Nature of Testamentary Succession
Testamentary succession takes place through a valid will, by which a person is permitted by law to control, within legal limits, the disposition of his estate after death.
A will is essentially mortis causa: it produces no transfer of ownership while the testator lives, and the testator retains full power to revoke, modify, or replace it until death.
The making of a will is a strictly personal act. The testator cannot delegate to another person the power to decide whether he should make a will, who his heirs should be, what shares they should receive, or what essential dispositions should be made.
The testator may, however, entrust to a third person the distribution of specific property or sums among members of a class or among charitable, educational, or similar institutions, when the will itself supplies the permitted class and the property or amount to be distributed.
A testamentary disposition is construed to give effect to the testator's intent when the intent is lawful and can be gathered from the words of the will, but intent cannot cure the absence of mandatory formalities or defeat the legitime of compulsory heirs.
When a clause admits two interpretations, the interpretation that sustains the disposition is preferred over one that makes it ineffective, provided the preferred interpretation remains consistent with law and the instrument as a whole.
Property acquired by the testator after the execution of the will passes under the will when the will shows an intention to include after-acquired property, such as by disposing of the testator's entire estate or all property owned at death.
Testamentary succession may coexist with legal or intestate succession. A will remains valid even if it contains no institution of heirs, institutes an heir only to a part of the estate, or fails as to some dispositions; the undisposed portion passes by intestacy.
Testamentary Capacity and Animus Testandi
Testamentary capacity is determined at the time the will is executed, not at the time of death, probate, or distribution.
A person may make a will if he is at least eighteen years old and of sound mind at the time of execution.
Soundness of mind does not require perfect memory, high intelligence, or freedom from all illness. It requires that the testator know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.
The law presumes soundness of mind, so the party opposing the will ordinarily bears the burden of showing incapacity at the moment of execution.
Supervening incapacity does not invalidate a will executed during a lucid interval or while the testator had the required capacity.
Capacity is distinct from animus testandi. Capacity concerns the testator's legal and mental ability; animus testandi concerns the intent that the instrument operate as a will.
An instrument that merely expresses wishes, drafts a plan, or gives instructions for a future will is not a will unless it shows a present intention to dispose of property upon death.
Forms of Wills
Philippine law recognizes two principal forms of wills: the notarial or ordinary will, and the holographic will.
| Point | Notarial will | Holographic will |
|---|---|---|
| Writing | Must be in writing and in a language or dialect known to the testator. | Must be entirely written by the hand of the testator. |
| Witnesses | Requires at least three credible instrumental witnesses. | Requires no instrumental witnesses for execution. |
| Attestation and acknowledgment | Requires an attestation clause and acknowledgment before a notary public. | Requires no attestation clause and no notarization. |
| Signature | Signed by the testator or by another person in his presence and by his express direction, with the required witness signatures. | Dated and signed by the testator himself. |
| Usual risk | Defects in witnesses, attestation, paging, acknowledgment, or presence. | Failure of handwriting, date, signature, or authenticated alterations. |
Notarial Wills
A notarial will must be subscribed at the end by the testator himself, or by the testator's name written by another person in his presence and by his express direction.
The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
Each page, except the last, must be signed on the left margin by the testator or the person signing for him, and by the instrumental witnesses.
The pages must be numbered correlatively in letters placed on the upper part of each page, so that substitution or suppression of pages may be detected.
The attestation clause states the number of pages used, the fact that the testator signed the will or caused another to sign for him in his presence and by his express direction, and the fact that the witnesses signed in the presence of the testator and of one another.
The will must be acknowledged before a notary public by the testator and the witnesses. The notary is not a substitute for an instrumental witness, because the notarial function is different from the witnessing function.
The presence requirement protects against fraud and coercion by ensuring a single continuous testamentary act in which the testator and witnesses can see, or are in a position to see, the signing of the will.
