B. Testamentary succession

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

1. Wills

a. CONCEPT

1) Last will and testament

A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. (Article 783, Ibid.)

2) Personal act

The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.(Article 784, Ibid.)

3) Duration or efficacy

The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (Article 785, Ibid.)

4) Entrustment to third person

The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. (Article 786, Ibid.)

The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. (Article 787, Ibid.)

5) Rules of interpretation

a) Different interpretations

If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (Article 788, Ibid.)

b) Imperfect description, no person/property exactly answers the description

When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (Article 789, Ibid.)  

c) Ordinary and grammatical sense

The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. (Article 790, Ibid.)

d) Technical words

Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. (Paragraph 2, Article 790, Ibid.)

e) To give every expression some effect, prevent intestacy

The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (Article 791, Ibid.)  

f) Separability – with exception

The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (Article 792, Ibid.)  

g) Property acquired after making of a will

Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (Article 793, Ibid.)

h) Scope of interest

Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (Article 794, Ibid.)

i) Formalities of a will

The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (Article 795, Ibid.)

b. TESTATOR’S CAPACITY AND INTENT

1) Who may be a testator; Requirements

a) Those not prohibited by law

All persons who are not expressly prohibited by law may make a will. (Article 796, Ibid.)

b) Age of majority

Persons of either sex under eighteen years of age cannot make a will. (Article 797, Ibid.)

c) Sound mind

In order to make a will it is essential that the testator be of sound mind at the time of its execution. (Article 798, Ibid.)

(1) What constitutes a sound mind

To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. (Article 799, Ibid.)

It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.(Paragraph 2, Article 799, Ibid.)

(2) Burden of proof

The law presumes that every person is of sound mind, in the absence of proof to the contrary. (Article 800, Ibid.)

The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (Paragraph 2, Article 800, Ibid.)

2) Supervening incapacity

Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (Article 801, Ibid.)

3) Married woman

A married woman may make a will without the consent of her husband, and without the authority of the court. (Article 802, Ibid.)

A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property.(Article 803, Ibid.)

c. FORMS OF WILLS

1) Notarial will

a) In Writing

b) In a language/dialect known to the testator

Every will must be in writing and executed in a language or dialect known to the testator. (Article 804, Ibid.)

c) Subscribed by testator

d) Attested by at least 3 witnesses

Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. (Article 805, Ibid.)

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.(Paragraph 2, Article 805, Ibid.)

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.(Paragraph 3, Article 805, Ibid.)

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (Paragraph 4, Article 805, Ibid.)

e) Acknowledged before a notary public

Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. (Article 806, Ibid.)

f) Additional requirements, if applicable

(1) Deaf/deaf-mute testator

If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (Article 807, Ibid.)

(2) Blind testator

If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (Article 808, Ibid.)

(3) Substantial compliance

In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. (Article 809, Ibid.)

2) Holographic will

a) Sole requirement: entirely written, dated, signed by testator

(1) No other condition

A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Article 810, Ibid.)

(2) During probate, 2 witnesses for handwriting verification

In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. (Article 811, Ibid.)

In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (Paragraph 2, Article 811, Ibid.)

(3) Dated and signed by testator

In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (Article 812, Ibid.)

When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (Article 813, Ibid.)

(4) Insertion, cancellation, erasure, alteration

In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (Article 814, Ibid.)

(5) Foreign country

When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (Article 815, Ibid.)

Joint wills prohibited by Article 818 executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (Article 819, Ibid.)

(6) Foreigner/alien

The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (Article 816, Ibid.)

A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (Article 817, Ibid.)

(7) No joint will

Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (Article 818, Ibid.)

Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (Article 819, Ibid.)

d. WITNESSES TO WILLS

1) Who may be witnesses; Requirements

Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a [notarial] will… (Article 820, Ibid.)

2) Disqualified

The following are disqualified from being witnesses to a will:

1) Any person not domiciled in the Philippines;

2) Those who have been convicted of falsification of a document, perjury or false testimony. (Article 821, Ibid.)

3) Competent at time of attesting

If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. (Article 822, Ibid.)

4) The 3-witness requirement if one witness has conflict of interest

If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (Article 823, Ibid.)

