CIVIL CODE-SUCCESSION NOTES/REMARKS/REFERENCE

Art 774 – Succession mortis causa

Elements
1. A mode of acquisition
2. The property, rights, and obligations
to the extent of the value of the
inheritance
3. Transmitted through death of the
debtor
4. Transmitted to another
5. Transmitted by will or operation of
law (intestate)

Art 775 – decedent

Person whose property is transmitted

through succession.
Testator – if there is a will left
Intestate – if there is no will left

Art 776 – inheritance are property, rights

and obligations not extinguished by death
of decedent

Inheritance vs succession
Inheritance – the property or right acquired
Succession – manner of acquiring the
property or right
Inclusion of inheritance Kinds of property
1. Property 1. Immovable – real
2. Rights not extinguished by death 2. Movable – personal;
(e.g. insurance claim) (a)consumable and (b)non-
3. Obligations not extinguished by consumable
death but only to the extent of the
value of the inheritance Rights extinguished by death (e.g.
job)
Ownership is transferred at the moment of
death

Right not extinguished by death (example) Sec 16, Rule 3, Rules on Civil
 Right to bring or continue an action procedure
for forcible entry or unlawful detainer - The heirs of the deceased
 Right to continue lease may be allowed to substitute

In case of money debt, it is not inherited Sec 17 Rule 3 – when a public

BUT the court may order first the officer is a party in an action in his
satisfaction of the debt of the deceased official capacity and died during
(e.g. sell the property) and the balance from pendency, the action may be
the sales may then be divided among the continued and maintained by or
heir. against his successor

Sec 20 Rule 3 – in an action pending

for money claim, it shall be allowed
to continue until entry of final
judgment

Sec 7, Rule 39 – execution of final

order in case of death of a party may
be done by the successor in interest

[The estate of the decedent

would then be held in co-ownership
by the heirs.]
Art 484 – Co-ownership of an
undivided thing
- death of co-owner does not
dissolve the co-ownership
(unlike in a partnership)

The heirs cannot partition the family

home upon the death
of the person or persons who
Art 777 – rights to the succession are Presumed death
transmitted from the moment of death of 1. Ordinary
the decedent 2. Extraordinary

Requisites for succession mortis causa Art 390, NCC (for purposes of
(conditions for the transmission of succession only)
successional rights): - Absentee under normal
1. there is actual or presumed death conditions is presumed dead
2. rights or properties are transmissible after 10 years (if age is 75
or descendible years and above, 5 years)
3. the transferee is still alive, willing, Art 391, NCC
and capacitated to inherit - Person on board a
vessel/aeorplane not heard
for 4 years since the loss
- Person in armed forces in
war, 4 years
- Person in danger of death
Art 778

3 (Types/Kinds of) Succession may be

1. Testamentary – there is a will
2. Legal or intestate – law governs
3. Mixed – partly there is a will
disposing certain properties

Other kinds
1. Compulsory/necessary/forced –
only for testator to give to the
legitimes
2. Contractual – by virtue of marriage
Art 779 Testamentary succession

Done thru a
1. Will
2. Codicil – addition to a will There can be mechanical drafting/
computerized so long as the
Form of will formalities of the law are complied
1. Notarial with such as signing by a testator
2. Holographic (handwritten) and witnesses
Art 780 Mixed succession

Partly will, partly operation of law

Art 781 Inclusion of inheritance

1. Property
2. Transmissible right and obligations
existing at the time of the decedent’s
death
3. Transmissible rights and obligation
accrued since the opening of
succession (e.g. alluvium)
Art 782 Heir Importance of distinction – on the
preterition (854) and disinheritance
Heir – a person called to the succession by (918)
will or operation of law

Heir of real property – devisees Devisees and legatees only in

Heir of personal property – legatees testamentary succession

Legal or intestate heirs – in case of legal

succession
TESTAMENTARY SUCCESSION
- WILLS
ART 783. A will is an act whereby a person
is permitted with the formalities prescribed
by law, to control to a certain degree the
disposition of his estate, to take effect after
his death

Essential elements of will

1. statutory right
2. unilateral act – heir may not accept
3. solemn or formal act
4. there must be animus testandi –
intent to make a will
5. testator must be capacitated
6. personal act
7. effective mortis causa
8. revocable or ambulatory Ambulatory - at any time prior to the
9. free from vitiated consent – testator's death, it may be changed
executed freely, knowingly and or revoked
voluntarily
10. individual act
11. disposes of the testator’s estate in
accordance to his wishes
Art 784 will-making as personal act

