Wills

- 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
o Every will covers only the free disposable portion, or the
remainder of the estate left after the legitimes of the compulsory
heirs have been paid or delivered.
o Making of a will is always construed as a gratuitous act on the
part of the testator
Characteristics or attributes of a will or testamentary act to be valid
- (1) The making of a will is purely a statutory right and not inherent
o The exercise thereof must comply with the provisions of the law
they are:
As to form
As to capacity
As to substantial validity of the provisions
o As statutory right it is not an absolute right to dispose
o For as long as the will was executed consistently with the law at
the time of its making it should be given force and effect even if
such law was repealed at the time of death of testator
- (2) It is a purely personal right
o The making of a will cannot be delegated to other
o Cannot be accomplished through the instrumentality of an agent
General rule: the following aspects of the will cannot be
delegated to another such as:
Designation of the heir or heirs (testator has absolute
discretion)
Determination of the property or portions that will be
given to an identified heir
o Problem: Is the testamentary provision valid?
I hereby give to my best friend whatever
my wife wants to give him
No because it gives to the wife the
power determine whatever it is
inherited by the best friend.
Determination of the duration or efficacy of the
testamentary provision
o Problem: I hereby give of my hereditary
estate if my wife agrees, is it valid?
No power to determine efficacy and
effectiveness is in the power of the wife
 Exception: (can be delegated)
(A) Notarial wills mechanical act of drafting the will
maybe done through another
o Mechanical act: encoding, typing, writing
Note: holographic if the testator himself
wrote his own testamentary dispositions
o In notarial wills the act of signing the will may
also be delegated by testator (only in notarial
not holographic)
Note: if for some reason the testator
cannot personally affix his signature in
the will, it should be done in the
presence of and under the express
direction of the testator.
(B) Determination of the specific portions as well as
the identity of the specific heirs belonging to the
group or the class stated or described by the testator
in the will.
o The above mentioned is applicable to notarial
and holographic will
o Applicable only to group or collective
institutions:
o Example: I hereby give 1 million pesos to the
graduating class of SLU SOL batch 2018 as my
determined by Richard Valbuena.
Richard will identify the members
belonging to the graduating class
Richard will determine how much each
will receive
Note: It is just the determination of
how much will each receive and
who belongs to the group
o It is still the testator who
designated the heirs
o It is still the testator who
designated the amount of
inheritance
- (3) Unilateral
o This is an act that requires the consent of no other participant
but the testator
o The consent of the heirs or beneficiaries named therein is not
necessary for the validity of the will
 If the heirs of the beneficiary are known any acceptance
they make prior to the death of the testator will be without
any effect (will is effective only effective upon death)
o Because it is unilateral Philippine law absolutely prohibits the
execution of a joint will
Joint will executed by two or more persons by the same
act under the same instrument, either for the reciprocal
benefit of one another or for the benefit of a third person.
Prohibition against joint will is against public policy
Lex loci celebrationis does not apply
Applies only to Filipino citizens (testators)
Reasons of prohibition of Joint will
o to prevent the stronger party in exerting any
vice or consent from the other
o to prevent fraud of creditors
o It entails unnecessary inconveniences as well
as expenses in case of probate.
Illustration of Joint will: A and B hereby execute as
our last will and testament, and that incase A dies
will go to B, and if B dies will go to A, and the
remaining go to C, and that both A and B signed at
the bottom.
o Amounts to a joint will because the
testamentary dispositions are inseparable
Illustration not a joint will: on the same physical
piece or sheet of paper, A gives of his estate to C
and of it to B and signs it at the bottom. At the
bottom half of the same paper B also made a
disposition, to A and to C and B signs at the
bottom.
o Not a joint will
o These are two separate wills on the same
physical sheet of paper
o In the upper half there is only one testator and
one act of disposition and on the bottom half
Note: no one inherits under a joint will, if submitted
for probate it is immediately denied.
Circumvention of the law: if you cannot execute a
joint will then execute a survivorship agreement
- (4) the execution of a will should always be attended by animus
testandi
 o Animus testandi must express the gratuitous intent
underpinning the testamentary disposition with knowledge that
it shall take effect at the death of the transferor
o Without the animus testandi any instrument that purports to be a
will is void
A will executed in jest is void
- (5) Every will is effective mortis causa
o Testamentary succession opens at the moment of death
o The Basic Principles in will is that:
Every will is executed intervivos but effective mortis
causa
No part of the will can be implemented prior to the death
of the maker thereof
Any acceptance made prior to death is without effect
o exception to basic principle above:
partition intervivos (essentially a donation intervivos)
this is not a will but merely an assignment of
property to each of compulsory heirs
the rule in partition intervivos is that:
