e.

A creditor of an HEIR (who is not the creditor of the DECEASED), who intervenes in the estate

WILLS AND SUCCESSION proceedings, cannot therefore ask the court to sell the properties which the HEIR-DEBTOR
expects to receive. This is because the debts of the DECEASED himself must fi rst be paid.
Then and only then can we determine if there is a suffi cient residue left for the HEIRS or for
the HEIRS’ CREDITORS.
GENERAL PROVISION
Jurisprudence on Properties
Article 774 1. a widow’s sale of conjugal property (owned after the husband’s death by herself and by the children), is
Article 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the not valid insofar as the children’s share is concerned. This is so even without a formal judicial
extent of the value of the inheritance, of a person are transmitted through his death to another or others either declaration of ownership of the children, for their rights accrued from the moment of the father’s death
by his will or by operation of law. 2. Generally, heirs may be sued, after the testator’s death, not as representatives of the decedent, but in
their own right as owners of an aliquot interest in the property in question. This is so even if the precise
Article 775 extent of their interest may still be undetermined. Generally also, they may be sued without a previous
Art. 775. In this Title, “decedent” is the general term applied to the person whose property is transmitted declaration of heirship
through succession, whether or not he left a will. If he left a will, he is also called the testator. 3. If involving properties of a deceased spouse, first determine if part of the conjugal properties. If part,
then the surviving spouses should agree as to the disposition of the properties. If not, then the special
Definition administrator can freely dispose the property. Any sale without the consent of the surviving spouse
1. Decedent- general term referring to a person whose estate is to be distributed shall be considered premature
a. Testator- has a will 4. If a wife sells conjugal land without the husband’s consent, the heirs may question the transaction but
b. Intestate- did not leave a will only after the death of the husband for it is only at that time when their right to the property becomes
choate
5. The CFI (now RTC) has no jurisdiction to pass finally and definitely upon the ownership of properties
Article 776 involved in probate proceedings or in the summary settlement of estates. The probate court may do so
Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished only for the purpose of determining whether or not a given property should be included in the inventory
by his death. of the estate of the deceased, but such determination is not conclusive and is still subject to a fi nal
decision in a separate action to be instituted between the parties.
Inheritance is the thing, succession is the manner.
Adminsitration only deals with the property of the deceased, sucession involves the transfer of property PFAM THROWBACK
beneficially. In an ACP and CPG: If the deceased spouse is survived by a spouse and compulsory heirs, the ACP, which has
been dissolved by such death, evolves into a co-ownership between the surviving spouse and the heirs on the
What is part of the inheritance? other. As a co-owner, the spouse or the heirs can undertake any act of dominion over their interest, share or
1. Property participation but not over a specific concrete property. It is only after liquidation that definable property can be
a. Real or personal claimed by and adjudged to the heirs from the remained of their property after satisfaction of all the obligation
b. Encompasses accessions accruing to the property from the time of death until actual receipt by which the community property has to pay. An action of partition may be the remedy in instances where some of
the transferee since ownership is transferred at the time of death the heirs sell the whole inherited but unliquidated property without the consent of the other heirs.
c. GR: Human corpse is not part of the estate hence cannot be inherited
d. Properties BELONING to the estate (actually owned by the decedent) Rights NOT extinguished Rights extinguished
2. Rights not extinguished by death Right to bring or continue an action for forcible entry intransmissible personal rights because of their
3. Obligation not extinguished by death (to the extent of the value of the inheritance) or unlawful detainer. nature
a. GR: All obligations are transmissible Right to compel the execution of a document right to claim acknowledgment or recognition as a
XPN: Purely personal obligation. necessary for convenience, provided that the contract natural child
b. Example: An heir still pays for the debts of his deceased father, but only if same can be is valid and enforceable under the Statute of Frauds.
covered by the inheritance. Thus, if a father leaves P100 million as assets and P20 million as Right to compel the execution of a document right to hold public or private office or job
debts, the heir really collects only P80 million. Upon the other hand, if the debt was P120 necessary for convenience, provided that the contract
million, the heir is not required to pay the balance of P20 million. is valid and enforceable under the Statute of Frauds.
c. The creditor cannot hold the heirs civilly liable. The remedy of the plaintiff, the creditor, is to Only so if the lessee-heir continues as lessee
proceed against the estate of the deceased father. Property right in an insurance policy unless the terms
d. The heirs are still required to perform the obligation of the deceased father to deliver a parcel otherwise provide
of land to the buyer.
 Ordinary presumption (Ordinary absence) Extraordinary presumption (Extraordinary
On the necessity of judicial administrator qualified absence)
 Judicial administration is not essential when the deceased left no pending obligations and the heirs An absentee (who disappears under normal 1. A person on board a vessel lost during a sea
and legatees are all of age, or the minors are represented by their judicial guardians. conditions, there being no danger or idea of death) voyage, or an aeroplane which is missing,
o Heirs may decide to have a joint administration, of if they so desire, may even by mutual shall be presumed dead for the purpose of opening who has not been heard of for four years
agreement, partition the property among themselves. his succession — at the end of ten years (at the since the loss of the vessel or aeroplane
 If the deceased left pending obligations, these must be first paid before the estate can be divided; and end of five years in case he disappeared after the 2. A person in the armed forces who has taken
unless the heirs reach an amicable settlement as to how such obligations should be settled, the estate age of seventy-five). part in war, and has been missing for four
would inevitably be submitted to administration for the payment of such debts. years
3. A person who has been in danger of death
under other circumstances and his existence
Art. 777 has not been known for four years
Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent.
The death shall be reckoned from the start of the
disappearance, not the last day of the four years.
Note: It is succession that transfers ownership, not the delivery of the inheritance. The rights to the
Wait for four years before you consider him
succession are transmitted to the heirs from the moment of death of their predecessor through
dead.
testamentary, intestate, or mixed succession (memorize by heart)
 The estate of the decedent would then be held in co-ownership by the heirs. The co-heir or co-owner
Effect of Absentee’s Return or Appearance (so recover lang if the heir acquired the property
may validly dispose of his share or interest in the property subject to the condition that the portion
through succession)
disposed of is eventually allotted to him in the division upon termination of the co-ownership.
 Recover the following:
 the effects of an acceptance (of the inheritance) retroact to the moment of death
o his property in the condition in which it may be found
 If there is repudiation, the effects of an acceptance (of the inheritance) retroact to the moment of
o price of any property that may have been alienated or the property acquired therewith
death. In such case, the property will be inherited by the State and will be considered patrimonial.
 Cannot recover the fruits or rent
Conditions for the transmission of successional rights  Be reimbursed only if the consumption is not made in good faith.
1. There has been a death (either actual or presumed)  NO RECOVERY if the heir, devisee, or legatee has acquired the property through prescription
2. Rights or properties are indeed transmissible (extraordinary prescription in view of the lack of a just title, there being no true succession).
3. The transferee is still alive (no predecease), willing (no repudiation), is capacitated to inherit.
Problem on spurious child
Jurisprudence  If the father died when the Civil Code was already effective, it is certain that the spurious child should
inherit, despite his being born under the old Code — there being no vested right of the legitimate
1. In the case of Suarez v. CA, the Court ruled that the unpaid creditor can only seize one-half of the 5
children that would be prejudiced. This is because the it is the father’s death that gives rise to the
parcels of land. This is because only ½ of the deceased’s lands are allotted to the debtor-spouse, the
succession.
other half belongs to the petitioner-heirs. Petitioners became co-owners of the property not because of
their mother but through their own right as children of their deceased father. This is in accordance with
Article 888 of the Civil Code which states that the legitime of the legitimate children and Timeline of transmission of rights
descendants consists of one-half of the hereditary estate of the father and of the mother. a. Before death: Heirs have an inchoate right only. Have no right of disposition or alienation over said
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of properties.
the surviving spouse as hereinafter provided.’’ If there are two or more legitimate children or b. After death:
descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the  the heirs own the property, subject to the decedent’s liabilities.
legitimate children or descendants. o Declaration of heirship must be made in an administration proceeding, and not in an
2. In Nufable v. Nufable, the Court ruled that the transfer of ownership is effected at the time of death independent civil action.
and not on the time of the admission of the Last Will and Testament or thereafter or the time of the o GR: judicial declaration of heirship is no longer necessary because the ownership is
approval fo the Settlement of Estate. transferred by operation of law)
XPN: judicial declaration of heirship is necessary if there are pending settlement proceedings
On presumed death for the distribution of an estate
 In both kinds of presumption, the succession is only of provisional character because there is always  they may dispose of the same, and this is so, even if, in the meantime, the property is under
the chance that the absentee may still be alive. Moreover, the presumptions regarding the time of administration.
death are rebuttable, that is, proof may be presented as to when death actually occurred. c. During the special administration
 an heir can sell whatever right, interest, or participation he may have in the property under
administration
 o if the seller-heir should die in the meantime — pending the said probate proceedings — the  The administrator can be held personally liable only for any malfeasance, maladministration or violation
validity of the sale should not be threshed out in a separate action of any of his duties as administrator.
 Heirs may redeem redeemable properties despite the presence of an administrator
 What is prohibited prior to such payment is the assignment or distribution of the residue of the On the possession of the administrators
deceased’s estate. - Admin can only possess the properties necessary for the debt and expenses of administration
d. Pending liquidation - When there are no debts to paid, estate should pass to the heirs.
 Heirs are entitled to certain allowance for their support, chargeable to the estate - Despite possession of the adminsitrators, the heirs are still the owners.
 May sell their share in the estate BASTA NAMATAY NA ANG DECEDENT. o For purposes of prescription, the time during which the property was being administered
should be counted in favor of the heir for then such heir would be a possessor in the concept
Definition Future inheritance (if future inheritance pa, di pa pwede isell sa heirs) of owner.
- Basta buhi pa ang person nagown sa property to be inherited o a sale made by an administrator is really a sale of the heir’s rights and properties, and
- any property or right not yet in existence or not yet capable of determination at the time a consequently said heirs cannot be deemed strangers to the sale.
contract is made which a person in the future may acquire by succession Case study: If heirs conceal the existence of other heirs and as a result of such concealment, the intestate
- proceedings should award them with property, the prejudiced heirs can still fi le an action to recover their
Note: a donation of said property after the predecessor’s death but before a judicial declaration of heirship, is shares, notwithstanding the termination of the settlement proceedings. This is because ownership of their shares
NOT a donation of “future property.” Hence, it is VALID. accrued to them automatically upon the decedent’s death.

