LAW 401 CIVIL LAW REVIEW

Notes on Succession

Succession 3. SUCCESSORS

What is an heir?
is a mode of acquisition by virtue of which
the property, rights, and obligations to the An heir is a person called to the succession
extent of the value of the inheritance of a either by the provision of a will or by operation
person, are transmitted through his death to of law.
another or others either by his will or by
operation of law. Who are voluntary heirs, compulsory heirs, and
intestate heirs?
ELEMENTS OF SUCCESSION
Voluntary heirs are those who are designated
1. DEATH by the testator in his/her will. Voluntary heirs
are otherwise called devisees or legatees.
When are the rights to the succession transmitted?
Compulsory heirs are legitimate children and
The rights to the succession are transmitted descendants, with respect to their legitimate
from the moment of the death of the parents and ascendants; in default of the
decedent. In other words, this transmission by foregoing, legitimate parents and ascendants,
succession occurs at the precise moment of with respect to their legitimate children and
death and, therefore, at that precise time, the descendants; the widow or widower; and the
heir is already legally deemed to have acquired illegitimate children.
ownership of his/her share in the inheritance,
"and not at the time of declaration of heirs, or Intestate heirs are those which, in default of
partition, or distribution." testamentary heirs, the law vests the
inheritance in the legitimate and illegitimate
2. INHERITANCE relatives of the deceased, in the surviving
spouse, and in the State, in accordance with
What does inheritance include? the order of succession as provided for under
Articles 978 to 1014 of the Civil Code.
The inheritance includes:
a) all the property, rights and obligations How are compulsory heirs classified?
of a person which are not extinguished
by his death; and The compulsory heirs may be classified into (1)
b) which have accrued thereto since the primary, (2) secondary, and (3) concurring.
opening of the succession.
1) Primary compulsory heirs – are those
Should a lessor die, does his/her heirs acquire the who have precedence over and
lease rights of the former? exclude other compulsory heirs.
(legitimate children and descendants)
YES. The general rule is that heirs are bound 2) Secondary compulsory heirs – are
by contracts entered into by their predecessors- those who succeed only in the absence
in-interest, except when the rights and of the primary heirs. (legitimate
obligations arising therefrom are not parents and ascendants)
transmissible by (1) their nature, (2) 3) Concurring compulsory heirs – are
stipulation or (3) provision of law. those who succeed together with the
primary or the secondary compulsory
What is the extent of a person's liability for an heirs. (surviving spouse and
inherited obligation? illegitimate children)

Purely money obligations, such as the Is an adopted child of the testator considered a
collection, do not form part of the personal compulsory heir?
liability of the heir/s. In such case, it is the
estate of the decedent who shall be held liable YES, an adopted child is considered a
for the payment of the debt. legitimate child of the adopter for all intents

17 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

and purposes and as such entitled to all rights DIFFERENT

and obligations provided by law to legitimate KINDS OF SUCCESSION
sons or daughters without discrimination of
any kind. TESTAMENTARY SUCCESSION

Who are devisees and legatees? What are the kinds of succession? Explain each.

Devisees and legatees are persons to whom gifts Succession may be testamentary, legal or
of real and personal property are, respectively, intestate, or mixed.
given by virtue of a will.
Testamentary succession results from the
4. ACCEPTANCE designation of an heir, made in a will
executed in the form prescribed by law.
When may a person accept an inheritance?
Legal or intestate succession takes place when a
A person may inherit if he/she is: person dies without a will; when the will is
void or one which has subsequently lost its
a) certain of the death of the person from validity; or if the will does not institute an
whom he/she is to inherit; heir or the heirs instituted are incapable of
b) certain of his/her right to the succeeding the decedent.
inheritance; and
c) has free disposal of his/her property. Mixed succession occurs when one of several
dispositions in a will are declared invalid and
What is the reckoning period for the acceptance of some remain as valid. In such case, the
an inheritance? invalidity of the other dispositions will not
affect the validity of the others.
The acceptance, as well as its effects, shall
always retroact to the moment of the death of What is a decedent?
the decedent.
Decedent is the general term applied to the
What are the kinds of acceptance? person whose property is transmitted through
succession, whether or not he/ she left a will.
Acceptance may be express or tacit.
If he/ she left a will, he/ she is also called the
Express acceptance must be made in a public or testator.
private document. Tacit acceptance is one
which results from acts by which the intention What is a will?
to accept is necessarily implied, or which one
would have no right to do except in the A will is an act whereby a person is permitted,
capacity of an heir. with the formalities prescribed by law, to
control to a certain degree the disposition of
When is inheritance deemed accepted? this estate, to take effect after his death.

a) heir sells, donates, or assigns his/her What are the two kinds of will? Explain each.
right;
b) gratuitously renounces his/her right Wills can either be notarial or holographic. A
for the benefit of one or more of his/her notarial will is one which needs to comply with
co-heirs; or the requirements under Articles 804 to 809 of
c) heir renounces it for a price in favor of the Civil Code. A holographic will is one which
all his/her co-heirs indiscriminately is entirely written, dated, and signed by the
except that renunciation devolved by testator.
virtue of accretion.
What are the characteristics of a will?

a) Strictly personal

18 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

b) Act mortis causa What is the reckoning point of the testator's

c) Ambulatory capacity to make a will?
d) Individual act
e) Purely statutory It is at the time of the execution of the will.
f) Unilateral
What are the requisites for capacity to make a
What are the implications of a will being a strictly will?
personal act?
The requisites for capacity to make a will are as
a) The making of a will cannot be left to follows:
the discretion of a third person or
accomplished through the 1. The testator must not be expressly
instrumentality of an agent or attorney. prohibited by law to make a will;
b) The duration or efficacy of the 2. The testator must be at least 18 years
designation of heirs, devisees or old; and
legatees, or the determination of the 3. The testator must be of sound mind at
portions which they are to take, when the time of the execution of the will.
referred to by name, cannot be left to
the discretion of a third person. Is the will invalidated if after execution thereof,
c) The testator may not make a the testator becomes incapacitated?
testamentary disposition in such
manner that another person has to NO. Supervening incapacity does not
determine whether or not it is to be invalidate an effective will. Conversely, a will
operative. made by an incapacitated testator shall not be
valid if he/ she becomes capacitated thereafter.
With respect to testamentary dispositions, what
can the testator entrust, if any, to a third person? What are the criteria to consider the testator of
sound mind at the time of execution of the will?
The testator may entrust to a third person the
distribution of specific property or sums of At the time of the making of the will, the
money that he may leave in general to testator should know the nature of the estate
specified classes or causes, and also the to be disposed of, the proper objects of his/her
designation of the persons, institutions or bounty, and the character of the testamentary
establishments to which such property or sums act.
are to be given or applied.
What are the rights of a married woman in terms
What law governs the formal validity of a will? of creating a will?

The law in force at the time of the execution A married woman may make a will without
of the will. the consent of her husband, and without the
authority of the court. She may also dispose
What law governs the intrinsic validity of a will? by will all her separate property as well as her
share of the conjugal partnership or absolute
The law of the decedent's nationality at the community property.
time of his death.
What are the common requirements of a notarial
What are the contents of the will which shall be and holographic will?
governed by the national law of the decedent?
The will must be in writing and must be made
a) Order of succession; in a language or dialect known to the testator.
b) Amount of successional rights;
c) Intrinsic validity of testamentary
provisions; and
d) Capacity to succeed.