o it should be considered as valid and must be
respected upon the death
unless there is impairment to the
legitime
unless a stranger is included in the
partition
- (6) Every will is essentially revocable and ambulatory during the
lifetime of the testator
o Since it will only take effect post mortem there is no limit as to
when the testator can make a will or revoke a will of a previously
executed one
Rationale above:
Testator can always change his mind when alive
o Note: ambulatory mean it is never final until the testator dies
o The right to revoke by testator while alive is almost absolute
Explanation of above: during lifetime of the testator, his
right to alter, amend, add or abrogate the existing will
cannot be curtailed.
- (7) All wills are formal and solemnized
o Thats why under Philippine law all wills are required to be?
Notarized??
- (8) The making of a will must be a free and voluntary act
 o Thus there must be no interference or vitiation in the free
agency and consent of the testator at the time of his making of
the will
o Vice and defect of consent makes the will void
No such thing as a voidable will
No action for annulment of a will
Rules in the interpretation of a will
- (1) For as long as the legitimes are intact the testamentary intent
must always prevail
o Animus testandi must always guide the court in interpreting
each and every stipulation included in the instrument
o Thus only interpretations that serve the animus testandi instead
of nullifying the same should be adopted
Thus the interpretation that would render the will effective
rather than make it void should be adopted
- (2) Testacy should always be preferred than intestacy
If the will is clear and unambiguous that which is stipulated
shall govern
No room for interpretation
- (3) if there exists ambiguity or doubt so that a conflict between the
apparent intent and the words used in the will arises the rules are the
following in establishing the intent (Note: intent always prevails):
o (a) Ordinary words must be given their ordinary meaning, and
technical words must be given their technical meaning
Unless if it can be shown that the testator was unfamiliar
with the technical meaning of the words used in the will
Illustration: when personal property is stated in the will use
their technical meaning, personal property in the civil code
has its own meaning, thus determine if the testator knows
this meaning.
If the will says, all my cars will be given, kasama ba yung
jeep? Hindi, if it says all my motor vehicles, kasama jeep
=)
- (4) In case of doubt or ambiguity arising from a specific stipulation,
because of errors in the description of the heir or of the property, do
not invalidate said provision
o Mere errors in the description can be corrected through:
The context of the will itself examination of the will
By evidence aliunde
o Kinds of ambiguity on a will
(a) patent ambiguity the doubt is on the face the will
itself
 (b) latent ambiguity the provision on its face is clear, the
doubt arises during the interpretation
Illustration: (patent ambiguity) I hereby give my house and
lot to one of my seven sisters. Which sister?
Do not immediately invalidate there must be effort to
establish the intended beneficiary of this provision
Examine the whole will because there might be
provisions that my clear the ambiguity
What is evidence aliunde
Extrinsic evidence, but to be admissible they must be
in writing
They are also expressive of the intent of the testator
They need not necessarily be in the form of a will, as
long as it can aid the court in fixing the identity of
the property or heir
They are evidence outside of the will itself
This evidence must corroborate what is written in the
will
o Illustration: if the provisions in the will do not
contain any further explanations and do not
contain who are the real beneficiaries (the will
contains 7 persons named Maria) and if one of
them presents a letter showing to the court
that the testator intended her to be the
beneficiary, the letter is evidence aliunde. It is
a written declaration of the testator himself.
Note: latent and patent ambiguity cannot be resolved
on the basis of proof of oral declarations of the testator
pursuant to the dead man statute
Reason: if it is allowed it would open the door to
fraud.
o Thus parol or oral evidence is not allowed
Note: if the identity of the beneficiary or dispositions of
property in the will cannot still be determined by what was
discussed above then that is the only time that the will can
be declared void.
Reason: because the dispositions were made to an
unknown heir
- Note: Rule of seperability if the will is contained in several scattered
dispositions, should one or few of them are invalidated, the rest should
not be affected.
o Exception: if the valid provision is dependent upon the void
one, in which case both are void.
 o Illustration: married man gave property to his paramour in his
will, and that I hereby direct my paramour to give 50% of rent
income of property X.
The first one is void giving to paramour
Second one is valid 50% of rent
Can the second one be implemented?
No because the two are dependent with one another,
because the disposition in favor of the paramour is
void by reasons of public policy, the dependent
provision is also void.
Which law shall determine the will itself?
Extrinsic validity of a will
As to Issue:
- Pertains to forms or solemnities
o Example:
If it is in writing
How many witnesses
As to Time:
- Determined and governed by the law at the time of the execution
of the will
o Example: If at the time of solemnization of the will the law only
required two witnesses in the notarial will and such will was
executed pursuant to that law, any subsequent law changing
the form cannot invalidate the said will.