If the testator is deaf or deaf-mute, he must personally read the will if able to do so; otherwise, he must designate two persons to read it and communicate its contents to him in a practicable manner.
If the testator is blind, the will must be read to him twice, once by one subscribing witness and once by the notary public, to ensure that the instrument acknowledged is the instrument intended.
Defects in the attestation clause may be disregarded only when the will itself substantially shows compliance and there is no bad faith, fraud, undue influence, or pressure. Substantial compliance does not dispense with the statutory formalities themselves.
Holographic Wills
A holographic will must be entirely written, dated, and signed by the hand of the testator.
The handwriting requirement replaces the protective function of witnesses; therefore, typewritten, printed, or mechanically prepared material cannot constitute the testamentary text of a holographic will.
The date identifies the time of execution, helps determine capacity, and resolves conflicts between successive wills.
The signature authenticates the document as the testator's final testamentary act. It must show that the testator intended to adopt the writing as his will.
Alterations, insertions, cancellations, or erasures in a holographic will must be authenticated by the testator's full signature to be effective as alterations.
A holographic will may be probated even without subscribing witnesses because none are required for execution, but handwriting and signature must be proved in the manner required by the Rules of Court.
Codicils and Incorporation by Reference
A codicil is a supplement or addition to a will, made after the execution of the will and annexed to it, by which the testator explains, adds to, or alters testamentary dispositions.
A codicil must be executed with the formalities required for a will, because it is itself a testamentary instrument.
A document may be incorporated into a will by reference when the document was already in existence at the time the will was executed, the will clearly identifies it, the document is proved to be the one referred to, and the required signatures appear when the law demands them.
Incorporation by reference cannot be used to evade testamentary formalities by allowing an unsigned or later-created document to supply essential testamentary dispositions.
Witnesses to Notarial Wills
An instrumental witness must be of sound mind, at least eighteen years old, able to read and write, not blind, deaf, or dumb, and domiciled in the Philippines.
A person convicted of falsification, perjury, or false testimony is disqualified as a witness because the function requires testimonial reliability.
The competence of a witness is determined at the time of execution. Subsequent incompetence does not invalidate the will if the witness was competent when the will was signed.
A devise or legacy in favor of an instrumental witness, or in favor of the witness's spouse, parent, or child, is void unless there are three other competent witnesses to the will. The witness remains competent, but the benefit is struck down.
A creditor of the testator may be an instrumental witness because the existence of a debt does not make the creditor a testamentary beneficiary of the will.
Joint Wills and Conflict Rules on Form
A joint will is one instrument executed by two or more persons as their will. Philippine law prohibits joint wills because each will must be a personal, revocable, and separate testamentary act.
Filipinos cannot validly execute a joint will even in a country whose law permits joint wills.
A Filipino abroad may execute a will in the form prescribed by Philippine law or in the form allowed by the law of the place of execution.
An alien abroad may execute a will according to the law of the place of execution, the law of his nationality, the law of his domicile, or Philippine law, when the will is presented for effect in the Philippines.
An alien in the Philippines may execute a will according to Philippine formalities or according to the formalities of his national law, subject to Philippine rules on intrinsic validity when Philippine succession law governs.
Revocation of Wills
A will is ambulatory and may be revoked by the testator at any time before death. Any waiver or restriction of the right to revoke is void.
Revocation may occur by operation of law, by a subsequent will or codicil or other writing executed with testamentary formalities, or by physical destruction performed by the testator or by another person in his presence and by his express direction.
Physical revocation includes burning, tearing, cancelling, or obliterating the will with the intent to revoke. The physical act and the revocatory intent must concur.
A subsequent will that does not expressly revoke a prior will annuls only the prior dispositions that are inconsistent with or contrary to the later dispositions.
A revocation made in a subsequent will may remain effective even if the new institution of heirs becomes inoperative because the instituted heir is incapacitated or renounces the inheritance.
