FUTURE INHERITANCE
SUCCESSION CIVIL LAW
CHARACTERISTICS OF THE MAKING OF A WILL: When the class institution is too broad, the law
1. Personal. A person cannot delegate the making of a itself provides a limit.
will to third persons.
Example:
2. Free or Voluntary. As in any act that affects a
1. If the beneficiaries of the estate are “the poor”, the
transfer of real rights, the making of a will must be
law will interpret such provision as the poor living in
done voluntarily.
the locality where the testator lived.
3. Revocable or Ambulatory. Since the disposition will
2. If the provision states “to charity”, the law will
only take effect upon the death of the testator, he is
divide the amount in half. ½ will be given to the LGU
given the leeway to change his mind and revoke his will.
for public schooling and the other half to the coffers of
4. Formal. The making of a will is surrounded by
the testator’s church to be used for whatever the
solemnities prescribed by law.
church wants.
5. Unilateral. Only one party is necessary to make a
will.
6. Effective mortis causa. Regardless of the tenor of Designation of the persons, institutions or
the will, the effectivity of the property disposition is establishments.
effective only upon the testator’s death.
7. Individual. The making of a will is an individual act What is delegated is the determination of recipients of
and not a joint undertaking. the specified properties to persons, institutions, or
8. Statutory. The right of making a will thus allowing establishments within the specified class or cause.
the testator to control his property beyond his lifetime There is no testamentary discretion since the third
is a right provided by the legislature. person’s selection of recipients are limited to those
members within a class or cause that was already
The making of a will is strictly personal act. It cannot chosen by the testator.
be left to the discretion of a 3rd person or
accomplished through the instrumentality of an agent Mere implementation
or attorney.
The third person merely implements the disposition as
PROHIBITED DELEGATION to who are to receive the estate of the testator. For the
designated power to be ministerial in nature, the
The determination of the duration and/or efficacy of testator has to provide for guidelines or criteria that
the institution and the apportionment of property has already earmarked specific property or sums of
cannot be delegated without violating the personal money for such third person to merely distribute in
characteristic of a will. accordance with the criteria provided.
The testator may entrust to a third person the The law permits this type of delegation because of the
distribution of specific property or sums of money that basic premise that when a person makes a class
he may leave in general to specified classes or causes, designation, he is unfamiliar with such matter and so
and also the designation of the persons, institutions or he feels that another person is in a better position to
establishments to which such property or sums are to make an allocation of the sum set aside.
be given or applied.
Distribution of Property The article prohibits the delegation to a 3rd person the
power to decide whether a disposition should take
The distribution of a specified sum to a specified class effect or not. This is because in effect, the 3 rd person
of people can be entrusted to third person. Such becomes the testator.
delegation is allowed because testamentary discretion
had already been exercised and what is delegated is Article 788
merely the implementation of such discretion. If a testamentary disposition admits of different
interpretations, in case of doubt, that
interpretation by which the disposition is to be
Inherent Limitations
operative shall be preferred.
SUCCESSION CIVIL LAW
testator at the time of the time, he knows the extent of his liabilities, if
execution of the will. any, which will affect his net estate.
b. Proper objects of his bounty. These proper
objects naturally include those persons for
In the absence of any stipulation, all the proprietary whom the testator has a certain level of
interests of the testator in a specific property disposed affection or endearment which might merit a
of shall be included in the devise or legacy.
disposition in their favor.
Article 795 c. Character of the testamentary act.
Regardless of his mental state, the testator
The validity of a will as to its form depends upon the
shall be considered to have testamentary
observance of the law in force at the time it is
capacity if he understands that the
made.
preparation and execution of the will involves
Bar 1990, 2002 dispositions affecting his properties.
Intrinsic validity, defined
3. Express statutory prohibition. All persons who
This includes legitime, capacity of the heirs,
are not expressly prohibited by law.
disqualification of certain heirs, preterition,
collation, representation and validity of
Article 800
substitution. The law operating at the time of
The law presumes that every person is of sound
death shall be the governing law, because at the
mind, in the absence of proof to the contrary.
time of the execution of the will no right has yet
accrued to those who were designated as
The burden of proof that the testator was not of
beneficiaries in the will.
sound mind at the time of making his dispositions is
on the person who opposes the probate of the will;
EXTRINSIC VALIDITY
but if the testator, one month, or less, before
Refers to the formal validity. The law operating at the making his will was publicly known to be insane, the
time of the execution of the will is the governing law person who maintains the validity of the will must
because one cannot anticipate future law when making prove that the testator made it during a lucid
a will; otherwise, it would be very unreasonable and interval.
would not pass the test of due process.
When do you determine sanity or insanity?
STIPULATION BY THE TESTATOR
• At the time of the making of the will
A provision in the testator’s will which mandates the • Regardless of any supervening cause
application of the laws of another country instead of
his national law is without effect. (See Article 16 of the Article 801
Civil Code) Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable
validated by the supervening of capacity.
III. TESTAMENTARY CAPACITY
AND INTENT IV. FORMS OF WILLS
COMPONENTS OF TESTAMENTARY CAPACITY:
PURPOSE OF FORMALITIES
1. Age. The testator must be 18 years old and above
To regulate the making of the will which involves the
2. Soundness of mind. It does not mean complete
transfer of real rights effective upon the death of the
possession of mental and physical faculties. So long as
transferor; restrictions to prevent fraud as the testator
the testator has the ability to know the nature of his
shall be already deceased by the time the will shall be
estate, the proper objects of his bounty, and the
contested.
character of the testamentary act.
a. Nature of the estate. The testator knows WRITTEN REQUIREMENT
what properties belong to him which he
While both notarial and holographic will must be
intends to bequeath in his will. At the same
written, only the holographic will is required to be
SUCCESSION CIVIL LAW
written in its entirety by the hand of the testator 2. It must be attested and subscribed by the three or
himself. more credible witnesses in the presence of the testator
and of one another.
• In the absence of contrary proof, there arises the
presumption that the will was executed in a 3. All the pages of the will shall be numbered
language or dialect known to the testator if the will correlatively in letters placed at the upper part of each
was executed in a locality where the testator was page.
residing. There is no statutory requirement that
the will must expressly state the language used and 4. Each and every page of the will, except the last,
that such language was known by the testator. must be signed by the testator and by the instrumental
(Lopez vs. Liboro, 81 Phil 429 [1948]) witnesses on the left margin.
• A will written in English, which was not known to
the Igorot testator, is void. (Acop vs. Piraso, 52 Phil 5. It must be acknowledge before a notary public by the
600, cited in Suroza vs. Honrado, 110 SCRA 381 testator and by the three witnesses.