Jurisprudence on transmissibility of rights The right of an heir or other person unduly deprived of his lawful participation in the estate to compel the
1. If a wife sells conjugal land without the husband’s consent, the heirs may question the transaction but settlement of the estate in the courts for the purpose of satisfying such lawful participation is effective only for a
only after the death of the husband for it is only at that time when their right to the property becomes period of two years.
choate. the heirs may question only insofar as their inherited share of the land is concerned.
2. a wife may properly dispose of her share of the conjugal properties, since this share is her own, not
future inheritance. It is not even accrued inheritance. It is indeed her own existing property.
3. a widow’s sale of conjugal property (owned after the husband’s death by herself and by the children), is ACCRUAL OF THE ESTATE TAX
not valid insofar as the children’s share is concerned. This is so even without a formal judicial  Jurisprudence provides that estate tax should be counted from the time of death even if the testator
declaration of ownership of the children, for their rights accrued from the moment of the father’s death. stipulated that only after 10 years from his death would the heirs own the properties.
4. Heirs may sue each other in their capacity as owners. They can sue only up to the extent of their  Estate tax is a tax not on the property itself but on the transmission (transfer or devolution) of
shares. the property.
5. If heirs conceal the existence of other heirs and as a result of such concealment, the intestate  The date the inheritance (estate) tax accrues is distinct from the date on which it must be paid.
proceedings should award them with property, the prejudiced heirs can still fi le an action to recover
their shares, notwithstanding the termination of the settlement proceedings. This is because ownership Estate tax Inheritance Tax
of their shares accrued to them automatically upon the decedent’s death. a virtual charge on the giver (the deceased) for the a charge on the recipient. The inheritance tax is paid
a. Have to bring the action within 2 years. transmission of the property on what is LEFT after the estate tax has been
deducted from the residuary estate.
ADMINISTRATORS VIS-À-VIS HEIRS
On the administration of the estate ORDER OF ADJUDICATION
 GR: No need to appoint admin if there are no pending debts and the heirs are of legal age.  Made by the Court towards the end of the testate proceedings
 If Court appoints an administrator, the heirs shall surrender the estate to the judicial administrator even  It is the judicial recognition that in appointing persons as heirs, legatees, or devisees, the testator did
if they already possessed the same. not contravene the law and the recipients were in no way disqualified to inherit in the same manner
 even if an administrator has already been appointed, the heirs still have the right to intervene in judicial that a fi nal order admitting a will to probate excludes the entire world from contending that the
proceedings, if they have reasons to believe that the administrator’s actuations are detrimental to their statutory formal requisites have not been observed in executing the will.
rights
o Heirs cannot intervene if the administrator fails to represent defenses in money claims. WAIVER OF INHERITANCE
o Unpaid creditors of the deceased may sue the adminsitratrix expecially in cases where the There is valid waiver if the hereditary right was already vested in the heirs. This right can be waived even if the
appointment of the regular administrator is delayed. actual extent of such share is not determined until the subsequent liquidation of the estate.
 The expenses of administration shall be borne by the properties under administration or the income
therefrom. ART. 778
 The administrator should render an accounting. This duty cannot be waived or disregarded.
Art. 778. Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed. (n)
 Compulsory heirs If entitled to the legitime (entitled only to his
OTHER KINDS OF SUCCESSION legitimes)
1. compulsory (or necessary or forced) succession — or succession to the legitime Voluntary Like a friend
a. Parents need to give legitimes but the heirs are not compelled to receive these legitimes. Legatees and Devisees succeed by particular title to cash or to a particular or
2. contractual succession — This happens when a future husband and future wife give to each other in specified item or thing in the inheritance
their marriage settlement as much of their future property, in the event of death, as they may validly Legatees they succeed to particular personal properties
dispose of in a will Devisees succeed to particular real properties (devises).
a. need not be in the form of a will as long as it is in writing Note: Transferees are called legal or intestate heirs

ART. 779 Heirs Legatees

Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed Preterition VOID VALID
in the form prescribed by law. (n) Disinheritance VOID VALID
What can be inherited whole or aliquot portion Individualized items of property
SOME RULES FOR TESTAMENTARY SUCCESSION Kinds Testatee, Legal or Mixed Exists only in testamentary
succession
(a) Testamentary succession may be done thru a will or thru a codicil.
(b) The will or codicil may be: DUAL STATUS OF A COMPULSORY HEIRS
(1) notarial (ordinary, attested, or acknowledged) Circumstances: Compulsory heir is given more than his legitime
(2) holographic (handwritten by the testator from beginning to end, complete with date and signature)
(c) In case of doubt, testamentary succession is preferred to legal or intestate succession. (See Art. 791). Effect of dual status:
1. With respect to legitime, compulsory heir
- If CH dies AHEAD of the testator, legitime is inherited by his own child
ART. 780 2. With respect to excess, voluntary heir
Art. 780. Mixed succession is that effected partly by will and partly by operation of law. (n) - If VH dies AHEAD of the testator, child gets nothing.

Note: if the will is declared void, the succession is considered legal because the will being void, the entire estate NB. There is no representation among voluntary heirs nor in the free portion.
descends to the heirs by operation of law. There is representation in the legitime but no representation in the free portion even if it is a
compulsory heir.
ART. 781
Art. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations DIFFERENCE BETWEEN ‘SALE’ AND ‘WAIVER OF HEREDITARY RIGHTS’
existing at the time of his death, but also those which have accrued thereto since the opening of the succession. (Acap v. CA)
(n)
Sale of Hereditary Rights Waiver of Hereditary Rights
What Inheritance Includes (in a will) presumes the existence of a contract or deed of sale a mode of extinction of ownership where there is an
1. the property, transmissible rights, and obligations (to the extent of the value of the inheritance) between the parties abdication or intentional relinquishment of a known
2. those which have accrued thereto since the opening of the succession (such as alluvium) right with knowledge of its existence and intention to
relinquish it, in favor of other persons who are co-
Note: After-acquired properties or thiose acquired by the testator between the time the will is made and the heirs in the succession.
time he dies, is NOT given to the designated heir unless the contrary has been expressly. It will be included in
the free portion. Contract of Sale Declaration of heirship and waiver of rights
one of the contracting parties obligates himself to operates as a public instrument when fi led with the
transfer the ownership of and to deliver a Registry of Deeds whereby the intestate heirs
ART. 782 determinate thing, and the other party to pay a price adjudicate and divide the estate left by the decedent
Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of law. certain in money or its equivalent. among themselves as they see fi t.
Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue  An extrajudicial settlement between the hers
of a will. (n) under Rule 74 of the Rules of Court
Heirs succeed by universal title, that is, to ALL or a
FRACTION or ALIQUOT PART of the properties, rights Nelia A. Constantino v. CA, et al.
and obligations)
The Case of Josefa Torres Who Died Intestate (Issue here is the validity of the Deed of Extrajudicial
Settlement of Estate with Sale)
Reasons why the Court annulled the document:
1. There was no contract because there was yet no meeting of the minds on the land area to be sold since
private respondents were still awaiting the survey to be conducted on the premises
2. All the elements of fraud vitiating consent for purposes of annulling a contract concur: (a) It was
employed by a contracting party upon the other; (b) It induced the other party to enter into the
contract; (c) It was serious; and (d) It resulted in damages and injury to the party seeking annulment

Note: It is in this case that the Court clarified that the Sales doctrine (the extrinsic validity of a document was
not affected by the fact that it was notarized in a place other than where the subject matter thereof was located)
is not applicable because the issue here is whether respondents indeed appeared before him and signed the
deed.

Sales Doctrine vis-à-vis Notarial Law

The extrinsic validity of a document was not affected by the fact that it was notarized in a place other than
where the subject matter thereof was located as long as the notary public has authority to acknowledge the
document executed within his territorial jurisdiction.

Lopez v. CA
Where an applicant for homestead did not acquire any vested right over the land and fully owning it at the time
of his death, his HEIRS did not inherit any property right from him. In one case, failure on the part of the Bureau
of Lands to act on the application up to the time of death of the applicant prevented his heirs to be subrogated
in all his rights and obligations with respect to the land applied for.
 TESTAMENTARY SUCCESSION Problem: A house was given to person but effective immediately. Is the disposition by a will?
SECTION 1. WILLS Answer: No because it is effective immediately. A will is effective after death of the testator. In this case, since
the disposition is effective immediately, the disposition is by virtue of a donation. Accordingly, the recipient
should signify his acceptance and have the instrument notarized as a public instrument for them to get the
WILLS IN GENERAL house immediately. The house will be disposed in accordance with the rules on legal succession IN CASE the
donation is not effective.
ART. 783
Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a
certain degree the disposition of his estate, to take effect after his death. (667a) ART. 784
Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a
Nature of a will third person, or accomplished through the instrumentality of an agent or attorney. (670a)
- Making of a will is a statutory right
- making of a will should be considered subordinated to both the law and public policy Will-making is personal insofar as the terms and conditions are concerned.
- Caneda v. CA: A will has been defi ned as species of conveyance whereby a person is permitted, with The drafting may be entrusted to another as long as it is consistent with the testator’s desires and all the
the formalities prescribed by law, to control to a certain degree the disposition of his estate after his formalities of the law are complied with
death.  For notarial will: Signing by the testator and the witnesses
- Reyes v. CA: All doubts must be resolved in favor of the testator’s having meant just what he said.  For holographic will: Copying by the testator in his own handwriting
- Rabadilla v. CA: A will is a personal, solemn, revocable, and free act by which a person disposes of his
property, to take effect after his death. a will cannot be the subject of a compromise agreement which Employing an Attorney is recommended but not really a requirement. The employment of attorney in drafting
would thereby defeat the very purpose of making a will. the will and being present at the time fo its execution only strengthens the presumption that the will was
regularly made.
Characteristics of a will
1. unilateral act—acceptance by transferee is not required while the testator is still alive, any acceptance ART. 785
made prematurely is useless.
Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination
2. Solemn or formal act—executed in accordance with the formalities prescribed by law
of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third
- The will may be made orally. oral contracts as valid and efficacious to bring about partition of a
person. (670a)
decedent’s estate among his heirs provided such partition does not affect the interest of third persons
3. Intent to make a will must be there
Example: If the testator says “I give my land to X for as long as my friend Y allows,’’ this would be a clear case
4. testator must be capacitated to make a will
of illegal delegation of testamentary power.
5. will is strictly a personal act in all matters that are essential.
6. Effective after death of the testator (mortis causa)
7. essentially revocable or ambulatory ART. 786
8. must have been executed freely, knowingly, and voluntarily Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money that
9. An individual act if excited by a Filipino, whether in the Philippines or abroad. he may leave in general to specified classes or causes, and also the designation of the persons, institutions or
10. Disposes of the testator’s estate (whether totally or partially) in accordance with his establishments to which such property or sums of money are to be given or applied. (671a)
wishes (“to a certain degree” only, because legitimes are reserved for compulsory heirs).
Difference between 785 and 756
Note: A will MAY OR MAY NOT dispose of property, either way valid. Ang difference lang kay need iprobate if 785: name of particular persons are given
THE WILL DISPOSES OF PROPERTY. 786: A class or a cause is what is specified
 There are wills that only name a person as executor or wills which recognizes a natural child.  Like the bar topnotchers of UC law will receive a car.

