause otherwise the will is void.
that the will is composed of three (3) pages while in truth
and in fact, the will consists of two (2) pages only because It must be noted that the law uses the terms attested and
the attestation is not a part of the notarial will, the same is subscribed. Attestation consists in witnessing the testator's
not accurate. While it is true that the attestation clause is execution of the will in order to see and take note mentally
not a part of the will, the court, after examining the totality that those things are done which the statute requires for
of the will, is of the considered opinion that error in the the execution of a will and that the signature of the testator
number of pages of the will as stated in the attestation exists as a fact. On the other hand, subscription is the
clause is not material to invalidate the subject will. It must signing of the witnesses' names upon the same paper for
Page | 12
WILLS AND SUCCESSION
the purpose of identification of such paper as the will which persons to read or communicate the will to him,
was executed by the testator. but they must know the sign language.

The signatures of the instrumental witnesses on the left Art. 807. If the testator be deaf, or a deaf-mute, he must
margin of the first page of the will attested not only to the personally read the will, if able to do so; otherwise, he shall
genuineness of the signature of the testatrix but also the designate two persons to read it and communicate to him,
due execution of the will as embodied in the attestation in some practicable manner, the contents thereof. 
clause.
While perfection in the drafting of a will may be desirable, Rules if the Testator is Deaf or Mute
unsubstantial departure from the usual forms should be 1. If the testator is able to read, he must personally
ignored, especially where the authenticity of the will is not read the will; or
assailed. 2. If the testator is unable to read, he must
designate two persons to read it and
The law is to be liberally construed, "the underlying and communicate to him, in some practicable
fundamental objective permeating the provisions on the law manner, the contents thereof
on wills in this project consists in the liberalization of the
manner of their execution with the end in view of giving the In the case of GARCIA vs. VASQUEZ, the Supreme Court
testator more freedom in expressing his last wishes but held that the declarations in court of the ophthalmologist as
with sufficient safeguards and restrictions to prevent the to the condition of the testatrix’s eyesight fully establish the
commission of fraud and the exercise of undue and fact that her vision remained mainly for viewing distant
improper pressure and influence upon the testator. This objects and not for reading print; that she was, at the time
objective is in accord with the modern tendency in respect of the execution of the second will on December 29, 1960,
to the formalities in the execution of a will". incapable of reading and could not have read the
provisions of the will supposedly signed by her.
The objects of attestation and of subscription were fully met
and satisfied in the present case when the instrumental Upon its face, the testamentary provisions, the attestation
witnesses signed at the left margin of the sole page which clause and acknowledgment were crammed together into a
contains all the testamentary dispositions, especially so single sheet of paper, apparently to save on space. Plainly,
when the will was properly identified by subscribing witness the testament was not prepared with any regard for the
Vicente Timkang to be the same will executed by the defective vision of Dña. Gliceria, the typographical errors
testatrix. There was no question of fraud or substitution remained uncorrected thereby indicating that the execution
behind the questioned order.  thereof must have been characterized by haste. It is
difficult to understand that so important a document
F. Next requirement of an attested will; it must be containing the final disposition of one’s worldly possessions
acknowledged before a notary public by the should be embodied in an informal and untidy written
testator and the witnesses. instrument; or that the glaring spelling errors should have
escaped her notice if she had actually retained the ability to
Art. 806. Every will must be acknowledged before a notary read the purported will and had done so.
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file The rationale behind the requirement of reading the will to
another with the Office of the Clerk of Court. the testator if he is blind or incapable of reading the will to
himself, as when he is illiterate, is to make the provisions
The following are not essential: thereof known to him so that he may be able to object if
a. The date; they are not in accordance with his wishes.
b. Place of execution; and
c. The reading of the will to the witnesses That the aim of the law is to insure that the dispositions of
the will are properly communicated to and understood by
Only the attestation clause is interpreted to the witnesses if the handicapped testator, thus making them truly reflective
the language is not known to them and not the will itself, of his desire, is evidenced by the requirement that the will
should be read to the latter, not only once but twice, by two
 The notary does not have to read the will except different persons, and that the witnesses have to act within
if the testator is blind. the range of his (the testator’s) other senses.
 The notary public need not be present at the time
of the execution of the will. Art. 808. If the testator is blind, the will shall be read to him
 The witnesses also need not appear before the twice; once, by one of the subscribing witnesses, and
notary public at the same time again, by the notary public before whom the will is
 If the testator is deaf or a deaf mute, he must acknowledged.
personally read the will or he must designate two

Page | 13
WILLS AND SUCCESSION
NOTE: The notary public cannot be one of the attesting they signed because the document is
witnesses because he cannot acknowledge his own act authentic based on their attestation.
 This acknowledgement is done before
Purpose: The reading is mandatory for the purpose of an independent notary - a person who
making known to the testator the provision of the will so must have no interest in the will in
that he may object if it is not in accordance with his wishes. order to ensure his or her impartiality in
Art. 808 of the NCC applies not only to blind testators but ascertaining the free execution of the
also to those who, for one reason or another, are incapable will.
of reading their wills, either because of poor or defective
eye sight or because of illiteracy. In CRUZ V. VILLASOR the Supreme Court held that The
notary public cannot be considered as the third
Failure to comply with this requirement would invalidate the instrumental witness since he cannot acknowledge before
will with respect to the provisions whether the testator is himself his having signed the said will. An acknowledging
blind. The stator need not be clinically blind. officer cannot serve as witness at the same time.

The function of notary is to guard against illegal

Art. 806. Every will must be acknowledged before a notary arrangements would be defeated if he becomes one of the
public by the testator and the witnesses. The notary public witnesses as he would then be interested in validating his
shall not be required to retain a copy of the will, or file own acts.
another with the Office of the Clerk of Court.
In GACIA VS GARCIA, the will was denied probate
Article 806 refers to notarial wills or attested wills. because it was acknowledged before the north republic
only by the testator and not by the witness or witnesses
When should acknowledgement before the notary public be thereby failing to comply with the mandatory requirement of
made? acknowledgement of the will before a notary public by the
 The law does not provide a specific testator and the instrumental witnesses. Such requirement
period but the best time to have the will is indispensable for the validity of the will.
notarize is immediately after the
execution of the will.
 Though the law does not require that SUBSTANTIAL COMPLIANCE
both the testator and the witnesses
acknowledge before the notary public Art. 809. In the absence of bad faith, forgery, or fraud, or
at the same time, it is best to have both undue and improper pressure and influence, defects and
of them together before the notary imperfections in the form of attestation or in the language
public used therein shall not render the will invalid if it is proved
 After the will is acknowledged before a that the will was in fact executed and attested in substantial
notary public the will is already compliance with all the requirements of Article 805.
considered complete.
 Acknowledgement is essential for its NOTE: A will is not rendered invalid by reason of defects or
formal validity. imperfections in the form of attestation or in the language
 The notary public is not legally required used therein.
to either retain a copy of the will or file
another with the Office of the Clerk of  This provides a liberal interpretation of the will.
Court and this is to safeguard the  The attestation clause is essentially the act of the
secrecy of the contents of the will witnesses over whom that the testator has no
during the lifetime of the testator. control.
 What is the purpose of  The attestation or the contents of attestation
acknowledgement? The purpose is to clause to support a valid will must contain the
minimize fraud and exertion of undue following:
pressure and influence upon the i. the number of pages upon which the
testator. will was written;
 The testator acknowledges before the ii. the fact that the testator signed the will
notary public in order to certify his and every page thereof or caused
voluntariness in executing the will. some other person to write his name
 The witnesses acknowledged before under his express direction in the
the notary public to certify that they presence of the instrumental
signed the document without being witnesses; and
coerced, threatened or hurt and that

Page | 14
WILLS AND SUCCESSION
iii. the witnesses witnessed and signed  Note: Rule 77 of the Rules of Court, which allows
the will and all of the pages thereof in proof and probate of a loss or destroyed will by
the presence of the testator and of one secondary evidence the testimony of the
another witnesses in lieu of the original document this
rule could not have contemplated a holographic
In cases of omissions in the will, if it can be supplied by an will by reason of the very nature of a holographic
examination of the will itself, without the need of resorting will. The execution and contents of a lost or
to extrinsic evidence it will not be fatal and, destroyed holographic will may not be proved by
correspondingly, would be allowed for probate. However, the bare testimony of witnesses who have seen
evidence aliunde are not allowed to fill a void in any part of or read such will. However, in a footnote, the
the document or supply missing details that should appear Supreme Court held, that perhaps it may be
in the will itself. Those omissions which cannot be supplied proven by a photostatic or photographic copy
except by evidence aliunde would result in the invalidation even a mimeograph or carbon copy or by other
of the will itself. similar means if any whereby the authenticity of
the handwriting of the deceased may be
Article 810. A person may execute a holographic will which exhibited and tested. Unlike holographic wills,
must be entirely written, dated, and signed by the hand of ordinary wills may be proved by testimonial
the testator himself. It is subject to no other form, and may evidence when lost or destroyed
be made in or out of the Philippines, and need not be
witnessed. Purpose of a date in a holographic will: The date in a
holographic will indicates the true date of execution of the
Requirements for a holographic will are the following: will which determines the age of the testator and his
1. It must be in a language known to the testator soundness of mind at the time of the execution of a will.
(Art. 804);
2. It must be entirely written dated and signed by Q: What if the date placed is only for instance February
the testator. It is subject to no other form. (Art. 1961, is their compliance with Article 810 of the Civil Code?
810) A: Yes, as a General Rule the date in a holographic will
3. A holographic will may be made in or out of the should include the day, month, and year of its execution.
Philippines; However, when there is no appearance of bad faith, fraud,
4. It need not be witnessed; undue influence, and pressure and the authenticity of the
5. Insertions, cancellations, erasures, or alterations will is established and the only issue is whether or not the
in the holographic will must be authenticated by date February 1961 appearing on the will is a valid
the full signature of the testator; otherwise, the compliance with Article 810; probate of the wheel should
alterations, erasures, cancellations are void; but be allowed under the principle of substantial compliance.
not the will itself. (Art. 814)
6. If there are dispositions written below the Q: What is the consequence of an incomplete date?
signature of the testator they must be dated and A: Incomplete date is sufficient if it does not create a
signed in order to be valid. (Art. 812); and controversy. If it will create a controversy then a complete
7. When there are dispositions that are signed but date is necessary. Hence, if an incomplete date will not
not dated but the last disposition has a signature create a controversy as to the applicable law or age and
and a date such date validates the dispositions sanity of the testator in determining testamentary capacity
preceding it. (Art. 813) then it would be deemed sufficient.

 In the probate of a holographic will, if it is not Article 811. In the probate of a holographic will, it shall be
contested, only the testimony of one witness who necessary that at least one witness who knows the
knows the handwriting and signature of the handwriting and signature of the testator explicitly declare
testator is needed. If the will is contested, at least that the will and the signature are in the handwriting of the
three of such witnesses are required and in the testator. If the will is contested, at least three of such
absence of said witnesses expert testimony may witnesses shall be required.
be presented. In the absence of any competent witness referred to in the
 In Gan vs. Yap, the Supreme Court held, that the preceding paragraph, and if the court deem it necessary,
holographic will was not presented at probate expert testimony may be resorted to. 
and therefore held that a holographic will may not
be probated without presenting the document in Grounds for opposing the will during the probate:
evidence since the law regards the document 1. When the will is not in the testator's handwriting;
itself as material proof of authenticity. Obviously, 2. The lack of testamentary capacity of the testator;
when the will itself is not submitted the means of and
opposition and of assessing the evidence are not 3. The failure to comply with legal formalities
available.
Page | 15
WILLS AND SUCCESSION
General Rule: These are the only issues that the probate of the testator himself. It must be written by the
court should address during the probate proper. This is the testator himself;
formalities in the execution of the will. After the probate 2. Insert additional matters or cancel dispositions
order is issued the substantive issues are to be considered. provided that the same are written and signed by
the testator himself without need of a date; and
Substantive issues are the following: 3. Execute a codicil which may either be a notarial
1. Preterition will or a holographic will
2. Impairment of legitime; or
3. Disqualification Article 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the
 In the probate of a holographic will, the only last disposition has a signature and a date, such date
issue that can arise in the probate of the will, is validates the dispositions preceding it, whatever be the
the genuineness of the handwriting of the time of prior dispositions.
testator. The one-witness rule shall be applied in
case of uncontested wills and the three-witness  This refers to a situation where there are several
rule in case of contested wills expert testimony testamentary dispositions in a will made by the
may be resorted to in either case upon the testator presumably on different dates which are
court's discretion. signed but not dated. Should the last
testamentary disposition be dated and signed,
Note: In a notarial will, in order to address each and every then all the dispositions above it would be
requirement of Article 805, competent testimony over a validated by this provision.
number of things is required because some things do not
take place during the execution of the will and others which Article 814. In case of any insertion, cancellation, erasure
take place during the execution of the will are not indicated or alteration in a holographic will, the testator must
or necessarily indicated in the will itself and therefore authenticate the same by his full signature.
testimonial evidence depends heavily on the subscribing
witnesses and the notary public. However, in a holographic  When it comes to amendment by cancellation,
will, the only issue which arises in the probate of the will is addition, erasure, or alteration done in a
the genuineness of the handwriting since the only holographic will, they can be done provided that
requirement in such a will is that it is entirely written dated they are authenticated by the full signature of the
and signed by the testator himself. testator himself. The date is not required
because it is presumed that the alteration to the
Article 812. In holographic wills, the dispositions of the will was made at the time or date of its execution.
testator written below his signature must be dated and Any cancellation, addition, erasure, or alteration
signed by him in order to make them valid as testamentary must be authenticated by the testator. The failure
dispositions. to authenticate the same, would result in the
nullity of the cancellation, addition, erasure, or
 Article 812 permits addition of new dispositions alteration as if it was not written at all. The will
through the execution of another will. These would stand as it were prior to the cancellation,
dispositions are independent of each other such addition, erasure, or alteration. However, if the
that the nullity of the second does not cause the cancellation although not authenticated
nullity of the first and the nullity of the first does nevertheless results in the revocation of the will
not cause the nullity of the second. The second then although not valid as a cancellation, it is
disposition is supposed to be an addendum but valid as a revocation.
being dated and signed stands also as a will on
its own. Effects of the cancellation, addition, erasure, or
 Additional dispositions however in a notarial will, cancellation on the validity of the will:
if found below the signature of the testator will 1. If such were made by the hand of the testator
make the whole will void because under Article himself and he has authenticated the same, it
805, the signature of the testator must be found alters the will accordingly without affecting the
at the end of the will. Should there be new will's validity;
dispositions in a notarial will, the same can only 2. If such were made by the hand of the testator
be introduced through a codicil. himself but was not authenticated by him, then
they would be deemed as if not written at all and
Ways to amend a holographic will: the will remains valid as before;
1. Add dispositions below the signature of the will 3. If such were made by the testator but not
provided that said dispositions are also dated handwritten as when they were typewritten
and signed and everything is in the handwriting whether or not authenticated by the testator, the
entire will is nullified because it is no longer
Page | 16
WILLS AND SUCCESSION
entirely written by the hand of the testator  Reciprocal or mutual wills provide that the
himself; survivor of the testators will succeed to all or
4. If such were made by a stranger and that testator some of the properties of each decedent.
has authenticated the same, then the entire will is  Reciprocal or mutual wills are valid; but if made
nullified because it is no longer entirely written by in one instrument they are void because this is
the hand of the testator; considered as a joint will and it is in violation of
5. If such were made by a stranger but was not Article 818 of the Civil Code.
authenticated by the testator, then such changes  Joint wills whether reciprocal or not are void.
would be deemed as if not written at all and the The reason here are the following:
will remains valid as it was before. 1. To allow as much as possible the secrecy a
will being a purely personal act so the law
 Any cancellation, insertion, erasur,e or alteration prohibits joint wills;
which was not authenticated by the testator, does 2. The law also prohibits joint wills in order to
not affect his will. On the other hand, if it is done prevent undue influence by the more
by a stranger and that testator authenticates the aggressive testator on the other testator;
same, the will is void since it is no longer entirely 3. In case of death of the testators at different
in the handwriting of the testator. times, probate would be harder if we
allowed joint wills;
Article 815. When a Filipino is in a foreign country, he is 4. Also joint wills militates against the right of
authorized to make a will in any of the forms established by the testatrix or the right of the testator to
the law of the country in which he may be. Such will may revoke his will or her will at any time such as
be probated in the Philippines. by revocation by tearing or burning; and
5. In case that the testators are husband and
Article 816. The will of an alien who is abroad produces wife, one of them may be tempted to kill the
effect in the Philippines if made with the formalities other.
prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in Note: A joint will is void even if executed by a Filipino in a
conformity with those which this Code prescribes. foreign country where such will is allowed.

