SUCCESSION
NEW CIVIL CODE OF THE PHILIPPINES
General Provisions
Succession Defined
➢is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the
value of the inheritance, of a person are transmitted through his death to another or others either by his
will or by operation of law. (Art. 774 of NCC)
Elements of Succession
▪ Decedent – pertains to the person whose property is transmitted through succession;
• Testator – a decedent who left a will;
• Intestator – a decedent who does not left a will;(Art. 775 of NCC)
▪ Inheritance – includes all the properties, transmissible rights, and obligations of a person which are not
extinguished by his death and existing at the time of his death; also includes those which have accrued
thereto since the opening of the succession (Art. 776 & 781 of NCC)
▪ Successors – a person called to the succession either by the provision of a will or by operation of law;
must survived the decedent and must be living at the time of death of decedent; must be capacitated
and did not repudiate the inheritance.
• Either heirs, devisees or legatees (Art. 782 of NCC)
Presumption of Death (Art. 390 & 391 of NCC)
▪ Absence of seven years will be presumed death except in case of succession;
▪ Succession opens at the end of the ten year period from the disappearance of an absentee, or five year
period if the absentee was 75 of age when he disappeared.
▪ However, the succession is deemed to have opened at the time of disappearance in cases enumerated
in Art. 391 of NCC.
Danger of Death (Art. 391 of NCC)
▪ Presumption of death when the following person does not appear after four (4) years of
disappearance;
▪ A person on board a vessel lost during a sea voyage, or an aero plane which is missing;
▪ A person in armed force who has taken part in war and missing;
▪ A person who has been in danger of death under other circumstances.
Note: Upon reappearance, absentee can recover his properties except fruits and rents thereto.
Types of Succession (Art. 778 of NCC)
1. Testamentary – results from the designation of an heir, made in a will executed in the form prescribed
by law. (Art. 779 of NCC)
2. Legal or intestate – results from, by the operation of the law.
3. Mixed – partly by will or by operation of law. (Art. 780 of NCC)
Provisions under the Family Code
▪ Donation of future properties shall be governed by the provisions of testamentary succession and
formalities of the law (Art. 82 of Family Code).
▪ In case of annulment or declaration of nullity of marriage, the presumptive legitimes of all common
children shall be delivered to them (Art. 50,51,52,40,43,44,45 of Family Code).
▪ No contractual succession because donation mortis causa must comply with the formalities of the will
(Art. 84 of Family Code).
Kinds of Successors
1. Heirs – acquired property by universal title
• Voluntary heirs – those instituted by the testator in his will, and succeed the free portion of
the inheritance.
• Compulsory Heirs – those who will succeed by force of law to some portion of the inheritance,
in an amount predetermined by law called legitime.
• May also be voluntary heirs
• Legal or Intestate Heirs – those who succeed to the estate, or a portion thereof, not disposed
of by a will.
2. Devisee or Legatee – acquired property by particular title
• Devisee – who succeeds real property
• Legatee – who succeeds personal property
Inheritance
▪ Includes all the properties, transmissible rights, and obligations of a person which are not
extinguished by his death and existing at the time of his death; also includes those which have accrued
thereto since the opening of the succession.
Rules on Rights and Obligations
▪ Only transmissible rights; those rights personal in nature, by agreement and provided by law cannot be
transferred;
▪ Patrimonial rights are not extinguished by death;
▪ Obligation are by nature transmissible, but up to the extent of the value of the inheritance.
When Vested to the Heirs
▪ The rights to succession are transmitted to the heirs from the moment of the death of the decedent;
▪ Right of Possession
• Executor or administrator has the right of possession when it is necessary to the payment of
debts and expenses;
• Heirs have the right of possession, in the absence of that necessity, without depriving the co –
heirs
▪ Right of Ownership
• The heirs become the co-owner of the estate after paying the debts;
▪ Right of legal redemption as Co-owner
• The other heir can redeem within 30 days the share in the property sold by the other heir
▪ Redemption in sale of hereditary rights
• Right to subrogate to the rights of the purchaser
▪ Requisites of redemption:
• One of the heirs sells his hereditary rights;
• He sells it to the strangers;
• The sale is before the partition;
• The redeemer must do so within one month from the time he was notified in writing of the
sale by the vendor.
