Art.

835 – The testator cannot republish, without reproducing
subsequent will, the disposition contained in a previous one
which is void as to its form.
REPUBLICATION – process of re-establishing a will, which has
become useless because it was void, or had been revoked.
HOW MADE: 1. Re-execution of the original will
2. Execution of a codicil
PROCEDURE AND REASON FOR ANTE-MORTEM PROBATE
1. Testator himself petitions for the probate of his will
2. T follows the post-mortem procedure, except when the
SC provides another rules
3. REASON: to prevent or minimize fraud, intimidation and
undue influence; also to enable the testator to correct
at once failure to observe legal requirements

Art. 836 – The execution of a codicil referring to a previous will
has the effect of republishing the will as modified by the codicil.
REQUISITES AND LIMITATIONS OF REPUBLICATION
 To republish a will as to its form, all the dispositions
must be reproduced or copied in the new or subsequent
will.
 To republish a will valid as to its form but already
revoked, the execution of a codicil which makes
reference to the revoked will is sufficient.
EFFECTS OF REPUBLICATION BY VIRTUE OF A CODICIL
1. Revives the previous will
2. The old will is republished as of the date of the codicil,
makes it speak, as it were, from the new and later date
Art. 839 – The will shall be disallowed in any of the ff. cases:
1. Formalities required by law have not been complied
with
2. T was insane, or mentally incapable of making a will at
the time of its execution
3. W was executed through force or under duress, or the
influence of fear or threats
4. W was procured by undue and improper pressure and
influence, on the part of the beneficiary or some other
person
5. Signature was obtained thru fraud
6. T acted by mistake or did not intend to affix his
signature to the instrument

