SUCCESSIONS ARTS.774-782: GENERAL PROVISIONS ART 774 Q:What is Succession?

A: It is a mode of acquisition by virtue of which the property, rights and obligations, to the extent of the value of the inheritance, of a person is transmitted through his death to another or others, either by his will or by operation of law. Q:Basis of Succession? A: 1.) RIGHT TO DISPOSE PRIVATE PROPERTY. In this case, the WILL IS MERELY A CASUAL INSTRUMENT for the conveyance. This is the basis of Testamentary Succession. 2.) FAMILY CO-OWNERSHIP. In this case, the testator recognises, that the FAMILY IS THE HEART AND SOUL OF SOCIETY, the idea of succession must revolve around it. This is the basis of Intestate Succession. 3.) ECLECTIC THEORY. In this case, the purpose of succession is to PERPETUATE THE TESTATORS PATRIMONY BEYOND HIS EXISTENCE, giving greater stability to his family and society. It is a merger of individual and social principles. ART 775 Q: Define the term decedent. A: Under Art.775, decedent is the general term applied to the person, whose property is transmitted through succession, whether or not, he left a will. If he left a will, he is also called the testator. ART 776 Q: What does inheritance include? A: It includes: a) Property; b) Rights not extinguished by death; c) Obligations not extinguished by death(to the extent of the value of the inheritance)(Art.776) Q: What is the difference between heirs and devisees/legatees, as to the extent of the inheritance? A: An HEIR inherits an aliquot part of the indeterminate portion of the estate, while, the inheritance of a DEVISEE/LEGATEE must be SPECIFIED by the testator. Q:What are the elements of Succession? A: 1.) Subjective elements--Testator -Heirs -Devisees, or -Legatees 2.) Objective Element--Inheritance 3.) Casual element -The transmission of a property by will and DEATH, as the condition. Q: What is the distinction between INHERITANCE and SUCCESSION? A: Inheritance refers to the universality of all the property, rights and obligations constituting the patrimony of the decedent, which are not extinguished by his death. Succession is the legal mode by which such property, rights and obligations are transmitted. Q: What is the EXTENT of the inheritance? A: It refers to all the PROPERTIES of the decedent at the time of his death. They may be residual and accrued properties. Note: CORPSE of the decedent is not included. Q: Are all obligations of the deceased part of his inheritance? A: Art.776 provides that, the inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. Hence, not all obligations shall be part of the decedents inheritance. (E.g. those obligations, which are purely personal) Q: Give examples of rights which are extinguished by death, and which, therefore, are not part of the estate? A: The following are not part of the estate:

a) b)

Intransmissible personal rights because of their nature(such as those appertaining to family rights, marital and parental authority; support, action for legal separation, partnership agency, life annuity). Right to hold public or private office or job (Hu Niu vs. Collector of customs, 36 Phil. 433) (P)

Q: Give examples of rights not extinguished by death, and which, therefore, are part of the estate? A: They are the following: a) Right to bring or continue an action for forcible entry or unlawful detainer. b) Right to compel the execution of a document necessary for convenience, provided that the contract is valid and enforceable under the Statute of Frauds(Araneta vs. Montelibano, 14 Phil. 117)(P) N.B.: When asked for examples about rights and obligations which are transmissible ad non-transmissible, be particular whether it is an obligation or a right. Q: A father was a defendant in a civil case. During its pendency, he died, and his children were substituted as defendants. If judgment is rendered against the defendants, can the children be held personally liable with their own individual properties? A: NO. The children cannot be held personally liable, despite the substitution. The remedy of the plaintiff-creditor is to proceed against the estate of the deceased father. (Viardo vs. Belmonte, Aug. 21, 1962) N.B.: While the debts of the deceased still remain unpaid, no residue may be divided among the heirs, legatees and devisees. Indeed, the court may order the sale of sufficient properties for the satisfaction of the debts and the heirs cannot question this. Such a step is necessary for the eventual partition of the estate. (Lao vs. Dee, Jan, 23, 1952)(P). N.B.: A creditor of an HEIR (who is not a creditor of the DECEASED), who intervenes in the estate proceedings, cannot ask the court to sell the properties, which the HEIR-DEBTOR expects to receive. This is because the debts of the DECEASED himself, must first be paid. Then and only then, can we determine, if there is a sufficient residue left for the HEIRS or fo r the HEIRS CREDITORS (Litonjua vs. Montilla, Jan. 31, 1952)(P) Q: x died leaving debts amounting to P5M. Will the heirs of X, be answerable for such debts? A: NO. The remedy of the creditors would be to proceed against the estate of X, as a separate juridical person. Monetary obligations are not part of the decedents inheritance. Q: Is the body of the decedent, a part of the inheritance? A: NO, because it is not a property.(based on Jurado & Paras) Refer to the special law on the matter. Q: (a) Is an action to claim ones legitimacy transmissible? (b) How about ones illegitimacy? A: YES. Refer to Arts. 173 and 175 of the Family Code. Q: What is the restrictive nature of inheritance? A: 1.) (Before death) it is a MERE HOPE. 2.) (After death) it cannot be distributed, unless all the claims against the estate of the decedent are liquidated. The purpose of which is to determine, WHAT ASSETS ARE LEFT TO BE TRANSMITTED TO THE HEIRS. N.B.: Under the Rules of Procedures, liquidation is NECESSARY, in order to determine, whether or not, the decedent has left any liquid assets, which may be transmitted to the heirs. N.B.: Estate is a legal exigency created by law so that the heirs will not be bothered by the claims of other persons against the decedent. Estate is the continuation of the decedents personality. ART. 777 Q: When is the right to the succession transmitted? A: It is transmitted from the moment of the death of the decedent. (Art. 777) N.B.: Death is the condition that effects transmission of the decedents assets. The expressed WILL or the decedents presumed will as provided by law, is the cause. Before death, heirs only have A MERE HOPE OR EXPECTANCY. It is NOT A VESTED RIGHT, for a will may be changed, either because of: a) Causes of disinheritance, or b) Acts of incapacity/unworthiness c) Revocation of the will. Q: What is the decisive moment, when the heirs acquire a definite right to the inheritance? A: The decisive moment is DEATH. It is upon the death of the decedent, that the heirs acquire a definite right over the inheritance, whether such right is pure, conditional or with a term. Q: What is death? A: It is the PERMANENT cessation of all bodily functions which TERMINATES a persons juridical CAPACITY and CAPACITY TO ACT.

Q: What does PRESUMED WILL mean? A: The will of the decedent to transfer the properties to the heirs is PRESUMED BY LAW. The rules laid down by law is based on human experience, as may be gleaned from the order of those who may inherit in intestate succession. Q: What are the conditions before the rights of the heirs are transmitted? A: The conditions are following: a) DEATH of the decedent/testator (either actual or presumed); b) The rights or properties are indeed TRANSMISSIBLE or DESCENDIBLE; c) Heirs must: (1) Survive the decedent (no predecease), (2) be WILLING(no repudiation), (3) be CAPACITATED to inherit (Note: These are also the requisites for succession mortis causa). Q: Can an heir sell his future inheritance? A: NO, because the heir has no vested right over the inheritance yet. Therefore, the object, which is the inheritance, is not yet determined or certain. Q: What are the cases when there is no transmission of rights? A: They are: a) b) c) Repudiation made by the heir; Heirs predeceased the decedent/testator; Incapacity of heirs to succeed.

Q: Upon the death of the testator, is it necessary to deliver the properties to the heirs, in order, to acquire ownership? A: NO, because the right to the inheritance is transmitted from the moment of death of the decedent. Tradition or delivery is not essential for the acquisition of properties of the decedent because succession is an independent mode. Q: If a decedent dies January 1, 1999, and the property is actually delivered only on March 1, 1999, when does the heir become the owner of the property? A: He became the owner thereof, beginning January 1, 1999. This is because it is not tradition(delivery) that transfers ownership here, but succession. Moreover, the effects of an acceptance (of the inheritance) retroact to the moment of death. (Art. 1042) If on the other hand, there is repudiation, it is as if, the heir never owned the property. This is because of the retroactive effect of the repudiation (Art. 1042). N.B.: No matter when/what time the heir, devisee or legatee enters into the possession of the inheritance, devise or legacy, acquisition shall always RETROACT to the moment of death, in accordance with Art. 1042. N.B.: After the death of the decedent, anyone of the heirs may enter into a contract with respect to his share of the inheritance, even before partition has been effected the right to the inheritance is already in the nature of a vested right upon the death of the decedent. Thus the heir may: (1) Sell his undivided shared in the inheritance, or (2) Donate it.

Before death, the heirs have only a mere hope or expectancy, absolutely inchoate in character, to their share in the inheritance. Hence, any contract entered into with respect to the inheritance, would have no object whatsoever, therefore, INEXISTENT from the beginning. (see Art. 1374) Q: Art. 777 provides, the right to succession are transmitted from the moment of death of the decedent. Does this principle, apply only to actual death? A: NO. The principle .under this article applies to both (a) actual death; and (b) presumptive death. This is clear from the provisions of Arts. 390-391. Q: What are the rules on PRESUMPTIVE DEATH as to the opening of succession? A: (a) 10 years absence it being unknown, whether or not the absentee still lives. (b) 5 years, if the absentee disappeared after the age of 75 (c) 4 years, if the absentee disappeared under any of the 3 circumstances enumerated under Art. 391. Q: When or at what precise moment, will there be a transmission of successional rights, in case of a PRESUMPTIVE DEATH? A: (a) as to ordinary absence of 10 years or 5 years if the absentee is more than 75 years of age: **At the expiration of the period designated by law. (b) as to extra-ordinary absence of 4 years under Art. 391: **At the time of disappearance, because the absentee disappeared under danger of death. (Note: Although the rule says, that there will be transmission of successional rights at the time of disappearance of the absentee, we must still

wait for a period of 4 years from the time the absentee disappeared. Thereafter, if the absentee does not appear after 4 years, there will be transmission of successional rights and it will retroact from the time the absentee disappeared. Reason: The absentee disappeared under danger of death.) Q: What are the kinds of death in Succession? A: 1) Actual death 2) Presumptive death a) Ordinary, or b) Extra-ordinary Q: What are the rules used to determine the precise time of death of a decedent, in presumptive death? A: **Ordinary Presumptive death: 1) Rules of evidence. In the absence of evidence; 2) Expiration of the period provided for by law. **Extra-ordinary Presumptive death: 1) Rules of evidence. In the absence of evidence; 2) AT or ABOUT time of disappearance. Q: What is the effect, in case, a person presumed to be dead, returns? A: There is recovery of properties, or a return of their value, if they were already alienated, except for the fruits. (The exception lies in the case, when prescription occurs due to lack of title.) Q: Can there be succession without death? A: As a general rule, there can be no succession without ACTUAL DEATH. However, the law provides succession in cases of PRESUMPTIVE DEATH. In this case, the death of a person is merely presumed and conditioned on the FACT OF DEATH. Q: X has 2 children, Y and Z, X suffered a heart attack on January 1, 2002, and was pronounced dead on the same day. On January 2, 2002, X regained consciousness. Y and Z claimed to have succeeded X in his properties, when he was pronounced dead on January 1, 2002. Is the claim valid? A: NO, there was no succession because there was no death. Death must be PERMANENT because a person can only die once. ART 778 Q: What are the kinds of succession? A: 1) Testate 2) Legal or intestate 3) Mixed N.B.: Contractual Succession NOT ANYMORE ALLOWED has been omitted in the Family Code. (Do not include this in your enumeration, unless, you are asked about Contractual Succession.) Q: What are the different modes of testamentary succession? A: They are: a) Will or Codicil; b) The will or Codicil may be: 1) Notarial (ordinary, attested, or acknowledged) 2) Holographic (handwritten by the testator from beginning to end, complete with date and signature) N.B.: In case of doubt, testamentary succession is preferred over legal or intestate succession. (Art 791) Q: What are the kinds of testate and intestate succession? A: They are: a) Voluntary and compulsory; b) By right and by representation ART. 779 Q: What is testamentary succession? A: It is one, which results from the designation of an heir, made in a will executed in the form prescribed by law. (Art. 779) Q: When does INTESTATE succession occur? A: Intestate succession is effected by operation of law, in default of a will. Intestate succession occurs when the testator has not made a will, or even if he had one, such will has not been made in accordance with the formalities prescribed by law. In this case, his presumed will as provided by law, shall govern the distribution of his hereditary estate after his death. Art. 780 Q: What is Mixed succession? A: It is one that is effected partly by will and partly by operation of law. (Art. 780)

Q: When does Mixed Succession occur? A: It occurs when the testator makes a will, but fails to dispose all of his properties by means of such a will. The succession partakes of the nature of both testamentary and legal succession. Q: What is CONTRACTUAL Succession? (Note: This is not allowed anymore but for your consumption, here is the definition) A: It is the act of future spouses of giving or donating to each other, in their marriage settlements, their future property, which is to take effect, upon the death of the donor and to the extent laid down by the Civil Code relating to testamentary succession. This succession is not allowed anymore, for it was not expressly provided for in the Family Code. Q: What are the kinds of heirs in testamentary succession? Define each? A: They are: 1) Voluntary is an heir called to succeed to the whole or an aliquot part of the disposable FREE PORTION of the hereditary estate by, virtue of the will of the testator. 2) Compulsory is an heir called to succeed to a portion of the testators estate, known as legitime. ART 781 Q: What does the inheritance of a person include? A: It includes not only the property and the transmissible rights and obligations exiting at the time of his death, but also those, which have accrued thereto since the opening of the succession. ART 782 Q: Heir? A: An heir is a person called to the whole or an aliquot portion of the inheritance, either by will, or by operation of law. An heir succeeds by universal title. N.B.: Heirs may be compulsory (if entitled to the legitime) or voluntary (like a friend) Q: Devisee? A: A devisee is a person to whom a gift of real property is given, by virtue of a will. Q: Legatee? A: A legatee is a person to whom a gift of personal property is given, by virtue of a will. Q: What are the distinctions between heirs, devisees and legatees? A: (a) As to title: Devisees or Legatees are always called to succeed to individual items of property. Heirs are always called to succeed to an indeterminate or aliquot portion of the dece dents hereditary estate. Devisees or Legatees succeed by PARTICULAR TITLE; while Heirs succeed by UNIVERSAL TITLE. (b) As to portion of the estate: the devise or legacy which is given to the devisee or legatee by means of a will, is, as a rule, a charge against the free portion of the testators property. However, if the testator is not survived by compulsory heirs, his entire property is considered as free property. In such a case, the devise and legacy can be charged against the entire property. In the case of heirs, a distinction must be made between heirs in testate succession (Compulsory and voluntary) and heirs in intestate succession (legal or intestate heirs). (c) As to the means of succession; Devisees or legatees are always called to succeed by means of a will. Heirs are called to succeed, either by means of a will (voluntary) or by operation of law (compulsory and legal) Q: May a person be a compulsory and voluntary heir at the same time, in the same will? Otherwise stated, is there a possibility of a dual status as an heir? A: YES, if in a will a compulsory heir is given more than his legitime, he assumes a dual status: a) Insofar as his legitime is concerned, he is a compulsory heir. b) Insofar as the excess is concerned, he is a voluntary heir. N.B.: The aforementioned distinction is important because if a compulsory heir dies ahead of the testator, his legitime is inherited by his own child (by right of representation). On the other hand, the child of a voluntary heir who predeceases or dies ahead of the testator gets nothing from the said testator. (Art. 856) Q: Suppose the only properties left by the decedent are his 3 cars. The decedent gave you 1/3 of his estate, which is, one car. As a beneficiary, are you considered an heir? A: YES, because an aliquot part (1/3 thereof) of the estate was given to me, not a specific part thereof.

The answer would have been different, if the decedent had given me a specific car. In this case, I would have been a legatee, having succeeded a personal property, by a particular title. Q: X made a will designating A, as heir of his entire estate. However, since X was a gambler, the only property left to him when he died, was his Honda Civic car. Is A an heir or a legatee? A: A is still an heir for purposes of giving effect to Xs will. The fact that the only property left by the decedent is a personal property is immaterial. The designation of A as an heir still controls. Q: Give the importance of the distinction between voluntary heirs, devisees and legatees? A: (a) In case of preterition/pretermission in the testators will of one, some, or all of the compulsory heirs in the direct line, the effect is to annul entirely the institution of heirs. But devisees and legacies shall be valid, insofar as, they are not inofficious. (Art 854) (b) In case of imperfect or defective disinheritance, the effect is to annul the institution of heirs to the extent that the legitime of the disinherited heir is prejudiced. But devises and legacies shall be valid, insofar as they are not inofficious. (Art 918) (c) In case properties are acquired by the testator after the execution of the will, such properties are not as a rule, included among the properties disposed of, unless, it should expressly appear in the will itself that such was the testators intention. This rule applies only to legacies and devises and not to the institution of heirs. Q: X designated A to of his estate. He also designated to B, his car with plate number GVG101. Who is the heir or legatee? A: A is an heir because she will succeed to an indeterminate portion of the estate (1/2 of Xs estate), B is a legatee, because she will succeed to a specific property a car with plate number GVG101. Q: X executed a will in 1985. He died in 1995. In his will, X gave Y all of his cars. At the time of the execution of the will in 1985, X had only 2 cars then. Assuming that in 1995, he already has 200 cars. How many cars will Y inherit? A: Y will only get 2 cars, because the remaining cars are after-acquired properties. Reason: Y is merely a legatee because he does not succeed to a portion of the estate. Q: If in the will, X stated to give of his estate to Y, what is the effect? A: Y is now an heir, because he is to succeed to a portion of the estate. Therefor, in the preceding problem, if the only estate of X are the 200 cars, Y will get 100 cars. Q: What are the advantages and disadvantages between a devisee, legatee and heir? A: Take note of how the following circumstances affect the devisee, legatee and heir see Jurado for the answer.. a) Effects of preterition b) Effects of imperfect disinheritance c) Effects of after-acquired properties. Q: How do you determine an heir from a legatee or devisee? A: If the property is a particular item of the estate, the receiver is a devisee or legatee, as the case may be (whether that particular item is REAL or PERSONAL). Otherwise, he is an heir. ARTS 783-787 WILLS IN GENERAL Q:What are the different modes of testamentary succession? A: They are: a) Will, or b) Codicil Note: The Will or Codicil may be: a) Notarial (ordinary, attested, or acknowledged) b) Holographic (handwritten by the testator from beginning to end, complete with date and signature) Note: In case of doubt, testamentary succession is preferred to legal or intestate succession.(Art 791) Q: What is a Will? A: 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. (Art 783) Q: Is the right to make a will, a natural right? A: The act of making a will is not a natural right because not all persons can make a will. It is a statutory right. (Simply means that not all persons are qualified to make a will) Q: If the will does not dispose of property, such as when a person is merely named executor, or when a natural child is recognized, can it still be considered a will? A: If we follow the strict legal definition of the will, it would seem that if it does not contain a disposition of property, it cannot be considered a will. But in some jurisdiction and jurisprudence, it may still be called a will.

Paras said: It may still be called a will (57 Am. Jur. Sec. 27; Re Meade 118 Cal. 428), although such will need not be probated, for under our law, it would seem that a probate is needed only, if property is to be conveyed by testamentary succession. (See Art. 838) Furthermore, it has been held that for the purpose of recognizing a natural child by virtue of a will, the will need not be probated (Guevara vs. Guevara, C.A., L-7564) though it must of course still be a valid will (Onyaga vs. Omilia, 50 Phil. 820) Q: In Xs will, A was given a house, effective immediately. (a) Is this a disposition by virtue of a will? A: NO, since it is supposed to take effect immediately. There was, therefore, no animus testandi insofar as, this provision is concerned. (b) Is A entitled to get the house now (or immediately)? A: NO, unless he signifies his acceptance in the form prescribed by law for DONATIONS, and unless the instrument be notarized as a public instrument. (Art 749) (c)How will the house be disposed of? A: In accordance with the rules on legal succession, in case the donation is not effective. (Art 960) Q: What are the characteristic of a will? A: a) A strictly PERSONAL ACT b) An INDIVIDUAL and UNILATERAL ACT; c) FREE and VOLUNTARY ACT; d) A FORMAL and SOLEMN ACT; e) A DISPOSITION of PROPERTY; f) An act MORTIS CAUSA; g) AMBULATORY and REVOCABLE during the LIFETIME OF THE TESTATOR. Q: Why a personal act? A: Because its execution cannot be left to the discretion of a third person. Q: Why unilateral? A: Because it does not need the approval of any other person. Q:Why a formal and solemn act? A: Because it must comply with the formalities prescribed by law. Q: Why an act mortis causa? A: Because it takes effect only after the death of the testator. Q: Why ambulatory? A: Because the testator can revoke it at any time before his death. ART 784 Q: X made his last will and testament and authorize you to execute it. Is it valid? A: NO. The making of a will is a strictly personal act. It cannot be left in whole or in part to the discretion of a third person or accomplished through the instrumentality of an agent or attorney. Q: Can the testator designate to a third person the typing of his last will and testament? rd A: It means that, it cannot be left, in whole or in part, to the discretion of a 3 person or accomplished through the instrumentality of an agent or attorney. However, the mere act of drafting/writing a will does not fall within the purview of the prohibition. Thus, it has been held that, he who does the mechanical work of writing the will, is a matter of indifference.(J) The fact, therefore, that the will was typewritten in the office of a lawyer is of no consequence. (Castaneda vs. Alemany, 3 Phil. 476; Bagtas vs. Paguio, 22 Phil. 227) Q: Is it advisable to employ an attorney, in making a will? What are its advantages? A: In making a will it is advisable to employ an attorney, for if we employ an attorney in so many cases involving little money, it should be wiser to employ one whenever the whole estate is involved. (57 Am. Jur., Sec. 21) Moreover, if an attorney drafts a will and is present at the time of its execution, there is a strong presumption that the will was regularly made. Q: Is a lawyer prohibited from assisting a person in making a will?