A revocation based on a false or illegal cause is ineffective when the stated cause appears to be the reason for the revocation.
The recognition of an illegitimate child in a will remains legally effective even if the will is later revoked, because recognition is treated differently from a purely patrimonial testamentary disposition.
When a will last known to be in the testator's possession cannot be found after death, a presumption may arise that the testator destroyed it with intent to revoke, subject to contrary proof.
Dependent relative revocation applies when the testator revokes a will on the assumption that another testamentary disposition will be effective, and the revocation should not be given effect if the assumed substitute disposition fails and the testator would have preferred the earlier will to intestacy.
Probate and Grounds for Disallowance
No will passes real or personal property unless it is proved and allowed in the proper court.
Probate is a proceeding in rem. Once a will is allowed, the decree is conclusive as to due execution, testamentary capacity, and compliance with formal requisites, subject to the remedies allowed by procedural law.
The court disallows a will when the formalities required by law were not observed, the testator was insane or otherwise mentally incapable at execution, the will was executed through force or duress, the execution was procured by undue or improper pressure and influence, the signature was procured by fraud, or the testator acted by mistake or surprise.
Probate generally concerns the extrinsic validity of the will. Intrinsic validity, such as impairment of legitime or invalid conditions, is ordinarily resolved in the settlement and distribution of the estate, unless the issue can be determined at once without defeating the purpose of probate.
Institution of Heirs
Institution of an heir is the act by which the testator designates in a will the person or persons who shall succeed to the whole estate or to an aliquot portion of it.
A person instituted to receive the whole estate or a fractional share is an heir; a person given a specific real property is a devisee; and a person given personal property or a specific benefit is a legatee.
A person instituted in a specific and determinate thing is treated as a devisee or legatee even if the will calls him an heir.
The heir should be designated by name and surname when practicable, but an error in name, surname, or description does not defeat the institution if the person intended can be identified with certainty.
A disposition in favor of an unknown person is void unless the person can become certain by an event or circumstance stated in the will.
When the testator institutes several heirs without designating shares, they inherit in equal portions, subject to legitime, preferences, substitutions, and other valid provisions of the will.
A false cause stated for an institution does not annul the institution unless it appears from the will that the testator would not have made the disposition had he known the truth.
An illegal cause is deemed not written if the institution can stand without it; but a disposition conditioned on the heir making a will in favor of the testator or another person is void because it is captatory.
If the instituted heir predeceases the testator, is incapacitated, or renounces, the institution fails unless a valid substitution, accretion, representation as to legitime, or other rule saves the disposition.
A voluntary heir who dies before the testator transmits no right to his own heirs because no inheritance is acquired before the testator's death.
Substitution of Heirs
Substitution is the appointment of another heir to take the place of an instituted heir in the cases provided by the testator or by law.
| Kind | Rule | Effect |
|---|---|---|
| Simple or common | The testator designates a substitute if the first heir predeceases, renounces, or is incapacitated, unless the testator limits the cases. | The substitute succeeds directly from the testator upon failure of the first heir. |
| Brief or compendious | Several substitutes may be appointed for one heir, or one substitute for several heirs. | The testator controls the manner and extent of replacement. |
| Reciprocal | Instituted heirs are named substitutes for one another. | If one cannot or will not inherit, the others take according to the testator's stated or legally inferred proportion. |
| Fideicommissary | The first heir is charged to preserve and transmit the property to a second heir. | The first heir receives subject to a duty of preservation and later transmission. |
A simple substitution ordinarily covers the three standard failures of the first heir: predecease, incapacity, and repudiation, unless the will shows a narrower intention.
A fideicommissary substitution is valid only when it is express, does not go beyond one degree or one transmission from the first heir, does not burden the legitime, and the fiduciary and fideicommissary are living or at least conceived at the testator's death as required by law.
The fiduciary is not an absolute owner free from the charge; he holds the property subject to the obligation to preserve and transmit it in accordance with the will.