Art. 837 – If after making a will, the testator makes a second will
expressly revoking the first, the revocation of the second will
does not revive the first will, which can be revived only by
another will or codicil.
WAYS TO GIVE EFFECT TO VOID OR REVOKED WILLS
1. Republication – act of the testator
2. Revival – takes place by operation of law; restoration or
reestablishment of revoked will or its provisions by
virtue of legal provisions
Art. 838 – No will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of
Court.
The testator himself may, during his lifetime petition the
court having jurisdiction for the allowance of his will. In such
case, the pertinent provisions of the RoC for the allowance of
wills after the testator’s death shall govern.
The Supreme Court shall formulate such additional RoC
as may be necessary for the allowance of wills on petition of the
testator.
Subject to the right of appeal, the allowance of the will
either during the lifetime of the testator or after his death shall
be conclusive as to its execution.
PROBATE – act of proving before a competent court the due
execution of a will by a person possessed of testamentary
capacity, as well as approval of the court
In probate proceedings, the court:
1. Orders the probate proper of the will
2. Grants letters testamentary or letters with a will
annexed
3. Hears and approves claims against the estate
4. Orders the payment of lawful debts
5. Authorizes the sale, mortgage or any other
encumbrance of the estate
6. And directs the delivery of the estate or properties ti
those who are entitled
 Wills proved outside the PHL may be allowed here
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
obligations.
REQUISITES
1. W must be valid extrinsically
2. Institution must be valid intrinsically (legitime must not
be impaired)
3. Institution must be effective
4. No institution in a MS
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 state, 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 the 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:
a. His name and surname
b. When there are 2 persons having the same names = he
shall indicate some circumstance by which the instituted
heir may be known
c. T has omitted the name = he should designate in a
manner that there can be no doubt to the person
instituted
EFFECT OF DOUBT A would get all in the meantime, the children getting nothing during A’s
Ex; To my classmate, Jose (if there be 2 Joses) lifetime.
No one inherits. To divide the inheritance between the two
would frustrate the testator’s intention. Moreover, we would be giving Art. 850 –
½ to a person to who the person intended to give nothing. GEN. RULE = The statement of a false cause for the institution of
an heir shall be considered as not written
Art. 844 – An error in the name, surname or circumstances of the EXC = Unless, it appears from the will that the testator would not
heir shall not vitiate the institution when it is possible, in any have made such institution if he had know the falsity of such
other manner, to know with certainty the person instituted. cause
If among persons having the same names and surnames, Ex: I hereby institute my student X as my heir for having topped the bar
there is a similarity of circumstances in such a way that, even exams of 2003. If X was not the topnotcher, would he still inherit?
with the use of other proof, the person instituted cannot be Yes, because the false cause or reason is considered as not
identified, none of them shall be an heir. written.
REASON: The real cause is the testator’s liberality, the mention of the
bar topping is merely incidental.
*MISDESCRIPTION may be corrected even by extrinsic evidence,
and not by oral declaration of the testator.
Art. 851– If the testator has instituted only 1 heir and the
institution is limited to an aliquot part of the inheritance = legal
Art. 845 –
succession takes place with respect to the remainder of the
GEN. RULE = Disposition of unknown person is void
estate
EXC = UNLESS, some event or circumstance about his identity
The same rule applies if the testator has instituted
becomes certain
several heirs being limited to an aliquot part, and all parts do not
HOWEVER, disposition in favor of a definite class or group of
cover the whole inheritance.
persons shall be valid.
Ex; T instituted A to 1/3 and B to 1/4 of the inheritance. The remaining
UNKNOWN PERSONS – one who cannot be identified from the 5/12 will then go to the legal heirs of T by way of inestate succession
will
KINDS OF SPECIAL INSTITUTIONS Art. 852 – If the intention of the testator that the instituted heirs
a) Poor in general should become sole heirs to the whole estate or the whole free
b) Relatives of the testator portion, as the case may be, and each of them has been
c) A person and his children instituted to an aliquot parts together do not cover the whole
d) Brother and sisters of the full and half-blood inheritance, or the whole free portion, each part will shall be
e) Institution of descendants or relatives of a legatee decreased proportionately.
Ex 1; I hereby institute as my only heirs, ABC. Each one is to get ¼ of my
Art. 846 – Heirs instituted without designation of shares shall estate. The ¼ should clearly be divided proportionately among ABC.
inherit in equal parts.
Ex; T instituted A and B as his heirs. T has no compulsory heirs. How Ex 2: Total estate = 120k
much will A and B inherit? A = 1/3 B=1/2 C=1/4
They will inherit equally, that is 50-50. Reason: The law merely Remainder = 20K
expresses what it presumes to have been the testator’s intention, for
had otherwise, he should have been more specific. Formula
A = 120/1 x 4/12 = 40k 120 x 40 / 100 = 48K
Art. 847 – When the testator institutes some heirs individually B = 120/1 x 3/12 = 30k 120 x 30 / 100 = 36k
and others collectively as when he says, ‘I designate as my heirs C = 120/1 x 3/12 = 30k 120 x 30 / 100 = 36k
A and B, and the children of C”; those collectively designated
shall be considered as individually instituted, unless it clearly Art. 853 – If each of the instituted heirs has been given an aliquot
appears that the intention of the testator was otherwise part of the inheritance, and the parts together exceed, the whole
Ex; I institute as my heirs, A and B and the three children of C to my inheritance or the whole free portion, as the case may be, each
estate of 100K. How much will each of the 3 children get? part shall be reduced proportionately.
Ans: 20k
Ex 1: Total estate = 120k
Art. 848 – If the testator should institute his brothers and sisters, A = 1/2 B=1/3 C=1/4 D=1/6
and he has some of full-blood and others of half-blood, the Remainder = 20K
inheritance shall be distributed equally, UNLESS a different Formula
intention appears. A = 120/1 x 6/12 = 60k 120 x 60 / 150 = 48K
B = 120/1 x 4/12 = 40k 120 x 40 / 150 = 32k
C = 120/1 x 3/12 = 30k 120 x 30 / 150 = 24k
Art. 849 – When the testator calls to the succession a person and
D = 120/1 x 2/12 = 20k 120 x 30 / 150 = 16k
his children, they are all deemed to have been instituted
simultaneously and not successively. Art. 854 – The preterition or omission of one ,or all of the
compulsory heirs in the direct line, whether living at the time of
T instituted A and A’s two children to an estate of 30k. Each of the three
execution of the will or born after the death of the testator shall
heirs gets 10k all the same time . If the institution had been successive,
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.
PRETERITION – omission whether intentional or not, of a