Future inheritance
▪ Any contract upon future inheritance is VOID;
▪ Requisites:
• The succession has not yet been opened;
• The object of the contract forms part of the inheritance;
• The promisor has, with respect to the object, an expectancy of a right which is purely
hereditary in nature
Future Properties
• General rule: The will covers only properties of the testator at the time of the making of the will.
• Exceptions: Properties acquired after the making of the will shall pass to the heirs in the ff: cases.
• Intention to include expressly appear in the will;
• Covered by the will through republication;
• Not owned by the testator but disposed in the will
Republications –
▪ An act or an instance of publishing again or anew;
▪ Reestablishment of the validity of a previously revoked will by repeating the formalities of
execution or by using a codicil;
▪ The result is to make the old will effective from the date of republication. (Art. 835 – 837 of
NCC)
Testamentary Succession
Wills in General
Wills - 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. (Art. 783 of NCC)
❑ Art. 784 to 795 of the NCC –
• Strictly personal act (Art. 784 to 787);
• Interpretation of the wills (Art. 788 to 791);
• Invalidity of one of several disposition (Art. 792);
• Property acquired after making the will (Art. 793);
• Conveyance of all interest of the testator (Art. 794);
• Law in force at the time the will is made (Art. 795)
Testamentary Capacity and Intent
▪All persons who are not expressly prohibited by law may make a will. (Art. 796 of NCC)
❑ Art. 797 – 803 of the NCC
• Majority of age (Art. 797);
• Be of sound mind (Art. 798 to 799);
• Presumption of sound mind (Art. 800);
• Supervening incapacity (Art. 801);
• Will made by a married woman (Art. 802)
Forms of Wills
1. Notorial or Ordinary or Attested Will – executed in accordance with the formalities prescribed by
law.
• Requisites of a valid notarial will:
• It must be in writing and executed in a language or dialect known to the testator (Art. 804 of
NCC);
• It must be subscribed by the testator himself, or by the testator’s name written by some other
person in his presence, and by his express direction (Art. 804 of NCC); and
• attested and subscribed by three or more credible witnesses in the presence of the testator
and of one another. (Art. 805 of NCC)
❑ Art. 805 – 808 of NCC
• Signing and numbering the will (Art. 805);
• Interpreting the language used (Art. 805);
• Acknowledgement before notary public (Art. 806);
• Testator is deaf, or deaf – mute (Art. 807);
• Testator is blind (Art. 808);
• Validity of the will despite defects and imperfections or the language used (Art. 809);
▪ The will is valid if it complies with the requirements provided under Art. 805 except when there is bad
faith, forgery, fraud, or undue and improper pressure and influence.
2. Holographic Will – a will that is entirely written, dated, and signed by the HAND of the testator
himself. It is subject to no other form, may be made in or out of the Philippines, and need not be
witnessed. (Art. 810 of NCC)
❑ Art. 811 – 819 of NCC –
• Probate of a holographic will (Art. 811);
• Signed and dated to be valid (Art. 812);
• Signed without being dated, but the last disposition has signature and dated (Art. 813);
• Insertion, cancellation, erasure or alteration (Art. 814);
• Will made by a Filipino in a foreign country (Art. 815);
• Will made by an alien who is abroad (Art. 816);
• Will made in the Philippines by a citizen or subject of another country (Art. 817);
• Joint will, prohibited (Art. 818 and 819)
Qualifications of a Witness
Any person:
✓ Of sound mind, majority of age, not blind, deaf or dumb, and able to read and write (Art. 820
of NCC);
✓Domiciled in the Philippines;
✓Not convicted of falsification of document, perjury, or false testimony (Art. 821 of NCC);
❑ Art. 822 – 824 of NCC
• Becoming subsequently incompetent (Art. 822);
• Successors as a witness is void, unless there are three other competent witness (Art. 823);
• Creditors as a witness is valid (Art. 824);
Codicils
Codicil – is a supplement or addition to a will, made after the execution of a will and annexed to
be taken as part thereof, by which any disposition made in the original will is explained, added to, or
altered (Art. 825 of NCC)
❑ To be effective, it must be executed as in the case of a will (Art. 826 of NCC).