[1991])
6. The will must have an attestation clause which shall
Article 805 contain the following:
Every will, other than a holographic will, must be
subscribed at the end thereof by the testator a. The number of pages used upon which the will is
himself or by the testator's name written by some written.
other person in his presence, and by his express b. The fact that the testator signed the will and every
direction, and attested and subscribed by three or page thereof, or caused some other person to write his
more credible witnesses in the presence of the name, under his express direction, in the presence of
testator and of one another. the instrumental witnesses.
c. The fact that the witnesses witnessed and signed the
The testator or the person requested by him to write will and all the pages thereof in the presence of the
his name and the instrumental witnesses of the will, testator and of one another.
shall also sign, as aforesaid, each and every page
thereof, except the last, on the left margin, and all WHAT CONSTITUTES SIGNATURE
the pages shall be numbered correlatively in letters A complete signature is not required, the initials or
placed on the upper part of each page. even a thumb mark by the testator may be deemed
sufficient, especially when a testator cannot affix his
The attestation shall state the number of pages used signature due to some medical condition such as
upon which the will is written, and the fact that the paralysis.
testator signed the will and every page thereof, or
caused some other person to write his name, under PLACEMENT OF SIGNATURES
his express direction, in the presence of the The signatures of both the testator and of the witnesses
instrumental witnesses, and that the latter as required under the 1st paragraph of Art. 805 must be
witnessed and signed the will and all the pages found at the logical end of the will, that is, after all the
thereof in the presence of the testator and of one significant property dispositions in the will. This is to
another. avoid insertions as the signature at the end of the will
signifies the completion of intent and confirmation of
If the attestation clause is in a language not known the entire disposition found above it.
to the witnesses, it shall be interpreted to them.
NAME OF TESTATOR IN LIEU OF SIGNATURE
REQUISITES FOR NOTARIAL WILLS:
Instead of a signature, the testator’s name must appear
1. It must be subscribed at the end thereof by the at the end of the will written by some person in the
testator himself or by the testator’s name written by presence of the testator and by his express direction.
some other person in his presence, and by his express The person writing the testator’s name need not place
direction. his own signature, the law merely requires the name of
the testator.
Bar 1994
SUCCESSION CIVIL LAW
Meaning of “in the presence of”. It depends on the acknowledgement is essential for its formal
opportunity of the witnesses to see the execution validity.
of the will not upon proof of the fact that the eyes • The notary cannot acknowledge his signing of the
of the witnesses were precisely cast upon the will before himself. (Cruz vs. Villasor, 54 SCRA 31)
instrument at the moment of each and every • The will must be denied probate if it was
subscription. (Nera vs. Rimando, 18 Phil. 450 acknowledged before the notary public by the
[1911]) testator only without the witnesses. (Garcia vs.
Gatchalian, 21 SCRA 1056)
Attesting signature Subscribing signature
Its purpose is to attest, May be placed Article 807
declare, and confirm anywhere in the will, If the testator be deaf, or a deaf-mute, he must
that all the dispositions preferably on the left personally read the will, if able to do so; otherwise,
above are of and by the margin. Its purpose is he shall designate two persons to read it and
testator. merely to identify each communicate to him, in some practicable manner,
The attesting signature and every page of the the contents thereof.
of the testator must be will; hence, cannot
found at the logical end invalidate the will. Article 808
of the will; otherwise, If the testator is blind, the will shall be read to him
the will is void. twice; once, by one of the subscribing witnesses,
and again, by the
The attesting signatures notary public before whom the will is
of the witnesses must acknowledged.
be found at the end of SPECIAL FORMAL REQUIREMENTS
the attestation clause; Articles 807 and 808 are necessary to ensure that the
otherwise, the will is provisions of the will are known to the testator who is
void. blind, deaf, or deaf-mute. Failure to comply with these
provisions invalidates the will.
• The page containing the attestation clause was
signed by the witnesses on the left margin. This • Scope of “blindness”. Article 808 applies not
will is void since the signatures on the left margin only to blind testators but also to those who,
cannot be considered as an attesting signature. for one reason or another, are incapable of
(Cagro vs. Cagro, 92 Phil 1032) reading their wills (as when he is illiterate).
• When the dispositions are wholly written on only (Alvarado vs. Gaviola, Jr. G.R. 74695 [1993])
one sheet signed at the bottom by the testator and
3 witnesses, their signatures on the left margin of The requirement of reading the will to a blind testator
said sheet is not necessary. (Abangan vs. Abangan, is to make the provisions thereof known to him so that
40 Phil 477 [1919]) he may be able to object if they are not in accordance
with his wishes.
Article 806
Every will must be acknowledged before a notary Doctrine of Liberal Interpretation
public by the testator and the witnesses. The notary When there are defects and imperfections in the
public shall not be required to retain a copy of the attestation clause as to its form or language used
will, or file another with the office of the Clerk of therein, such defects and imperfections shall not
Court. invalidate the will, provided, there is no bad faith,
forgery, fraud, or undue and improper influence and
PURPOSE OF ACKNOWLEDGEMENT
pressure. But this doctrine only permits an exploration
To minimize fraud and the extension of undue pressure within the confines of the will to ascertain its meaning
and influence upon the testator. or to determine the existence or absence of the
requisite formalities of law
• The requirement of acknowledgement applies only
to notarial wills. A will is complete after it is Article 810
acknowledged before a notary public since its A person may execute a holographic will which must
be entirely written, dated, and signed by the hand
SUCCESSION CIVIL LAW
of the testator himself. It is subject to no other 1. The only guarantee of 1. The testimony of
form, and may be made in or out of the Philippines, authenticity is the the subscribing
and need not be witnessed. handwriting itself. witnesses and the
notary is a guaranty
Requisites of a holographic will of authenticity.
It must be executed in a language or dialect known to 2. If lost, a photostatic If lost, the
the testator (Article 804) and it must be entirely copy may be used to prove subscribing witnesses
written, dated, and signed by the hand of the testator the existence of the are available to
(Article 810). original. authenticate.