A: It depends. If the lawyer does only a mechanical act of writing the will, then, he is not prohibited. Otherwise, the will would be invalid. ARTS. 785-786 Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. Art. 786: The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums of money are to be given or applied. Q: What are the acts in making a will that cannot be designated to a third person? A: (a) duration or efficacy of the designation of heirs, devisees or legatees; (b) determination of the portions of which they are to take, provided that they are referred to by the name. (Art 785) Q: Why is it that the acts provided for under Art. 785 cannot be designated by the testator to third persons? A: 1) Those acts are TESTAMENTARY in character, and therefore, they cannot be designated, in whole or in part, to third person. N.B.: making of a will is a strictly personal act. 2) To prevent the third person from substituting his own intentions to that of the testator. Q: X ordered his lawyer to execute the distribution of the properties in his will, in favour of the heirs. Is the act/will valid? A: NO, because the determination of the portions to be given, lies on the third person. The properties to be distributed and the receivers must already be specified. The lawyer must only execute the distribution, without the possibility of substituting his own intentions over that of the testator. Q: X executed a Special Power of Attorney authorizing his lawyer to make a will. Is the SPA valid? A: NO, because the making of a will is purely a PERSONAL ACT. Q: X stated in his will: I give P1M to be distributed to charitable institutions devoted to unwed mothers, and, hereby designate Y to take care of the distribution of the said amount. Is this act valid? rd A: YES. The testator may entrust to a 3 person the distribution of a specific property or sums of money that he may leave in general, to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums of money are to be given or applied. (Art 786) Q: X, testator said to his lawyer, you may take whatever amount from my estate to be distributed to the street children of Manila. Is this valid? A: NO, because although there is a specified class (the street children of Manila), the amount to be given is not specified. The amount is termed as whatever amount. Q: In the preceding Q&A, what if X said to his lawyer, I give 10M to be given to the street children of Manila and I hereby designate you to take care of the distribution of the said amount. Is this valid? A: YES. Art 786 applies. *Street children of Manila Specified class *10M specified sum of money Q: What if X said, I hereby make the children of Hospicio de San Jose as my legal heirs, and declare my lawyer to determine the amount which they are to receive. Is this valid? A: NO, Art 785 applies because the heirs was referred to by name: the children of Hospicio de San Jose. Furthermore, the amount was not specified by the testator. It is the lawyer who determines the amount. Q: In the preceding Q&A, what if the testator said, I hereby make the 2002 graduating class of SBC as my legal heirs in the amount of 10M, and declare my lawyer to determine the amou nt which they are to receive. Is this valid? A: YES. The beneficiary was a specified class the 2002 graduating class of SBC. N.B.: Under Art 786, the property or the amount of money to be given must be specified by the testator, in addition to the requirement that it must be for a specied class or cause. Q: X ordered Y to distribute P50T from his estate, for whatever good cause he may think. Is this act valid? A: NO, because the recipient of the act is not a specified group or class. Art 786 does not apply. Q: X bequeaths the amount of P5M for Metro Manila. He authorized his executor, Y, to distribute the amount. Is the act valid?

A: YES. The testator may entrust to a 3 person the distribution of SPECIFIC PROPERTY or SUMS OF MONEY, that he may leave in general to a specified classes or causes, and , also the designation of the persons, institutions or establishment to which such property or sums of money are to be given or applied. (Art 786) In this case, X has already completed the testamentary act of making a will. What he delegated to Y, was merely the details thereof, in order to make the devise or legacy more effective. N.B.: The determination of the amount, which the heirs, devisees and legatees, are to take, is a testamentary act which cannot rd be delegated to a 3 person when such heirs, devisees or legatees are referred to by name. This prohibition is intended to discourage the illegal delegation of testamentary powers (Art. 785) Take note however, that the prohibition provided for under Art. 785 is different from the rule enunciated under Art. 786. Under Art. 786, it involves beneficiaries, who are not referred to by name, but are referred to by specified classes or causes. Q: X stated in his will, I give the amount of P50M, for the benefit of SBC, CEU, LCC and CHS school and I leave the distribution of the amount thereof to my lawyer. Is the provision valid? A: NO. Although they belong to s specified class, the heirs were referred to by name. So Art. 785, applies and not Art. 786. The heirs were specifically named and were not merely a particular class. Q: Supposed the testator stated in his will that, I will give the amount of P50M to all the college schools in Manila and I leave the distribution of the amount thereof to my lawyer. Is the provision valid? A: YES, because the schools are of a particular class. The third person can distribute the amount by himself. N.B. While Art. 785, enumerates in absolute terms, the different things, which the testator cannot do, Art. 786, enumerates by way of exception, the different things which the testator may do. Thus, the testator is allowed to entrust to a third persons: (a) The power to distribute specific property or sums of money, which he may left in general to specified classes or causes; and, (b) The power to designate the persons, institutions, to which such property or sums of money, are to be given or applied (J) What is contemplated under Art. 786, is that the testator has already COMPLETED the TESTAMENTARY ACT OF MAKING A WILL. What is entrusted to a third person are merely the details thereof, in order to make the devise or legacy more effective (J). EXAMPLE: A testator may bequeath P1M to a SPECIFIED CLASS, such as the different charitable institutions of Manila, or to a SPECIFIED CAUSE, such as, the cause of labor, entrusting at the SAME TIME, to a executor of his estate, the power to designate the different institutions or organizations to whom the said amount shall be given (J). ART. 787 The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. N.B. Under Art. 787. The act determining whether as testamentary disposition is to be operative or not, is NOT EXACTLY rd TETSTAMENTARY IN CHARACTER. But , the delegation of such act to a 3 person, would be tantamount to allowing the rd testator to substitute the will of a 3 person, for his own, which precisely, what the law intends to prevent, when it states that rd the making of a will cannot be left, in a whole or in part to the discretion of a 3 person (J). Q: Suppose it is stated in Mr. Xs will I will give mu house and lot to F, if my wife will agree. Is the provision valid? A: NO, because it is subject to the third persons determination. Under Art. 787 The testator may not make a testamentary disposition in such a manner that another person has to determine whether or not it is to be operative. Q: In the preceding, is the entire will invalid? A: NO, only those provisions whose effectivity depend upon the determination of the third person (Xs wife) will be invalidated. Q: What are the aspects of a will, governed by the law of the decedent? A: 1) order of succession; 2) and amount of succession; 3) intrinsic validity of testamentary provisions; and 4) capacity to succeed (art. 1039) Art. 1039 CC, Capacity to succeed is governed by the law of the nation of the decedent.

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Q: What is the Rule on the interpretation and construction with respect to testate succession? A: The rule is, to ascertain and give effect to the intention and desires of the testator, provided, they are not contrary to law. ART. 788 Art. 788: If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. Q: What if the provision of the will admits of different interpretations, which will be preferred? A: If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative, shall be preferred. The reason is that, testate succession, provided the will is valid, is preferred to intestacy. If no doubt exists and the disposition is clearly illegal, the same should not be given effect. ART 789 N.B.: Art 789 refers to 2 kinds of ambiguities. The Latent/Intrinsic ambiguity; and the Patent/Extrinsic ambiguity in the provisions of the will. The first part of the provision of Art.789 refers to the Latent/Intrinsic ambiguity, while the second part refers to the Patent/Extrinsic ambiguity. Q: What are the kinds of ambiguities/validities in the formalities of the will? A: They are: a) Latent or intrinsic ambiguities; b) Patent or extrinsic ambiguities. Q: What is latent or intrinsic ambiguity? A: It is, that which does not appear on the face of the will, and is discovered only by extrinsic evidence. E.g. I institute my brother-in-law. (when it is discovered, that there are 2 brothers-in-law). This ambiguity is not found in the will itself. The doubt arises only because of things outside the will. Note: In a will, this kind of ambiguity arises: a) When there is an imperfect description of the heir, legatee or devisee. b) When there is imperfect description of the gift being given; c) When only one recipient is designated, but it turns out that there are two or more, who fit the description. Q: What is Patent or Extrinsic ambiguity? A: It is, that which appears on the face of the will itself, in other words, by examining the provision itself, it is evident that it is not clear. E.g. I hereby institute some of my 7 brothers. ( It is evident here, that we do not know how many of the brothers are being instituted.) Note: In this case, extrinsic evidence, as well as the will itself may be examined (but not the oral declarations of the testator) to ascertain the testators intent, but if after everything has been done, the doubt still remains, not one of the seven brother s will inherit as instituted heirs, because then, the heirs will be considered as unknown persons under Art. 844 par 1(J). Q: What is the remedy if there is a latent/intrinsic ambiguity in the provision of the will? A: Ascertain the testatorial intention by using either, or both 1. Intrinsic evidence; or 2. Extrinsic evidence The oral declarations of the testator as to his intention must be excluded. EXAMPLE: X, who owns 2 parcel of land in a certain province, has devised one of them to his cousin, Marc. During the testate proceedings, a question arose as to the identity of the land devised because of the imperfect description of the property in the will. Q1: How can the identity of the property devised be determined? A1: Under Art 789, Marc may avail himself of either intrinsic or extrinsic evidence or of both, in order to ascertain the testatorial intention. Q2: Can Marc testify or present witnesses, who will testify to the effect that, during his lifetime, the testator, X, verbally declared or revealed the identity of the property he intended to devise? A2: NO. Such testimony would be hearsay, and therefore, inadmissible as evidence (J). Q: Suppose that the will states, I give to my 1 cousin Anne Ekaterina Navarro my house and lot in Quezon City. But three st 1 cousins of the decedent are named Anne Ekaterina Navarro. (1) What kind of defect is this? (2) What is the remedy? A: (1) Latent (2) Same as Patent. Q: What is the remedy if there is a patent/ extrinsic ambiguity in the provision of the will? A: The same as latent/intrinsic ambiguity. Ascertain the testatorial intention by using either, or both 1) Intrinsic Evidence or
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2)

Extrinsic evidence

The oral declarations of the testator as to his intentions must be excluded. Q: Why is oral declaration of the testator in determining the ambiguities in the will, not allowed? A: 1) It is merely HEARSAY, and therefore, inadmissible as evidence. 2) The testator is already dead by the time the ambiguities of the will are questioned, and therefore, he can no longer refute the testimonies of lying witness. Q: The testator will give his house and lot to two of his five brothers. (1) What kind of ambiguity is this? (2) Is the disposition valid? A: (1) Patent/Extrinsic. It is evident from the face of the will itself. (2) It depends. -YES. If the identity of the two brothers referred to in the will can be ascertained by extrinsic or intrinsic evidence. -NO, if the identity cannot be determined. In this case, the law on intestate succession shall apply. N.B.: (Navarros words) Pricipal Rule in interpretation of Wills: 1) Determine the testatorial intention; 2) Consider the provisions altogether; 3) Avoid provisions which will render the will ineffective; 4) Testacy is always preferred ART. 790. ART. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. ART 791 Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. Q: What is the effect, if the will of the testator is not followed? Or if the will is void? A: Intestate succession occurs. N.B.: Intestacy is not preferred because it is merely presumed. Testate succession is the general because, it is the express will of the testator. Exception: If the will is not valid or when the will is void. ART 792 Q: Will the invalidity of one of several dispositions contained in a will, result in the invalidity of other dispositions? A: NO, it will not result in the invalidity of other dispositions, which are otherwise valid, unless it is to be presumed that the testator would not have made such other dispositions, if the first invalid disposition had not been made. N.B.: Even if one disposition or provision is invalid, it does not necessarily follow that all the others are also invalid. The exception occurs when the various dispositions are indivisible in intent or nature. ART 793 AFTER ACQUIRED PROPERTIES: Under Art. 793, property acquired during the interval between the execution of the will and the death of the testator, ARE NOT AS A RULE, included among the properties disposed of, UNLESS, it should EXPRESSLY APPEAR in the will itself, that such was the INTENTION of the testator. E.g. If the testator made a will in 1980, disposing of his properties in the form of gifts or bequests of SPECIFIC or DETERMINATE REAL or PERSONAL PROPERTIES, and subsequently, during the period from 1980 to the time of his death in 1990, he is able to acquire other properties, according to Art.793, the will shall only pass those properties which he had at the time of its execution in 1980, but not those, which he had acquired subsequent thereto. It is clear however, that Art 793, applies only to DEVISES and LEGACIES and not to the institution of heirs. This can be inferred from the provisions of Arts. 776 and 781, regarding the extent of inheritance.

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Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. Art. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. E.g. X executed a will in 1980, instituting his 3 children A, B and C as his universal heirs. A shall entitled to , B to and C the remainder. X died only in 1990, leaving considerable properties, most of which were acquired during the period between 1980 and 1990. How will the estate be distributed? Or what part of the estate will be distributed? A. The division of the estate as dictated in the will shall be applied not only to those properties existing at the time of the execution of the will in 1980, but even to those that were acquired subsequent thereto, because A, B and C were instituted as heirs. Q: Why does the provision of AFTER-ACQUIRED PROPERTIES apply only to legatees and devisees? A: It does not apply to the heirs because the heirs inherit everything at the time of the testators death. The extent of the inheritance includes those properties acquired even after the execution of the will. The time of the death is the determining point of the properties, which the heirs will inherent, not the making of the will. The provision applies only to the legatees and devisees because the intention of the will is COMPLETED ACT. N.B. Do not confuse Art. 793 with Art. 781. Take note of the differe nce between after-acquired property (those acquired between the time of making the will and the testators death) and the property accruing since the opening of the succession (or the property added after the death of the decedent, referred to under Art. 781) ART. 794 Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. Q: What is the general rule, as to the interest may be disposed of? A: The entire interest of the testator in the property is given not more not less. E.g. The owner of a house who devises the same, transfer ownership over the entire house; if he (owner) were a mere coowner or a usufructuary, he conveys his share in the co-ownership, or his usufructuary rights, no more no less. Q. What are the exceptions to the aforesaid rule? A. See the discussion of Paras under Art. 794. ART. 795 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 made. Q: What law governs the intrinsic validity of a will? A: The law at the time of the death of the decedent. N.B. Kinds of validity with respect to wills: a.) Extrinsic validity -refers to the forms and solemnities needed -maybe seen from the viewpoint of time and place b.) Intrinsic validity -refers to the legality of the provisions in an instrument, contract or will -may be seen from the viewpoint of time and place The formal validity of the will is to be judged not by the law in force at the time of (a) the testators death; or (b) the s upposed will is presented in court for probate; or (c) when the petition is decided by court, BUT AT THE TIME THE INSTRUMENT WAS MADE (J) REASON: The testators wishes regarding the disposition of his estate among his heirs, devisees and legatees are given among his expression at the time the will is executed, and thus becomes a COMPLETED ACT: (Enriquez vs Abadia, 50 OG 4185: In Re Will of Riosa, 39 Phil. 23) (J) Furthermore, a testator cannot be expected to know the future, hence, it is enough that he follows the law in force at the time he makes the will (P) Q: What is the effect of a new law changing the formalities of a will? A: 1) AFTER THE DEATH of the testator, the rules have no effect because the heirs already have a vested right. 2) BEFORE THE DEATH of the testator, the rules have no effect. Exception: If the new law expressly provides for a retroactive application.

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Exception to exception: When the heirs already have a vested right. Q: In the preceeding problem, does the exception (w/ respect to the retroactive application of the law) violate the constitutional prohibition regarding the deprivation of property w/o due process of law? A: NO. It does not violate the constitutional prohibition regarding deprivation of property w/o due process of law, because (a) the statute is enacted BEFORE the death of the testator; and as a consequence, (b) NO RIGHTS are as yet, vested in the persons called to the inheritance either as heirs, devisees or legatees. Furthermore, the will is still revocable. Thus, if the testator has made a will and a new law is passed affecting the will, the testator may still change the will to conform to the new law (J). Q: What then is the rule under Art. 795? A: A will perfectly valid at the time of its execution cannot be invalidated by a law enacted after the death of the testator; neither can a will totally void at the time of its execution be validated by such subsequent legislation (J). Q: Suppose X executed his last will and testament in September 13, 1999. The law, at the time the will was executed, required 3 witnesses. But at the time X executed his last will and testament, only 2 witnesses were present. A month thereafter, a new law was passed requiring only 1 witness. Should Xs will be given effect? A: NO, because the validity of the will as to its form depends upon the observance of the law in force at the time it is made. The formal validity of the will is to be judged, not by the law in force at the time the supposed will is presented in court for probate, or when the petition is decided by court, but at the time the instrument was executed. Although the will operates only after the death of the testator, in reality, his wishes regarding the disposition of his estate among his heirs, devisees and legatees, are given solemn expression at the time the will was executed. It is also during the same time, that the will becomes a completed act. Q: Suppose at the time of the execution of the will, the law requires 3 witnesses. The will was executes by X, complying with such requirement. Thereafter, a subsequent law reduced the number of witnesses until the time X died. Is the will valid? A: YES. Although, the will did not comply with the formalities prescribed by law, enacted after the execution of the will, yet, it can still be admitted to probate because it had complied with all of the formalities in force at the time of its execution. Q: Is the rule enunciated in Art. 795 absolute? A: NO. The validity of a will as to its form depends upon the observance of the law in force at the time it is made, EXCEPT, if a subsequent law allows or requires retroactivity. A latter law may allow for express retroactivity a implied from the language used therein. Q: Suppose X died before effectivity of a new law, but probate of the will was initiated after the effectivity of the law. Will the new law be given retroactive effect? A: NO. The new law must not be given retroactive effect, as this will violate the vested rights of the heirs. Q: Why? A: Because the rights are transmitted at the time of the death of the decedent. Lorenzo vs. Posadas (64 Phil. 353) FACTS: Thomas Hanley died, leaving a will and some personal and real properties. The will, which was duly admitted to probate, provides among other things that all properties of the testator shall pass to his nephew, Matthew Hanley. However, it also provides that all the real estate shall be placed under the management of the executors for a period of ten years. After the expiration of which, the properties shall be given to said Matthew Hanley. Plaintiff contends that the inheritance tax should be based upon the value of the estate at the expiration of the ten-year period, which according to the testators will, the property could be and is to be delivered to the instituted heir, and not upon the value thereof, at the time of death of the testator. HELD: Whatever may be the time when the actual transmission of the inheritance takes place, succession takes place in any event at the moment of death of the decedent. Death is the generating source from which the power of the State to impose inheritance taxes takes its being. Hence, if upon the death of the decedent, succession takes place and the right of the State to tax vests instantly, the tax should be measured by the value of the estate as it stood at the time of the decedents death, regardless of any subsequent contingence affectin g value or any subsequent increase or decrease in value. (See discussions of Paras with respect to Art. 795) ARTS, 796-800 : TESTAMENTARY CAPACITY AND INTENT N.B. For your own benefit, study the distinction between testamentary power and testamentary capacity as discussed by Paras. TESTAMENTARY CAPACITY refers to the ability as well as the power to make a will.

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ART. 796 Q: Who may make a will? A: All persons who are not expressly prohibited by law may make a will (Art. 796) Q: Is the right to make a will a natural right? A: No, because not all persons are qualified to make a will. The law provides some requirements before a person can execute a will It is purely a creature of statute, and as such, is subject to legislative control. ART. 797 Q: What are the minimum requirements for persons, in making a will? A: 1) must be 18 YEARS OLD 2) must be of SOUND MIND 3) must NOT be expressly PROHIBITED BY LAW Q: When does a person become 18? A: A person is said to have reached the age of 18 only at the commencement of the day which is popularly known as his birthday N.B.: 18 years of age: -Minimum age required -As long as the will is made before the decedent reaches the age of 18, the will is void -Good faith is immaterial -The law does not fix a maximum age Q: X mad a will, when he was only 17. He died w/o changing the will. Is the will valid? A: NO. X has no testamentary capacity at the time of the execution of the will. Supervening capacity or incapacity does not affect the will because its validity is determined at the time of the execution of the will (Art. 801) Q: In the preceding problem, what if X believed in good faith that he was already 18 years of age? Is the will valid? A: No. Good faith is immaterial. Q: Suppose that X is already 95 years old? Can he still make a will? A: YES. (mag Viagra lang daw!!!) Q: What if X, being 95 years old, has lapses of memory? A: He may still make a valid will. Q: What if X suffers from tuberculosis (diabetis, AIDS, SARS, etc.) A: He may still make a valid will. Q: What if X does not remember that he has a wife and children? A: No, because he does not know the proper object of his bounty. Q: What if he was a BPI bank acct, but foes not know the exact amount or he knows he has a lot in QC but he does not know the exact address? A: He may still make a valid will for as long as he knows the nature and extent of his estate. N.B. 1) The law prescribes no limit in point of age beyond which a person cannot dispose of his property by will. Hence, mere senility or infirmity of old age does not necessarily imply that a person lacks testamentary capacity. 2) A person is considered to have reached the age of 18 on the 1 hour of his birthday 3) Neither physical infirmity or disease is inconsistent with testamentary capacity. The usual tests must still be applied. 4) Senile dementia produces testamentary incapacity. It is defined as the peculiar decay of the mental faculties, whereby the person afflicted is reduced to a second childhood. 5) The fact that the testator is under the immediate influence of intoxicating liquor or drugs at the time he performs the testamentary act, does not invalidate his will, on the ground of lack of testamentary capacity, provided he meets the three requirements
st

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6) An insane delusion, which will render one incapable of making a will may be defined as a belief in things, which do not exist, and which no rational mind would believe to exist. 7) A belief in spiritualism is not in itself a sufficient evidence of testamentary incapacity. However, a will executed by one under such extraordinary belief in spiritualism, that he follows blindly and implicitly, the supposed discretion of the spirits in constructing the will, is not admissible to probate. Navarros Example: Belief in angels: a) If no angel delusion b) If there is angel undue pressure and influence or even threat. ART. 798 Art. 798: In order to make a will it is essential that the testator be of sound mind at the time of its execution. ART 799 Q: When is a person of a sound mind? Or, what is the determination of a sound mind as applied in the making of the will? A: To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty and the character of the testamentary act. N.B. Soundness of mind is the ability of the testator, mentally to understand in a general way, the nature and extent of his property, his relation to those who naturally have a claim, to benefit from his property left by him (proper bounty), and a general understanding of the practical effect of the will is executed (must be aware that his act is revocable and must be aware of the effects of his act of making a will). Q: Suppose X suffered a stroke and part of his brain was damaged. Can he still be considered to be of sound mind for purposes of executing a will? A: It depends. If the brain damage sustained by X is so severe, that it deprives him at the time of making the will, to know the nature of the estate to be disposed of, the proper object of his bounty, and the character of his testamentary act, then, X cannot be considered to be of sound mind. But if the brain damage sustained by X, is not so severe, that at the time of making the will, he is able to know the nature of the estate to be disposed of, the proper object of his bounty, and the character of his testamentary act, then X can still be considered to be of sound mind. Q: What are the requisites in order that a testator may be considered to be of sound mind? A: The testator must be able, at the time of making the will, to know: a) The nature of the estate to be disposed of, b) The proper objects of his bounty; and c) The character of his testamentary act. Q: What does nature of estate mean? A: It refers to the character and the testators ownership of what he is giving. Q: X decided to make a will. He knows he has properties in Manila; but he does not know the exact address. Is the disposition valid? A: YES, because the law merely requires that the testator knows, in a general way, the nature and the extent of his properties. In this case, X is of sound mind when he executed the will. Q: X made a will in 1990. He knew he has money in the bank and a house in Manila. But, he forgot the specific details concerning his properties. Is the will valid? A: YES, because X knows, the extent of his properties in a GENERAL WAY. He is of SOUND MIND. Q: What does proper objects of his bounty mean? A: It refers to the testators relation to those who would naturally have a claim, or to those who would benefit from the property left by the testator. In short, it refers to the persons, who for some reason expect to inherit something from the testator. E.g. testators children. Q: Is it necessary that the testator should know the beneficiaries of his will? A: As a general rule, YES, because the law requires the testator to be aware of the proper objects of his bounty, except in Art. 786, which provides, that the testator may designate only a specific class or cause in his will, and that the third person shall be responsible for allocating the specific portion to its members. Q: What does testator is able to know the character of his testamentary act mean?