As to the liberality of a will What may be entrusted What may not be entrusted
Liberal unless certain conditions are imposed. In such cases, a will may be illiberal, especially if the burdens Distribution (partition or delivery) and the designation Kinsa ang heirs, devisees, or legatees (dapat ang
imposed are very onerous. of who will receive and how much testator ang muhatag sa names of particular
persons)
Will Testament
Disposes REAL property Disposes PERSONAL property
 ART. 787 be allowed,
Art. 787. The testator may not make a testamentary disposition in such manner that another person has to as this can
determine whether or not it is to be operative. (n) result in
fraud,
Example: “I institute X as my heir provided that my friend, Y will agree.” The institution of X is void, as well as confusion,
the participation or delegation of Y. and
unfairness to
the dead man
ART. 788 whose words
Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by may be
which the disposition is to be operative shall be preferred. (n) distorted or
perjured.).
General rules in interpreting: Patent of Extrinsic Ambiguity which appears I hereby institute some extrinsic evidence, as
1. Controlling interpretation is the intention and desires of the testator IF CLEARLY EXPRESSED IN THE Ambiguity on the face of the will of my seven brothers.” well as the will itself
WILL. itself. (It is evident here that may be examined to
2. Intestacy is preferred IN CASE OF AMBIGUITY. If the disposition is clearly illegal, that should not be we do not know how ascertain the testator’s
given effect. many of the brothers are intent, but if after
being instituted.) everything has been
done, the doubt still
ART. 789
remains, not one of
Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, the seven brothers will
mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic get as instituted heirs,
evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon because then, the
the face of the will, as to the application of any of its provisions, the testator’s intention is to be ascertained from heirs will be
the words of the will, taking into consideration the circumstances under which it was made, excluding such oral considered as
declarations. (n) unknown persons
under Art. 844, 2nd
KINDS OF AMBIGUITY IN A WILL par
Description Example How to Interpret Jurisprudence
Latent or Intrinsic Ambiguity that does not I institute my brother-in Examine: 1. Del Rosario v. Del Rosario: If a legatee is pointed out by name in the will, the fact that he is referred to
Ambiguity appear on the face of the law” (when it is 1. will itself as the natural son of a third person does not necessarily make the legacy conditional upon proof of
will and is discovered only discovered that I have 2. extrinsic such relationship, the reference being descriptive merely
by extrinsic evidence two brothers-inlaw). evidence 2. Rabadilla v., CA: Such construction as will sustain and uphold the will in all its parts must be adopted
such as
1. imperfect written
description of the declarations ART. 790
heir, legatee, or of the Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to
devisee testator use them in another sense can be gathered, and that other can be ascertained.
2. imperfect (NOTE —
description of the extrinsic Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary
gift being given evidence intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was
3. only one recipient taken from unacquainted with such technical sense. (675a)
is designated but the alleged
it turns out that ORAL General Rules
there are two or declarations 1. Ordinary words have their ordinary meanings
more who fit the of the - XPN: there is a clear intention that another meaning was used — provided that other meaning can be
description testator determined.
should NOT 2. Technical words have technical meanings
 - XPN: (1) there is a contrary intention ART. 793
(2) If it appears that the will was drafted by the testator alone, who did not know the technical
Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it
meaning.
at the time of making the will, should it expressly appear by the will that such was his intention. (n)
Note: An idiomatic translation is preferred to a literal translation since the former expresses more clearly the
GR: Only properties already properties already possessed and owned by the testator at the time the will was
testator’s desires.
made can be given by the will.
XPN: After-acquired properties may be given if:
IMPORTANT: In Rodriguez v. CA, the Court ruled that if the testator’s intention is manifest from the context of
a. it expressly appears in the will that it was the intention to give such “after-acquired”
the will and surrounding circumstances, but is obscured by inapt and inaccurate modes of expression, the
properties.
language will be subordinated to the intention; and in order to give effect to such intent, the court may depart
b. the will is republished or modified by a subsequent will or codicil (in which case, the properties
from the strict wording, and read a word or phrase in a sense different from that which is ordinarily attributed to
owned at the time of such republication or modification shall be given).
it, and for such purpose may mould or change the language of the will, such as by restricting its application or
c. at the time the testator made the will he erroneously thought that he owned certain
supplying omitted words or phrases.
properties, the gift of said properties will not be valid, unless after making the will, said
properties will belong to him.
Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect,
d. Legacies of credit or remission are effective only as regards that part of the credit or debt
rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will,
existing at the time of the death of the testator.
that is to be preferred which will prevent intestacy. (n)
ART. 794
INTERPRETATION AS A WHOLE Art. 794. Every devise or legacy shall convey all the interest which the testator could devise or bequeath in the
(1) The will must be interpreted as a whole. property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)
(2) While testacy is preferred over intestacy, this is true only if the will has been validly made.
RULES AS TO WHAT INTEREST MAY BE DISPOSED IN A DEVISE OR LEGACY
Case: Vda. De Villaflor v. Juico GR: The entire Interest of the testator
The issue here is WON the grandniece can inherit the testator’s property after the death of the testator’s wife. (so if the testator is the owner of a house and devises it to another, the entire ownership is transferred; if
The Court said yes because the will only granted the use and possession of the properties to the spouse while usufructuary lang sya, then rights of a usufructuary lang ang ma-pass)
living, not ownership. The clear intent of the testator being only to grant her a life interest or usufructuary XPN:
interest — an interest which could have ceased even during her lifetime had she remarried. 1. Art 794 He can convey a lesser interest if such intent clearly appears in the will.
2. Art. 929. Testator expressly declared that he gives the thing in its entirety (even if he only
PRIORITY OR PREFERENCE OF TESTATE OVER INTESTATE PROCEEDINGS owns a part of it) In this case, testator conveyed a greater interest
Case: Uriarte v. CFI a. Mode: purchase by the testator or his executor or administrator of the extra
1. Testate proceedings take precedence over intestate proceedings for the same purpose. interest
2. If in the course of intestate proceedings pending before the CFI (now RTC) it is found that the b. Mode: giving its equivalent value to the legatee or devisee.
decedent left a will, proceedings for the probate of the will should replace the intestate proceedings (in 3. Can even convey property which he very well know does not belong to him (See Arts. 930 and 931),
the same court), even if at that stage, an administrator had already been appointed, the latter being provided that it also does not belong to the legatee or devisee
required to render his final accounts and to turn over the estate to the executor subsequently named. a. Under Art 931, pwede suguon sa testator iyang heirs napaliton tung thing nga iya ihatag sa
This is without prejudice to the fact that if, the will be disallowed, the intestate proceedings should be devisee or legatee. if the owner of the thing refuses to alienate the same or demands an
resumed. excessive price therefor, the heirs or the estate shall only be obliged to give the just value of
(stop the intestate, testate proceedings commence, administrator renders final accounting, executor the thing
takes over, if will is void, intestate resumed) b. If the testator thought the property was his, although it is not really his, the legacy or devise is
void, unless the property subsequently becomes his
ART. 792
Art. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the ART. 795
other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if Art. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is
the fi rst invalid disposition had not been made. (n) made. (n)

GR: Invalkidity of one does not invalidate the others Kinds of Validity Definition Examples Viewpoint of Viewpoint of Place
XPN: Unless the provisions are INDIVISIBLE Time
Extrinsic Refers to the forms number of law in force at the If Filo testator:
 and solemnities witnesses to a will; time the will is 1. Ph laws RENVOI)
needed the kind of MADE OR
instrument — 2. Country
whether public or where he TN: the renvoi law is only applicable if the decedent is a national of one country and domiciled in
private may be OR another.
3. Country
where he GR: Real property as well as personal property is subject to the law of the country where it is situated.
executes XPN: Intestate and testamentary succession, both with respect to: 1) the order of succession 2) the
the will amount of successional rights 3) and the intrinsic validity of testamentary provisions 4) capacity to
If testator is an succeed shall be regulated by the national law of the person whose succession is under consideration,
ALIEN AND is whatever may be the nature of the property, and regardless of the country wherein said property may be found.
ABROAD:
1. Law of his What if a foreigner stated in his will (will is made in the Philippines) that the PH laws shall govern the order of
domicile succession, what happens to the will?
OR  Void because it is contrary to Art 16 of the CC. Jurisprudence teaches us that a provision in a
2. Nationality foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and
or PH laws not with his national law, is illegal and void, for his national law cannot be ignored in regard to those
3. Where he matters that Article 10 — now Article 16 — of the Civil Code states said national law should govern.
executes
the will Note: California conflict rules provide that the successional rights shall be governed by the law of the place of
If testator is an domicile — i.e., the Philippines — we should apply our internal law on wills and succession to avoid “international
ALIEN AND in the football.” In effect, we would be accepting the RENVOI.
PH:
1. follow the
law of his
TESTAMENTARY CAPACITY AND INTENT
nationality
2. the laws of Testamentary Capacity Testamentary power
the right to make a will provided certain conditions are Statutory right to dispose of property by acts
Philippines complied with; namely that: effective mortis causa (a right given usually as a
Intrinsic refers to the whether or not the law in force at the National law of 1. the testator is not prohibited by law to consequence of ownership and respect for family
legality of the omission of a child time of the the DECEDENT make a will (Art. 796); that the testator relations).
provisions in an in the will renders DECEDENT’S (law of his country or is at least 18 years of age (Art. 797);
instrument, the whole will void; DEATH. nationality) 2. and that the testator be of “sound mind”
contract or will whether or not a at the time of the execution of the will
[disposition in favor National law of if the conflict rules (Art. 798), “soundness of mind” being
of a friend impairs the decedent at under the national present when the testator knows the
the legitime; the time of his law of the deceased NATURE of the estate to be disposed
whether or not a death. refer the matter to of, the PROPER OBJECTS of his
compulsory heir the law of the BOUNTY, and the character of the
has been given his domicile and the TESTAMENTARY ACT. (Art. 799).
rightful share foreigner was Capacity to receive by virtue of a will Capacity to make a will or codicil
domiciled in the (testamentifcaccion passive) (testamentifccion passive)
Philippines at the ability of one to make a will privilege granted by the law to someone to make a
moment of death, will
our courts will have
to apply the ART. 796
Philippine internal Art. 796. All persons who are not expressly prohibited by law may make a will. (662)
law on succession
(ACCEPT THE Two major qualifications
 1. 18 years old or over; Forgetfulness is not equivalent to being of unsound mind. Besides, Article 799 of the New Civil
2. soundness of mind at the time the will is made. Code states:
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his
The following ARE ALLOWED: reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease,
1. spendthrifts or prodigals, even if under guardianship injury or other cause.
2. A convict under civil interdiction is allowed to make a will. This is because civil interdiction prohibits a It shall be sufficient if the testator was able at the time of making the will to know the nature of
disposition of property inter vivos, not mortis causa. the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.The testimony of subscribing witnesses to a Will concerning the testator's mental
ART. 798 condition is entitled to great weight where they are truthful and intelligent.
Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n)
Vitug v. CA, 183 SCRA 755, 758 (1990)
Soundness of mind
1. sound and disposing mind at the time of its execution Context: the widow withdrew funds from their conjugal bank account as reimbursement for the
2. had freely executed the will and was not acting under duress, fraud, menace or undue influence money he advanced to the estate
3. will is genuine and not a forgery Ruling: The spouses are not prohibited by law to invest conjugal property, say, by way of a joint
4. was of the proper testamentary age and several bank account, more commonly denominated in banking parlance as an "and/or"
5. he is a person not expressly prohibited by law from making a will. account. In the case at bar, when the spouses Vitug opened savings account No. 35342-038, they
merely put what rightfully belonged to them in a money-making venture. They did not dispose of it
in favor of the other, which would have arguably been sanctionable as a prohibited donation. And
ART. 799 since the funds were conjugal, it can not be said that one spouse could have pressured the other in
Requirement of soundness of mind: placing his or her deposits in the money pool.
1. testator knows the nature of the estate to be disposed of (character, ownership of what he is
giving)
2. testator knows the proper objects of his bounty (by persons who for some reason expect to inherit Torres vs. Lopez, 48 Phil 772
something from him — like his children)
3. testator knows the character of the testamentary act (that it is really a will, that it is a disposition Neither old age, physical infirmities, feebleness of mind, weakness of the memory, the
mortis causa, that it is essentially revocable) appointment of a guardian, nor eccentricities are sufficient singly or jointly to show testamentary
incapacity. The nature and rationality of the will is of some practical utility in determining capacity.
ASSIGNED CASES The presumption is that every adult is sane. But where the question of insanity is put in issue in
Case study: Bettis et al v. CA guardianship proceedings, and a guardian is named for the person alleged to be incapacitated, a
presumption of the mental infirmity of the ward is created; the burden of proving sanity in such
case is cast upon the proponents of the will.
Failure to submit the holographic will to probate during his lifetime is not an indicia to any defect
in the requisite testamentary capacity. The test of testamentary capacity is at the time of the
The effect of an order naming a guardian for an incapacitated person is not conclusive with respect
making of the will. Mere weakness of mind or partial imbecility from disease of body or from age
to the condition of the person. The decree does not conclusively show that the testamentary
does not render a person incapable of making a will.
capacity of a person under guardianship is entirely destroyed. The presumption created by the
appointment of a guardian may be overcome by evidence proving that such person at the time he
Ortega v. Valmonte, G.R. No. 157451, December 16, 2005 executed a will was in fact of sound and disposing mind and memory.

