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What is Succession
Testamentary Capacity
Intent to make a Testamentary Will
Institution of Heirs
Testamentary Disposition
Reserva Troncal
Legacies and Devisees
Intestate Succession
Order of Intestate Succession

(What is Succession?) Art. 774. Succession is a mode of acquisition by virtue of which the
property,rights and obligations to the extent of the value of the inheritance, of a person are
transmitted through his death to another or others either by his will or by operation of law. (n)
Art. 779. Testamentary succession is that which results from the designation of an heir, made
in a will executed in the form prescribed by law . (n)
Art. 960. Legal or intestate succession takes place:
1.If a person dies without a will, or with a void will, or one which has subsequently lost its
2. When the will does not institute an heir to, or dispose of all the property belonging to the

testator. In such case, legal succession shall take place only with respect to the property of
which the testator has not disposed;
3. If the suspensive condition attached to the institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no
substitution,and no right of accretion takes place;4. When the heir instituted is incapable of
succeeding, except in cases provided in this Code. (912a)
Art. 780. Mixed succession is that effected partly by will and partly by operation of law.
(superseded by Art. 84 of the Family Code)III.TESTAMENTARY SUCCESSION
Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law,
to control to a certain degree the disposition of this estate,to
take effect after his death. (667a)
1.Purely statutory, formal
Art. 783
2.Free and voluntary
Art. 839. The will shall be disallowed in any of the following cases:
1. If the formalities required by law have not been complied with;
2. If the testator was insane, or otherwise mentally incapable of making a will,at the time of
its execution;
3.If it was executed through force or under duress, or the influence of fear, or threats;
4. If it was procured by undue and improper pressure and influence,on the part of the
beneficiary or of some other person;
5. If the signature of the testator was procured by fraud;
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. (n)

3.Essentially revocable
Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or
restriction of this right is void. (737a)

(Testamentary Capacity)
4.Testator must have testamentary capacity
a. Not prohibited by law
Art. 796. All persons who are not expressly prohibited by law may make a will. (662)
- Only Natural persons are allowed to make a will.
- A convict who sentenced for imprisonment involving civil interdiction cannot dispose his
property by any act or conveyance inter vivos (Art. 34. RPC).
b.18 years old or over
\Art. 797. Persons of either sex under eighteen years of age cannot make a will.(n)
Leap year does not recognized by New Civil Law (Art. 13. NCC).

c. Of sound and disposing mind

Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of
its execution. (n)
- Supervening incapacity such as, thereafter making of a will the testator has become insane,
does not affect the validity of a will. Provided that it is publicly known that the testator was
sane when the will executed.
Art.. 799. To be of sound mind, it is not necessary that the testator be in full possession of all
his reasoning faculties, or that his mind be wholly unbroken, unimpaired or unshattered by
disease, injury or other cause. It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be dispose of, the proper objects of his
bounty and the character of the testamentary act. (n)
Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the
Soundness of mind (Sanity) Is presumed.- The testator enjoys the presumption of soundness
of mind or sanity at the time he executed his will. This presumption is however rebut-table.
The oppositor who alleges that the testator was not of sound mind at the time of the execution

of the will has the burden of proof. If he cannot overcome with strong evidence the
presumption of sanity in favor of the testator, the presumption of soundness of mind prevails.
5.Disposition must be mortis causa
Art. 777. The rights to the succession are transmitted from the moment of the death of the
decedent. (657a) VITUG VS CA 183 SCRA 755
Article 804. Every will must be in writing and executed in a language or dialect known to the
testator. (n)
Article 805. Every will, other than a holographic will, must be subscribed at the end thereof by
the testator himself or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them. (n)
Article 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another
with the office of the Clerk of Court.(n)
Article 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to
do so; otherwise, he shall designate two persons to read it and communicate to him, in some
practicable manner, the contents thereof. (n)
Article 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is acknowledged.
Article 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article 805. (n)
Article 810. A person may execute a holographic will which must be entirely written, dated,

and signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed. (678, 688a)
Article 811. In the probate of a holographic will, it shall be necessary that at least one witness
who knows the handwriting and signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witness referred to in the preceding paragraph, and if the
court deem it necessary, expert testimony may be resorted to. (619a)
Article 812. In holographic wills, the dispositions of the testator written below his signature
must be dated and signed by him in order to make them valid as testamentary dispositions.
Article 813. When a number of dispositions appearing in a holographic will are signed without
being dated, and the last disposition has a signature and a date, such date validates the
dispositions preceding it, whatever be the time of prior dispositions. (n)
Article 814. In case of any insertion, cancellation, erasure or alteration in a holographic will,
the testator must authenticate the same by his full signature. (n)
Article 16. Real property as well as personal property is subject to the law of the country
where it is stipulated.
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found. (10a)
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be
governed by the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the
Republic of the Philippines in a foreign country, the solemnities established by Philippine laws
shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws
or judgments promulgated, or by determinations or conventions agreed upon in a foreign
country. (11a)
ART. 840. Institution of heir is an act by virtue of which a testator designates in his will the
person or persons who are to succeed him in his property and transmissible rights and
ART. 841. A will shall be valid even though it should not contain an institution of an heir, or
such institution should not comprise the entire estate, and even though the person so
instituted should not accept the inheritance or should be incapacitated to succeed.
In such cases the testamentary dispositions made in accordance with law shall be complied

with and the remainder of the estate shall pass to the legal heirs.
ART. 842. One who has no compulsory heirs may dispose by will of all his estate or any part
of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene
the provisions of this Code with regard to the legitime of said heirs.
ART. 843. The testator shall designate the heir by his name and surname, and when there re
two persons having the same names, he shall indicate some circumstance by which the
instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he designate him in
such manner that there can be no doubt as to who has been instituted, the institution shall be
ART. 844. An error in the name, surname, or circumstances of the heir shall not vitiate the
institution when it is possible, in any other manner, to know with certainty the person
If among persons having the same names and surnames, there is a similarity of
circumstances in such a way that, even with the use of other proof, the person instituted
cannot be identified, none of them shall be an heir.
ART. 845. Every disposition in favor of an unknown person shall be void, unless by some
event or circumstance his identity becomes certain. However, a disposition in favor of a
definite class or group of persons shall be valid.
ART. 846. Heirs instituted without designation of shares shall inherit in equal parts.
ART. 847. When the testator institutes some heirs individually and others collectively as when
he says, "I designate as my heirs A and B, and the children of C," those collectively
designated shall be considered as individually instituted, unless it clearly appears that the
intention of the testator was otherwise.
ART. 848. If the testator should institute his brothers and sisters, and he has some of full
blood and others of half blood, the inheritance shall be distributed equally, unless a different
intention appears.
ART. 849. When the testator calls to the succession a person and his children, they are all
deemed to have been instituted simultaneously and not successively.
ART. 850. The statement of a false cause for the institution of an heir shall be considered as
not written, unless it appears from the will that the testator would not have made such
institution if he had known the falsity of such cause.
ART. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot
part of the inheritance, legal succession takes place with respect to the remainder of the
The same rule applies, if the testator has instituted several heirs each being limited to an
aliquot part, and all the parts do not cover the whole inheritance.
ART. 852. If it was the intention of the testator that the instituted heirs should become sole
heirs to the whole estate, or the whole free portion, as the case may be, and each of them
has been instituted to an aliquot part of the inheritance and their aliquot parts together do not
cover the whole inheritance, or the whole free portion, each part shall be increased

ART. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and
the parts together exceed the whole inheritance, or the whole free portion, as the case may
be, each part shall be reduced proportionately.
ART. 854. The perpetration or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual,
without prejudice to the right of representation.
ART. 855. The share of a child or descendant omitted in a will must first be taken from the part
of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be
necessary must be taken proportionally from the shares of the other compulsory heirs.
ART. 856. A voluntary heir who dies before the testator transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person incapacitated to succeed, and one
who renounces the inheritance, shall transmit no right to his own heirs except incases
expressly provided for in this Code.
Art. 857. Substitution is the appointment of another heir so that he may enter into the
inheritance in default of the heir originally instituted. (n)
Art. 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)
Substitution, Concept.-- The article defines substitution as the appointment of another heir so
that in default of the heir originally instituted, he may enter into the inheritance.
Observation.-- According to Dean Pinieda, this definition does not encompass
fideicommissary substitution because in this substitution both the first and second heirs
inherit simultaneously (on the right to succeed) and successively (on the enjoyment and
possession of the property). There is no default here.
The better definition would be to insert the words or after in the text of the definition to
read: Substitution is the appointment of another heir so that he may enter into the inheritance
in default of or after the heir originally instituted.