5) Creditors as witnesses

A mere charge on the estate of the testator for the payment of debts due at the time of the testator’s death does not prevent his creditors from being competent witnesses to his will. (Article 824, Ibid.)

e. CODICILS AND INCORPORATION BY REFERENCE

1) Concept

A codicil is supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which disposition made in the original will is explained, added to, or altered.  (Article 825, Ibid.)

In order that a codicil may be effective, it shall be executed as in the case of a will. (Article 826, Ibid.)

2) Incorporates by reference a document/paper

If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present:

1) The document or paper referred to in the will must be in existence at the time of the execution of the will;

2) The will must clearly describe and identify the same, stating among other things the number of pages thereof;

3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and

4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories. (Article 827, Ibid.)

f. REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS

1) When may be revoked

A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (Article 828, Ibid.)

2) Where revocation done outside the Philippines

A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (Article 829, Ibid.)

3) How revocation is made

No will shall be revoked except in the following cases:

1) By implication of law; or

2) By some will, codicil, or other writing executed as provided in case of wills; or

3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (Article 830, Ibid.)

4) Subsequent wills

Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills.(Article 831, Ibid.)

A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation.(Article 832, Ibid.)

5) False cause or illegal cause

Art. 833. A revocation of a will based on a false cause or an illegal cause is null and void. (Article 833, Ibid.)

6) Recognition of an illegitimate child in a will

The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. (Article 834, Ibid.)

g. REPUBLICATION AND REVIVAL OF WILLS

1) Republication

The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form.(Article 835, Ibid.)

The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. (Article 836, Ibid.)

2) Revival

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. (Article 837, Ibid.)

h. ALLOWANCE AND DISALLOWANCE OF WILLS

1) Probate proceedings: allowance of wills

No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. (Article 838, Ibid.)

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 Rules of Court for the allowance of wills after the testator’s a death shall govern.(Paragraph 2, Article 838, Ibid.)

The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.(Paragraph 3, Article 838, Ibid.)

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 due execution. (Paragraph 4, Article 838, Ibid.)

2) Grounds for disallowance

The will shall be disallowed in any of the following cases:

1) If the formalities required by law have not been complied with;

2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;

3) If it was executed through force or under duress, or the influence of fear, or threats;

4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

5) If the signature of the testator was procured by fraud;

6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (Article 839, Ibid.)

2. Institution of heirs (including declaration of heirship as decided in Treyes v. Larlar, G.R. No. 232579. September 8, 2020)

a. CONCEPT

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. (Article 840, Ibid.)

1) Designation by name and surname

The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known. (Article 843, Ibid.)

Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. (Paragraph 2, Article 843, Ibid.)

2) Error in name, surname, circumstances

An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. (Article 844, Ibid.)

If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of the other proof, the person instituted cannot be identified, none of them shall be an heir. (Paragraph 2, Article 844, Ibid.)

3) Unknown person

Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (Article 845, Ibid.)

4) Without designation, equal parts

Heirs instituted without designation of shares shall inherit in equal parts. (Article 846, Ibid.)

b. NO INSTITUTED HEIR OR INCOMPLETE INSTITUTION

A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. (Article 841, Ibid.)

In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. (Paragraph 2, Article 841, Ibid.)

c. COMPULSORY HEIRS

1) No compulsory heirs

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. (Article 842, Ibid.)

2) With compulsory heirs

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. (Paragraph 2, Article 842, Ibid.)

d. RULES OF INTERPRETATION

1) Heirs instituted collectively

When the testator institutes some heirs individually and others collectively as when he says, “I designate as my heirs A and B, and the children of C,” those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. (Article 847, Ibid.)

2) Institution of siblings, full blood and half-blood

If the testator should institute his brothers and sisters, and he has some of full blood and others of [half-blood], the inheritance shall be distributed equally unless a different intention appears. (Article 848, Ibid.)

3) Institution of a person and his children

When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively. (Article 849, Ibid.)

4) False cause for institution

The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. (Article 850, Ibid.)

5) Institution of only one heir limited to an aliquot part

If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate. (Article 851, Ibid.)

The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. (Paragraph 2, Article 851, Ibid.)

6) Institution is w/ intent to whole estate but aliquot parts do not cover whole inheritance

If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (Article 852, Ibid.)

