SUCCESSIONS extinguishes all rights, since it would be illogical to fix the birth

of a right from the moment when the will which is supposed to

ART. 774. Succession is a mode of acquisition by virtue of create the right has ceased to exist.
which the property, rights and obligations to the extent of the
value of inheritance, of a person are transmitted through his Theories:
death to another or others either by will or by operation of law.
1. Right of private property—if a man has the right to own
Concept of Succession: Two sense private property, he has the power to dispose of such
property freely, imposing such licit terms and
Broad Juridical Sense: it signifies the substitution or conditions as he might deem convenient.
subrogation of a person in the transmissible rights and 2. Right of family—if the family is recognized as the heart
obligations of another. (Note: it embraces not only succession and soul of society, the idea of succession must,
mortis causa but also succession inter vivos) therefore, revolve around it. Hence, basis of succession
Strict Juridical Sense: it signifies the substitution or rests upon family co-ownership.
subrogation of a person in the transmissible right and 3. Electric Theories—these theories try to harmonize the
obligations of a deceased person. (Note: it is only limited to two principles—individual and social. According to the
succession mortis causa) exponents of these theories, the raison d’etre of the
right of succession is the harmonious combination of
Note: Article 774 is in conformity with the general provisions two institutions—private ownership and the family.
of Article 712 which enumerates the different modes of (Note: this is because succession is after all but a mode
acquiring ownership and other real rights. of perpetuating the right to own private property. The
Article 712: basis or foundation of succession is the recognized
necessity of perpetuating man’s patrimony beyond the
Ownership is acquired by occupation and by limit of human existence.
intellectual creation.
Art. 775:
Ownership and other real rights over property are
acquired and transmitted by law, by donation, by Decedent—general term applied to the person whose
testate and intestate succession, and in consequence of property is transmitted through succession, whether or not left
certain contracts, by tradition. a will, if he left a will, he is also called the testator.

They may also be acquired by means of prescription. Subjective Elements of Succession—consist of the
decedent and those who are called to succeed such decedent
Basis of Succession: either by will or by operation of law, such as heirs, devisees or
legatees.
Extreme Individualist and Socialist—who deny the very
existence of succession, because they believe that death
Heir—a person called to the whole or to an aliquot portion of Art. 777:
the inheritance either by will or by operation of law.
When transmitted? – The moment of the death of the
Devisee—is a person to whom a gift or real property is given by decedent.
virtue of a will.
Casual Element of Succession: it is expressed by the will
Legatee—a person to whom a gift of personal is given by virtue of the decedent as manifested in his last will and testament or
of a will. his presumed will as provided by law which is the efficient
cause of transmission of successional rights, while the fact of
his death is the condition.
Art. 776: Rule in case of presumptive death:
Inheritance—all property, rights and obligations of a person Article 777 is not only applicable to actual death but also to
which are not extinguished by his death. presumptive death. This is clear from the provisions of Art 390
Objective Element of Succession: It may be defined as the and 391 of the CC:
universality of all property, rights and obligations constituting Article 390. After an absence of seven years, it being
the patrimony of the decedent which are not extinguished by unknown whether or not the absentee still lives, he
his death. shall be presumed dead for all purposes, except for
 Inheritance—refers to the universality of all the those of succession.
property, rights and obligations constituting the The absentee shall not be presumed dead for the
patrimony of the decedent which are not extinguished purpose of opening his succession till after an absence
by death. of ten years. If he disappeared after the age of seventy-
 Succession—is the legal mode by which such five years, an absence of five years shall be sufficient in
property, rights and obligations are transmitted. order that his succession may be opened. (n)
Note: the first is the objective element of the second. Article 391. The following shall be presumed dead for
Another Note: under our law, “no succession shall be declared all purposes, including the division of the estate among
unless and until a liquidation of the assets and debts left by the the heirs:
decedent shall have been made and all creditors fully paid. (1) A person on board a vessel lost during a sea voyage,
It is no longer the heirs who is responsible for the payment of or an aeroplane which is missing, who has not been
the debts or obligation of the decedent, but the estate itself. heard of for four years since the loss of the vessel or
aeroplane;
 (2) A person in the armed forces who has taken part in validity, what is essential is that the succession must be
war, and has been missing for four years; effected through the testator’s will executed in the form
prescribed by law.