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A: It means that the testator knows that it is really a will, that it is a disposition mortis causa, that it is essentially revocable. In short, the testator must have a general understanding of the practical effect of the will as executed. Q: Can a drug addict make a valid will? A: As a general rule, YES, a drug addict can make a will, as long as, he is in his lucid mind and he complies with all the nd requisites provided for, under Art. 799 2 par. The exception lies, when the effects of drugs are so strong as to render him of unsound mind. ART. 800 Q: Under Art. 800, the law presumes that every person is of sound mind, in the absence of proof to the contrary. What are the instances, when this presumption is inverted? Or, what are the instances, when the testator is presumed to be mentally unsound? A: There is at least 3 instances: a) When the testator, 1 month or less, before making his will was publicly known to be insane. *Instead of presumption of mental capacity, there is a presumption of mental incapacity. *The burden of proof is shifted to the proponents of the will. b) If the testator made the will after he had been judicially declared to be insane, and before such judicial order has been set aside. (Torres vs. Lopez, 48 Phil. 772) c) If the testator makes a will, at a time, when he is still under guardianship. Q: What is the reason for the inversion of the rule, when the person who made the will is under guardianship? A: A prima facie presumption of mental incapacity, when the person is under guardianship. Q: If during the probate of the will, there is a question as to the soundness of mind of the testator. Oppositors to the will presented the attending physician. Whose testimony shall be given weight, the attending physician or the doctor who renders a medical speculation? A: Attending physician. Navarro: I suggest that you get the following as witnesses to the execution of a will: 1) Priest or minister highly credible 2) Doctor attending physician 3) Lawyer familiar with the law Q: What is the effect of infirmity or disease on the testators testamentary capacity? A: Physical infirmity or disease of the testator will not affect his testamentary capacity, as long as, the tests/requisites are complied with (J). Q: X executed a will. In order for her to sign the will, it was necessary for Y, a minor, to guide her hands. Does X still has testamentary capacity? A: YES, as long as, the three requisites/tests are complied with. N.B.: MENTAL INSANITY refers to any disorder of the mind resulting from disease or defect of the brain, whereby mental freedom may be perverted, weakened or destroyed. This is sometimes used as the equivalent of mental incapacity to make a will. But there may be mental incapacity to make a will without actual insanity. Persons suffering from, a) Idiocy, b) Imbecility, and c) Senile dementia, They do not possess the necessary mental capacity to make a will, since these are absolute and permanent forms of mental disease or insanity. IDIOCY refers to those who are mentally deficient in intellect. IMBECILITY refers to those who are mentally deficient as a result of disease. But there are other forms or degrees of mental disease/weakness, which do not necessarily negative testamentary capacity. Under our law, to be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. (Art. 799) Hence, mental aberrations, which do not result in such impairment of the faculties as to render the testator unable to know or understand the nature of his estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act, will not destroy testamentary capacity (J). ART. 801 N.B.: Supervening capacity or incapacity does not affect the will because its validity is determined at the time of execution of the will.

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Q: Does the supervening incapacity of the testator invalidate an effective will? Or, is the will of an incapable validated by the supervening of capacity? A: NO for both. See Art. 801 in relation to Art. 795. Q: X made a will, when he was only 17. He died at the age of 27 without changing the will. Is the will valid? A: NO, X has no testamentary capacity at the time of the execution of the will. Supervening capacity or incapacity does not affect the will because its validity is determined at the time of the execution of the will. Q: Supposed X made a will in 1975, when he was 25 years old. In 1997 he became insane. He died in 1999. Is the will valid? A: YES, subsequent incapacity of the testator does not invalidate a valid will. Q: How many times can a person make a will? A: There is no limit as to how many times can a person make a will, as long as, he has the capacity to do it. Once a person is 18 years old the law presumes capacity. So even if the testator is already 100 years old the will is still valid, unless otherwise proven. Q: Does the law prescribe a limit in point of age by which a person can dispose of his property by will? A: No, as long as, the testator passes the test a sound mind, provided for under Art. 799. That is, that the testator, at the time of the making of the will, is able to know: a) The nature of the estate to be disposed of; b) The proper objects of his bounty; and c) The character of the testamentary act. Q: What is the reason, why a person below 18 years of age, is incapacitated to make a will A: The law presumes mental incapacity. Q: Why is a person too old, still allowed to make a will? A: It has been justly said, that the will of an aged (old) person, should be regarded with tenderness, provided, that he passes the three tests of possessing a sound mind. ARTS. 802-803 Q: Why is there no provision about married men, on laws of testamentary capacity and intent? A: Because there is no doubt as to the rights of men in succession. Unlike women due to the Old Civil Code. Q: Can a married woman execute her last will and testament without the consent of her husband and without authority from court? A: YES. A married woman may execute a will without the consent of her husband and without authority of the court (Art. 802). Q: What are the properties which a married woman may dispose of by will? A: A married woman may dispose by will, all of her separate property, as well as her share of the conjugal partnership or absolute community property. Q: What if the husband objects, can she still make a valid will? A: YES. Art. 802, is very clear on this. A married woman may make a will without the consent of her husband. Aside from the minimum requirements that she must be: (a) 18 years old, and (b) be of sound mind, nothing more is needed for a married woman to validly make a will. ARTS. 804-814: FORMALITIES OF WILLS Q: What are the classifications of wills? A: (a) Ordinary/notarial; and (b) Holographic. Q: What is a holographic will? A: It is a written will which must be entirely written, dated and signed by the hand of the testator himself, without the necessity of a witness (J). Q: What is the object of the solemnities surrounding the execution of wills? A: (a) to close the door against bad faith and fraud; (b) To avoid substitution of wills and testaments; and (c) to guarantee their truth and authenticity.(J) Q: What are the formalities of an ordinary/ notarial will? A: MEMORIZE ARTS. 804-808 VERBATIM

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Q: What are the formalities of a holographic will? A: MEMORIZE ARTS. 810-814 VERBATIM N.B.: MEMORIZE ARTS. 804-814 Q: Can there be an oral will? A: NO. Art. 804 expressly provides, every will must be in writing xxx Q: X, knowing that he is about to die, dictated in front of a video camera his last will and testament. Is the will valid? A: NO. The will is invalid. Art. 804 expressly provided that the will must be in writing. Q: What does language must be known mean, as provided for, under Art. 804? A: It means that, the language of the will must be personally known to the testator whether he is illiterate or not. That it will be communicated only to him without changing any intent therein, if he is blind, deaf-mute or deaf. (E.g. if the testator is an illiterate and he speaks tagalog only, the will must be in tagalog. Q: Does the aforementioned rule apply to witnesses? A: NO, the witnesses need not know the language of the will or attestation clause. This is the reason why the law requires it to be interpreted to them and not merely communicated. Q: X speaks and understands Tagalog only. He does not understand a single English word. His lawyer, Atty. Sobrang Yabang wanted to impress X. So he wrote Xs will in English. However, Attty. Sobrang Yabang translated and explained the will, word for word to X. Is the will valid? A: NO, because the law requires that the will shall be written in the language KNOWN to the testator. N.B.: This rule applies even if the person is blind, deaf or deaf-mute. Q: In the preceding problem, why is it required to be written in a language known to the testator? A: Because a will is a personal act concerning a disposition of ones properties. Q: What about if the translator is the best translator that the world can offer? A: The will is still invalid. No matter how good the translator can be, something may be lost in the process of translation. Q: Is it necessary for the validity of the will, that it is stated, that the will was executed in a language or dialect known to the testator? A: NO N.B: It is a matter that may be established by proof of aliunde (extrinsic evidence). Q: Can it be written in Latin? A: YES, as long as, it is known to the testator (Art. 804) Q: Can a will be written in several languages? A: Yes, as long as the languages used are known to the testator. Q: When X executed his will, it contained 10 dispositions. Each of the 10 dispositions was written in different dialects and languages. X used French, Spanish, Latin, English, Tagalog, Bikol, Cebuano, Waray, Ilonggo and Hiligaynon10 dispositions in the will. Is the will valid? A: It depends. If X knows all of these languages and dialects, then, the will is valid. The only requirement as to the language or dialect used in the making of the will, is that, it must be known to the testator. Otherwise, the will is totally invalid. Q: In the preceding problem, what if X only knows English? A: The will is totally invalid. Q: Can the testator make a valid will using any kind of material? A: Yes. Q: Can there be a valid notarial will on a material other than paper? A: Yes. Q: If the testator executed his holographic will on a blackboard or on a tree leaf, is the will valid? A: YES, as long as it is entirely written, dated and signed by the hand of the testator. Hence, it can be written on any material. Q: How about if the will is written on a wall? A: Yes, the will may be valid, provided it complies with all the requisites.

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A: YES, as long as, it complies with all the requirements for the valid execution of a holographic will. Art. 810 provides th at, A person may execute a holographic will which must be ENTIRELY WRITTEN, DATED AND SIGNED by the hand of the testator himself. It is SUBJECT TO NO OTHER FORM, and may be made in or out of the Philippines, and need not be witnessed. The will therefore, remains to be valid although it has been written on a watermelon leaf. N.B.: The law does not specify that the testator himself must perform the act of writing. However, under Art. 410 provides, that in case of HOLOGRAPHIC WILLS, the will must be entirely written, dated and signed by the hand of the testator himself. Consequently, it is only in ORDINARY/NOTARIAL WILLS that whoever performs the mechanical act of writing or drafting the will becomes a MATTER OF INDIFFERENCE (J). Q: What constitutes a sufficient signature to a will? A: It depends largely on the custom of the time and place, the habit of the individual, and the circumstances of each particular case. But, it should be manifest, that whatever is used is actually intended as a signature (J). Q: What is meant by a signature? A: It is a sign, token or emblem, and what that shall be, depends upon the custom of the time and place, and on the habit or whim of the individuals. The material thing is that, the testator made the mark to authenticate the writing as his will, and whatever he puts on it for that purpose, will suffice. N.B.: 1) SUBSCRIPTION is the manual act of the testator and also of the instrumental witnesses of affixing their signatures to the instrument. The purpose of the signature, as applied to the testator are the ff: a) To identify the testator b) Authenticate the document The test of a sufficient signature is if the testator INTENDED IT AS HIS SIGNATURE. The testator may use as his signature the a) First name b) Assumed name c) Name different from the one used to designate him as a testator in the will d) Name misspelled or abbreviated e) Rubber stamp/engraved mark f) Thumbmark g) Cross against his name.

2)

3) 4)

Provided, that any of the aforementioned was intended by the testator to be his signature. N.B.: With respect to the use of a mere cross (X) as a signature: 1) It is not sufficient as a signature, without any proof that the testator intended it to be his signature. 2) If proof is presented that the testator intended a mere cross (X) to be his sign ature, then it may be considered as a valid signature in a will. Garcia vs. Lacuesta (90Phil. 489) The X mark was not allowed by the court because there was no proof that it was the customary signature of the testator, or one of the ways by which he signed his name. In this case, the mark was questioned because the will was executed by a lawyer, and such fact , that it was under the express direction of the testator was not stated in the will. Q: Can the testator sign with his stage name? A: Yes. Q: Nickname? A: Yes. N.B. Generally Speaking, the use of any signature intended by the testator to authenticate the instrument renders the will sufficiently signed by the testator.

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Hence, a complete signature is not essential to the validity of a will, provided, that the part of the name written was affixed to the instrument with intent to execute it as a will. Q: Can the witnesses sign the will and attestation clause with a footmark or a thumb mark? A: YES, as long as the witness intended it to be his signature. Q: Suppose, it is not customarily used by him? A: Even then, for the law does not provide that he sign with what he customarily uses as his signature. Q: Can the testator sign with his thumb mark, even If he knows how to write? A: Yes. Q: Foot mark? A: Yes. Q: Any mark? A: Yes. N.B.: Any mark or combination of marks placed on a will by the testator as his signature is a sufficient compliance with a statute requiring a will to be subscribed by the testator. If the testator has been in the habit of using a rubber stamp or engraved dye, in making his signature, he may properly use the same in signing his will. Q: The testator sign at the beginning of the will. Is the will valid? A: NO, Art. 805 provides, Every will, other than a holographic will, must be subscribed at the END thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction xxx. Q: Suppose X signed his will in the middle. Is the will valid? A: NO, because of the express requirement under Art. 805, which requires subscription in the END. N.B.: 1) END refers to the logical end of the will, not the wills physical end. 2) Logical end is the portion after the testamentary disposition.

Q: X died with a will. When the will was presented for probate, it was readily apparent, that it was signed in each and every page and in the left margin, but not the end. Should the will be allowed? A: NO. The law requires that the will be subscribed at the end of the will. Q: Is it a fatal defect? A: Yes. Q: Why require that the signature must be at the end of the will? A: The purpose of such requirement is not only to show that the testamentary purpose therein expressed is completed, but also to prevent any opportunity for fraud or interpolations between the written matter and the signature. N.B.: Another essential requirement for the validity of an ordinary will is the ATTESTATION CLAUSE. Absence of this clause will render the will a nullity. Therefore, it is mandatory (J). ATTESTATION 1) An act of the senses 2) A mental act 3) Purpose is to render available proof during the probate of the will, not only of the authenticity of the will but also of its due execution. SUBSCRIPTION 1) An act of the hand 2) A mechanical act 3) The purpose is identification/to identify that it is really the will of the testator.

Q: Suppose X executed a notarial will, the attestation clause of which is in Spanish. X knows English but not Spanish. Is it a valid will? A: Yes. Q: Can there be a valid will without an attestation clause? A: None. Q: Why then should an attestation clause in a language not known to the testator be permitted? A: The attestation clause is a declaration made by the witnesses, not by the testator. Q: What is the purpose in requiring the witness to attest and subscribe to the will? A: 1) To identify the instrument;

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2) To protect the testator from fraud and deception; 3) To ascertain the testamentary capacity of the testator. Q: What is an attestation clause? A: It is a memorandum or record of facts wherein, the witness certify that the instrument has been executed before them and that it has been executed in accordance with the formalities prescribed by law. Q: Is the attestation clause part of the will? A: NO, it is separate and distinct from testamentary dispositions, which were executed by the testator. It is a separate memorandum executed by the witnesses stating that they witnessed the execution of the will and that it is in accordance with the formalities of the law. But it can be incorporated in the will. Q: What is the purpose of the attestation? A: To render available proof during the probate of the wil, not only of the authenticity of the will, but also of its due execution. Q: Where should the attestation clause be placed? A: The attestation clause may be written immediately after the signature of the testator, at the end of the will. Q: What if placed at the beginning of the will? A: The will would still be valid. The present form is only for convenience. N.B.: 1)

2)

The law does not require the attestation to be contained in a single clause. Thus, where a will did not contain a separate and independent attestation clause, but the concluding paragraph of the body of the will was written in the tenor of an attestation, stating the facts required by law to be set forth in an attestation clause, and the penultimate paragraph of the will stated the number of pages used, it was held that there was a sufficient attestation clause. If there is a separate attestation clause, it need not be written on the very same page where the dispositions of the will ends, even if, there should be sufficient space in which to begin the said clause.

Q: Is it necessary that the attestation clause be after the testamentary dispositions? A: NO. The current form is only for convenience. Q: What must be stated in the attestation clause? A: See Art. 805 par 3, The attestation shall state the number of pages used upon which the will is written, and the fact tha t the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. Q: Give an example of an attestation clause? A: We the witnesses, do hereby certify: a) that the will of Mr. A consists of 5 pages , including b) the page that Mr. A executed his signature and every page thereof in our presence, c) that we witnessed the execution of the will and signed each and every page thereof, in the presence of Mr. A and each other. (signatures must follow) Q: Suppose that the phrase every page thereof was not included. Should the wil l be allowed? A: YES. Compliance with the requirement that every page thereof be signed, may be proved by the marginal signatures in each and every page of the will. Q: Suppose that it is the phrase in our presence which was deleted. Should the will b e allowed? A: NO. There would be nothing in the will that will prove compliance thereto. Q: Is it tenable, that the signature for the clause be found in other parts of the page? A: NO. In Cagro vs. Cagro, it was held that the signatures must be after the clause, to show that the clause was indeed executed by the witnesses. Non-appearance of the signature will negate the declaration that they saw the due execution of the will. Note: The ruling applies, despite the fact that the case was decided under the old rules on succession. Q: If the attestation clause failed to state (a) the number of pages; (b) the fact that it was signed by the testator, in the presence of the witnesses; or (c) the fact that it was signed by the testator, is the will valid? A: a) As to the number of pages: General rule: the will is not valid. Exception: if the number of pages is STATED IN THE WILL ITSELF OR ACKNOWLEDGMENT. (Taboada vs. Rosal)

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b)

c)

N.B. But this exception must be received with caution, because in the case of Taboada, there were only two pages in the will, including the acknowledgment. This rule applies also if the pages are not correlatively numbered.. but only in cases when the will does not exceed two pages. The will is VOID without any exceptions even if the will contains the signature of the witnesses. The omission can not be determined by examination of the will itself. N.B. Evidence aliunde/extrinsic evidence is inadmissible. The will is VOID, Exception: The doctrine of Liberal Interpretation shall be applied, if there are indeed signatures present.

Q: Suppose the attestation clause does not state the number of pages used. Is the will valid? A: General rule: No. Exception: Applying the rule of liberal interpretation/construction, the failure to state in the attestation clause of the number of pages used, is not fatal. Hence, the will may still be valid, provided that it can be established or deduced from an examination of the will itself, that all of the statutory requirements have been complied with. N.B.: Prof. Navarro said, the doctrine of liberal interpretation cannot be applied if the omission consists of the failure to state that the witnesses and the testator signed in the presence of one another. REASON: this omission cannot be remedied by an examination of the will itself. Q: Can a testator ask a third person to sign for him, even if he is physically able to do so? A: Yes. Q: If the third person is not capacitated would the will be allowed? A: YES. The will remains to be valid. What is material is the capacity of the testator, not that of the third person. Q: Why should the third person sign in the presence of the testator? A: Because it is the testator himself who is signing. The third person is merely an extension of the physical self of the testator. Page 25

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Used, it is necessary that both front and reverse sides should bear the signatures of the testator and each of the witnesses. In other words, every page used in the will should be signed on the left margin. Q: Suppose that in a 4-page will the attestation clause did not state the number of pages used. But the last paragraph states that the will is comprised of 4 pages including the attestation clause, should the will be allowed? A: YES. Following the doctrine of liberal interpretation, there is substantial compliance of the requirements. That is, the failure of the instrumental witnesses to state one or some of the essential facts which, according to law, must be stated in the attestation clause would not be fatal, provided, it can be established or deduced from the examination of the will itself that all of the statutory requirements have been complied with. Take note that in this case, the body of the will states that it is composed of 4 pages. Taboada vs. Rosal (118 SCRA 195) FACTS: The attestation clause of a notarial will failed to state the number of pages thereof. However, it is discernible from the entire will that it really consists two pages only: the first, containing the provisions; and the second, both the attestation clause and the acknowledgment. Besides, the acknowledgment itself states, that This last will and testament consists of two pages including this page. HELD: Under the circumstances, the will should be allowed probate. After all, we should approach the matter liberally. N.B. Cagro vs. Cagro Q: Is there a need to interpret the attestation clause to the testator? A: NO, A.C. is an act of the witnesses alone. N.B.: TEST OF PRESENCE: 1) There is presence, if the parties could have seen each other, if they have simply chosen to do so, by turning their backs to each other. **There must be NO physical obstruction of their line sight. 2) To satisfy the test of presence, it is essential, that the testator and the witnesses should be (a) conscious; and (b) aware of what is happening. 3) If the testator is blind, the sense of sight to determine presence is not to be used. In this case, other senses, such as hearing or touch, can be used. Q: What is the test of presence in the execution of the will? A: The testator and the witnesses need not actually see each other signing. It is sufficient that they could have seen each other sign if they choose to do so, taking into consideration circumstances, the mental and physical conditions of the parties and their proximity from each other. They must be aware that each other are signing a will, and their view must be unimpeded. So that, they will see the will, if they choose to see it. (Jaboneta vs. Gustillo and Nera vs. Rimando)

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Q: Does the law require physical proximity in order to have a valid presence? A: (not necessarily) Test of a valid presence does not necessarily require actual seeing, but the possibility of seeing without any physical obstruction. a) When a person merely has his back turned, the signing is done in his presence, since he could have cast his eyes to the proper direction. b) If there is a curtain separating the testator and some witnesses from the other witnesses, there would be a physical obstruction, and the will cannot be valid. Q: What are the reasons why the will must be executed in the presence of each other the Testator and the Witnesses? A: 1) To PREVENT FALSE TESTIMONIES between the principal executors of the will; 2) to OBTAIN A PERMANENT RECORD of the events that transpired, in case the memory of the executors fail. Q: Testator signed the will on January 1, 2002. The witnesses signed the will on the following day. The testator acknowledged that the signature was his. Is this valid? A: NO. The law requires that the will be signed in the presence of each other. The acknowledgment made by the testator did not cure the defect. The purpose of the requirement is to prevent the substitution of surreptitious will. Q: While the testator was signing the will, the witnesses looked out the window. Is the will valid? A: YES, because the witnesses could have seen the act, had they chose to do so, considering their mental and physical condition. Q: X executed his will in another room, while the witnesses A, B, and C played hide and seek in another room. When the witnesses entered the room, where X executed his will, they saw X signing the last 2 pages of the will. Is the will valid? A: NO, because the will was not signed in the presence of each other. N.B.: The aforementioned Q&A is different from the case of Jaboneta vs. Gustillo. In this case, the witnesses were in the act of leaving the room but they saw their fellow witnesses signing the will. They knew that the paper being signed is the will. Hence, the TEST OF PRESENCE was satisfied. Q: Suppose the testator is blind, how do you satisfy the requirement of presence? A: Test of available senses: touch and hearing. Q: Must the witnesses see the testamentary dispositions, for the valid execution of the will? A: NO, because the law merely requires them to attest to the execution of the will, provided however, that they are aware that they are signing a will. Otherwise, it is not valid. Q: X executed a notarial will with A, B and C as the instrumental witnesses. X did not allow A, B and C to read the will. Is the will valid? A: Yes. The law does not require that the instrumental witnesses should read the will for its validity. Q: In the preceding problem suppose X did not even allow A, B and C to read the attestation clause. X simply asked them to sign. Is the will valid? A: NO. The instrumental witnesses should read the attestation clause because it is their act. Q: X signed the will on January 1, the next day the instrumental witnesses came to sign the will. Is the will valid? A: NO, there is no unity of act. N.B.: THIRD PERSON SIGNING IN FAVOR OF THE TESTATOR Persons signing must be (a) under the express direction of the testator; and (b) under the latters presence. In thi s case, it refers not only to the physical presence of the testator, but the testator must also be conscious and aware of what is happening. Q: Is it necessary that the person signing in favour of the testator must have a testamentary capacity? A: NO, because the persons act is merely an extension of the testators act. What is material is the capacity of the testator; provided however, that the signing must be under the express direction and presence of the testator. Note: Even a 15 year old person, may sign in behalf of the testator. Q: X executed a will. The will was subscribed by writing at the end thereof, the name of X. But Xs name was written by Y. Is the will valid? A: YES, as long as the name of X was written by Y in the presence of X and under his express direction and it is attested and subscribed by three or more credible witnesses in the presence of the testator and of one another and such fact must be mentioned in the A.C. Q: Suppose in the preceding problem, Y omitted the name of X, and instead placed his own name. Is the will valid? A: NO, because this would no longer be the testators act. The law requires that the name of the testator must be written. Q: If one of the 3 witnesses signed the will in behalf of the testator. Is the will valid?