Sespite his advanced age, he was still able to identify accurately the kinds of property he owned, On January 3, 1924, when the testator, Tomas Rodriguez, made his will, he was 76 years old, physically
the extent of his shares in them and even their locations. As regards the proper objects of his decrepit, weak of intellect, suffering from a loss of memory, had a guardian of his person and his property, and
bounty, it was sufficient that he identified his wife as sole beneficiary. As we have stated earlier, was eccentric, but he still possessed that spark of reason and of life, that strength of mind to form a fixed
the omission of some relatives from the will did not affect its formal validity. There being no intention and to summon his enfeebled thoughts to enforce that intention, which the law terms "testamentary
showing of fraud in its execution, intent in its disposition becomes irrelevant. capacity." Two of the subscribing witnesses testified clearly to the regular manner in which the will was
executed, and one did not. The attending physician and three other doctors who were present at the execution
of the will expressed opinions entirely favorable to the capacity of the testator. Three other members of the
Baltazar, et al. v. Laxa, G.R. No. 174489, April 11, 2012 medical profession expressed opinions entirely unfavorable to the capacity of the testator and certified that he
was of unsound mind.
 - DOES NOT need an attestation clause or
Senility Senile dementia acknowledgement (NO NEED OF WITNESS)
Produces unsound mind if advanced or absolute Is not necessarily of unsound mind
ART. 804
Manifestation of unsoundness of mind
Art 804 recognizes written wills only.
1. religious delusion resulting in the unsettling of judgment.
2. blind extraordinary belief in spirits while executing a will.
On handwriting and handwritten experts
3. monomania (insanity on a single subject) — if this happens to be on the subject of wills or succession.
Handwriting may be proven by any witness who believes it to be the handwriting of such person
4. insane delusions — belief in things which no rational mind would believe to exist
because he has seen the persons write, or has seen writing purporting to be his upon which the witness has
5. idiocy — congenital intellectual deficiency
acted or has been charged and has thus acquired knowledge of the handwriting of such person.
6. a comatose stage, resulting from hypertension and cerebral thrombosis, and preventing the testator
 Handwriting experts are not indispensable requirements but they can be useful in
from talking or understanding.
7. State of delirium examining forged documents

NB Any contractual agreement entered into may be deemed valid and enforceable even if it is the
ART. 800. PRESUMPTION OF INSANITY form of an e-document EXCEPT IN THE EXECUTION OF A WILL.
Instances when the testator is presumed insane
1. If the testator, one month or less before making the will was publicly known to be insane
(anyone who maintains the will’s validity must show that the will was made during lucid interval) ART. 805
2. If the testator made the will after he had been judicially declared insane and before such
judicial order had been set aside. N.B. It is the attestation clause which contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses, AND NOT THE TESTATOR, who are
No presumption of insanity in the following cases: required under art. 805 of the new civil code to state the number of pages used upon which the will
1. Presence of mere delirium/intoxication since this is temporary was written.
2. Insanity of the parents and children of the testator
Requirements for a Notarial or Ordinary Will
Evidence of soundness of mind 1. Testator must have the capacity to make a will
GR: Attesting or subscribing witness’ testimony > non-attending physician 2. Will must be in writing
XPN: Physician’s testimony be given weight if he was constantly near the testator AND if he actually saw 3. The will must be executed in a language or dialect known to the testator
the latter on the date of the execution. - There is a prima facie presumption that the testator speaks the language of the place where he resides.
Extrinsic evidence is allowed to prove that the testator knew the will’s language. Jurisprudence instructs
us that where the formal requisites for the validity of the will have been satisfactorily established,
ART. 802-803 WIFE’S WILL AND WHAT SHE CAN DISPOSED OF except the language requirement, the parties should be afforded, in the interest of justice, an
Wife can make her will without the consent of the husband and the court. opportunity to present evidence, if they so desire, on this controverted issue.

What can be disposed by the wife? The fact that the testator knew the will’s language need not appear on the face of the will.
1. Her husband’s capital provided that she knows that the same is not hers AND intends to have Extrinsic evidence is allowed to prove this.
administrator or executor purchase the same from her husband (generally she cannot dispose her
husband’s capital)
4. Must be subscribed at the end thereof by either (1) testator himself; OR (2) testator’s name
2. The wife can only dispose the entire ownership of the conjugal house if if in the liquidation proceedings
written by another person in his presence, and by his express direction.
the house is awarded entirely to the wife’s estate (the husband receiving some other property, like
5. Must be attested and subscribed by three or more credible witnesses in the presence of the
cash)
testator and of one another.
FORMS OF WILLS 6. The testator or the person requested by him to write his name, and the instrumental
witnesses of the will shall sign each and every page thereof except the last on the left
KINDS OF WILLS UNDER THE CIVIL CODE margin
Ordinary or notarial will Holograph or holographic will
requires, among other things, an attestation - written entirely, from the date to the The absence of the signature or the thumbmark of the testator even with the signatures of the
clause, and acknowledgment before a notary signature, in the handwriting of the three instrumental witnesses constitutes a fatal defect. However, if through the inadvertence or
public. testator negligence of one of the three witnesses, he forgets to rign on the third parge of a 5-paged will,
but was able to sign on all the pages of the duplicate, the omission ought not to be considered a
fatal defect.
ASSIGNED CASES
7. All the pages shall be numbered correlatively in letters placed on the upper part of each Nera v. Rimando, 18 Phil 451 (1911)
page. The position of testator and of the witnesses to a will, at the moment of the subscription by each,
8. The contents of the attestation clause must be complied with. must be such that they may see each other sign if they choose to do so. If one subscribing witness
9. Art. 806 (acknowledgment before notary public) to a will is shown to have been in an outer room at the time when the testator and the other
10. Arts. 807 and 808 (special cases — when the testator is deaf, mute, or blind). witnesses attach their signatures to the instrument in an inner room, the will would be held invalid
— the attaching of the said signatures, under such circumstances, not being done "in the presence"
RULES ON SUBSCRIPTION of the witness in the outer room.
1. If the will is not signed at the end, VOID! (end=logical)
a. If after the signature there are additional clauses or provisions, the whole will from b. Express direction
beginning to end is INVALID. o may be given by the testator even without using words — mere clear gestures or motions or
2. First name without last name is VALID conduct is sufficient.
3. Misspelled, abbreviated, or by nickname, or by “Father” or “Mother,” or in an assumed c. Attestation and subscription
name is VALID provided that testator intended it to be his signature o Attestation—witnessing the testator’s execution of the will in order to see and take
4. Testator can sign with his thumbmark or even with a rubber stamp as long as he intends that to be his note mentally that those things are done which the statute requires for the
signature. Valid gihapon even if someone guided his hand. execution of a will and that the signature of the testator exists as a fact. (act of the
o Even if a person knows how to write his name, he can still sign by the use of a mark. senses)
5. Testator can sign with a mere cross if he intends that to be his signature.  ACT OF ATTESTING + PROOF ATTESTING THROUGH THE ATTESTATION CLAUSE
o Invalid ang cross as a signature if: (1) someone else wrote the testator’s name (2) cross is o Subscription—signing of the witnesses’ names upon the same paper for the purpose of
NOT the usual signature of the testator; (3) the will DID NOT state that someone else wrote identifying such paper as the will which was executed by the testator. (act of the
the cross hand)
6. The signing by another may be done as follows: “For the testator, Mr. Ty by Miss Ty,’’ or “Mr. Ty, by
Miss Ty.’’
o THIS SHOULD BE DONE: (1) IN THE LATTER’S PRESENCE; AND (2) AT THE LATTER’S ASSIGNED CASES
EXPRESS DIRECTION Balonan v. Abellana 109 Phil 358 (1960)
 TESTATOR’S PRESENCEnot necessarily mean that the testator must actually see
the signing; it is enough that he could have done so, or felt it A will subscribed at the end thereof by some person other than the testator in such manner that
 EXPRESS DIRECTIONdelegate must be expressly authorized to do so. May the signature of said person appears above the typewritten statement "Por la Testadora Anacleta
be given by6 mere clear gesture or motions or conduct. Abellana . . . Ciudad de Zamboanga," may not be admitted to probate for failure to comply with the
o The other person need not place his name as long as he puts the name of the testator. express requirement of the law that the testator must himself sign the will or that his name be
o if he puts down his own name, and omits that of the testator, this would be a substantial affixed thereto by some other person in his presence and by his express direction.
violation of the law and would render the will invalid.
7. If the person who signs the name of the testator is one of the subscribing witnesses, this is all right. Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall
be signed in the following manner:
Breaking down the elements for a valid delegation
'John Doe by the testator, Richard Roe; or in this form: 'By the testator, John Doe, Richard Roe.' All
a. Testator’s presence this must be written by the witness signing at the request of the testator.
o does not necessarily mean that the testator must actually see the signing
o if the testator is blind, the presence may be complied with if the signing or action is within the Failure to comply with the law is a substantial defect which affects the validity of the will and
range of the other sense (TEST OF AVAILABLE SENSES) precludes its allowance, notwithstanding the fact that no one appeared to oppose it.
o enough that he could have done so, or felt it without any physical obstruction, had he
wanted to. If naay physical obstruction, invalid na. (for example naay curtain separating the
Garcia v. Lacuesta, 90 Phil 489 (1951)
witnesses and the testator)
o if the TR brings to the witnesses’ attention an already signe document, the requriemetns of
the law have not been complied with. BASTA ANG IMPORTANT THE TESTATOR SIGNED When the testator expressly caused another to sign the former's name, this fact must be recited in
BEFORE THE WITNESSES, THE WITNESSES MAY SIGN AHEAD OR AFTER THE TESTATOR. the attestation clause. Otherwise, the will is fatally defective. In this case, there is a failure to to
state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his a. Even if not in the attestation itself, if the number of pages is put down somewhere else in the
express direction. The argument that the testator signed with a cross is not tenable since the cross will, as long as no evidence aliunde or extrinsic evidence is required, there is deemed
appearing on a will is not the usual signature of the testator. substantial compliance with the law.
5. [Jurisprudence provides that] If the attestation clause fails to state that the testator signed
Rules on Attestation the will in the presence of the witnesses, the will is void unless in some other part of the will,
o Contents of the last page such a statement is made.
 No more marginal signatures o (cannot be proven by evidence aliunde because evidence aliunde can only prove defects and
 Contains ONLY the attestation clause, the testator need not sign on the margin imperfections in the form of attestation or in the language used therein)