19 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

NOTARIAL WILL 1. When the will consists of only two

pages, the first containing all
What are the requisites of a valid notarial will? dispositions and is signed at the
bottom by the testator and the
1. The will must be in writing and must witnesses, and the second page
be made in a language or dialect containing only the attestation clause
known to the testator; duly signed at the bottom by the
2. It must be subscribed at the end witnesses;
thereof, by the testator himself or by 2. The use of thumbprint was allowed
the testator's name written by some because the testator suffered from
other person in his presence and by his partial paralysis; or
express direction; 3. The inadvertent failure of one witness
3. It must be attested and subscribed by to sign a page of the will due to
at least three credible witnesses in the simultaneous flipping of two pages in
presence of the testator and of one the course of the signing.
another;
4. The testator or the person requested What is the substantial compliance rule?
by him to write his name must also
sign on every page, except the last, on In the absence of bad faith, forgery, fraud, or
the left margin in the presence of the undue and improper pressure and influence,
witnesses; defects and imperfections in the form of
5. The witnesses must sign every page attestation or in the language used therein shall
on the left margin in the presence of not render the will invalid if it is proved that
the testator and of one another; the will was in fact executed and attested in
6. All pages must be numbered substantial compliance with all the
correlatively in letters on the upper requirements of Article 805 of the New Civil
part of each page; Code.
7. It must contain an attestation clause;
and What are the rules concerning a notary public
8. It must be acknowledged before a with respect to the notarization of a notarial will?
notary public.
The following should be observed:
What are the contents of the attestation clause?
1. The Notary Public is disqualified to be
The attestation clause should include: an attesting witness to the will;
2. The Notary Public need not be present
1. The number of pages used upon which at the time of execution of the will,
the will is written; unless the testator is blind; and
2. The fact that the testator signed the 3. The Notary Public must be duly
will and every page thereof, OR commissioned in the jurisdiction
caused some other person to write his where he performed the notarial act,
name, under his express direction, in otherwise the will is declared void.
the presence of the three instrumental
witnesses; and What are the qualifications of a witness to a
3. The fact that the witnesses witnessed notarial will?
and signed the will and all the pages
thereof in the presence of the testator 1. He/ she must be of sound mind;
and of one another. 2. He/ she must be of legal age;
3. He/ she must not be blind, deaf, or
State the exceptions to the rule that the testator or dumb; and
his/her representative shall write his/her name 4. He/ she must be able to read and
and his/her witnesses must sign on every page of write.
the will, except on the last page.

20 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

What are the disqualifications of a witness to a executed according to the laws of the
notarial will? Philippines.

1. Those who are not domiciled in the What is the rule if the testator is blind or a deaf-
Philippines; and mute?
2. Those who have been convicted of
falsification of a document, perjury, If the testator is blind, the will shall be read to
or false testimony. him/her twice; once by one of the subscribing
witnesses and again, by the notary public
Do the witnesses need to be of sound mind until before whom the will is acknowledged.
the will is allowed to be probated?
If the testator is deaf or deaf-mute, he/ she
NO. If the witnesses attesting the execution of must personally read the will, if able to do so.
a will are competent at the time of attesting, Otherwise, he/ she shall designate two
their becoming subsequently incompetent persons to read it and communicate to him
shall not prevent the allowance of the will. the contents thereof.

Can a testator's creditor be a witness to his/her HOLOGRAPHIC WILL

will?
What are the formal requirements of a
YES. A mere charge on the estate of the holographic will?
testator for the payment of debts due at the time
of the testator’s death does not prevent his 1. It must be in writing;
creditors from being competent witnesses to 2. It must be made in a language known
his will. to the testator; and
3. It must be entirely written, dated, and
What formalities should be complied with if a signed by the testator.
Filipino who is abroad decided to execute a will
therein? How can the testator validate the dispositions
written below his/her signature?
A Filipino in a foreign country is authorized to
make a will in any of the forms established by The dispositions of the testator written below
the law of the country in which he may be. his signature must be dated and signed by him
Such will may be probated in the Philippines. to make them valid. However, when
dispositions are signed without being dated,
What formalities should be complied with if an and the last disposition has a signature and a
alien who is abroad wants to have his/her will date, such date validates the dispositions
probated in the Philippines? preceding it, whatever be the time of prior
dispositions.
The will shall produce effect in the Philippines
if made with the formalities prescribed by the How can the testator authenticate any insertion,
law of the place where he/ she resides, OR alteration, cancellation, or erasure in his/her
according to the formalities observed in holographic will?
his/her country, OR in conformity with the
New Civil Code. He/ she can authenticate it by his/her full
signature.
What formalities should be complied with if an
alien wants to execute a will in the Philippines? State the rules on a contested holographic will.

A will made in the Philippines by a citizen of In the probate of a holographic will, at least
another country, which is executed in one witness who knows the handwriting and
accordance with the law of his/her country signature of the testator should explicitly
which he/ she is a citizen, and which might be declare that the will and the signature are in the
proved and allowed by the law of said handwriting of the testator.
country, shall have the same effect as if

21 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

If the will is contested, at least three of such must be done in accordance

witnesses shall be required. with Philippine laws.

If no competent witnesses are available, an 2. Revocation done in the PH

expert witness may be presented if the court ➢ It must be done in accordance
deems it necessary. with Philippine laws,
regardless if the testator is
CODICILS AND DOCTRINE OF
INCORPORATION BY REFERENCE domiciled in the Philippines or
not.
Is a codicil the same as a will?
What are the modes of revocation of a will?
NO. A codicil is supplement or addition to a
will, made after the execution of a will and 1. By implication of law;
annexed to be taken as a part thereof, by which 2. By some will, codicil, or other
disposition made in the original will is writing executed as provided in case of
explained, added to, or altered. wills; or
3. By burning, tearing, cancelling, or
How can a codicil be effective? obliterating the will with the
intention of revoking it, by the testator
For a codicil to be effective, it shall be himself or some other person in his
executed as in the case of a will. Thus, the presence and by his express direction.
requirements for the execution of either a
notarial will or holographic will should be When is a will presumed revoked?
observed, as the case maybe.
A will is presumed revoked when either of the
The Doctrine of Incorporation by Reference is a two instances are present:
legal principle that allows a document to
become part of another document as if it were a) Where a will which cannot be found is
fully written out in the second document, shown to have been in the possession
simply by clearly referring to it. of the testator, when last seen; or
b) The testator had ready access to the
REVOCATION OF WILLS AND will and it cannot be found after
TESTAMENTARY DISPOSITIONS his/her death.

Can a will still be revoked? DOCTRINE OF DEPENDENT

RELATIVE REVOCATION
YES, a will may be revoked by the testator at
any time prior his death and any waiver of this What is the theory of dependent relative
right is void. The same rule holds true even if revocation?
the will has already been probated.
The rule is established that where the act of
What are the laws governing the validity of destruction is connected with the making of
revocation? another will so as fairly to raise the inference
that the testator meant the revocation of the
1. Revocation outside the PH old to depend upon the efficacy of a new
➢ By a person not domiciled in disposition intended to be substituted, the
the Philippines, the revocation revocation will be conditional and dependent
is valid when done in upon the efficacy of the new disposition; and
accordance with the law of the if, for any reason, the new will intended to be
place where the will was made made as a substitute is inoperative, the
OR law of the place where the revocation fails and the original will remains
testator is domiciled at the in full force.
time of revocation.
➢ By a person domiciled in the
Philippines, the revocation