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A: NO. The will is not valid because there is a CONFLICT between his duty to the testator and his duty as attesting witness. This rule applies to a notary public who functions as an attesting witness or a third person signing in behalf of the testator. Q: X authorized his lawyer, Atty. Y, to sign his will. However, when Atty. Y was signing the will, X was sleeping beside him. Is the will valid? A: NO, because the testator must be conscious, that the lawyer was signing the will for him. In this case, although the testator was present when his lawyer was signing the will, he was not aware of it. The test of presence was not satisfied. N.B.: The testator need not be physically incapacitated to ask a 3 person to sign the will for him, provided, that the fact of the rd signing by the 3 person in his presence and under his express direction, shall be stated in the attestation clause. (Garcia vs. Lacuesta) Q: Suppose the testator was already sick and asked his lawyer to sign his will, in a separate room. Is the will valid? A: NO, because the signing was not made in the presence of our testator. Q: If the testator, upon the return of his lawyer was already unconscious, and the lawyer signed in the same room where the testator was and in the presence of instrumental witnesses. Is the will valid? A: NO, because the testator is not aware. It is therefore, not considered to be signed in the presence of the testator. Note: To satisfy the test of presence, the testator must be aware that another person is signing the will. Q: If the testator dictated the provisions of the will to the lawyer and since the testator can no longer sign, the lawyer suggested that he will sign it for the testator. Is the will valid? A: NO, because the law requires that the third person should sign by the express direction of the testator. Q: In the preceding problem, what if the testator nodded his head? Is the will valid? A: YES, nodding of head is considered to be an express direction. N.B.: Express direction may be made by action or conduct. Such as nodding of head. Q: The law requires 3 witnesses in the execution of the will. Is the will valid if there are only 2 witnesses? A: NO. The will is not valid if there are only 2 witnesses. The law expressly requires 3 witnesses. Q: What about if there are more than 3 witnesses in the execution of the will? Is the will valid? A: YES, Art 805 provides, xxx and attested and subscribed by three or more credible witnesses xxx. The excess shall only be considered as a mere surplusage, but it would not affect the validity of the will. N.B.: 1) 2)
rd

3)

Lack of signatures in the left margins is fatal, unless, there is a duplicate copy of the original. (Icasiano vs. Icasiano) The ruling in Icasiano vs. Icasiano, should not be applied in all cases, when the signatures of the witnesses do not appear on the margin of the will. It can be applied only if there is a duplicate original copy of the will. In this case, there was no issue on the validity of the will, due to the presence of the copy. The requirement regarding the LOCATION (left margin) of the marginal signatures is not mandatory in character, provided, that such signatures are present in every page of the will, (except the last page). So, the marginal signatures may be found on the right margin and the will is still valid.

Q: Is it necessary for the validity of an ordinary/notarial will that is dated? A: NO. The notarial will is still valid despite the fact that there was no date in the will. The notarial will must be acknowledged. In this case, the date of the acknowledgment can supply the date of the execution of the will itself. Q: Why must a holographic will be dated? A: Unlike a notarial will, a holographic will is not acknowledged nor witnessed. So, if the capacity of the testator is questioned, there is no date in which we can determine whether the testator was capacitated to execute the will at that time. Q: What is the effect, if the will is not acknowledged? A: It will not enjoy the presumption of regularity. In short it is VOID. A will is not a public instrument that is why the law does not require a notary public to keep a copy or to transmit a copy to a clerk of court. N.B.: As a general rule: witnesses in the execution of a will should also acknowledge the will before a notary public. This is because witnesses are also principal participants in the execution of the will. This is different from ordinary contracts, which, requires only the contracting parties. N.B.: Attesting witnesses are different from acknowledging witnesses. Failure of one witness to acknowledge the will before a notary public, renders the will void. Q: How do you acknowledge before a notary public?

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A: To acknowledge means to avow, to own as genuine the document presented. Q: Should the notary public be present at the execution of the will? A: NO. The law requires only that the will be acknowledged before him. Q: May the notary public be one of the subscribing witnesses? A: NO. To allow the notary public to act as one of the three attesting witnesses would have the effect of having only 2 attesting witnesses to the will. Q: In the preceding problem, are there exceptions? What are they? A: YES. 1) If there are more than three witnesses. 2) If the will is not acknowledged before him. Q: Is it necessary, that acknowledgment of the will be made by the testator and all of the witnesses at the same time? A: NO. The law does not require simultaneous acknowledgment neither does the law require that the acknowledgment be made by the testator and the witnesses in the presence of one another, provided that all of the parties acknowledge in front of the notary public and provided further, that all the parties has the testamentary capacity at the time of acknowledgment. Q: May the testator and the witnesses acknowledge the will in separate occasions? A: YES. The law does not require simultaneous acknowledgment neither does the law require that the acknowledgment be made by the testator and the witnesses in the presence of one another, provided that all of the parties acknowledge in front of the notary public and provided further, that all the parties has the testamentary capacity at the time of acknowledgment. N.B. The two immediately preceding Q&As are the same. The questions were rephrased so as to elicit either a negative or a positive answer. But the reasons are the same. Q: Suppose the testator died before the will may be acknowledged. Can the will be allowed? A: NO. The will lacks one of the formalities required by law- testamentary capacity of the testator, since, he is already dead. Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n) Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. Q: Can an illiterate person make a notarial will A: Yes. Q: In the preceding problem, would there be an additional requirement? A: YES. The same with a blind person, double reading requirement. Q: If the testator is illiterate or blind, is it permissible that the language of the will is not known to him, but merely interpreted to him? A: NO Q: Even if the interpreter is the best interpreter that the world can offer? A: Yes. Because no matter how good the interpreter is, somehow, something may be lost in the process of translation. Q: How many times should a will be read to a blind person? A: TWICE Exception: If he understands the contents thereof on the first reading. (Alvarado vs. Gaviola) N.B. This aforementioned rule applies, if a person is illiterate because under the law, he is in the same condition as a blind person. He does not know what the symbols on the will stands for. Q: Is it necessary that the reading of the will to the blind be simultaneous? A: NO. This will just confuse the blind person. The communication of the contents must be at separate moments so as to prevent fraud. This is the purpose of the communication. Q: X, a blind person, had the will read by his 3 witnesses at separate moments. The next day, he went to the notary public, stating that there is no need for the latter to read the will for him. Is the waiver of this rule valid? A: NO. The testator cannot waive the rule provided by law because the right to make a will is merely statutory right regulated by law. It is a privilege to be complied with.

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N.B.: Substantial Compliance rule may apply. But it shall apply only, if the circumstances fall under the case of Alvarado vs. Gaviola: 1) The will must be read by the person who drafted the will; 2) This will must be read in the presence of the witnesses, while the notary public is reading it simultaneously in silence. Q: Suppose that the testator is blind and the witnesses did not read the will to him because the contents and the due execution of the will was acknowledged by the testator and he said not to bother with the reading anymore? A: NO. Testamentary capacity is a statutory right. The testator has no right to waive the requirements thereto. Alvarado vs. Gaviola Jr. (226 SCRA 347) FACTS: That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and the instrumental witness, it was the lawyer who drafted the 8-paged will and the 5-paged codicil, who read the same aloud to the testator and read them only once, not twice as the law requires. HELD: The will is valid, Substantial Compliance is acceptable, where the purpose of the law has been satisfied. The reason being, that the solemnities surrounding execution of wills are intended to protect the testator from all kinds of fraud and trickery. They are never intended to be so rigid and inflexible as to destroy the testamentary privilege. In this case, private respondent read the testators will and the codicil aloud, in the presence of the testator, his three instrumental witnesses and the notary public. Prior and subsequent thereto, the testator affirmed upon being asked whether the contents read, corresponded with his instructions. There is no evidence and petitioner does not contend that the will and the codicil were not sufficiently made known and communicated to the testator. Moreover, the notary public and the three instrumental witnesses, likewise, read the will and the codicil, albeit silently. W ith four persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him were the terms actually appearing on the typewritten documents. Note: Prof. Navarro emphasized, that the application of the aforesaid ruling must be limited to cases of similar facts. N.B.: If the attestation clause does not state the fact that the will was communicated to the blind or deaf-mute, the will is still valid because it is not one of the requisites required by law to be stated in the clause. This fact may be determined by extrinsic evidence. Q: What is the DOCTRINE OF LIBERAL INTERPRETATION? A: It provides that, in the absence of bad faith, forgery or fraud, or undue influence, defects and imperfections in the fo rm of attestation or in the language used therein, shall not render the will invalid, if it is proved that the will was in fact executed and attested in substantial compliance with all requirements of Art. 805. (Art 809) Q: Is the doctrine of LIBERAL INTERPRETATION applicable to holographic will? A: NO, the doctrine does not apply because of the nature of the will, which is simple and easy to forge. ARTS. 810-814: HOLOGRAPHIC WILLS Q: What are the formalities of a holographic will? A: 1) The will must be entirely written by the hand of the testator himself; 2) The will must be entirely dated by the hand of the testator himself; 3) The will must be entirely signed by the hand of the testator himself; 4) The will must be executed in a language or dialect known to the testator. Q: How would you compare the advantages and disadvantages between a holographic and notarial will? A: The answer is found just after this Q&A. Q: What are the advantages of a holographic will? A: I) 1) Easier to make 2) Easier to revise 3) Easier to keep a secret. II) 1) No witnesses are required. 2) No marginal signatures on the pages are required. 3) No acknowledgment is required.

Q: What are the disadvantages of a holographic will? A: 1) Easier to forge by expert falsifiers. 2) Easier to misunderstand, since, the testator may have been faulty in expressing his last wishes. 3) No guaranty that there was no fraud, force, intimidation, undue influence; and no guaranty regarding the testators soundness of mind.

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Q: If you were to make a will, what would you make, a holographic will or a notarial will? A: Personally, I will make a holographic will. 1) Easier to make 2) Easier to revise 3) Easier to keep secret 4) No witnesses are required 5) No marginal signatures on the pages are required 6) No acknowledgment are required N.B.: You can answer a notarial will and estate your own reasons. You may cite the disadvantages of a holographic will. Q: May an illiterate execute a holographic will? A: NO. It is required that a holographic will must be entirely written by the hand of the testator himself. An illiterate person is presumed not to be able to read and write. Q: What if an illiterate person copies what his friend wrote, would the will be valid? A: NO, because it is not the product of his independent thinking. Q: What if the testator uses his foot to write? Is the will valid? A: It is valid. As long as the testator has found an effective substitute for his hands so that he can still write, there I no reason why he cannot execute a holographic will. Q: What about a blind person, can he execute a holographic will? A: YES. A blind testator can execute a holographic will, if he can still write despite his blindness (Braille System) Q: Suppose the holographic will was signed by the testator with his first name only, is the will valid? A: Yes Q: Can the testator sign with his nickname? A: YES. Note: The signature required for holographic will, is not simple writing of name and surname in a habitual manner. Generally, the signature includes a persons name and surname. But, it is not necessary that the full name be written, if the habitual signature does not include the full first name or surname. Q: Suppose it is not his usual signature? A: The will is still valid. Q: Suppose it is not his full signature? A: The will is still valid. Q: Can you make your holographic will in the form of a letter? A: YES, as long as it is entirely, written, dated and signed by the hand of the testator himself. Q: Can a blind person make a holographic will? A: Yes, if he knows how to write. Q: X executed a holographic will with his own hand, he got tired, that he decided to type the other part of the will. Is the will valid? A: NO, the will is not valid. The law expressly provides that it must be entirely written by the hand of the testator himself. N.B.: The word ENTIRELY modifies not only the word WRITTEN but also the words DATED and SIGNED. The purpose of the law is obvious. In addition to insuring and safeguarding the authenticity of the holographic will, it will also serve to deter or prevent any possible insertion or interpolation by the others or any possible forgery. Q: Where should the testator sign in the will (HW)? A: The law does not specifically require the place, where the signature be placed. However, it is logical to place it at the end thereof. Tolentino: We believe that under our law, the signature must be at the end of the will. This can be inferred from Art. 812 by the reference to disposition written below his signature. This phrase implies that t he signature is at the end of the will, and any dispositions below it must further be signed and dated. Q: Can the testator sign with his thumb mark?

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A: YES. In the law of succession, signature denotes a sign, token or emblem and what that shall be depends upon the custom of the time and place and on the habit or whim of the individual. The material thing is that, the testator made the mark to authenticate the writing as his will and whatever he puts on it for that purpose will suffice. N.B.: Jurado says otherwise. Q: Should a holographic will be witnessed? A: NO. It need not be witnessed. The presence of witness however, will not render the will invalid. Witnesses shall be merely considered as surplusage. Q: What is the rule on the date of a holographic will? A: General Rule: The MONTH, DAY & YEAR, must be stated, to avoid conflict between other holographic wills. Exception: The Supreme Court did not follow this rule in Roxas vs. De Jesus. There was no exact date of the day in the will (Read the case dude) N.B.: The ruling in Roxas vs De Jesus has been criticized because it gives rise to problems if there are two wills. If this happens, 1) it cannot be determined which of the two wills, should govern; and 2) there is no means to determine if the testator has the testamentary capacity at the time of the execution of the will (J). Q: Where must the date be placed? A: The law does not provide for the place where the date must be placed. Hence, the date may be placed at the end or at the beginning of the will or in the body thereof, although its normal location should be after the signature. Q: If a holographic will has no date, is it valid A: NO. The law requires that it must be dated. Q: If a notarial will has no date, is it valid? A: Yes. Q: Why is a date necessary in a holographic will, but not in a notarial will? A: In a notarial will, it would still be dated in its notarial acknowledgment, while in a holographic will, the date is necessary because the testator may make more than one will and it might happen that the testator was incapacitated during the execution of the first will and capacitated during the execution of the second will. Q: Must the date be in month, day and year? A: Generally, yes. Roxas vs. De Jesus (134 SCRA 245) Generally, the date must be in month, day and year. But in this case, the SC allowed the date Feb/61. Navarros Opinion: Conflict may arise if such date is allowed because what if two wills are made and dated Feb/61. Which should prevail Q: Suppose that the testator used the page of his diary/planner, which already has a date? Is the will valid? A: NO, because the law provides that it must be entirely dated by the hand of the testator himself. N.B.: The doctrine of liberal interpretation and substantial compliance as applied to ordinary or notarial wills cannot be applied to holographic wills. Q: Suppose that the testator wrote, Xmas 99, is the will valid? A: YES, because there can be no other date for Xmas Day. Q: Suppose the testator wrote Easter Sunday, 1998, is the will valid? A: YES, because although Easter Sunday is changeable date, the exact date can be still be determined. Q: Suppose the testator wrote, the day when my boyfriend and I broke up, is the will valid? A: NO. In this case, the exact date cannot be determined. Confusion will follows as to which boyfriend and in case of multiple break-ups. Which instance (beats me!). Q: Suppose the will is dated as follows: Rizals Birthdate, 1990. Is this valid? A: YES, as long as the designation of the date leaves no room for doubt as to the exact date. In this case, the date is December 30, 1990.

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Q: Can an illiterate person execute a holographic will? A: NO, because an illiterate is a NO READ NO WRITE person. This rule applies even if orders another person to execute the will or write the will while copying it. N.B. Tolentino says: 1. The law does not require that the will be completely executed on a single day, at one time, and in the same ink, because unity of act is not a requisite for holographic wills. 2. The day and month may be indicated by implication, as long as the designation leaves no room for doubt as to the exact date. Q: If the probate of a holographic will is contested, is it necessary to have 3 witnesses? Or, is the 3-witness rule under Art. 811 mandatory? A: YES. In Codoy v, Calugay, the SC says it is mandatory? Navarro said: By reading Art. 811, the 3 witness rule (if probate of holographic will is contested) should merely be permissive. Prof. Navarro subscribe to Azoala v. Singson, where the court ruled that the said requirement is merely permissive. But for purposes of our present study, we adhere to Codoy v. Calugay, since this is the most recent case. Q: If a holographic will is lost or destroyed, can it be probated? A: No. Gan v. Yan (104 Phil 509) FACTS: The will was not presented for probate, instead, the petitioner tried to establish its due execution and contents by the testimony of witnesses who declared that they had seen the will and had read its contents. HELD: In the matter of holographic wills, no guarantees of truth and veracity are demanded, since, they need no witnesses; provided, however, that they are entirely written, dated and signed by the hand of the testator himself. The law regards the document itself as a material proof of authenticity, and as its own safeguard, since it could not be in the hand of the testator himself. Q: Suppose that a photocopy was presented. Should the will be allowed? A: YES, the will may be allowed for probate, because there is a document from which the handwriting of the testator may be ascertained from. Q: In the probate of a holographic will may a photocopy or a mimeographed or carbon copy suffice for the original copy that was lost or destroyed? A: YES, because the requirements under Art. 811 may still be complied with. The authenticity of the handwriting and the signature of the testator may still be examined from the photocopy or mimeographed or carbon copy. The Xerox copy (etc.) may still be shown as a material proof of the authenticity of the testators handwriting and signature. N.B.: If the testator asks for the probate of his will, his testimony is ore that sufficient. N.B.: as to SIGNATURES the provisions for NOTARIAL wills, expressly provide that the signature must be at the end of the dispositions. In HOLOGRAPHIC wills, there is no categorical statement. But it can be deduced from Art. 812, that the dispositions written below the signature of the testator will not be considered a valid testamentary disposition unless it is dated and signed by him. N.B.: as to the DATE DATE is not essential for the validity of NOTARIAL wills, because the will must be acknowledge. In this case, the date of the acknowledgment will supply the date of the will. Furthermore, there are all of the witnesses to prove the date of the execution. This is different from HOLOGRAPHIC wills, where no acknowledgment and witnesses are required. Hence, a holographic will must be dated. Read the case of Kalaw vs. Relova, 132 SCRA 241. N.B. Holographic wills: 1) DATED BUT NOT SIGNED: Several subsequent dispositions under the signature of the testator in a holographic will which are not signed but are dated are VOID. The fact that the last disposition was signed and dated does not cure the defect because the presence of the date renders the will VOID on separate dates not in its entirety. Each disposition precludes the other because it is a fact that they were not executed simultaneously. In this case, only the LAST DISPOSITION IS VALID. 2) SIGNED BUT NOT DATED: Art. 813, applies ony for dispositions that are SIGNED BUT NOT DATED, because the presumption is that they were executed entirely and not on separate dates.

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Q: Suppose an additional disposition, in a holographic will does not contain a date, is it a valid disposition? A: NO, it is not a valid disposition. The disposition written below the testators signature in the will is considered as independent of the will itself. Hence, it must be signed and dated by the testator. If one is not dated, even if signed, that particular disposition is void without affecting the validity of the other dispositions or the will itself. And as an unsigned and undated postscript to a holographic will it is invalid as a testamentary disposition (Art. 812) Q: Suppose that after the last disposition made in the will another disposition is written what must be done? A: It must be dated and signed by the testator in order that it will become a valid testamentary disposition. Q: In a holographic will, only the first disposition was dated. But the second disposition was both dated and signed by the testator? What is the effect? A: The first disposition is void. Note: Art. 813 does not apply because Art. 813 refers to preceding dispositions which are signed but not dated. Q: Suppose a prior disposition was unsigned and undated, and the next disposition was signed and dated by the testator, what is the effect? A: The first disposition is validated by the subsequent disposition which was dated and signed. In this case there arises a presumption that all the dispositions were made simultaneously. N.B.: With respect to the immediately preceding Q & A, Prof. Navarro is of the opinion that the first disposition id validat ed by the second disposition. The reason is that it can be inferred that the testator intended the two dispositions to be valid the last being his final disposition. Q: What is the rule in insertions and cancellations in a holographic will? A: The rules on insertions made by third persons on a holographic will are the following: (a) if made AFTER the execution of the will, but WITHOUT the consent of the testator, such insertions are not considered as written because the validity of the will cannot be defeated by the malice or caprice of a third person. (b) If made AFTER the execution of the will, WITH the consent of the testator, the will remains valid but the insertions are void. (c) If made AFTER the execution of the will and such insertion is validated by the testator by his signature thereon it becomes part of the will and therefore the entire will becomes void, because of the failure to comply with the requirement that it must be entirely written by the hand of the testator. (d) If made CONTEMPORANEOUSLY/SIMULATANEOUSLY with the execution of the will, then the will is void because it is not entirely written by the hand of the testator. (J). Q: Can a testator authenticate an alteration with his nickname? A: NO. Full signature of the testator is required. However, full signature does not mean the testators full name (First and last name). Prof. Navarros Opinion: To a certain extent, the aforementioned creates an absurdity, considering the fact that the authentication execution of the will is certainly more important than the authentication of a mere insertion, cancellation, erasure or alteration. Q: Why is there a need for authentication? A: Because with respect to insertions on holographic will, fraud can easily be committed. Q: X executed a holographic will. Thereafter, Y surreptitiously made an insertion thereon. What is the effect? A: The insertion made by Y will not be considered as written. The will remains valid. Q: After X has executed the will, Y approached X and asked him if he can make some insertions on the will. Y said OK, be my guest! What is the effect? A: The will remains valid, but the insertions are void. Although X has consented to the insertion. Q: In the preceding problem, what if X has affixed his signature to the insertions. What if the effect? A: The insertions become part of the will and therefore the entire will becomes void, because of the failure to comply with the requirement that it must be entirely written by the hand of the testator. Q: While X was midway writing his will, Y arrived. Seeing X getting tired of writing the will, Y volunteered to write it, with dictations from X. What is the effect? A: The whole will is void because it is not entirely written by the hand of the testator. Q: Suppose the will was altered without the full signature, is the whole will void?