• Documents and papers as Codicil:
• The document or paper referred to in the will must be in existence at the time of the
execution of the will;
• The will must clearly describe and identify the same, stating among other things the number of
pages thereof;
• It must be identified by clear and satisfactory proof as the document or paper referred to
therein; and
• 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. (Art. 827 of NCC)
Revocation of Wills
▪ A will may be revoked by the testator at any time before his death. Any waiver or restriction of this
right is void. (Art. 828 of NCC)
• No will shall be revoked except for the ff:
• By implication of law;
• By some will, codicil, or other writing executed as provided in case of wills; or
• By burning, tearing, cancelling, or obliterating the will with the intention or revoking it, by the
testator himself, or by some other person in his presence, and by his express direction. When
the said acts are without the express direction of the testator, the will may still be established…
according to the Rules of Court (Art. 830 of NCC)
❑Art. 829 to 834 of NCC:
❑Revocation done outside the Philippines (Art. 829);
❑Subsequent wills without express revocation of the previous one (Art. 831);
❑New will shall not be inoperative by reason of incapacity of the heirs, devisees or legatees
(Art. 832);
❑Revocation of a will based on a false cause or an illegal cause is void (Art. 833);
❑The recognition of illegitimate child, no legal effect (Art. 834);
Republication and Revival of Wills
❑Art. 835 – The testator cannot republish, without reproducing in a subsequent will, the dispositions
contained in a previous one which is void as to its form.
❑Art. 836 – The execution of a codicil referring to a previous will has the effect of republishing the will
as modified by the codicil.
❑Art. 837 – If after making a will, the testator makes a second will expressly revoking the first, the
revocation of the second will does not revive the first will, which can be revived only by another will or
codicil.
Allowance or Disallowance of Wills
▪ No will shall pass unless it is proved and allowed in accordance with the Rules of Court. (Art. 838 of
NCC):
▪ The will shall be disallowed in any of the following cases:
▪ If the formalities required by law have not been complied with;
▪ If the testator was insane, or otherwise mentally incapable of making a will, at the time of the
execution;
▪ If it was executed through force or under duress, or the influence of fear, or threats;
▪ If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other persons;
▪ If the signature of the testator was procured by fraud;
▪ 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. (Art. 839 of NCC)
Institution of Heirs
▪ It 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. (Art. 840 of NCC)
▪ Requisites of Institution of heirs:
• Extrinsic and intrinsic validity of the will (i.e. no preterition)
• Capacity of the heir;
• Institution must be voluntary or personal (no vices of consent);
• The heir must be at least identifiable.