22 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

If the testator revoked his/her will based on a false When can a will be probated?
or illegal cause, what will be its effect on the
validity of the will? A will can be probated during the lifetime of
the testator OR after his/her death.
The will shall remain valid, but the
revocation made which was based on a false or What issues are resolved in probate proceedings?
illegal cause shall be null and void.
Probate proceedings include the resolution of
REPUBLICATION AND the following:
REVIVAL OF WILLS
1. Whether the will submitted is indeed
Distinguish between republication and revival of a the decedent's last will and testament;
will. 2. Whether it has complied with the
prescribed formalities for the
Republication refers to the act of re-executing execution of wills;
the will which can be done in two ways: 3. The testamentary capacity of the
testator; and
4. The due execution of the will.
1. by reproducing in a subsequent will
the dispositions contained in a previous What are the grounds for disallowance of a will?
one which is void as to its form; and
2. execution of a codicil. The will shall be disallowed in any of the
following cases:
The first mode of republication
presupposes that there are two wills 1. If the formalities required by law have
involved: the first will which is void, not been complied with;
and the second will which contains the 2. If the testator was insane, or otherwise
dispositions in the first will. The mentally incapable of making a will,
second will is the republished will. at the time of its execution;
3. If it was executed through force or
The revival of the will contemplates a scenario under duress, or the influence of fear,
where the testator has executed two wills. or threats;
Thus, if after making a will, the testator makes 4. If it was procured by undue and
a second will expressly revoking the first, the improper pressure and influence, on
revocation of the second will does not revive the part of the beneficiary or of some
the first will, which can be revived only by other person;
another will or codicil. 5. If the signature of the testator was
procured by fraud;
ALLOWANCE AND 6. If the testator acted by mistake OR did
DISALLOWANCE OF WILLS not intend that the instrument he
signed should be his will at the time of
What is probate? affixing his signature thereto.

A probate is a special proceeding where the COMPULSORY SUCCESSION

court inquires into and examines the extrinsic
validity of a will. By extrinsic validity, the What is legitime?
testamentary capacity and the compliance
with the formal requisites or solemnities Legitime is that part of the testator's property
prescribed by law are the only questions which he cannot dispose of because the law
presented for the resolution of the court. has reserved it for certain heirs who are,
therefore, called compulsory heirs.
This is based on the rule that no will shall pass
either real or personal property unless it is
proved and allowed in accordance with the
Rules of Court.

23 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

Distribution of legitime of the compulsory heirs of How will the donations to an illegitimate child be
the decedent. treated in the determination of the legitime?

Compulsory Heir Distribution of Donations which an illegitimate child may

Legitime have received during the lifetime of his father
Legitimate children ½ estate to children or mother, shall be charged to his legitime.
only
1 Legitimate Child ½ to leg. Child; ¼ to Should they exceed the portion that can be
+ Spouse spouse freely disposed of, they shall be reduced in the
Legitimate children ½ to children; manner prescribed by the law.
+ spouse spouse = share of 1
child
How shall the reduction be made from the
Legitimate + Legitimate = ½;
legitime?
illegitimate each illegitimate =
children ½ legit. child’s share
Legits = ½; spouse 1. Donations shall be respected as long as
Legitimate children
+ spouse + = 1 child’s share; the legitime can be covered, reducing
illegitimate illegit = ½ child’s or annulling, if necessary, the devises
share or legacies made in the will.
Legitimate parents ½ to parents 2. The reduction of the devises or legacies
only shall be pro rata, without any
Parents + spouse ½ to parents; ¼ to distinction whatever. If the testator has
spouse directed that a certain devise or legacy
Spouse only ½ to spouse be paid in preference to others, it shall
Illegitimate ½ to illegitimate not suffer any reduction until the
children only children latter have been applied in full to the
payment of the legitime.
NB: If the surviving spouse and/or the 3. If the devise or legacy consists of a
illegitimate children shall concur with the usufruct or life annuity, whose value
legitimate children and descendants, their may be considered greater than that of
shares shall be taken from the free portion. The the disposable portion, the compulsory
half of the estate shall always be reserved to the heirs may choose between complying
legitimate children and descendants, and in with the testamentary provision and
their default, to the legitimate parents and delivering to the devisee or legatee
ascendants. the part of the inheritance of which
the testator could freely dispose.
How is the net hereditary estate computed?
How should reduction be done if the devise subject
The formula is: to such reduction consists of real property?

NET HERIDATARY ESTATE= Property left If the devise subject to reduction should consist
less debts and other charges plus donations of real property, which cannot be conveniently
made by the testator during his/her lifetime. divided, it shall go to the devisee if the
reduction does not absorb one-half of its
How will the donations given to children be treated
value; and in a contrary case, to the
in computing the legitime?
compulsory heirs; but the former and the latter
shall reimburse each other in cash for what
Donations given to children shall be charged
respectively belongs to them.
to their legitime.
The devisee who is entitled to a legitime may
Donations made to strangers shall be charged
retain the entire property, provided its value
to that part of the estate of which the testator
does not exceed that of the disposable portion
could have disposed by his last will.
and of the share pertaining to him as legitime.
Insofar as they may be inofficious or may
If the heirs or devisees do not choose to avail
exceed the disposable portion, they shall be
themselves of the right granted by the
reduced according to the rules.

24 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

preceding paragraphs, any heir or devisee who 2. Upon dissolution of the absolute
did not have such right may exercise it; should community regime;
the latter not make use of it, the property shall 3. Upon the dissolution of a terminable
be sold at public auction at the instance of any subsequent marriage where the ACP
one of the interested parties. or CPG shall be liquidated, but if either
spouse contracted the marriage in bad
What are the ways in which a testator may deprive faith, his/her share in the net profits of
a compulsory heir of his legitime? the ACP or CPG shall be forfeited in
favor of the common children; if none,
1. By disinheritance for causes expressly the children of the guilty spouse by a
stated by law; prior marriage; or in default thereof,
2. By disinheritance without a the innocent spouse;
specification of the cause, or for a 4. Upon the declaration of legal
cause the truth of which, if separation;
contradicted, is not proved, or which is 5. Upon dissolution of the CPG.
not one of those set forth in the Civil
Code; PRETERITION
3. By preterition or omission of one,
some, or all of the compulsory heirs in What is preterition?
the direct line, whether living at the
time of the execution of the will or born Preterition is the omission of one, some or all
after the death of the testator; or the compulsory heirs in the direct line,
4. By leaving to a compulsory heir by whether living at the time of the execution of
any title the legitime less than what the will or born after the death of the testator
the law entitles him/her to receive. either because the compulsory heirs are not
mentioned in the will or though mentioned
What is the effect of an incomplete legitime? they are not instituted as heirs or not expressly
disinherited.
Any compulsory heir to whom the testator has
left by any title less than the legitime belonging What are the requisites of preterition?
to him may demand that the same be fully
satisfied. 1. Total omission of the compulsory heir
in the inheritance;
What is the effect of inofficious testamentary 2. The compulsory heir omitted must be
dispositions? in the direct line whether ascending or
descending;
Testamentary dispositions that impair or 3. The omitted compulsory heir must not
diminish the legitime of the compulsory heirs predecease the testator, otherwise, the
shall be reduced on petition of the same, institution shall be ineffectual.
insofar as they may be inofficious or excessive.
What is the effect of preterition?
What are the instances when the presumptive
legitime of the heirs shall be delivered to them? The preterition or omission of one, some, or all
of the compulsory heirs in the direct line,
1. Final judgments in cases under Article whether living at the time of the execution of
40, paragraphs 2 to 5 of Article 43, the will or born after the death of the testator,
Article 44, and Article 45 of the shall annul the institution of heir; but the
Family Code require the delivery of devises and legacies shall be valid insofar as
presumptive legitimes, among others. they are not inofficious.
The value of the presumptive legitime
of all common children shall be If the omitted compulsory heirs should die
delivered in cash, property or sound before the testator, the institution shall be
securities, unless otherwise mutually effectual, without prejudice to the right of
agreed upon and with judicial representation.
approval;