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A: NO, only the alteration is void. However if what was altered was the date or the signature, the alteration without the full signature makes the whole will void. ILLUSTRATION I: Holographic Will (A) I give everything to Maria Jose (Sgd.) Manuel Jose (B) I give everything to Pedro Santos January 10, 1996 (C) I give my house and lot in Q.C. to Juan Santos. January 20, 1998 (Sgd.) Manuel Jose Q: In the illustrated holographic will, is the disposition under letter (A) valid? A: YES, it is valid. It is entirely written dated and signed by the hand of the testator himself. Q: What about under letter (B)? A: The disposition is invalid. It was not signed by the testator. N.B.: Several subsequent dispositions under the signature of the testator in a holographic will which are not signed but dated are VOID. The fact that the last disposition was signed and dated does not cure the defect because the presence of the date renders the will VOID on separate dates and not in its entirety. Q: What about letter (C)? A: Valid ILLUSTRATION II: Holographic Will January 3, 1995 I give everything to Maria (Sgd.) Manuel Jose Q: Is the disposition valid? A: Yes. Holographic Will January 3, 1993 Clara I give to Maria (thereafter, the name Maria was altered and the name Clara was written, but the testator did not affixed his full signature). (Sgd.) Manuel Jose Q: In the aforestated illustration, who will inherit? A: None, Neither Clara nor Maria will inherit. Clara will not inherit because the alteration was not authenticated by Manuel Jose with his full name. Maria will not inherit because it is clear from the alteration that the testator intended to replace Maria as an heir. January 3, 1995

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Holographic Will I give my car to Pedro Santos (Sgd.) Manuel Jose I give my house and lot to Pedro Santos. January 20, 1998 (Sgd.) Manuel Santos Q: Are the aforementioned dispositions valid A: YES. Both dispositions are valid. Under Art. 813 when a number of dispositions appearing in a holographic will are signed without being dated and the last disposition has a signature and a date such date validates the dispositions preceding it, whatever be the time of prior dispositions. ARTS. 815-819: LAWS WHICH GOVERN THE FORMAL VALIDITY OF WILLS. Note: The aspects of a will governed by the national law of the decedent are the following: 1) 2) 3) 4) Intrinsic Validity Capacity to succeed Order of succession; and Amount of successional rights.

N.B.: As a general rule, the formal validity of a will shall be governed by the law of the country in which it is executed. This rule is expressed in the first par. of Art. 17, which provides that the forms and solemnitie s of contracts, wills and other public instruments shall be governed by the laws of the country in which they are executed. Thus rule, however, is reiterated or supplemented by the provisions of Art. 815 to 819, as discussed hereunder (J.) Q: What are the rules governing the formal validity of a will? A: 1) If the testator is a Filipino and the will is executed in the Philippines its formal validity is governed by the Civil Code of the Philippines. 2) If the testator is a Filipino and the will is executed in a foreign country then its formal validity is governed either: a) By the law of the place, where the will is made, or b) By the Civil Code of the Philippines If the testator is a foreigner and the will is executed in the Philippines then its formal validity is governed either: a) By the Civil Code of the Philippines b) By the law of his country If the testator is a foreigner and the will is executed in a foreign country then its formal validity is governed either; a) By the law of the place where the will was made b) By the Law of his own country c) By the law of his own country d) By the Civil Code of the Philippines.

3)

4)

N.B.: With respect to the aforementioned rule #2. It must be observed that Art. 815 does not state that a will made by a Filipino in a foreign country may be executed in accordance with the formalities prescribed by the Civil Code. In spite of the omission, however, it is submitted that such a will may still be admitted to probate in the Philippines. Not to grant this concession to Filipino citizens would be illogical and unfair considering the fact that it is even granted to foreigners. Q: X, a Filipino citizen, executed a will while he was on a vacation in Japan. What law will govern the formalities of the will? A: (a) The place of execution (Japan), or (b) Philippine laws (Art. 815) Q: X is a Japanese citizen, but resides in England. He executed a will in Indonesia. May such will be probated in the Philippines and his estate located in the Philippines, be distributed in accordance with the provisions of the will? A: YES, it can be probated and his estate may be distributed in accordance with the formalities prescribed by any of the following laws: a) The law of the place, where X resides (England); or b) The law of his own country (Japan); or c) The Philippine Laws (Civil Code); or d) The law of the place where the wills was made (Indonesia)

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N.B.: The national law of the deceased shall govern the intrinsic validity of wills. N.B.: Under Art. 819, whether or not the Filipino testator is in the Philippines, he cannot execute a JOINT will even if authorize by the country of execution because under Art. 17 of the Civil Code, prohibited act s of the country of nationality are not waived by mere agreement, convention or laws of a foreign country . This rule applies if the testator is also an ALIEN, by reason of public policy. Except if such alien is abroad. Q: What is a joint will? A: It is defined as a single testamentary instrument which contains the wills of two or more persons jointly executed by them, either for their reciprocal benefit or for the benefit of a third person. Q: What is the nature of a joint will? A: It is a SINGLE WILL with TWO (2) testators. N.B.: Even it only a single sheet was used, there is not joint will, if the two (2) wills are identifiable from each other: ILLUSTRATION: Last Will and Testament of Mr. X Provisions and dispositions, et.. (Sgd.) Mr X (husband)

Last Will and Testament of Mr. X Provisions and dispositions, et.. (Sgd.) Mrs X (wife)

Q: Is the above illustrated will valid? A: YES. The wills of the husband and the wife are easily identifiable from each other. They made separate wills not a joint one. N.B.: The illustration above shows 2 wills, which are both complete in themselves. There are really 2 separate instruments, which are independent of each other. Reciprocal wills between husband and wife are valid, as long as they are not made jointly. This is true if the same witnesses are used. Q: In the preceding problem, what about if the will of the wife is written at the back page, while that of the husband is on the front page, is the will valid? A: YES. There are two separate wills. Q: What are the reasons why joint wills are prohibited? A: 1) To allow as much as possible, secrecy. A will being a purely personal act. 2) 3) 4) 5) To prevent undue influence by the more aggressive testator on the other hand In case of death of the testators at different times, probate would be harder. To protect the right of a testator to revoke his will at any time In case of a husband and wife, one may be tempted to hasten the life of the other.

N.B.: Reciprocal wills between husband and wife as long as not made jointly, are valid (Araneta vs. Rodriguez). This is true even if the same witnesses are used.

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Q: H and W are Argentinian citizens. Joint wills are allowed and valid in their country. They executed a joint will in Argentina. Is the will valid here in the Philippines? A: YES. The prohibition on joint wills does not apply to foreigners. Q: In the preceding problem, what if they executed the will here in the Philippines? Should the will be allowed probate in the Philippines? A: There are two views: 1) It should be allowed because prohibition on joint wills does not apply to foreigners. 2) The will should not be allowed by reason of public policy. N.B.: By public policy, it means, if joint wills are prohibited in the Philippines, then any joint will executed here must not be allowed probate, even if it is executed by foreigners (wag masyadong paniwalaan, opinion lang to) N.B: Under Art. 819 joint wills executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. This rule is an exception to the rule stated in Art. 815, which provides when a Filipino is in a foreign country he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. The rule under Art. 819 is in the rd conformity with the provisions of the 3 par. of Art. 17 which states: Prohibitive laws concerning persons, their acts or property and those which have for their objects, public order, public policy and good customs, shall not be rendered ineffective by laws or judgments promulgated or by the determinations or conventions agreed upon in a foreign country. Q: H is married to W. H is a Filipino while W is a foreigner. Suppose that while in Ws country which permits join t wills, the couple executed a joint will, what is status of the will? A: The will as it pertains to H is void, but valid as it pertains to W. Q: What are the provisions of the will, which are governed by the national law of the decedent? A: 1) Order of succession 2) Amount of successional rights 3) Capacity to succeed 4) Intrinsic validity N.B.: The intrinsic validity of a will is governed by the national law of the person whose succession is under consideration. This Is the precept or principle which is enshrined in the second par. of Art. 16. According to this provision, intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the wherein said property may be found (J). Art. 1093. Capacity to succeed is governed by the law of the nation of the decedent. Miciano v. Brimo (50 Phil. 867) FACTS: The deceased was Turkish subject, but disposed that his property should be distributed according to Philippine laws. He named legatees including the oppositor Brimo, on condition that they should respect the testators will, as to the manner that his property will be distributed. HELD: If this condition as it is expressed where legal and valid, any lagatee who fails to comply with it, as herein oppositors has done, who by his attitude in this proceedings, has not respected the will of the testator, as expressed is prevented from receiving his legacy. The fact however is that, the said condition is void, being contrary to law because it ignores the test ators national law. ARTS. 820-824: WITNESSES TO WILLS Q: What are the qualifications of witnesses? A: 1) He must be of sound mind; 2) He must be 18 years of age or more; 3) He must not be blind, deaf or dumb; and 4) He must be able to read and write. N.B.: The first two qualifications are also necessary for the making of a will. In the case of instrumental witnesses, the law adds two additional qualifications. The reason for this is evident, during the probate of the will, the testimony of the witness is required. Certainly, it will be quite difficult for an illiterate witness to give an intelligent testimony. The same thing can be said of a deaf-mute or a person who is, either blind, deaf or dumb. Q: What is a dumb person? A: It refers to a mute person; one who cannot speak.

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Q: What are the disqualifications of witnesses? A: 1) Any person not domiciled in the Philippines; 2) Those who have been convicted of falsification of a document, perjury or false testimony; 3) Any person who is not of sound mind; 4) Any person less than 18 years of age; 5) Any person who is blind, deaf or dumb; 6) Any person who cannot read and write. Q: Is a person qualified to make a will, also qualified to be a witness to the will of another? A: A person who is qualified to make a will is not necessarily qualified to be a witness to the will of another. Example: A blind person may be qualified to make a will, if he knows how to write, but he cannot be a witness to a will. N.B.: a) b) c)

The law does not require a testator to be intelligent; Witnesses must be domiciled in the Philippines, in order to increase the probability for them to be present during the probate of the will; and Capacity of the witnesses must exist at the TIME OF EXECUTION of the will. Any supervening incapacity or capacity does not cure any defect or invalidate the will.

Q: Is it necessary that the witnesses must know the contents of the will? A: NO. The law does not require it. All that the law requires is that, they must attest and subscribe the will in the presence of the testator and each other. To attest and subscribe do not mean that they must read the will or comprehend the contents thereof. Hence, even if the will is written in a dialect or language unknown to them, the requirements of the law are still complied with (J). Q: What are the reasons why a person not domiciled in the Philippines and a convict are disqualified as witnesses of the will? A: A person not domiciled in the Philippines will practically be useless during the probate proceedings. While a person convicted of a document perjury and false testimony is unworthy of credence. The latter are not considered as credible witnesses. Q: If a Filipino in the US wants to execute a notarial will in accordance with Philippine laws, must his witnesses be domiciled in the Philippines? A: Paras said: NO, after all, the will is to be executed in the US. Navarro: Witnesses must be domiciled in the Philippines because the law does not provide for an exception. Besides, Art. 810 provides for a holographic will, which can be executed without witnesses. Therefore, if a Filipino is abroad, why not choose to execute a holographic will, so that, he will not be burdened with the requirements of witnesses? Q: Why does the law require that the witnesses be domiciled in the Philippines? A: 1) The assurance that the witnesses will be available at the time the will is presented for probate; 2) The likeliness of personal acquaintance with the testator. Hence, there is a greater credibility as a witness. Q: Suppose that X executed a will with A,B and C as his witnesses. All three possessed all the qualifications and none of the disqualifications. Two years after the execution of the will, A,B and C migrated to Canada. Can the will be allowed? A: YES. The competency of a witness to a will is to be determined as of the time of the execution of the instrument, and not, at the time when the will is presented for probate. Q: Suppose that A, B and C are all Chinese citizens, can the will be allowed? A: YES. No particular citizenship is required by the law, provided they are domiciled here in the Philippines. Q: Suppose that at the time of the execution of the will, there were 3 witnesses, one of whom is already accused of perjury. Subsequently, he was convicted two years after the execution of the will. Can the will be allowed? A: YES. The conviction happened two years after the execution of the will. Remember: Capacity is determined at the time the will is executed. Q: Suppose that at the time of the execution of the will, one of the witnesses was already convicted, but was subsequently acquitted on appeal. Can the will be allowed? A: YES, as there was no final conviction yet. N.B.: 1) 2)

Conviction must be by final judgment in order be disqualified as a witness. Only three crimes have been mentioned: falsification of a document, perjury and false testimony. Conviction of any other crime is not a disqualification.

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Q: When X executed his will, one of the three witnesses was A, who was only 17 years old. Two years after, Xs will was presented for probate. Should the will be allowed? A: NO, because one of the witnesses was only 17 years old at the time of the execution of the will. The supervening capacity of A that is when he becomes 18 years old will not cure the defect or validate the will. Q: X executed his will in 1980, having A, B and C as witnesses to the will. In 1990, A became insane. Is the will still valid? A: YES, Art. 822 provides, that If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. Q: Suppose in the preceding problem, A was convicted in the RTC for falsification of documents. But, his case was still pending execution. May he still qualify as a witness? A: YES. Conviction must be by final judgment in order that a person may be disqualified from being a witness to the will. Hence, considering that As case or conviction is still pending execution, there is yet no final judgment to speak of. Q: Suppose after becoming a witness to the will, A was subsequently convicted by final judgment, what is the effect? A: The will is still valid. The subsequent incompetence of A to become a witness to the will did not affect the validity of the will. Q: Suppose in the preceding problem, B was actually convicted by final judgment of a crime of falsification of documents, but this fact was unknown to X at the time of the execution of the will. Is the will still valid? A: YES, the will is still valid, provided that X exercised all efforts to ascertain the competence of B. Strict compliance with the requirements is required ??? Transcribers warning: I doubt the accuracy of the answer. If strict compliance is required, the will should have been void. Research it yourself. Q: Why is the notary public, before whom the will was acknowledged, disqualified to be a witness to the said will? A: It would be absurd for him as a witness to acknowledge something before himself, as a notary public. The notary public cannot have a split personality. Q: What do credible witnesses mean? A: In Gonzales vs. CA, credible witnesses refers to competent witnesses, that possess and have all the qualifications and none of the disqualifications provided by law. The courts have the duty to determine the credibility of the witnesses and they cannot do this, unless, the witnesses are competent. Q: Is there a difference between a competency and credibility of witnesses? A: This is answered in the case of Gonzales vs. CA, 90 SCRA 183. Better read the case. Gonzales vs. CA The rule is that, the instrumental witnesses in order to be competent must be shown to have all the qualifications and none of the disqualifications provided by law; and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established on record, that the witnesses have good standing in the community, or that, they are honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be such, unless, the contrary is established. Q: Suppose X made a notarial will with A, B and C as witnesses. In the will, A was given a piece of land as a devise. Is the will valid? A: YES, because there were three credible witnesses, A being one of them. However, while A is capacitated as a witness, he is incapacitated to receive the devise because it does not comply with the requirement that it should have 3 witnesses. In the given case, only B and C stood as a witness with respect to the devise. Hence, the provision regarding said devise should be disregarded, the rest of the will(other provisions/dispositions) are valid. Q: In the preceding problem, suppose there were three other witnesses aside from A. May A be entitled to receive the land devised to him? A: YES. The three other witnesses can stand as witnesses with respect to the land given to A. Q: In the preceding problem, suppose that all four witnesses were designated as devisees, can the will be allowed? A: YES. Q: In the preceding problem, may the witnesses be able to get the devise? A: The answer is still contested: 1) YES because the other three witnesses may stand as witnesses, with respect to the devise given to each of them. 2) Navarro said: Since the purpose of the law is to remove any pecuniary interest; they should not be allowed to get the devise. N.B.: 1. The term three(3) other witnesses refers to UNINTERESTED persons in the execution of the will.

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2.

3.

The law speaks only of legatees and devisees. We believe however, that even an instituted heir or his/her spouse, parent or child is disqualified. The disqualification applies to one who succeeds by will. It is not material in what concept he succeeds. The disqualification extends to: a) The witness; b) The spouse of the witness; c) The parent of the witness; d) The child of the witness; e) Anyone claiming the right of the said witness, spouse, parent or child (e.g. The creditor of the witness, if said creditor has not been paid his credit)

ARTS. 825-827: CODICILS AND INCORPORATION BY PREFERENCE Q: What is a Codicil? A: It is a supplement or addition to the will, made after the execution of a will and annexed to be taken as part thereof, by which any disposition made in the original will is explained, added to or altered. Q: How is the codicil executed? A: It shall be executed as in the case of wills, in order that the codicil may be effective. N.B. Art. 825 enunciates that the definition of a codicil, while Art. 826, gives the requisites in order that the codicil may be effective. The word codicil imports a reference to some prior paper as a will. There may, however, be a valid codicil to a revoked will. At first, codicils were writing actually attached to the will, but this is no longer necessary; when they are separate documents, the codicil referring to and ratifying the will may be said to incorporate the will by reference, or to republish the will. In order to operate as a republication of the will, it is sufficient if the codicil refers to the will in such way as to leave no doubt as to the identity of that instrument. A reference to the will in the codicil constitutes a sufficient identification of the will (J). Q: What are the formalities in executing a codicil? A: The same as holographic and notarial wills. Q: What is the difference between a will and a codicil? A: The latter EXPLAINS, ADDS TO OR ALTERS the original provisions of the former. It is NOT INDEPENDENT to the prior will and it is always EXECUTED AFTER A WILL. Q: If there is a conflict between a codicil and a will, which one will prevail? A: The codicil shall prevail, it being the later expression of the testators wishes (P). Q: Can there be a holographic codicil? A: YES, as long as, it is entirely written, dated and signed by the hand of the testator. Q: May a holographic will be amended by a notarial codicil? A: YES. A notarial will may be revoked by either a notarial or holographic codicil. A holographic will may be revoked by a notarial or holographic codicil. Q: X executed a notarial will in 1985. Subsequently, X executed a holographic codicil. Can the notarial will be modified or revoked by the holographic codicil? A: YES, because any codicil, whether holographic or notarial, may modify a previous will. Thus, a notarial will may be modified or revoked by a notarial or holographic codicil. In the same way, that a holographic will may be modified or revoked by a notarial or holographic codicil. The only requirement is that, the codicil must be executed in accordance with the formalities required by law, otherwise, it is void and it cannot revoke a will. N.B.: 1) 2) If a codicil is not executed with the formalities of a will, said codicil is void. A valid will can never be revoked, expressly or impliedly by an invalid codicil.

Q: How do you identify a codicil? A: A codicil refers to the original will. If there is entirely no reference at all, it is considered to be a new will. Q: May a codicil be made before the execution of the will? A: NO, because the codicil refers to a will. It cannot be made before the execution of the will. Q: What are the requisites for incorporation by reference? A: Art. 827: 1) The document or paper referred to in the will must be in existence at the time of the execution of the will; 2) The will must clearly describe and identify the same, stating among other things the number of pages thereof;

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3) 4)

It must be identified by clear and satisfactory proof as the document or paper referred to therein; and It must be signed by the testator and the witnesses on each and every page except in case of voluminous books of account or inventories.

Q: What is the purpose of the aforementioned incorporation by reference? A: To provide for those cases, where a testator wishes to incorporate to his will by reference, voluminous documents. Hence, the testator is able to save time and energy. Q: Are the witnesses required to agree with the testator for the incorporation of the reference? A: NO, it is an act of the testator alone. Q: X executed his last will and testament. It is a notarial will with many properties. The properties appeared on the last list. Can this last list be incorporated by reference? A: YES. Q: In the preceding problem, should the list be attested by the attesting witnesses? A: NO. Under Art. 827, said documents or inventories, when referred to in a notarial will, do not need an attestation clause, because the attestation clause of the will itself is sufficient. Q: In the case of voluminous books of accounts or inventories, does the testator and the witnesses have to sign each page thereof? A: NO, it need not be signed on each and every page thereof. Take note however that the exception refers only to the signing of all the pages thereof. Thus, while not every page has to be signed, there must be signature on at least several pages thereof, for the purpose of identifying the same as the document really referred to. Q: Can there be an incorporation by reference with respect to holographic wills? A: As a rule: NO. Art. 827 provides, It must be signed by the testator and the WITNESSES xxx. From this provision, it can b e deduced that as a rule, an incorporation by reference may be applied only on notarial wills. EXCEPTION: 1) If a holographic will happens to have at least 3 credible and qualified witnesses; and 2) (Having no witnesses) it refers to a document entirely written, dated and signed by the hand of the testator, there can also be a proper incorporation by reference. Q: As regards proof as to the identity of the document as incorporated, can the evidence aliunde be admitted? A: YES, parole or extrinsic evidence(evidence aliunde) It is even necessary on this situation. N.B.: Stated generally, the doctrine is that a will, duly executed and witnessed according to statutory requirements, may incorporate into itself by an appropriate reference a written paper or document which is in existence at the time of the execution of the will, irrespective of whether such document is one executed by the testator or a third person, whether it is in and of itself a valid instrument, provided the document referred to is identified by clear and satisfactory proof. So incorporated, the extrinsic paper takes effect as part of the will and is admitted to probate as such (J). Q: Can a document, which is incorporated by reference to a will, refer to papers, which may be made only in the future? A: NO. The incorporation will be invalid, but the will remains valid. The will must refer to papers, which have been made already. It is not enough to state that it is already in existence. Q: Suppose that in 1985, X typed a document, which he intended to be used in the future, as his last will and testament. In 1995, X made a will and incorporated the 1985 document. Is there a valid incorporation A: NO, the 1985 document was testamentary provision. So it must be made into a will. Art. 827 refers only to references such as inventory. The purpose of incorporation by reference is merely for convenience. It cannot be done to incorporate testamentary dispositions. NOTE: Art. 827 refers to non-testamentary dispositions. So, if they are testamentary, one must use a codicil or a will, not an incorporation of reference. Q: Can a will be a document, which is incorporated in another will? A: NO. The law allows incorporation only, if what is incorporated in a will, is not in itself a will (another will so to speak). ARTS. 828-834: REVOCATION OF WILLS Q: What do you mean by revocation as applied to wills? A: It is an act of the mind terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward or visible act or sign, symbolic thereof. Q: Can the testator waive the right to revoke? A: NO, it is a void waiver. The law provides, that the right of the testator to revoke cannot be restricted.