Article 817. A will made in the Philippines by a citizen or Q: What about if the joint will was executed by foreigners?
subject of another country, which is executed in A: If it is executed abroad and valid in the country of
accordance with the law of the country of which he is a execution we should consider it also as valid here pursuant
citizen or subject, and which might be proved and allowed to the rule of lex loci celebrationis. If it is executed in the
by the law of his own country, shall have the same effect Philippines, however, it is void because it is against our
as if executed according to the laws of the Philippines. public policy

Wills that are executed abroad: Witnesses to Wills

1. If it is executed by a Filipino, it can be in any form
established in the country where he may be at Article 820. Any person of sound mind and of the age of
the time of the execution. (Art. 815) eighteen years or more, and not blind, deaf or dumb, and
2. If it is executed by an alien, the will may be able to read and write, may be a witness to the execution
executed in accordance with of a will mentioned in article 805 of this Code. 
a. lex domicile (Art. 816) or lex nationali or
philippine law or lex loci celebrationes (Art. Article 821. The following are disqualified from being
17, CC) witnesses to a will:
(1) Any person not domiciled in the Philippines;
Article 818. Two or more persons cannot make a will (2) Those who have been convicted of falsification of a
jointly, or in the same instrument, either for their reciprocal document, perjury or false testimony. 
benefit or for the benefit of a third person.
 The reason for the domicile requirement of a
Article 819. Wills, prohibited by the preceding article, witness is for purposes of expediency. A will
executed by Filipinos in a foreign country shall not be valid executed in the Philippines must have witnesses
in the Philippines, even though authorized by the laws of domiciled in the Philippines. This is to expedite
the country where they may have been executed. the service of summons where the witness is
called to testify in probate and it is also for
 A joint will is a will executed by two or more administrative convenience as it gives assurance
persons in the same instrument either for the that the witness will be in the Philippines during
reciprocal benefit or for the benefit of a third the probate
person
Page | 17
WILLS AND SUCCESSION
 The reason for the disqualification against those disinterested witnesses even the witness
convicted of falsification is because the credibility disqualified under Article 823 will be able to
here of the witness is in issue. receive that portion given to him by the will as the
requirement of the law has been complied with.
Article 822. If the witnesses attesting the execution of a will Such witness will inherit but will be prevented
are competent at the time of attesting, their becoming from testifying considering that his perceived
subsequently incompetent shall not prevent the allowance perjured testimony
of the will.
 With respect to the divisee or legatee of to the
Article 823. If a person attests the execution of a will, to attesting witnesses, Article 823 provides the
whom or to whose spouse, or parent, or child, a devise or following rules:
legacy is given by such will, such devise or legacy shall, so 1. The devisee or legatee is void but the will is
far only as concerns such person, or spouse, or parent, or still valid;
child of such person, or any one claiming under such 2. If given to the spouse, parent, or child of an
person or spouse, or parent, or child, be void, unless there attesting witness the legacy or device is also
are three other competent witnesses to such will. However, void but the attesting witness can still act as
such person so attesting shall be admitted as a witness as a witness if there are three other competent
if such devise or legacy had not been made or given. witnesses to the will;
3. If the witness or his spouse, parent, or child
Persons disqualified to inherit: is a compulsory heir he will not lose his
1. Any person who is a witness to a will and at the legitime.
same time an heir, devisee, or legatee in the
same will; Q: Can a compulsory heir be an attesting witness?
2. A spouse of the witness unless there is already A: Yes, but any property given to him out of the free portion
legal separation between them; is considered as void.
3. Parent of the witness;
4. Child of the witness; Q: Can a notary who acknowledged the will be a witness?
5. Any person claiming under the witness, his A: No, because he cannot acknowledge something before
spouse, parent, or child. himself.

Reason for the disqualification as to the witness, his Article 824. A mere charge on the estate of the testator for
spouse parent, or child is that: A witness proves or attests the payment of debts due at the time of the testator's death
to the due execution of a will and under this provision of the does not prevent his creditors from being competent
Civil Code, if such witness or their above mentioned witnesses to his will.
relatives will testify during probate, they will consciously or
unconsciously give false testimony in order to protect his or  A charge referred to is a death of the testator
her interests; otherwise he will not be able to inherit. which will be paid even without a provision in the
will during the liquidation of the estate.
This kinds of witnesses under Article 823 are called loaded
witnesses; for his testimony is not something that one
could rely upon. CODICILS AND INCORPORATION BY REFERENCE

 To become a witness, and a devisee or legacy at Article 825. A codicil is supplement or addition to a will,
the same time, is an open invitation to commit made after the execution of a will and annexed to be taken
perjury. as a part thereof, by which disposition made in the original
 As the person's claiming under the witness, his will is explained, added to, or altered.
spouse, or child a third person who is to receive
a benefit from the witness heir, the spouse, A codicil is a small will, it is a supplement or addition to a
parent, or child of such witness heir, is also will, made after the execution of a will and annexed to be
disqualified for such third person will also or may taken as part thereof, by which any disposition made in the
also give a favorable testimony as he will be original will may be explained, or added to or altered.
indirectly benefited.
It is always made after the original will.
Exception to these disqualifications:
1. If the above mentioned witnesses are A codicil is a supplement or addition to a will, it must be
compulsory heirs but only with respect to their made after the execution of a will, it is annexed and taken
legitimes; as part of that will and it explains, adds or alters the original
2. If there is a substitute witness as when there is a will. It must be executed following the formalities of a will.
fourth witness as long as there are three other
Page | 18
WILLS AND SUCCESSION
will be done by parole evidence or evidence
A codicil may be a notarial will or a holographic will. alluende. This second identification is necessary
- A notarial will may be revoked by a notarial or during probate to substantiate the authenticity of
holographic codicil. the document referred to in the will.
- A holographic will may be revoked by a  It is also necessary that the stator and the
holographic or a notarial codicil. witnesses must sign each and every page of the
paper or document, except voluminous books of
Note: A valid will cannot be revoked by an invalid codicil, account or inventories, but the number of pages
whether expressly or impliedly. must be stated. The purpose of this is to prevent
any insertion or deletion of pages.
Article 826. In order that a codicil may be effective, it shall
be executed as in the case of a will. Revocation of Wills and Testamentary Dispositions
Article 828. A will may be revoked by the testator at any
Article 827. If a will, executed as required by this Code, time before his death. Any waiver or restriction of this right
incorporates into itself by reference any document or is void.
paper, such document or paper shall not be considered a
part of the will unless the following requisites are present: A revocation is an act of the mind terminating the potential
(1) The document or paper referred to in the will capacity of the will to operate as of the death of the testator
must be in existence at the time of the execution manifested by some outward and visible act or sign
of the will; symbolic thereof. It is an act to annul an existing will, in
(2) The will must clearly describe and identify the whole or in part.
same, stating among other things the number of
pages thereof; Wills by their very nature are ambulatory and inoperative till
(3) It must be identified by clear and satisfactory the death of the testator. The instrument does not pass a
proof as the document or paper referred to present interest or right in the property, and such right or
therein; and interest does not take effect until the death of the testator.
(4) It must be signed by the testator and the Prior to the death of the testator, it is entirely inoperative
witnesses on each and every page, except in and is ineffective for any purpose.
case of voluminous books of account or
inventories. This is the reason a will is entirely revocable and may be
revoked at any time by the testator before he dies and with
Article 827 refers to incorporation by reference. or without cause.
A will validly executed, incorporates only by reference,
meaning - without copying the whole thing, certain Article 829. A revocation done outside the Philippines, by a
documents or papers, especially inventories and books of person who does not have his domicile in this country, is
account to save time and energy, this is what is meant by valid when it is done according to the law of the place
incorporation by reference. where the will was made, or according to the law of the
place in which the testator had his domicile at the time; and
Incorporation by reference is done merely by mentioning in if the revocation takes place in this country, when it is in
the will that a certain document is referred to thereto, accordance with the provisions of this Code.
though not necessarily attached to the will itself.
If the revocation is done outside the Philippines, by one
DISCUSSION: domiciled in the Philippines, the applicable law for
 The document or paper referred to must be in purposes of revocation is the law of the place where the
existence at the time of the execution of the will. will was made, or the law of the place where the testator
Future papers, therefore, cannot be incorporated was domiciled at the time the will was made, or the
by reference. A statement to this effect need not Philippine law.
be stated in the will. If the revocation is done by one domiciled in the
 The will must clearly describe and identify the Philippines, the applicable law is the Philippine law, since
document or paper especially the number of his domicile is in the Philippines, or follow the general rule
pages thereof, this requires a clear identification of lex loci celebrationis of the revocation pursuant to Article
which must be stated in the will, aside from the 17 of the Civil Code.
number of pages which has to be stated, it is If revocation is done in the Philippines, it is the Philippine
best to state the description of the document law that will govern the revocation, whether the testator is
itself by indicating its title or its nature. domiciled in the Philippines or not.
 The document or paper referred to must be
SUMMARY:
identified by clear and satisfactory proof, as
Conflict of Rules for Revocation of Wills
being the document referred to in the will. This
1. Revocation OUTSIDE the Philippines
Page | 19
WILLS AND SUCCESSION
a) If not domiciled in the Philippines Code with respect to the decree of legal
i. Follow law of the place where will separation provides that, where there is a decree
was MADE of legal separation, it shall disqualify the
ii. Follow law of the place where offending spouse from inheriting from the
testator was DOMICILED at the innocent spouse by intestate or testate
time succession; Article 43 paragraph 5 of the Family
b) If domiciled in the Philippines Code states that, where the termination of the
i. Follow law of the Philippines subsequent marriage shall disqualify the spouse
ii. Follow the general rule of lex loci who contracted the subsequent marriage in bad
celebrationis faith and it will disqualify him to inherit from the
innocent spouse by testamentary and intestate
2. Revocation is IN the Philippines – follow the succession; Article 44 of the Family Code, in
PHILIPPINE LAW cases where both spouses of the subsequent
marriage acted in bad faith, all donations made
Article 830. No will shall be revoked except in the following by one in favor of the other are revoked by
cases: operation of law, furthermore, Article 50 of the
(1) By implication of law; or Family Code reiterates the disqualification to
(2) By some will, codicil, or other writing executed as inherit in cases of marriages which are declared
provided in case of wills; or void ab initio or annulled by final judgment under
(3) By burning, tearing, cancelling, or obliterating the will Article 40 and Article 45 of the Family Code;
with the intention of revoking it, by the testator himself, or 3. When an heir, legacy or device commits an act of
by some other person in his presence, and by his express unworthiness, under Article 1032 regarding the
direction. If burned, torn, cancelled, or obliterated by some incapacity of individuals to succeed by reason of
other person, without the express direction of the testator, unworthiness, such as abandonment or
the will may still be established, and the estate distributed corruption of children, conviction of an attempt
in accordance therewith, if its contents, and due execution, against the life of the testator, false accusation of
and the fact of its unauthorized destruction, cancellation, or a crime for which the law prescribed
obliteration are established according to the Rules of Court. imprisonment for six years or more, those
persons who should cause the testator to make a
There are three (3) ways of revocation: will or to change one already made through
1. by implication or operation of law, which may be fraud, violence, intimidation, or undue influence,
a total or a partial revocation; and those persons who shall forge a supposed
2. by an overt act, the burning, tearing, cancelling, will of the decedent;
or obliterating; and 4. When a credit given as a legacy is judicially
3. by revoking will or codicil, which may be total or demanded by the testator, this is Article 936 of
partial, expressed or implied , this is the the Civil Code in relation to Article 935,
execution of a document with the formalities of a concerning legacies of remission against third
will. persons, the legacy of credit or remission of a
death shall lapse if the testator having made it,
DISCUSSION: should bring an action against the debtor for the
By implication or operation of law. payment of his debt, even if such payments
When revocation by implication or operation of law takes should not have been affected at the time of his
place only specific provisions of the will will be revoked by death;
implication of law. This takes place when after the 5. When one or some of the compulsory heirs are
execution of a will, certain acts or events take place, preterited or omitted in the will, the institution of
rendering void the will, totally or partially. This presupposes heirs is void, but the legacies and devices remain
a change of mind on the part of the testator. valid as long as the legitime is not impaired,
Article 854 of the Civil Code.
The instances where there is revocation by implication or
by operation of law are the following: By an overt act.
1. The nullity of legacies and devices by The overt act being the burning, tearing, cancelling, or
transformation alienation or loss of the subject obliterating.
matter of the legacy or device, such as when the
testator sells or donates the thing given by way of What is important is the physical destruction of the
legacy or device, Article 957 of the Civil Code; document, which can be partial or total, it may be done by
2. In cases of legal separation, annulment of the testator or another upon his direction. The subjective
marriage, and declaration of nullity of marriage phase of the act must be completed. The act of the
with respect to the property given to the guilty revocation must be complete in the mind of the testator by
spouse, Article 63 paragraph 4 of the Family presenting proof of the circumstances to show that the
Page | 20
WILLS AND SUCCESSION
testator already believed that the will was already revoked executed with the formalities required for the making of the
by his overt acts, even though his acts did not result to the will. The subsequent will must either contain a clause
intended revocation. There must be testamentary capacity expressly revoking the previous one or some dispositions
to make a will at the time of the revocation and this is to or provisions which are irreconcilably inconsistent with the
ensure the intelligence of the act of revocation. Lastly, previous will, such that, the dispositions cannot be effective
there must be intent to revoke, or what we call animus if taken together.
revocandi.
Where there is an express revocation?
Intent to revoke plus overt acts are necessary for the When the revoking document or will or codicil has an
revocation. express provision, the revocatory clause which revokes the
previous one, then this is what we call an express
Intent alone is not enough, any of the overt acts provided revocation of the will.
under the law must appear to have been done.
Express revocation may be made conditional upon a future
Examples where there were no revocation: event, as when one who has made two wills executed
 If the testator throws his will into a stove with the another instrument in which he provides that if he should
intent of revoking it so that it would be burned live three months one should be his will and if he died
when someone lights the stove, but somebody before that time the other will be his will.
removed the will from the stove before it was
lighted - there is no revocation because there Article 832. A revocation made in a subsequent will shall
was never the overt act of burning. take effect, even if the new will should become inoperative
 If a will is burned accidentally - there is no by reason of the incapacity of the heirs, devisees or
revocation in view of the lack of intention to legatees designated therein, or by their renunciation.
revoke.
In order for there to be a revocation, the revoking will or
Note: The tearing of the will, even if slightly or only into two codicil must be valid as to the form, otherwise, the
pieces, is enough revocation as long as the subjective revocation is void.
phase has been completed.
The subsequent will shall only revoke the old will, if it is
Obliteration is rendering the words eligible. admitted to probate. The validity of the latter will is a
condition for the revocation of an old one. The revocation
Cancelling is the drawing of a line across the text, but the of a prior will is valid even if the revoking will is inoperative
words remain legible. The cancellation of the signature is or cannot be carried out because of the incapacity of or
sufficient revocation, but cancellation or obliteration of non- renunciation of some of the beneficiaries they're in because
vital parts leaves the other parts of the will in force. of the clear intent of the testator to revoke which is
contained in a valid will. The validity of the new will
Article 831. Subsequent wills which do not revoke the prevents the operation of the old will even if the new
previous ones in an express manner, annul only such disposition cannot be carried out.
dispositions in the prior wills as are inconsistent with or
contrary to those contained in the later wills. Article 833. A revocation of a will based on a false cause or
an illegal cause is null and void.
This is what we call implied revocation by a subsequent The will is void because the testator's consent is vitiated by
will. mistake, had he known the truth there would have been no
revocation. However, this article refers to revocation by
If the subsequent will does not revoke the first will in an subsequent will or codicil and overt acts.
express manner, only those dispositions in the first will that This is also what we call the doctrine of conditional
are inconsistent or contrary to the second will are annulled, revocation or dependent relative revocation, this refers to a
the later provisions in the second will is the one that is revocation that is conditional, the revocation takes place
given effect. The changes in the later document, indicate a only if the condition is fulfilled.
change of mind of the testator, which must be given effect. Example: Let us say that the testator makes a will, we will
call it will #1. After one week, he executes another will,
The reason for allowing implied revocation is that the law which we will call will #2, then he tore will #1 to pieces.
does not favor implied revocation and efforts to reconcile Upon his death it was discovered that his will #2 had not
must be made, so unless it can be proven in the manner been validly executed. Is will #1 revoked or should it be
provided in Article 831 that there was intent to revoke the given effect?
earlier will there would be no revocation.
In one case it was held that will #1 was revoked because
In order that a former will may be revoked by a subsequent the tearing was accompanied by animus revocandi (Diego
will, it is necessary that the later will should be valid and v. De Leon, 43 SCRA 413).
Page | 21
WILLS AND SUCCESSION
In a later case, Demolo v. Demolo, it was ruled that there Article 836. The execution of a codicil referring to a
was no revocation, either by subsequent will or by overt act previous will has the effect of republishing the will as
of tearing, because the tearing was prompted by the false modified by the codicil.
belief that the second will was validly executed, this is This refers to republication.
pursuant to Article 833 which states that revocation of a will
based on a false or illegal cause is null and void or under Article 837. If after making a will, the testator makes a
the doctrine of dependent relative revocation. The second will expressly revoking the first, the revocation of
revocation by destruction or overt act is good only if the the second will does not revive the first will, which can be
condition is fulfilled, namely, that the revoking will is valid. revived only by another will or codicil.
Hence, the condition was not fulfilled; therefore, the
revocation by overt act did not materialize. If the testator wishes to republish a will that is void as to
form, the only way to republish it is to execute a
Article 834. The recognition of an illegitimate child does not subsequent will and reproduce it. The testator need only
lose its legal effect, even though the will wherein it was execute a subsequent will or codicil referring to the
made should be revoked. previous will, if the testator wishes to republish a will that is
Reason: Recognition is not a testamentary disposition, either void for reason other than a formal defect or
thus, the recognized child can demand his rights even if the previously revoked.
will is revoked.
The distinction between republication and revival are as
REPUBLICATION AND REVIVAL OF WILLS follows:
 Republication takes place by an act of the
Article 835. The testator cannot republish, without testator; revival, on the other hand, takes place
reproducing in a subsequent will, the dispositions by operation of law.
contained in a previous one which is void as to its form.  Republication corrects extrinsic and intrinsic
defects; while revival restores a revoked will.
Republication is a method by which the testator restores to  Republication can apply to wills which were
validity as his will an instrument formerly executed by him expressly and impliedly revoked; revival can only
as his will which was originally invalid for want of proper apply to impliedly revoked wills.
execution. It is also means, where the testator updates his
will to cover properties acquired after the execution of the Requisites and limitations of republication:
first will. It is the act of the testator of re-establishing a will If a will is void as to form, for instance there were only two
which is void as to form, or which had been revoked. attesting witnesses or there was no attestation clause in
Revival is the restoration of validity to a previously revoked the notarial will, the new will must reproduce or copy all the
will by operation of law. provisions of the first will, but the effect of the will is the
date of execution of the new will and not of the old will.
The two types of republication are:
1. Express republication or re-execution; and If a will is void as to form, it cannot be republished by mere
- Express republication or re-execution is the reference in a codicil. There must be a new will or codicil
copying of the original provisions of a will. reproducing all the provisions of the first void will, but if the
2. Implied republication or republication by first will was valid but had later been revoked, a codicil
reference. merely referring to the revoked will revive said void will -
- Implied republication or republication by there is no need to reproduce the provisions of the revoked
reference is the execution of a codicil referring to will. The will is, however, effective as of the date of the
a previous will. codicil.