Not to be left in the discretion of third

person or an attorney
Employing an attorney gives
BUT! Mechanical drafting is allowed but presumption of regularity of the will
with testator’s signature and witnesses
Art 785 designation of heirs is not to be left Will-making is a personal act
to the discretion of a third person
Art 786 testator can entrust the distribution Like the Nobel Prize
to a third person in case of general or Charitable institutions
specified class or causes
Art 787 A testator cannot make a will in a Will-making is a personal act
manner that another person will identify the
heir
Art 788 in case of doubt on the Note: testate>intestate
interpretation of the will

Similar to rule in the interpretation of laws

or contracts
Art 789 Ambiguity in a will By ambiguity, the heir/property is not
clear or lacks description
Kinds of ambiguity
1. latent or intrinsic – does not appear Due to imperfect description, e.g.
on the face of the will but can be bro-in-law when there are two
found from the extrinsic evidence
2. patent or extrinsic – appears on the “some of my five sisters”
face of the will itself; unclear
who/what

Remedy for latent and patent– by

examining:
1. the will itself No oral declaration allowed –
2. extrinsic evidence – written susceptible to fraud, confusion
declarations; circumstances under
which the will was made
Art 790 How a will is interpreted Idiomatic >literal translation

Rules:
1. ordinary words have ordinary
meanings – except: there is a clear
intention for another meaning
2. technical words have technical
meanings – except: if there is
contrary intention; the testator did
not know the true meaning
Art 791 Interpretation of the will as a whole Only if will is valid
Testate>intestate proceedings
Art 792 invalid dispositions in a will

Effect: will not invalidate the will except if

disposition is indivisible
Art 793 properties acquired after the
making of a will

Rule: What are given by the will are only

those properties already possessed and
owned by the testator at the time the will
was made, not those acquired after (“after-
acquired property”)

Exception:
1. if express intention to give after-
acquired properties
2. if will was republished/modified by a
codicil (subsequent will)
3. error in thought of ownership of the
property
4. legacy of credit or remission
Art 794 In simple, it only says that the
testator can give what he had. So if
owner of a house, then the
ownership. If co-owner, then only his
share.
Art 795 Validity of a will Extrinsic – no. of witnesses, what
instrument
Kind of validity
1. extrinsic – forms and solemnities Intrinsic – is the omission of a child
needed valid?
2. intrinsic – legality of the provisions
of the will

General rules for extrinsic validity

1. in the viewpoint of time, what must
be observed is the law in force at the
time the will is made
2. in the viewpoint of place, what law
must be observed – if Filipino, then
Philippine law or law of the country
where he executes the will; if alien,
then law of his nationality, or
Philippine law; if alien abroad,
additional option of law of his
domicile

General rules for intrinsic validity

1. in the viewpoint of time, law in force
at the time of the decedent’s death
2. in the viewpoint of place,
laadminsintw of his country or
nationality

Testamentary power – statutory right

granted by law
Testamentary capacity – ability to make a
will depending on the compliance to some
requirements by law (e.g. 18 years, of
sound mind, etc)
Art 796 All persons (only natural persons) A convict under civil interdiction is
not expressly prohibited by law can make a allowed to make a will. This is
will because civil interdiction prohibits a
disposition of property inter vivos,
Qualifications: not mortis causa.
1. 18 years old or over (Art 797) (Art. 34, Revised Penal Code).
2. soundness of mind at the time the
will was made (Art 798)

Requisites of sound mind (Art 799)

That the testator knows:
1. nature of the estate to be disposed –
his ownership
2. proper objects of his bounty – e.g.
knows who are eligible to inherit
from him
3. character of the testamentary act –
that it is a will, effective only after
death but can still be
revoked/altered while living

Examples of unsound mind

- religious delusions
- extraordinary belief in spirits
- monomia/
insanity/delusions/delirium
- drunkenness at the time of writing
- idiocy – congenital intellectual
deficiency
- comatose
Art 800 Law presumes sound mind/sanity Art 801, it does not matter is he was
insane in the past, the moment the
The burden of proof on the contrary lies on was well but did not change the will,
the one who alleges the testator’s insanity it is still valid

supervening incapacity does not

invalidate an effective will
A married woman can make a will without Woman must be 18 and above and
the husband’s consent (Art 802) of all her with sound mind
separate properties and share to the
conjugal properties (Art 803)
FORMS OF WILLS
Kinds of wills
1. ordinary or notarial will – with Oral wills made in contemplation of
attestation clause and death (nuncupative wills) is not
acknowledgement before a notary recognized
public
2. holographic will – written entirely in
handwriting (no notary needed)
Art 804 Every will must be Handwriting can be proved by a
1. in writing; and person who saw him write or has
2. executed in a language or dialect knowledge what the testator’s
known to the testator writing looks like