25 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

Can the issue of preterition be raised in a probate However, if the testator has compulsory heirs,
proceeding? he/she may dispose his/her estate provided the
legitime of said heirs are not impaired.
Generally, probate proceedings only touch
upon the extrinsic validity of the will, How should the testator institute his/her heirs in
specifically in the following matters: (1) his/her will?
whether the will is indeed the testator's last
will; (2) compliance with the prescribed The testator shall designate the heir by name
formalities for its execution; (3) testamentary and surname. If there are two persons having
capacity of testator; and (4) due execution of the same name, he/ she should indicate
the will. circumstances to separate their identities.
Even though the testator omitted the name of
However, when the will contains only a an heir, if the designation is in such a way that
single testamentary disposition where the there can be no doubt as to who has been
decedent who died without issue instituted instituted, the institution remains valid.
her sister as her sole heir, thereby omitting
her legitimate parents, the probate court Will an error in the name, surname, or
declared the will void since there was no other circumstances vitiate the institution?
disposition that could be given effect. This was
done prior to the allowance of the will for NO, as long as it is still possible, in any other
probate. manner, to know the certainty of the person
instituted.
What law governs preterition?
What if the instituted heirs having the same name
Since the issue on preterition touches upon the and surname also bear the same circumstances?
intrinsic validity of testamentary dispositions,
it shall be governed by the national law of the If there is a similarity of circumstances in such
person whose succession is under a way that, even with the use of the other proof,
consideration. the person instituted cannot be identified,
none of them shall be an heir.
INSTITUTION AND
SUBSTITUTION OF HEIRS What is the presumption on equal shares?

Is the will valid even if the testator did not institute Heirs instituted without designation of shares
any heir? shall inherit in equal portions.

YES, a will shall be valid even though it does If X, the testator, institutes as an heir an
not contain an institution of an heir, or such unknown person, what will be its effect on the
institution should not comprise the entire disposition made? How about if X institutes as
estate, and even though the person so instituted an heir a definite group of persons?
should not accept the inheritance or should be
incapacitated to succeed. In such cases, the Every disposition in favor of an unknown
testamentary dispositions made shall be person shall be void, unless by some event or
complied with and the remainder of the estate circumstance his identity becomes certain.
shall pass to the legal heirs. However, a disposition in favor of a definite
class or group of persons shall be valid.
Can the testator dispose of his entire estate in any
manner he desires? An example of disposition made in favor of a
definite group of persons is when a testator
As a general rule, if the testator has no makes a testamentary disposition in favor of
compulsory heirs, then he/ she may dispose by the poor in general, without designation of
will all his/her estate or any part thereof in particular persons or of any community.
favor of any person having capacity to
succeed.

26 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

What is the concept of substitution of heirs? The fideicommissary must be entitled to the
estate upon the death of the testator. The first
Substitution is the appointment of another heir heir and the second heir must only be one
so that he may enter into the inheritance in degree apart and must both be living at the
default of the heir originally instituted. time of death of the testator. The
fideicomissary substitution must be clearly
What are the grounds for substitution of heirs? expressed and must not burden the legitime of
Are these grounds exclusive? the compulsory heirs.

The grounds for substitution are repudiation, Example:

incapacity, or predecease. This however does
not mean that the grounds for substitution are “I institute my son A as my heir, with the
exclusive. Another possible instance where a obligation that upon A’s death, he shall deliver
testator can substitute an heir is if the the inheritance to his daughter C.”
suspensive condition to the institution of an
heir or designation of legatee or devise does not ➢ A = fiduciary heir
happen. ➢ C = fideicommissary heir
➢ C is within the first degree
Enumerate the types of substitution and define from A and both are living at
each. the time of the death of the
testator.
1. Simple or common – takes place when
the testator designates one or more Distinguish between fideicommissary substitution
persons to substitute the heir or heirs and testamentary trust.
instituted in case such heir or heirs
should die before him, or should not FIDEICOMMISSARY TESTAMENTARY
wish, or should be incapacitated to TRUST
accept the inheritance. It is the testator who It is the person
designates both the succeeding from
2. Brief – the appointment of two or more
fiduciary and the decedent who
substitutes for one heir. fideicommissary puts the legal title
3. Compendious – the appointment of one substitute. in the name of a
substitute for two or more heirs. third person.
4. Reciprocal – the designation of two or The fiduciary is The law recognizes
more heirs who are reciprocal entrusted with the that the owner of
substitutes for each other. obligation to preserve the property
5. Fideicommissary – one which the the property in favor remains to be the
fiduciary or first heir instituted is of the one who has
entrusted with the obligation to fideicommissary succeeded the
preserve and to transmit to a second substitute, provided decedent and the
they are both alive at third person to
heir the whole or part of the
the time of the whom the legal
inheritance. This kind of substitution testator's death. title of the
cannot burden the legitime.
property was
transferred by the
State the requisites of a fideicommissary heir is only
substitution. recognized as a
trustee by
1. There must be a first heir called operation of law.
primarily to the enjoyment of the estate It must be expressly A trust is created
(the fiduciary); made in order to have not by a written
2. There must be a second heir a valid substitution. document but by
(fideicommissary); and operation of law.
3. There must be an obligation clearly
imposed upon him to preserve and
transmit to a third person the whole or
a part of the estate.

27 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

DISPOSITIONS WITH A State the different kinds of conditions which

CONDITION OR TERM can be attached to an institution of heirs and
the effects thereof.
Can a testator institute an heir conditionally?
Disposition This will not prevent the
YES, however, the testator cannot impose with a instituted heir from
any charge, condition, or substitution suspensive acquiring his rights and
term transmitting them to his
whatsoever upon the legitimes. Otherwise,
heirs even before the arrival
the condition shall simply be considered as not
of the term. However, the
imposed. estate shall be placed under
administration until the
The same holds true for impossible conditions, condition is fulfilled, or until
unlawful conditions, or those which are it becomes certain that it
contrary to good customs. In effect, the cannot be fulfilled, or until
institution of heirs shall not be affected. the arrival of the term.
Disposition The instituted heir shall
Can a testator impose as an absolute condition with a comply by giving a security
that his/her heir should not be allowed to contract negative that he will not do or give
a first or subsequent marriage? potestative that which has been
condition prohibited by the testator,
Generally, an absolute condition not to and that in case of
contravention he will return
contract a first or subsequent marriage shall
whatever he may have
be deemed as not written. However, if such received, together with its
condition be imposed on the widow or fruits and interests.
widower by the deceased spouse or by the Disposition The institution of an heir
latter's ascendants or descendant, then said with a casual shall be sufficient if the
condition shall be valid. or mixed condition happens or be
condition fulfilled at any time before
What is disposicion captatoria? or after the death of the
testator, unless he has
Any disposition made upon the condition that provided otherwise.
the heir shall make some prior provision in
his/her will in favor of the testator or of any Should it have existed or
should it have been fulfilled
other person shall be void.
at the time the will was
executed and the testator
Define modal institution. was unaware thereof, it shall
be deemed as complied
Modal institution or institucion sub modo is one with.
where the statement of the object of the
institution, the application of the property left If he had knowledge thereof,
by the testator, or the charge imposed by him, the condition shall be
shall not be considered as a condition unless considered fulfilled only
it appears that such was his intention. when it is of such a nature
that it can no longer exist or
If the testator makes a testamentary disposition in be complied with again.
favor of an unknown person, is the disposition
valid? Distinguish Conditional Institution from Modal
Institution.
NO. Every disposition in favor of an
unknown person shall be void, unless by some A conditional institution occurs when the heir is
event or circumstance his identity becomes instituted subject to a condition that may be
certain. However, a disposition in favor of a suspensive or resolutory.
definite class or group of persons shall be valid.