❑Art. 841 – 849 of NCC:
❑The non – institution of the heir on the will… (Art. 841);
❑No compulsory heirs and with compulsory heirs (Art. 842);
❑Designation and identification of an heirs (Art. 843 – 845);
❑Institution without designation; Presumption of equality applies (Art. 846)
❑Presumption of equality and individuality of designation, unless intention is different (Art. 847
& 848);
❑Presumption that Institution is simultaneous (Art. 849);
Institution Based on False Cause
• Effect is not deemed instituted; the false cause shall be ignored;
• Annullable when:
• The cause of the institution of the heirs must be stated in the will;
• The cause must be false;
• It must appear from the face of the will that the testator would not have made such intention
if he had known the falsity of the cause (Art. 850 of NCC)
Estate Available for Disposition (Art. 851 – 853)
▪ No compulsory heirs – the entire net estate;
▪ With compulsory heirs – free portion;
▪ Institution of an heirs with aliquot share of inheritance – legal succession applies to the remainder;
▪ The value of the inheritance is more than or less than the value of the will – proportionate increase or
decrease in the share of each heir, as the case ,maybe;
▪ (Formula): Actual share of the heir = net estate x Instituted value per heir/ Total instituted value
LEGITIMES
▪ A part of the estate that is reserved to compulsory heirs (Art. 886 NCC);
▪ the testator cannot:
• deprive the heirs except for disinheritance (Art. 904 of NCC);
• dispose of the legitime in the will or donation intervivos;
• Impose a burden, encumbrance, condition or substitution (Art. 904 NCC)except,
• he may order the (1) non – partition of not exceeding 20 years; or (2) the legitime of
the other children to whom the property is not assigned be paid in cash;
▪ Compulsory heirs includes:
▪ Legitimate children and descendants, with respect to their legitimate parents and ascendants
(Primary);
▪ Acknowledged natural children, and natural children by legal fiction (Primary);
▪ In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate
children and descendants (secondary);
▪ In the absence of legitimate or illegitimate descendants, illegitimate parents, with respect to
their illegitimate children (secondary);
▪ Widow or widower(concurring);
▪ Other illegitimate children under Art. 287 (duly proved) (concurring); Each illegitimate child has
one half share of legitimate child.
General Rule: Primary or secondary compulsory
heirs (in case of inheritance)
Extent of Legitime
½ of the Net Estate, the ½ may be freely dispose
subject to rights of the illegitimate children and
surviving spouse; (Art. 888 and 889 of NCC);
EXCEPTIONS: When the sole surviving
compulsory heirs are:
1. Surviving spouse and illegitimate children
1/3 for surviving spouse; 1/3 for illegitimate
children; 1/3 as free portion (Art. 894 of NCC)
2. Surviving spouse (articulo mortis marriage)
1/3 of Net Estate
Art. 903 – Total legitimes of surviving spouse and illegitimate parents is ½; ¼ each.
Disinheritance
❑ A compulsory heir may be deprived of legitime for causes expressly provided by law (Art. 915 NCC);
❑The legal cause shall be expressly specified in the will (Art. 916 NCC);
❑The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the
testator (Art. 917 NCC);
❑Otherwise, the institution of heirs will be annulled as it is prejudicial to the disinherited heirs (Art. 918
NCC);
❑However, the devises and legacies and other testamentary disposition shall be valid to such extent
that it will not impair the legitime (Art. 918 NCC).
Legal Grounds for Disinheritance
(children, descendants, legitimate or illegitimate)
1. Guilty of an attempt against the life of the testator, his or her spouse, descendants or ascendants;
2. Groundless accusation of a crime, with imprisonment of more than six years, against the testator;
3. Convicted of adultery or concubinage with the spouse of the testator;
4. Through vices, it causes the testator to make a will or change a will that is already made;
5. Refusal without justifiable cause to support the testator;
6. Maltreatment through words or deeds of the testator;
7. Leads a dishonorable or disgraceful life;
8. Conviction of crime with penalty of civil interdiction. (Art. 919 of NCC)
(parents or ascendants, legitimate or illegitimate)
1. Abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted
against their virtue;
2. Guilty of an attempt against the life of the testator, his or her spouse, descendants or ascendants;
3. Groundless accusation of a crime, with imprisonment of more than six years, against the testator;
4. Convicted of adultery or concubinage with the spouse of the testator;
5. Through vices, it causes the testator to make a will or change a will that is already made;
6. Loss of parental authority;
7. Refusal to support the children or descendants without justifiable cause;