A will which is void as to form can only be republished If a will is void due to fraud or undue influence, the
through re-execution, this means, the whole document execution of a codicil referring to the previous void will is
must be re-written. On the other hand, a will which is valid sufficient republication - there is no need to reproduce its
as to form but void us to other aspects may be pre- provisions.
published by republication through reference, which
means, the execution of a codicil which contains a
sufficient reference to the previous will.
With respect to revival:
The republished will shall speak as of date of republication If the second will expressly revoked the first will, revocation
and shall be governed by the formalities required by law at of the second will does not revive the first will.
the time of republication. If the second will only impliedly revoke the first will,
revocation of the second will revives the first will.
If the second will revoking the first will is invalid, the first will
is still effective because revocation did not take place.
Page | 22
WILLS AND SUCCESSION
instituted, there must still be a judicial order of adjudication.
Another case of revival is while the preterition of a Even if a will has already been probated, if later on a
compulsory heir annuls the institution of heirs, if the omitted subsequent will is discovered, the latter may still be
heir dies ahead of the testator, the institution of heirs is presented for probate, as long as two wills can be
revived without prejudice to the right of representation reconciled.
Article 854 of the Civil Code.
Two Kinds of Probate

ALLOWANCE AND DISALLOWANCE OF WILLS 1. Ante-Mortem probate; and

Art. 838. No will shall pass either real or personal property Probate during the testator’s lifetime. After a will has been
unless it is proved and allowed in accordance with the probated during the lifetime of a testator, it does not
Rules of Court. necessarily mean that he cannot alter or revoke the same
before his death. Should he make a new will, it would also
The testator himself may, during his lifetime, petition the be allowable on his petition, and if he should die before he
court having jurisdiction for the allowance of his will. In had a chance to present such petition, the ordinary probate
such case, the pertinent provisions of the Rules of Court for proceedings after the testator’s death would be in order.
the allowance of wills after the testator's a death shall
govern. The reason for allowing an ante-mortem probate is to
prevent or minimize fraud, intimidation, or undue influence
The Supreme Court shall formulate such additional Rules in the execution of the will. Because here, the courts will
of Court as may be necessary for the allowance of wills on have an easier time determining the mental condition of
petition of the testator. alive testator than a dead one, and it is also to enable the
Subject to the right of appeal, the allowance of the will, testator to correct at once, any failure to comply with legal
either during the lifetime of the testator or after his death, requirements.
shall be conclusive as to its due execution.
The testator however, can still revoke his will although
Probate already probated during his lifetime.
 The act of proving before a competent court the
due execution of a will by a person with If probated during the lifetime of the testator, the only
testamentary capacity and the approval of the will question left after that the testator's death would be the
by said court. intrinsic validity of the dispositions. The questions to be
 Before the dispositions in the will can be given determined by the probate court are the identity of the will,
effect, it must be allowed first by the court. This is due execution and testamentary capacity. With respect to
the necessity of probate for Article 838 provides the question of identity, the court will determine whether
that “no will shall pass, real or personal property, the instrument offered for probate is the last will and
unless proved and allowed in accordance with testament of the decedent. With respect to the question of
the rules of court”. If allowed, the will shall be due execution, the probate court will determine whether the
conclusive as to its due execution and the will was executed according to the formalities required by
testamentary capacity of the testator. law, and with respect to the question of testamentary
 Probate is one thing; the validity of the capacity the court will determine whether the testator had
testamentary provisions is another. The first testamentary capacity at the time of the execution of the
decides the execution of the document and the will.
testamentary capacity of the testator; the second
deals with descent and distribution. 2. Post-mortem probate

NOTE: Probate is an adjudication that the last will and Two stages in the Probate Proceeding (Post Mortem
testament of a person was executed with all the formalities Probate)
required by law. It does not pass upon the validity of the 1. The probate proper.
provisions of the will. The disallowance of a will being  This deals with EXTRINSINCT
essentially procedural in character, the law of the forum will VALIDITY
govern the procedural matters. However, the court will look  The court determines the existence of
into the law of the foreign state where the suit was made as testamentary capacity, due execution,
to whether the extrinsic requirements in the execution of and the identity of the instrument with
the will have been complied with. that of the testator's will.
 Testamentary capacity is proven if it is
NOTE: Probate does not deal with the intrinsic validity of shown that at the time of the execution
the testamentary provisions. Even if only one heir has been the testator was at least 18 years old
and was of sound mind.
Page | 23
WILLS AND SUCCESSION
 Due execution is determined by the will in accordance with the formalities prescribed by
showing compliance with Article 805 to law.
808 for notarial wills and 810 of the
Civil Code for holographic wills. As a rule, the question of ownership is an extraneous
 If the court finds that there was matter which the probate court cannot resolve with finality.
testamentary capacity and due Thus, for the purpose of determining whether a certain
execution and establishes the identity property should or should not be included in the inventory
of the instrument, the court shall then of estate properties, the probate court may pass upon the
issue an order allowing the will. title thereto but such determination is provisional, not
conclusive and is subject to the final decision of a separate
2. Distribution action to resolve title.
 Inquiry into the INTRINSINCT
VALIDITY The probate court has no jurisdiction over the question of
 Where for the purpose of judicial ownership because as a general rule, it can only pass upon
orderliness, the will must be enforced the questions provisionally. The probate court cannot
in accordance with the provisions of the determine these questions with finality.
will so long as the will does not violate
the law. Especially in the provisions on Res judicata does not exist between an action for
legitime and the qualifications of the settlement of an intestate estate and an action for recovery
beneficiaries to succeed, it is at this of possession and ownership because of the different
stage where the court shall examine causes of action.
the intrinsic validity of the will.
Furthermore, the probate court only possesses limited
NOTE: An expressly revoked will is of course not jurisdiction.
admissible to probate. However, a revoked will may of
course be admitted to probate, if the subsequent will that The probate courts have limited jurisdiction. The main
had allegedly revoked it, is proved to be void and is, purpose of the probate proceedings is the determination of
therefore, disallowed. three things; (1) the identity of the will as that of the
decedent; (2) the testamentary capacity of the decedent;
A probate proceeding is a kind of special proceeding. It is and (3) the compliance of the will itself with the formalities
in the nature of a proceeding in rem. The decree of probate and requirements prescribed by law.
is binding on all persons in interest whether they appear to
contest the probate or not. The admission of a will to Once these three things have been established, the
probate has all the effects of a judgment and is entitled to probate court will issue a probate order allowing the will
full faith and credit in other courts. into probate. After that, the probate court has limited
jurisdiction to determine what may and may not be included
The probate of a will is mandatory. In order to take effect, a in the inventory of the testator's estate. Thus, the issue of
will has to be probated or allowed in a proper testamentary ownership of properties is determined provisionally by the
proceeding. The decree of probate is conclusive as to the probate court in order to give effect to the will. The parties
formal validity and due execution of the will. This means may still file an action for reconveyance in order to settle
that the testator was of sound mind at the time of execution the issue of ownership
and was not acting under fraud, duress or undue influence.
Art. 839. The will shall be disallowed in any of the following
It is a proceeding in rem, binding on the whole world. cases:
1. If the formalities required by law have not been
Res judicata applies if there has been no appeal to the complied with;
decree of probate and in the absence of an appeal 2. If the testator was insane, or otherwise mentally
confirms the succession of the testamentary heirs. incapable of making a will, at the time of its
execution;
It was held that where no appeal has been taken and the 3. If it was executed through force or under duress,
order becomes final and binding upon the whole world, or the influence of fear, or threats;
upon such finality the case can no longer be opened on a 4. If it was procured by undue and improper
petition for annulment of the will. pressure and influence, on the part of the
beneficiary or of some other person;
It was also held that in a special proceeding for the probate 5. If the signature of the testator was procured by
of a will, the issue is restricted to the extrinsic validity of the fraud;
will whether the stator being of sound mind freely executed 6. If the testator acted by mistake or did not intend
that the instrument he signed should be his will at
the time of affixing his signature thereto.
Page | 24
WILLS AND SUCCESSION
execution of the will is complied with; (3) there is
The grounds for disallowance of wills under Article 839 are no vice of consent; and (4) the will has been duly
exclusive. probated.
No other grounds can serve to disallow a will this is the  The will must also be intrinsically valid. Meaning:
ruling of the Supreme Court in Pecson versus Coronel. (1) that there is no violation of any provision on
substantive law; (2) there is no impairment of
While the presence of force, duress, fear or threat in the legitime; (3) the heirs must be qualified to inherit
execution of a contract renders it merely voidable which from the testator; and (4) that there must be no
then is capable of ratification, their presence in a will preterition.
renders the will void.  There should be no vice of consent. If the
institution is attended by vice of consent, the
There is undue influence when the testator does something institution is void. The institution which refers to
because of fear or desire for peace or from any other the naming of the person and the specification of
feeling that he is unable to resist. the share must be made personally by the
testator because the making of a will is a
But he who alleges undue influence must prove it. There is personal act and the instituted heir must be
no undue influence if the testator gives the whole free identifiable.
portion to an illegitimate child or a mistress. Mere affection,  Note: Only those persons entitled by law to
although illegitimate, is not undue influence as long as the control the disposition of their estate, totally or
giving was voluntary. partially, and whose estate contains a free
disposable portion can institute heirs.
The ruling of the Supreme Court in Coso versus Fernandez
however, note that a mistress is incapacitated to inherit on Article 841. A will shall be valid even though it should not
the ground of public policy and morality. contain an institution of an heir, or such institution should
not comprise the entire estate, and even though the person
Fraud and undue influence are mutually repugnant and so instituted should not accept the inheritance or should be
exclude each other such that their jointer as grounds for incapacitated to succeed.
opposing probate shows the absence of definite evidence In such cases the testamentary dispositions made in
against the validity of the will (Icasiano vs Icasisano) accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs.
The disallowance of a will should be distinguished from
revocation.
Ways for the distribution of the estate:
Revocation is a voluntary act of the testator. While this 1. It can be through the institution of heirs
allowance is given by judicial decree, revocation is with or  In an institution, the heir is entitled to a
without cause and may be partial or total; while in fractional part.
disallowance, it is always total except when the ground of  For instance, one-half or one-third or
fraud or influence affects only certain portions of the will. one-fourth of the entire estate or the
free disposal
2. It can also be done through the giving of legacies
INSTITUTION OF AN HEIR and devises
 The name devisee or legatee and the
Article 840. Institution of heir is an act by virtue of which a specific property should be named
testator designates in his will the person or persons who
are to succeed him in his property and transmissible rights  For purposes of the institution of heirs, the heirs
and obligations.  referred to here are voluntary heirs and cannot
affect the legitime. This is also applicable to
 Institution of heir is the process whereby the devisees and legatees and the institution of heirs
testator designates another person or persons exists only in testamentary succession.
who are to receive a fractional part of his estate.  Note: Even a conceived child can be instituted
 When a person is instituted to a fractional portion but subject to the provisions or requirements
of an estate, he is called an heir. If a person is to und;er articles 40 and 41 of the New Civil code.
receive a specific property comprising the estate  The heirs, legatees and devisees must be certain
he is called either a legatee or devisee. or are ascertainable. there must be no preterition
 In order for there to be a valid institution of an except that the devisees and legatees are valid
heir, the will must be extrinsically valid. Meaning: as long as the legitime is not impaired.
(1) that the testator has testamentary capacity;  The institution must be effective: (1) there should
(2) the formalities provided for by law for the be no predeceased, reputation, or incapacity of
Page | 25
WILLS AND SUCCESSION
heirs; and (2) the will must be extrinsically and  In case the disposition where the heir cannot be
intrinsically valid. ascertain or is unknown the disposition shall be
 If the institution is partial, the remainder of the void.
estate goes to the intestate heirs.
Special Kinds of Institution:
Article 842. One who has no compulsory heirs may dispose 1. With respect to the poor in general (Art. 1030)
by will of all his estate or any part of it in favor of any 2. With respect to the relatives of the testator (Art.
person having capacity to succeed. 959)
One who has compulsory heirs may dispose of his estate 3. The testator says, “X and his children” they are
provided he does not contravene the provisions of this instituted simultaneously as provided in Article
Code with regard to the legitime of said heirs.  849 of the Civil Code.
4. If the testator says, “my brothers and sisters”,
Example: they shall share equally even if some of are full
The testator is survived by his spouse, a legitimate child, and some are half-blood. (Art. 848, CC)
and two illegitimate children.
Article 846. Heirs instituted without designation of shares
The legitime of the following are: shall inherit in equal parts. 
a. Surviving spouse - one-fourth;
b. Legitimate child - half the estate Three Principles in the Institution of Heirs:
c. Illegitimate children (each illegitimate child) – half
of the share of a legitimate child. 1. Equality;
Equality means heirs who are instituted without a
The estate is insufficient as the entire estate is legitime and designation of shares shall inherit in equal parts (Art. 846)
therefore there is no free portion to distribute.
2. Individuality; and
Article 843. The testator shall designate the heir by his Individuality means heirs collectively instituted are deemed
name and surname, and when there are two persons individually named unless a contrary intent is proven
having the same names, he shall indicate some
circumstance by which the instituted heir may be known. 3. Simultaneity
Even though the testator may have omitted the name of the Simultaneity means when several heirs are instituted they
heir, should he designate him in such manner that there are instituted simultaneously and not successively
can be no doubt as to who has been instituted, the
institution shall be valid.   If one has no compulsory heirs, he can give his
estate to any person qualified to inherit under
 For example: If the testator states, “my only him; however. He must respect restrictions
brother” and the testator has only one brother imposed by the law if he has compulsory heirs.
then the institution is valid The testator can give only the disposable portion
to strangers. The legitimes of compulsory heirs
Article 844. An error in the name, surname, or must be respected.
circumstances of the heir shall not vitiate the institution
when it is possible, in any other manner, to know with Article 847. When the testator institutes some heirs
certainty the person instituted. individually and others collectively as when he says, "I
If among persons having the same names and surnames, designate as my heirs A and B, and the children of C,"
there is a similarity of circumstances in such a way that, those collectively designated shall be considered as
even with the use of other proof, the person instituted individually instituted, unless it clearly appears that the
cannot be identified, none of them shall be an heir. intention of the testator was otherwise.

