Substitution Of Heirs: Is It possible In The Philippines?
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Substitution of heirs is the topic that we will discuss. Substitution is an act of replacing someone or something with another person or a thing; or the act, process, or result of substituting one thing for another.1 It plays a big role in this world, as it applies to almost every day processes of our lives.

“One does not substitute oneself for the past, one merely adds to it a new link.”

-Paul Cezanne

However, different rules shall be observed when wanting for substitution. For example, under the game of basketball, if a substitute enters the court without reporting to the scorer; and without being beckoned by an official, except between periods, then a technical foul shall be charged to the substitute.

In volleyball, to avail substitution into a match, a player on the bench gets up and enters the substitution zone — a space outside the court but inside the 10-foot line. If a second player is entering the match at the same time, she/he stands outside the court but behind the 10-foot line.

After the first player goes in, the second player goes to where the first sub was standing, then enters the court. In class, when a professor wouldn’t be able to attend a class and asks for a substitute, he or she shall send notice to the Dean’s office for its approval.

For limited partners, the rule is that an assignee may become a substituted limited partner if all the members (except the assignor) consent thereto or if the assignor, being so empowered by the certificate, gives the assignee that right.2

Substitution of Heirs under the Law on Succession

The testator’s right to appoint a substitute is an inherent right in accordance with his freedom of disposition. In the context of a will, substitution is the putting of one person in the place of another so that they may in default of ability of the former or latter, have the benefit of the legacy.

In other words, it is the act of the testator in naming a second legatee who is to take the bequest on failure of the original legatee or after them.3 Additionally, in any case that there is a vacant portion on the estate of the testator, under the law, substitution is a remedy to distribute such vacancy, provided, however, that it is expressly stated by the testator in his will.

Under Article 857 of the Civil Code, it provides that:

Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted.4

Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted.

Under substitutions in general, the testator may either

(1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, or

(2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution.

The law also specifically provides for the types of substitution of heirs, to wit:

Article 858 of the Civil Code: Substitution of heirs may be:5

1] Simple or common;6

2] Brief or compendious;6

3] Reciprocal; or6

4] Fideicommissary.6

Grounds for Substitution

1] Repudiation – When an heir renounces his share in inheritance.

2] Incapacity – When an heir becomes incapacitated to inherit.7

3] Predecease – When the designated heir passed before the testator do so.

In addition to the abovementioned grounds in default, a substitution may still apply when the testator expressly provides for another ground by which the substitution may apply. Absent any stipulation by the testator, the law provides these three grounds the occurrence of any may give rise to substitution.

There is also a special instance of default in substitution, wherein the testator may provide for an instance of default – hence in such case, the substitution clause will operate. For example, the testator can state in his will that, “I give all property to my daughter if she passes the board examination, otherwise, to my niece.”

In the given example, the niece of the testator gets the property only if the testator’s daughter fails to pass the board examination. Moreover, the ground for substitution would not anymore apply: whether the daughter renounces her share, becomes incapacitated, or dies before her father.

A well settled principle is that, in case of doubt in the study of succession, the guiding star will always be the intention of the testator.

Conditions for Substitutions

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation.8

For Fideicommissary substitutions or indirect substitutions, Article 867 provides it shall not take effect unless in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir.9

Since it is an indirect substitution, it entails certain conditions for it to be valid and binding.

1] That the institution does not go beyond one degree from the heir originally instituted;

2] That the substitution be expressly made;

3] That both the fiduciary and beneficiary be living at the time of the testator’s death; and

4] That it should be imposed on the free portion and not on the legitime. In case the fideicommissary substitution is declared null and void, then the fideicommissary shall be considered as if it is not written.

“Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution.”10

Limitations on Fideicommissary Substitution

A fideicommissary substitution must be expressly made; thus, the conveyance of the testator with his intention to charge the first heir with the absolute obligation to transmit a property to the second heir must be clear.

As mentioned, in a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. Hence, therefore and again, Article 867 of the Civil Code provides that:

The following shall not take effect:

1] Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir;11

2] Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863;6

3] Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension;6

4] Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator.6

One, in a case where there is an absence of a specific period mentioned by the testator on when the fiduciary is to transmit the property to the fideicommissary, the same should then be entitled to the property upon the passing of the fiduciary.