3. If oral evidence were 3. Difficult to
• If the holographic will has been lost or destroyed admissible, only one man convince 3 witnesses
and no other copy is available, the will cannot could engineer the fraud. and the notary to
be probated because the best and only evidence deliberately lie.
is the handwriting of the testator in said will. 4. In case of loss, the 4. In case of loss, the
But, a photostatic copy of the holographic will witnesses would testify as 3 subscribing
may be allowed because comparison can be to their opinion of the witnesses would be
made with the standard writings of the testator. handwriting they allegedly testifying to a fact
(Rodelas vs. Aranza, 119 SCRA 16 [1982]) saw, an opinion which which they saw,
cannot be tested in court namely the act of the
PURPOSE OF DATE IN HOLOGRAPHIC WILL. by oppositors because the testator of
It indicates the true date of execution of the will which handwriting itself is not at subscribing the will.
determines the age of the testator and his soundness of hand.
mind at the time of the execution of the will, and
whether the will was prepared after Aug. 30, 1950 Article 812
(effectivity of the New Civil Code) In holographic wills, the dispositions of the testator
written below his signature must be dated and
Generally, the date in a holographic will should include signed by him in order to make them valid as
the day, month, and year of execution. But an testamentary dispositions.
incomplete date will be sufficient if it does not create
a controversy. PURPOSE
Article 811 In a holographic will, dispositions written below the
A person may execute a holographic will which must testator’s signature should be dated and signed
be entirely written, dated, and signed by the hand inasmuch as this article permits the addition of new
of the testator himself. It is subject to no other dispositions through the execution of another will.
form, and may be made in or out of the Philippines, These dispositions are independent of each other such
and need not be witnessed. that the nullity of the first does not nullify the second
and vice-versa. This is so despite the fact that the
The one-witness rule shall be applied in case of
second is supposed to be an addendum because this
uncontested wills and three-witness rule in case of
addendum being dated and signed stands as a will on
contested wills. Expert testimony may be resorted to in
its own. But the disadvantage here is that you have to
either case upon the court’s discretion.
prove the genuineness and due execution of each will.
• Article 811 is not mandatory in the sense that 3 In a notarial will, additional dispositions found below
witnesses are required should a holographic will be the signature of the testator will make the whole will
contested as there may be no witnesses familiar void because under Article 805, the signature of the
with the handwriting and signature of the testator testator must be found at the logical end of the will.
or said persons may be unwilling to give a positive Therefore, should there be new dispositions in a
identification. (Azoala vs. Singson, 109 Phil. 102 notarial will, the same can only be introduced through
[1960]) a codicil.
Procedural difference in the probate of a notarial will Additional Dispositions in a Holographic Will:
as against holographic will.
Holographic will Notarial will
SUCCESSION CIVIL LAW
1. Add dispositions below the signature of the will the portion involved is an essential part of the
provided that said dispositions are also dated and will, such as the date.
signed and everything is written in the hand of the
testator himself. AMENDMENTS
2. Insert additional matters or cancel dispositions
provided that the same are written and signed by the Amendments may be done in a holographic will by
testator himself without need of a date. insertion, cancellation, erasure or alteration, provided
3. Execute a valid codicil which may either be notarial they are authenticated by the full signature of the
or holographic. testator himself. This is because the amendment is
meant to be a secret. We can only rely on the testator.
Article 813 So, he can amend the will provided he signs.
When a number of dispositions appearing in a
• In Kalaw vs. Relova, it was argued that since the
holographic will are signed without being dated, and
alteration was not signed, the alteration is not
the last disposition has a signature and a date, such
effective and therefore the original will stands. But
date validates the dispositions preceding it,
whatever be the time of prior dispositions. the SC held that “where the erasure and
subsequent replacement of the sole heir was
APPLICATION unsigned, and this was the only disposition, the
entire will is void because nothing else remains.
This is a situation where there are various testamentary
dispositions in a will, made by the testator presumably Bar 1990
on different dates, which are signed but not dated. FORMAL VALIDITY
Should the last testamentary disposition be dated and a. If the testator is a Filipino and the will is executed
signed, then all the dispositions above would be in the Philippines then its formal validity is governed
validated by this provision. But it presupposes that the by the CC of the Philippines.
dispositions are contained in one instrument or b. If the testator is a Filipino and the will is executed
document, not necessarily in one sheet or page. in a foreign country, then its formal validity is
governed either:
Regardless of the number of dispositions, for so long as i. By the law of the place where the will was
each has been signed and the last disposition is signed made
and dated, all the other dispositions are considered as ii. By the CC of the Philippines
one execution or amendment of a holographic will. c. If the testator is a foreigner and the will is
executed in the Philippines, then its formal validity
The theory is that the date in the last disposition is is governed either:
presumably the date when the whole disposition was i. By the CC of the Philippines
signed. The disadvantage is that you have to prove ii. By the law of his own country
testamentary capacity from the date the will was first d. If the testator is a foreigner and the will is
written to the date of the last disposition. executed in a foreign country, then its formal
validity is governed either:
Bar 1996 i. By the law of the place where the will was
Article 814 made
In case of any insertion, cancellation, erasure or ii. By the law of his own country
alteration in a holographic will, the testator must iii. By the law of the country where he
authenticate the same by his full signature. resides
1. Full signature does not necessarily mean the iv. By the CC of the Philippines
testator’s full name: it rather means his usual and
customary signature. Bar 2000, 2008
2. Effect of non-compliance with this article- the Article 818
change (insertion, cancellation, etc.) is simply Two or more persons cannot make a will jointly, or
considered not made. “The will is not thereby in the same instrument, either for their reciprocal
invalidated as a whole, but at most only as regards benefit or for the benefit of a third person.
the particular words erased, corrected or
inserted.” (Kalaw v. Relova, 132 SCRA 237 [1984], JOINT WILL
citing Velasco V. Lopez, 1 Phil. 720 [1903]), unless
SUCCESSION CIVIL LAW
A joint will is a will authored by two or more persons A blind, deaf or dumb cannot be a witness to the
and signed by them as co-makers. It is a will authored execution of a will since witnesses are generally
by two or more persons for their reciprocal benefit. required to identify the will, certify that certain
These wills contradict the characteristic of the formalities were complied with, attest to the execution
execution of a will being a purely personal and of the will, and communicate what they saw or heard
individual act. during the execution of the will, all for the purpose of
preventing fraud.
Several reasons have been cited for this declared public
policy against joint wills: Literacy requirement
1) The limitation on the modes of revocation Unlike a testator which does not require literacy, a
(i.e., one of the testators would not be able to witness to a notarial will (because holographic will
destroy the document without also revoking it need not be witnessed) must possess certain level of
as the will of the other testator, or in any education, intelligence, and training so that there is
event, as to the latter, the problem of some level of assurance that the witness will be
unauthorized destruction would come in); credible and reliable and that his account of what went
2) The diminution of testamentary secrecy; on is both accurate and true.
3) The danger of undue influence;
4) The danger of one testator killing the other. Domicile Requirement
The intrinsic validity of wills is governed by the national This is for convenience so that such witness can be
law of the person whose succession is under covered by the compulsory processes of the court,
consideration. Thus, even if a joint will is authorized in particularly the subpoena.
a foreign jurisdiction, the same cannot be valid in the
Philippines. The disqualification in Article 821 does NOT apply to a
non-resident Filipino who wishes to execute his will in
5. any person claiming against the witness, his spouse, 2. It is made after the execution of the will.
parent, or child. 3. It is to be annexed and taken s part hereof.