(3) A person who has been in danger of death under
other circumstances and his existence has not been Intestate—effected by operation of law in default of a will. It
known for four years. is not well defined in the Civil Code, but Art 960 enumerates
the instances when legal or intestate succession shall takes
Exceptions: place.
1. Absentee disappeared after the age of 75 years old, in Article 960. Legal or intestate succession takes place:
which case an absence of 5 years shall be sufficient
2. Absentee disappeared under any one of the three (1) If a person dies without a will, or with a void will, or
circumstances enumerated in 391, in which the absence one which has subsequently lost its validity;
of 4 years shall be sufficient.
(2) When the will does not institute an heir to, or
Effect of Judicial Settlement: dispose of all the property belonging to the testator. In
such case, legal succession shall take place only with
The formal declaration or recognition of the right of the heirs respect to the property of which the testator has not
requires judicial confirmation in the proper testate or intestate disposed;
proceedings.
(3) If the suspensive condition attached to the
institution of heir does not happen or is not fulfilled, or
Art. 778: if the heir dies before the testator, or repudiates the
inheritance, there being no substitution, and no right of
Succession may be: accretion takes place;
1. Testamentary (4) When the heir instituted is incapable of succeeding,
2. Legal or Intestate except in cases provided in this Code.
3. Mixed
Mixed—in the sense that it may effected partly by will and
Art. 779: Testamentary Succession partly by operation of law.
Art. 780: Mixed Succession Note: If the testator makes a will which does not dispose all of
his property, the result is what is known as mixed succession.

Testamentary—is that which results from the designation of Contractual Succession—based on the fact that the object
an heir, made in a will execute in the form prescribed by law. of a contract should exist at the moment of its celebration or at
(Note: The designation of an heir is no essential for the least, it can exist in the future.
Art. 1347: No contract may be entered into upon future Intransmissible rights and obligations
inheritance except in cases expressly authorized by law.
1. Rights and obligations between husband and wife;
Note: in this kind of succession the donation or disposition 2. Property relations between husband and wife;
does not have to be contained in a will, however it is essential 3. Action for legal separation;
that it must be executed in accordance with the form 4. Action to compel acknowledgement of a natural child;
prescribed for donations by reason of marriage. In other 5. Action to obtain judicial declaration of illegitimate
words, it must comply with the Statute of Frauds. affiliation who is not natural;
6. Parental authority;
Art. 781. 7. Rights of a guardian;
Extent of Inheritance—includes: 8. Right to receive ad the obligation to give support;
9. Right to hold public office as well as right to exercise
1. All of his property which are existing at the time of his profession or vocation;
death; 10. Right to usufruct;
2. All of his transmissible rights and obligations which are 11. Right to personal easement;
existing at the time of his death; 12. Rights and obligation arising from contract of
3. All of his property and rights which may have accrued partnership;
to the hereditary estate since the opening of succession. 13. “ “ “ “ contract of agency;
Note: Property in existence at decedent’s death—all property 14. Criminal responsibility.
available for distribution among the persons called to the Monetary Obligations:
inheritance after the settlement or liquidation.
Under the Civil Code only monetary obligations or claims for
Transmissible rights and obligation—(1) rights relative to money must be filed within the time limited by rules against
persons and property or purely personal rights are, by their the estate of the decedent; otherwise they are barred forever. It
nature, INTRANSMISSIBLE in character; (2) Rights relative to is only these claims which must be liquidated in the testate or
property or patrimony rights GENERALLY TRANSMISSIBLE intestate proceedings.
in character, except those which are expressly made
intransmissible by operation of law such as personal and legal Art. 782.
usufructs and personal easements; (3) rights arising from Concept of an Heir—An heir still succeeds to the whole or to
obligation or rights of obligations, whether contractual or an aliquot portion of the inheritance either or by virtue of a
otherwise, are GENERALLY TRANSMISSIBLE in character, will or by operation of law, while a devisee or legatee still
except from this rule are those arising from contracts which by succeeds to individual items of property by virtue of a will.
their very nature are intransmissible, those expressly (Meron ng meaning ang Heir, Devisee and Legatee under
intransmissible by contract agreements and operation of law. Subjective Element of Succession, Art 775)
 - Testator’s hereditary estate is divided, as a general rule
into the legitime or legal portion and the disposable
free portion.