7) Institution of heirs whose combined aliquot parts exceed whole inheritance

If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. (Article 853, Ibid.)

8) Preterition or omission of compulsory heir in direct line

a) Concept, nature, effects

The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. (Article 854, Ibid.)

b) Death of omitted compulsory heirs before testator

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (Paragraph 2, Article 854, Ibid.)

c) Share of omitted compulsory heirs

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. (Article 855, Ibid.)

9) Death of voluntary heir before the testator

A voluntary heir who dies before the testator transmits nothing to his heirs. (Article 856, Ibid.)

10) Death of a compulsory heir before the testator

A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (Paragraph 2, Article 856, Ibid.)

3. Substitution of heirs

a. CONCEPT

Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. (Article 857, Ibid.)

The testator may designate one or more persons 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.(Article 859, Ibid.)

b. MODES OF SUBSTITUTION OF HEIRS

Substitution of heirs may be:

1) Simple or common;

2) Brief or compendious;

3) Reciprocal; or

4) Fideicommissary. (Article 858, Ibid.)

c. CLASSIFICATION OF MODES

1) Simple substitution

A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided. (Paragraph 2, Article 858, Civil Code)

2) Fideicommissary substitution

A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator. (Article 863, Ibid.)

d. SIMPLE SUBTITUTION

1) Number of substitutes

Two or more persons may be substituted for one; and one person for two or more heirs. (Article 860, Ibid.)

2) Reciprocal substitution

If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution. (Article 861, Ibid.)

3) Substitute, subject to same charges and conditions

The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless and testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted. (Article 862, Ibid.)

e. FIDEICOMMISARY SUBSTITUTION

1) First heir as fiduciary

A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance. (Article 863, Ibid.)

a) Requirements

(1) The 1- degree limitation

The fideicommissary substitution shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted.(Ibid.)

(2) Second heir is living at time of death of testator

Provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator. (Ibid.)

b) Cannot burden legitime

A fideicommissary substitution can never burden the legitime. (Article 864, Ibid.)

c) Expressly made

Every fideicommissary substitution must be expressly made in order that it may be valid. (Article 865, Ibid.)

d) No deductions – unless otherwise provided

The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise. (Paragraph 2, Article 865, Civil Code)

3) Second heir

a) Right to succession upon death of testator

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. (Article 866, Ibid.)

b) Right is transmissible to heirs

The right of the second heir shall pass to his heirs. (Ibid.)

4) Void fideicommissary substitution

a) Grounds for nullity

The following shall not take effect:

1) Fideicommissary substitutions which are 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 perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863;

3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension;

4) Those which leave to a person the whole 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. (Article 867, Ibid.)

b) Effects of nullity

The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written. (Article 868, Ibid.)

c) Ownership and usufruct, to different persons

A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of Article 863 shall apply. (Article 869, Ibid.)

d) 20-year limitation on inalienability

The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void. (Article 870, Ibid.)

4. Conditional testamentary dispositions and those with a term

a. CONCEPT

1) For a condition, certain purpose or cause

The institution of an heir may be made conditionally, or for a certain purpose or cause. (Article 871, Ibid.)

2) Designation of day / time when to commencement or cease

The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid.(Article 885, Ibid.)

In both cases, the legal heir shall be considered as called to the succession until the arrival of the period 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. (Paragraph 2, Article 885, Ibid.)

b. VOID CONDITIONS

1) Charge on legitimes

The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed. (Article 872, Ibid.)

2) Impossible conditions

3) Contrary to law

4) Contrary to good customs

Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide. (Article 873, Ibid.)

5) Prohibition against marriages – with exceptions

a) Concept

An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter’s ascendants or descendants.(Article 874, Ibid.)

b) Usufruct, allowance, personal prestations while unmarried or in widowhood

Nevertheless, the right of 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. (Paragraph 2, Article 874, Ibid.)

6) Requiring heir to make provisions in his own will favorable to testator or other person

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. (Article 875, Ibid.)

Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the testator’s death. (Article 876, Ibid.)

This rule shall not apply when the condition, already complied with, cannot be fulfilled again. (Paragraph 1, Article 876, Ibid.)

c. CASUAL OR MIXED CONDITIONS

1) Happening or fulfillment before/after death – unless otherwise provided

If the condition is casual or mixed, it shall be sufficient if it happens or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise. (Article 877, Ibid.)