o If the whole will including the attestation clause, consists of only one page, no marginal signatures are 6. The witnesses are not required to know the language of the attestation clause. It is
needed since these would be purposeless as the page already has, at the end thereof, all the necessary sufficient that it be transalated to them.
signatures 7. The defects in the attestation clause can be cured or supplied by the text of the will or a consideration
o Even if the law requires left margin, pwede ra RTB. of matters apparent therefrom which would provide the data not expressed in the attestation clause or
o Absence of marginal signatures is a fatal defect. even if the second page bears the signature or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted
textural requirements were actually complied with in the execution of the will.
thumbmark, as the case may be, of the testator, but absent on said first page, the will cannot be
8. The attestation clause of an ordinary or attested will, which does not form part of the testamentary
admitted to probate.
disposition, need not be written in a language or dialect known to the testator.
o The attestation is, properly speaking, not part of the will itself, but same may of course be incorporated into
the will itself OR be written on a separate page. This means that the testator need not know the
Qualifications of a witness for the attestation
language of the attestation clause.
1. one possessed of the qualifications imposed by law
2. must be able or competent to testify.
Purposes of the attestation clause
3. can sign with a cross or a mark, provided that such is the usual signature AND really knows how to
1. To preserve in permanent form a record of the facts attending the execution of the will so that in
read and write
case of failure of the memory of the subscribing witnesses, or any other casualty, they may still be
proved.
Rules on pages
2. To render available proof that there has been a compliance with the statutory requisites for
1. it has been held that “the omission to put a page number on a sheet if that be necessary, may be
the execution of the will.
supplied by other forms of identification more trustworthy than the conventional numeral words or
3. To minimize the commission of fraud or undue influence
characters.”
2. Not necessary to number the first page nor even the last page as long as:
Testate Estate of A. Ledesma Case a. It is stated in the attestation clause na the will consists of three pages, besides this one”
While the attesting must be done in the presence of all, the act of acknowledging before the notary b. If the last page contains solely the attestation clause
public does not have to be contemporaneous. It does not even have to be done in the presence of
all of them, since the law does not mention this as a requirement; neither does the law require that Other Rules on Formalities of Notarial Wills
execution and acknowledgement of a will be made on the same day. 1. not necessary that the notarial will be dated (holographic will needs to be dated)
2. not essential that the will has to be read to the witnesses, or that they know their contents
Anatomy of an Attestation Clause 3. not essential to state the place where the will is being made or executed.
1. number of pages used 4. not essential to state in the attestation clause that the person delegated by the testator to
2. testator signed (or expressly caused another person to sign) the will and every page thereof in sign in his behalf did so in the presence of the testator (can be proved in Court)
the presence of the instrumental witnesses 5. failure to affix a 30-centavo documentary stamp on a will is NOT a fatal defect
3. the instrumental witnesses witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another. ART. 806. NECESSITY OF ACKNOWLEDGEMENT IN NOTARIAL WILLS
Rules on attestation clause Acknowledgment—act of one who has executed a deed in going before some competent officer or
1. Absence of the attestation clause is a fatal defect. court and declaring it to be his act or deed. An extra-step whereby the signor actually declared to
2. If the attestation clause is not signed by the attesting witnesses at the bottom thereof, the the notary that the executor of the document has attested to the notary that the same is his own
will is void since omission negates the participation of said witnesses free act and deed.
3. Attestation clause is an act of the witnesses; hence, it need not contain the signature of the
testator.
4. The failure of the attestation clause to state the number of pages is a fatal defect Gonzales v. CA.
If the will is acknowledged before a notary public, there is, in its favor, the presumption of Q: Should the will of a blind person be signed and executed in the presence of the NP?
regularity. A: It would be practicable to do so in order for the blind man to have the benefit of the NP’s
participation even before he signs the will.
Azuela v. CA.
A notarial will not acknowledged before a notary public by testator and the witnesses is fatally Q: If a testator is a deaf-mute and also blind, may he still make a will?
defective. This is even if it is subscribed and sworn to before a notary public. A: No, unless in some way, the contents thereof may be properly be communicate to him in
accordance with the legal requirements.

Case Study: Maglasang v. Cabatingan ART. 809. EFFECT OF SUBSTANTIAL COMPLIANCE

Jurisprudence provides that one of the decisive characteristics of a donation mortis causa is that the transfer
should be considered void if the donor should survive the done. So if it is a donation MC, the same partake
WHAT CAN ONLY BE CURED BY SUBSTANTIAL COMPLIANCE
of the nature of testamentary provisions (Art. 728) and as such, said deeds must be executed in
1. Defects and imperfections in the form of the attestation
accordance with the requisites on solemnities of wills and testaments under Arts. 805 and 806
2. Defects and imperfection in the language used therein.
Intervention of a Notary Public Defects of substance can be cured only by evidence WITHIN the will itself — not by evidence aliunde (extrinsic
1. NP’s presence is required only for acknowledgment. evidence).
2. NP cannot be one of the three instrumental witnesses
3. NP not required to read the will or know the contents UNLESS the testator permits him to As to the silence on the number of pages in the attestation clause
do so.  If wa jud at all—fatal defect, cannot be cured by substantial compliance rule
o NP is not the person acknowledging the will, it is he before whom it is acknowledged.  If naay page number pero not written on the attestation clause but only somewhere else in the will—
substantial compliance rule applies.
Cruz v. Villasor et al
The NP before whom the will is acknowledged cannot be one of the 3 witnesses to said will, in view Azuela v. CA
of the absurdity of one person acknowledging something before himself.
The failure of the attestation clause to state the number of pages on which the will was written
Rules on Acknowledgment remains a fatal flaw, despite article 809 of the new Civil Code. There is substantial compliance with
1. The testator and the instrumental witnesses do not have to make the acknowledgment in the presence this requirement if the will states elsewhere in it how many pages it is comprised of.
of one another (sa attestation ra need nga they are in each other’s presence)
2. it is the subscribing or attesting witnesses who should acknowledge together with the testator
3. A NOTARIAL WILL IS NOT A PUBLIC INSTRUMENT ASSIGNED CASES
a) Tender care rule
• Roxas v. De Jesus Jr., G.R. No. 38338, January 28, 1985
ART. 807. DEAF/DEAF-MUTE TESTATOR
Rules when testator is deaf or deaf-mute The law has a tender regard for the will of the testator expressed in his last will and testament on
1. if deaf or deaf-mute: must personally read the will the ground that any disposition made by the testator is better than that which the law can make.
2. if illiterate/or unable to read: two other persons must read it to him. For this reason, intestate succession is nothing more than a disposition based upon the presumed
a. The two persons need not be the witnesses will of the decedent. If the testator, in executing his Will, attempts to comply with all the
b. The act of reading need not be stated in the attestation clause as long as it can be proved requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be
before the court. accomplished by such requisite is actually attained by the form followed by the testator.

As to the necessity of a complete date

ART. 808. BLIND TESTATOR In particular, a complete date is required to provide against such contingencies as that of two
competing Wills executed on the same day, or of a testator becoming insane on the day on which a
Alvarado v. Gaviola Jr. Will was executed.
Art 808 of the Civil Code applies not only to the blind testators but also to those who, for one
reason or another, are incapable of reading their wills. As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is whether 1. No witnesses are required (presence thereof would not invalidate the HW but they will be considered as
or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 mere supplages)
of the Civil Code, probate of the holographic Will should be allowed under the principle of 2. No marginal signatures on the pages and acknowledgment are required
substantial compliance. 3. Art 814
4. May be made even by a blind testator, as long as he is literate, at least 18, and possessed of a sound
mind.
ART. 810 HOLOGRAPHIC WILL 5. Draft may be written by someone but the writing of HW should be done by the testator and they DATE
AND SIGN IT
Definition holographic will under Caneda v. CA 6. May be made in or out of the Philippines
HW is one entirely written, dated, and signed by the hand of the testator.
Case study: Ajero v. CA
In the execution of the HW, the testator may either The will is invalidated if unauthorized alterations, cancellations or insertion were made either on
1. Divulge its contents OR the date of the holographic will or on testator’s signature
2. Keep them secret as he may please, and thus he may execute what other codes call public notarial,
mystic, secret or closed will. 4 issues to be resolved before the petition to admit a holographic will to probate is granted
1. Whether the instrument submitted is, indeed, the decedent’s last will and testament
FORMALITIES FOR A HOLOGRAPHIC WILL 2. Whether said will was executed in accordance with the formalities prescribed by law
1. language must be known to the testator 3. Whether the decedent had the necessary testamentary capacity at the time the will was
2. The will must be entirely written in the hand of the testator himself. executed
3. Must be dated 4. Whether its signing was the voluntary act of the decedent
o NO DATEVOID
o Date must be handwritten
o Must be complete (year, month, and day) ASSIGNED CASES
 Principle of substantial compliance would apply bad faith, undue influence and
Kalaw v. Relova, 132 SCRA 237 (1984)
pressue are absent
o GR: Must be correct and true
XPN: Incorrect date may be valid if it was not made in bad faith and not made deliberately and Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
the authenticity of the will is established holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as
4. Must be signed a whole, but at most only as respects the particular words erased, corrected or interlined.
o full or customary signature is needed, hence, the full name is not required
In this case, the erasure pertains to the only provision, which is the naming of the heir, and such
o must appear at the end of the will.
was alterered through substituting another heir. The court ruled that insertions, cancellations,
5. There must be animus testandi
erasures or alterations in a holographic Will regarding a substantial provision affect only the
o Will in a form of a letter is alright
efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is,
o Testamentary dispositions or probable property dispositions cannot be considered as HWs with the erasures, cancellations and alterations made by the testatrix herein, her real intention
6. Must be executed at the time that the HW are allowed, not before, the time of death being immaterial. cannot be determined with certitude.

Vda. De Enriquez et al v. Abadia et al Labrador v. CA, 184 SCRA 170 (1990); G.R. No. L-83843-44, April 5, 1990
If during the time the HW is executed such was not allowed, the will should not be allowed
because under Art 795, the extrinsic validity of a will should be judged not by the law existing at
the time of the TR’s death nor the law at the time of probate, but by the law existing at he time of The law does not specify a particular location where the date should be placed in the will. The only
the execution of the instrument. requirements are that the date be in the will itself and executed in the hand of the testator. These
requirements are present in the subject will.