compulsory heir in the inheritance of a person
REQUISITES:
1) There is a total omission of the inheritance
2) Omission must be of a compulsory heir
3) The compulsory heir omitted must be in the direct line
- If a compulsory heir is given a share in the inheritance
no matter how small it is, there is no preterition = he is
entitled only for the completion of his legitime
- If there is already a donation = no preterition because
donation is already considered an advance of the
inheritance of the legitime
- No preterition of a surviving spouse for she is not in a
direct line
EFFECTS OF PRETERITION
 Institution of heirs is annulled
 Devisees and legacies shall remain insofar as they are
not inofficious
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.
Ex; T has 3 legitimate children, 2 of whom he instituted as heirs, and one
of whom preiterited. A legacy of 100k from an estate of 1 M was given
to a friend. How much should the children receive?
ANS: 300k each; F gets 100k
Art. 856 – A voluntary heir who dies before the testator
transmits nothing to his heir.
A compulsory heir dies before the testator, a person
incapacitated to succeed, and one who renounces the
inheritance shall transmit no right to his own heirs except in
cases expressly provided in this Code.
Ex 1: T has a friend X whom he instituted as heir to an estate of 100k. X
dies before T but leaves a son? Upon T’s death, will Y get anything?
ANS: No, because the father of Y was a voluntary heir who predeceased
the testator. The estate should therefore go to the inestate heirs of T.
Ex 2: A and B are legitimate children of T. C is a legitimate child of A. The
estate is 100k. A and B were instituted as heirs. If A dies before T, how
much will C and B get?
ANS: C (on A’s behalf) = 25k; B=75k
Art. 857 – Substitution is the appointment of another heir so that
he may enter into the inheritance in default of the heir originally
instituted.
PURPOSE:
1) To prevent the property from falling into the ownership
of people not desired by the testator
2) To prevent the effects of inestate succession
3) To allow the testator greater freedom to help or reward
those by reason of services rendered to the testator are
more worthy of his affection and deserving of his
bounty than inestate heirs.
Art. 858 – Substitution of heirs may be:
1. Simple or Common – sustitucion vulgar
2. Brief or Compendious – sustitucion brevilocua
3. Reciprocal – sustitucion reciproca
4. Fideicommisary – sustitucion fideicommisaria
Art. 859 – The testator may designate one or more person to
substitute the heir or heirs instituted in case such heir or heirs
should die before him, or should not wish, or should be
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
preceeding paragraph, unless the testator has provided
otherwise provided.
- Talks about simple substitution
- 1st paragraph talks of express substitution in case of:
a. Predecease
b. Renunciation or repudiation
c. Incapacity
INSTANCES WHEN SUBSTITUTION IS EXTINGUISHED
1. The substitute predeceases the testator
2. The substitute is incapacitated
3. The substitute renounces the inheritance
4. Institution of the heir is annulled
5. Institution of the substitution is revoked by the testator
6. Will is void or disallowed or revoked
Ex 1: T institutes A as heir and appoints B as substitute if A does not
inherit |( It is clear that either A and B will inherit|)
Art. 860 – Two or more persons may be substituted for one (brief
substitution); and one person for two or more heirs
(compendious substitution).
Art. 861 – If the heirs instituted in equal shares should be
reciprocally substituted, the substitute shall acquire he share of
the heir who dies, renounces or is incapacitated unless it clearly
disappears that the intention of the testator was otherwise. I f
there are more than one substitute, they shall have the same
share in the substitution as in the institution.
- Reciprocal Substitution
Art. 862 – Effect on the substitution of charges and conditions
imposed in the institution
GEN. RULE = If the substitute inherits, he must fulfill the
conditions imposed on the original heir
REASON: it is presumed that the testator intended the substitute to
stand on the same footing as the original heir
EXC = 1. If the testator has expressly provided the contrary
2. The charges or conditions are personally applicable to
the heir instituted
Art. 863 – Fideicommissary Substitution
-substitution by virtue which the fiduciary or first heir
instituted is entrusted with the obligation to preserve and
transmit to a second hair the whole or part of the inheritance
EXC = 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
Ex 1: T institutes A as first heir. The will states that A should preserve nd
transmit later on the estate to B, who is A’s son.
A – first heir or heredero, fiduciaro or trustee. He has the obligation of
preserving and transmitting the property
B –second heir or fideicommissary. He eventually receives the property
T – testator
PURPOSE OF FIDEICOMMISSARY
 Maintains the prosperity and prestige of the family,
bearing in mind the lack of intelligence, weakness of
character, and vanity and prodigality of the descendants to
whom the property may go
 Freedom of disposition
 Maintains the tradition and social standing of the family
DISADVANTAGES OF FIDEICOMMISSARY
 Free circulation of property is somewhat curtailed,
resulting in suspended ownership
 The property may be locked up or entailed in a family
for a long period of time
 It is opposed to the liberty of property and to the
principle that the making of the will is a strictly personal
act
 It is feudalistic and does not accord with the modern
concept of ownership
REQUISITES AND LIMITATIONS
1. There must be a first heir called preferentially for the
enjoyment of the property
 Capacitated and must accept the inheritance
 Not a mere trustee or administrator or agent
 He enjoys the fruits of the property
 Like a usufructuary, he cannot alienate the
property
2. There must be an obligation clearly imposed upon him to
preserve and transmit to a 3rd person the whole or part
of the inheritance
3. There must be a second heir
 Sort of a naked owner
 Upon transmission to him of the property, full
ownership is consolidated to him
4. The 1st and 2nd heir must be one degree apart only
 One degree = one generation
 The substitute may be a parent or child of the
first heir
5. Both heirs must be alive at the time of the testator’s
death
2nd heir not related by 1st degree = substitution is VOID
Express manner
Must not burden the legitime
Must not be conditional
Art. 864 – A fideicommissary substitution can never burden the
legitime.
REASON: The legitime is expressly reserved for the compulsory
heirs. As a matter of fact, no substitution of any kind may be
imposed on the legitime
Art. 865 – Every fideicommissary substitution must be made
expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance
to the second heir, without other deductions than those which
arise from legitime expenses, credits and improvements, save in
the case where the testator has provided otherwise.
Art. 866 – The second heir shall acquire a right to the succession
from the time of the testator’s death,even though he should die
before the fiduciary. The right of the second heir shall pass to his
heirs.
Ex 1: T institutes A as first heir and B as second heir. T dies in 2003. B
died in 2004, leaving son C. On A’s death, will C get the property?
YES, on T’s death in 2003, A got the property and on A’s death,
same should go the same to his heirs of B