Under this suggested definition. Fideicommissary substitution (Art. 891) will already be
Objectives Of Substitution.-- The objectives of substitution are: (1) to prevent intestate
succession: and (2) to prevent the descent of the estate to those not preferred by the testator
(6 Manresa 116) because the susbtitute will only inherit ih=f the heir originally instituted could
not succeed
Scope of Substitution.--Substitution can apply to compulsory heirs, devisees and
legatees. The testator has the power, freedom and discretion to designate substitutes if the
first heir does not succeed because of incapacity or renunciation. This right emanates from
the attributes of his ownership over the property.
Nature of Substitution.-(1)
Substitution is a recognition of the principle of freedom of disposition which is
supreme law in testamentary succession, subject to certain limitations (5 Castan 6 th ed. Pp.
It is conditional institution being subordinated to the principal or original
institution. It is therefore uncertain. A substitute does not inherit if the heir originally instituted
is available.
It cannot apply to the legitimes. It is applied only to the free portion (Artcles 842,
864, 872, and 904).
Applicability of the Rules on Institution of Heirs.--Substitution is but a second institution
of an heir should the first one become incapacitated or repudiated the inheritance. It being an
instituion of heir, the rules on institution of heirs are applicable to substitution.
Strictly, There Are Only Two Principal Classes of Substitution Under the Article.Although the article provides four (4) kinds of substitution, strictly, there are only two principal
kinds: simple and fideicommissary. The others are mere variations of these two.
Simple (or vulgar) substitution under Art. 859 may be brief or compendious (Art.860).
The heirs may be substituted reciprocally for each other in simple substitution. A simple or
vulgar substitution applies to rpedecease, incapacity or repudiation (Ramirez vs. Vda. De
Ramirez, 111 SCRA 704; Macrohon vs. Saavedra, 51 Phil, 267).
Where the instituted heir died after the testator, there is no sim-ple substitution (De
Perez vs. Gachitorena, 54 Phil. 431).
Substitution of Compulsory Heir Affects only the Free Portion.-- Should a substitution
be designated for a compulsory heir, the substitution cannot cover the legitime because the
testator is prohibited from imposing any burdens, charges, conditions or substitution on the
legitime (Art. 904) The substitution can affect only the free portion. Substitution is based on
the testator's freedom of dispose by will. Legitime is not subject to the will of the testator. It is
the law which preserves the legitime for the compulsory heirs.

Causes for Extinguishment of Substitution.--Simple substitution is extinguished by the

following causes-(1) Invalidity of the Will;
(2) Annulment of the institution of heir;
(3) Premature death of the substitute, that is, [predeceased of the testator;
(4) Incapacity of the substitute to succeed the testator
(5) Repudiation or renunciation of the inheritance by the substitute.
Art. 859. The testator may designate one or more persons to substitute the heirs instituted in
case such heir or heirs should die before him, or should not wish, or should incapacitated to
accept the inheritance.
A simple substitution, without a statement of the cases to which it refers, shall comprise
the three mentioned in the preceding paragraph, unless the testator has otherwise provided.
Art. 860. Two or more person may be substituted for one; and one person for two or
more heirs.
Brief and compendious Substitutions.-- The substitutions covered by Article 860 are:
Brief or Brevilocuawhen two or more persons are designated as substitutes for one
Compendious of Compendiosawhen one person is designated to substitute for two
or more heirs.
Problems In Compendious Substitution:
(1) If A is designated as the substitution for all the instituted heirs B, C, D, and E and
one of the latter (D) died before the testator, there will be no substitution even with respect
to the share of D. For substitution operate, all of them and not just one or some, should be
disqualified to succeed by reason of predecease, incapacity or repudiation.
(2) If A was designated as substitute for any of the the instituted heirs (B, C, D, and
E), there will; be substitution even if only one (D) died before the testator or become
incapacitated or had repudiated the inheritance. The substitution, however, is only insofar as
the share of such heir (D) is concerned.
Fideicommissary substitution is provided in Article 863: A Fideicommissary substitution
by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to
preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid
and shall take effect, provided such substitution does not go beyond one degree from the heir
originally instituted, and provided further, that the fiduciary or first heir and the second heir
are living at the time of the death of the testator.