Substitutions that create perpetual restraints, successive prohibited transmissions, or inalienability beyond the period allowed by law are void to the extent of the prohibited burden.
A testamentary declaration that all or part of the estate shall be inalienable for more than twenty years is void as to the excess.
Conditional Dispositions, Terms, and Modes
Testamentary dispositions may be pure, conditional, with a term, or modal, subject to the limits imposed by law, morals, public order, legitime, and the nature of succession.
Impossible conditions and conditions contrary to law or good customs are deemed not imposed and do not prejudice the heir or legatee, unless the illegal condition is inseparable from the testamentary intent in a way that invalidates the disposition.
An absolute condition not to contract a first or subsequent marriage is generally deemed not written. The law permits limited exceptions, such as a condition imposed on a widow or widower by the deceased spouse or by ascendants or descendants in legally recognized situations.
A disposition granting a usufruct, use, habitation, pension, or similar personal benefit for the duration of widowhood or unmarried status may be valid because it does not absolutely prohibit marriage but merely measures the duration of the benefit.
A condition requiring the heir or legatee to make a testamentary disposition in favor of the testator or another person is void.
If the condition is suspensive, the heir or legatee acquires no vested right until the condition is fulfilled, although measures may be taken to preserve the property.
If the condition is resolutory, the heir or legatee receives the property but may lose it upon the happening of the condition.
A potestative condition imposed on an heir must generally be fulfilled after the testator's death, unless the condition has already been fulfilled and cannot be repeated, or the will shows that prior fulfillment should suffice.
For a negative condition, the heir or legatee may be required to give security that the prohibited act will not be performed.
A term or period differs from a condition because the day is certain to arrive, although it may be uncertain when it will arrive. A disposition effective upon a person's death may be a term if death is certain, but a disposition dependent on an uncertain event is conditional.
A mode imposes an obligation, burden, or application of the property without suspending the heir's acquisition unless the will clearly makes fulfillment a condition.
Legitime and the Disposable Free Portion
Legitime is that part of the testator's property which he cannot dispose of because the law reserves it for compulsory heirs.
The testator may dispose freely only of the free portion after satisfying legitimes, valid charges, and the rules on reduction of inofficious dispositions.
Compulsory heirs include legitimate children and descendants; in their absence, legitimate parents and ascendants; the surviving spouse; illegitimate children and descendants in the manner provided by law; and, in proper cases, parents of an illegitimate child in the succession to that child.
Legitimate children and descendants exclude legitimate parents and ascendants from compulsory succession, because the nearer descending line is preferred over the ascending line.
The surviving spouse and illegitimate children generally concur with the primary or secondary compulsory heirs, subject to the shares fixed by law.
The legitime is computed by determining the net hereditary estate, deducting debts and charges not treated as testamentary dispositions, adding the value of donations subject to collation or reduction, and then applying the statutory shares.
| Survivors | Legitime rule | Free portion |
|---|---|---|
| Legitimate children alone | One-half of the estate, divided equally among them. | One-half. |
| Legitimate children and surviving spouse | Children collectively receive one-half; the spouse receives a share equal to that of one legitimate child. | The balance after those legitimes. |
| Legitimate children and illegitimate children | Legitimate children collectively receive one-half; each illegitimate child receives one-half of the legitime of one legitimate child, charged to the free portion. | The balance, if any. |
| Legitimate children, surviving spouse, and illegitimate children | Legitimate children receive one-half; the spouse receives a share equal to one legitimate child; each illegitimate child receives one-half of one legitimate child's share, subject to reduction if the free portion is insufficient. | The balance, if any. |
| Legitimate parents or ascendants alone | One-half of the estate. | One-half. |
| Legitimate parents or ascendants and surviving spouse | Parents or ascendants receive one-half; the spouse receives one-fourth. | One-fourth. |
| Legitimate parents or ascendants and illegitimate children | Parents or ascendants receive one-half; illegitimate children receive one-fourth. | One-fourth. |
| Legitimate parents or ascendants, surviving spouse, and illegitimate children | Parents or ascendants receive one-half; illegitimate children receive one-fourth; the spouse receives one-eighth. | One-eighth. |
| Surviving spouse alone | One-half, subject to the special reduction for certain marriages in articulo mortis. | One-half or the balance allowed by law. |
| Illegitimate children alone | One-half of the estate, divided among them equally. | One-half. |
| Surviving spouse and illegitimate children | The spouse receives one-third; illegitimate children collectively receive one-third. | One-third. |
When the free portion is insufficient to satisfy the legitime of illegitimate children because of the concurrence of legitimate children and the surviving spouse, the shares of the illegitimate children are reduced proportionately, but the legitime of legitimate children is not impaired.