28 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

Examples: Determine the effectiveness of the legacy or devise

if the property disposed of is not owned by the
a. “I institute A as my heir if he finishes testator.
college.” (suspensive condition)
b. “I institute C as my heir, but if he 1. If the testator erroneously believed that
leaves the country permanently, his the property belonged to him/her, the
share shall go to D.” (resolutory legacy or devise is void.
condition) 2. If the thing bequeathed subsequently
becomes his by whatever title, the
A modal institution does not suspend the heir’s legacy or devise is effective.
right to inherit. 3. If the testator knew the property did
The heir inherits immediately, but is burdened not belong to him, the legacy or devise
with an obligation, charge, or purpose is valid, provided the estate must try
(modus). to acquire it or otherwise pay its value
to the owner.
Examples: 4. If the legacy or devise is already owned
by the legatee or devisee and the thing
a. “I leave ₱1,000,000 to A, to be used for is subject to an encumbrance or interest
the education of his siblings.” of a third person, such is valid but only
b. “I institute B as my heir, with the with regard to the encumbrance or
obligation of maintaining my mother.” interest.

LEGACIES AND DEVISES Instances when legacy/devise is deemed revoked.

Define legacy and devise. 1. If the thing is already owned by the

legatee or devisee at the time of the
Legacies are gifts of personal property while execution of the will.
devises are gifts of real property both given by 2. If the legatee or devisee subsequently
virtue of a will. alienates the thing.
3. If after alienating the thing, the legatee
What can be bequeathed or devised by the testator or devisee subsequently reacquires it
in his/her will? gratuitously. But if the acquisition is
through onerous title, the legatee or
All things and rights which are within the devisee can demand reimbursement
commerce of man may be bequeathed or from the estate or the heir.
devised. 4. If the testator transforms the thing
bequeathed in such a manner that it
Who may the testator charge with the duty to give does not retain either the form or the
legacies and devises in a will? denomination it had.
5. If the testator by any title or for any
First, the compulsory heir, provided their cause alienates the thing bequeathed
legitime is not impaired. or any part thereof, it being
understood that in the latter case the
Second, the legatee or devisee, but only to the legacy or devise shall be without
extent of the value of the legacy or devise given effect only with respect to the part
them. thus alienated. If after the alienation
the thing should again belong to the
Third, all heirs are liable in the same testator, even if it be by reason of
proportion they inherit should the testator not nullity of the contract, the legacy or
charge anyone in particular. devise shall not thereafter be valid,
unless the reacquisition shall have been
effected by virtue of the exercise of the
right of repurchase.
6. If the thing bequeathed is totally lost
during the lifetime of the testator, or
after his death without the heir's fault.

29 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession
punishable punishable punishable
7. If the testator, after having made a by by by
legacy of a credit against a third person, imprisonme imprisonme imprisonme
should bring an action against the nt of 6 years nt of 6 years nt of 6 years
debtor for the payment of his debt, or more the or more the or more the
even if such payment should not have same is same is same is
been effected at the time of his death. found be found be found be
groundless groundless groundless
Convicted of Convicted of
What is the consequence of an ineffective legacy or
adultery or adultery or
devise? concubinage concubinage
with the with the
In case of repudiation, revocation, or spouse of spouse of the
incapacity of the legatee or devisee, the legacy the testator testator
or devise shall be merged with the mass of the Caused the Caused the Caused the
hereditary estate, except in cases of testator to testator to testator to
substitution or accretion. make a will make a will make a will
or to change or to change or to change
DISINHERITANCE one already one already one already
made made made
through through through
What are the requisites of a valid disinheritance?
fraud, fraud, fraud,
violence, violence, violence,
1. Testator must execute a valid will;
intimidation intimidation intimidation
2. The cause for disinheritance must be , or undue , or undue , or undue
expressly stated in the will; influence influence influence
3. The disinherited heir must be a Unjustified Unjustified Unjustified
compulsory heir; refusal to refusal to refusal to
4. It must be based on a cause specified support the support the support the
by law. Note that the grounds for parents or children and children or
disinheritance are exclusive; ascendants descendants other spouse
5. The cause for disinheritance must be Maltreatme
certain and true; nt of the
6. The disinheritance must be total; testator by
7. The disinheritance must be words or by
deed
unconditional;
Leads a
8. The cause must be proved by the other
dishonorabl
heirs should the disinherited heir e or
deny the grounds imputed upon him/ disgraceful
her. life
Convicted of
State the grounds for disinheritance. a crime
which
Grounds to Grounds to Grounds to carries the
disinherit a disinherit a disinherit the penalty of
child or parent or surviving civil
descendant ascendant spouse interdiction
(Article 919) (Article 920) (Article 921)
Guilty of an Guilty of an Guilty of an Can the descendants of a validly disinherited heir
attempt on attempt on attempt on take the place of the latter in inheriting from the
the life of the life of the the life of the testator?
the testator, testator, testator,
his/her his/her his/her YES. The children and descendants of the
spouse, spouse, spouse,
person disinherited shall take his or her place
descendants descendants, descendants,
or or and shall preserve the rights of compulsory
, or
ascendants ascendants heirs with respect to the legitime; but the
ascendants
Accusing Accusing the Accusing the disinherited parent shall not have the usufruct
the testator testator if a testator if a or administration of the property which
if a crime crime crime constitutes the legitime.

30 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

Is a judgment for conviction required to disinherit compulsory heir of his/her share in the
an heir on the ground of attempt on the life of the disposable free portion, but is nonetheless
testator, his/her spouse, descendant, or ineffective for failure to comply with the
ascendant? requirements set forth in the law.

It depends. If the ground is based on Article Distinguish between the effects of preterition and
919 of the Civil Code, a judgment of defective disinheritance.
conviction is required under paragraph 1
thereof. If the ground is an attempt by one of The preterition of any of the compulsory heirs
the parents against the life of the other, the in the direct line, whether living at the time of
child may disinherit a parent even without the execution of the will or born after the death
securing a conviction, unless there has been of the testator, shall annul the institution of
reconciliation. heir in toto, unless there are devises and
legacies in the will.
What are the elements of disinheritance based on
false or baseless accusation? Meanwhile, defective disinheritance or one
which does not specify the cause or for a cause
1. The disinherited heir imputes a the truth of which, if contradicted, is not
criminal offense against the testator proved, or one which is not among the grounds
wherein the crime charged carries a provided under the Civil Code, shall only
penalty of imprisonment for six years annul the institution of heirs insofar as it may
or more; prejudice the person disinherited.
2. The crime charged is found to be
groundless; INTESTATE SUCCESSION
3. The offender could be a descendant,
ascendant, or spouse of the testator. Enumerate the causes of intestacy.

State the elements of disinheritance based on 1. If a person dies without a will, or with
unjustified refusal to give support. a void will, or one which has
subsequently lost its validity;
1. The recipient is in need of support and 2. When the will does not institute an
is likewise legally entitled to receive heir to or dispose of all the property
it; belonging to the testator. In such case,
2. The provider has the capability to legal succession shall take place only
provide support and is also legally with respect to the property of which
obliged to give it; and the testator has not disposed;
3. The refusal to give support is 3. If the suspensive condition attached to
unjustified. the institution of heir does not happen
or is not fulfilled, or if the heir dies
What is the effect if there has been reconciliation before the testator, or repudiates the
between the off ender and off ended party? inheritance, there being no
substitution, and no right of accretion
A subsequent reconciliation between the takes place;
offender and the offended person deprives the 4. When the heir instituted is incapable
latter of the right to disinherit and renders of succeeding, except in cases provided
ineffectual any disinheritance that may have in the Civil Code;
been made. 5. When the compulsory heir/s in the
direct line are preterited in the
How does preterition differ from defective testator's will;
disinheritance? 6. When the resolutory condition on a
testamentary disposition was not
In preterition, there is an implied omission of fulfilled;
the compulsory heir through omission in the 7. When the period or term of a
will. Meanwhile, in defective disinheritance, the testamentary disposition expires; or
testator expressly deprived in his/her will a 8. When a testamentary disposition is
impossible to comply or is ineffective.