4. It explains, adds or alters the original will.
Brothers and sisters of the witness are not included in 5. It must be executed following the formalities of a
the disqualification because they are not compulsory will.
heirs of such witness.
Requisites for incorporation by reference
The disqualification does not extend to legitime. Incorporation by reference is done merely by
Hence, for example, the child is a witness in his mentioning in the will that a certain document is
mother’s will, he is disqualified to inherit only with referred thereto though not necessarily attached to the
respect to the free portion, but not to the legitime. will itself. The following are the requisites for
incorporation by reference:
The disqualification does not also apply when there is a
fourth witness. So even if there is one witness coming 1. The document referred to exists at the time of the
within the prohibitions in Article 823 as long as there execution of the will.
are three other disinterested witnesses, even the 2. The will must clearly describe and identify the
witness disqualified by virtue of Article 823 will be able document, stating among other things the number of
to receive that portion given to him by the will as the pages, its title, year, etc.
requirements of the law have been complied with. 3. The document referred to must be identified by clear
and satisfactory proof as being the document being
Article 824 referred to in the will.
A mere charge on the estate of the testator for the 4. The required signatures (testator and the witnesses)
payment of debts due at the time of the testator's on every page of the document except in the case of
death does not prevent his creditors from being voluminous books of accounts or inventories (but must
competent witnesses to his will. be still signed randomly)
The charge referred to in this provision is a debt of the Can there be incorporation by reference in a
estate of the testator which will be paid even without holographic will?
a provision in the will during the liquidation of the
estate. If the creditor receives part of the estate as an No. By incorporating, the extraneous document
heir, legatee or devisee and, at the same time, he is a
becomes an integral part of the will. The document to
witness to such will, he is disqualified to inherit based be appended must be entirely written, dated, and
on the prohibition in Article 823. signed by the hand of the testator himself. Also, the
reference must be signed by the testator and the
witnesses. But in holographic will, there may be no
VI. CODICILS AND witnesses at all.
INCORPORATION BY
REFERENCE VII. REVOCATION OF WILLS
CODICIL
AND TESTAMENTARY
A codicil is a supplement or addition to a will, made DISPOSITIONS
after the execution of a will and annexed to be taken
as part thereof, by which any disposition made in the Article 826
original will may be explained, or added to, or altered. A will may be revoked by the testator at any time
It is ALWAYS made after the original will. before his death. Any waiver or restriction of this
right is void.
While treated as an independent document, a codicil
serves as a supplement or an annex to the will itself, REVOCABLE WILLS
thus, any codicil executed before a will is invalid. Wills by their very nature are ambulatory and
inoperative till the death of the testator.
REQUIREMENTS FOR A VALID CODICIL:
1. It is a supplement or addition to a will.
SUCCESSION CIVIL LAW
Article 834
The recognition of an illegitimate child does not lose
IX. ALLOWANCE AND
its legal effect, even though the will wherein it was DISALLOWANCE OF WILLS
made should be revoked.
PROBATE
The recognition does not lose its legal effect even if the
will is revoked, because the recognition is not a A special proceeding for establishing the validity of a
testamentary disposition, it takes effect upon the will. It seeks to prove:
execution of the will and not upon the death of the
1. that the instrument submitted is the will of the
testator.
testator;
2. that it was executed according to the formalities
VIII. REPUBLICATION AND required by law;
REVIVAL OF WILLS 3. that the testator had the testamentary capacity at
the time of execution.
REPUBLICATION
It is a method by which the testator restores to validity KINDS OF PROBATE PROCEEDINGS:
as his will an instrument formerly executed by him as 1. Post mortem probate – where the proceedings are
his will which was originally invalid for want of proper held after the death of the testator.
execution.
2. Ante mortem probate – where the testator tests the
Two types: validity of his will before the probate court during his
lifetime
1. Express republication or re-execution. A will
which was void as to form can only be republished Advantages of ante mortem probate:
through re-execution, which means that the whole
document must be rewritten (now in compliance with 1. Fraud, intimidation and undue influence are
the form). minimized because the courts will have an easier time
determining the mental condition of a live testator than
2. Implied republication or republication by a dead one.
reference. A will which is valid as to form, but void as 2. If the will does not comply with the requirements of
to other aspects may be republished by reference, law, it can be corrected immediately.
which means the execution of a codicil that contains a 3. If probated during the lifetime of the testator, the
sufficient reference to the previous will. only question left after the testator’s death would be
the intrinsic validity of the dispositions.
The republished will shall speak as of the date of
republication and shall be governed by the formalities
required by law at the time of republication.
SUCCESSION CIVIL LAW
Questions to be determined by the probate court: 2. Lack of testamentary capacity. While the testator
1. Whether the instrument offered for probate is the generally enjoys the presumption of soundness of mind,
last will and testament of the decedent (question of a testator, regardless of his physical and mental
identity) condition, must know the nature of his estate, the
2. Whether the will was executed according to the proper objects of his bounty, and the character of the
formalities required by law (question of due execution) testamentary act to possess testamentary capacity.
– compliance with Arts. 805-808 for notarial wills and 3. Vice of consent. Since the making of a will is personal
Art. 810 for holographic wills and voluntary, when consent is vitiated, the will must
3. Whether the testator had testamentary capacity at be denied probate. As compared with contracts, when
the time of execution (question of testamentary there is a vice of consent, the contract merely becomes
capacity) – at the time of the execution of the will, the voidable.
testator was at least 18 years old and was of sound
mind. X. INSTITUTION OF HEIR
Article 840
Stages of a Probate Proceeding:
Institution of heir is an act by virtue of which a
1. Probate proper. The court determines the existence testator designates in his will the person or persons
of testamentary capacity, due execution and the who are to succeed him in his property and
identity of the instrument with that of the testator’s transmissible rights and obligations.
will.
INSTITUTION OF HEIR
2. Distribution. Where the court examines the intrinsic
validity of the will. The will is enforced in accordance It is the process whereby the testator designates
with the provisions of the will so long as it does not another person/s who are to receive a fractional part
violate the law, such as the law on legitime and the of his estate. When a person is instituted to a fractional
qualifications of the beneficiary to succeed. portion of an estate, he is called an heir; if a person is
supposed to receive a specific property comprising the
Article 839 estate, he is called either a legatee or devisee.
The will shall be disallowed in any of the following
cases: It is not necessary that a will must contain an institution
(1) If the formalities required by law have not been of heirs since the estate may be distributed through the
complied with; process of giving legacies and devises.
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its When a testator executes a will giving legacies and
execution; devises to specific persons, a project of partition is
(3) If it was executed through force or under duress, totally irrelevant because the testator has already
or the influence of fear, or threats; provided for the partition of his estate in his will. A
(4) If it was procured by undue and improper Project of Partition becomes important only if the
pressure and influence, on the part of the testator gives a fractional part of the estate to two or
beneficiary or of some other person; more heirs.