Art. 867 – The ff shall not take effect
1. FS not made in an express manner, either by giving
them this name, or imposing upon the fiduciary the
absolute obligation to deliver the property to a second
heir
2. Provisions which contain a perpertual prohibition to
alienate and even a temporary one, beyond the limit
prescribed in Art. 863
3. Those which impose upon the heir the charge of paying
to various persons successively, beyond the limit
prescribed in Art. 863, a certain income or pension
4. Those which leave to a person the whole or part of the
hereditary property in order that he may apply or invest
the same according to secret instructions
communicated to him by the testator
Art. 868 – The nullity of the fideicommissary does not prejudice
the validity of the institution of the heirs first designated; the
fideicommissary clause shall simply be considered as not written.
Ex 1: T institutes A as first heir and B as second heir. If B predecease T,
will A still inherit?
YES, as instituted heir.
Art. 869 – A provision whereby the testator leaves to a perso th
whole or part of the inheritance and to another, the usufruct
shall be valid. If he gives he usufruct to various persons, not
simultaneously, but successively, Art.863 applies.
Art. 870 – The dispositions of the testator declaring all or part of
the estate inalienable for more than 20 years are void.
Art. 871 – The institution of an heir may be made conditionally or
for a certain purpose or clause.
KINDS OF SUBSTITUTION
The institution of heir may be made:
1. With a condition
A instituted B as heir provided B passes the bar of 2003.
2. With a term
A instituted B as heir, the effects to commence in 2005.
 3. For a certain purpose or cause or Modal InstitutionA
gave 200k so that he may spent for the internment of C,
the late husband of A
CONDITION – uncertain event of happening upon which the
performance of obligation depends
TERM – the day or time when an obligation either becomes
demandable or teminates
Art. 872 – The testator cannot impose any charge, condition or
substitution whatsoever upon the legitime prescribed in this
Code. Should he do so, the same shall be considered as not
imposed.
Ex 1: A son was informed in a will by his father that he would get his
legitime only when he pass the bar in 1998. The son failed the bar exam.
Is he entitled to his legitime?
YES, because his father had no right to impose any condition
on his legitime. The condition here is considered as not imposed.
Art. 873 – Effects of Impossible or Illegal Conditions
- Void and is considered not imposed
- Shall in no manner prejudice the heir
REASON FOR THE LAW: In testamentary dispositions, the
conditions are not as important as the generosity and liberality of
the testator. The impossible conditions shall be disregarded.
Ex 1: A instituted B as heir provided that B could make a dead man alive,
otherwise B gets nothing. B WILL STILL BE THE HEIR.
Art. 874 – Condition not to marry
Gen. Rule = Absolute prohibition to contract a remarriage is void
because it is contrary to morality and public policy
Exc = valid when
1. Imposed on the widow or widower or by the deceased
deceased spouse
2. Imposed on the widow or widower by the ascendants or
descendants of the deceased spouse
REASON FOR THE LAW: justified because of sentimental and
economic reasons
NEVERTHELESS, the right to usufruct or an allowance or
some personal prestation may be devised or bequeathed to any
person for the time during which he or she should remain
unmarried or in widowhood
Relative Prohibition to Contract a 1st marriage or to remarry
- VALID, unless it becomes so onerous or burdensome
- ‘Don’t marry in the PHL for 60 years.’
Ex 1: T instituted his friend F as heir on condition that F will never marry.
Soon after T’s death, F married. Is F entitled to inheritance?
YES, because the immoral condition is considered not
imposed.
Art. 875 – Any disposition made upon the condition that the heir
shall make some provision in his will in favor of the testator or of
any other person shall be void.
- Disposition capatoria
- Prohibited because it tends to make the making of the
will a contractual act
Ex 1: A gave in his will a legacy of a car to B on the condition that B, in
turn, in his own will, would give something to A. The disposition is void.
Art. 876 – Any purely potestative condition is imposed upon an
heir must be fulfilled by him as soon as he learns of the testator’s
death.
This rule shall not apply when the condition, already
complied with, cannot be fulfilled again.
POTESTATIVE CONDITION – is one of the fulfillment of which
depends purely on the heir. He must perform it personally.
Ex 1: A instituted B as heir on the condition that B would learn how to
dance twist. This must be fulfilled as soon as A’s death.
Ex 2: Is the condition to marry potestative?
If it is to marry any girl, it is potestative; but if it is to marry a
particular girl, it does not depend purely upon the will of the heir, for
the girl may refuse.
Art. 877 – If the condition is casual or mixed, it shall be sufficient
if it happened or be fulfilled at any time before or after the death
of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at
the time the will was executed and the testator was unaware
thereof, it shall be deemed complied with.
If he had knowledge thereof, the condition shall be
deemed as complied with.
CASUAL C = depends upon chance or upon the will of a 3rd
person
MIXED C = depends partly both upon the will of the heir himself
and upon chance or the will of 3rd person.
Ex 1: A gives legacy on condition that B becomes a lawyer. The condition
may be fulfilled either before or after the death of A.
Art. 878 – A disposition with a suspensive condition term does
not prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of the
term.
SUSPENSIVE CONDITION – suspends the demandability of a
right. It is sure to happen. It suspends even the demandability of
the acquisition itself.
If Maria dies of cancer.
Art. 879 – If the potestative condition imposed upon the heir is
negative, or consists in not doing or not giving something, he
shall comply by giving a security that he wil not give or give that
which has been prohibited by the testator, and that in case of
contravention he will return whatever he may received, together
with its fruits and interests.
- Caucion Muciana = bond or security given in favor of
those who would get the property if the condition be
not complied with
Art. 880 – If the heir be instituted under a suspensive or term =
the estate shall be placed under administration until the
condition is fulfilled or until it becomes certain that it cannot be
fulfilled or until the arrival of the term.
The same shall be done if the heir does not give the
security required in the preceeding article
Art. 881 – The appointment of the administrator of the estate
mentioned in the preceeding article, as well as the manner of the
administration and the rights and obligations of the
administrator shall be governed by the Rules of Court.
Art. 882 – The statement of the object of the institution, or the
application of the property left by the testator, or the charge
imposed by him, shall not be considered as a condition unless it
appear that such was his intention.
That which has been left in this manner may be claimed
at once provided that the instituted heir or heirs give security for
compliance with the wishes of the testator and for the return of
anything he or they may receive, together with its fruits and
interests, if he or they should disregard this obligation.