Distinguished from heirs:
Kinds of Heirs: 1. Devisee or legatees are called to succeed to individual
Testamentary Succession: items of property, while heirs are always called to
succeed to an indeterminate or aliquot portion of the
1. Voluntary Heir decedent’s hereditary estate.
- Is called to succeed to the whole or aliquot portion of 2. Devisee or legatees are always called to succeed by
the disposable free portion of the hereditary estate by means of a will, while heirs are called to succeed either
virtue of the will of the testator. by means of a will or by operation of law.
2. Compulsory Heir
- is an heir called by law to succeed to a portion of the Note: The importance of distinction—(1) In case of
testator’s estate known as legitime. preterition or pretermission in the testator’s will of one,
some or all of the compulsory heirs in the direct line, the
Legal or intestate—all heirs are called legal or intestate heir, effect is to annul the entirely institution of heirs, but
ordinarily defined as an heir called to succeed by operation of devises and legacies shall be valid insofar as they are not
law when legal or intestate succession takes place. inofficious; (2) In case of imperfection or defective
Note: An intestate heir can inherit (1) by their own right; (2) by disinheritance, to annul the institution of the heirs to the
the right of representation. extent that the legitimate of the disinherited heirs is
prejudices, but legacies and devises shall be valid; (3) I
Concept of Devisees and legatees: case properties are acquired by the testator after the
execution of the will, such properties are not included,
- Devisees and legatees are only possible in testamentary
unless it should expressly appear in the will itself that such
succession.
was the testator’s intention, applicable only to legacies and
- A devisee or legatee always succeed to individual items
devises.
of property by means of a particular or special title.
- Devise of legacy which is given to a devisee or legatee
by means of a will is, as a general rule, charge against
the free portion of the testator’s property. (Note: This TESTAMENTARY SUCCESSION:
rule is of practical importance only in case the testator Art. 783. Will—is an act whereby a person is permitted, with
is survived by compulsory heirs, who under our system formalities prescribed by law, to control to a certain degree the
of compulsory succession, are entitled to a legitime.) disposition of his estate, to take effect after his death.
Concept of Wills: Art. 786.
Definition—is a disposition, made by a competent testator in Testator may entrust to a 3rd person the specific distribution of
the form prescribed by law, of property over which he has legal specific property or sums of money that he may leave in
power of disposition, which disposition is of such nature as to general.
take effect after his death.
Delegation is allowed:
Characteristics:
1. The power to distribute specific property or sums of
1. Strict personal act; money which he may left
2. Individual and unilateral act; 2. The power to designate the persons, institutions ot
3. Free and voluntary act; establishments to which such property or sums of
4. Formal and solemn act; money are to be given.
5. A disposition of property;
Art. 787.
6. Act of Mortis Causa,
7. Ambulatory and revocable during testator’s lifetime. Testator may not make a testamentary disposition is such a
manner that another person has to determine whether or
Art. 784.
not it is to be operative.
Making of the will is strictly personal act, it cannot be left in
Note: Allowing a 3rd person to determine if the disposition
whole or in part to the discretion of a third person, or
is operative or not would tantamount to allowing the a 3 rd
accomplished through the instrumentality of an agent or
person to substitute the will for his own.
attorney.
Art. 788. Interpretation of testamentary
Personal character of Wills—the mere drafting or writing of the
dispositions.
will does not fall within the purview of the prohibition.
The cardinal rule of testamentary construction is to
Art. 785.
ascertain the intention of the testator and give it effect; the
Duration or efficacy of the designation of heirs, construction of any will must be for the purpose of
devisees or legatees, or the determination of portions determining the dominant intent of the testator; if the
which they are to take, when referred by name, testator’s intent can be clearly perceived or ascertained, it
cannot be left to the discretion of a third person. must prevail; a will is to be interpreted as to carry out the
intention of the testator; a will must be construed so as to
Delegation of testamentary acts—three inseparable acts, (1) give full force and effect to the purpose of the testator; in
duration of the designation of heirs, devisee or legates; (2) construing the will the court will place itself in the position
efficacy of the designation, (3) determination o portion. of the testator.
 NOTE: Read Articles 789-794. enacted after the death of the testator; neither can a will totally
void be validate upon subsequent legislation.
Dispositions susceptible to different interpretation—in case
in doubt, the interpretation by which the disposition is to Effect of changes before the testator’s death—cannot have
be operative shall be preferred. retroactive effect upon the formality of the will.