(5) If the signature of the testator was procured by
REQUISITES OF A VALID INSTITUTION:
fraud;
(6) If the testator acted by mistake or did not intend 1. The will must be extrinsically valid.
that the instrument he signed should be his will at 2. The will must be intrinsically valid.
the time of affixing his signature thereto. 3. The institution which refers to the naming of the
person and the specification of the share must be made
personally by the testator because the making of a will
SUMMARY OF DISALLOWANCE UNDER ARTICLE 839:
is a personal act.
1. Non-compliance with formalities. For notarial wills, 4. The instituted heir must be identifiable.
Articles 804-809 are applicable while for holographic 5. No vice of consent.
wills, Arts. 804 and 810 are controlling. The law to be
Article 841
applied in the determination of compliance with
A will shall be valid even though it should not
formalities will be the law at the time of the execution
contain an institution of an heir, or such institution
of the will.
should not comprise the entire estate, and even
SUCCESSION CIVIL LAW
though the person so instituted should not accept circumstances may be used by the testator to allow for
the inheritance or should be incapacitated to identification. Should the testator fail to provide the
succeed. name of the heir, the institution shall still be valid if
the testator provided some other designation that will
In such cases the testamentary dispositions made in identify the heir.
accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs. Two or more persons fit the description
The validity of the will does not depend on the heir If two or more persons fit the description and, despite
(non-acceptance or incapacity) but depends on the the use of extrinsic evidence, the similarity of
compliance with the formalities required by law. In circumstances cannot be resolved in favor of either,
case the heir instituted does not accept the inheritance then none will be an heir
or is incapacitated to succeed, then the share of such
Where heir is unknown
heir shall be disposed of under certain rules, not
necessarily under the rules of intestacy. The disposition shall also be stricken out in case of an
unknown heir, where his identity cannot be ascertained
Even if the will does not contain any testamentary even with the use of extrinsic evidence.
disposition, it will be formally valid provided it
complies with all the formal requisites. This does not refer to one with whom the testator is not
personally acquainted. The testator may institute
Means of distributing the estate:
somebody who is a perfect stranger to him, provided
1. Through the institution of heirs the identity is clear.
2. Through giving legacies and devises.
Institution without designation of shares
Compulsory system of succession
In the absence of any fractional designation, the heirs
The Philippine legal system adopts a compulsory system instituted shall inherit equally based on the theory that
of succession where a portion of the estate is reserved had the testator wanted an heir to inherit more than
by law for certain persons. Hence, when a person has the other, the testator should have provided it in the
no compulsory heirs as defined in Article 887, he can will.
dispose of his entire estate to any person. A testator
can dispose of his entire estate (including legitime) as This article will apply only in testamentary succession,
long as he respects the shares reserved by law for that is to say, only among testamentary heirs as such
compulsory heirs. (or devisees or legatees). It will not apply to an heir
who is both a compulsory and a testamentary heir, for
When estate is all legitime in that case the heir will get his legitime and his
testamentary portion.
X is survived by his spouse, legitimate child, and 2
legitimate children. Under our compulsory system of Interpretation of Institution of heirs
succession, the legitimate child gets ½; the spouse gets 1. Those who are individually instituted and those
¼; and each illegitimate child gets 1/8. collectively instituted are deemed individually
instituted.
How much can be disposed of by will- 2. As to testamentary succession, when there is no
discrimination, there is a clear indication that, as
a) If the testator leaves no compulsory heirs- the far as the testator is concerned, he has equal
entire hereditary estate. affection for his brother and sister regardless of
b) If the testator leaves compulsory heirs- the the full or half-blood relationship.
disposable portion; i.e., the net hereditary 3. When a person and his children are instituted, they
estate minus the legitimes. inherit at the same time from the testator.
The amount of legitimes depends on the kinds and
number of compulsory heirs. FALSE CAUSE
The heir must be identified preferably by name and It is synonymous to a mistake, which vitiates the
surname. If the name is not known, other intelligence of the consent.
SUCCESSION CIVIL LAW
The falsity of a cause does not affect the validity of the 1. it is clear that the testator wanted to distribute his
disposition because the fact that the testator gave entire estate to all of the instituted heirs AND
something in the will is indicative of his intent to give
something to the person such that the false cause is not 2. all of the aliquot portions given to the heirs do not
deemed as the consideration of that institution but cover the entire estate.
merely the motive of that institution. The
consideration remains to be liberality. If the intention of the testator was not to cover the
entire estate, then Article 851 will operate to distribute
However, if the disposition is extremely explicit in the vacant portion by intestacy.
stating that the testator would not have instituted the
heir were it not for the false cause, then the institution Solution to increase shares proportionally
becomes invalid.
Adjust the dispositions in such a way that the ration at
Requisites for false cause: which the heirs would inherit shall be maintained.
testator from denying the compulsory heir of his renounces the inheritance, shall transmit no right to
legitime by merely omitting his name in the will. his own heirs except in cases expressly provided for
in this Code.
Who can claim preterition?
Compulsory heirs in the direct line, specifically GENERAL RULE:
ascendants and descendants, and the adopted children.
No one can transmit to another more rights than what
Relations in a direct line are those that are traceable
he himself has. Whether the heir is a legal, voluntary
between a descendant and an ascendant. Otherwise,
or compulsory heir, his death before the testator, or
the relations are in a collateral line. The spouse is not
incapacity to succeed, or his repudiation or
a relative in the direct line and therefore cannot claim
renunciation of the inheritance, prevents him from
preterition.
acquiring any rights, therefore, he transmits nothing to
Requisites of preterition his own heirs.
6. The fideicommissary substitution must be clearly (4) Those which leave to a person the whole or part
expressed in the will. of the hereditary property in order that he may
7. The fideicommissary substitution is imposed on the apply or invest the same according to secret
free portion of the estate and not on the legitime. instructions communicated to him by the testator.
If the second heir should predecease the first heir, the When the testator leaves his property in naked
fideicommissary substitution shall still be valid and ownership to one person and in usufruct to another,
the right of the second heir is transmitted to his heirs, upon the expiration of the latter’s right the former
provided that the second heir survived the testator. As acquires such usufruct, thereby consolidating the
long as the first and second heir were living or at least absolute ownership to him. BUT it does not apply where
conceived at the time of the testator’s death, then the testator calls a third person to succeed the
the fideicommissary substitution shall be operative usufructuary. If more than one person is called
regardless of any other contingency that might befall successively to the usufruct, all of them must be living
the heirs. at the time of the testator’s death and they must not
be beyond one degree.