31 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

State the order of preference in intestate two from the grandfather, and three
succession. from the great-grandparent.

The order of preference is as follows: In the collateral line, ascent is made to

the common ancestor and then decent
1. The legitimate children and is made to the person with whom the
descendants computation is to be made. Thus, a
2. The legitimate parents and person is two degrees removed from his
ascendants brother, three from his uncle, who is
3. The illegitimate children and the brother of his father, four from his
descendants first cousin, and so forth.
4. The surviving spouse
5. The brothers and sisters OR nephews 5. Full blood relationship is that existing
and nieces between persons who have the same
6. Other collateral relatives within the father and the same mother.
fifth civil degree
7. The State Half-blood relationship is that existing
between persons who have the same
What are the rules on relationship under intestate father, but not the same mother, or the
succession? same mother, but not the same father.

1. Proximity of relationship is determined 6. If there are several relatives of the same

by the number of generations. Each degree, and one or some of them are
generation forms a degree. unwilling or incapacitated to succeed,
his portion shall accrue to the others
2. A series of degrees forms a line, which of the same degree, save the right of
may be either direct or collateral. representation when it should take
place.
A direct line is that constituted by the
series of degrees among ascendants Illustration:
and descendants.
The decedent, Maria, dies without a
A collateral line is that constituted by will. She leaves no descendants, no
the series of degrees among persons ascendants, and no surviving spouse.
who are not ascendants and Her heirs by intestacy are her siblings,
descendants, but who come from a who are collateral relatives in the same
common ancestor. degree. Her siblings are:

3. The direct line is either descending or Ana – willing and able to succeed;
ascending. Ben – renounces (refuses) his
inheritance;
The former unites the head of the Cruz – predeceased Maria (died
family with those who descend from earlier), leaving two children; and
him. Dana – willing and able to succeed.

The latter binds a person with those Application of the rule:

from whom he descends.
Ben, who is unwilling to succeed
4. In the line, as many degrees are (renounces), cannot receive his share.
counted as there are generations or His portion accrues to the other
persons, excluding the progenitor. siblings of the same degree who are
able and willing—Ana and Dana. This
In the direct line, ascent is made to the is called accretion.
common ancestor. Thus, the child is
one degree removed from the parent, Cruz, who is deceased, triggers
representation by his children.

32 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

Representation takes place, so the person being represented repudiates,

children of Cruz step into his place and Mark and Nina do NOT “represent”
receive his share, not the shares of the their parents (Anna and Bruno). They
others. do not step into Anna’s or Bruno’s
place as representatives. Instead, they
Distribution: inherit in their own right as the next
degree of heirs.
Total estate shall be divided into four
original shares (for the four siblings). Distribution:

1. Ana receives: The estate is inherited equally by the

o Her own ¼ nephews and nieces in the next degree,
o Plus part of Ben’s ¼ by not as representatives, but as heirs in
accretion their own right:
2. Dana receives:
o Her own ¼ 1. Mark receives ½ of the estate; and
o Plus part of Ben’s ¼ by 2. Nina receives ½ of the estate.
accretion
3. Children of Cruz (2 children) What is the rule of proximity?
receive:
o Entire 1/4 of Cruz through The relative nearest in degree excludes the
representation more distant ones, saving the right of
o They do not share in Ben’s representation when it properly takes place.
accreted portion.
What is the rule of equality?
7. If the inheritance should be repudiated
by the nearest relative, should there be The rule of equality states that relatives in the
one only, or by all the nearest relatives same degree shall inherit in equal parts.
called by law to succeed, should there
be several, those of the following State the exceptions, if any, to the rule of equality
degree shall inherit in their own right and rule of proximity. Discuss each.
and cannot represent the person or
persons repudiating the inheritance. 1. Division in cases of representation

Illustration: When there is succession by

representation, the division of the
Carlos, dies intestate (without a will). estate shall be made per stirpes,
He leaves no descendants, no meaning the representatives of the heir
ascendants, no surviving spouse. who was incapacitated or who
predeceased the testator shall inherit
His nearest relatives according to the only what the latter was bound to
rules of intestate succession are his receive, had he/ she been capacitated
siblings (collateral relatives in the 2nd or alive.
degree): Ana and Bruno. Both siblings
decided to repudiate their Illustration:
inheritance. Since all the nearest heirs
of the same degree have repudiated, The decedent, Rosa, dies intestate. She
they are completely excluded from leaves three children: Andrea, Benito,
succession. and Carlo. Carlo predeceased Rosa,
leaving two children: Diana and Edgar.
The next degree of heirs are the
nephews and nieces, who are Under per stirpes:
collateral relatives in the 3rd degree,
namely: Mark (son of Ana) and Nina a. Each branch of the family receives
(daughter of Bruno). Because one equal share, as if the original
representation does not apply when the heir (Carlo) were still alive.

33 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

b. The representatives (Diana and a. Divide the inheritance into two

Edgar) inherit only what Carlo equal halves: ½ to the paternal line
would have received. and ½ to the maternal line.
b. In each line, divide the share per
Thus, the estate is divided into capita:
three equal shares.
Division:
Division:
Assume the estate is ₱9,000,000.
Suppose Rosa’s estate is
₱9,000,000. Each of her children o Paternal line – ₱4,500,000
shall receive ₱3,000,000. Carlo’s o Maternal line – ₱4,500,000
two children share the ₱3,000,000
equally: o Pedro receives ₱2,250,000
o Pilar receives ₱2,250,000
o Diana receives ₱1,500,000 o Maria receives ₱4,500,000
o Edgar receives ₱1,500,000
3. Division between legitimate and
2. Division in the ascending line illegitimate children

As a rule, the ascendants nearest in The legitime of each illegitimate child

degree shall inherit. Should there be shall consist of ½ of the legitime of a
more than one of equal degree legitimate child.
belonging to the same line they shall
divide the inheritance per capita; Illustration:
should they be of different lines but of
equal degree, one-half shall go to the Ana and Ben are the legitimate
paternal and the other half to the children while Carlo is an illegitimate
maternal ascendants. In each line the child.
division shall be made per capita.
Application of the rule:
Illustration:
o Legitimate children
Luis, dies intestate. He leaves no collectively are entitled to ½ of
descendants and no surviving spouse. the estate
Therefore, the next heirs are o Illegitimate children
ascendants. collectively are entitled to ¼ of
the estate
Luis’s ascendants are: o The remainder (¼) = free
portion
o Paternal grandfather – Pedro o The legitime of each
(1st degree ascendant in the illegitimate child = ½ of the
paternal line) legitime of each legitimate
o Paternal grandmother – Pilar child.
(1st degree ascendant in the
paternal line) Division:
o Maternal grandmother – Maria
(1st degree ascendant in the The net estate is ₱9,000,000.
maternal line)
o ½ of the estate shall be entitled
Application of the rule: to the legitimate children.
Hence, ₱4,500,000 shall be
Because the ascendants are of equal distributed to Ana and Ben.
degree, but belong to different lines Ana receives ₱2,250,000, and
(paternal vs. maternal), the division Ben shall also receive
shall be made as follows: ₱2,250,000.

34 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

o ½ of the legitime of Ana or IRON CURTAIN RULE

Ben shall be entitled to Carlo.
Hence, ₱1,125,000 shall be What is the Iron Curtain Rule?
given to Carlo.
o The free portion is Children, regardless of the circumstances of
₱3,375,000. their birth, are now qualified to inherit from
their direct ascendants by right of
4. Division between full-blood and half- representation.
blood brothers and sisters
COMMON PROVISIONS
Although a brother or sister is two
degrees removed from the decedent RULE OF PROXIMITY
sibling, if full-blood siblings concur
with half-blood siblings, the former What is the rule of proximity?
shall be entitled to a share double that
of the latter. The relative nearest in degree excludes the
more distant ones, saving the right of
Illustration: representation when it properly takes place.