2) Existence of event or fulfillment during making of will

a) Testator is unaware

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 as complied with. (Paragraph 2, Article 877, Civil Code)

3) Testator is aware

If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again. (Paragraph 3, Article 877, Civil Code)

d. SUSPENSIVE CONDITION

1) Disposition under a suspensive condition / term

A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term. (Article 878, Ibid.)

2) Heir under a suspensive condition / term

If the heir be instituted under a suspensive condition 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. (Article 880, Ibid.)

e. POTESTATIVE CONDITION

1) Security, required

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 will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests. (Article 879, Ibid.)

2) Under administration if no security

The same shall be done if the heir does not give the security required in the preceding article. (Paragraph 2, Article 879, Ibid.)

f. STATEMENT ON THE OBJECT OF INSTITUTION, APPLICATION, CHARGE

1) Testator’s intention

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 appears that such was his intention.(Article 882, Ibid.)

2) Security prior to claiming

That which has been left in this manner may be claimed at once provided that the instituted heir or his 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. (Paragraph 2, Article 882, Ibid.)

3) Most analogous and in conformity; Substantial compliance

When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes.(Article 883, Ibid.)

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. (Paragraph 2, Article 883, Ibid.)

4) Rules on conditional obligations, suppletory application

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. (Article 884, Ibid.)

5. Legitime

a. CONCEPT

Legitime is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. (Article 886, Ibid.)

1) Compulsory heirs

The following are compulsory heirs:

1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

3) The widow or widower;

4) Acknowledged natural children, and natural children by legal fiction;

5) Other illegitimate children referred to in Article 287. (Article 887, Ibid.)

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.(Paragraph 2, Article 887, Ibid.)

In all cases of illegitimate children, their filiation must be duly proved.(Paragraph 3, Article 887, Ibid.)

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.(Paragraph 3, Article 887, Ibid.)

b. LEGITIME OF COMPULSORY HEIRS

1) Legitimated children and descendants

The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.(Article 888, Ibid.)

The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (Paragraph 2, Article 888, Ibid.)

2) Legitimate parents or ascendants

The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children and descendants.(Article 882, Ibid.)

The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (Paragraph 2, Article 889, Ibid.)

a) How divided

The legitime reserved for the legitimate parents shall be divided between them equally; if one of the parents should have died, the whole shall pass to the survivor.(Article 890, Ibid.)

If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line. (Paragraph 2, Article 890, Ibid.)

b) Special rule: reserva troncal

The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (Article 891, Ibid.)

(1) The 3-lines of transmission

There are three (3) lines of transmission in reserva troncal. The first transmission is by gratuitous title, whether by inheritance or donation, from an ascendant/brother/sister to a descendant called the prepositus. The second transmission is by operation of law from the prepositus to the other ascendant or reservor, also called the reservista. The third and last transmission is from the reservista to the reservees or reservatarios who must be relatives within the third degree from which the property came. (Mendoza v. Delos Santos, G.R. No. 176422, 20 March 2013)

Article 891 simply requires that the property should have been acquired by the descendant or prepositus from an ascendant by gratuitous or lucrative title. A transmission is gratuitous or by gratuitous title when the recipient does not give anything in return. (Ibid.)

(2) The persons involved

The persons involved in reserva troncal are:

1) The ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title;

2) The descendant or prepositus (propositus) who received the property;

3) The reservor (reservista), the other ascendant who obtained the property from the prepositus by operation of law; and

4) The reservee (reservatario) who is within the third degree from the prepositus and who belongs to the (linea o tronco) from which the property came and for whom the property should be reserved by the reservor. (Ibid.)

3) Legitimate children / descendant + Widow/er

a) Where only 1 legitimate child

If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. (Article 892, Ibid.)

b) Where at least 2 legitimate children / descendants

If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. (Paragraph 2, Article 892, Ibid.)

c) Surviving spouse’s share, from free portion

In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. (Paragraph 3, Article 892, Ibid.)

4) Legitimate ascendants + Surviving spouse

a) 1/4 to surviving spouse, from free portion

If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. (Article 893, Ibid.)