Article 867
The following shall not take effect: The right to impose the condition of inalienability is
(1) Fideicommissary substitutions which are not limited to the free portion of the estate, and even in
made in an express manner, either by giving them this case, the period of inalienability cannot exceed 20
this name, or imposing upon the fiduciary the years. The testator cannot declare the legitime of any
absolute obligation to deliver the property to a compulsory heir as inalienable.
second heir;
(2) Provisions which contain a perpetual prohibition
to alienate, and even a temporary one, beyond the
XII. CONDITIONAL
limit fixed in article 863; TESTAMENTARY DISPOSITIONS
(3) Those which impose upon the heir the charge of
paying to various persons successively, beyond the
AND TESTAMENTARY
limit prescribed in article 863, a certain income or DISPOSITIONS WITH A TERM
pension;
Article 871
SUCCESSION CIVIL LAW
b. Resolutory or suspensive. It is a disposition made upon the condition that the heir
shall make some provision in his will in favor of the
If the condition is suspensive, then the fulfillment of
testator or of any other person. The two dispositions
that condition will determine the demandability of the
must each appear in a will. Such dispositions are void
institution. If the condition is resolutory, then the
because they make succession and the rights
fulfillment of the condition will terminate the
appurtenant thereto, contractual.
entitlement to the disposition.
Article 876
c. Impossible condition.
Any purely potestative condition imposed upon an
Conditions that are either legally impossible for being heir must be fulfilled by him as soon as he learns of
contrary to law or public policy or physical impossible the testator's death.
due to forces of nature.
This rule shall not apply when the condition, already
Bar 2002 complied with, cannot be fulfilled again.
3. Mode
A modal institution is one where the testator states Article 877
the object of the institution, the charge imposed on If the condition is casual or mixed, it shall be
the heir, or the application of the property. It is sufficient if it happen or be fulfilled at any time
contractual in nature in the sense that it becomes a before or after the death of the testator, unless he
covenant with the testator. When the testator puts has provided otherwise.
a charge on the inheritance, the heir receives the
property immediately but subject to the Should it have existed or should it have been
performance of a prestation. fulfilled at the time the will was executed and the
testator was unaware thereof, it shall be deemed as
Mode Term/Condition complied with.
Generally, mode does Term and condition
not resolve or suspend suspend or resolve but
but obligates. do not obligate.
SUCCESSION CIVIL LAW
If he had knowledge thereof, the condition shall be go upon the violation of the condition such as the
considered fulfilled only when it is of such a nature substitute, the co-heirs (in case of accretion), or the
that it can no longer exist or be complied with legal heirs (in case of intestacy).
again.
Article 880
Article 878 If the heir be instituted under a suspensive
A disposition with a suspensive term does not condition or term, the estate shall be placed under
prevent the instituted heir from acquiring his rights administration until the condition is fulfilled, or
and transmitting them to his heirs even before the until it becomes certain that it cannot be fulfilled,
arrival of the term. or until the arrival of the term.
Effect of institution with a suspensive term The same shall be done if the heir does not give the
security required in the preceding article.
Here, the right is already transmitted to the heir upon
the death of the testator. The term merely serves to Article 881
determine the demandability of such right already The appointment of the administrator of the estate
acquired. The heir instituted under a suspensive term mentioned in the preceding article, as well as the
acquires the right from the moment of the testator’s manner of the administration and the rights and
death pursuant to Article 777. It is the taking of the obligations of the administrator shall be governed
possession that is deferred. by the Rules of Court.
Effect of an institution with a suspensive condition Between the time of the testator’s death and the
time of the fulfillment of the suspensive condition or
An heir who dies before the suspensive condition is of the certainty its non-occurrence – property is to
fulfilled, even if he survives the testator, transmits no be placed under administration.
rights whatsoever since such heir’s civil personality
disappears and his legal capacity to succeed 1. If condition happens – the property will be turned
terminates. At the moment the heir dies, he has not over to the instituted heir.
yet acquired any rights, and therefore, he cannot 2. If it becomes certain that condition will not happen
transmit any to his own heirs. Even if the condition – property will be turned over to a secondary heir
should happen later, there can be no more acquisition (if there is one) or to the intestate heirs, as the
of rights, because he would have had no capacity to case may be.
succeed by that time.
Article 882
Article 879 The statement of the object of the institution, or
If the potestative condition imposed upon the heir the application of the property left by the testator,
is negative, or consists in not doing or not giving or the charge imposed by him, shall not be
something, he shall comply by giving a security that considered as a condition unless it appears that such
he will not do or give that which has been prohibited was his intention.
by the testator, and that in case of contravention he
will return whatever he may have received, That which has been left in this manner may be
together with its fruits and interests. claimed at once provided that the instituted heir or
his heirs give security for compliance with the
CAUCION MUCIANA wishes of the testator and for the return of anything
he or they may receive, together with its fruits and
The heir acquires the right to the hereditary properties
interests, if he or they should disregard this
from the moment the succession opens, i.e. the death
obligation.
of the testator. However, the heir is required to give a
bond or security, known as caucion muciana, which he When there is doubt as to whether it is a mode or a
will not do or no give that which the testator prohibits. condition, the institution must be construed as modal
If he does not put up a security, he can be prevented
and not conditional.
from acquiring his share from the estate and Art. 880
shall be applicable. The persons who can demand for When there is doubt as to the existence of a modal
caucion muciana are those to whom the property will institution, the statement of the testator should not be
SUCCESSION CIVIL LAW
considered as a mode, which imposes an obligation, but During the interim period between the death of T, the
merely a suggestion or discussion which the heir may or testator, and the arrival of the period (death of Y),
may not follow. the ½ property will go to the legal or intestate heirs
until the arrival of the period in which case such heirs
Article 883 must then deliver it to Y, the heir instituted under a
When without the fault of the heir, an institution suspensive term.
referred to in the preceding article cannot take
effect in the exact manner stated by the testator, 3. If the institution is with a resolutory condition.
it shall be complied with in a manner most
analogous to and in conformity with his wishes. Example: T gives to X ½ of his estate now only until the
day Y marries Z.
If the person interested in the condition should
X will immediately enter into the hereditary property
prevent its fulfillment, without the fault of the heir,
upon T’s death but once the resolutory condition
the condition shall be deemed to have been
occurs (Y marries Z), X must return the hereditary
complied with.
property to either the persons designated by T or in
default thereof, to T’s intestate heirs.
Article 884
Conditions imposed by the testator upon the heirs
4. If institution is with a resolutory term.
shall be governed by the rules established for
conditional obligations in all matters not provided Example: T gives ½ of his estate to X now but only until
for by this Section. the day Y dies. X will immediately enter into the
hereditary property upon T’s death but once the
Article 885 resolutory term arrives (Y dies), X must return the
The designation of the day or time when the effects hereditary property to either the persons designated by
of the institution of an heir shall commence or cease T or in default thereof, to T’s intestate heirs.
shall be valid.