Article 845. Every disposition in favor of an unknown  This is the Rule of Individuality

person shall be void, unless by some event or
circumstance his identity becomes certain. However, a Article 848. If the testator should institute his brothers and
disposition in favor of a definite class or group of persons sisters, and he has some of full blood and others of half-
shall be valid.  blood, the inheritance shall be distributed equally unless a
different intention appears.
 The heirs must be identified because the making
of a will is purely personal and the matter of  The counterpart in intestate succession is Article
assigning the distributive shares is a personal act 1006 of the Civil Code. Under Article 1006, in
of the testator. intestate succession of the same heirs are of the
full blood and some are of the half-blood, the

Page | 26
WILLS AND SUCCESSION
latter shall only receive half of the share of the If the omitted compulsory heirs should die before the
former. testator, the institution shall be effectual, without prejudice
to the right of representation.
Article 849. When the testator calls to the succession a
person and his children they are all deemed to have been Article 854 refers to preterition.
instituted simultaneously and not successively. Its purpose is to preserve the legitime, since this provision
prevents the testator from denying the compulsory heir of
 This is the rule with respect to simultaneity in the his or her legitime by merely omitting his or her name in the
institution of heirs. will. While the testator may disinherit heir, he must state
the cause for disinheritance and comply with the
Article 850. The statement of a false cause for the requirements of disinheritance.
institution of an heir shall be considered as not written,
unless it appears from the will that the testator would not In order to apply Article 854, we have to know who are the
have made such institution if he had known the falsity of compulsory heirs?
such cause. The compulsory heirs are the legitimate children and
descendants, with respect to their legitimate parents and
 Under ordinary contracts, vice of consent would descendants. In default of the first, you have the legitimate
render the contract voidable; but in succession parents and ascendants, with respect to their legitimate
there are no voidable dispositions in a will they, children and descendants. The widow or the widower and
are either valid or invalid. Therefore the falsity of illegitimate children.
the cause does not affect the validity of the
disposition because the fact that the stator gave Who among the compulsory heirs can claim preterition?
something to the person such that the false Only compulsory heirs in the direct line, specifically
cause is not deemed as the consideration of that ascendants and descendants ad infinitum, and also the
institution; but merely the motive for that adopted children of the testator.
institution. The false cause is merely an incident Note: With respect to adopted children, the Supreme Court
to the bequest, however, if the disposition is held that adoption gives to the adopted person the same
explicit that the testator would not have instituted right and duties as if he were a legitimate child of the
the heir were it not for the false cause, then the adopted and makes the adopted person a legal heir of the
institution becomes invalid. adopter.

Article 851. If the testator has instituted only one heir, and For preterition to take place, there must be an omission of
the institution is limited to an aliquot part of the inheritance, one, some or all of the heirs in the will.
legal succession takes place with respect to the remainder  The omission must be that of a compulsory heir.
of the estate.  The compulsory heir omitted must be in the direct
The same rule applies if the testator has instituted several line.
heirs, each being limited to an aliquot part, and all the parts  The omitted compulsory heir must be living at the
do not cover the whole inheritance. time of the testator's death or must at least have
been conceived before the testator's death.
Article 852. If it was the intention of the testator that the  The omission must be complete and total in
instituted heirs should become sole heirs to the whole character.
estate, or the whole free portion, as the case may be, and
each of them has been instituted to an aliquot part of the Therefore, there is no omission if:
inheritance and their aliquot parts together do not cover the 1. A device or legacy has been given to the heir;
whole inheritance, or the whole free portion, each part shall 2. A donation inter vivos has been previously given
be increased proportionally. to the heir; or
3. Anything is left from the inheritance which the
Article 853. If each of the instituted heirs has been given an heir may get by way of intestacy.
aliquot part of the inheritance, and the parts together
exceed the whole inheritance, or the whole free portion, as Preterition should be distinguished from Disinheritance:
the case may be, each part shall be reduced proportionally.  Preterition is a deprivation of a compulsory heir
of his or her legitime and it is tacit. Disinheritance
Article 854. The preterition or omission of one, some, or all is the deprivation of the compulsory heir of his
of the compulsory heirs in the direct line, whether living at legitime and this is expressed.
the time of the execution of the will or born after the death  Preterition may be voluntary, but the law
of the testator, shall annul the institution of heir; but the presumes that it is involuntary. Disinheritance is
devises and legacies shall be valid insofar as they are not always voluntary.
inofficious.

Page | 27
WILLS AND SUCCESSION
 The law presumes that there has been merely an instituting him as heir without
oversight or mistake on the part of the testator in disinheriting him expressly nor
preterition, but in disinheritance it is done with a assigning to him some part of the
legal cause. properties.
 In preterition, the omitted heir gets not only his - One must also make a distinction
legitime but also his share in the free portion not between donation and support in order
disposed of by way of legacies or devices. In to determine if what was received was
disinheritance, if the disinheritance is unlawful, a donation or part of support. Support
the compulsory heir is merely restored to his or is not a gift, thus, if the compulsory heir
her legitimate. receives a certain sum during his
 The effects of preterition is that the institution of lifetime there is a need to determine
heir is annulled, devises and legacies shall whether such constitutes support or an
remain valid as long as they are not inofficious, advance of his legitime.
and if the omitted compulsory heir should die - In Nogid v. Nogid, the Supreme Court
before the testator the institution shall be held, preterition is the omission in that
effectual without prejudice to the right of the testator’s will of the force heirs or
representation. any one of them, either by not
mentioning them or although
NOTE: A spouse may not claim preterition because a mentioned they are neither instituted as
spouse is not a relative in the direct line. heirs nor are expressly disinherited.
Disinheritance is a testamentary
Preterition or omission results only when: disposition depriving any compulsory
- The person is not an heir, not a devise and heir of his share in the legitime for a
legacy. cause authorized by law.
Meaning, the compulsory heir in the direct line receives
nothing by will.  Preterition announced the institution of heirs in
- No donation inter vivos was given to total, unless in the will there are other
him or her which might be taken or testamentary dispositions in the form of devises
considered as an advance of his or her and legacies. In Disinheritance, however, the
legitime. If a compulsory heir in the nullity is limited to that portion of the estate of
direct line is already given such, then which the disinherited heirs have been illegally
he or she has already received a part deprived of.
of his or her legitime, such that, if he or
she were omitted his or her remedy What is the effect of preterition?
would be Article 906 which means he There is the annulment of the institution of heirs.
or she can demand for the completion In case there is preterition, the annulment of the institution
of his or her legitime. is mandatory in order that the portion of the estate may be
- There must not have been anything freed to satisfy the remaining unpaid legitimes.
which could be inherited by intestacy, - With respect to devises and legacies, devises
meaning, the whole estate was and legacies cannot be cancelled but can be
distributed by will. If any part of the reduced only if the estate is still insufficient to pay
legitime was paid to the compulsory the legitimes after the annulment of the
heir in any form, whether inter vivos or institution.
mortis causa, the compulsory heir - Instituted heirs do not enjoy any preference over
cannot claim total omission and avail of specific properties, unlike the legacies and
the benefits of preterition under this devises who enjoy a priority because the testator
provision. has indicated and stated the specific property
- If there was payment of presumptive which is to be given to them. Legacies and
legitime under the Family Code, one devises, however, can lost their legacies and
cannot avail of the benefit of preterition. devices if there is an impairment of the legitime
- In Aznar v. Duncan, the Supreme Court and the legacy or device is inofficious or when
held for preterition to apply, there must there is no free portion.
be a total omission of the heir so as to
deprive him or her of his or her legitime Article 855. The share of a child or descendant omitted in a
- Manresa defines preterition as the will must first be taken from the part of the estate not
omission of the heir in the will, either by disposed of by the will, if any; if that is not sufficient, so
not naming at all or while mentioning much as may be necessary must be taken proportionally
him as father, son, etc. by not from the shares of the other compulsory heirs.

Page | 28
WILLS AND SUCCESSION
This is different from preterition. It is to prevent the property from falling into the hands of
Article 855 refers to a child or descendant omitted in a will people not desired by the testator. It is also to prevent in
and mere omission does not necessarily imply preterition, intestate succession and also to allow the testator a greater
for a compulsory heir may have received or may still freedom to reward those more worthy of his affection and
receive something in some other concept other than a will. bounty than his intestate heirs.
Preterition applies when there is a complete omission of
the heir from the inheritance and not only by will. Under Article 856, it provides no one can transmit to
another more rights than what he himself has, whether the
With respect to preterition: heir is legal, voluntary or compulsory heir. His death before
1. There must be the total omission of one, some or the testator or decedent or his incapacity to succeed or his
all of the compulsory heirs in the direct line; reputation or renunciation of the inheritance prevents him
2. Omission may be intentional or unintentional on from acquiring any rights to transmit, therefore, he
the part of the testator; transmits nothing to his own heirs.
3. The compulsory heirs must be in the direct line,
these are the ascendants and descendants; However, the exception under Article 856 is where the right
4. The compulsory heirs must be living or conceived of representation exists. In case of representation, the heir
at the time of the institution; represented does not transmit his right to the heir
5. The institution of heir shall be annulled or voided, representing him, for the representative acquires directly
but legacies and devises remain if not inofficious. from the decedent or the testator the rights which the
If the omitted heir pre-deceased the testator, the person represented would have received had he inherited.
institution is effectual without prejudice the right Note: There is no representation among voluntary heirs.
of representation. There is no representation also in legacies and devises,
- Illegitimate ascendants or descendants however, there are exceptions and a person who
are included and also adopted children. renounces cannot be represented.
- If compulsory heir is given even a small
share, the remedy is merely to
complete only his legitimate because in SUBSTITUTION OF HEIRS
this case there is no preterition.
- If a child has been given a donation Art. 857. Substitution is the appointment of another heir so
inter vivos, there again is no preterition that he may enter into the inheritance in default of the heir
because the donation is considered as originally instituted. 
an advance of his legitime, so the child
is entitled only to the completion of his  The concept of substitution applies in cases if the
legitime. heir or heirs instituted should die before the
- The omission of the surviving spouse in testator or should not wish, or should be
the will is not considered preterition incapacitated to accept the inheritance.
because a surviving spouse is not a
compulsory heir in the direct line, in this Two kinds of Substitution
case just give the legitime of the 1. Simple substitution; and
spouse to which he or she is entitled to. 2. Fideicommissary substitution
- Note: The brother or sister omitted,
there is no preterition because they are Art. 858. Substitution of heirs may be:
not in the direct line. 1. Simple or common;
o takes place when the heir instituted:
Article 856. A voluntary heir who dies before the testator a) Predeceases the testator;
transmits nothing to his heirs. b) repudiates the inheritance;
A compulsory heir who dies before the testator, a person or
incapacitated to succeed, and one who renounces the c) is incapacitated to succeed
inheritance, shall transmit no right to his own heirs except
in cases expressly provided for in this Code. NOTE: Simple substitution without a statement of the
A voluntary heir who dies before the testator or who proves causes, to which it refers, shall comprise the 3 above
to be incapacitated transmits nothing to his heirs. This is mentioned situations unless the testator has provided
the case of predeceased and incapacity. otherwise.