8. An attempt by one of the parents against the life of the other, unless there has been a reconciliation
between them. (Art. 920 NCC)
(Spouse)
1. Guilty of an attempt against the life of the testator, his or her descendants or ascendants;
2. Groundless accusation of a crime, with imprisonment of more than six years, against the testator;
3. Through vices, it causes the testator to make a will or change a will that is already made;
4. Legal separation;
5. Loss of parental authority;
6. Refusal to support the children or descendants without justifiable cause; (Art. 1921 NCC)
Legal or Intestate Succession
Intestate Succession, Takes Place
1. If a person dies without a will, or with a void will, or one which subsequently lost its validity;
2. When the will does not institute an heir to, or dispose of all the property belonging to the
testator. In such case, legal succession shall take place only with respect to the property of which the
testator has not disposed of;
3. If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if
the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right
of accretion taken place;
4. When the heir instituted is incapable of succeeding, except in cases provided in the NCC;
5. Upon the happening of the resolutory condition imposed in the will;
6. Upon the expiration of a resolutory term stated in the will; and
7. In case of preterition. (Art. 960 of NCC)
Order of Intestate Succession
1. Legitimate children or descendants;
2. Legitimate parents or ascendants;
3. Illegitimate children or descendants;
4. Surviving spouse;
5. Brothers and sisters, nephews, and nieces;
6. Other collateral relatives within the 5th degree;
7. The State.
Mixed Succession
❑Also known as partial intestacy, means the decedent left a will but the will does not cover all the
disposable portion of the estate.
❑In this succession, the testamentary disposition shall be given effect first. The balance of the free
portion (after deducting the testamentary disposition) shall be given to the intestate heir.
❑The intestate heir who should have received the free portion under intestacy shall bear any reduction
due to the testamentary disposition.
Common Provisions (Testate or Intestate Succession)
Right of Accretion
❑A right by virtue of which, when two or more persons are called to the same inheritance, devise or
legacy, the part assigned to the one who (1) renounces or (2) cannot receive his share, or (3)
predeceased or who died before the testator, is added or incorporated to that of his co-heirs, codevisees, or co-legatees.
❑The heirs to whom the portion goes by the right of accretion take it in the same proportion that they
inherit.
❑The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the
heir renounced or could not receive it would have had.
Limitations on Right of Accretion
❑For the compulsory heirs, right of accretion shall take place only when the free portion is left to two or
more of them, or to any one of them and to a stranger.
❑The right of accretion does not apply to a vacant portion of the legitime. The co-heirs shall succeed it
by their own right.
❑The right of accretion is subordinate to the right or representation, same with the right of substitution
if the testator so provides.
❑In the testamentary succession, when the right of accretion does not take place, the vacant portion of
the instituted heirs, if no substitution has been designated, shall pass to the legal heirs of the testator,
who shall receive it with the same charges and obligations.
Right of Accretion
❑ Right of accretion in testamentary succession, requisites:
• Two or more persons called to the same inheritance, or to the same portion thereof, pro
indiviso; and
• That one of the persons thus called die before the testator, or renounce the inheritance, or be
incapacitated to receive it.
❑ Right of accretion in intestate succession:
• Several relatives of the same degree, and one or some of them are unwilling (repudiates) or
incapacitated to succeed, his portion shall accrue to the other of the same degree. The rule is
consistent with preference of lines.
• Exception: In case of predecease or incapacity or unworthiness, the right of representation
prevails over the right of accretion. In repudiation, the applicable right is the right of accretion.
Summary of Rules on Vacancies
Capacity to Succeed
❑Capable to succeed are:
1. Not incapacitated or disqualified by law at the time of the death of the decedent and at the
time of the compliance of the attached conditions;
2. Heir, devisee or legatee who must be living at the moment the succession opens, except in
case of representation;
3. Child already conceived at the time of the death of the decedent subject to conditions of Art.
41 of NCC;
4. Juridical persons (State, corporations, whether public or private, and associations), unless
there is a contrary provisions in their charter.