As to Citizenship of Testator:
- If Filipino
o Determine where the will was executed
If executed in the Philippines it is determined by
Philippine law, the Civil Code
If executed outside the Philippines, it is governed by lex
loci celebrationis
o Lex loci celebrationis law of the place
where will was executed
Or if executed outside the Philippines testator may
choose Philippine law
o Executed in the Philippine embassy
 - If non-Filipino
o He may choose from the following:
(1) Domiciliary law if in foreign country domiciled
(2) Lex Nationalis his own citizenship or nationality
(3) Philippine Law
o Note: If foreigner executes his will abroad (note: it is possible
that some property is in the Philippines, or some of the heirs are
Filipino citizens, thus such will need to be proven in the
Philippines.) he can choose the following:
Example: a citizen of the US legally residing in japan but
happen to have Filipino illegitimate children, or a Japanese
national residing in Singapore but who have shares of stock
or condominium unit in the Philippines.
He can choose numbers 1, and 2 above or lex loci
celebrationis
Note: If the extrinsic validity has already been threshed out in the probate
proceedings, that is the only time that the will be given effect. If will is in not
the form prescribed by law the will has no effect.
Thus after the issues of the form has been determined the next step
would be to determine the intrinsic validity of the will
Intrinsic validity of a will executed by Filipino
Note: The intrinsic validity of a will executed by a Filipino whether in the
Philippines or abroad, intrinsic validity pertains to the following:
o (a) order of succession
o (b) amount of successional rights
o (c) capacity of the heirs to inherit
The items mentioned above shall be governed by
Philippine law which is the law at the time of death,
or the law at the time successional rights will vest.
As to Issue:
- Concerned about the bare substance and effectively of
testamentary dispositions
o Example
Won the heir named is capacitated to inherit
WON the property to be given can in fact be conveyed
As to Time:
- Governed by the law at the time of death of the testator
o Reason: because that is when the successional rights vest
 Note: although a will is executed inter-vivos it can only
take effect upon the death of its maker, prior to death of
the testator no rights can be transferred to the heirs.
Intrinsic validity of a will executed by a Non Filipino
- Article 16 paragraph 2 gives rise to a presumption that foreigners
are also governed by their own national law at the time of their
death.
- When a foreign law is material to the adjudication of a case in the
Philippines the following rules shall be observed:
o (a) the foreign law must be alleged and proved as if it were an
ordinary fact
o (b) Proved by official publication of foreign law if not
o (c) By an authenticated copy of that foreign law by the official
custodian abroad if not
o (d) By an authenticated or certified copy of the said law by the
Philippine embassy or consular official abroad
o (e) Note: if the foreign law upon proof refers it back to another
law then apply the principle renvoi
o (f) in the absence of proof of the foreign law or absence of
relevant evidence to the court then the rule on processual
presumption shall apply
Processual presumption means that the foreign law is
presumed to be the same as Philippine law
Testamentary Capacity
Note: The right to make a will is a purely statutory right, thus the
requirements for the law for its validity must be strictly or substantially
complied with as the case maybe, thus only certain persons are accorded a
right to make a will.
Testamentary power
- Refers to the statutory right to dispose of property post mortem