Modal Institution – occurs when any of the following are stated:

1. Object of the institution
2. Application of the property left by the testator
3. The charge imposed by the testator

Art. 883 – When without the fault of the heir, an institution

referred to in the preceeding article cannot take effect in the
exact manner stated by the testator,it shall b complied with in a
manner most analogous to and in conformity with his wishes.
If the person interested in the condition should prevent
its fulfillment, without the fault of the heir, the condition shall be
deemed to have been complied with.
- 1st Paragraph = ANALOGOUS OR SUBSTANTIAL
COMPLIANCE ”Buy a new 2003 BMW.” If this can’t be
contained, 2002 BMW will perhaps be suitable

Art. 884 – Conditions imposed by the testator upon the heirs

shall be governed by the rules established for conditional
obligations in all matters not provided for by this Section.

Art. 885 – The designation of the day or time when the effects of
the institution of an heir shall commence of cease shall be valid.
In both cases, the legal heir shall be considered as called
to the succession until the arrival of the periods or its expiration.
But in the first case, he shall not enter into possession of the
property until after having given sufficient security, with the
intervention of the instituted heir.
Institutions with a Term
1. Suspensive Term or Ex die – effects begin from a certain
day (beginning of 2008)
2. Resolutory term or In diem – effects cease on a certain
day (up to 2008)
3. Ex die in diem – from a certain day to a certain day
(beginning of 2008 until 2009)