The rules of substitution of heirs will take place. Under simple substitution you have vulgar,
Substitution of heirs, it is the appointment of another in brief/compendius, and reciprocal.
default of or after the heir originally instituted.

What is the purpose of substitution?

Page | 29
WILLS AND SUCCESSION
Vulgar substitution is that referred to under Article 4. Fideicommissary.
859 of the Civil Code
Art. 863. A fideicommissary substitution by virtue of
Art. 859. The testator may designate one or more which the fiduciary or first heir instituted is entrusted
persons to substitute the heir or heirs instituted in with the obligation to preserve and to transmit to a
case such heir or heirs should die before him, or second heir the whole or part of the inheritance, shall
should not wish, or should be incapacitated to accept be valid and shall take effect, provided such
the inheritance. substitution does not go beyond one degree from the
A simple substitution, without a statement of the cases heir originally instituted, and provided further, that the
to which it refers, shall comprise the three mentioned fiduciary or first heir and the second heir are living at
in the preceding paragraph, unless the testator has the time of the death of the testator. 
otherwise provided.
Fideicommissary substitution is that referred to under
2. Brief or compendious; Article 863. However, this is more a case of successive
o when two or more persons are institution where the supposed substitutes or principles
substituted for one; and one person for inherit at the same time.
two or more heirs.
The difference between simple substitution and
Art. 860. Two or more persons may be substituted for one; fideicommissary substitution
and one person for two or more heirs. (
SIMPLE FIDEICOMMISSARY
3. Reciprocal; or SUBSTITUTION SUBSTITUTION
o One heir is designated as a substitute Implies the It involves two principles
for an instituted heir while the latter is appointment of a both of them inherit at the
simultaneously instituted as a principal and a same time
substitute for the former substitute
o If heirs instituted in unequal shares
should be reciprocally substituted, the The grounds for Substitution to take place
substitute shall acquire the share of the 1. Renunciation;
heir who dies, renounces or is 2. Incapacity; and
incapacitated unless it clearly appears 3. Predecease
that the intention of the testator was
otherwise. However, in default of these three grounds substitution
o If there are more than one substitute may still apply when the testator expressly provides
they shall have the same share in the another ground or contingency in the will for substitution to
substitution as in the institution under apply should the stator express expressly stipulate a
reciprocal substitution. condition for the substitution the substitution shall then be
o The instituted heirs are also made the limited to the stipulated contingency. Absent any
substitute of each other stipulation, the law provides these grounds they are (1)
renunciation; (2) predeceases and (3) incapacity. The
GR: The substitute shall be subject to the same occurrence of any would give rise to substitution.
charges and conditions imposed upon the instituted
heir. NOTE: It should be imposed on the free portion and not on
the legitime. Fideicommissary substitution can never
XPNs: burden the legitime.
1. If the testator has expressly provided the
contrary; Art. 862. The substitute shall be subject to the same
2. If the charges or conditions are personally charges and conditions imposed upon the instituted heir,
applicable only to the heir instituted unless and testator has expressly provided the contrary, or
the charges or conditions are personally applicable only to
Art. 861. If heirs instituted in unequal shares should be the heir instituted. 
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 otherwise. If there are
more than one substitute, they shall have the same FIDEICOMMISSIONARY SUBSTITUTION
share in the substitution as in the institution.

Page | 30
WILLS AND SUCCESSION
Article 863. A fideicommissary substitution by virtue of be related within one degree of consanguinity
which the fiduciary or first heir instituted is entrusted with thus it limits this to the parents and their children.
the obligation to preserve and to transmit to a second heir
the whole or part of the inheritance, shall be valid and shall Qualifications for the fiduciary and fideicommissary:
take effect, provided such substitution does not go beyond Their qualifications are determined at the time of the death
one degree from the heir originally instituted, and provided of the testator.
further, that the fiduciary or first heir and the second heir 1. They must not predecease the testator. If not
are living at the time of the death of the testator. alive, at least they must be conceived during
such time;
Article 864. A fideicommissary substitution can never 2. They must be willing to comply; and
burden the legitime. 3. Must not be disqualified

Article 865. Every fideicommissary substitution must be  Both heir one and heir two inherit at the time of
expressly made in order that it may be valid. the death of the testator
The fiduciary shall be obliged to deliver the inheritance to
the second heir, without other deductions than those which NOTE: The beneficial right of heir two is suspended until
arise from legitimate expenses, credits and improvements, such time provided in the will or in the absence thereof until
save in the case where the testator has provided such time that heir one dies. Heir two does not inherit from
otherwise. heir one but inherits from the testator. Both of them, heir
one and heir two, are the owners of the property but they
Article 866. The second heir shall acquire a right to the are not considered as co-owners. Title to the property shall
succession from the time of the testator's death, even be made in the name of heir one but subject to the
though he should die before the fiduciary. The right of the fideicommissary substitution in favor of heir two.
second heir shall pass to his heirs.
 The fiduciary is prohibited to destroy and alienate
 A substitution is a fideicommissary substitution, if the property given by the testator, since he has
the testator institutes an heir with an obligation to the obligation to preserve and transmit the
deliver to another the property so inherited. property to the second heir. A fiduciary is not a
 The heir instituted to such a condition is called mere use of fracturing despite the obligation to
the first heir or fiduciary heir and the heir to preserve and transmit.
receive the property is called the fideicommissary
or second heir.  There is a need for the testator to indicate the
substitution by its name. Expressly imposed upon
Requisites of the fideicommissary substitution: the first error the absolute obligation to deliver
1. There must be a first heir instituted by the the property to the second heir. If it is not made
testator; in this manner the purported fideicommissary
2. There must be a second heir instituted by the substitution shall be without any effect.
testator;
3. The first heir has a duty to preserve and transmit  If the second heir should predecease the first
the property or share to the second heir; heir, the fideicommissary substitution shall still be
4. Heir one and heir two are one degree apart; valid and the right of the second second is
5. Heir one and heir two must be living or at least transmitted to his heirs provided that the second
conceived at the time of the testator's death; heir survived the testator. As long as the first and
6. The fideicommissary substitution must be clearly the second heirs were living or at least conceived
expressed in the will; and at the time of the testator’s death, then
7. The fideicommissary substitution is imposed on fideicommissary substitution shall be operative
the free portion of the estate and not on the regardless of any other contingency that might
legitime befall these heirs.

 The fideicommissary substitution is limited only to NOTE: If the first heir predeceases the testator, the
the free portion. The testator cannot provide a disposition shall be considered merely as a vulgar
fideicommissary substitution over the legitime. substitution. The second heir shall receive the property free
Any fideicommissary substitution affecting the from encumbrance because the burden ceases from the
legitime of the compulsory heirs shall be time the beneficial rights of ownership are enjoyed by the
considered as not imposed. second heir.
 The relation between the fiduciary and  If the second heir is the one who predeceases
fideicommissary must be one degree. They must the testator, the first heir shall receive the
property free from the encumbrance.

Page | 31
WILLS AND SUCCESSION
Fideicommissary Trust
 Substitution in cases of fideicommissary Substitution
substitution should not apply to the legitime (Art. Fiduciary insubstitution is a A trustee in a trust is a
864). real heir who enters upon mere agent who carries
the property and enjoys it out the wishes of the
 The fideicommissary substitution must be as his own although with testatorwithout himself
expressed. Meaning the obligation to preserve the obligation to preserve enjoying the property left
and transmit the property to the second heir is and transmit it to another under his care
clearly imposed by the testator in the will.

 The second heir should not go beyond one The Right of Preservation and Transmission:
degree from the first heir. Both heirs inherit from  There must be an express limitation on the right
the testator. Both heirs must be living or at least of the first heir. He cannot alienate the property
conceived at the time of the testator's death. The except in favor of the second heir. He is bound to
second heir acquires his right from the time of the preserve it and transmit it to the second heir.
testator's death. If he dies before the first heir or  Without such obligation to preserve clearly
fiduciary, his heirs or the heirs of the second heir imposed by the testator in his will, there is no
are passed to his heirs. (Art. 866) fideiommissary substitution.
 For instance when the testator merely names an
 The first heir enjoys the property almost like a air and provides that if such heir should die a
usufructuary but he is not a usufructuary. He is second heir also designated shall succeed. This
entitled to refund of useful improvements, is not a fideicommissary substitution, this would
legitimate expenses and credits. be considered instead as a vulgar substitution to
be effective only if the first heir dies before the
 Since the substitute must be one degree from the testator
fiduciary heir. He is either a parent or child of the
first heir. The nullity of the fideicommissary Note: If the testator permits the first heir to dispose of the
substitution does not prejudice the validity of the property and designates other persons to succeed to what
institution of the first heir. The fideicommissary may be left at the death of the first heir, there is again no
clause is simply deemed not written. (Art. 868) feed commissary substitution. Therefore the obligation of
the fiduciary to preserve the property must be clearly
 The original purpose of the fideicommissary imposed in order that there can be fideicommissary
substitution is considered as feudalistic. It is not substitution.
in accord with the modern concept of ownership
which puts the welfare of society over and above Fideicommissary Heir
that of a particular family. 1. The heir to whom the property is transmitted by
the fiduciary.
 In the New Civil Code, the fideicommissary 2. The fideicommissary heir must have also the
substitution now cannot go beyond one degree capacity to succeed the testator.
from the heir originally instituted and provided the 3. He is a second heir instituted by the stator.
first and the second heirs are living at the time of 4. He does not succeed the fiduciary for he
the death of the testator; because of this change acquires his rights from the moment of the
the property therefore cannot stay in the same testator's death.
family for the same length of time authorized 5. The second heir or fideicommissary heir must be
under the old Civil Code. one degree from the heir originally instituted.
6. He must be living at the time of the death of the
NOTE: The first heir or the fiduciary is not a mere testator
administrator of the property or a mere agent of the
deceased or the testator, he is recognized as an instituted Property to be Transmitted:
heir and is entitled to the full enjoyment of the property.  The property may be charged with the
Although he can be likened to a usufructuary, he has a substitution of the whole or part of the inheritance
right to enjoy the property. He cannot alienate it. Although  The first heir cannot transmit only the remainder.
he is not expressly required to make an inventory of the  Substitution here may refer only to a part of the
estate which is to preserve and transmit to the second heir, property to which the first heir is instituted. The
the obligation must be made in view of his being likened to substitution may refer not only to the heir who is
a usufructuary. given the entire estate but also to one who
receives only a part of it.
Distinctions of Fideicommissary Substitution and Trust:

Page | 32
WILLS AND SUCCESSION
 A fideicommissary substitution however cannot
be established with respect to the legitime of This again seeks to prevent the entail of property or its
compulsory heirs. All kinds of substitutions are withdrawal from circulation. If the prohibition to alienate is
prohibited in so far as legitimates are concerned. perpetual, or even if temporary, beyond the limits set forth
If the testator provides for a substitution in in Article 863, the prohibition is void. If the testator prohibits
relation to a legitime, the substitution is alienation for a definite period, it cannot exceed 20 years.
considered as not imposed.
(3) Those which impose upon the heir the charge of
What are allowable deductions? paying to various persons successively, beyond
The allowable deductions are the legitimate expenses, the limit prescribed in Article 863, a certain
credits, and improvements. Expenses made purely in income or pension;
connection with the management of the property during its This again seeks to further secure the observance of the
enjoyment by the first heir can be deducted only when they limitations provided under Article 863 of the Civil Code.
constitute improvements.
(4) Those which leave to a person the whole or part
 Pending the transmission of the property, the of the hereditary property in order that he may
fiduciary is entitled to all the rights of a apply or invest the same according to secret
usufructuary although the fideicommissary is instructions communicated to him by the testator.
entitled to all the rights of a naked owner. This is intended to avoid the possibility of the property
being applied to purposes prohibited by law, or going to
ART. 867. The following shall not take effect: incapacitated persons by means of secret instructions to
(1) Fideicommissary substitutions which are not made in an the fiduciary.
express manner, either by giving them this name, or
imposing upon the fiduciary the absolute obligation to The disposition itself is void only if the sole purpose is that
deliver the property to a second heir; the person who has been named shall receive the property
(2) Provisions which contain a perpetual prohibition to not as an heir, but a mere agent of the testator to carry out
alienate, and even a temporary one, beyond the limit fixed his secret instructions. This is what is called the tacit
in Article 863; fideicommisum.
(3) Those which impose upon the heir the charge of paying
to various persons successively, beyond the limit If the testator intends that the heir instituted should enjoy
prescribed in Article 863, a certain income or pension; his property in the concept of heir, the mere reference to
(4) Those which leave to a person the whole or part of the secret instruction does not invalidate the institution of the
hereditary property in order that he may apply or invest the heir. Only the secret instruction shall be void, and the
same according to secret instructions communicated to him beneficiaries, under such secret instructions, cannot
by the testator. compel the heir to comply with it.

Article 867 is intended to prevent possible abuse that may The disposition itself is void, if the sole purpose is that the
be made in the use of fideicommissary substitution, as well person who has been named in the will shall receive the
as of indirect means of violating the limitations imposed property not as an heir but a mere agent of the testator for
upon it. carrying out his secret instructions.