Second, the law as well gives limitations to the transmission of a property to two persons who, must be related by a degree, as expressly mentioned in paragraph three of the above article:

“which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in Article 863, a certain income or pension.”

Lastly, the law also prevents the testator from giving the property to a disqualified person under the guise of substitution.

Rules on Substitution of Heirs if there is legal proceeding

If a party dies and the trial court receives proper notice, the court must order the decedent’s heir or legal representative to appear on their behalf. If the deceased person’s legal representative is not present during the trial or heirs are substituted, the court’s decision and the trial’s verdict are void.

Non-compliance with the rule on substitution of a deceased party renders the proceedings and judgment of the trial court infirm because the court acquired no jurisdiction over the persons of the legal representatives or of the heirs on whom the trial and the judgment would be binding.12

Hence, the Court further held that:

“We should not lose sight of the principle underlying the general rule that formal substitution of heirs must be effectuated for them to be bound by a subsequent judgment. Such had been the general rule established not because the rule on substitution of heirs and that on appointment of a legal representative are jurisdictional requirements per se but because non-compliance therewith results in the undeniable violation of the right to due process of those who, though not duly notified of the proceedings, are substantially affected by the decision rendered therein.”13

Exception to the rule of formal substitution

A formal substitution by heirs is not necessary when they themselves voluntarily appear, participate in the case, and present evidence in defense of the deceased.

Strictly speaking, the rule on the substitution by heirs is not a matter of jurisdiction, but a requirement of due process. Thus, when due process is not violated, as when the right of the representative or heir is recognized and protected, noncompliance or belated formal compliance with the Rules cannot affect the validity of a promulgated decision.14

The purpose behind the rule on substitution is the protection of the right of every party to due process. It is to ensure that the deceased party would continue to be properly represented in the suit through the duly appointed legal representative of his estate.

Non-compliance with the rule on substitution would render the proceedings and the judgment of the trial court infirm because the court acquires no jurisdiction over the persons of the legal representatives or of the heirs on whom the trial and the judgment would be binding.15


Generally speaking, the testator has every right to give, to do anything he wants to his property, rights and obligations to a certain extent of value of his inheritance. Succession, in its broad sense, signifies for the substitution of subrogation of a person in the transmissible rights obligations of another. Hence, it is the testator’s decision on which he would like to give his property to.

“Testacy is preferred over intestacy.” The law, as much as possible, gives primacy to the will of the testator. As part of the said underlying principle of primacy of the will of the testator, the law allows the testator to designate substitutions if he desires to do so.

Thus, according to law, if the testator wishes to designate a person as his heir, and at the same time, also wishes to designate the substitutes of his heir, he may do so, if it is expressly stated as safeguarded under our law. Otherwise, the standard grounds for substitution provided by law may suffice – repudiation, incapacity and predecease.

In all situations concerning succession, when there is doubt, it is always best to presume of the testator’s intention. Jurisprudence provides that “the intention of the testator is said to be the pole star to guide the construction of wills.”16

  1. Merriam Webster, Substitution meaning[]
  2. Article 1859, Civil Code of the Philippines[]
  3. Legal Information Institute, Cornell Law School[]
  4. Article 857, Civil Code of the Philippines[]
  5. Article 858, Civil Code of the Philippines[]
  6. Id.[][][][][][][]
  7. Articles 1024-1028, Civil Code of the Philippines[]
  8. Rabadilla vs. CA, G.R. No. 113725, June 29, 2000[]
  9. Article 867 (1), Civil Code of the Philippines[]
  10. Supra., Rabadilla vs. C. A.[]
  11. Article 867, Civil Code of the Philippines[]
  12. Brioso vs. Mariano, G.R. No. 132765, January 31, 2003[]
  13. Vda. de Salazar vs. Court of Appeals, G.R. No. 121510, November 23, 1995[]
  14. Dela Cruz, et al. vs. Joaquin G.R. NO. 162788, July 28, 2005[]
  15. Cardenas vs. Agular, et al., G.R. No. 191079, March 02, 2016[]
  16. Busby vs. Busby, 1 U. S. 226 [1787][]

RALB Law | RABR & Associates Law Firm

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