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Q: In 1985, X, in par. 10 of his will stated, This is my last will and testament, and I do not intend to change any provisio n in it. I therefore waive my right of revocation. In 1995, he changed his mind. Can X still revoke his 1985 will? A: YES. Q: Even if he has expressly waived his right to revoke the will? A: YES. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. Q: Can an oppositor contest the probate of a will, by the mere fact that the said will contains an irrevocable clause? A: YES, because this is an indication that the testator did not understand the character of the testamentary act at the time of execution of the will. Furthermore, said irrevocability clause is void under Art. 828. Q: How may a will be revoked? A: No will may be revoked, except in the following cases: a) By implication of law; b) By some will, codicil, or other writing executed as in the case of a will; or c) By burning, tearing, cancelling, and obliterating the will with the intention of revoking it by the testator himself, or by some other person with the testators presence and under his express direction. Q: When is there a revocation by implication of law? A: The revocation is to be implied from certain changes in the family or domestic relations of the testator, or in his property, or one involving the beneficiaries of his will, from which the law infers or presumes that he intended a change, either total or partial, in the disposition of his property. Q: What are the instances of revocation by implication of law? A: 1) When there is a decree of legal separation. 2) When there is PRETERITION or omission of one, some or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator. In such case, the preterition shall annul the institution of heirs. 3) When in the testators will there is a legacy of a credit against a third person or of the remission of a debt of a legatee; and subsequently, after the execution of the will, the testator brings an action against the debtor for the payment of his debt. In such case, the legacy is revoked. 4) When the testator transforms the thing bequeathed in such a manner that it does not retain either the form or denomination it had, or when he alienates by any title or for any cause the thing bequeathed, or when the thing bequeath, is totally lost during the testators lifetime or after his death without the heirs fault. In such cases, the legacy is revoked. 5) When the heir, devisee or legatee commits any of the acts of unworthiness, which by express provision of the law will incapacitate a person to succeed. In such case, any testamentary disposition in favor of such heir, devisee or legatee is revoked. 6) Art 44, Family Code: If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by implication of law. 7) Art. 50, Family Code: In cases of marriages which are declared void ab initio or annulled by final judgment. N.B.: In legal separation, a spouse may still inherit from the other spouse, unless, found guilty of the legal grounds of legal separation, he/she is disqualified from. Q: If there is legal separation, suppose the wife was instituted not as an heir, but as legatee, will the effect of the revocation remain the same? A: YES. In case of legal separations, provisions in favor of the offending spouse shall be revoked by operation of law. Hence, it is not material in what concept the provision was made. Q: Suppose that in a 1985 will, X stated that he is bequeathing the entire free portion of his estate to his wife. In 1990, X and his wife were granted a legal separation on the ground of Xs adultery. Thereafter, X died. May Xs wife still inherit based on the 1985 will? A: YES. It is the provision in favor of the offending spouse and not the innocent, which shall be revoked. Q: Suppose Mr. X made a notarial will in 1985. There is only one copy of the said will. X died in 1995. The will was stolen after Xs death and was destroyed. Would it still be possible to admit the will for probate? A: YES. If burned, torn, cancelled or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents and due execution and the fact of its unauthorized destruction, cancellation and obliteration are extablished according to the Rules of Court. Q: In the preceding problem, what if it was a holographic will? A: NO, because there would be no document which may be examined to verify the authenticity of the testators handwriting. EXCEPTION: Existence of a photocopy or mimeo copy.

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Q: To revoke a will by an overt act, what are the requisites? Or what are the requisites of revocation by physical destruction? A: 1) There must be an OVERT ACT specified by law (burning, tearing, cancelling or obliterating); 2) There must be an ANIMUS REVOCANDI or an intent to revoke; 3) There must be a COMPLETION of at least the subjective phase of the overt act; and 4) The testator at the time of revoking the will must have capacity to make a will; 5) The testator must do the act of revocation himself, or by some other persons in his presence and by his express direction. (ratification of an unauthorized destruction is, however permissible, provided sufficient proof of this is presented). N.B.: The INTENTION to revoke must concur with an OVERT ACT, manifesting the intention. Neither, destruction without the intention nor intention without destruction would revoke the will. Q: Suppose that X made five copies of his will and he gave four of them to his friends for safekeeping. In 1985, he revoke his will by burning it. Is it necessary that for the validity of the revocation, that X retrieve all the copies of the will? A: NO Q: X made a will in 1998. In 2001, with an intent to revoke the will, X threw the will out of the window. Is there a valid revocation of the will? A: NO, because there was NO ACTUAL and PHYSICAL DESTRUCTION of the will. Q: X made a will in 1998. Thereafter, he placed the will inside a drawer. In 2001, the house of X was razed by fire. The drawer where the will was placed was also consumed by fire. Obviously, the will perished with it. Is the will revoked? A: NO. Despite the actual and physical destruction of the will, there was no valid revocation. The reason is there was no intent to revoke the will. Intention and destruction must go hand in hand. N.B.: If the will is contained in an envelope and the latter was burned without the contents included, the will is not revoked. Q: X executed the will and placed it inside an envelope. With the will inside an envelope, he threw the same into a fire. However, the only thing burned is the envelope, while the will was kept intact. Later, X died and the will was discovered. Is the will revoked? A: NO. To constitute revocation by burning, there must be at least, a burned part of the paper on which the will is written, otherwise, there is no revocation. A very slight burn on the paper on which the will was written will suffice. In this case, since the will was intact and was recovered, there is no revocation. Q: X threw his will into the fire with intent to revoke. The will was slightly burned, without affecting a single word. Is there a valid revocation? A: YES, there was a valid revocation. A very slight burn on the paper on which the will was written will suffice. Q: X wanted to revoke his will, so he threw the same into the stove, where it would be burned later, if a fire would be lighted on the stove. However, A the son of X, removed the will from the stove before the stove was lighted. Is there a revocation A: NO. While there was intent to revoke, there never was an overt act of burning. Q: In the preceding problem, will A be able to inherit, being the son of the testator himself, and therefore, entitled to his legitime? A: It is submitted that by preventing the revocation of the will, A would not be able to inherit, not because of revocations by means of an overt act(for there was no overt act), but because of revocation by implication of law. A is considered incapacitated to inherit by reason of act of unworthiness. (Art 1032) Q: How many times should a testator tear his will in order that there may be a valid revocation? A: There is no number required by law. Q: Is a slight tear sufficient? A: YES, if the subjective phase of the act has already been completed. Q: Suppose that Mr. X had a violent altercation with his instituted heir. In front of the heir, he tore the will for three times with intent to revoke the will. He was on the act of tearing the will for the fourth time when his heir pleaded with him not to tear the will. He stopped and placed the pieces together. Is there a valid revocation? A: None. Q: In the preceding problem, suppose that Mr. X tore the will just once and threw it in the wastebasket. Is there a valid revocation? A: YES. Q: What is the difference between the two immediately preceding Q&As?

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A: In the first instance, the will is still valid because the subjective phase of the overt act was not yet completed. It is th evident in the first instance that the testator still has the intention to tear the will for the 4 time so as to revoke it. In the second instance, there was already a completion of the subjective phase of the overt act. Prof. Navarro said: The question that must be asked is. Was the act subjectively complete? If yes, then even if there is subsequent desistance, there arises a valid revocation. Q: Suppose that Mr.X, with an intent to revoke the will, tore the will just once and threw it in the waste basket. Thereafter, he changed his mind and pasted back the will? Is the will valid? A: NO. There was already a completion of the subjective phase of the overt act. Therefore, the will was already revoked. The subsequent act of pasting it back did not restore the validity of the will. Q: When is the act deemed to be still in its subjective phase? A: If the testator still intends to do a further act. Q: What if instead of tearing it himself, Mr. X used a shredding machine. Is there a valid revocation? A: Yes N.B.: 1) 2)

3)

Tearing includes cutting. A clause may be revoked by cutting the same from the will. The mere act of crumpling or the removal of the fastener binding the pages of a will DOES NOT constitute a revocation, even though there be animo revocandi. Reason: Crumpling is not one of the overt acts provided for by law. However, in Roxas vs. Roxas(48 OG 2177), the court impliedly allowed crumpling as one of the overt acts, provided, there is animo revocandi Tearing of even the signature alone constitutes revocation, provided, the other requisites are present. This is because the signature goes to the very heart of the will.

N.B.: HUMPTY DUMPTY RULE: Once a will has been torn and revoked, it can no longer be revived by putting the pieces together. Q: Suppose X dug a place in his yard and buried the will there, is there a valid revocation? A: NO, since there was no physical destruction. Q: X made a one page notarial will and took pictures of the said will. Thereafter, X had the pictures developed and distributed copies of it to his friends, while retaining some copies to himself. After 1 year, X burned one of the pictures with an intent to revoke. Is this a valid revocation? A: First view: There was a valid revocation because the testator need not burn all the pictures of the will in order to constitute a complete revocation. Second view: There was no valid revocation since, what was burned was a mere reproduction(picture). According to Jurado, citing American jurisprudence, to constitute a revocation by burning, there must be at least a burning part on the paper on which the will was written. Although a slight burn will suffice. Hence, this would imply exclusion of mere burning of the reproduced copy. Q: X executed his last will and testament. He made 5 copies of his notarial will, one original and the other 4 as duplicate copies. The original copy plus 3 duplicate copies were given by X to his friend, F. X retained one duplicate copy. Thereafter, X revoked his will by tearing the said duplicate copy. Is there a valid revocation? A: YES, since all requisites for a valid revocation by an overt act were present. There is a valid revocation of the will, even if other copies of the said will are still existing. Furthermore, a duplicate original, a carbon copy, or a duplicate executed at the same time as the original is as good as the original and produces the same effect, as though the original has been revoked. N.B.: A duplicate original is a reproduction, but it is considered the same as the original itself. That is why, its destruction, cancellation or obliteration will suffice as revocation of the will itself. With respect to the pictures, although it a reproduction of the will, it cannot be considered the same as the original itself, that is why, its destruction may not be considered as sufficient revocation of the will. Transcribers warning: The aforementioned comparison refers to the 2 immediately preceding Q&As Transcribers own opinion. Prof. Navarro did not say anything on the matter. Q: Is it sufficient under Art. 830 to destroy a reproduction(reproduced copy) of a will for its valid revocation? A: A symbolic destruction, cancellation, obliteration will not suffice. However, since a duplicate original has a genuine signature, it is deemed that its destruction is a sufficient revocation. Q: X had 4 copies of his will. He burned the 1 copy with an intent to revoke. Can the heirs have the remaining 3 copies probated? A: NO. It is evident that X has decided to revoke the will. There was a complete act of actual and physical destruction of the will, notwithstanding that there were other three copies. Furthermore, there is an intention on the part of the testator to revoke
st

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the will. What is controlling here is the INTENT OF REVOCATION. In the main, DESTRUCTION OF A COPY OF THE WILL IS A SUFFICIENT REVOCATION, DESPITE THE PRESENCE OF OTHER COPIES, IF THERE IS AN INTENTION ON THE PART OF THE TESTATOR TO REVOKE THE WILL. Q: Suppose the testator simply crumpled his will, and in the presence of his beneficiary, orally declared his intentions to revoke the will. Is it a valid revocation? A: NO, it is not a valid revocation. The mere act of crumpling or the removal of the ring or fastener binding the pages of a will does not constitute a revocation, even though there be animo revocandi. Crumpling is not one of the overt acts provided for by law. Inclusio Unius et Exclusio alterius. The overt acts specified are exclusive, notwithstanding the ruling in the case of Rosa vs. Rosa, where the court impliedly allowed crumpling as one of the overt acts. The intention to revoke must concur with the overt act expressly specified. Q: Suppose the testator merely spat on the will. Is there a valid revocation? A: NO, the revocation of the will is a matter of mental process demonstrated by some outward and visible sign. A mere symbolic destruction will not suffice. There must be a physical act (neither merely symbolic, nor verbal) as well as an intention. Q: Suppose the testator buried the will? A: Merely burying is construed as a mere symbolic act of destruction, hence, there is no valid revocation. Take note: in burning, even a slight burn is deemed sufficient. Q: Suppose X threw his will from the window of his office building with intent to revoke it. It was picked up by a Metro Aide who threw it in a fire. Is there a valid revocation? A: None, since in cases where the physical destruction is made by a third person, it must be performed in the presence of the testator and under his express direction. Q: Suppose that the testator could no longer stand and so, he asked his housemaid to get his will and burn it for him. The housemaid burned the will in the kitchen and returned with the ashes. Is there a valid revocation? A: None, since it was not done in the presence of the testator. Q: What about the fact that he saw the ashes? A: It is immaterial, since, there is no guarantee that the said ashes are those of the will. Q: Define Revocation by Obliteration. A: It is one affected by erasing or scraping off any word or disposition which the testator intends to revoke. In this case, the words are rendered illegible. Q: Define Revocation by Cancellation. A: It is one affected by diagonal or horizontal lines, or criss-crosses written upon the face of the will or upon any part thereof. In this case, the words are still legible. N.B.: 1. 2. 3. 4.

Either of the two (Obliteration or cancellation) revokes a will, totally or partially. If all parts are cancelled or obliterated, or if the signature is cancelled or obliterated, the whole will is revoked, the reason in the case of the signature being that the act strikes at the existence of the whole instrument. Cancellation or obliteration of non-vital parts leaves the other parts in force. If a will is mutilated by error, there being no animo revocandi, there is no revocation.

Q: X executed a holographic will, with A, B and C as witnesses. Thereafter, X cancelled the signatures of the 3 witnesses. Is the will revoked? A: NO, because cancellation of the signatures of witnesses to a holographic will leaves the will valid, since no witnesses are after all required. Q: Suppose that the testator wrote cancelled on the left margin of the will. Is there a valid revocation? A: NO, even if there is an intent to revoke since the testator must have caused some physical defacement of the will to give expression to that purpose. Q: In the preceding problem, suppose that the testator wrote the word cancelled, signed and dated it. Is there a valid revocation? A: YES, since having been executed in accordance with all the formalities prescribed by law for the execution of will, there would be a revocation, not by cancellation but by a nontestamentary writing executed as provided in case of wills. N.B.: REVOCATION BY WILL OR CODICIL OR OTHER NON-TESTAMENTARY WRITING: 1. It is EXPRESS when in a subsequent will, or codicil or other non-testamentary writing executed as provided in case of wills, there is a revocatory clause expressly revoking the will or part thereof. 2. It is IMPLIED when the provisions of the subsequent will or codicil are partially or absolutely inconsistent with those of the previous will.

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Q: Can there be a revocation, which is done impliedly? A: YES, implied revocations consist in complete inconsistency between 2 wills. But as long as a possibility for reconciliation between the 2 conflicting dispositions can be made then, there is no implied revocation. Q: How is an implied revocation effected? A: It is effected only by a subsequent WILL or a CODICIL. It is evident that it cannot be effected by a non-testamentary writing executed as provided in case of wills, since such non-testamentary writing does not contain any affirmative disposition of property, which can be said to be inconsistent with the disposition contained in the previous will (J). Q: How is an express revocation effected? A: It is effected through a subsequent WILL, a CODICIL or a nontestamentary writing executed as provided in the case of wills. N.B.: In order to be an express revocation, there must be a revocatory clause in a (a)subsequent will, (b) Codicil, or (c) other writing. The intention of the testator to revoke the previous will must be clearly and unmistakably manifested. As regards to revocation by nontestamentary writing executed, as provided in case of wills, it is not essential that the writing should contain any affirmative disposition of property. Neither is it essential that a writing which is not in fact a will, be erroneously characterized a will, in order to be effective as a revoking instrument. Thus, a will may be revoked by express words of revocation contained in a deed of trust, or in a letter, signed by the testator and executed in accordance with the formalities prescribed by law for the making of wills. The exact wording of a revocatory writing is not so important, if the intent to revoke the will is clear from the language used, and the formalities of execution are observed (J). N.B.: Only a valid will can revoke a valid will. Q: What is the doctrine of DEPENDENT RELATIVE REVOCATION? A: Under this doctrine, the established rule is that, if the testator revokes a will with a present intention of making a new one immediately and as a substitute, and the new will is not made , or if made fails of effect for any reason, it will be presumed that the testator preferred the old will, instead of intestacy, and the old one will be admitted to probate an the absence of evidence overcoming the presumption, provided, its content can be ascertained. Vda. De Molo vs. Molo (90 Phil 37) FACTS: After the death of Mariano Molo, his widow filed a petition seeking the probate of a will executed by the deceased o n June 20, 1939. This will was denied probate on the ground that it was not executed in accordance with the formalities prescribed by law. In view of the disallowance, the widow filed a second petition for the probate of a copy of another will executed by the deceased on August 17, 1918. This will was admitted to probate in spite of the opposition of the oppositors-appelants. The widow is the instituted heiress in both wills. The oppositors contend among others, that the will of 1918 cannot be given effect because there is a presumption that the testator, after executing the will of 1939, and with full knowledge of the revocatory clause contained in the said will, deliberately destroyed and revoked the original will of 1918. HELD: Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator, after the executio n of the will, which revoked the first, could there be any doubt that said earlier will was destroyed by the testator, in the honest belief, that it was no longer necessary because he has expressly revoked said will in 1939? In other words, can we not say that the destruction of the earlier will, was but the necessary consequence of the testators belief, th at the revocatory clause contained in the subsequent will was valid and the latter would be given effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate, under the doctrine. Art. 833. A revocation of a will based on false cause or an illegal cause is null and void. N.B.: False cause or illegal cause must be stated in the subsequent will that the revocation was due to such cause. The purpose is for contesting the will. Q: X instituted F as heir for half of the free portion of his estate. X subsequently revoked the will: a) I revoke the will for F. b) I revoke the will for F, because he is dead. c) I revoke the will for F, because I have a crush on him, but he wouldnt court me. d) I revoke the will for Martin, because he is a Bicolano and I hate Bicolanos. Can F contest the revocation? A: Except for the revocation under (b), F cannot contest the revocation because the will is essentially revocable. Regardless, whether the revocation is whimsical or not. Under (b), it may turn out that F is alive and the cause of the revocation is untrue. In this case, the revocation is null and void, and will not take effect. (Art 833)

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N.B. 1) The rule under Art 833 is also known as a revocation by mistake. Thus, where a testator, by a codicil or a later will, revokes a devise or legacy in his will, expressly grounding such revocation on the assumption of a fact, which turns out to be false, as where it is stated that the legatees or devisees named in the will are dead, when in fact, they are living, the revocation does not take effect. The reason for the revocation, which is based on a false cause or an illegal cause, must be stated in the codicil or a later will, so that it may be contested. If the same is not stated, it cannot be assailed.

2)

Q: Suppose that X in his 1985 will, instituted A as his heir. In 1995, believing that A was already dead, X revoked As institution. But X did not state in the will/revocation that the reason was due to his bel ief that A was already dead. After Xs death, A discovered that the revocation was made due to Xs false belief, that he was already dead. Can the revocation be questioned? A: NO. A revocation of a will based on a false cause or an illegal cause shall be rendered null and void only when the said cause is expressly stated in the codicil or a later will. In this case, X did not state in the later will that the revocation was due to his false belief that A was already dead. Q: In the preceding problem, what if X stated in the later will that I am revoking the institution of A as heir because he i s already dead. Can A contest the revocation? A: Yes. N.B.: Under Art 834, the revocation of the will where an illegitimate child is acknowledged by the testator as his natural child, will not affect the validity of the recognition or acknowledgment. This rule is logical, considering the fact that even if the will is revoked, the instrument still constitutes an authentic instrument within the meaning of Art 278 of the Civil Code, which states that recognition of natural children shall be made in the record of birth, or in the will, or in a statement before a court of record, or in an authentic writing.(J) Q: X executed a will in 1985. In the said will, he also acknowledged A as his illegitimate child. In 1995, X revoked his 1985 will. What is the effect on the recognition of A as an illegitimate child in the 1985 will, considering that the same was revoked? A: The recognition of an illegitimate child does not lose its legal effect, even though the will where it was made should be revoked. Reason: Because the recognition is not a testamentary disposition. It takes effect upon the execution of the will and not upon the death of the testator. Hence the childs right is already vested upon the execution of the will. Furthermore, even if the will has been revoked, the instrument still constitutes an authentic instrument within the meaning of Art 278 of the Civil Code, which stated that recognition of natural children shall be made in the record of birth, or in a will, or in a statement before a court of record, or in an authentic writing. ARTS. 835-837: REPUBLICATION AND REVIVAL OF WILLS Q: What is REPUBLICATION as applied to wills? A: It is an act of the testator, whereby he reproduces in a subsequent will, the dispositions contained in a previous will, which is void as to its form or executes a codicil to his will. N.B.: With respect to REPUBLICATION: 1) May post it nakatabing 2) 3) REVIVAL is the restoration to validity of a previously revoked will by operation of law. REPUBLICATION REVIVAL 1. Takes place by an act of the testator 1. Takes place by operation of law 2. Corrects extrinsic and intrinsic defects 2. Restores a revoked will Q: Suppose that X made a notarial will in 1985, he made it when he was 16 years old. X executed a codicil in 1995 modifying the will of 1985. Would the codicil act as a republication of the 1985 will? A: YES, because a referral was made modifying the 1995 will. Hence, the intrinsic defect has been cured. Note: Art. 836 applies. Q: If he dies, should the will be allowed? A: YES, because there was proof that the codicil intends to cure the intrinsic defect, for he referred to the 1985 will, using the codicil.

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Q: Suppose that X made a notarial will in 1985, but only two witnesses were present. In 1995, he modified the will by a codicil. If he dies, should the will be allowed? A: NO. There is no proof that the whole will was reproduced correcting the void provisions. The latter was merely as codicil. The 1985 will was void as to its form because it only has two witnesses and therefore Art 835 should apply the testator must reproduce in a subsequent will the dispositions contained in the 1985 will. He cannot merely use a codicil. Q: Suppose that when X made his will in 1985, he was 20 years old. The will did not contain an attestation clause. In 1995, he makes a codicil Is there a valid republication? A: NO, because the first will was not valid as to its form. X must copy the contents of the 1985 will as provided for under Art. 835 N.B.: 1) 2) 3)

If the defect of the will is as to its form, apply Art 835. If the defect is not with respect to its form, a codicil may be made with the effect of republishing the will. This is under Art. 836. A will, which is republished in a codicil, speaks as it were, from the new and later date, i.e. the date of the codicil.