This fourth shall be taken from the free portion of the estate. (Paragraph 2, Article 893, Ibid.)

5) Illegitimate children + Surviving spouse

a) 1/3 to surviving spouse

If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator. (Article 894, Ibid.)

6) Illegitimate children + Legitimate children

a) Illegitimate children gets 1/2 of the legitime of legitimate children

The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants.(Article 895, Ibid.)

The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child.(Paragraph 2, Article 895, Ibid.)

b) Illegitimate children’s share from free portion

c) Legitime of surviving spouse takes priority

The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied. (Paragraph 3, Article 895, Ibid.)

7) Illegitimate children + Legitimate parents / ascendants

a) 1/4 to illegitimate children, from free portion

Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator. (Article 896, Ibid.)

8) Widow/er + Legitimate children / descendants + Illegitimate children

a) Equal share for widow/er + Legitimate children, from free portion

When the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of. (Article 897, Ibid.)

b) Widow/er’s share same, in Widow/er + Legitimate children + Illegitimate children

If the widow or widower survives with legitimate children or descendants, and with illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that provided in the preceding article. (Article 898, Ibid.)

8) Widow/er + Legitimate parents / ascendants + Illegitimate children

a) 1/8 to surviving spouse, from fee portion

When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. (Article 899, Ibid.)

b) 1/4 to illegitimate children, from free portion

When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. (Ibid.)

9) Widow/er as sole survivor

a) 1/2 of estate of deceased partner

If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. (Article 900, Ibid.)

b) 1/3 of estate of deceased partner, death w/n 3 months of marriage in articulo mortis – with exception

If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. (Paragraph 2, Article 900, Ibid.)

10) Illegitimate children

a) 1/2 to illegitimate children

When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased. (Article 901, Ibid.)

The other half shall be at the free disposal of the testator. (Paragraph 2, Article 901, Ibid.)

b) Right transmissible to descendants

The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. (Article 902, Ibid.)

10) Parents of illegitimate child as decedent

a) 1/2 to parents, if no descendants nor widow/er

The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child.(Article 903, Ibid.)

b) Surviving children excludes parents

If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. (Ibid.)

c) Widow/er + Parents

(1) 1/4 to parents

(2) 1/4 to surviving spouse

If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. (Ibid.)

c. LEGITIME REQUIRED TO BE GIVEN

1) No deprivation – with exceptions

The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law.(Article 904, Ibid.)

2) No burdens, encumbrance, condition, substitution

Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever. (Paragraph 2, Article 904, Ibid.)

3) Renunciation or compromise of legitime, void

Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. (Article 905, Ibid.)

4) Right of compulsory heir to demand complete legitime

Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. (Article 906, Ibid.)

5) Reduction of testamentary dispositions that impair or diminish legitims

Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive. (Article 907, Ibid.)

6) Valuation of the property

To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will.(Article 908, Ibid.)

To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them. (Paragraph 2, Article 908, Ibid.)

7) Donations

a) To children, chargeable to their legitime

(1) Legitimate children

Donations given to children shall be charged to their legitime. (Article 909, Ibid.)

(2) Illegitimate children, subject to reduction if exceeds free portion

Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime.(Article 910, Ibid.)

Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code. (Paragraph 2, Article 901, Ibid.)

b) To strangers, chargeable to free portion

Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. (Paragraph 2, Article 909, Ibid.)

Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. (Paragraph 3, Article 909, Ibid.)

c) Reduction of legitime

After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows:

1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will;

2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever.

  If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime.

3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (Article 911, Ibid.)

1) Real property

If the devise subject to reduction should consist of real property, which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb one-half of its value; and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them.(Article 912, Ibid.)

2) Devisee’s right to retain property, conditions

The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime.(Paragraph 2, Article 912, Ibid.)

3) Effects for non-exercise of right to retain property

4) When property may be sold at public auction

If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article, any heir or devisee who did not have such right may exercise it; should the latter not make use of it, the property shall be sold at public auction at the instance of any one of the interested parties. (Article 913, Ibid.)

d. FREE PORTION

The testator may devise and bequeath the free portion as he may deem fit. (Article 914, Ibid.)

6. Disinheritance

7. Legacies and devises

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Subjects

Political Law, Labor Law

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