Ana and Ben are full blood siblings of RULE OF PREFERENCE OF LINES
Marco who belong to the same mother
and father. While Carlo is their half What are the three lines of relationship in
blood brother who belongs to the same succession?
mother only. Marco died intestate.
The following are the lines of relationship in
Application of the rule: succession:

When full-blood siblings concur with 1. Direct descending line

half-blood siblings, the share of each 2. Direct ascending line
full-blood sibling is double the share 3. Collateral relatives
of each half-blood sibling.
Who are the preferred heirs in the line of
o Each full-blood sibling = 2 succession, should relatives from the descending
shares line, ascending line, and collateral relationship be
o Each half-blood sibling = 1 present?
share
In this instance, the Rule of Proximity of
Division: Degree shall apply. Hence, those heirs nearest
in degree shall exclude the more distant ones,
Net estate is ₱900,000. without prejudice to the right of representation.

o Ana (full-blood) = 2 shares Will the presence of illegitimate children or

o Ben (full-blood) = 2 shares descendants exclude the legitimate parents or
o Carlo (half-blood) = 1 share ascendants of the decedent?
o 2 + 2 + 1 = 5 shares
o ₱900,000 ÷ 5 = ₱180,000 per NO. The illegitimate children or descendants
share of the decedent can concur with the
o Full blood: 2 × 180,000 = legitimate parents or ascendants of the
₱360,000 decedent. In such case, illegitimate children
o Half-blood: 1 × 180,000 = shall divide the inheritance with them, taking
₱180,000 ½ of the estate.
o Ana receives ₱360,000
o Ben receives ₱360,000
o Carlo receives ₱180,000

35 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

To whom can an adopted child inherit? RIGHT OF ACCRETION

The adoptee shall be considered the legitimate What is the right of accretion?
son/ daughter of the adopter/ s for all intents
and purposes. Thus, he/ she is entitled to all Accretion is a right by virtue of which, when
rights and obligations provided by law to two or more persons are called to the same
legitimate sons/ daughters born to them inheritance, devise or legacy, the part assigned
without discrimination of any kind. to the one who renounces or cannot receive his
share, or who died before the testator, is added
Can the adopting parents inherit from the adopted or incorporated to that of his co-heirs, co-
child/ children? devisees, or co-legatees.

YES. In legal and intestate succession, the What are the requisites of right of accretion?
adopter/ s and adoptee shall have reciprocal
rights of succession without distinction from a. There are two or more persons who
legitimate filiation. But, if the adoptee and are called to the same inheritance or
his/her biological parent(s) had left a will, the devise or legacy; and
law on testamentary succession shall govern. b. One of the heirs dies before the
testator, renounces or cannot receive
RIGHT OF REPRESENTATION his/her share.

What is the right of representation? When does accretion occur?

Representation is a right created by fiction of Accretion occurs when there is repudiation,

law, by virtue of which the representative is incapacity, or predecease of an heir. There
raised to the place and the degree of the can only be accretion if there is an institution
person represented and acquires the rights of heirs with respect to specific property.
which the latter would have if he were living
or if he could have inherited. When is there right of accretion in testamentary
succession? How about in legal succession?
What are the requisites of the right of
representation? In testamentary succession, accretion takes
place when:
a. It should take place in the direct
descending line only, but in the 1. Two or more persons be called to the
collateral line it should take place only same inheritance, or to the same
in favor of children of brothers or portion thereof, pro indiviso; and
sisters, whether full or half-blood; and 2. One of the persons thus called die
b. The representative must be capable of before the testator, or renounce the
succeeding the decedent because the inheritance, or is incapacitated to
representative does not succeed the receive it.
person represented but the one whom
the person represented would have Meanwhile, accretion takes place in legal
succeeded. succession when an heir repudiates his/her
share and such portion shall accrue to his/her
When does right of representation occur? co-heirs.

It occurs only in the following instances: How much shall be inherited by the heirs who get
the share of another through right of accretion?
1. Predecease of an heir;
2. Incapacity or unworthiness; and The heirs to whom the portion goes by the right
3. Disinheritance. of accretion take it in the same proportion that
they inherit.

36 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

To whom shall the vacant portion go if accretion o ₱10,000,000 ÷ 3 (representing the

does not take place in testamentary succession? number of children) = ₱3,333,333.33
per heir
When the right of accretion does not take o Subtract what they already received
place, the vacant portion of the instituted heirs, during Don Ramon’s lifetime.
if no substitute has been designated, shall pass ➢ Ana: ₱3,333,333.33-
to the legal heirs of the testator, who shall ₱3,000,000 = ₱333,333.33
receive it with the same charges and ➢ Ben: ₱3,333,333.33-₱1,000,000
obligations. = ₱2,333,333.33
➢ Since Carlo did not receive any
COLLATION donation, he gets
₱3,333,333.33.
What is collation?
State the limitations on the power of the decedent
Collation is the act whereby descendants or to make donations.
other forced heirs who intervene in the division
of the inheritance of an ascendant bring into The following are the limitations on the power
the common mass, the property which they of the decedent to make donations:
received from him, so that the division may be
made according to law and the will of the 1. While a testator has the freedom to
testator. It is only required of compulsory heirs make donations, he/ she is obliged by
succeeding with other compulsory heirs and law to reserve, in full ownership or in
involves property or rights received by usufruct, sufficient means to support
donation or gratuitous title during the himself and all relatives who, at the
lifetime of the decedent. time of acceptance of donation, are by
law entitled to be supported by the
Illustration: donor.
2. Without such reservation, the
The decedent, Don Ramon, dies intestate. He donation shall be reduced in petition
is survived by his three children, who are of any person affected.
compulsory heirs: Ana, Ben, and Carlo. 3. The foregoing notwithstanding, no
person may give or receive, by way of
Before his death, Don Ramon made lifetime donation, more than he/ she may give
donations (donations inter vivos) to two of his or receive by will. The donation shall
children: be inofficious with respect to the
excess of this limitation.
o To Ana: A parcel of land worth
₱3,000,000 Who are obliged to collate?
o To Ben: Cash worth ₱1,000,000
Every compulsory heir, who succeeds with
Don Ramon’s remaining estate at death (after other compulsory heirs, must bring into the
debts and charges) is ₱6,000,000. mass of the estate any property or right which
he may have received from the decedent,
Application of the rule: during the lifetime of the latter, by way of
donation, or any other gratuitous title.
Collation requires that all compulsory heirs
who received donations in advance of their Who are not obliged to collate?
inheritance must bring to collation (i.e., add
back) the value of those donations to the The following are not obliged to collate:
hereditary estate.
1. If the donor has expressly stated in the
Calculation: deed of donation that the property
donated shall not be subject to
o Total collated estate = ₱6,000,000 + collation, the donation received by the
₱4,000,000 = ₱10,000,000 compulsory heir shall not be charged to
his/her legitime.