Q1: May a HW be made in or out of the PH

A1: A HW must be entirely written, dated, and signed by the hand of the TR himself. It is subject to Roxas v. De Jesus, Jr. G.R. No. L-38338, January 28, 1985
no other form and may be made in or out of the Ph and need not be witnessed.
Art. 808 applies not only to blind testators but also to those who, for one reason or another, are
Other features of the HW "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final
drafts of his will and codicil on the separate occasions of their execution due to his "poor,"
"defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido
Alvarado comes within the scope of the term "blind" as it is used in Art. 808. ART. 814. AUTHENTICATION OF CORRECTION BY FULL SIGNATURE
The rationale behind the requirement of reading the will to the testator if he is blind or incapable of
Q1: There is an alteration without the full signature, is the whole will void?
reading the will himself (as when he is illiterate), is to make the provisions thereof known to him,
A1: No, only the alteration is void. However, if what was altered was the date or the signature, the
so that he may be able to object if they are not in accordance with his wishes. That the aim of the
alteration without the full signature makes the whole will void.
law is to insure that the dispositions of the will are properly communicated to and understood by
the handicapped testator, thus making them truly reflective of his desire, is evidenced by the
requirement that the will should be read to the latter, not only once but twice, by two different ART. 813. RULES OF CURING DEFECTS
persons, and that the witnesses have to act within the range of his (the testator's) other senses. Effects if the last disposition is SIGNED AND DATED
1. Those preceding dispositions SIGNED but not dated ARE VALIDATED
A single reading of the will constitutes a substantial compliance with article 808. In the case at bar, 2. Those lacking both REMAINS VOID UNLESS written on the same date as the last disposition
private respondent read the testator's will and codicil aloud in the presence of the testator, his three 3. Those not signed but dated remains void
instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being
asked, that the contents read corresponded with his instructions. Only then did the signing and Effects if the last disposition is signed BY TR HIMSELF
acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the 1. Without consent—void dispositions remain void but valid sipositions remain valid
will and codicil were not sufficiently made known and communicated to the testator. Moreover, it was not only 2. With consent—same as above
Atty. Rino who read the documents on 5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the
ART. 815. FORMALITIES OF WILLS EXECUTED BY FILIPINOS ABROAD
notary public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's
physician) asked the testator whether the contents of the documents were of his own free will. Brigido answered Q1: a Filipino citizen residing temporarily in Oregon, State of Washington (U.S.), executed a will in
in the affirmative. accordance with the laws of said state. Assuming the testator returns to the Philippines and dies
here without modifying or executing a new will in accordance with Philippine laws, how shall his
estate be dealt with, testate or intestate? Explain your answer mentioning the pertinent legal
provisions and authorities.
ART. 811:PROBATE OF HOLOGRAPHIC WILLS
A1: The succession will be testamentary, since under Art. 815 he is allowed to make a will in any of
Definition of Probate: allowance of a will by the court after its due execution has been proved. the forms allowed in the foreign state where he may be. The will he executed in Washington may
 Proof of identity of the signature and handwriting of the TR is important, otherwise the will cannot be indeed be probated in the Philippines. Of course, the intrinsic validity of the provisions of his will,
valid. the amount of successional rights, and the order of succession will have to be governed by his
national law, that is, the Philippine law on succession.
Uncontested Contested
At least 1 identifying witness is required to avoid the At least 3 such identifying witnesses should be Q2: Will is probated abroad, should it be probated here?
possibility of fraud required. A2: No, but the fact that will has been probated abroad should be proven in the PH courts, In the
Experts may be resorted to Expert may be called upon otherwise the will of the absence of contrary proof, foreign laws on the formalities of a will are presumed to be the same as
TR may be frustrated through no fault his own. those existing in the Philippines. Additionally, if there is no proof regarding the foreign law of
probate procedure and no proof that the foreign court that approved the will is indeed a probate
General rule in probate: Exhaust all available lines of inquiry court, it will be presumed that the proceedings in the matter of probate in said court are the same
- no unfavorable inference can be drawn from the party’s failure to offer expert evidence, until and as those provided for under Philippine laws.
unless the court expresses dissatisfaction with the testimony of the lay witnesses
- even if ordinary witnesses are available, still if they are unconvincing, the court may still, and in fact Q3: [in relation to Q2] What if the will is made abroad?
should resort to handwriting experts A3: Prove that the will has been properly executed in accordance with the law established in said
Lost or Destroyed HW foreign country, and probate here.
- can never be probated because the BEST and ONLY evidence therefor is the HANDWRITING of the

-
testator in SAID will.
the probate of a lost or destroyed will referred to in the last paragraph of Art. 830 can only refer to a
ASSIGNED CASES
notarial, not a holographic will Salud Vda. De Perez v. Hon. Tolete, 232 SCRA 722, G.R. No. 76714 June 2, 1994
- NB: a photostatic copy of the holographic will may be allowed because here, there can be a
COMPARISON.
The respective wills of the Cunanan spouses, who were American citizens, will only be effective in 2. Joint wills, even valid abroad, are void in the Ph.
this country upon compliance with the following provisions of the Civil Code of the Philippines. . . . o To allow as much as possible SECRECY, a will being a purely personal act.
Thus, proof that both wills conform with the formalities prescribed by New York laws or by o To prevent undue influence by the more aggressive testator on the other
Philippine laws is imperative. o In case of death of the testators at different times, probate would be harder.
o It militates against the right of a testator to revoke his will at any time
The evidence necessary for the reprobate or allowance of wills which have been probated outside
of the Philippines are as follows: Q1: What if a joint will be probated in Court? Is this valid? What is its effect?
(1) the due execution of the will in accordance with the foreign laws; A1: The probate is valid provided that BOTH testators of the joint will were ALREADY DEAD AT THE
(2) the testator has his domicile in the foreign country and not in the Philippines; TIME THE PROBATE WAS MADE. If only one was dead, and the other was still alive, the final
(3) the will has been admitted to probate in such country; judgment can have reference only to the estate of said deceased testator. Later, when the second
(4) the fact that the foreign tribunal is a probate court, and testator dies, and the joint will is once again presented, the same ought to be regarded as
(5) the laws of a foreign country on procedure and allowance of wills. intestate.

The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to Wills that are NOT joint wills
be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, 1. Those made on a single sheet of paper, the fi rst on the front, and the second on the reverse side
Section 2) means that with regard to notices, the will probated abroad should be treated as if it 2. Those made even on the same page with or without a dividing line between them, but neither
were an "original will" or a will that is presented for probate for the first time. Accordingly, combining the signature of BOTH together.
compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or
personally to the "known heirs, legatees, and devisees of the testator resident in the Philippines"
and to the executor, if he is not the petitioner, are required. The brothers and sisters of Dr. Jose F. SUBSECTION 4. WITNESSES TO WILLS
Cunanan, contrary to petitioner's claim are entitled to notices of the time and place for proving the ART. 820 and 821 QUALIFICATIONS FOR WITNESSES TO NOTARIAL
wills.
WILLS
ART. 816. FORMALITIES FOR WILLS EXECUTED BY ALIENS ABROAD Qualifications of a witness:
Governing rules on wills made by aliens residing abroad 1. be of sound mind (Art. 820)
1. the place of his residence or domicile 2. be at least 18 years (Art. 820)
2. his own country or nationality 3. be able to read and write (Art. 820)
3. the PH 4. not be blind, deaf, or dumb (Art. 820)
4. the law of the place of execution. 5. be domiciled in the Philippines (Art. 821)
- not necessary if the filipino executes a will abroad
ART. 817. FORMALITIES FOR WILLS EXECUTED BY ALIENS ABROAD - not necessary that he/she is a citizen
Ex. If a Chinese lives in Manila, he can follow the extrinsic formalities of wills required. 6. not have been CONVICTED (by final judgment) of FALSIFICATION of a document; PERJURY; or FALSE
Ans. (a) in China (Art. 817) — lex nationalii TESTIMONY.
(b) or in the Philippines (Art. 17) — lex loci celebrationis
Note: The witnesses need not speak and write the language of the will or in the attestation.
Case Study: In Re Estate of Johnson, 39 Phil. 156
A will executed in Manila by a citizen of Illinois living in Manila, and which follows the requirements in Illinois, Rule if will is executed aborad
can be admitted to probate in the Philippines Witnesses may not be domiciled in the PH but is preferred that they are domiciled in the PH so
that:
1. the assurance that the witness will be available at the time the will is presented for
ART. 818 and 819. JOINT WILLS probate
Definition of joint wills: contain in ONE instrument the will of two or more persons jointly signed by them. 2. the likeliness of personal acquaintance with the testator.
Mutual wills: Those that provide that the survivor of the TR will succeed to all or some of the properties of the
decedent. Rules on convicted witness
Three crimes ra
Rules on Joint Wills 1. falsification of a document
1. Mutual wills are valid as long as made in separate instruments 2. perjury
o Reciprocal wills between a husband and wife, as long as not made jointly, are valid 3. false testimony
 ART. 822. EFFECT OF SUBSEQUENT INCAPACITY
Effect of pardon
ANG IMPORTANT RA KAY OF CAPACITY SYA WHEN HE ATTESTED THE WILL. Subsequent incapacity is
If pardon due to innocence—can be a witness
immaterial.
If pardon was an act of executive grace—cannot be a witness because the absolute pardon does nto remove civil
consequence. Hence, there is still a taint of mental dishonesty.
ART. 823
This contemplates of a scenario where the witness attesting the will or his spouse, parent, children is the devisee
NOTE: The acknowledging notary public is disqualified from being a witness to said will. or legatee.

Gonzales v. CA: Witnesses to a Notarial Will is presumed to be trustworthy and reliable unless the GR: The will is valid but the devise or legacy is void
contrary is established. XPN: 1. There are 3 other witnesses
2. Witness is a CH.

ASSIGNED CASES The disqualification extends to:

1. witness
Gonzales v. CA, 90 SCRA 183 (1979) 2. spouse of W
3. parent of W
Under the law, there is no mandatory requirement that the witness testify initially or at any time 4. child of W
during the trial as to his good standing in the community, his reputation for trustworthiness and 5. anyone claiming the right of said witness, spouse, parent or child.
reliableness, his honesty and uprightness in order that his testimony may be believed and accepted
by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code IF THE WITNESS IS A CH: He can still get his legitime but he cannot get the free portion as the device/legacy is
are complied with, such that the soundness of his mind can be shown by or deduced from his void.
answers to the questions propounded to him, that his age (18 years or more) is shown from his
appearance, testimony, or competently proved otherwise, as well as the fact that he is not blind, If the legatee is the witness If the compulsory heir is the witness
deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has
The will is valid but the devise or legacy is void Heir is still entitled to the legitime but he cannot get
none of the disqualifications under Article 821 of the Civil Code.
free portion as the devise/legacy
the instrumental witnesses in order to be competent must be shown to have the qualifications
under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their
testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that ART. 824
evidence be first established on record that the witnesses have a good standing in the community While a CR who acts as witness is DQed to inherit, he is still quyalified to receive his credit since that is not
or that they are honest and upright or reputed to be trustworthy and reliable, for a person is considered as a gift.
presumed to be such unless the contrary is established otherwise. In other words, the instrumental
witnesses must be competent and their testimonies must be credible before the court allows the
probate of the will they have attested. SUBSECTION 5: CODICILS AND INCORPORATION BY REFERENCE
ART. 835.
Molo-Person v. Tanchuco, 100 Phil 344 Definition of codicil
- a little code or a little will
The relation of employer and employee, or being a relative to the beneficiary in a will, does not - always made after the will, not before
disqualify one to be a witness to a will. The main qualification of a witness in the attestation of
wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness Will < codicil because the latter is the expression of the TR’s wishes
must be credible, that is to say, his testimony may be entitled credence.
ASSIGNED CASE
Cruz v. Villasor, 54 SCRA 31 (1973)
Unson v. Abella, 43 Phil 494 (1922)
The notary public before whom the will was acknowledged cannot be considered as the third
The notary public before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the will. To
instrumental witness since he cannot acknowledge before himself his having signed the will.
allow the notary public to act as third witness, or one of the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which would be
in contravention of the provisions of Article 805 requiring at least three credible witnesses to act as It appears that the testator, shortly after the execution of the first will in question, asked that the
such and of Article 806 which requires that the testator and the required number of witnesses same be returned to him. The instrument was returned to the testator who ordered his servant to
must appear before the notary public to acknowledge the will. The result would be, as has been tear the document. This was done in his presence and before a nurse who testified to this effect.
said, that only two witnesses appeared before the notary public for that purpose. In the After some time, the testator, being asked by Dr. Cornelio Mapa about the will, said that it had
circumstances, the law would not be duly observed. been destroyed. The intention of revoking the will is manifest from the established fact that the
testator was anxious to withdraw or change the provisions he had made in his first will.
ART. 826
NB: A notarial will may be revoked by either a notarial or holographic will; similarly a holographic will may be
revoked by a HW or NW De Molo v. Molo, et al. L-2538, Sept. 21, 1951