The construction is to be adopted which will sustain and
uphold the will in all its part. If the language used is
reasonably susceptible of two interpretations, one which
will defeat, and the other sustain, the provision, the doubt TESTAMENTARY CAPACITY AND INTENT
is to be resolved in favor of the construction which will give
effect to the will, rather than the one which will defeat it. Testamentary capacity—refers to the ability as well as the
power to make a will. There is a difference between
Mistakes and omissions testamentary capacity and testamentary power, the first
concerns the ability of the testator, while the second involves
1. Imperfect description or no person or property exactly
the privilege under the law. Hence, although a person has a
answers the description—must be corrected in
testamentary capacity it does not follow that he also has a
ascertaining the testatorial intent using the intrinsic
testamentary power.
and extrinsic but excluding the oral declaration of the
testator as to his intention. Art. 796. All persons who are expressly prohibited by
2. Uncertainty as to the application of any of its law to make a will.
provisions—ascertained under the context of the will
and the circumstances under which it is made. 1. Do not possess necessary age and mental requirement;
2. Family relations;
3. Civil interdiction;
4. Prodigality;
After-acquired property—not included in the will, unless it
5. Insolvency;
is expressly appear in the will that such was the intention of
6. Alienage;
the testator.
7. Other similar in nature.
Art. 795.
Validity of Wills as to its form depends on the
Requisites:
observance of law in force at that time.
1. He must be at least 18 years of age; and
Effect of changes after the testator’s death—will perfectly valid
2. He must be of a sound mind.
at the time of its execution cannot be invalidated by a law
When capacity must exist—at the time of the execution of sound mind during the execution of the will is on the person
the will. who opposes the probate of the will.
Sufficiency of evidence of mental capacity—the evidence
presented must cover a wide range in order that all facts may
Art. 797. Persons of either sex under eighteen cannot be brought out which will assist the court in determining the
make a will. question of mental capacity.
Age Requirement—it is necessary that he must be at least Effect of old age—the law prescribe no limit in point of age
eighteen years of age. Failure to conform with the requirement beyond which a person cannot dispose of his property by will.
shall invalidate the will.
Effect of infirmity of disease—neither is physical or disease
inconsistent with testamentary capacity. This will not affect his
NOTE: READ ARTICLES 798-800 testamentary capacity, so long as it cannot be prove by
competent evidence that at the time of the execution of the will
he is no longer in the position to know the nature of the estate
Mental Requirement—it is a requisite that the testator must be to be disposed.
of a sound mind at the time of execution of the will. Effect of insanity—first we need to define mental disease or
Test of sound mind: insanity refers to any disorder of the mind resulting from
disease or defect in the brain whereby mental freedom may be
Soundness of mind—ability of the testator to mentally perverted, weakened or destroyed. It is evident that person
understand in a general way the nature and extent of his suffering from them do not possess the necessary mental
property, his relation to those who naturally have a claim to capacity to make a will. However, mental aberrations which do
benefit from the property left by him, and a general not result in such impairment of the faculties as to render the
understanding of practical effect of the will as executed. testator unable to know or understand the nature of the estate
to be disposed of.
1. Whether he knew, at least in a general way the nature
of the estate to be disposed; Effect of mental delusion—the validity of a will is not affected
2. Whether he knew, at least in a general way the proper by the fact that the testator was under a delusion, unless the
objects of his bounty; delusion influenced him at the time of the execution of the will.
3. Whether he understood of comprehend the character of
the testamentary act. Effect of belief of supernatural—is not a sufficient evidence of
testamentary incapacity. A testamentary capacity cannot be
Presumption of sound mind—the law presumes that every determined alone by what one believes.
person is of sound mind, in the absence of proof to the
contrary. The burden of proof that the testator was not of a
Effect of drunkenness—the fact that the testator was under the
influence of liquor does not invalidate the will, provided that
he then comprehend the nature, extent and disposition of his
estate.
Art. 801-803—READ THE CODAL PROVISION!
Capacity of Spouse—a married woman may make a will
without the consent of her husband and without the authority
of the court. (Art. 802)
A married woman may dispose by will of aft her separate
property as well as her share of the conjugal partnership or
absolute community property. (Art. 803)
Note: what can be disposed of would be merely ideal share of
the spouse making the will and not any specific or determinate
property belonging to the partnership or community.