Illustration of Fideicommissary Substitution:

Testator instituted John as first heir with the express obligation that John shall preseve
the whole or part of property and to transmit it to Peter, his son. Upon the death of the
testator, John will inherit the property. Later, John must deliver the property to Peter, the
Second heir. Both the first and second heirs are instituted heirs except that the enjoyment of
the property is not simultaneous but successive.
Requisites of Fideicommissary Substitution.-1. There must be a first heir (fiduciary) who will enjoy the property first;
2. There is an express imposition or obligation on the first heir to preserve and transmit
the property to the second heir (Fideicommissario);
3. The first and second heirs must be related within the first degree;
4. Both the first and second heirs are alive at the time of death of the testator.
First heir is not a trustee.-- The first heir enjoys the use and the fruits of the property unlike a
He is more like a usufructuary with right to enjoy the property but without any right to alienate
it. More, it is underst6ood that he shall make an inventory of the property to know beforehand
what properties he must preserve and transmit (6 Manresa 54).
He is not however exactly a usufructuary as he is not required to put up a bond; and he is
entitled to a refund of useful improvements, at least insofar as an increase in value is
concerned (6 Sanchez Roman 701).
Effect of Nullity of Fideicommissary Substitution.--If the fideicommissary substitution is ull and
void the institution of the first heir shall not be affected. The fideicommissary clause shall
simply be considered as not written.
Art. 865. Every fideicommissary substitution must expressly made in order that it may be
The fiduciary shall be obliged to deliver the inheritance to the second heir, without other
deductions than those which arise from legitimate expenses, credits and improvements, save
in the case where the testator has provided otherwise.
To be effective, Fideicommissary Substitution Must be Expressly Stated.--The testator
must openly state they substitution in the will either by using the term fideicommissary
substitution and/or expressly imposing upon the first heir the absolute obligation to deliver
the property to the second heir designated. Otherwise, there will be no valid fideicommissary

What to deliver on the part of the first heir.-- The fiduciary of first heir shall deliver the
whole inheritance to the second heir which the former received from the testator unless
otherwise provided.
The first heir can deduct from the inheritance (1) legitimate expenses (such as
necessary repairs); (2) legitimate credits (loans for payments of taxes) or useful
improvements (such as building, a house, etc). Exception: If the testator has provided that no
deductions shall be made or only a specified amount shall be deducted.
Time of Delivery.--If there is no specific time fixed by the testator for the delivery of the
inheritance, the same must be delivered upon the death of the first heir of fiduciary (6
Manresa 138). As the first heir is already dead, his estate, through his heirs, shall cause the
Effect of alienation of the property subject to fiedeicommissary.--if the prrperty is alienated
(such as by sale) by the first heir, in favor of a third person, upon his death (first heir), the
buyer shall deliver the property to the second heir. This is regardless of the good faith of the
buyer because he acquired merely the rights of the first heir or fiduciary (Morelejo vs.
Maquiniano, (CA) 40 Off. Gaz. 227).
If the property is covered by a Torrens title, the second heir should cause the
registration of his right to the property
Section 4
Art. 871. The Institution of an heir may be made conditionally, or for a certain purpose or
Classes of Institutions.--There are three classes of institution of heirs:
(a) Institution with a condition (Articles 871 to 877; 833 to 884).
(b) Institution with a term (Articles 878, 880 and 885).
Institution for a certain purpose or cause also known as modal institution (Articles 871, 882
and 883).
Concept of Condition, Term or Mode.-1. Condition--It is very fact or event which is future or uncertain to whose realization a
juridical act is subordinated (6 Manresa 167). It is the designation of some future and
uncertain event on which the validity of an accepted obligation or testatmentary
provision depends (3 Valverde 368).