Testamentary Capacity
- Refers to qualifications or disqualification to make a will, as set forth by
the law itself
o Answers the question of who may exercise testamentary power
Qualifications to exercise Testamentary Capacity
- (1) must be at least 18 years of age at the time of execution
 o 18 years old are allowed to make a will because they are
possessed of full civil capacity
o Minor cannot execute a valid will because of absence of
testamentary capacity
o If will is executed by a person below 18 years old such will
cannot be subsequently ratified when the testator reached the
age of majority the fact that it is void
Minors in the Philippines always die intestate
Remedy: make another will

- (2) The testator must be of sound mind at the time of making of

the will
o The law does not require that the testator is in possession of full
mental and reasoning faculties
o All that the law requires is knowledge of the following:
(a) Knowledge of nature of the hereditary estate
This means that the testator knows the meats and
bounds of the property, and he knows that he is
disposing of his own property and not that of another
(b) Knowledge of the proper objects or beneficiaries of his
bounty
This means that the testator must know who are the
heirs he is giving property in the will
Note: As a General Rule strangers in the will
cannot inherit because he is not an intended
beneficiary
Ex: McDonalds Karen and Gina commercial , old guy
there has no testamentary capacity, he does not
know his heirs
(c) Testator must have knowledge of the character of the
testamentary act
This means that he knows he is making a will, that
will is an act of conveyance and it will only take
effect after he dies
Note: Animus Testandi is crucial for all those mentioned
in A B and C, knowledge implies animus testandi
Animus Testandi means an intention to make a will
When there is question as to the Testamentary Capacity of the
Testator the following rules in questioning shall be observed:
- (1) Mental Capacity at the time of execution of the will must be
observed
- (2) Presumption of law is always in favor of soundness of mind as a
general rule
o Note: In questioning soundness of mind the burden of proof
rests upon the opponent
Those who stand to inherit by intestacy are likely to
oppose the will the fact that when the will is invalidated the
will shall pass through intestate succession
o Exception: the legal presumption is in favor of insanity or
unsoundness of mind in the following circumstances:
(a) That at the time of making of the will the testator was
the subject of a judicial declaration of insanity
If the will was made after the declaration, then the
will is void because of the presumption
The proceedings in declaring someone insane are in
guardianship proceedings
o Note: mere guardianship per se does not
mean insanity, the issues threshed in the
guardianship proceedings must be for insanity
of the ward for the presumption to apply
(b) If the testator at the time of making of the will is
known to the public as insane
In the above mentioned there must be testimony to
prove such insanity
Note: If the burden of proof is the presumption of insanity
it rests on the proponent of the will to prove otherwise
The proponents are the ones named in the will
- (3) Supervening Incapacity will not invalidate a will, as long as the
testator is capacitated during its making
o This means that if there is proof that the testator was sane at the
time of the making his subsequent insanity will not invalidate the
will
What is material above is the time of execution
o Note: Supervening Capacity will not cure a void will of its
defect if there is also proof that the testator was insane
when he wrote the will
A subsequent lucid interval as mentioned above does not
a cure a will
 Execution of an affidavit affirming a will upon regaining his
mental faculties does not cure a will