Donations to compulsory heirs are generally imputed to their legitime unless the testator validly provides that they are improvements or advances from the free portion.
Donations to strangers are charged to the free portion and are reduced if they impair legitime.
Testamentary dispositions that impair legitime are reduced only to the extent necessary to complete the legitime of compulsory heirs.
If the impairment is caused by both testamentary dispositions and donations inter vivos, the testamentary dispositions are reduced first; donations are attacked only when the estate remaining is insufficient to cover legitime.
When several devises or legacies exceed the disposable portion, they are reduced proportionately unless the testator has validly established a preference allowed by law.
Reserva Troncal
Reserva troncal arises when an ascendant inherits by operation of law from a descendant property that the descendant previously acquired by gratuitous title from another ascendant, brother, or sister.
The ascendant who inherits becomes the reservista and must reserve the property for the benefit of relatives within the third degree who belong to the line from which the property came.
The rule preserves property within the family line of origin and applies only when the same property can be traced through the statutory gratuitous transfers.
Reserva troncal limits the reservista's power because the reservable property is impressed with a legal destination in favor of the qualified reservees.
Preterition
Preterition is the total omission in the testator's will of one, some, or all compulsory heirs in the direct line, whether living at the time of execution or born after the testator's death.
The omitted heir must be a compulsory heir in the direct line, such as a legitimate child, descendant, parent, ascendant, or other lineal compulsory heir recognized by law.
Preterition requires total omission from the inheritance. If the heir receives anything by will, donation inter vivos, or any other title chargeable to legitime, the problem is usually completion of legitime rather than preterition.
The effect of preterition is the annulment of the institution of heirs, but devises and legacies remain valid insofar as they are not inofficious.
Preterition differs from disinheritance because preterition is silence or omission, while disinheritance is an express deprivation of legitime for a legal cause stated in the will.
| Concept | Cause | Main effect |
|---|---|---|
| Preterition | Total omission of a compulsory heir in the direct line. | Institution of heirs is annulled, subject to the validity of non-inofficious devises and legacies. |
| Ineffective disinheritance | Express disinheritance without a valid legal cause, without stating the cause, or with an untrue cause. | The heir receives his legitime, and the institution of heirs is annulled only insofar as it prejudices that legitime. |
| Impairment of legitime | The heir is recognized but receives less than his legitime. | The heir may demand completion of legitime through reduction of inofficious dispositions. |
Disinheritance
Disinheritance is the act by which the testator, for a cause expressly authorized by law, deprives a compulsory heir of his legitime.
Disinheritance must be made in a will, must be express, must identify the compulsory heir disinherited, and must state a cause specified by law.
The cause stated must be true. If the disinherited heir denies the cause, the burden of proving it falls on the other heirs who seek to sustain the disinheritance.
A disinheritance made without stating a legal cause, for a cause not authorized by law, or for a cause whose truth is not proved, is ineffective.
Ineffective disinheritance does not automatically nullify the entire will; it annuls the institution of heirs only insofar as the legitime of the disinherited heir is prejudiced.