Effect of not following the formalities A subsequent will containing a clause revoking a previous will, having been disallowed for the
- void reason that it was not executed in conformity with the provisions of section 618 of the Code of Civil
- cannot revoke, expressly or impliedly, a valid will. Procedure as to the making of wills, cannot produce the effect of annuling the previous will,
inasmuch as said revocatory clause is void.
ART. 827. INCORPORATION BY REFERENCE DOCTRINE OF DEPENDENT RELATIVE REVOCATION
[see codal for notes] A revoked will may still be submitted for probate when revocation of that will was conditioned on the validity of
the new will.
SUBSECTION 6. REVOCATION OF WILLS AND TESTAMENTARY The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the
non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will. But a mere
DISPOSITIONS intent to make at some time a will in place of that destroyed will not render the destruction conditional. It must
ART. 828. Revocability of a will appear that the revocation is dependent upon the valid execution of a new will.
Rules on revocation
- any time before the TR’s death
- This makes a will ambulatory and revocable
ART. 829 CONFLICT RULES FOR REOVCATION OF WILLS
- Heirs do not acquire anu vested right to the disposition of the will UNTIL after the TR’s death Place where revoked Domicile Rules
OUTSIDE THE PH NOT domiciled in the PH (a) Follow the law where will
NB. Provisions in a will which are ordered to be effected immediately, even during the TR’s lifetime, shall not be WAS MADE; OR
considered as testmanetary dispositions. They ae all right provided the proper formalities and requisites are (b) follow the law of the place
observed where TR was DOMICLED at
the time
Macam v. Gatmatian: A codicil may still be probated even after the probation of the will. A will is Domiciled in the PH (a) follow the law of the PH
essentially revocable and in this case it is revoked expressly by the codicil. It is not essential for
since his domicile is here; OR
both the will and the codicil to have been presented for probate at the same time.
(b) follow the GR of lex loci
celebrationis of the
ASSIGNED CASES REVOCATION
Testate Estate of Maloto, et al. vs. CA, G.R. No. 76464, February 29, 1988 IN THE PH Follow the PH law (regardless
if domiciled in the PH or not)
It is clear that the physical act of destruction of a will, like burning in this case, does not per se
constitute an effective revocation, unless the destruction is coupled with animus revocandi on the
ART. 830. LOCAL OR DOMESTIC WAYS OF REVOCATION
part of the testator. It is not imperative that the physical destruction be done by the testator
3 ways of revoking a will
himself. It may be performed by another person but under the express direction and in the
presence of the testator. Of course, it goes without saying that the document destroyed must be 1. By implication or operation of law
2. Virtue of an overt act (burning, tearing, cancelling, or obliterating totally or partially in some instances)
the will itself.
3. Revoking a will or codicil

Diag v. De Leon, 43 Phil 413 A. By implication of law

Definition: When certain acts or events take place after a will has been made, rendering void or useless either physical destruction be done by the TR himself. It may be performed by another person but under
the whole will or certain testamentary disposition therein. (there is a presumption that the TR changed his the express direction and in the presence of the TR.
mind)
Overt act of tearing
NB. Revocation of the legacy does not revoke the will. Only total and absolute revocation of the
 Slight tear is sufficient
entire will prevent the probate of the revoked testament.
 Tearing into two is even enough as long as the subjective phase is passed that is as long as the TR
considers the will already revoked.
Instances of revocation by implication of law  Tearing includes cutting.
1. Where the TR has made a will, he sells, or donates the legacy or devise  Tearing off even the signature alone constitutes revocation, provided the other requisites are present.
 Supposing that he sold the legacy but he intended to give the equivalent amount of cash, there is still
revocation by implication of law. What the testator should do is to manifest his unchanged mind by
The mere act of crumpling or the removal of the fastener binding the pages of a will DOES NOT
executing a new will or codicil.
CONSTITTUE A REVOCATION, even though there be be animo revocandi. However, in the Philippine
2. Provisions in a will in favor of a spuse who has given cause for legal separation shall be revoked by
case of Roxas v. Roxas, the court impliedly allowed crumpling as one of the overt actsm provided
operation of law the moment a decree of legal separation is granted
that there is animo revocandi.
3. When the heir, legatee, or devisee commits an act of unworthiness
4. When a credit that had been given as a legacy is judicially demanded by the TR
5. When one, some or all of the Ch have been preterited or omitted, the institution of heir is void. Q1: In a fit of anger, the TR tears his will into two. He wanted to tear it further but he was stopped.
The TR died. Was there a revocation here?
A1: No, because the act of tearing was subjectively not yet complete, inasmuch as he had intended
to tear up the will some more.
B. Revocation by an Overt Act
Overt act of obliterating or cancelling
Requisites
1. There must be an overt act specified by the law obliterating Cancelling
2. There must be a completion at least of the subjective phase of the overt act Renders the word illegible Drawing of line across a text but the word remains
3. There must be animus revocandi or intent to revoke legible
4. The testator at the time of revoking must have capacity to make a will (MUST BE OF SOUND MIND, Can revoke a will, totally or partially
OTHERWISE THERE IS NO REAL REVOCATION) Cancellation or obliteration of non-vital part leaves the other parts in force
5. Revocation must be done by the testator himself, or by some other person his in his presence and bu
his express direction. NB If the will is mutilated by error, there being no animo revocandi, there is no revocation.

Overt act of burning Cancellation of a signature of witnesses to a HW will leave the will valid, since not witnesses are
 Already sufficient even if a small part was burned albeir the entire writing itself was left untouched after all required.
 If thrown into the fire with the intent to revoke and it was burne din 3 places without scorching the
writing, there was already a revocation even if the will was saved by someone else unknown to the TR. Steele v. Price: if a missing will was found after the death of the testator, it is still not revoked
 Accidental burning =/= revocation since absent is intention because actually there has not been any of the overt acts mentioned under the law. And even if the
 If the envelope containing the will is burned but the will is not burnt, there is no revocation absent is will was never found, still PE may be introduced to prove its contents, for we may presume here
the overt act of burning. that the destruction, if indeed there was any, was not authorized. However, the case would be
different if the TR found the will but did not tell anyone. In such case, the will is demed to have
If the TR threw the will into the stove so that it would be burned later on but such burning did not been destroyed intentionally, with intent to revoke by the TR.
happen because someone got it before fire alighted, there is no over act to burn despite having the
intention. Note however that if the heir, LEE, DEE prevented the revocation, they will still not C. Revocation by the Execution of Another Will or Codicil
inherit, not because of revocation by means of an overt act but because of revocation by
implication of law, said person being incapacitated to inherit by reason of unworthiness.  Revocation may be expressed or implied
o There is implied revocation if the two wills are completely inconsistent
The physical act of destruction does not per se constitute an effective revocation, unless the  A will may be revoked by a subsequent will or codicil
destruction is coupled with animus revocandi on the part of the TR. It is not imperative that the o Revoking will must be validly executed as to form
o Revocation made in the subsequent will must be a definite one
  GR: A mere declaration that sometime in the future is not enough Subsection 7. Republication and Revival of Wills
 XPN: Doctrine of conditional revocation wherein the revocation takes place
only if the condition is fulfilled. ART. 835. GENERAL OVERVIEW ON REPUBLICATION
Definition of republication: The process of re-establishing a will, which as become useless because it
A second will referred to by the TR as his last will revokes completely the first will, particularly if was void or had been revoked.
the provision of the two, as to who were being instituted as heirs, are inconsistent.
How can it be made?
Probate of Lost or Destroyed NW 1. Re-execution of the original will (copying the original provisions)
1. Oral or parol evidence 2. Execution of a codicil (implied republication)
2. Carbon copies
Cua v. Vargas. The publication of an extrajudicial settlement does not constitute constructive
NB. HW, which have been lost or destroyed without intent to revoke, cannot be probated. notice to the heirs who had no knowledge or did not take part in it because the same is notice after
However, a lost or destroyed HW may be proved by means of a xerox copy thereof because the the execution. However, the heirs who actually participated in the execution of the extrajudicial
authenticity of the handwriting of the deceased can be determined by the probate court. settlement are bound by the same.

ART. 832. EFFECT OF REVOCATION IF NEW WILL IS INOPERATIVE

An invalid will cannot revoke but a valid though ineffective will can revoke. ART. 836. REQUISITES AND LIMITATIONS OF REPUBLICATION
How to republish?
Example. T made a will making X his heir. Later, T expressly revoke dhis first will by executing a second will  To republish a will void as to its formall the dispositions must be reproduced or copied in
containing a revocatory clause. T made Y his heir. The 2nd will was validly made, but on T’s death, Y refused to the new and subsequent will.
accept the inheritance. Is the first will still revoked.
Answer: Yes. Hence, T will be considered to have died intestate and X cannot inherit, except, if he be also one of  To republish a will valid as to its form but already revokedexecution of a codicil which
the intestate heirs. makes reference to the revoked will is sufficient.

Effects of republication
ART. 833. REVOCATION BASED ON FALSE OR ILLEGAL CLAUSE 1. Codicil revives the previous will
The fact that the cause for the revocation was a false belief or a mistake mut sbe found on the face of the will or 2. Old will is republished as of the date of the codicil
codicil itself. 3. A will is republished by a codicil is governed by a statute enacted subsequent to the execution of the
will but which was operative when the codicil was executed.
If the testator is unsure if the heir is alive but still revoked the latter’s inheritance, there is still a
revocation of inheritance for here, he cannot be said to have proceeding upon an error. But if the The act of piercing together a torn and revoked will cannot restore its effectiveness.
TR revoked the inheritance of the original heir upon the belief that the latter is dead, the
subsequent presence of the original heir would make the revocation null and void as it was
predicted on a false cause. Can a will, invalid because of fraud or force or undue influence or because the TR was under 18 or was insane
be republished by mere reference in a codicil?
Yes because this is not a case when the will is void as to its form.
ART. 834. EFFECT OF REVOCATION ON THE RECOGNITION OF AN
ILLEGITIMATE CHILD ART. 837 THE SECOND WILL IS REVOKED
How can voluntary recognition of an illegitimate child be done?
1. In a record of birth Republication Revival
2. Will Process of re-establishing a will, which has become Takes place by operation of law or the restoration or
3. Statement before a court of record useless because it was void or has been revoked re-establishment of revoked will or revoked
4. Any authentic writing provisions thereof, to effectiveness, by virtue of legal
provisions
Even if the will in which recognition had been made is subsequently revoked, the recognition remains valid. Act of the TR One that takes place by operation of law

Example of revival:
 1. While omission of a CH in the institution of heirs annuls the institution, still if the omitted heir dies If the deceased was survived by his wife and his children, there is need, aside from liquidating the
ahead of the TR, the institution is revived, without prejudice to the right of representation CPG, to set apart the share of the surviving spouse in the CP, preparatory to the administration and
2. If after making a will, the TR makes a second will impliedly revoking the first, the revocation of the liquidation of the estate of the deceased.
second will revives the first will.

SUBSECTION 8. ALLOWANCE AND DISALLOWANCE OF WILLS

ART. 838. PROBATE OF A WILL Vera v. Nevarra
Definition of probate: Act of proving before a competent court the due execution of a will by a The distributive shares cannot be given unless the state tax [estate tax/death tax] has been paid
person possessed of testamentary capacity, as well as approval thereof by said Court. or unless there be a sufficient bond given for the payment of the tax.
Probate court jurisdiction
Probate Validity of the testamentary provision
Decides the execution of the document and the Deals with descent and distribution
Heirs of Late Jesus Fran v. Salas
testamentary capacity of the TR
Where part of the estate is not distributed yet, recourse is not to reopen the probate proceedings
but a motion for execution or an action for reconveyance. A probate judgment long closed cannot
Dorotheo v. Ca. A final judgment on probate will, albeit erroneous, is binding on the whole world. be attacked by a mere MR. It is not necessary to attack the original will to the petition to probate.