(1) Fideicommissary substitutions which are not This provision is to prevent an indirect violation of the rules
made in an express manner, either by giving on task of fideicommissary substitution. It is what is called
them this name, or imposing upon the fiduciary tacit fideicommisum.
the absolute obligation to deliver the property to
a second heir; ART. 868. The nullity of the fideicommissary substitution
does not prejudice the validity of the institution of the heirs
No fideicommissary substitution will be deemed impose first designated; the fideicommissary clause shall simply be
unless there is an express obligation to preserve and considered as not written.
transmit the property to a second heir.
The purpose of this article is to give more importance to the
The mere requests or suggestions or advice by the socialization of the ownership of the property and to
testator, but does not impose an obligation to preserve and prevent the perpetuation of large holdings that give rise to
transmit the property will not be sufficient to constitute a agrarian troubles.
fideicommissary substitution.
NOTE: There is no substitution whenever there is no
(2) Provisions which contain a perpetual prohibition second heir appointed by the testator or when there is an
to alienate, and even a temporary one, beyond intended beneficiary, but such fideicommissary personality
the limit fixed in Article 863; is not apparent.
Page | 33
WILLS AND SUCCESSION
ART. 869. A provision whereby the testator leaves to a CONDITIONAL TESTAMENTARY DISPOSITIONS
person the whole or part of the inheritance, and to another
the usufruct, shall be valid. If he gives the usufruct to Institution of heirs is an act by virtue of which a testator
various persons, not simultaneously, but successively, the designates in his will the person or persons who are to
provisions of Article 863 shall apply. succeed him in his property and transmissible rights and
When testate leaves his property in naked ownership to obligations.
one person, and in usufruct to another, upon the expiration
of the latter’s right or the usufructuary, then, former acquire Institution of heirs cannot be allowed to affect the legitimes
such usufruct and consolidates the absolute ownership in of the compulsory heirs.
himself.
Since the heir instituted to the naked ownership, upon There can be an instituted heir only in testamentary
consolidating absolute title at the expiration of the right of succession. There can be a valid will even if it contains
the usufructuary does not succeed the latter as a only a provision for disinheritance or if only legacies and
substitute, he is considered a first heir. devises are contained in the will even though it does not
contain an institution of heir, or such institution should not
ART. 870. The dispositions of the testator declaring all or comprise the entire estate, and even though the person so
part of the estate inalienable for more than twenty years instituted should not accept the inheritance or should be
are void. incapacitated to succeed
The testator cannot declare the legitime of any compulsory
heir as inalienable. The right to impose the condition of The distributor is free to impose any condition, mode or
inalienability is limited to the portion of the estate of which term, when he makes a testamentary disposition, whether
the testator can dispose of. And even in this case, the the testamentary disposition is an institution of an heir, a
period of inalienability cannot exceed 20 years, the devise or a legacy, but, this rule applies only to the portion
property becomes free after 20 years. of the state of which the state can validly dispose of or
what is called the free disposable portion.
Article 870 should be reconciled with article 863 and 867
(2). GR: The testator CANNOT impose any charge, condition
or substitution whatsoever upon the legitimes. If a charge
Article 870 is limited to inalienability of the property in the condition or substitution is imposed, it shall be considered
hands of the instituted heir, where there is no as not imposed.
fideicommissary substitution.
XPN: Testator can validly impose a prohibition against the
On the other hand, if there is a fideicommissary substitution partition of the legitimes for a period not exceeding 20
impose, then the provision applicable is articles 863 and years.
867(2).
NOTE: Conditions to affect the disposition must appear in
If the testator imposes the condition of inalienability without the language of the will, and cannot be presumed.
fixing a definite period, the property should become free
after 20 years pursuant to Article 870. Art. 1083. Every co-heir has a right to demand the division
of the estate unless the testator should have expressly
If the period fixed by the testator is the lifetime of the heir: forbidden its partition, in which case the period of indivision
 If the heir dies before 20 years expire, the shall not exceed twenty years as provided in article 494.
property passes to his heirs already free. This power of the testator to prohibit division applies to the
 But if he leaves more than 20 years after the legitime.
death of the testator, the property becomes Even though forbidden by the testator, the co-ownership
alienable after 20 years. terminates when any of the causes for which partnership is
dissolved takes place, or when the court finds for
Article 870 is limited to inalienability of the property in the compelling reasons that division should be ordered, upon
hands of the instituted heir where there is no petition of one of the co-heirs.
fideicommissary substitution.
Kinds of Institution
If a fideicommissary substitution is imposed, what should 1. With a condition;
apply is article 864 and 867 (2), the first heir must preserve  A condition is a future or uncertain
the property even if he lives more than 20 years after the event or a past event unknown to the
death of the testator. Article 870 does not apply in cases parties upon which the performance of
where there is a valid institution with a fideicommissary an obligation depends
substitution.

Page | 34
WILLS AND SUCCESSION
 Conditions, terms and modes are not testator’s death and the condition is of such a
presumed, they must be clearly nature that it cannot be fulfilled
expressed in the will. The condition
must fairly appear from the language of Art. 876. Any purely potestative condition imposed upon an
the will. Otherwise, it shall be heir must be fulfilled by him as soon as he learns of the
considered pure. testator's death.
This rule shall not apply when the condition, already
2. With a term; and complied with, cannot be fulfilled again.
 A term is the day or time when an
obligation either becomes demandable Suspensive Condition
or terminates.  A condition the fulfillment of which will give rise to
the acquisition of a right. While the condition has
3. For a certain purpose or cause (modal Institution) not arrived yet, in the meantime, the rights and
 A modal institution is the statement of obligations of the parties are suspended.
the institution, the application of the  In suspensive condition or condition precedent,
property left by the testator or the the efficacy or the obligatory force is
charge imposed on him. subordinated to the happening of a future and
 A mode imposes an obligation upon uncertain event; if the suspensive condition does
the heir, devisee or legatee, but it does not take place, the parties would stand as if the
not affect the efficacy of his rights to conditional obligation never existed
the succession. The mode obligates
but does not suspend. Resolutory Condition
 A condition where the rights already acquired are
Disposition Captatoria lost upon fulfillment of the condition.
 This is a condition that the heir shall make some  It is also known as condition subsequent.
provision in his will for the testator or of any other
person. RESOLUTORY SUSPENSIVE
 This is however prohibited, because it will make The disposition becomes The effectivity of the
the making up a will a contractual act. effective upon the death of disposition is suspended
 Disposition captatoria is incompatible with good the testator but is until the fulfillment of the
faith and with the nature of testaments; it is extinguished upon the condition.
immoral and contrary to the freedom to make happening of the condition.
wills. Obligation is extinguished. Obligation arises or
becomes effective.
Art. 875. Any disposition made upon the condition that the If not fulfilled, juridical If not fulfilled, no juridical
heir shall make some provision in his will in favor of the relation is consolidated. relation is created
testator or of any other person shall be void.

Causal Condition Suspensive Term

 It is a condition that depends upon chance and or  A disposition with a suspensive term does not
upon the will of the third person. prevent the instituted heir from acquiring his
rights and transmitting them to his heirs even
Mixed Condition before the arrival of the term.
It is the performance or fulfillment of the condition which  The right of the heir instituted subject to a term is
depends partly upon the will of a party to the obligation and vested at the time of the testator's death he will
partly upon chance and/or the will of a third person. just wait for the term to expire.
 If the heir dies after the testator but before the
Potestative Condition term expires, he transmits his rights to his own
 A condition the fulfillment of which depends heirs because of the vested right.
purely on the heir.
 He must perform it personally. Nobody else must
do it for him. Caucion Muciana
 Purely potestative condition must be complied  It is a security or bond required from the
with AFTER the testator’s death. It is only then conditional heir in order to secure the rights of
that obedience can be indicated. However, this those who would succeed to the property upon
rule does not apply if the condition was already violation of the condition.
complied with at the time he learns of the

Page | 35
WILLS AND SUCCESSION
NOTE: All this applies to the free portion and can never be charge imposed by the testator or upon
applied to the legitime. the heir.
 This is called institutions sub modo or
Conditional Testamentary Disposition modal institution.
 When the acquisition or extinguishment of  “Modo” also signifies every onerous
successional rights is made to depend upon the disposition by which the obligor
happening or non-happening of the future and imposed upon another and thus limited
uncertain event, then the testamentary his promise, such as demanding a loan
disposition is called conditional. in exchange for what the other person
 If the acquisition of successional rights is made received.
to depend upon the happening of such event, the
condition is suspensive. Other Types of Conditions
 If the condition is not fulfilled in the suspensive 1. Positive – It involves the doing of an act;
condition, there is no successional right acquired. 2. Negative –It involves the omission of an act;
 If on the other hand, successional rights are 3. Divisible – It is susceptible of partial
already acquired, but subject to extinction upon performance;
the happening of such event, the condition is 4. Indivisible – It is not susceptible of partial
called a resolutory condition performance;
5. Conjunctive – There are several conditions in an
Testamentary Dispositions with a Term obligation all of which must be performed;
 When the demandability or extinguishment of 6. Alternative – There are several conditions in an
successional rights is made to depend upon the obligation but only one must be performed;
arrival of a day certain or upon the happening of 7. Possible – It is capable of fulfillment according to
the future but certain event the testamentary the nature, law, public policy or good customs;
disposition is with a term. and
 If the demandability of the inheritance is subject 8. Impossible – It is not capable of fulfillment
to the arrival of the day certain the term or period according to nature, law, public policy or good
is suspensive. This is also called Ex Die. customs
 If the successional rights are immediately
acquired, but the same are terminated upon the In cases of a suspensive condition:
arrival of the day certain the term or period is  If the testamentary disposition is subject to a
regulatory, this is called In Diem suspensive condition, these successional rights
are transmitted only upon the happening of the
Kinds of terms or periods condition although the effects they're off retro up
1. Ex Die to the moment of the testator’s death.
 This is a term or period with  This is article 1181 and 1187 in relation to Article
suspensive effect. The obligation 884 of the new Civil Code.
begins only from a day certain, in other
words upon the arrival of the period Art. 884. Conditions imposed by the testator upon the heirs
2. In Diem shall be governed by the rules established for conditional
 It is a period or term with a resolutory obligations in all matters not provided for by this Section. 
effect. Up to a certain extent, the
 Therefore, the capacity of the conditional heir,
obligation remains valid, but upon the
devisee or legatee will be determined not only at
arrival of said period, the obligation the time of the status death, but also at the time
terminates. of the happening of the condition.
3. Legal
 A period granted under the provisions  As a consequence, if the heir, devisee or legatee
of the law. dies before the happening of the condition,
although he dies after that the testator’s death his
capacity to succeed terminates and renders the
testamentary disposition inoperative and without
What is a modal testamentary disposition? effect.
 it is the institution of an heir where the
testator states the object of the  After the death of the testator, but prior to the
institution or the purpose or application fulfillment of the suspensive condition, there is
of the property left by the testator or the yet no succession or right acquired by the

Page | 36
WILLS AND SUCCESSION
instituted heir or the designated devisee or fulfilled again unless it is of such nature, that it
legatee. can no longer exist or be complied with again.

 During the period, the estate or the property  Actual compliance is required if the condition is
involved shall be placed under administration. either casual in nature or partly dependent upon
chance, in which case, constructive compliance
 If the condition is fulfilled, the instituted heir, will not be sufficient.
devisee or legatee is entitled to the delivery of
the property.  If the postestative condition consists in not doing
or not giving something, the instituted heir,
 However, if it becomes certain that the condition devisee or legatee is entitled to the immediate
cannot be fulfilled, the property must be delivered delivery of the property after the testator’s s
either to a substitute if one is provided by the death, but must give a security or bond known as
testator, or to a co-heir with the right of accretion a caucion muciana.
or the legal heirs as the case may be.
 If the required security or bond is not given, the
Testamentary disposition is subject to Resolutory Condition property shall be placed under administration and
 In testamentary, disposition subject to a shall remain there until the security is given.
resolutory condition, successional rights are
acquired immediately upon the death of the  If the condition is violated, the heir, devisee or
testator, but subject to extinction upon the legatee must return the property together with the
happening of the condition. fruits and interests in favor of those who are
legally entitled to it.
 If the condition is fulfilled, the instituted heir,
devisee or legatee, loses his right over the  In case the property or its fruits and interest
inheritance, and the same shall pass to those cannot be returned, the security shall have to
who are legally entitled to it. For instance, the answer for the liability.
substituted heir, if one is provided by the testator
or the co-heir with the right of accretion, or the The testator may also sometimes impose impossible
legal heirs. conditions
 Impossible conditions and those contrary to law
What if the disposition is subject to a postestative, casual or good customs in testamentary dispositions
or mixed condition? shall be considered as not imposed and shall not
affect the validity of the disposition.
Art. 877. If the condition is casual or mixed, it shall be
sufficient if it happens or be fulfilled at any time before or  The testator may even provide on a prohibition to
after the death of the testator, unless he has provided marry.
otherwise.
Should it have existed or should it have been fulfilled at the What are the consequences if the testator provides a
time the will was executed and the testator was unaware condition not to marry?
thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be GR: An absolute condition not to contract a first
considered fulfilled only when it is of such a nature that it or subsequent marriage is not a valid condition
can no longer exist or be complied with again. and shall be considered as not written. However,
the validity of the disposition itself shall not be
 A casual or mixed condition is deemed fulfilled. If affected.
the condition already occurs, whether it is before
or after the testator’s death, unless the testator XPN: If such condition was imposed on the
provides otherwise, Article 877 first paragraph. widow or widower by the deceased spouse or by
the latter’s ascendants or descendants, in which
 If at the time of the execution of the will the case, the condition is valid.
condition is already fulfilled, and that the testator
is unaware thereof, the condition is deemed If the prohibition is relative with respect to
complied with already. persons, time or place, such conditions is valid
and must be complied with unless the testator
 However, if the testator had knowledge that the renders it impossible for the heir to marry at all.
condition is already fulfilled at the time of the
execution of the will, the condition must be
Page | 37
WILLS AND SUCCESSION
This condition however, cannot be validly he can transmit his rights the instituted heir, prior to
imposed upon the legitime of the widow or the to his own heirs the fulfillment of the
widower condition, no right is
transmitted to his heirs.
A prohibition to contract a first or subsequent
marriage is considered not imposed only if the  Even if the heir therefore, should die or the
prohibition is absolute in character. devisee or legatee should die before the term
arrives, but he dies after the death of the testator,
If the prohibition to marry anyone at any given his own heirs are entitled to succeed to his rights
time and place the prohibition is considered fine. to the inheritance which must be delivered to
However, if the prohibition is relative, that to say them upon the arrival of the term.
that the testator of provides that the devisee,  Upon the death of the testator but prior to the
legatee or the institute heir should not marry a arrival of the term, the institute of heir, devisee or
certain person at a certain time or a certain place legatee already acquires a successional right, but
such condition is valid and it must be complied he is not entitled yet to the delivery of the
with by the instituted heir, devisee or legatee inheritance.
unless the testator practically renders it  During the said period, the inheritance, devise or
impossible for the heir to marry at all. legacy shall be given to the legal or intestate
heirs. This legal or intestate heirs, however,
If the prohibition to marry is validly imposed, for cannot enter into the possession of the property
instance, it is imposed on the widow or widower, without giving sufficient security with the
the condition is considered as a resolutory intervention of the instituted heir, devisee or
condition. The heir instituted immediately acquire legatee.
successional rights, but if the condition is
violated, such right is extinguished. Art. 885. The designation of the day or time when the
effects of the institution of an heir shall commence or cease
Disposition Captatoria shall be valid.
 It is one which imposes as condition that the heir In both cases, the legal heir shall be considered as called
shall make some provision in his will in favor of to the succession until the arrival of the period or its
the testator or of any other person. expiration. But in the first case he shall not enter into
 Such disposition is void pursuant to Article 875 of possession of the property until after having given sufficient
the new Civil Code. But the validity of the other security, with the intervention of the instituted heir.
provisions including the will itself shall not be
affected. The term can also be Resolutory Term.
 The legal heirs can enjoy possession of the
The testator may also provide a term. property but when the term arrives, he must give
 In dispositions subject to a suspensive condition it to the legal heirs. The instituted heir does not
as distinguished from a term, the instituted heir, have to file a bond.
devisee or legatee does not acquire any  In disposition, subject or regulatory term, the heir,
succession or right upon the death of the testator devisee or legatee can demand immediately for
for as long as the condition is not yet fulfilled. the delivery of the inheritance, device or legacy,
 On the other hand, if the disposition is subject to but subject to determination of his right upon the
a suspensive term, the successional right is arrival of the term.
immediately transmitted to the heir, devisee or  Upon arrival of the term, the inheritance, device
legatee upon the death of the state, although the or the legacy shall pass to the legal heirs of the
demandability of such right is suspended until the testator.
arrival of the day certain, which is designated by
the testator. Modal Testamentary Dispositions
 It is a mode which imposes an obligation upon
SUSPENSIVE TERM SUSPENSIVE the heir, devisee or legatee, but it does not affect
CONDITION the efficacy of his rights to the succession.
The right of the heir The instituted heir does
instituted subject to a term not acquire any  This is the distinction from a conditional
is vested at the successional right upon testamentary disposition.
time of the testator’s the death of the testator
death. Hence, if he dies as long as the condition is
after the testator but not yet fulfilled.
before the term expires, Hence, upon the death of

Page | 38
WILLS AND SUCCESSION
 In a conditional testamentary disposition, the
condition must happen or be fulfilled in order for 1. Primary Compulsory Heirs
the heir to be entitled to succeed that the The primary compulsory heirs are:
testator. a. The legitimate children and their legitimate
descendants, as to the legitimate parents
 An obligation imposed upon the heir, devisee or and legitimate ascendants;
legatee is not considered a condition unless it b. The surviving spouse;
clearly appears from the will itself, that such was c. Adopted children; and
the intention of the testator. Because for all civil purposes, they are
considered as legitimate children
 In case of doubt, the institution should be d. Illegitimate children and their descendants,
considered as modal and not conditional. whether legitimate or illegitimate.