Reconciliation between the testator and the offending heir deprives the testator of the right to disinherit based on the prior offense and renders a disinheritance already made ineffective.
| Heir disinherited | Examples of legal causes |
|---|---|
| Children or descendants | Attempt against the life of the testator or close family members; false accusation of a serious crime; adultery or concubinage with the testator's spouse; causing the testator by fraud, violence, intimidation, or undue influence to make or change a will; unjustified refusal of support; maltreatment by word or deed; leading a dishonorable or disgraceful life; conviction of a crime carrying civil interdiction. |
| Parents or ascendants | Abandonment of children; inducing children to corrupt or immoral conduct; attempt against the life of the testator or close family members; false accusation of a serious crime; adultery or concubinage with the testator's spouse; causing the testator by improper means to make or change a will; loss of parental authority for legal causes; unjustified refusal of support; attempt by one parent against the life of the other, unless reconciliation occurred. |
| Surviving spouse | Attempt against the life of the testator or close family members; false accusation of a serious crime; causing the testator by improper means to make or change a will; giving cause for legal separation; giving grounds for loss of parental authority; unjustified refusal to support the children or the other spouse. |
The grounds are exclusive. A morally persuasive reason that is not a statutory ground cannot support disinheritance.
Legacies and Devises
A devise is a testamentary gift of real property; a legacy is a testamentary gift of personal property, a credit, a remission, a service, support, education, or another specific benefit.
Legacies and devises are charged against the free portion unless they are given to compulsory heirs as part of their legitime or as valid improvements.
A legacy or devise must yield to debts, estate charges, legitimes, and legally preferred dispositions.
Ownership of the Thing Given
If the testator gives a thing that belongs to another person and the will shows that he knew it did not belong to him, the estate must acquire the thing for the beneficiary or pay its just value if acquisition is impossible or the owner refuses to sell at a reasonable price.
If the testator gives a thing belonging to another under the mistaken belief that it is his own, the disposition is void because the testamentary intent was directed to property he believed he owned.
If the thing belongs partly to the testator and partly to another, the devise or legacy generally extends only to the testator's interest, unless the will clearly shows an intention to give the whole thing.
If the testator gives a thing that did not belong to him when the will was made but later becomes his property before death, the disposition is effective because succession operates at death.
If the thing given already belongs to the beneficiary at the time of execution, the disposition is generally ineffective unless the will clearly gives another benefit, such as reimbursement, price, or release from an obligation.
Specific, Generic, and Alternative Gifts
A specific devise or legacy of a determinate thing owned by the testator transfers the thing with its accessions and in the condition in which it exists at the testator's death.
Improvements naturally or physically attached to the specific thing ordinarily pass with it, but separate acquisitions or additions do not pass unless the will or the nature of the thing shows that they were intended to be included.
A generic legacy of personal property is valid even if no thing of the same kind exists in the estate, because the estate may satisfy it by acquiring the thing.
A generic devise of real property is more restricted because immovable property is not treated as freely replaceable; the estate must have property of the kind described, unless the will lawfully provides otherwise.
In an alternative legacy or devise, the person given the choice by the will may select among the alternatives. If the will is silent, the choice normally belongs to the person obliged to deliver.
Once a valid choice is communicated, it becomes irrevocable, and the obligation is fixed on the chosen prestation.
Credits, Debts, Remissions, Support, and Education
A legacy of credit transfers only the credit existing at the testator's death, including accessory rights that follow the credit unless the will provides otherwise.
A legacy of remission releases the debtor only to the extent of the debt existing and unpaid at the testator's death.
If the testator later collects the credit or sues the debtor in a manner inconsistent with remission, the disposition may be treated as revoked to the extent of the collection or inconsistent act.
A legacy to a creditor is not presumed to be payment of the debt unless the testator clearly states that intention. The creditor may receive the legacy and still collect the debt if both are due.