❑Incapable to Succeed by reason of undue influence:
1. Priests, or the minister of the gospel…, their relatives within the 4th degree, and the
organization where such priest or minister may belong;
2. Guardian of the ward except the guardian is the latter’s ascendant, descendant, brother,
sister or children…
3. Any attesting witness to the execution of a will…
4. Any physician, surgeon, nurse, health officer or druggist…
5. Individuals, associations, and corporations prohibited by law to inherit.
❑1 to 4 applies to testamentary succession ONLY while 5 applies to both testate and intestate
succession.
❑Art. 739 – void donations by reason of public policy:
1. Those made between persons who were guilty of adultery or concubinage at the time of the
donation; the action for declaration of nullity may be brought by the spouse of the donor or donee,
which preponderance of evidence is required.
2. Those made between the persons found guilty of the same criminal offense, in consideration thereof;
3. Those made to a public officer or his wife, descendants, and ascendants, by reasons of his office;
❑Disposal for prayers and pious works
• For the benefit of the soul of the testator;
• Done in general terms and without particular designation;
• With the approval of the court;
• Shall deliver one-half of the proceeds to the church or denomination to which the testator
belongs;
• And half shall go the State.
❑Disposal in favor of the poor in general and without particular designation
• Be given to the poor living in the domicile of the testator at the time of his death;
• Done by the executor, in its absence, the justice of peace, the mayor, and the municipal
treasurer;
• With approval of the court
❑A testamentary provision in favor of disqualified person shall void.
❑Incapable to succeed by reason of unworthiness:
1. Parents who abandoned their children or induced their daughters to lead a corrupt or
immoral life, or attempted against their virtue;
2. Any person who has been convicted of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
3. Any person who has accused the testator of a crime with imprisonment of six years or more, if
the accusations found to be groundless;
4. Any heir of full age who, having knowledge, of the violent death of the testator, should fail to
report it to an officer of the law within a month, unless the authorities have already taken
action; this prohibition shall not apply to cases wherein, according to law, there is no obligation
to make an accusation;
❑Incapable to succeed by reason of unworthiness:
5. Any person convicted of adultery or concubinage with the spouse of the testator;
6. Any person who by fraud, violence or intimidation, or undue influence should cause the
testator to make a will or to change one already made;
7. Any person who by the same means prevents another from making a will, or
from revoking one already made, or who supplants conceals, or alters the latter’s will;
8. Any person who falsifies or forges a supposed will of that decedent.
▪ Exception to incapability due to unworthiness:
• Knowledge of the testator at the time he made the will;
• Having it known subsequently, but condone it.
❑Incapacity to succeed under the Family Code:
Effect of Incapacity to Succeed
▪ If the person excluded from the inheritance should be a child or descendant of the decedent and
should have children or descendants, the latter shall acquire his right to the legitime.
▪ The person so excluded shall not enjoy the usufruct and administration of the property thus inherited
by his children.
▪ Alienation of hereditary property, and acts of administration performed by the excluded heir, before
the judicial order of exclusion, are valid as to third persons who acted in good faith; but the co-heirs
shall have a right to recover damages against from the disqualified heir;
▪ The unworthy heir has a right to demand indemnity for the expenses he incurred in the preservation of
hereditary rights, and to enforce such credits as he may have against the estate.
▪ Any person incapable of succession who entered into possession of the hereditary property shall be
obliged to return it together with its accessions. He shall be liable for all the fruits and rent that he may
have received, or could have received through the exercise of due diligence.
Law and Prescriptive Period
• Capacity to succeed is governed by the law of the nation of the decedent;
• The action for declaration and for the recovery of the inheritance, devise or legacy shall be brought
within five years from the time the disqualified person took possession thereof.
• It may be brought by anyone who may have interest in the succession.
Acceptance and Repudiation of Inheritance
Executors or Administrators
❑Governed by the Rules of Court;
❑Insufficiency of assets, Rules on preference of credits apply;
❑Trust company may be an executor or administrator.
Collation
Partition and Distribution of the Estate