1.
May an adopted succeed his biological father support and parental authority or in case the obligation is
intestate; what is testate?
An adopted may not succeed his biological father
intestate. This is because upon adoption, the paternity
and filiation between the biological father and his child is
severed and is transferred to the adopter. In the eyes of
the law, the biological father and the adopted child are
merely strangers to each other. However, in case of
testate succession, when the biological father of the
adopted child institutes him as an heir through a will, then
he may succeed.
2. The attestation clause of a will is written on a
separate instrument separate from the will. Can
the will be allowed probate?
Yes, the will may be allowed probate. Even if the
attestation clause of a will is written in an instrument
separate from the will, the will may be allowed because
attestation clause is not part of the will. A will is prepared
by the testator, while the attestation clause is prepared by
the attesting witnesses. Hence, even though it was made
on a separate instrument, the will itself may be allowed.
3. A will was destroyed. Can it still be probated?
The answer must be qualified. If the will is destroyed with
intent to revoke, then it can no longer be probated. But if
there is no intent to revoke, it may still be probated
depending on what kind of will because there must still be
further distinction.
If the destroyed will is a notarial will, the said will may still
be probated because the authenticity of said will can still
be established or proven through the testimony of the
instrumental witnesses of such will.
If the destroyed will is a holographic will, presentation of
the will is necessary in order to identify the handwriting
and signature of the testator and compare it with the
sample handwriting and signature of the testator executed
prior to his death. If this kind of will is destroyed, the only
medium or proof for authenticity of his handwriting and
signature is lost, hence, it cannot be probated.
However, based on jurisprudence, a photostatic copy or
Xerox copy of the holographic will may still be presented.
The probate court will allow it since comparison of
handwriting and signature can be made through that. In
that case, the holographic will may be probated through
xerox copy.
4. May an heir be liable for obligations of the
testator?
The general rule is that a party’s contractual rights and
obligations are transmissible to the successors. The
exception to the general rule is when the obligation is
strictly personal or when the obligation is not
transmissible by operation of law as in the case of legal
a money debt of the deceased which much be liquidated
and paid from his estate before the residue is distributed
to the heirs.
5. A person was convicted of a crime involving
moral turpitude and was sentenced to suffer
imprisonment for 30 years with accessory penalty
of civil interdiction. He executed a will. If you were
the judge will you allow probate?
Yes, because civil interdiction does not disqualify him by
law to execute a will. A person who suffers penalty of civil
interdiction is not prohibited to dispose of his properties
mortis causa. A will is a disposition of properties mortis
causa. Hence, he can execute a will and dispose of his
properties mortis causa because he has still testamentary
capacity.
6. X renounced his right to succeed before the death
of his father. Does the instrument have value?
None. The renunciation of X’s right to succeed albeit
dome voluntarily and expressly by himself towards his
dying father have no value because before the death of
his father, X has no actual right to be renounced. The right
to succeed is transmitted only upon death of his father.
Hence, prior to the death, what X has is merely inchoate
right. The instrument has no value, for X has nothing to
renounce yet.
7. The right to legacy pertains to the share in the
inheritance while the object of legacy pertains to
the thing itself.
FALSE, because right to legacy pertains to the share not
in the inheritance but in the absolute free portion which
can be only be a personal property. On the other hand,
the object of legacy does not pertain to the thing itself in
general, because it pertains only to personal property.
Otherwise, if it pertains to the real property, it is called a
devise. (?)
8. If a witness possess all the qualifications to
become a witness, he is already considered as a
credible witness.
FALSE, because the competency of a person to be an
instrumental witness to a will is determined by the statute,
that is Articles 820 and 821 of the New Civil Code.
Whereas the credibility depends on the appearance of his
testimony and arises from the belief and conclusion of the
court that said witness is telling the truth.