A direction to pay a debt is not a true legacy; it is enforceable as an obligation of the estate if the debt is valid.
A legacy for education generally lasts until the beneficiary reaches the age fixed by law or completes the education contemplated by the testator, subject to the terms of the will and the estate's capacity.
A legacy for support is measured by the beneficiary's needs, the estate's resources, and the testator's expressed standard, and it may continue for the period stated in the will or for the period supplied by law.
Encumbered, Lost, or Alienated Property
If the thing devised or bequeathed is pledged or mortgaged to secure a recoverable debt of the testator, the estate generally bears the debt unless the will validly charges the burden to the beneficiary.
If the encumbrance secures the debt of another person, the rules depend on the nature of the obligation, the testator's intent, and whether the estate is personally bound.
A specific devise or legacy is revoked if the testator alienates the thing after making the will, even if the thing later returns to the estate, unless the return or the will shows a legally sufficient contrary intention.
A specific gift also fails if the thing is totally lost during the testator's lifetime or after death without the fault of the heir or estate representative before delivery becomes due.
If the testator transforms the thing so that it no longer retains its former form or denomination, the specific gift is treated as revoked because the object intended no longer exists in the contemplated identity.
Acceptance, Repudiation, and Delivery
A legatee or devisee may accept or repudiate the benefit, but acceptance cannot be used to take only the favorable part of one indivisible onerous disposition while rejecting the burden attached to it.
If the same beneficiary receives several distinct legacies, he may accept some and renounce others, unless the will or the nature of the dispositions makes them inseparable.
The estate representative or the heir charged with delivery must deliver the thing bequeathed with its accessories and in the condition existing at the testator's death.
The beneficiary of a specific determinate thing owned by the testator acquires a real right from death, subject to probate, estate settlement, debts, legitime, and delivery through the proper proceedings.
Fruits and interests follow the rules on the kind of legacy, the testator's direction, and the time when the beneficiary becomes entitled to demand delivery.
Expenses necessary for delivery are ordinarily borne by the estate, but expenses caused by the beneficiary's own acts or by special provisions of the will may be treated differently.
Order of Payment When the Estate Is Insufficient
Legacies and devises are paid only after debts, charges, and legitimes are respected.
When the remaining estate is insufficient to cover all legacies and devises, payment follows the statutory preference unless the testator has validly created a lawful preference.
- Remuneratory legacies or devises are paid first because they compensate services or benefits recognized by the testator.
- Legacies or devises declared preferential by the testator are paid next, within the limits of the law.
- Legacies for support follow because they answer for subsistence.
- Legacies for education follow because they serve a favored personal purpose.
- Legacies or devises of a specific, determinate thing forming part of the estate are then satisfied.
- All other legacies and devises are paid pro rata.
Effect of Invalid or Ineffective Testamentary Provisions
The invalidity of one testamentary provision does not necessarily invalidate the entire will. Valid provisions are preserved when they can stand independently and do not defeat law, legitime, or the testator's lawful general plan.
If an instituted heir cannot inherit because of predecease, incapacity, repudiation, or ineffective institution, the result depends on substitution, accretion where applicable, representation as to legitime, and intestacy for the undisposed portion.
If a testamentary burden is void but separable, the benefit may remain and the unlawful burden is deemed not written.
If the unlawful condition, illegal cause, or impossible charge is the controlling reason for the disposition and cannot be separated from it, the disposition itself may fail.
When a will disposes of more than the free portion, the remedy is reduction, not automatic nullity of the will.
When a will omits compulsory heirs in the direct line, the remedy may be preterition with annulment of the institution of heirs, not merely proportional reduction.
When a will expressly excludes a compulsory heir without a valid statutory cause, the remedy is ineffective disinheritance and completion of legitime.
When a particular legacy or devise is impossible, revoked, inofficious, or incapable of delivery, the failure affects that benefit without necessarily disturbing the remaining testamentary plan.