Q: X made a notarial will in 1999, with only 2 attesting witnesses. It is clear that the will is void as to its form, and is therefore, useless. If he so desires to give life to the will, say, in 2000, (a) what should he do?? (b) How? (c) What is the effect? A: a) He must republish the 1999 will. b) By executing a new will in 2000, copying all the provisions in the 1999 will, but this time, he must use 3 attesting witnesses. c) The effect is as if, he made the will not in 1999, but in 2000 **In other words, the will becomes a re-established act, and therefore, the will governs property he has acquired up to 2000. E.g. of this effect: If in 1999, X gave all of her cars to F, and at the time(1999), X had 2 cars, but in 2000, he republished the will, and by that time(2000), X already have 5 cars. How many cars will F get? ANSWER: F will get all the 5 cars. [NOTE: Observe that under Art. 793, had te original will been valid, and no republication was made, F would only get 2 cars, even if by the time of Xs death the latter already has 5 cars, unless there was an express contrary provision in the will.] Q: When X made a notarial will in 1999, there were only 2 witnesses (it is clear that the will is void or invalid). In 2001, she modified the 1999 will by a codicil. She died in 2002. Can the will be allowed? A: NO, because there was no proof, that the whole will was reproduced, correcting the void provisions of the 1999 will. The latter instrument was merely a codicil, Art 835 applies, not Art 836. Republication (implied) by mere reference to a previous will, as contemplated by Art 836, is not sufficient because the will was void as to its form. Therefore, republication by reproduction or re-execution (Art 835) of the dispositions contained in the previous will must be made. Q: X made a notarial will in 1995. He made it, when he was 16, (It is clear that the will is invalid). In 2001, he executed a codicil modifying his will, which he made in 1995. He died in 2002. May the will be allowed? A: YES, because there was proof, that the codicil intends to cure the intrinsic defect. The reason is that, the codicil was used to refer to the 1995 will. The intrinsic defect in the 1995 will was the fact that X was only 16, when he made the will(Art 836 applies) Transcribers note: Do not confuse the 2 immediately preceding Q&As with each other. The former Q&A contemplates a situation where the will is void as to its form because there were only 2 attesting witnesses and therefore Art 835 applies. The latter Q&A contemplates a situation where the will is invalid because the testator(only 16) lacks testamentary capacity, thus Art 836 applies. The latter Q&A is void because the defect(lack of testamentary capacity) is not a defect in form. Take note that a will not void as to its form, can be cured by executing a codicil referring to a previous will(Art 836 applies). The query therefore is, How will we know if the will is void as to its form(and therefore Art 835 applies); or the will is not void as to its form(and therefore Art 836 applies)? Paras opined, that Art 835 refers to such things or defects covered by Art 805, like defects in the number of witnesses, lack of or fatal defects in the attestation, lack of acknowledgment, etc. Therefore, if these defects are present, Art. 835 applies. On the other hand, it is submitted, that Art 836 will apply, if the will was invalid due to (a) fraud or force, (b) undue influence, (c) or the testator was under 18, (d) or the testator was insane. In this case, the will may be republished by mere reference in a codicil. Q: X revoked his will by cutting out his signature in the will, with animo revocandi. Later he changed his mind, and pasted back his signature in its previous position. Does the revocation remain or has there been a republication?

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A: The will remains revoked. The attempted republication, has not complied with the legal requirements for republication. (57 Am. Jur. Wills, Sec 616) Q: What are the effects of a Republication by virtue of a codicil? A: They are: a) The codicil revives the previous will b) The old will is republished as of the date of the codicil, and makes it speak as it were, from the new and later date. c) A will 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.(See Paras for the illustrations)

N.B.: A duly executed codicil operates as a republication of the original will and makes it speak from the new date, in so far as, it is not altered or revoked by the codicil, although, such codicil is not physically annexed to the will, and althought the will is not in the presence of the testator at the time of executing the codicil, to which such codicil refers. If a codicil revokes some portion of the will, it republishes the will as of the date of the codicil, with respect to all the parts not revoked(J). Art 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil. Q: What do you understand by the PRINCIPLE OF INSTANTER? A: It is based on the principle that the revocatory clause of the second will takes effect immediately. N.B.: 1)

EXPRESS REVOCATION: Where the second will expressly revokes the first will; the first will is not revived by the revocation of the second will, unless such, revival is provided in another will or codicil. Basis: This is based on the theory, that the revoking clause in the second will is not testamentary in character, but operates to revoke the first will instant upon the execution of the second will containing the revocatory clause. Hence, the revocation of the second will does not revive the first will, which has already become a nullity 2) IMPLIED REVOCATION: Where there is merely an inconsistency between two wills, but there is no revoking clause; it has been held in common law, that upon the destruction of the second will, the first was automatically revived, regardless of the intention of the testator; provided, the first will has been preserved undestroyed and uncancelled. Basis: It is based on the ground that while the inconsistent provisions of the second will, clearly manifest an intention on the part of the testator to revoke the prior will, yet this intent, purely testamentary in character, can have no effect until the death of the testator, and if the instrument containing it is destroyed before the testators death, this revocatory intent i s, for legal purposes, as though it had never been and ____________with post it clause of the second will takes effect immediately, or at the instant the revoking will is made. [This is the principle of INSTANTER thus we say, the clause revoked the first will that contains said clause.] In other words, the theory is that death does not have to come before giving effect to a revocatory clause. Stated otherwise, while a will is a disposition mortis causa, an express revocation takes effect inter vivos. Q: X made a will in 1990 and in 1995 with inconsistent provisions and therefore, the 1995 will impliedly revoked the 1990 will. In 2000, X made a will revoking the 1995 will. Is the will of 1990 revived? A: YES, the 1990 will is revived. This is clear from Art 837. Since the article uses the word expressly, it follows, that in case of an implied revocation by the second will, an automatic revival of the first occurs. N.B.: Apparently, the REASON is, the fact that an implied revocation is ambulatory (these provisions do not revoke the other provisions instantly. They take effect only after death), the inconsistency being truly and actually apparent only mortis causa, when the properties are distributed. Q: Does implied revocation take effect during the lifetime of the testator? A: NO, because the revoking clauses are testamentary in character. They merely provide inconsistency between the two wills, but they do not expressly revoke the prior will. Q: Suppose that X made a will in 1985 and in 1990, with inconsistent provisions. In 1995, X made a will revoking the 1990 will. What is the effect of the revocation?

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A: The 1985 will is revived. The principle of INSTANTER does not apply because the 1990 will only impliedly revoked the 1985 will. N.B.: In implied revocations, the first will is not revoked by the second will because the testamentary dispositions of the latter do not take effect immediately. They only take effect after the death of the testator. So, if the second will was expressly revoked by a third will, the first will governs, for there is no more inconsistency. Q: X made Will no. 1, then he executed Will no. 2 expressly revoking Will no. 1. Thereafter, Martin destroyed Will no. 2, and orally expressed his desire that his first Will be followed. Should this be allowed? A: NO, the oral expression of the desire to revive cannot be given effect. He should have made a new will or codicil. (Art 837) ARTS 838-839: ALLOWANCE AND DISALLOWANCE OF WILLS Art 838 Q: What is the concept of probate of wills? A: It is a special proceeding for establishing the validity of the will. N.B.: Probate may also be defined as a special proceeding for the purpose of proving that the instrument offered for probate is (a) the last will and testament of the testator, (b) that it has been executed in accordance with the formalities prescribed by law, and (c) that the testator had the necessary capacity at the time of the execution of the will. Q: When may the probate of the will be commenced? A: The probate of a will may be commenced either during the lifetime of the testator or after his death. In the first, it is the testator himself who files the petition for the probate of the will. In the second, it is any person interested in the estate. Thus, they may be classified as, probate ante mortem and probate post mortem.(J) Q: What is the nature of a probate proceeding? A: It is an ACTION IN REM. Thus, the decree of probate is held binding on all persons in interest, whether they appear to contest the probate or not. Q: Suppose the testator instituted only one heir for his whole estate. Should the will still be probated? A: YES, there must still be a judicial order of adjudication. Q: Suppose that in his will, X declared: I will give my house and lot in Makati to A, and my house and lot in Quezon City to B and after Xs death, A and B agreed to follow his will to the letter. Should the will still be probated? A: YES. No judicial approval can be given to an extrajudicial partition based on a will, unless, the will is first probated. N.B.: Under our legal system, the probate of a will is MANDATORY. Q: Is the probate of a will mandatory? A: Yes. Q: Why? A: 1) The law expressly requires it.(Art 838) 2) Probate is a proceeding in rem, and therefore, it cannot be dispensed with or substituted by any other proceeding, judicial or extra-judicial without offending public policy; 3) The right of a person to dispose of his property by virtue of a will may be rendered nugatory; and 4) The absent legatees and devisees or such of them, as may have no knowledge of the will could be cheated of their inheritance, though the collusion of some of the heirs, who might agree to the partition of the estate among themselves to the exclusion of others. Q: Is there a period to file a petition for probate? A: Twenty days, under the rules of court. N.B.:

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1)

2)

Rule 75, Sec 2. If the will has been placed in custody of another person, the latter must, within 20 days, after he knows of the death of the testator, deliver the will into the court which has jurisdiction, or to the executor named in the will. Rule 75, Sec 3. A person named as executor in the will shall within 20 days, after he knows of the death of the testator or within 20 days after he knows that he is named executor, if he obtained such knowledge after knowing the death of the testator, present such will to the court which has jurisdiction, unless the will has been otherwise returned to said court, and shall within such period, signify to the court his acceptance of the trust, or make know in writing his refusal to accept it.

Q: After the aforementioned period, can the will no longer be probated? A: The will may still be probated, as probate proceedings are imprescriptible. Guevarra vs. Guevarra(98 Phils 249) The applicability of the statute of limitations to probate proceedings must be rejected on the ground, that such proceedings are not established in the interest of the surviving heirs, but , primarily for the protection of the testators expressed wishes. That is, it seeks to uphold the intent of the testator and his right of ownership. Q; What is the effect of the allowance of the will? A: A judgment or decree, which admits the will to probate, is conclusive upon the validity of the will. It is not subject to collateral attack, but stands as final, if not modified, set aside, or revoked by a direct proceedings or reversed on appeal to higher court. Mercado vs. Santos(66 Phil 215) FACTS: The petitioner filed a petition for the probate of the will of his deceased wife. The will was duly probated. Sixteen months after the probate of the will, the petitioner was prosecuted for falsification or forgery of the will, which was probated. ISSUE: May a crime of forgery lie against a person, based on a will which has been duly probated. HELD: NO. The probate of the will is considered as conclusive as to its due execution and validity; and is also conclusive that the testator was of sound and disposing mind and was not acting under duress, menace, fraud or undue influence; and that the will is genuine and not a forgery. The will in question having been probated by a competent court, the will not admit any proof to overthrow the legal presumption, that it is genuine and not a forgery. Criminal action will not lie against a forger of a will, which has been duly admitted to probate. Q: When may the allowance of a will be set aside? A: Since a proceeding for the probate of a will is essentially one in rem, a judgment allowing a will shall be conclusive as to its due execution. Consequently, no question as to the validity or invalidity of the will could thereafter be raised, except: 1) By means of an appeal; 2) By means of a petition for relief from the judgment by reason of fraud, accident, mistake or excusable negligence; 3) By means of a petition to set aside the judgment by reason of lack of jurisdiction, or lack of procedural process; 4) By means of an action to annul judgment by reason of extrinsic or collateral fraud N.B.: Any petition must be done in the reglementary period: 1) Within 60 days, after the petitioner learns of the judgment or order to be set aside; 2) Within 6 months, after such order or judgment was entered. Q: Is the probate of the will by final judgment, prior to that of the codicil thereof, a bar to the probate of the codicil? A: NO. This question was resolved in the negative by the Supreme Court, in the case of Macam vs. Gatmaitan, 60 Phil 358.(Read the case)(J). Q: Is it necessary that the will and the codicil be probated simultaneously? A: NO. The codicil may be concealed by an interested party and it may not be discovered, until after the will has already been allowed. They may be presented and probated one after the other, since the purpose of the probate proceedings is merely to determine whether or not the will and the codicil meet all the statutory requirements for their validity, leaving the validity of their provisions for further consideration. Failure to oppose the will does not prevent one from opposing a codicil.

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Q: What are the question determinable by the probate court during probate proper? A: 1) Identity - whether or not the instrument, which is offered for probate, is the last will and testament of the decedent. 2) Due execution whether or not the will has been executed in accordance with the formalities prescribed by law. 3) Capacity whether the testator had testamentary capacity at the time of the execution of the will. N.B.: The aforementioned refer to the extrinsic validity of the will. Consequently, the probate court cannot inquire into the intrinsic validity of testamentary dispositions. Q: Can the probate court, during the probate proper inquire into the intrinsic validity of the will? A: As a general rule, the probate court cannot inquire into the intrinsic validity of the will. Exception: If it is to prevent multiplicity of suits. Example: case of Nuguid. Nuguid vs. Nuguid(17 SCRA 449) When practical considerations demand that the intrinsic validity of the will be passed upon, before it is probated, the Court could meet that issue. In the case at bar, if the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation would be protracted. And for aught, that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. RESULT: waste of time, effort, expense, plus added anxiety. Q: Do you think the Court would have ruled otherwise, if besides the institution of an heir, there were also legatees and devisees? A: YES. If such is the case, then it will not be a futile exercise to remand the case for probate of the will, since there would be more than one provision, which shall be decided upon by the court. Nepomuceno v. CA(139 SCRA 207) The court ruled that the court can inquire as to the intrinsic validity of the will because there was an EXPRESS STATEMENT THAT THE BENEFICIARY WAS A MISTRESS. (It was the only testamentary disposition) Under the law, it is illegal to give anything to a mistress, for this is a cause for disqualification in donations. The court held that the institution of the mistress is void. However, the will remains valid. (read the case for your own benefit) Q: What are the two kinds of probate proceedings? A: 1) ANTE MORTEM that which is had during the lifetime of the testator; and 2) POST MORTEM that which is had after the death of the testator. Q: If you are the testator, which would you prefer? Ante Mortem or Post Mortem? A: Ante Mortem Q:Why? A: 1) It is easier for the courts to determine the mental condition of a testator during his lifetime, than after his death; 2) Fraud, intimidation and undue influence are minimized; 3) If a will does not comply with the requirements provided by law, it may be corrected at once. Q: In a will, a husband appointed his wife as guardian of his childrens properties . In the probate order, may the court pass upon the validity of the appointment? A: NO, for this does not concern the extrinsic validity of the will (Castaneda vs. Alemany, 3 Phi 426) Q: X made a will, instituting A as a universal heir. He gave B P1T. He gave a one hectare lot to C. But, he did not give anything to his son S. Can the court inquire into the intrinsic validity of testamentary provisions of Xs will? A: NO, the court cannot inquire into the intrinsic validity of the testamentary provisions. Mere moderate entreaties on the part of the testator, or the fact that the heirs are omitted does not result into an undue influence, that will justify an inquiry into the intrinsic validity of the will. (Pascual vs. CA)

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REVOCATION 1. Voluntary act of the testator 2. With or without cause 3. May be partial or total

DISALLOWANCE 1. Given by judicial order 2. Must always be for a legal cause 3. As a rule always total(except when the ground of fraud or undue influence for example, effects only certain portions of the will

Q: A holographic will was destroyed without authority. Can this be probated under Art 839? A: General rule: NO Exceptions: 1) if there is a photocopy/ Xerox copy of the will; or 2) testimony of the testator. (Gan vs. Yap) Q: What if the will is a notarial will? Can it be probated under Art 839, if it was destroyed or lost? A: YES, because there are solemnities designed to prove the will, whenever it is lost/destroyed, such as 1) witnesses, 2) notary public, and 3) parol evidence. Q: What are the requisites before a will can be allowed, if it was destroyed or lost? A: 1) Contents must be proven; 2) Due execution must be proven; and 3) Unauthorized destruction must be proven. ART 839 Q: What are the grounds for disallowance of a will? A: The will shall be disallowed in any of the following cases: a) If the formalities required by law have not been complied with; b) If the testator was insane, or otherwise mentally incapable of making a will at the time of its execution; c) If it was executed through force or under duress, or the influence of fear or threats; d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; e) If the signature of the testator was procured by fraud; f) If the testator acted by mistake or did not intend that the instrument he signed should be his will, at the time of affixing his signature thereto.(Art 839) N.B.: The grounds given in Art 839 are EXCLUSIVE. Thus, no other grounds can serve to disallow a will. (Pecson vs. Coronel, 45 Phil 216) Q: If at the time of the execution of the will, the signature was procured by fraud and such fraud came not from the heir, but from a third person, should the will be allowed? A: NO. The law does not make a distinction as to who the author of the fraud is. Q: Undue Influence? A: There is undue influence, when a person takes advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. N.B.: In Pascual vs. CA, the court held, that undue influence must: 1) Destroy the free agency of the testator; 2) It must be substantial based on evidence; 3) It must not be a mere conjecture; 4) The burden is on the person asserting the existence of undue influence; and 5) Not merely a moderate solicitations to the testator. Q: Intimidation? A: There is intimidation when the testator is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to execute the will. Q: Fraud? A: Fraud is present to invalidate the will, if by misrepresentation and deception, the testator is lead into making a will, different from what he would have made, but for the misrepresentation and deception.

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Q: Violence? A: Violence is present, when, in order to compel the testator to make a will, serious and irresistible force is employed. N.B.: There is no undue influence just because a testator has made his mistress, or his illegitimate child by her, the heir to the entire free portion. Mere affection, even if illegitimate, is not undue influence, as long as the giving was voluntary. (Coso vs. Fernandez Deza, 42 Phil 596) [Remember however, that although such a will may be admitted to probate because of the absence of undue influence,still under our law, a mistress is incapacitated to inherit. (See Art 1028 in relation to Art 739) (For more examples of this topic, see the discussion of Paras under Art 839)] Bugnao vs. Ubag(14 Phil 163) FACTS: X made a will giving all his property to his widow, and leaving nothing to his brothers and sisters. X has no parents or children. The brothers and sisters opposed the will on the ground of lack of testamentary intent as well as undue influence, for it was inherently improbable that a man would make so unnatural and so unreasonable a will. It was proved however, that they had a bitter religious quarrel with the testator, so bitter that they did not even attend the funeral of the deceased, despite the fact that they were full grown men and women. ISSUE: Is there undue influence? HELD: NO. As a matter of fact, the quarrel gives the reason for their being excluded from the inheritance. Q: Can fraud and undue influence co-exist? A: As a general rule, they cannot co-exist because they are repugnant to each other. Fraud in the sense of deceit is a ground of contest separate and distinct from undue influence. EXCEPTION: In the case of Revilla vs. CA(217 SCRA 583), undue influence and fraud were found to have existed together because they were used on different parties concurrently. Revilla vs. CA(217 SCRA 583) The employment of undue influence by Heracio was not mutually repugnant to fraud as the petitioner insists, for it was the means employed by Heracio to defraud his brothers and sisters of their rightful shares. There was fraud because Don Cayetano was not apprised that the document he was signing was second will, revoking the dispositions of his property, that he made in the first will. N.B.: 1)

2)

3) 4)

To make a case of undue influence, the free agency of the testator must be shown to have been destroyed; but to establish aground of contest based on fraud, the free agency of the testator need not be shown to have been destroyed. It has been observed that fraud and undue influence are usually the very opposites of each other. UNDUE INFLUENCE compels the testator to yield through fear and make a will, which he would instantly repudiate if free and unconstrained, while FRAUD, although it may poison the mind of the testator, leads him to use is testamentary power not only willingly, but often with pleasure and satisfaction, to disinherit persons who have the strongest natural claims upon his affections. Concisely stated, FRAUD wilfully deceives free agency, while UNDUE INFLUENCE overmasters it. The intent to deceive the decedent is an essential element of fraud, avoiding a will, in the absence of any element of undue influence. Moreover, to invalidate a will, it must have affected the testator in the very act of making his will and at the time the will was executed(J).

Q: Suppose that Mr. X had 4 legitimate children. In his will, he stated that A, B and C shall be entitled their legitime and D, his youngest son, will get the rest of his estate. It was later on proved that D, with whom Mr. X had been living, had often pleaded with Mr. X, that he should be given more than his siblings. Can the will be disallowed on the ground of undue influence? A: NO. There was only a moderate solicitation or persuasion, which the testator could have simply refused. Q: In the preceding problem, what about the fact that D would always plead to be given more? A: It is immaterial, for merely inequality in the distribution of the estate does not by itself prove that there is undue influence. Note: In fact, diversity of apportionment is the very reason for making a testament, otherwise, the decedent might as well die intestate. Q: X executed a will in favor of his friend F, mainly because the latter asked the former to execute the will, thru a friendly persuasion. Later, X repented having executed said will, but did nothing about it. Is there undue influence?

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A: NO. Apparently, the will can be admitted to probate there being no undue influence before or after the making of the will. Subsequent repentance is not one of the grounds given by law. Q: X made a will giving everything to his younger brother A. Thereafter, it was established that it was A himself who made the will. Is this a fact to disallow the will for undue influence? A: NO. Refer to the rules. (if the act of A was mechanical) Q: When is there a mistake? A: There is a mistake if the testator did not intend that the instrument he signed should be his will, at the time of affixing his signature thereto. ARTS 840-856: INSTITUTION OF HEIRS ART 840 Q: Institution of Heirs? A: It is an act by virtue of which, a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. Q: What is the fundamental basis of the law on testamentary succession? A: The fundamental basis is the doctrine, that the will of the testator, freely expresses in his last will and testament, is, as a general rule, the supreme law which governs the succession. Q: What are the requisites for a valid institution? A: They are as follows: a) The will must be EXTRINSICALLY VALID; b) The institution must be valid INTRINSICALLY (E.g. The legitime of the heir must not be impaired; the heir must be certain or ascertainable; there should be no preterition); c) The institution must be effective (E.g. no predecease, no repudiation by the heir, no incapacity of the heir) N.B.: Some principles respecting the institution of heirs: a) Institution being a voluntary act cannot be allowed to affect the legitime. b) In general, the provisions on institution are applicable to devises and legacies. c) There can be an instituted heir only in testamentary succession (for the heir in intestate succession is called legal or intestate heir) d) A conceived child may be instituted, if the condition in Arts. 40 and 41 are present (Art 1025) ART 841 Q: What is the effect if the will does not contain an institution of heir? A: The rule under Art 841 is that, the will is still valid although it may not contain an institution of heir. N.B.: Refer this to the immediately preceding Q&A The same is true in case of a partial institution or in case of a vacancy in the inheritance due to repudiation or incapacity. The effect in all of these cases is that, the testamentary dispositions, which are made in accordance with law, shall be complied, while the remainder shall pass to the legal heirs in accordance with the law of intestate succession.(J) N.B.: A will, unless otherwise defective is valid, even if: a) There is no institution of heirs. b) The instituted heir is given only a portion of the estate. [reason: Mixed succession is allowed. See Escuin vs. Escuin, 11 Phil 839] c) The heir instituted should repudiate or be incapacitated to inherit, Q: Would it be advantageous if there is an institution of an heir? A: YES. It lessens and prevents the effects of intestacy, by giving to those persons who are close to the testator, but cannot inherit legally.