 If the device or legacy is subject to a modal 2. Secondary Compulsory Heirs

testamentary disposition, the instituted heir, Secondary compulsory heirs are the following:
devisee or legatee can claim immediately the a. Legitimate parents and other legitimate
delivery of the inheritance subject to the giving of ascendants
security or bond for the compliance of the They inherit only in default of the legitimate
obligation. children and their descendants as to the
legitimate children and descendants
 If the security or bond is not given the heir, b. Illegitimate parents as to the illegitimate
devisee or legatee may not demand for the children without issue. Other illegitimate
delivery of the inheritance because the same is a ascendants are not included. They inherit
condition sine qua non for its delivery. only in default of the legitimate and
illegitimate children and their respective
 In case of failure to comply with the mode or the descendants.
obligation, the heir, devisee or legatee shall be
compelled to return whatever he may have Classification Of Compulsory Heirs Based On Those Who
received by virtue of the institution, device or Can Inherit In The Presence Of The Other Compulsory
legacy together with the fruits or interests and in Heirs:
case he cannot, the bond or security can be
made to answer for the deficiency. 1. Primary Compulsory Heirs
Those who have proceedings over an exclude
other compulsory heirs.
These are the legitimate children and
LEGITIME
descendants who are legitimate with respect to
their legitimate parents and ascendants.
Article 886. Legitime is that part of the testator's property
which he cannot dispose of because the law has reserved
2. Secondary Compulsory Heirs
it for certain heirs who are, therefore, called compulsory
Those who succeed only in the absence of the
heirs.
primary heirs.
These are the legitimate parents and ascendants
Legitime is that part of the status property which he cannot
who are legitimate, with respect to their legitimate
dispose of because the law has reserved it for certain
children and descendants,
heirs, who are therefore called compulsory heirs. And it is a
sort of compulsory succession setting aside a certain
3. Concurring Compulsory Heirs
portion of the estate of a person, it is a limitation upon the
Those who succeed together with the primary or
freedom of the state or to dispose of his property in order to
the secondary compulsory heirs,
protect his compulsory heirs.
These are the widow or widower or legitimate.
The other concurring compulsory heir is the
 The portion of the decedent’s estate reserved by
illegitimate children and descendants, whether
law is called the Legitime.
legitimate or illegitimate.
 The heirs for whom the law reserved such portion
are called Compulsory Heirs. Note: Mere estrangement is not the ground for the
disqualification of the surviving spouse as heir. However, if
Classification of Compulsory Heirs: there's a decree of legal separation, the offending spouse
The classification of the compulsory heirs are the primary is disqualified. The innocent spouse can still inherit.
and secondary.

Page | 39
WILLS AND SUCCESSION
If the testator is a legitimate person, his compulsory heirs
are the following:
1. His or her legitimate children and descendant; 2. Omission; or
2. In default of the legitimate children and Omission takes place in cases of preparation
descendants, the legitimate parents and under Article 854 of the Civil Code. And
ascendants; preterition announced the institution of heirs and
3. The surviving spouse; and results to partial intestacy where the alleged
4. Illegitimate children and descendant. victim shall be paid to the compulsory heir.

If the testator is an illegitimate person, his compulsory heirs 3. Circumvention

are the following: This is the instance where the testator or the
1. Legitimate children and descendants; decedent dissipates the estate by an act inter
2. Illegitimate children and descendants; vivos making the estate so little at the time of
3. Surviving spouse in default of the legitimate death.
children and descendants or illegitimate children
and descendants, his compulsory heirs are his Article 1061 provides the solution:
illegitimate parents only. Where all donations inter vivos or dispositions
made during the lifetime of the testator are
Rules In Determining Rules The Legitimes Or Who Can collated. The collation is done for the proper
Inherit: determination or computation of the legitime. In
1. In the direct descending line: case there exists an impairment of the legitie or
a. There is the rule of preference between the estate becomes insufficient to pay all the
lines. shares of the compulsory heir, the donation shall
b. Then there is a rule of proximity; and be reduced to the extent that they impair the
c. The right of representation ad infinitum in legitimacy of the compulsory heirs.
case of predecease, incapacity, or
disinheritance.  A legitime is either fixed or variable

2. In the direct ascending line, Fixed Legitime if the amount that is the fractional part, does
a. There is the rule of division by line; and not vary or change regardless of whether there are
b. The rule of equal division. concurring compulsory heirs or not.

 Under Article 906, it provides that there shall be A Variable Legitime is that instance where the legitime
no impairment of legitime. changes, or the amount changes or varies according to the
presence of other concurring compulsory heirs.
Article 906. Any compulsory heir to whom the
testator has left by any title less than the legitime Note: We have the necessity of being legitimate in order to
belonging to him may demand that the same be be entitled to a legitime
fully satisfied.
Article 992. An illegitimate child has no right to inherit ab
 The exception to this is if the predecessor gave intestato from the legitimate children and relatives of his
the compulsory heir a donation inter vivos and father or mother; nor shall such children or relatives inherit
provided that it was not charged against the in the same manner from the illegitimate child.
legitime. (Art. 1062)
 Article 992 provides a bar between the legitimate
 Testamentary dispositions made by the and illegitimate line of the family, preventing one
predecessor to the compulsory heir also is an from inheriting from the other by legal
exception, unless it has stated provides that it succession.
should be considered as part of the legitime of
the compulsory heir.  It has been held that the discrimination against
an illegitimate child arises from his inability to
Ways by which a legitime is violated: inherit from the other relatives of his father and
1. Short change; mother. An illegitimate child has successional
Short change takes place when the compulsory rights only with respect to his own parents.
heir gets less than what he is entitled to. Beyond the parents, an illegitimate child has no
successional rights in intestate succession. The
Article 906 is the applicable provision, which law imposes a certain amount of discrimination
orders the completion of the legitime by charging with regard to illegitimate children. Even the
against the free portion of the estate fiction of adoption will not vest full legitimacy on
Page | 40
WILLS AND SUCCESSION
the illegitimate child because the fiction of
adoption produces its effect only between the  The testator may freely dispose of the free
adopter and the adopted. portion.

 Succession as a general rule goes down the 2. Legitimate Parents and Ascendants:
descending line. The only time when succession Share of legitimate parents ½ of the net estate
goes up the ascending line is when there are no and ascendants
children or descendants. Free portion ½ of the net estate

 The descending line is the line of priority. 3. One legitimate child or descendant; Surviving
Succession will go up the ascending line only spouse:
upon the inapplicability of the right of Share of a legitimate child ½ of the net estate
representation, in as much as the legitime of the Share of the surviving ½ of the net estate
descendant is subject to the right of spouse
representation. Free portion ½ of the estate

 Each time a legitimate child or descendant 4. Illegitimate children; legitimate children:

inherits, he gets half of the estate, and this is Share of children and ½ of the net estate
known as the strict legitime. descendants
Share of each illegitimate ½ of the legitime of each
 Since the ascending line is not the preferred line, children legitimate child or
the right of representation does not apply. In ascendant
cases where succession goes up, the rule is the Free portion Whatever remains
nearer excludes the farther.
5. Two or more legitimate children or descendant;
 Each time an ascendant inherits, he or she surviving spouse:
always gets one half of the estate considering Share of legitimate ½ of the net estate
that they are substitutes in the absence of the children
children and the descending line.
Share of the surviving Portion equal to the
spouse legitime of each of the
Why is there a legitime provided for by law?
legitimate child or
The purpose of legitime is to protect the surviving spouse
descendant
and the children from the unjustified anger or
Free portion Whatever remains
thoughtlessness of the testator.

 If there are no compulsory heirs, then there can

6. Legitimate parents or ascendants; Surviving
be no legitime to speak of. The testator cannot
spouse:
deprive the compulsory heirs of their legitime
except through a valid disinheritance. The Share of legitimate parents ½ of the net estate
testator likewise cannot impose any conditions, or ascendants
substitutions, or burdens on the legitime except Share of the surviving ¼ of the free portion
the condition that the estate will not be divided for spouse
a period not exceeding 20 years. Free portion ¼ of the free portion

 Donations inter vivos are to be reduced if they 7. Illegitimate children; surviving spouse:
are found to be inofficious, meaning if they Share of the illegitimate 1/3 of the net estate
exceed the free portion. children
Share of the surviving 1/3 of the net estate
 Also compulsory heirs are not compelled to spouse
accept their legitime. Free portion 1/3 of the net estate

LEGITIME OF COMPULSORY HEIRS 8. Legitimate parents or ascendants; Illegitimate

The legitime of the compulsory heirs are as follows: children:
Share of legitimate parents ½ of the net estate
1. Legitime Children or Descendants: or ascendants
Share of legitimate children ½ of the net estate Illegitimate children ¼ of the free portion
and descendants Free portion ¼ of the free portion
Free portion ½ of the net estate
Page | 41
WILLS AND SUCCESSION
9. Surviving spouse; Legitimate children and
ascendants; Illegitimate children:  Should there be one legitimate child and a
surviving spouse. The legitimate child gets ½ of
Share of children and ½ of the net estate the estate and the surviving spouse receives ¼
descendants of the estate.
Surviving spouse Equal to the portion of  If there are two or more legitimate children and
the legitime of each surviving spouse, the legitimate children will
legitimate child receive ½ of the estate. The surviving spouse
IIllegitimate children ½ of the share of each receives the same share as one legitimate child.
legitimate child
Free portion Whatever remains  If there is one legitimate child, a surviving spouse
and an illegitimate child:
10. Surviving spouse; Legitimate parents or  The legitimate child will receive ½ of
ascendants; Illegitimate children: the estate as his legitime;
 The surviving spouse ¼ ; and
Share of children and ½ of the estate  The illegitimate child, ¼
descendants
Surviving spouse 1/8 of the estate  If there are two or more legitimate children, a
Illegitimate children ½ of the estate surviving spouse and an illegitimate child,
Free portion 1/8 of the estate  The legitimate children will receive ½
of the estate as their legitime.
11. Surviving spouse only; Exception: Marriage in  The share of the surviving spouse is
articulo mortis: equal to the share of one legitimate
child, which will be taken from the free
Surviving spouse only ½ of the net estate portion.
 Illegitimate children, each gets ½ the
Free portion ½ of the net estate
share of one legitimate child. This is
also taken from the free portion.
Surviving spouse only 1/3 of the net estate
(marriage in articulo mortis)
 If you have legitimate parents and surviving
Free portion 2/3 of the net estate
spouse, the legitimate parents legitimeis ½ of the
estate, the surviving spouse ¼ of the estate.
12. Illegitimate children only:
 If you have the surviving spouse and illegitimate
Illegitimate children ½ of the net estate
children, the surviving spouse will receive 1/3 of
Free portion ½ of the net estate the estate of the testator as his or her legitime
and the illegitimate children, 1/3 of the estate.
13. Illegitimate parents only; With Illegitimate and
legitimate children or descendants; With  Legitimate parents together with surviving
surviving spouse: spouse and illegitimate children
 The legitimate parents will receive ½.
Share of illegitimate parents ½ of the net estate Even if only one parent survives.
only  The surviving spouse receives only 1/8;
Free Portion ½ of the net estate only and
Share of illegitimate parents ¼ of the estate  The illegitimate children ¼
Share of the surviving ¼ of the estate
spouse  Legitimate parents only. They are entitled to ½ of
Free portion ½ of the estate the estate as their legitime.

EXPLANATION AND EXAMPLE:  Illegitimate children only, their legitime ½ of the

 If the only compulsory heirs of the testator are net estate.
legitimate children, then ½ of the estate will be  The surviving spouse only as the compulsory heir
divided by the number of children. will receive ½ of the estate. But if the marriage
was in articulo mortis, the surviving spouse is
 If the only surviving compulsory heir of the entitled to 1/3 of the estate. If the parties
testator is one legitimate child, then that child will however, had lived together for more than five
receive ½ of the estate of the testator as his or years before their marriage, the surviving spouse
her legitime.
Page | 42
WILLS AND SUCCESSION
will receive ½ of the estate even if the marriage  If the testator has no legitimate parents, but is
was in articulo mortis. survived by ascendants of equal degree, the
legitime shall be divided equally between
 Legitimate parents and illegitimate children. The paternal and maternal lines. If the ascendance
legitimate parents receive ½ of their estate; their are of different degrees, the one nearest in
legitimate and illegitimate children, ¼ degree get the entire legitime.