37 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession

2. If the donee who is a compulsory heir house and company of his parents shall
repudiates his/her inheritance, he/ be deducted therefrom.
she is not obliged to collate the 3. Donations to the spouse of the child;
property. However, such donation but if they have been given by the
shall be charged to the disposable free parent to the spouses jointly, the child
portion since a compulsory heir is shall be obliged to bring to collation
already considered a stranger by one-half of the thing donated.
repudiating his/her inheritance.
3. A surviving spouse, who, during the What are the other rules of collation?
marriage received a donation from the
deceased spouse is not required to 1. The same things donated are not to be
collate because a donation between the brought to collation and partition, but
spouses during the marriage is void. only their value at the time of the
4. Parents are not obliged to bring to donation, even though their just value
collation in the inheritance of their may not then have been assessed.
ascendants any property which may
have been donated by the latter to their Their subsequent increase or
children. deterioration and even their total loss
or destruction, be it accidental or
What must be brought to collation? culpable, shall be for the benefit or
account and risk of the donee.
1. Donations inter vivos by gratuitous
title. 2. The donee's share of the estate shall
2. Any sums paid by a parent in be reduced by an amount equal to that
satisfaction of the debts of his children, already received by him; and his co-
election expenses, fines, and similar heirs shall receive an equivalent, as
expenses. much as possible, in property of the
3. Wedding gifts by parents and same nature, class and quality.
ascendants consisting of jewelry, 3. The fruits and interest of the property
clothing, and outfit, except if the value subject to collation shall not pertain to
exceeds one-tenth of the disposable free the estate except from the day on
portion. which the succession is opened.

In the collation of a donation made by both For the purpose of ascertaining their amount,
parents, one-half shall be brought to the the fruits and interest of the property of the
inheritance of the father, and the other half, to estate of the same kind and quality as that
that of the mother. That given by one alone subject to collation shall be made the standard
shall be brought to collation in his or her of assessment.
inheritance.
ACCEPTANCE AND
What need not be brought to collation? REPUDIATION OF INHERITANCE

1. Expenses for support, education, What are the requisites before an heir may
medical attendance, even in repudiate his/her share?
extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts 1. There must be certainty of death of the
are not subject to collation. decedent; and
2. Expenses incurred by the parents in 2. There must be certainty of the right to
giving their children a professional, the inheritance.
vocational or other career shall not be
brought to collation unless the parents Name the forms of repudiation.
so provide, or unless they impair the
legitime; but when their collation is Repudiation shall be made through the
required, the sum which the child following:
would have spent if he had lived in the
1. In a public instrument;

38 | P a g e
 LAW 401 CIVIL LAW REVIEW
Notes on Succession

2. In an authentic instrument; or cause the testator to make a will or to

3. By a petition presented to the court change one already made;
having jurisdiction over the 7. Any person who by the same means
testamentary or intestate proceedings. prevents another from making a will,
or from revoking one already made, or
Compare and contrast the effects of repudiation, who supplants, conceals, or alters the
predecease, and incapacity with respect to the latter's will;
inheritance by an heir. 8. Any person who falsifies or forges a
supposed will of the decedent.
Cause of TS – Free
TS – Legitime IS
Vacancy Portion What will be the effect of condonation?
Predecease Representation Accretion Representation
| IS | IS | IS
The causes of unworthiness shall be without
Incapacity Representation Accretion Representation
| IS | IS | IS effect if the testator had knowledge thereof at
Repudiation IS Accretion Accretion the time he made the will, or if, having known
of them subsequently, he should condone them
CAPACITY TO INHERIT in writing.

When is an heir, devisee, or legatee considered as State the grounds for incapacity by reason of
capacitated to inherit? MORALITY.

If the heir, devisee or legatee is alive at the 1. Those made in favor of the testator was
moment the succession opens, without guilty of adultery or concubinage at
prejudice to the right of representation. the time of the making of the will;
2. Those made in consideration of a
What are the grounds for an heir to be crime of which both the testator and
incapacitated by reason of UNWORTHINESS? the beneficiary have been found guilty;
3. Those made in favor of a public
1. Parents who have abandoned their officer or his spouse, descendants and
children or induced their daughters to ascendants, by reason of his public
lead a corrupt or immoral life, or office.
attempted against their virtue;
2. Any person who has been convicted of State the grounds for incapacity by reason of
an attempt against the life of the UNDUE INFLUENCE.
testator, his or her spouse,
descendants, or ascendants; 1. The priest who heard the confession
3. Any person who has accused the of the testator during his last illness, or
testator of a crime for which the law the minister of the gospel who
prescribes imprisonment for six years extended spiritual aid to him during
or more, if the accusation has been the same period;
found groundless; 2. The relatives of such priest or minister
4. Any heir of full age who, having of the gospel within the fourth degree,
knowledge of the violent death of the the church, order, chapter, community,
testator, should fail to report it to an organization, or institution to which
officer of the law within a month, such priest or minister may belong;
unless the authorities have already 3. A guardian with respect to
taken action; this prohibition shall not testamentary dispositions given by a
apply to cases wherein, according to ward in his favor before the final
law, there is no obligation to make an accounts of the guardianship have been
accusation; approved, even if the testator should
5. Any person convicted of adultery or die after the approval thereof;
concubinage with the spouse of the nevertheless, any provision made by
testator; the ward in favor of the guardian when
6. Any person who by fraud, violence, the latter is his ascendant, descendant,
intimidation, or undue influence should brother, sister, or spouse, shall be valid;

39 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession
Leg. Parents + SS + ½ to leg. Parents
4. Any attesting witness to the execution Illeg. Children ¼ to illeg. Children
of a will, the spouse, parents, or ¼ to SS
children, or any one claiming under NO DESCENDANTS
such witness, spouse, parents, or Surviving spouse + ½ to spouse, ½ to
children; Leg. Parents ascendants
5. Any physician, surgeon, nurse, health
officer or druggist who took care of the Ascendants of same
degree divide per
testator during his last illness;
capita; different lines
6. Individuals, associations and
divide ½ paternal, ½
corporations not permitted by law to
maternal.
inherit. Illeg. Parents + By analogy
Surviving Spouse
DISTRIBUTION OF ESTATE ½ to illeg parents
½ to the SS
Primary Rule: Rule of Proximity – Nearest Surviving Spouse Spouse inherits the
Compulsory Heirs Exclude the More Remote alone entire estate.
Leg. Parents only They inherit entire
Order of Preference: estate, divided per
rules of line and
1. The legitimate children and degree:
descendants
Same line, same
2. The legitimate parents and
degree – per capita
ascendants Same degree,
3. The illegitimate children and different lines – ½
descendants paternal, ½
4. The surviving spouse maternal
5. The brothers and sisters OR nephews NO DESCENDANTS OR
and nieces ASCENDANTS
6. Other collateral relatives within the Brothers and Sisters Share of full blood is
fifth civil degree double that of a half-
7. The State blood sibling.
Nephews & Nieces By representation
THERE IS/ARE DESCENDANT/S
If a sibling
Leg. Children Only They shall inherit in
predeceases the
their own right
decedent, nephews
dividing the estate in
and nieces inherit per
equal shares.
stirpes.
Leg. Children concur The spouse’s share
SS + Brothers & ½ to SS
with Surviving Spouse equals that of one
Sisters + Nephews & ½ to collateral
legitimate child. The
Nieces relatives
same rule holds true
Brothers & Sisters The brothers and
when there is only
survive with their sisters shall inherit
one child.
children per capita, while the
Leg. Children concur Illegitimate children
nephews and nieces
with Illegitimate get ½ of the share of
shall inherit per
Children each legitimate
stirpes.
child.
NO The estate goes to
Leg. Children concur Surviving Spouse =
DESCENDANTS, other collateral
with Illeg. Children Share of a Leg. Child
NO relatives within the
and Surviving Spouse Illeg. Child = ½ of
the share of a leg. ASCENDANTS, 5th degree, per
child NO SPOUSE, capita.
Leg. Parents concur ½ to Leg. Parents NO BROTHERS
AND SISTERS The right to inherit
with Illeg. Children ½ to Illeg. Children
ab intestato shall not
SS + Illeg. Children ½ to SS
extend beyond the
½ to illeg. Children
fifth degree of
and descendants

40 | P a g e
LAW 401 CIVIL LAW REVIEW
Notes on Succession
relationship in the
collateral line.
NO RELATIVES The State by escheat.
AT ALL

41 | P a g e