The instrumental witness, in order to be competent must
be shown to have the qualification under Art. 820 of the
civil code and none of the disqualifications under Art. 821
of the same code, for their testimony to be credible, that
is worthy of belief and entitled to credence, it is not
mandatory that evidence be first established on record
that the witnesses have a good standing in the community
or that they are honest and upright or reputed to be
trustworthy and reliable for a person is presumed to be
such unless the contrary is established otherwise.
(Gonzales vs. CA).
9. Attestation clause placed in the body of the will
affects the validity of such will.
FALSE.
10. Right of representation applies absolutely.
FALSE, because it does not apply in case of repudiation
by the heir of the decedent and when the heir does not
have his own heir. (?)
In the case of compulsory heir, in case of predecease,
incapacity and repudiation, he also transmits nothing to
his own heir. In case of voluntary heir, it mentions only
predecease. But in the case of a compulsory heir, as a
rule also transmits nothing to his own heir except when
the right the right of representation applies, except in the
case of repudiation because there is no right of
representation in repudiation. One who does not want to
succeed cannot be represented. (?)
There is right of representation by the children of the
omitted child of the testator. However, if the omitted child
who predeceased the testator has no own children, then
there is no preterition because only the descendant can
represent and in this case the omitted child has no
descendant in the direct line who could represent him.
Hence, there can be no right of representation.
11. The formal validity of a will is governed by the law
at the time of the death of the testator.
FALSE, because formal validity of the will is governed by
the law in effect at the time of its execution pursuant to
Article 795 of the New Civil Code. That which is governed
by the law at the time of the death of the testator is the
intrinsic validity and not the formal validity of the will.
12. If the second will did not comply with the
requirements of the law, the prior will may no
longer be presented for probate.
FALSE. Under the doctrine of dependent relevant
revocation, if the second will did not comply with the
requirements of the law, the prior will may be presented
for probate because when the testator made the second
will, it was made with the belief that it is valid and the intent
of the testator is that he did not want to die intestate. (Molo
vs. Molo)
13. The surviving spouse is prohibited from
contracting a marriage after the death of her
spouse.
FALSE. (1st 120 days of 300 days); (GR: surviving spouse
is not prohibited from contracting a marriage after the
death of her spouse.) When the absolute prohibition
not to marry is imposed by the deceased spouse in
the will made by him during his lifetime. It may also
be imposed by the relatives, ascendants or
descendants of the deceased spouse. Such
prohibition is allowed by law to keep the property in
the family.
14. Reserva troncal, reserve maxima or reserve
minima
15. Right to legacy.
FALSE. Right to legacy depends on what kind of legacy
is being contemplated If it is legacy subject to a
suspensive condition.
16. The death of the second heir will extinguish the
fideicommissary substitution.
FALSE, if the second heir predeceased the first heir, there
shall be no effect whatever. The second heir does not
inherit from the first heir but from the testator. The right of
the second heir shall simply pass to his heirs. But if the
second heir had predeceased the testator, it would be
different for then, he gets nothing and transmits nothing
to his own heirs.
17. Failure of a person given the right to choose will
extinguish the legacy.
FALSE. If such person is an heir, the right to choose will
pass to the heirs of the latter. But if the person given the
right to choose is an administrator or executor, the right to
choose will be given to the next successor in office.
18. Disinheritance.
It is that which intended by law that would soften the
impact produced by legitimes. A person can be deprived
of one’s legitime through disinheritance. Only compulsory
heirs can be disinherited because they are the only ones
entitled to legitimes.
19. Defective disinheritance and Preterition.
20. How free portion should be disposed
FREE PORTION only comes into existence after
deduction of the legitimes of the compulsory heirs, i.e. the
legitimate children, surviving spouse, and illegitimate
children.
It is what remains after the deduction of the legitimes of
the compulsory heirs. Legitime of the legitimate children
must be first given. After taking out the legitimes of the
legitimate children, what remains is not the absolute free
portion. Because from what remains, the legitime of the
surviving spouse and of the illegitimate children must be
given.