RA 8792 E-commerce Act (ECA) Handwriting experts are consulted

-legal recognition of e-documents for forged documents but these are
-BUT! Does not apply on will not mandatory in court
-authenticated e-signature is accepted
Art 805 Requirements for a notarial or
ordinary will

1. in writing Art 804

2. executed in a language known to the Art 804
testator
3. subscribed (signed) at the end by - need to state that the signing
the testator himself or by the of name by somebody else
testator’s name written by another (e.g. For the testator, Mr.C by
person in his presence and by his Mrs.C)
express direction - not one of the 3 witnesses
4. attested and subscribed by 3 or - acceptable signatures: first
more credible witnesses in the name only,
presence of the testator and one misspelled/abbrev/nickname,
another thumbmark, initials
5. testator and witnesses shall sign
each and every page thereof except in the presence – no physical
the last, preferably on the left margin obstruction; within the other senses
6. All the pages shall be numbered
correlatively in letters placed on the but if will is only 1 page, no need to
upper part of each page sign in the margins
7. Attestation clause – number of
pages marginal signatures can also be at
the top, bottom, or right
Notarial will is not required by law to be
dated Fatal defects of ordinary will =
effect: not allowed probate
What is included in the attestation clause? 1. no marginal signatures of
1. The number of pages used – upon testator and witnesses
which the will is written 2. no attestation clause
2. That the testator signed (or a. no number of pages in
expressly caused another person to the attestation clause
sign) the will and every page thereof (though can be liberally
in the presence of the instrumental construed; but act as
witnesses safeguard against
3. That the instrumental witnesses interpolation)
witnessed and signed the will and all b. failure to state that the
the pages thereof in the presence of witnesses signed in
the testator and of one another one another’s
presence
3. not acknowledged

Example of Simple Attestation

Art 806 Ordinary wills must be
acknowledged by the testator and the
three witnesses before a notary public

Acknowledgement vs Jurat

Acknowledgement is the act of one who

has executed a deed in going before some
competent officer or court and declaring it
to be his act or deed.

Jurat is that part of an affidavit whereby the

notary certifies that before him, the
document was subscribed and sworn by
the executor.
Art 807 deaf or deaf-mute testator

If he cannot read, then two (2) persons

must read and communicate the contents

Art 808 blind testator

Contents must be read twice by one of the

witnesses (1) and the notary public (1)
Art 809

Substantial compliance
- as long as the purpose sought by the Defects in substance of will = not
attestation clause is obtained allowed probate

Can be applied in cases of defects and How defect in substance cured?

imperfection ONLY in the By evidence within the will itself
1. FORM of attestation and (examine the will itself)
2. LANGUAGE used -defects and imperfections can be
supplied by an examination of the
However, the manner of proving the due will itself and if it is proved that the
execution and attestation has been held to will was in fact executed and
be limited to merely an examination of the attested.
will itself without resorting to evidence
aliunde (extrinsic evidence), whether oral or Thus, omissions which cannot be
written supplied except by evidence aliunde
would result in the invalidation of the
attestation clause and of the will
itself
Art 810 Holographic will A printed holographic will is null and
void
Entirely written, dated, signed by the hand
of the testator himself.

Can be made in or out of PH, no need for

witnesses (no need for attestation nor
acknowledgement before a notary public)

Advantages of a holographic will

-Easier to make, revise, and keep secret

Disadvantages
-easier to forge, misunderstand; and
-no guaranty that there was no fraud, force,
intimidation or undue influence, or if the
testator was of sound mind

Formalities/requirements of a holographic
will
1. The language must be known to the But if the date is incomplete and
testator there is appearance of fraud, bad
2. The will must be entirely written in faith, undue influence or pressure,
the hand of the testator himself then the date can be accepted and
3. The will must be dated (complete the probate of the will should be
with year, month, and day) allowed
4. The will must be signed by the
testator himself Full or customary signature is
5. There must be animus testandi allowed. Thumbmark is not allowed
(intent to leave a will)
Art 811 Probate – allowance of a will by the
court after its due execution
Probate of holographic wills
1. If uncontested, at least one (1)
identifying witness
2. If contested, at least three (3)
identifying witness or if not available,
then expert
As will be noticed also, there are
four people (at least)
involved in reserva troncal.
1)
the ascendant or brother or sister
from whom the
property came (called ORIGIN)
2)
the descendant who acquired the
property gratuitously
(called the PROPOSITUS)
3)
the ascendant who in turn acquired
the property
from the descendant by operation of
law (said ascendant
is called the RESERVOR or the
RESERVISTA)
4)
the relatives within the third degree
belonging to the
line from which the property came
(said relatives are
called RESERVEES or
RESERVATARIOS).