XIII. LEGITIME and INTESTATE SHARE
In both cases, the legal heir shall be considered as
called to the succession until the arrival of the Bar 1992, 1997, 1998, 1999, 2000, 2003, 2004,
period or its expiration. But in the first case he shall 2005, 2006, 2007, 2010
not enter into possession of the property until after Surviving Heir Legitimate Intestate
having given sufficient security, with the Share
intervention of the instituted heir. Illegitimate 1/3 ½
Children
Illustration of Arts. 880 and 885
Surviving 1/3 1/2
1. If the institution is with a suspensive condition.
Spouse
Example: T will give to X ½ of his estate if Y dies of
malaria. Remaining 1/3
is free
During the interim period between the death of T, the portion(Art.
testator, and the fulfillment or non-fulfillment of the 894)
suspensive condition (death of Y by malaria), the ½ Illegitimate ¼ ¼
property will be put under administration until the Children
fulfillment or non-fulfillment of the said condition in
which case the administrator must then deliver the ½ Surviving 1/8 ¼
property to either X upon the fulfillment of the Spouse
condition or to persons entitled to it, in case the
condition is not fulfilled. Legitimate ½ 1/2
parents (Art. 899)
2. If the institution is with a suspensive term. Illegitimate ¼ ½
Children
Example: T will give to X ½ of his estate if Y dies.
SUCCESSION CIVIL LAW
reservation is actually in favor of all the third legitime cannot be burdened by the testator. As to
degree relatives, without due regard to the number voluntary heirs, their liability must not exceed the
of degrees. amount he shall receive; and as to another legatee or
devisee, the liability must not exceed the amount of
Theory of Delayed Intestacy legacy or devise he shall receive.
It provides that when the resolutory condition of the
LEGACY OF CREDIT VS. LEGACY OF REMISSION.
reserve is fulfilled, the properties are distributed to
the reservees as if they are inheriting from the It is a legacy where the subject is an intangible
prepositus at the time of fulfillment of the condition. movable property. In a legacy of credit, the right to
collect the debt from another person is bequeathed to
Reserva minima and Reserva maxima. the legatee; whereas, in a legacy of remission, the
These are theories used to determine what properties right to collect the debt from the legatee himself is
shall become reservable because the prepositus did extinguished by condonation. As a general rule, the
not specify the property from where the legitime or credits assigned or condoned are only those existing at
the free portion is to be paid out from. They are the time of death of the testator since a person
applicable only when the prepositus executes a will cannot give something which he does not have nor
instituting therein his ascendant as his heir. As a condone a debt that does not exist.
result, ½ of the estate passes to the latter by
A LEGACY OF CREDIT MAY BE GENERIC OR SPECIFIC.
operation of law as legitime and the other ½ by will of
the descendant. A generic legacy of credit is all-inclusive and
comprises all owed to the testator arising from any
HOW TO DETERMINE LEGITIME? (ART. 908) and all lawful transactions. A specific legacy of credit
includes only those specifically identified by the
Value of P&R (at the time of death) testator in his will which may also include those
accruing subsequent to the execution of the will
Less: Debts and Charges provided that such intention appears.
Net Estate
A LEGACY OF CREDIT DOES NOT RESULT IN NOVATION.
Add: Collationable Donation The legacy does not extinguish the underlying
Theoretical Net Hereditary Estate transaction; neither does a legacy create a new one in
lieu thereof. The underlying transaction is separate
XV. LEGACIES AND DEVISES and distinct from the credit. It is the same that is
passed by the testator to the legatee. Novation would
LEGACY VS. DEVISE extinguish the original credit which would therefore
make the legacy ineffective.
A legacy is one whose object is a movable property
(Article 416) while a devise is one whose object is an A LEGACY OF REMISSION MAY BE GENERIC OR SPECIFIC.
immovable property (Article 415).
A generic legacy of remission includes all debts owed
PARTIES TO A LEGACY OR DEVISE: to the testator at the time of the execution of the
will. It does not include future debts since there is no
1. The testator who orders or charges the legacy;
debt to condone. A specific legacy includes only those
2. The legatee or devisee who will receive the legatee
identified by the testator in the will.
or devisee;
3. The person obliged to deliver the legacy or devise; LEGACY OF CREDIT LEGACY OF REMISSION
4. The administrator who may be appointed by the
1. It involves 3 parties: 1. It involves two
testator in the will or by the court shall be charged
(a) the testator (who is parties: (a) the
with the delivery of the legacies and devises. a creditor); (b) a testator (who is a
debtor; and (c) legatee creditor); and (b) a
WHAT IS THE EXTENT OF LIABILITY OF THOSE PERSONS legatee (who is a
REQUIRED TO PAY THE LEGACIES AND DEVISES? debtor)
2. The testator 2. The testator 3. If a person dies with a will that has subsequently lost
executes a will and executes a will saying its validity;
gives (assigns) the that if at the time of 4. When the will does not institute an heir or when said
credit to the legatee. his death, the debt is institution is void;
Should the testator die still outstanding the 5. When the will does not dispose of all the property
while the debt is legatee does not need belonging to the testator;
outstanding, the to pay. He condones 6. If the suspensive condition attached to the
debtor must pay the the debt by will. institution of the heir does not happen or is not
legatee. fulfilled;
3. The legatee obtains 3. The legatee- 7. If the heir predeceases or repudiates the
a receivable from the debtor’s debt is inheritance;
testator. The legatee extinguished by the 8. If the heir is incapacitated;
acquires the right to legacy granted to him 9. Expiration of the term or period if the institution is
demand payment. by the testator. The in diem or resolutory;
legatee is freed from 10. The happening of a resolutory condition;
his obligation to pay. 11. Non-compliance or impossibility of complying with
the will of the testator;
Article 950 12. Preterition.
If the estate should not be sufficient to cover all the
legacies or devises, their payment shall be made in Rationale of the rules of intestacy: The law
the following order: distributes the estate under the presumed will of the
(1) Remuneratory legacies or devises; decedent.
(2) Legacies or devises declared by the testator to
Preference of Testacy over Intestacy. The testator’s
be preferential;
wishes and intention constitute the first and principal
(3) Legacies for support;
law in the matter of testaments. The courts must exert
(4) Legacies for education;
every reasonable effort to give effect to the testator’s
(5) Legacies or devises of a specific, determinate
will by disregarding minor defects of form that do not
thing which forms a part of the estate;
compromise the genuineness, authenticity and the
(6) All others pro rata.
voluntariness of the execution of the will.