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N.B.: The concept of an heir as the continuation of the personality of the testator has disappeared. An heir is now in the same position as the legatee or devisee, in the succession. As such, the institution of heirs should be understood as applicable also to the designation of legatees and devisees. ART 842 Q: Is the testators freedom of disposition absolute in character? A: It depends upon whether or not he has compulsory heirs (J). Q: When is the freedom of disposition absolute and when is it not? A: It is absolute when the testator has no compulsory heirs. Thus, the whole estate is disposable. He can therefore, dispose of his whole estate or any part of it in favor of any person, provided that such person has the capacity to succeed. (See the case of Pecson vs. Coronel, 45 Phil 216) The testators freedom of disposition is not absolute in character, if he has compulsory heirs. This is so, because there is always a portion of the testators estate known as the legitime, which is reserved by operation of law for the b enefit of certain heirs, who are therefore called compulsory heirs, and over which the testator, as a general rule, can have no testamentary control. Thus, the testators freedom of disposition extends only to the disposable free portion of his estate ( J). Q: Is there a necessity for a judicial order of adjudication, even if only one heir is instituted? A: YES. The order of adjudication is the judicia; recognition that in instituting the heir, the deceased did not contravene the law, and that the heir was in no way disqualified to inherit. ARTS 843-844 N.B.: Art. 843 is not mandatory. The designation may be made in any other form, so long as, there will be no doubt as to the identity of the heir or heirs instituted. Q: Is the first name and last name needed in the institution of heir? A: Generally, YES. However, the first name or the last name may be omitted as long as they are determinable by other circumstances. Q: Suppose X stated in his will: I hereby institute as heir to the free portion of my esta te, the incumbent rector of SBC at the time of my death. Is the institution valid? A: YES, because the heir can be determined with certainty. Q: Testator said, I hereby give 3M to some artists. Is the institution valid? A: It depends. YES, if intrinsic and extrinsic evidence can prove which artists the testator were referring to. NO, if intrinsic and extrinsic evidence cannot prove which artists the testator were referring to. In this case, no one will inherit and intestate succession shall apply. Q: What is the effect if there is doubt as to the institution of the heir? A: Nobody will inherit and intestate succession shall apply. Q: X executed a will, stating: to my friend Ronal, who is taking up law in SBC. It turned that there are two Ronalds taking up law studies in SBC, and both are friends of X. Who will inherit? A: Nobody will inherit and intestate succession shall apply. Q: In the preceding problem, what about if there is uncertainty as to the real heir? A: Nobody will inherit. Q: In the preceding problem, why not give each of the inheritance? A: This is not possible because only one was intended by the testator to inherit. To divide the inheritance would be to frustrate the testators intention. Moreover, we would be giving something to a person, which the testator intended to give nothing. N.B.: The provisions of Art 843 and 844 should be applied in relation to the provision of Art 789. From these provisions, it is clear that the proper test in order to determine the validity of an institution of heir is the possibility of finally ascertaining the identity of the instituted heir, either by extrinsic or intrinsic evidence. This test is specially applicable on the following cases: a) If the name and surname of the instituted heir has been omitted by the testator;

54

b) c) d)

If there has been an error with respect to the name, surname or circumstances of the instituted heirs; If the name, surname and circumstances of the instituted heir are the same as those of other persons; and If a unknown or uncertain person has been instituted (J).

Q: What is a persona incierta(unknown person)? A: A persona incierta(unknown person) is one, who is not determined or individualized, and therefore, cannot be identified. N.B.: Under Art 845, a disposition in favor of such person shall be void unless by some event or circumstance his identity becomes certain. Q: X stated in his will: I will give P1000.00 to the person, who will graduate as valedictorian of SBC Law, after my death. Is this valid? A: YES, because it refers to an unknown person, who can be determined by an event or circumstance. In this case, the person is already existing, but not yet determined. Q: But 3 months before the death of X, SBC was totally destroyed in an earthquake. Is the provision still valid? A: NO, because the unknown person can no longer be determined. N.B.: It is clear that before the disposition can be considered valid, it is indispensable that the identity of the beneficiary can be ascertained, either by a past, present or future event or circumstance. It must, however, be noted that this requisite is predicated on the fact that the beneficiary must be in existence at the time of the testators death. Otherwise, even if it would be possible to determine his identity by some event or circumstance, the disposition would still be ineffective on the ground of absolute incapacity(J). N.B.: Dispositions in favor of a definite class or group of persons are of course valid, although the particular persons comprising the specified class or group may be unknown. The second sentence of Art 845, which recognizes the validity of such dispositions, is complemented by the provisions of Art 786 and 1030 of the Civil Code(J). Q: What are the cases that will invalidate a provision in favor of an unknown person, but determinable by an event or circumstance? A: 1) Designation by a third person; 2) Non-existing beneficiary; 3) Incapacity to inherit on the part of the beneficiary. Art 846. Heirs instituted without designation of shares shall inherit in equal parts.(Law of Equal Division) Q: What is the effect if several heirs are instituted as heirs without designation of shares? A: They shall inherit in equal parts. N.B.: The rule under Art 846 not be interpreted in an absolute manner. It should be limited only in cases where all of the heirs are of the same class or juridical condition. Where there are compulsory heirs among the heirs instituted, the rule should be applied only to the disposable free portion. Q: Suppose that it is stated in Xs will: I give A, B and C my entire estate as my heirs. The net value of such estate is P120T. How much is each entitled? A: A = P40T B = P40T C = P40T 120T Q: In the preceding problem, would it make any difference if A is the legitimate son of X, while B and C are merely his friends? A: YES. Even if the law does not say so; it is believed that the rule in Art. 846 cannot be applied absolutely in case one of those instituted is a compulsory heir, inasmuch as institution in general refers merely to the free portion. Therefore, the legitime must first be removed and what remains will be divided equally. Hence, the distribution will be as follows: A = 60T as compulsory heir

55

B C

= = =

20T as voluntary heir 20T as voluntary heir 20T as voluntary heir 120T

N.B.: 1) 2)

Must be understood as referring to heirs who are of the same class or juridical condition; and To the portion of the inheritance of which the testator can freely dispose.

Art 847. When the testator institutes some heirs individually and others coll ectively, as when he says, I designate as my heirs A and B, and the children of C, those collectively designated shall be considered as individually instituted unless, it cle arly appears that the intention of the testator is otherwise. Q: Testator said in his will: I hereby give my entire estate to A and B and the children of C(D and E). The net value of the estate is P120. How much is each entitled? A: A = P30T B = P30T D = P30T E = P30T P120T ART 847 & 849 N.B: SUMMARY OF RULES: 1) Art 847 deals on individual and collective institutions. The rule is, in the absence of a more specific designation, the law presumes that those who are collectively designated shall be considered as individually instituted in accordance with the presumed will of the testator(J). 2) Under Art 849, whenever the testator institutes as his heirs a certain person and his children, such institution must be interpreted to mean, that they are called to the succession simultaneously and not successively. Thus, if the testator institutes A and his 5 children as his heirs with respect to the disposable free portion of the inheritance, it is clear that such disposable free portion shall be divided equally among A and the 5 children. Take note: the distribution refers to the disposable free portion(J). ART 849. When the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively. Q: Testator said in his will: I hereby give my entire estate to C and his children D and E. NE is P120T. How much is each entitled? A: C = P40T D = P40T E = P40T P120T RULE: If the shares of some heirs are designated, while those of others are not those parts designated shall be given to their owners, and the balance shall be divided equally among those whose shares are not designated. Q: Testator said in his will: I hereby institute A, B, C and D as my heirs. I hereby order that of my estate would be given t o A, and 14 of my estate to B. The net value of the estate is P120T. How much is each entitled? A: A =(1/2 of P120T) P60T B =(1/4 of P120T) P30T C = P15T D = P15T P120T RULE: If shares of those whose portions are designated should consume the entire estate, those whose shares are not designated will inherit nothing.

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Q: Testator said in his will: I hereby institute A, B, C and D as my heirs. A would receive of my estate, B and C . T he net value of the estate is P120T. How much is each entitled to? A: A =(1/2 of P120T) P60T B =(1/4 of P120T) P30T C =(1/4 of P120T) P30T D gets nothing RULE: Where there is no designation of shares, but the testator has provided specific things to be given to each heir, and such things form only a portion of the estate, the institution must be considered as without designation of shares and the heirs will divide the estate equally. But the value of the specific things assigned to each must be included in the amount that should pertain to each(see Paras p.182 for illustration) ART 848 provides, If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears. In case of intestate succession however, should brothers and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. (Art. 1006) (J). N.B. Art. 850 provides, the statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. Consequently, if the validity of an institution of heir is attacked on the ground that it is based on a false cause, it is clear that the TEST which must be applied in order to resolve the question, is to determine from the will itself whether or not, the testator would not have made the institution, had he known the falsity of such cause (J). Q: Testator said: I institute my best friend, Ms. F, as heir to of the free portion of my estate because she is brillian t surgeon. It turned out that she was not really a surgeon but an embalmer. Is the provision valid? A: YES. Form the fact of the case, it is stated that Ms. F is the testators best friend. So, it can be presumed that the testator knows that Ms. F is not a surgeon but a embalmer. In short, the testator knows the falsity of the cause when she instituted Ms. F as an heir. (Art. 850). Sabi nga nila, in this case, just ignore the false cause. Q: Testator said: I hereby institute Dr. A to of my entire free portion because she saved my life by operating on me. It turned out that it was not Dr. A who operated on him. Is this valid? A: NO, because it is the fact of saving the testators life, that the testator instituted Dr. A as an heir. There was a false cause that appeared in the face of the will itself. Q: Testator said: I give of my estate to Dr. A He thought it was Dr. A who saved his life, but he did not state this in the will. Is this valid? A: YES, because there was no proof of false cause. The reason for the institution was not mentioned in the will. N.B. Before the institution of heirs may be annulled under Art. 850, the following requisites must concur. (a) The cause for the institution of heirs must be stated in the will, (b) The cause must be shown to be false, and (c) It must appear from the face of the will, that the testator would ot have made such institution, if he had known of the falsity of the cause. Consequently, where the testators will does not state in a specific or unequivocal manner the cuase for such institution, the annulment of such institution cannot be availed of. Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate. The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. (n) Art. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their

57

aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n) Q: Testator stated in his will: I institute A and B as my heir. A to of my estate and B to of my estate. What is the ef fect of such institution? A: YES. In this case, each of their shares will be increased proportionately, as to the remaining free portion of the estate. (see Paras for the illustration) Q: In the preceding problem, suppose the net value of the estate is 120T. How would you distribute the estate? A:First Step: i) A(1/2 of P120T) = P60T B(1/4 of P120T) = P30T Aggregate shares of all heirs = P90T ii) Net Estate P120T --(minus)-Aggregate shares of all heirs = P90T Remaining free portion P30T *The remaining free portion of P30T shall be distributed proportionally to the shares of each heir. Second Step: Formula: NE x Share of each heir Aggregate share of all heirs A = P120T x 60T P90T P120T x 30T P90T = P80T

P40T

Hence, the final distribution is: A= P80T B= P40T P120T Q:X institutes A to 1/3, B to and C with the intention that all of them shall become sole heirs of the whole estate. The net value of the estate is P120T. How will you distribute? A:First Step: i) A(1/3 of P120T) = P40T B(1/4 of P120T) = P30T C(1/4 of P120T) = P30T Aggregate shares of all heirs= P100T ii) Net Estate 120T (minus) Aggregate Share of all heirs 100T Remaining free portion P20T *The remaining free portion of P20T shall be distributed proportionally to the shares of each heir. Second Step: A = P120T x 40T P100T P120T x 30T P100T = P48T

P36T

58

P120T x 30T P100T Hence, the final distribution is: A= P48T B= P36T C= P36T P120T

P36T

Art. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. Q: Testator stated in his will: I will give A of my estate, B and C . Suppose that the net estate is worth P120T. Distribute the estate. A: First step: i) A(1/2 of P120T) = P60T B(1/2 of P120T) = P60T C(1/4 of P120T) = P30T Aggregate shares of all heirs= P150T ii) Net Estate 120T (minus) Aggregate Share of all heirs 150T Remaining free portion(Negative) P30T *The excess of P20T shall be deducted proportionally from the shares of each heir. Second Step: A = P120T x 60T P150T P120T x 60T P150T = P48T

P48T

P120T x 30T = P24T P150T Hence, the final distribution is: A= P48T B= P48T C= P24T P120T CHART: Amt. Rcvd. As Instituted Deduction = Amt. Actually Rcvd. A = 60,000 - 12,000 = 48,000 B = 60,000 12,000 = 48,000 C = 30,000 6,000 = 24,000 150,000 30,000 =120,000 Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. N.B. : Preterition must not be confused with disinheritance. The latter refers to the deprivation of a compulsory heir of his legitime, for causes expressly stated by law. The essential difference between the two, consists in the fact, that in preterition, the deprivation of a compulsory heir of his legitime is tacit or implied, while in the disinheritance, the deprivation is express(J). Q: What must be the character of the omitted heir in order that there will be preterition? A: The heir omitted must be a compulsory heir in the direct line(J).

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N.B.: Art 854 does not make any qualification or distinction whatsoever. Thus, it is immaterial whether the heir omitted in the testators will is legitimate or illegitimate. Consequently, the preterition of an acknowledged natural ch ild, shall result in the total annulment of the institution of the heir. This view was applied by the SC in Lajom vs. Leuterio, 107 Phil 651. Q: Who are those considered as compulsory heirs in the direct line? A: 1) Legitimate children and descendants with respect to their legitimate parents and ascendants; 2) Legitimate parents and ascendants with respect to their legitimate children and descendants; 3) Illegitimate children; 4) The father or mother of illegitimate children. Q: What must be the character of omission in order that there will be preterition? A: The omission of the compulsory heir must be COMPLETE and TOTAL in character, so that, he receives nothing from the testator at all. Consequently, if the testator leaves any property to the heir who is alleged to have been omitted, by any title whatsoever, there can be no preterition. This is true, even when he leaves to such compulsory heir a share which is less than his legitime. In this case, Art 906 of the Code applies; the heir can ask for the completion of his legitime.( Aznar vs. Duncan, 17 SCRA 590) Q: What is the effect if preterition occurs? A: According to Art 854, the preterition of a compulsory heir in the direct line, shall have the effect of annulling the institution of heir, but the devises and legacies shall be valid, insofar as they are not inofficious. Q: Not Inofficious? A: That amount which can be contained within the free portion. Q: What is preterition? A: It is the omission in the testators will of one, some or all of the compulsory heirs in the direct line , whether living at the time of the execution of the will or born after the death of the testator. REQUISITES: 1) The heir omitted must be a compulsory heir in the direct line. 2) The omission must be complete and total in character, in such a way that the omitted heir does not and has not received anything at all from the testator by any title whatsoever; and 3) The compulsory heir omitted should survive the testator. Q: Is there preterition when the omitted heir is an adopted child? A: YES. The adopted child is by legal fiction considered as a compulsory heir in the direct line Moreover, under the law, the adopted child has the same rights as that of a legitimate child(Family Code and the 1998 Domestic Act) Q: Is there preterition when the omitted heir is the surviving spouse? A: NO. A spouse although considered a compulsory heir, is not a compulsory heir in the direct line(ascendant/descendant). Q: What about if the heir omitted is an illegitimate child? A: There is preterition. The law does not make any distinction, whatsoever. Q: What about a parent of the testator, is he a member of the direct line? A: YES, An ascendant. Q: Suppose that an heir of the direct line dies ahead of the testator, is there preterition? A: There are 2 views on the matter: Jurado: (There is no preterition) The institution shall be effectual, but it is without prejudice to the right of representation when it properly takes place. Tolentino: If the compulsory heir who has been preterited dies before the testator, it is the same as if there had been no preterition. However, the right of representation should not be lost sight of. Thus, if the preterited heir has legitimate children and descendants entitled to represent him, and they have also been left out of the will, the institution of heirs shall be annulled just

60

the same, even if the preterited heir died before the testator. (aptly stated, there is preterition in the RIGHT OF REPRESENTATION because preterition is determined at the time of death of the testator.) This means that preterition must always be determined in relation to the persons, who are compulsory heirs at the time of the death of the testator, and not in relation to those who never became such. Transcribers Opinion: Jurado and Tolentinos views may be reconciled. There will be no preterition, if the omitted compulsory heir, is not survived by his compulsory heirs in the direct line. But there will be preterition in the right of representation, if the omitted compulsory heir is survived by his compulsory heirs in the direct line. Wag Paniwalaan. Opinion lang! Prof. Navarro did not say anything on the matter Q: Suppose that testator in his will said: I have two children A and B. I give to A of my estate. There is nothing in the will which expressly preterited B. Is there preterition? A: NO, since there is still of the estate that is left, and such remaining portion can be applied to Bs legitime/share. The omission must be complete and total in character, so that, the omitted receives nothing from the testator. Q: In the preceding problem, how will the estate be distributed? A: B can ask for the completion of his legitime.(Art 906) Q: Suppose that A was designated as the sole heir. B was not mentioned. During the lifetime of the testator he donated to B, a land worth P10T. Is there preterition? A: NO, because B has received something from the testator(the land worth P10T). Moreover, a donation inter vivos actually given to a compulsory heir, is considered as an advance on his inheritance. N.B.: Read the case of Ventura vs. Ventura, hulaan mo citation. Q: Suppose that T said in his will: I hereby give my son A 1/10 of my estate. Nothing was mentioned about the rest of the 9/10. Is there preterition? A: NO. Since, there is still the remaining 9/10 of Ts estate for the share of his other compulsory heirs. Q: Suppose that T in 1985, said in his will: I give my entire estate to my sons, A and B. T died in 1995. 4 months later, Ts wife gave birth to C. Is there preterition? A: YES. A compulsory heir in the direct line may be living at the time of the execution of the will, or born after the death of the testator. Q: X has 3 legitimate children A, B and C. When he executed his will, X instituted as heirs to his entire estate, A, B and his friend F. He also gave G a legacy of 30T, The value of the net estate is P120T. a) Is there a preterition? b) What is the effect of the preterition on the institution of heirs? c) What about the legacy given to G? d) How will you distribute the estate? A: a) YES, because C was not mentioned in the will, nor was he given anything. b) The institution of F will be annulled. c) The legacy given to G is effective because, it can be contained within the free portion. In this case, the free portion is(1/2 of P120T) 60T. Hence, the legacy given to G in the amount of 30T can be contained therein. (60T 30T = 30T{free portion}) d) Legitime Voluntary Share Amt. Received A: 20,000 + 10,000 = 30,000 B: 20,000 + 10,000 = 30,000 C: 20,000 + 10,000 = 30,000 G: + 30,000 = 30,000 F: institution is annulled 60,000 + 60,000 = 120,000 Explanation: As per computation, due to the preterition of C, Fs institution is annulled. Hence, A will get his legitime of 20T + his voluntary share of 10T; B and C will get the same amount as A. G will get his legacy of 30T.

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Q: Testator has e legimate children A, B, and C. in his will, he provided: I hereby give of my estate to A, 1/10 to B and of my estate to my friend F. Suppose that the net estate is 120T. Is there preterition? A: None, since there is still a portion (1//10) of the estate from which the share of C may be taken from. Q: In the preceding problem, how should the estate be distributed? A: Under Art. 855, the share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. Tolentino opined: The law should have started, the share of the compulsory heir omitted in a will must first be taken from the part of the estate not disposed of by the will if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the OTHER HEIRS GIVEN TO THEM BY WILL. Institution A 30T (-10T) Reduction/ Increase -1,428.57 To be Received 20T (legitime) + P8,571.43 (DFP) = 28,571.42 20T (legitime) 20T (legitime) 51,428.57

B 12T C none F 60T

+8T +20T -8,571.43

*Proportional decrease on As share is only on P10T because of his legitime. Legitime A=20T B=20T C=20T F= 60T Voluntary 10T Amt to be reduced / (1/7) 10 = 1,428.57

60T 70T

/ (6/7) 10 = 8,571.43 = 130T Aggregate Amt. -120T Net Esate 10T Amt to be Reduced

Formula: Voluntary Share x Amt to be Reduced Aggregate amt of voluntary share A = 10,000 x 10,000 = 1,428.57 70,000 F= 60,000 x 10,000 = 8,571.43 70,000 ___________ 10,000 Art. 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. Q: X said in his will: I give to S my legitimate son, his legitime, and I give the entire free portion to my fri end F. F has a legitimate son B. F died a day before X. Can B get of the estate? A: NO. A voluntary heir does not transmit any right, if he predeceases the testator. Q: In the preceding problem, suppose that F died a day after X. Is B now entitled to of the estate?

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A: YES. In this case, ownership has been vested upon F at the time of Xs death. Q: Suppose, S dies ahead. Are the heirs of S entitled to anything? A: The rule is different in case of a compulsory heir. In this case, there is a right of representation. However, what is transmitted to the representatives of the compulsory heir, is his right to the legitime, and nit upon the free portion if he has also been instituted by the testator to the whole or aliquot part of such free portion. N.B.: 1) 2)

3)

Thus, the general rule is: an heir, who dies before the testator, shall transmit no right to his own heirs. A distinction however, must be made between the case of a voluntary heir and the case of a compulsory heir. The rule is absolute with respect to a voluntary heir. Reason: Since, the right of representation does not apply to the heirs of a voluntary heir, it necessarily follows, that when a voluntary heir predeceases the testator , or incapacitated, or renounces the inheritance, he cannot transmit any right to his heirs. The same is true, when a person is designated as devisee or legatee, with respect to a determinate property. Since, a devise or a legacy is a charge upon the free portion of the inheritance, it necessarily follows, that when the designated devisee or legatee dies before the testator, no right whatsoever is transmitted to the heirs of such devisee or legatee. nd It is different in the case of a compulsory heir. This is evident from the provision of the 2 par. of Art. 856. The exception referred to is of course the right of representation. It must be noted, however, that what is transmitted to the representatives of the compulsory heir is his right to the legitime and not to the free portion. In case he has also been instituted by the testator, to the whole or to an aliquot part of such free portion. This is so, because of the principle that in testamentary succession, the right of representation pertains only to the legitime and not to the free portion(J).

Q: What is the effect of Incapacity? A: Incapacity has the same effects as predecease. A VOLUNTARY HEIR, who is incapacitated to succeed from the testator shall transmit no right whatsoever to his own heirs. A COMPULSORY HEIR, on the other hand, may be represented, but only with respect to his legitime (Art 1035). The same is true, in case of disinheritance (J). Q: What is the effect of repudiation? A: The heir, who repudiates his inheritance, whether he is a voluntary or compulsory heir, cannot transmit any right to his own heirs. As enunciated under Art 977, heirs who repudiate cannot be represented (J).

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