- Note: in instances where the mental capacity of the testator is placed

in issue during the probate the focus should not be on the injury or
illness pertaining to mental incapacity, the focus should be on the
effects of the illness or injury on the mind of the testator. Thus
the following on their own do not affect mental capacity:
o (1) Old age
This does not deprive a testator of mental capacity even if
they are suffering from some mental condition, as long as
it does not affect the will
Note: there is a minimum age for the making of a
will but there is no maximum age
Dyspepsia (stomach ache) does not deprive the testator
capacity to make a will even if it is connected to stomach
cancer as long as the testator is in full control of his mental
faculties
Mere forgetfulness is not a ground to invalidate a will
Except: if the forgetfulness is total
Stroke or heart attack rendering testator paralyzed making
him impaired and partially blind and drooling and bed
ridden do not incapacitate the testator because these are
mere physical incapacities, as long as he is in full control of
his mental capacities the will is valid.
Note: Exceptions:
(a) Advanced stages of senility or advance mental
infirmity or senile dementia the will is void (SC
decision)
(b) comatose brought about by massive brain
aneurism (SC decision)
(d) Person under the influence of morphine
(sedated)
(e) intoxication is a question of fact
o Note: questions on the mental incapacity of the testator when
the will was made will always be questions of fact, thus the
court may be aided in determining such facts are;
the witnesses in the notarial will because notarial wills are
always executed in the presence of witnesses
the notary public before who the notarial will was
acknowledged
Note: in case of conflict of the witnesses and the notary
public the will should not be invalidated
 automatically, the law will require additional evidence to
prevent intestacy.
Form that the will must be written in:
Two general Requirements
- (1) That the will is in writing
o Thats why a non - pupative or unwritten will is void
In the case above only notarial and holographic wills are
allowed

Note: Void Wills

Digital or electronic wills
Video recorded wills
Oral wills
o Reason: the writing is the best evidence of the
intent of the testator, thats why the writing
itself must be produced in court, the fact that
non pupative wills gives rise to false claims
o Kind of writing that is necessary
Maybe written in paper, parchment, concrete wood, in ink
or pencil it does not matter as long as it is in writing
- (2) The will must be written in the language or dialect known to the
testator
o Therefore language not known to the testator it is not the will of
the testator, because he cannot express himself in that language
o Remember: The will is an act of disposition and it shows the
intents and desires of the testator
o Note: only the mechanical act of writing may be delegated but
not providing for heirs and inheritance.
o Note: if the will is written in a local dialect there is a
presumption that the dialect is known to the testator if he or
she is a resident of a locality where that dialect is spoken
Case: A migrant from Ilocos went to Batangas, the will
was in tagalog the supreme court held it as valid because
at the time she made the will she was already a resident of
Batangas a tagalog speaking province.
Case: The will was written in a local dialect in Bisaya, and
it was alleged that the testator did not at all speak bisaya,
but the testator was a resident of the Cebu province,
therefor the will is valid.
 Burden of Proof: It is on the oppositor of the will
that the testator did not know how to speak the
dialect.
Problem: If the will is written in English and was
translated for the benefit of the understanding of the
testator, the testator does not know English is the will
valid? The Will is Void.
Specific Forms of Wills
Two kinds
- (1) Notarial will (ordinary will)
- (2) Holographic will (extraordinary will)

Differences between the Forms or Kinds of will

- As to form:
o NW: Subject to more stringent requirements as to validity
o HW: Simple as to form
- As to Witnesses:
o NW: Attested by at least three witnesses
o HW: Done alone and in secret by the testator, no witnesses are
necessary
- As to acknowledgement
o NW: Required to be acknowledged before a notary public
because it is an act of conveyance
o HW: Requires no such acknowledgement