Order of Preference is applied only if there are no
Nera v. Rimando: “It is not necessary for the testator
compulsory heirs and the inheritance is insufficient
and the witnesses during the execution of the will, to
to discharge all the gifts given by the testator in his
actually see each other affix their respective
will. The requisites are as follows:
signatures, it being sufficient that they might have seen
(1) In his will the testator gave various legacies and each other sign, had they chosen to do so, considering
devises; their mental and physical condition and position with
(2) estate does not have sufficient assets to pay all relation to each other at the moment of the inscription
these legacies and devises, after payment of the claims of each signature.”
against the estate, if any, the estate tax, and the
Alvarado v. Gaviola, Jr.: “The will of a blind testator
expenses of administration;
was admitted to probate even if during the execution
(3) testator has no compulsory heirs.
of the said will, the same was read to the testator only
If the testator has compulsory heirs, the order of once (not twice as required by Art. 808) by a person
preference in the distribution of the estate is who was neither the notary public before whom the will
governed by Article 911. was acknowledged nor one of the attesting witnesses.”
XVII. RULES IN DISTRIBUTING 4. While the representatives are entitled to the entire
share of the person represented in the case of intestate
VACANT SHARES succession, he is only entitled to the legitime in the
case of testamentary succession, and not to what is
voluntarily given by will.
To distribute the vacant share created by any
contingencies in succession such as disinheritance, 5. The right is subject to the barrier imposed by Article
repudiation, incapacity, and predecease, the law 992 in that while a legitimate child can always
provides for the ISRAI rule (institution, substitution, represent, whether succeeding to a legitimate or
illegitimate ascendant or parent, the illegitimate child
representation, accretion, intestacy). The following is
can represent only when the parent to be represented
the order of preference. is himself an illegitimate child of the descendant.
1. Institution. Giving the vacant share according to the 6. The representatives must be nephews and nieces
intent of the testator as specified in his will, either give because the law requires that they be children of
out the legacies and devises; or distribute the estate in brother or sister of the decedent.
accordance to institution of heirs.
7. Nephews/nieces of the full blood get double the
share of nephews/nieces of the half-blood.
2. Substitution. The testator makes a provision in the
will in anticipation of certain contingencies. 8. Collateral relatives exercise the right of
representation only in intestacy because brothers and
3. Representation. Right created by fiction of law, by sisters are not compulsory heirs and as voluntary heirs,
virtue of which the representative is raised to the place they can never be represented.
and degree of the person represented, and acquires the
rights which the latter would have if he was living or if 9. An adopted child cannot exercise the right of
could have inherited. representation because under the FC, he is related only
to the adopters.
CHARACTERISTICS OF RIGHT OF REPRESENTATION:
1. Right of Subrogation. This is because the more 10. The representative must be alive or at least
remote relatives are by fiction of law elevated to the conceived at the time of death of the person
rank of the nearer relative. represented
2. Exception to the rule of proximity. 4. Accretion. A right by virtue of which, when two or
more persons are called to the same inheritance, devise
3. Statutory Concession. The law, not the person or legacy, the part assigned to the one who renounces
represented, calls the representatives to the or cannot receive his share, or who died before the
inheritance because the right of representation is a testator, is added or incorporated to that of his co-
creation of law. The representatives inherit from the heirs, co-devisees, or co-legatees. (Article 1015)
person whose estate is under consideration.
General rule: If any of the intestate heirs should be
LIMITATIONS ON THE RIGHT OF REPRESENTATION: unable or unwilling to accept the inheritance, the
vacant portion pertaining to such heir shall not devolve
1. Available only in the direct descending line, never in to the relatives next in degree, but shall accrue in favor
the ascending. of the co-heirs of the same degree by right of accretion.
But, if vacancy in the inheritance is caused specifically
2. In the collateral line, it takes place only in favor of by the incapacity of the heir, the incapacitated heir
the children of brothers and sisters, whether they be may, under conditions specified by law, be represented
full or half-blood, if such children concur with their by his descendants; in which case accretion in favor of
uncles and aunts. the co-heirs of the incapacitated heir shall not take
3. Arises only if the person to be represented has been place. Simply put, the right of representation is
disinherited, or is incapacitated, or has predeceased. superior to the right of accretion.
By clear command of the law, the heir who repudiates
Elements of Accretion:
may not be represented.
1. Unity of object
SUCCESSION CIVIL LAW
Bar 2010
XVIII. COLLATION Demand for Partition, defined
As co-owners, the heirs have the right to demand
COLLATION the division of the estate unless the testator
restricted its partition, the duration of which cannot
It is the act by virtue of which descendants or other
exceed 20 years. Considering that legitime is that
forced heirs who intervene in the division of the
part of the estate reserved for by law in favor of
inheritance of an ascendant bring into the common
compulsory heirs, the testator cannot impose such
mass the property which they received from him, so
restriction on legitime but the court can still order
that the division may be made according to law and
partition of the estate despite such express
the will of the testator.
restriction from the testator for compelling reasons.
Bar 1993
EFFECTS
Collation is only required of compulsory heirs
succeeding with other compulsory heirs and After partition, the heir becomes the exclusive owner
involves property or rights received by donation or of whatever property is due him by virtue of partition.
gratuitous title during the lifetime of the As a consequence, he can have a separate title in his
decedent. name.
To attain equality among the compulsory heirs insofar Any partition can be rescinded or annulled on the
as possible for it is presumed that the intention of the following grounds:
testator or predecessor-in-interest in making a
donation or gratuitous transfer to a forced heir is to
Article 1381
give him something in advance on account of his share
The following contracts are rescissible:
in the estate, and that the predecessor’s will is to treat
(1) Those which are entered into by guardians
all his heirs equally, in the absence of any expression
whenever the wards whom they represent suffer
to the contrary.
lesion by more than one-fourth of the value of the
NATURE things which are the object thereof;
(2) Those agreed upon in representation of
Collation does not impose any lien on the property or absentees, if the latter suffer the lesion stated in
the subject matter of collationable donation. What is the preceding number;
brought to collation is not the property donated itself, (3) Those undertaken in fraud of creditors when the
but rather the value of such property at the time it was latter cannot in any other manner collect the claims
donated, the rationale being that the donation is a real due them;
alienation which conveys ownership in value or any (4) Those which refer to things under litigation if
deterioration or loss thereof is for the account of the they have been entered into by the defendant
heir or done. without the knowledge and approval of the litigants
or of competent judicial authority;
NON-COLLATIONABLE DONATIONS
(5) All other contracts specially declared by law to
The value of these expenses (i.e. expenses for support be subject to rescission.
and education) are still added to the net estate for the
purpose of determining the legitime of the compulsory
heirs. The term “not subject to collation” simply
indicates that the expenses shall be imputed or
chargeable against the free disposal instead of
legitime.
XIX. PARTITION
It is the separation, division and assignment of a thing
held in common among those to whom it may belong.