Two kinds of probate 77 SCAD 481

1. Probate during the TR’s lifetime Questions of title pertaining to the determination prima facie of whether certain properties ought
2. Probate after the TR’s death to be included or excluded from the inventory and accounting of the estate subject of a petition for
letters of administration, may be resolved by the probate court.
Palacios v. Catimbang Palacios: After a will has been probated during the lifetime of a testator, it
does not necessarily mean that he cannot or revoke the same before his death. Should he make a
Post-mortem probate
new will, it would also be allowable on his petition, and if he should die before he had a chance to
1. Probate proper
present such petition, the ordinary probate proceedings after the TR’s death would be in order.
2. Inquiry into the intrinsic validity and the distribution of the property.

NEED FOR PROBATE Rules

 Even if only one heir has been instituted, there must still be the judicial order of adjudication 1. Brought any time after the TR dies
 A provision in a will dispensing the need for probate is a void provision, for a person cannot 2. By any ER, DEE, LEE or interested person
by his actuations cannot deprive a competent court of its JD. 3. They can probate the will even if the will is not in his possession as long as there was no animus
revocandi
 No judicial approval can be given to an extrajudicial partition based on a will unless the will is first
probated. Neither may an unprobated will be presented as evidence of an act of partition among co- Trillana v. Crisostomo
heirs. An expressly revoked will is not admissible to probate. However, a revoked will may of course be admitted to
 The probate is essential because (1) the law expressly requires it; and (2) probate is a probate, if the subsequent will that had allegedly revoked it, is proved to be void and is therefore disallowed.
proceeding in rem and therefore cannot be dispensed with or substituted by any other
proceeding, judicial or extrajudicial without offending public policy; (3) the right of a Arancillo v. Peñaflorida
person to dispose of his property by virtue of a will may be rendered nugatory; and (4) Even if a will has already been probated, if later on a subsequent will is discovered, the latter may still be
because absent legatees, and devisees, or such of them as may have no knowledge of the presented for probate.
will could be cheated of their inheritance through the collusion of some of the heirs who
might agree to the partition of the estate among themselves to the exclusion of others.
 Even a void will, or one that has been refused probate may in certain cases give rise to a SECTION 2. INSTITUTION OF HEIRS
natural obligation. In such a case, however, thje paying intestate heir must have known of ART. 840. INSTITUTION OF HEIRS
the defect in the will, otherwise there will be no natural obligation but a case of solution
indebitii.
Delgado v. Heirs of Marciana
Pastor v. CA
Only when the heir is the sole heir of the estate may he adjudicate to himself via affidavit the ART. 848. INSTITUTION OF HEIRS
decedent’s entire estate. TESTAMENTARY SUCCESSION INTESTATE SUCCESSION
Shares are the same unless a different intention The brother of the full-blood gets DOUBLE the share
appears of the brother of the half-blood.
Lopez v. Gonzaga
Even if only one heir is instituted, there must sill be a judicial order of adjudication since this
judicially recognized that in instituting the heir, the deceased did not contravee the law and that ART. 854 PRETERITION OR PRETERMISSION OF HEIRS
their was in no way disqualified to inherit Definition of preterition: The omission, whether interntional or not, of a CH in the inheritance of a person.
Q1: Are the heirs who actually participated in the execution of the EJS which included the sale to a
3P of their pro indiviso shares in the property bound by the same? Acain v. IAC et al
A1: Yes, while the co-heirs who did not participate are given the right to redeem their shares Preterition consists in the omission in the TR’s will of the forced heirs or anyone of them in either
pursuant to Article 1088 of the New Civil Code. because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs
nor are expressly disinherited.
ART. 842. RULES OF FREEDOM OF DISPOSITION OF ESTATE There IS preterition NO preterition
DOES NOT HAVE CH HAS CH A CH named in the will but not given any share even CH did not receive anything from the will but already
Give his estate or any portion thereof to anybody Mus respect the legitimes (UNLESS there be a valid if no express disinheritance received donation from the TR (donation is AN
qualified to inherit from him cause for an express disinheritance) ADVANCE of the inheritance or legitime
BUT mus repsect the restrictions imposed by law Free portion can be given to anybody provided CH is given only a small share
always that restrictions of special laws are complied An acknowledged child was not omitted in the whill
with. but given only a legacy.

Abutan v. Fernandez As to omission of a CH

A person is allowed to make one niece the only heir, even if there be other nieces and nephews, as There IS preterition in the CH
long as there are no compulsory heirs. 1. Legitimate or illegitimate CH
2. Descendants
3. Ascendants if they are instituted as compulsory heirs
Pecson v. Coronel
All nieces may even be disregarded in favor of the husband of one of them. While ties of Illustration
relationship in the PH are very strong, cases of preterition of relatives from inheritance are not  If the father is omitted and replaced by the TR’s childno preterition
rare. The liberty to dispose of one’s estate by will, if there are no CH, is granted expressly by the  If the father is omitted and the TR has no childrenthere is preterition; the institution of another, with
Civil Code. the preterition of the parents, will give rise to intestate succession

Heirs of the Late Matilde v. CA Naguid v. Naguid

It is within the right of the testatrix not to include her only sister who is not a CH in her will, as If a TR institutes in his HW a sister or brother as the only heir, and fails to institute his parents,
consistent with Article 842 of the Civil Code. who are still alive, this is a clear case of preterition, and the instituted heir should get NOTHING
because said institution is void, on account of preterition.

ART. 843. HOW DESIGNATION OF HEIR IS MADE As to omission of CH in the direct line
No one inherits if thre is a doubt on who is being instituted
Bahanay v. Martinez
ART. 846. INSTITUTION WITHOUT DESIGNATION OF SHARES If a spouse is preterited in a will; this will not annul the institution of heirs, and it will not be
ISSUES OR DESCENDANTS necessarily true that intestacy will follow. This is because a spouse is not the direct line.
 ALL persons descending lineally from another, to the remotest degree and includes persons so descended,
even though their own parents are still living, and such descendants take per capita [per person] and not per EFFECTS OF PRETERITION
stirpes [by groups] 1. The institution of heirs is annulled/avoid.
Ramos v. Baldovino XPN: if the condition appears in a document incorporated by reference into the will, it is proper to consider said
In case a preterition, the omitted heir gets his share not only of the legitime but also of the free condition.
portion.
ART. 873. EFFECT OF IMPOSSIBLE OR ILLEGAL CONDITIONS
2. Although the institution of heirs is indeed annulled, the legacies and devisees shall Time considered: When the condition is supposed to be fulfilled
remained valid insofar as they are not inofficious (they are not voided, but merely Vague wording of the conditions: will only be considered as impossible conditions if the condition remains to be
reducible if the legitime has been impaired. vague even after applying the rules on construction and interpretation.

ART. 874. CONDITION NOT TO MARRY

ART. 855. WHERE SHARE OF OMITTED HEIR MUST BE TAKEN Condition not to marry Effect
If what he received by way of donation is less than his legitime, there is no preterition. He is entitled not to the Absolute prohibition to contract a first marriage Absolutely void. No XPNs
annulment of the institution of heir but merely to the competition of his legitime. Absolute prohibition to contract a remarriage GR: Void
XPN: Valid under the following circumstances
ART. 856 EFFECT OF PREDECEASE a. Imposed on the widow or widower
by the deceased spouse
b. When imposed on the widow or
SECTION 4. CONDITIONAL TESTAMENTARY DISPOSIIONS AND widower by the ascendants or
TESTAMENTARY DISPOSITIONS WITH A TERM descendants of the widow or
widower
Relative prohibition to contract a first marriage to GR: Valid
CHEAT SHEET!
remarry XPN: Unless it becomes so onerous or burdensome
Conditions Effect
that the relative prohibition really amounts to an
Condition, charge, or substitution on the legitimes Deemed not imposed
absolute one
Impossible conditions Deemed not imposed (void so the heir inherits)
A stopping of a usufruct, allowance, or personal Justified
Illegal conditions Deemed not imposed prestation the moment of heir, devisee, or legatee
Absolute condition not to contract a first or Deemed not imposed UNLESS imposed on the widow marries or remarries
subsequent marriage or widower by the deceased spouse or by the latter’s Condition to Marry a Particular Person, or at a VALID, by implication, and must be complied with
ascendants or descendants particular place or time unless impossible or illegal

ART. 871. EFFECTS OF INSTITUTION ART. 875. DISPOSITION CAPTATORIA

Morente v. De la Santa Prohibited because it tends to make the making of the will a contractual act.

To qualify as a conditional testamentary dispositions, the statement should not be mere orders ART. 876. WHEN POTESTATIVE CONDITIONS MUST BE FULFILLED
from the TR. More importantly, there must be an express condition that if the instituted heirs do Q1: Is the condition to marry potestative or not?
not comply with the wish of the testatrix the former would lose the devise given to him by the A1: if the condition to marry ANY girl, potestative. If the condition to marry is PARTICULAR girl, no longer
latter. potestative.

Under article 793, a prohibition against another marriage may also be imposed, in certain cases,
upon the widow or widower. But, in order to make a testamentary provision conditional, such ART. 882
condition must fairly appear from the language used in the will. It will not be presumed.
Object of the institution I institute A as my heir to give him enough money to
In this case, there being no express condition attached to that legacy in reference to the second obtain a legal education
marriage, we can not say that any condition can be implied from the context of the will. Application of the property left by the testator I institute B as my heir. He will apply the properties
of my estate to the erection of a college of law in
GR: Conditions to affect the disposition must appear in the language of the will and cannot be presumed. No Ortigas avenue
evidence aliunde will be allowed to prove the existence of oral or other conditions. The charge imposed by the testator I institute A as my heir. He will devote 10% of the
 annual income from my bldgs. For the establishment Illegitimate Parents ¼
of a professorial chair in Civil law at UCB. Surviving Spouse 1/4 Surviving spouse Same as 1 legit
child
Yambao v. Gonzales Illegitimate child alone ½ Legitimate child ½ of estate
If, in a will, the TR imposes as a duty on the heirs the obligation of allowing a 3 rd person to be Legitimate child alone 1/2 Illegitimate child ½ of each
placed as a tenant on a certain parcel of rice land, the duty must be complied with, and the heirs legitimate child
must take in sad 3rd person as a tenant.

ART. 885 INSTITUTIONS WITH A TERM

Term Duration Example

Suspensive term or ex die Effects begin from a certain day Beginning 2008
Resolutory term or in diem Effects cease on certain day Up to 2008
Ex die in diem From a certain day to a certain day Beginning 2008 until 2009

A has a brother but institutes C as heir beginning 5 years from A’s death.
 During the 5 years after A’s death, the legal heirs is considered called to the succession until the period
expires provided that he has given security and such was approved and considered suitable by the
instituted heir.
o B’s right is that of a usufructuary
o If B does not give security, the estate be given to the next legal heir instead of being under
administration.

CHEAT SHEET!!!!

CONDITION EFFECT
Suspensive condition The property will not be given until the fulfillment of
the condition, even if the heir desires to give a bond
Resolutory condition Inheritance can be granted to theirs upon the giving
of security. If condition is violated, the inheritance
plus its fruits and interests shall be forfeited.
Modal institution Inheritance can be immediately demanded, provided
that security is given.

LEGITIMES

Illegitimate children 1/3 Illegitimate parents alone 1/2

Suriving spouse 1/3 Surviving spouse alone ½
IC ¼ Legitimate child alone ½
Surviving spouse 1/8
Legit Parents ½
Illegitimate Children ¼ 1 legitimate child ½
Legitimate Parents ½ Surviving spouse ¼
Legitimate Parents 1/2 2 or more legitimate ½
Surviving Spouse 1/4 children