 Illegitimate parents only as compulsory heirs will In order to determine the legitime of the compulsory heirs,
receive ½ of the estate of the testator. the following are the steps:
1. First, determine the gross value of the estate at
 If you have illegitimate parents and surviving the time of the death of the testator
spouse, the illegitimate parents are entitled to ¼ 2. Determine all debts and charges which are
of the estate and the surviving spouse is also chargeable against the estate.
entitled to ¼ of the estate. 3. Determine the net value of the estate by
deducting all the debts and charges from the
 Illegitimate children alone, they will receive a gross value of the estate.
legitime of ½ of the estate. 4. The next step is the collation or addition of the
value of all the donations inter vivos to the net
 If the compulsory heirs that are left are the value of the estate.
illegitimate parents and illegitimate children. The 5. The determination of the amount of the legitime
illegitimate children will receive ½ of the estate. from the total that was found
The illegitimate parents do not receive any.
 Imputation of all the value of all donations inter
NOTE: Legitimate children always get ½ of the estate as vivos made to compulsory heirs against their
legitime. This is true even if there is only one child. legitime is done, and of the value of all the
donations inter vivos made to strangers against
 Legitimate parents, as secondary compulsory the disposable free portion and restoration to the
heirs always get ½ of the estate as their legitime. hereditary estate if the donation is in inofficious.
Even if there is only one legitimate parent.
If the legitime is impaired, then the following deductions
 There is no right of representation in the shall be made:
ascending line. 1. Reduce pro-rata, non-preferred legacies and
devises and the testamentary dispositions.
NOTE: The legitime of the surviving spouse must be paid 2. Reduce pro-rata the preferred legacies and
first out of the free portion, then give the illegitimate devises
children their legitime. 3. Reduce the donations inter vivos according to the
inverse order of their dates.
 There's also no representation of illegitimate
children. Illegitimate children do not inherit ab  Distribution of the residue of the estate is done in
intestate or from their legitimate children and accordance with the will of the testator.
relatives of their illegitimate father and mother
because of the barrier and vice versa. (Art. 992) NOTE: The legitime of illegitimate children is a variable
legitime, because the amount varies depending on which
 To determine thelegitime, one must get the value compulsory heirs concur with the illegitimate child
of the property, deduct the debts, plus the value
of donations subject to collation.  The legitime of the parents who have an
 Donations to children shall be charged illegitimate child, when such child leaves neither
to their legitime. legitimate descendants nor a surviving spouse,
 Donations to strangers shall be nor illegitimate children is ½ of the hereditary
charged to the free portion. If they are estate of such illegitimate child.
in officious, they shall be reduced. (Art.  If only legitimate or illegitimate children are left,
909) the parents are not entitled to any legitime
whatsoever.
 The legitime of legitimate parents shall be divided  If only the widow or widower survives with
between them equally. If one parent is dead, the parents of the illegitimate child, the legitime the
other gets the whole legitime. parents is ¼ of the hereditary estate of the child,
and that of the surviving spouse is also ¼ of the
estate

Page | 43
WILLS AND SUCCESSION
Article 904. The testator cannot deprive his compulsory What are the requisites in order for there to be Reserva
heirs of their legitime, except in cases expressly specified Troncal?
by law. The following are the requisites:
Neither can he impose upon the same any burden, 1. The property should have been acquired by
encumbrance, condition, or substitution of any kind operation of law by an ascendant, called the
whatsoever. RESERVISTA, from his descendant, who is
called the PREPOSITUS, upon the death of the
Article 905. Every renunciation or compromise as regards a PREPOSITUS.
future legitime between the person owing it and his 2. The property should have been previously
compulsory heirs is void, and the latter may claim the same acquired by gratuitous title by the PREPOSITUS
upon the death of the former; but they must bring to from another ascendant or from a brother or
collation whatever they may have received by virtue of the sister. The property which goes up to the
renunciation or compromise. ascendant upon death of the PREPOSITUS
belongs to the same line from which the property
Article 906. Any compulsory heir to whom the testator has came from.
left by any title less than the legitime belonging to him may 3. The PREPOSITUS should have died without any
demand that the same be fully satisfied. legitimate issue in the direct descending line who
could inherit from him.
Article 907. Testamentary dispositions that impair or 4. The existence in the inheritance of such property
diminish the legitime of the compulsory heirs shall be acquired by the descendant.
reduced on petition of the same, insofar as they may be 5. The existence of relatives of the descendant
inofficious or excessive. within the third degree and from the line from
where the property came from. The relationship
here must be by blood and legitimate. The
RESERVA TRONCAL parties whose relation must be of the legitimate
line are the origin, the PREPOSITUS, the
Reserva Troncal, also called reserva lineal, reserva reservor and the reservees.
familiar, reserva extraordinario, reserve semi-troncal.
1. The property should have been acquired by
ART. 891. The ascendant who inherits from his descendant operation of law by an ascendant, called the
any property which the latter may have acquired by RESERVISTA, from his descendant, who is
gratuitous title from another ascendant, or a brother or called the PREPOSITUS, upon the death of the
sister, is obliged to reserve such property as he may PREPOSITUS.
acquired by operation of law for the benefit of relatives who
are within the third degree and who belong to the line from By operation of law is limited to succession, either as part
which the said property came. of the legitime or the legitime itself, or intestacy. Therefore,
no reserva troncal takes place where the descendant sells
Reserva Troncal is the reservation by virtue of which an the property to the ascendant.
ascendant who inherits from his descendant any property
which the descendant may have acquired by gratuitous title 2. The property should have been previously
from another ascendant or a brother or sister is obliged to acquired by gratuitous title by the PREPOSITUS
reserve the property for the benefit of relatives within the from another ascendant or from a brother or
third degree, and who belong from the same line from sister. The property which goes up to the
which the property came from. ascendant upon death of the PREPOSITUS
belongs to the same line from which the property
Reserva Troncal constitutes an exemption to the system of came from.
legitime and the order of intestate succession. Gratuitous title includes transmission by donation and
succession, whether testate or intestate. There must be the
The purpose of the provision on Reserva Troncal is to absence of any obligation on the part of the PREPOSITUS
preserve and reserve certain properties in favor of certain to pay consideration for such transfer.
persons, it is to prevent persons outside the family from
acquiring by some chance or accident property which 3. The PREPOSITUS should have died without any
otherwise would have remained with the said family and it legitimate issue in the direct descending line who
is to maintain a separation between paternal and maternal could inherit from him.
lines. It is a statutory reservation, which directs the
movement of certain properties, which otherwise will go to There is what we call here an accidental transfer only when
certain specific heirs, but which the law reserves to certain the PREPOSITUS dies without an issue and without a will.
pre-determined heirs.
Page | 44
WILLS AND SUCCESSION
It may also be with a will but the property is given as part or ORIGINATOR - The originator is the ascendant, brother or
as the legitime of the ascendant. sister from whom the prepositus had acquired the property
- If the PREPOSITUS dies with a will, there is a by gratuitous title.
possibility of avoiding a reserve. This is if the
property was not given by the PREPOSITUS to While the origin owns the property, there is no reserve in
the ascendant as part of his legitime. this case yet, the origin has the perfect right to dispose of it
in any way he wants subject, however, to the rule on
- If the PREPOSITUS dies intestate without inofficious donations.
issues, one will have a potentially exclusive
reserve situation. If the PREPOSITUS has an PREPOSITUS - The prepositus is the descendant who
issue, then the property will not go up, because died and from whose death the reservista in turn had
the legitimate descendant will exclude the acquired the property by operation of law.
legitimate ascendant. But if there is an
illegitimate issue, the legitimate ascendants will The prepositus is the so called arbiter of the fate of the
not be excluded, and the property will go up reserva troncal.
except if the PREPOSITUS had executed a will,
whereby the property coming from the will is The prepositus is considered as the owner of the property
disposed in accordance with the provisions of the transferred to him by gratuitous title from the origin. As of
will, and not as part of the legitime of the this transfer, there is yet no reserve, since the occurrence
ascendant. is still dependent on other factors.

4. The existence in the inheritance of such property Reserva troncal is only triggered when the prepositus dies
acquired by the descendant. intestate and without issue, and the same property
The property subject to reserve is that very same property, acquired from the origin is transferred to another ascendant
which PREPOSITUS acquired from the ascendant or by operation of law.
brother or sister by gratuitous title. Since the reserva
troncal is an encumbrance on the property itself. The kind The reservor is a full owner, but subject to a resolutory
of property is immaterial, because as long as such property condition. The resolutory condition is, if at the reservor
came from the origin by gratuitous title, then there is a death, there should still exist relatives within the third
possibility of reserve. degree of the prepositus and belonging to the line from
which the property came from.
If the PREPOSITUS during his lifetime, conferred such
parcel of land to cash, then there is no more reserva The reservor’s ownership over the property is therefore
troncal, the property is not preserved in its original state, terminated. The property is not part anymore of his estate,
and will destroy the potential reservable character of the instead, ownership is transferred to the relatives who are
property. called the reservatarios.

The existence of the reserve is dependent upon the The prepositus can terminate the reserva troncal or the
PREPOSITUS. reservable nature of the property, either by substituting or
alienating the property or by bequeathing or devising it,
If the PREPOSITUS does not convert, dispose or alienate either to the potential reservista or to a third person, or by
the potentially reservable property, then the reserve partitioning the property and assigning the property to
attaches to the property in the hands of the ascendant parties other than the reservista.
upon the death of the PREPOSITUS.
RESERVISTA OR RESERVOR - The next person or
5. The existence of relatives of the descendant personality in reserva troncal is the reservista or reservor.
within the third degree and from the line from This is the ascendant of the prepositus not belonging to the
where the property came from. line from which the property came, that is the only
The relationship here must be by blood and legitimate. compulsory heir and is obliged therefore, to reserve the
property. The transfer of the reservable property must be
The parties whose relation must be of the legitimate line by operation of law, either by as legitime or by intestacy.
are the origin, the PREPOSITUS, the reservor and the
reservees. The Reservista is the absolute owner and not a mere
usufructuary or trustee of the property, but it is subject to
NOTE: All relations must be legitimate. the resolutory condition of existence of the third degree
relatives upon reservor’s death.
Who are the persons when we talk about reserva troncal?
In Sumaya v. Iyap decided on September 2 1991, the
Supreme Court held: consistent with a rule in reserva
Page | 45
WILLS AND SUCCESSION
troncal where the person oblige to reserve, had the
obligation to annotate in the registry of property the What are the rights of the reservatarios over the reservable
reservable character of the property in reserva troncal the property?
reservor, or the ascendant who inherited from a Upon the death of the prepositus, the qualified reservatario
descendant’s property, which the latter inherited from merely acquire an inchoate right. The reservista own the
another ascendant has the duty to reserve and the duty to property subject to the resolutory condition.
annotate.
Upon the death of the reservista, the surviving
The Supreme Court also stated that the cause of action of reservatarios acquire a perfect right over the property.
the reserves does not commence upon the death of the The right of the reservista over the reserve property is one
prepositus, but upon the death of the reservor. Relatives of ownership. But the ownership is subject to a resolutory
within the third degree in whose favor the right or the condition. This right of ownership is alienable and the right
property is reserved, have no title to ownership or fee of ownership is also registerable.
simple over the reserve property during the lifetime of the If it is not registered, innocent purchases for value and in
reservor, only when the reservor should die, before the good faith shall acquire the title of such reservable property
reservees will the latter acquire the reserve property, thus without any encumbrance or burden of it being reservable
creating a fee simple and only then will they take the place which will be to the detriment of the reservees.
in the succession of the descendant of whom they are
relatives within the third degree. How is reserva troncal extinguish?
It is extinguished:
The reserve is extinguished upon the death of the reservor 1. by the death of the reservista;
as it is, then it becomes a right of full ownership on the part 2. by the death of all the reservatarios;
of the reservatarios, who can bring a reinvendicatory suit 3. renunciation by all reservatarios, provided none
for the property. is born subsequently;
4. by the total fortuitous loss of the reserve
RESERVATARIOS OR RESERVEES - These are the property;
relatives of the preposituss within the third degree, and 5. by confusion or merger of rights; and
who belong to the line from which the property came from, 6. prescription or adverse possession,
and for whose benefit preservation is constituted. They
must be related by blood, not only to the preposituss, but Reserva Troncal or Reserva Integral should be
also to the originator. distinguished from the Theory of Delayed Intestacy.
In reserva integral under this theory, the reservor dies and
Who are the relatives within the third degree?. there are surviving reservistas, all the relatives of the
In the first degree, you have the parents. prepositus coming from the legitimate line and within the
In the second degree, you have brothers and sisters and third degree from the line of the origin shall inherit the
grandparents. reservable property. After the determination of this qualified
In the third degree, they are the great grandparents, uncles relatives, then the reservable property is divided among all
and aunts, nephews and nieces. of them equally without any discrimination. The reservation
here is in favor of all the third degree relatives without due
The Civil Code did not provide for the rules on how the regard to the number of this relatives.
reservatarios would succeed to the reservista.
Delayed intestacy theory provides that when the resolutory
But the following rules in intestacy should apply: condition of the reserve is fulfilled, the properties are
- rule of preference between the lines; distributed to the reservees as if they are inheriting from
- rule of proximity; the prepositus at the time of the fulfillment of the condition.
- right up representation, provided that the Since there is no will, then the reservees inherit, by virtue
representative is a relative within the third of intestacy or intestate succession, the decedent here
degree, and he belongs to the line from which the being the prepositus. Therefore, we have the name
reservable property came from. delayed intestacy. And based on this, the qualifications of
- rule in Article 1006, with respect to the fullblood, the reservees are reckoned from the time of the death of
who get double share. the reservoir, and the following rules of intestate
succession will be followed:
In Gonzales v. CFI, the Supreme Court held that the - The reservable property shall be given to the
reservista had no power to appoint by will which qualified reservees applying the rules of proximity
resavatarios were to get the reserve property. and equal division.
- First Degree relatives will exclude second and
The reservor or reservista, by virtue of the nature of his third degree relatives, and second will exclude
possession over the property, he can alienate the property, the third degree relatives, except when there's
but it is subject to its reservable nature. the right of representation as in the case of
Page | 46
WILLS AND SUCCESSION
nephews and nieces in representation of property as may be necessary to pay off the legitime. The
deceased brother or sister. objective here is to put as much of the reservable property
into the legitime to maximize the reservable character of
There is also the concept of reserva maxima and reserva the property.
minima:
Reserva maxima provides that as much of the potentially In reserva minima, it is a theory of pro-ration. The pro-
reservable property as possible must be deemed included ration required is the allocation of the amounts of the
in the part that passes by operation of law. This maximizes reservable property and the non-reservable property to the
the scope of reserve. amount paid as legitime and free portion.

Reserva minima provides that every single property in the

prepositus estate must be deemed to pass partly by will
and partly by operational of law, in the same proportion that
the part given by will bears to the part not so given.

Reserva maxima and reserva minima becomes applicable

only when the prepositus executes a will, instituting therein
his ascendant as his heir. Because of this, one half of the
estate passes to the ascendant by operation of law as
legitime and the other half by will of the descendant.

Reserva maxima and reserva minima are the two (2)

theories in determining what properties shall become
reservable.

No reserva maxima and minima will apply in case the

prepositus dies intestate. If the prepositus dies intestate,
there would be no problem because the whole estate
transfers by operation of law, and therefore all properties
received by gratuitous title from an ascendant or brother or
sister by the prepositus, and are transferred to the
ascendant reservor become reservable properties, so long
as their lives a relative within the third degree of
consanguinity of the prepositus, at the time the ascendant
reservor dies.

In case the prepositus makes a will, making the ascendant

as his heir, there exists a question as to what capacity did
the ascendant reservor received the property.

If he receives the property as part of his legitime, then that

transmission is by operation of law.
But, if the reservor receives the property, not as a
compulsory heir, not in payment of his legitime, but as a
voluntary heir, then the transmission is not by operation of
law. In this case, the nature of the reservable property is
destroyed due to the characterization of the property going
to the ascendant.

The two theories reserva maxima and reserva minima

operate when the prepositus does not specify the property
from where the legitime or the free portion is to be paid out
from. The question as to which portion shall be reservable
and which shall be non-reservable is addressed to these
two theories.

In reserva maximum, this theory seeks to maximize the

reservable character of the property. Therefore, based on
this theory, one shall take out as much of the reservable
Page | 47