When will the legitime be reduced? Suppose what
remains is not enough to cover the legitime of the
surviving spouse and of the illegitimate children, the
legitime of the surviving spouse must be first taken out. It
is only then that the legitime of the illegitimate child will be
taken out. The legitime of the surviving spouse can never
be reduced. Should there be a need for a reduction, it
should be from the legitime of the illegitimate children.
ABSOLUTE FREE PORTION – it is the remaining portion
after deducting the legitimes of the legitimate children,
suriving spouse and the illegitimate children. It is the
portion from which the testator could give legacies or
devises.
21. There can be no right of representation in reserve
troncal.
FALSE. There can be right of representation in reserve
troncal as long as the heir who will represent the reserve
is also within the 3rd civil degree of the propositus. The
requirement that the reserve should be related to the
propositus within the 3rd civil degree also applies to the
heir of such reservee.
In order for reserva troncal to exist, the law requires
the parties to be legitimate relatives which means that
they should be related legitimately to the propositus.
The relationship required by law is within the 3rd
degree of consanguinity.
The law requires that a person be related to the
propositus within the 3rd degree of consanguinity and
not by affinity to be qualified as reservee. The law
requires for a DOUBLE DEGREE OF RELATIONSHIP.
The reservee must be related not only to the
propositus but also to the origin where the property
came from. Legitimate relationship does not mean
that each party must be related to each other. It
means that the parties must be related to the
propositus legitimately. The focal point is the
propositus. (Alcala case)
22. A will of a Filipino was probated abroad. Is there
a need to probate the will again in the
Philippines?
No, provided that there is a proceeding commenced in the
Philippines for establishing the fact of foreign probate. A
proceeding is still necessary despite foreign probate
under the Rules of Court but the proceeding regarded
here is no longer for probate but for the purpose of
establishing the fact of probation by foreign tribunal which
must be a probate court.
23. Is the sale of a property under reserva troncal
valid
It depends. In reserva troncal, the RESERVOR
acquires the property in the concept of an owner
because he can dispose of the property. However, it
does not extinguish the reserva troncal. If there is an
annotation of the reservable nature of the property, it
serves as a notice to the reserve. Suppose there is no
annotation, the reserve troncal would not be
extinguished instead, the reservor will be liable out of
his own properties to the extent of the value of the
property covered by reserva troncal.
In fideicommissary substitution, the FIDUCIARY HEIR
does not acquire ownership of the property but what
he acquires is only the right to use and enjoy the
property. Beyond that, he does not have the power to
dispose or alienate.
24. X is the father of A. A is the father of Y. X and A
died. What will Y receive from the estate of A?
Upon the death of A, Y will be entitled to his legitime as a
compulsory heir of A. If A predecease X, then Y will have
right of representation of A and Y will inherit the legitime
of A from X.
25. If Y died and X died, will there be right of
representation?
If Y should have compulsory heirs, then said heirs will
have the right of representation to A’s estate upon the
death of X. Meaning there is no effect even if Y should
predecease X. (?)
26. X, the testator, gave the usufruct over his
property to O and P. A is the heir of X. Is the
usufruct valid?
27. In his will, X left a specific parcel of land to A and
the usufruct of the same to D, O and C. What are
the right of the parties to the land given by X to A,
D, O, and C?
28. A, in his will devised his property to X. During his
lifetime, A mortgaged his property to O. A died.
What are the rights and obligations with respect
to the devise given to him by X?
29. What is preterition of heir?
30. What is preterition of an object?
31. A creditor has a clain against the deceased, X.
He filed a collection action separately from the
estate proceedings. If you are the judge, will you
dismiss the action?
YES, I will dismiss the action. The collection action must
be filed in the proper estate proceedings concerning the
estate of X because it is there that the properties and
obligations of the spouses are settled. To hear the
collection action separately from the estate proceedings
which is summary in nature would be to tolerate
multiplicity of suits which is abhorred in our jurisdiction.