2. Term-As used in succession, it is the day or time when the effect of an institution of
heirs is to begin or cease. The designation of the day or time as to the
commencement or cessation of the institution of heirs is allowed by law (Art. 855). As
used in the law on obligations, it is the day or time when an obligation becomes
demandable or is terminated (See Art. 1193).
A term may either be:
(a) Suspensive or ex diemwhere the effects commence from a certain day or time.
(b) Resolutory or in diemwhere the effects cease on a day certain day or time.
3. Mode or Moois the statement of the purpose of the institution or the application of
the property left by the testator or the charge imposed by him (Art. 882). A mode is not
a condition.
Disposition when conditional.-- A disposition in a will is said to be conditional when its
effectivity is subordinated to the happening or non-happening of a fact or event which
is both future and uncertain. But in order to be binding, it must clearly appear from the
language used in the will or in another document executed in accordance with the
formalitiesw of a will (Morente vd. De la Santa, 9 Phil 387).
Limit of Institution with a Condition, Term or Modo.-- While the testator can impose a
condition, term or mode on the institution of heirs, it must be stressed, however, that
these could apply only on the free portion and not on the legitimes which are reserved
for the forced or compulsory heirs, It must be noted that no charge, condition or
substitution whatsoever can be imposed on the legitimes (Articles 870, 872 and 904).
The only burden allowable on the legitimes is a disposition prohibiting the division of a
property within a period of twenty (20) years (Art. 1083).
Definition of Legitime.--It is that part of the testator's hereditary estate which he cannot
dispose or because it is reserved for the forced or compulsory heirs, he may dispose of all his
estate or any part of it in favor of any persons having the capacity to succeed (ibid).
The legitime consists of a part or fraction of the entirety of the hereditary estate, and
not of a specific or determinate property.
The Legitimes are translated into specific properties only upon the delivery of the
properties to the heirs, which is usually done after all claims against the estate had been
settledin a project of partition.
From the definition of legitime in Article 886, it is patent that the portion of the
hereditary estate called legitime is to a certain extent withdrawn from the the patrimony of the
testator thus preventing him from disposing it by gratuitous title. Of course, he can still enjoy
the same because it is still his. It is only upon his death that his heirs become entitled thereto
(Art. 777).

In Rocha vs. Tuason, 39 Phil. 976, the Supreme Courts in a loose sense, in describing
the interest of a son in the estate of his own father said--the son and the father are in some
respects co-owner of the property of the latter.
In another case, an obiter dictum was stated that if a parent deliberately squanders his
properties to deliberately prejudice the successional rights of his children, the latter may got o
court to annul contracts entered into by their parents (Concepcion vs. Sta. Ana, 87 Phil. 787).
Children, it is submitted, may even go further by seeking an injunction to prevent their parents
from squandering their properties to the apparent prejudice of the former.
Art. 891 The ascendant who inherits from his descendant any property which the latter
may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged
to reserve such property as he may have acquired by operation of law for the benefit of
relatives who are within the third degree and who belong to the line from which said property
Purpose of Reserva Troncal.-- The purpose of reserva troncal is (T)o keep the property had
been received by the reservees, the purpose is already accomplished. From this time on,
there is no further occasion for its application (Tioco de Papa vs. Camacho, 144 SCRA 281),
Parties or Personal Elements Invvolved in Reserva Troncal.-1. Origin of the Propertyis a legitime ascendant or legitimate brother or sister of the
propositus from whom the property came from.
2. Propositusis the descendants who received the property by gratuitous title from the
3. Reservor or Reservistais the ascendant (parent or grandparent) who inherits the
property from the propositus by operation of law.
4. Reservees or Reservatariosare the relatives within the third degree counted from the
propositus who belong to the line where the property came from. They can be
common descendants of the reservor and the origin.
(1) Origin (Ascendant: Brother or Sister) F
(2) (Propositus) C
(3) Reservor (Ascendant) M
(4) (3rd degree relatives of C): R

(1) F - Father (Origin)
(2) C - Child (Propositus)
(3) M - Mother (Reservor/Reservista)
(4) R -= 3rd Degrees Relatives (Reservees/Reservatarios)
Operation of Reserva Troncal.-F died with a will. He gave a property (land) to C who later died intestate without
any issue in the direct descending line. M, mother of C inherited the property.
M must reserve this property for the relatives of C falling within the third degree of
consanguinity (reservees) because the property is subject to reserva troncal.
Upon M,s death, the property shall be delivered to the reervees (R) provided tey
survive the reservor. If no reservee/s survived the reservor (M), the property becomes part
of the estate of the latter.
All Elements must be Present.--The mere transmission of a property from the mother to
the son is not reserva troncal yet(Lacerna vs. Vda. De Corsino, 1 SCRA 1227). There must
be other transmissions.