32. What will be the legitime of the wife if they have
no heirs?
33. X’s estate is 1 million. A is the compulsory heir of
X. b is a voluntary heir but he did not get his share
immediately and 20 years has passed. How much
can B demand from the estate of X? B may only
demand the delivery of half of what A received
which is equivalent to 500,000. This is because X
cannot burden the legitimate of A which is one-
half of a million. Thus, upon the expiration of 20
years B can only demand the delivery of the part
of X’s estate which he can dispose of by will also
known as free portion in the amount of 500,000.
Another answer: this is a case where the
elements of fideicommissary substitution are
present. First, there is a fiduciary, A who has
 been instituted by X as an heir in his will. Second
there is fideicommissary B. third, there is an
express obligation imposed by x that A should
deliver the inheritance t B, A’s son after 20 years
from X’s death. Fourth, the fideicommissary B is
one degree from the fiduciary A. hence, it is the
intention of the testator X to have B, his grandson
to inherent from him as a substitute of A after a
period of 20 years. Since the time that A entered
into the succession, the value of the estate is 1
million. However, A’s legitime must first be
satisfied. The amount of 500,000 which is one
half of the value of the estate will constitute the
legitime. After 20 years, the fideicommissary B
will inherit the remaining 500,000. Another
answer: B may only demand ½ of the inheritance
that is 500,00o. The law provides that in
testamentary succession, inheritance is divided
into the legitime and free portion. This legitimate
is reserved by law in favour of compulsory heirs.
The testator cannot impose any charges, burden
or condition on the legitime. The free portion on
the other hand maybe distributed by the testator
to anyone and he may even subject to condition
or burden. In the given case, A acquired the
amount of 500,000 as legitimate and the 500,000
as free portion. As to the legitime, the testator
cannot subject it to any condition. As to the other
half which compromised the free portion, it may
be subjected to any condition. Thus, only the
500,000 which A received as free portion maybe
demanded by B.
34. X and Y are married. X died testate. How much
will be the legitime of Y. the estate of X is 3M. If
Y is the only surviving heir of X, Y shall be entitles
to ½ of the entire estate of X. however, if the
marriage of X and Y was celebrated in articulo
mortis and X died within 3 months from the said
marriage, Y shall be entitled only 1/3 of the entire
estate of X (ie 1M). However, if X and Y has been
living as husband and wife for 5 years without any
legal impediment to marry, Y shall be entitles to
½ of the entire estate of X.
35. Will your answer be the same if X died intestate?
No, my answer will not be the same. In intestate
succession, if Y is the only surviving heir, Y shall
be entitled to the entire estate of X after the
latter’s debts and obligations have been settles.
36. X revoked his fires will by executing another will
in order to bequeath a legacy of 100,000. Should
the same be granted probable? (this question is
a qualification regarding express repeal and
implied repeal)
37. The legacy given to Y was lost. Is he still entitled
to that legacy? Art928
38. In jose’s will, he acknowledged Antonio as his
child however during probate, the will was
disallowed. Will the disallowance of the will have
effect on the right on Antonio to succeed
39. A foreigner executed a will in the Philippines
wherein he gave his illegitimate child legitime. In
the Philippines, an illegitimate child is entitles but
in England which is he is a national of, an
illegitimate child is not given legitime. Is the
illegitimate child entitled to legitime? Answer: the
illegitimate child is not entitled to legitime.
Regarding the intrinsic validity of a will, it is the
national law of the testator or the decedent which
shall govern. This is because the Philippines
follows the nationality theory. In the case at bar,
the issue whether the illegitimate child is entitled
to legitime is intrinsic in nature. Hence, it is the
national law of the foreigner that will govern.
Hence, the illegitimate child is not entitles to
legitime.
40. A will did not contain an acknowledgment. What
it contained was the statement “subscribed and
sworn to”. The opposing party wanted the will not
to be allowed. If you were the judge, what will be
your ruling? If I were the judge, I will rule in favour
of the opposition, the law provides that
acknowledgement is one of the formal requisites
of a valid will. Such acknowledgment must be
made before the notary public. Acknowledgment
is different and more than the statement
“subscribes and sworn to”, because to
acknowledge is to admit by the parties that the
acts stated in the will is that own free act.
Therefore, the will shall not be admitted for
probate because it lacks one of the formal
requisites which is the acknowledgment before a
notary public.
41. May a will be allowed if the attestation clause is
written on a separate instrument? Yes, the will
may be allowed even if the attestation clause of
such will is written in an instrument separate from
the will, as long as the instrument containing the
attestation clause is attached to the will as to form
part of the will itself. Also, attestation clause must
be signed at the bottom by a least 3 credible
witness.
42. When may an heir be held liable for the
obligations of the testator? An heir may only be
held liable for the obligation of the testator which
are transmissible. It is transmissible as when the
obligation of the testator is not personal to himself
and when it is a nonmonetary obligation. When it
as a monetary obligation. The heir will not be
liable because it is the estate of the deceased
testator which shall pay for such obligation.
43. A was convinced and sentenced to an accessory
penalty of civil (interdiction, this will was
presented for probate. If you were the judge, will
you allow the probate of the will? If I were the
probate judge, I will still admit the will for probate,
the law provides that as long as the testator is of
sound mind, of legal age, a natural person and
not prohibited by law, he can make a will. If all of
these requisites are present, I will admit the will
even if the sentence has an accessory penalty of
civil interdiction. Such accessory penalty only
prohibits dispositions inter vivos and not mortis
causa. Thus, it cannot be said that a locked
testamentary capacity because of the penalty of
 civil interdiction as it only prohibits dispositions
inter vivos.
44. Before the death of O, X renounced his share to
the inheritance in an instrument is there a valid
waiver of inheritance? No, before of his father O,
X’s right to the inheritance is a mere expectancy
and inchoate. Hence he could not renounce his
right to the inheritance as he has no vested right
over the inheritance. The right is not existing yet.
45. W has been validly disinherited. Can she still
claim her legacy? No, the disinherited heir loses
all legacies and testamentary disposition in her
favour because the grounds for disinheritance are
also the grounds for unworthiness and because
deprivation of legitime implies deprivation of right
as a voluntary her. The disinherited heir is totally
disqualified from receiving anything from the
testator. Hence, W can no longer claim her
legacy.
46. W has been defectively disinherited. Can she still
claim her legacy? It depends, if the devises and
legacies and other testamentary dispositions will
impair the legitimes, they will not be valid.
47. B is the son of A. A went missing and left 1M
estate. Can B inherit from A? No, under the civil
code, as between two persons called to succeed
each other, whoever alleges that one died ahead
of the other must prove the same. Otherwise, it
shall be presumed that they both died at the same
time and no right to succeed arises. The
foregoing provision necessitates B to prove by
competent evidence that A died ahead of him in
order for him to be entitled to inherit from the
letter. There is no showing in the given facts of
proof adduced by B that A died ahead of him.
Therefore, B cannot inherit from the 1M estate by
A.
48. Reserve froncal; 3rd degree of consanguinity from
the properties
49. When does right of representation exist? When
will it not exist? The right of representation exists
only compulsory heirs in case of predecease,
incapacity and disinheritance of a descendant in
the civil code provides that a voluntary heir
transmits nothing to his heir should heir should he
die ahead of the testator. It therefore follows that
the right of representation applies only to the
legitime and not the free portion
50. A person gave a legacy to another person. The
latter has an existing debt to the former. The
testator latter on demand the debt. May the
debtor still demand the legacy of credit? Yes,
51. Can a grand niece be a legal heir under intestate
succession?