Note: the specific formalities and solemnities for each kind or form are all
intended for the following purpose:
a. To close the door against fraud and false claims, the fact that
testator is already dead
b. To prevent substitution of wills, thus the law on formalities imposes
certain identifying marks in each and every page, so that no
insertion, removal or intercalation of pages shall be done, thats
why a will is a single continuous act
c. These formalities would be to avoid any part of the hereditary
estate from passing to persons never intended by the testator to
benefit
Specific solemnities of a Notarial or Ordinary Will
- (1) every notarial will must be subscribed (signed, act of affixing a
signature) by the testator
o Note: signature refers to any mark or symbol manifesting the
intent to be bound
o Subscription or the Signature identifies the parties to the
instrument
o Note: The signature of the testator must appear in the following
places:
(a) at the bottom of the will
Does not refer to the physical bottom but the logical
end of the testamentary act
o This is the signature after the last
testamentary provision
o This is mandatory
Reason: this is to conclude the dispositive act
made by the testator
(b) at the margin of each and every page
Purpose: to identify each and every page but
only if the will is spread and scattered on different
pages
o Note: A single page will need not be signed on
each and every page, it needs to be signed
only at the logical end.
General rule: the signature must appear on the
right hand margin
o Exception: if there is sufficient compliance
Thus: if the signature appears on the
left, on the top or on every margin, or on
the bottom, for as long as there is a
marginal signature of the testator on
each and every page
o Note: the last page of the testamentary
disposition need not be signed on the margin
as long as the testator signs at the bottom,
that fact alone sufficiently identifies the pages.
- The testator must sign the notarial will
o How:
Either by full signature (whole name)
By the customary signature
 By any mark or symbol affixed by the testator on the
instrument as long as made with animus testandi
(intention) (cross or X)
o If there are discrepancies in the signature of the testator
In the case above the will should not be immediately
invalidated in the absence of proof or forgery or
falsification
Such discrepancies maybe explained by sufficient proof
In the use of marks or symbols there must be an
explanation as to why the testator signed on that manner
and did not use the customary or full signature
Such explanation above becomes necessary only
if none of the witnesses present in the execution
are present during probate
Illustration: if there were witnesses during probate,
the witnesses should testify in court that the testator
signed with a mark or symbol during probate, no
explanation necessary but if no witnesses could be
presented, that is the time where other witnesses
maybe required for an explanation.
o Note: rubber stamp not a signature
o If the testator is unable to personally sign the will the testator
may appoint some other person, to sign the will under
the express direction and in the presence of the testator.
Thus five persons present, three witnesses and the testator and
the person who was asked to sign
Note: the person assigned by the testator he or she must
write the name of the testator not copy the signature of
the testator, if he or she copy then there would be
accusation of forgery
Illustration: the testator is not able to physically sign it
must be signed this way:
Vitalliano Aguirre for Leila De Lima, or Leila De Lima
for Vitalliano Aguirre
Or Vitalliano Aguirre the agent can write the name of
Leila De Lima withour writing his own name
o Note: there must be an attestation clause
stating the Aguirre signed for and in behalf of
De Lima
o If the agent writes in his or her own name but
omits the name of the testator, the will is void
o What signature should the agent use?
Full name of the testator should be used
- (2) Every notarial will must be attested to and subsequently
subscribed by at least three instrumental witnesses who are
capacitated, qualified and disinterested
o Witnesses must possess all qualifications and none of the
disqualifications
Note: attestation: is a mental act, or act of the senses, it
involves observing or making a mental note that all the
requirements of law for the validity of the notarial will are
followed
Note: subscription: purely mechanical act, or by hand
- Illustration:
o Who among the witnesses and the testator should sign the will
first?
Answer: The testator
o What if one of the witnesses signed first?
Answer: it will not invalidate the will because no particular
order is prescribed by law
- Note: three tests to determine the validity of the will:
o (a) Test of sight as presence - The act of signing was actually
seen by the witness.
o (b) Test of position as presence The witnesses need not see
the testator or witnesses in the act of signing, but they must be
so positioned with one another that they could see if they
wanted to without any physical difficulty or physical
obstruction just by turning their head or by shifting their body.
o (c) Test of Knowledge for as long as the witnesses know that
the testator is signing provided that they are physically
present in the same room
o Note: the principle of In eodem Die ac tempore in eodem
loco applies to the tests above
What if the testator is seated on the table, parang yung
table ng teacher sa classroom. (Legend: W=witness,
T=Testator), W1 is on the left hand side , W2 is on the right
hand side and W3 is by the door talking on a phone with
the back turned against the testator and the other
witnesses, is the will valid?
Answer: will is valid, In eodem Die ac tempore in
eodem loco
o This means in the same date (in eodem die)
o For the same act or purpose (ac tempore)
o At the same place (in eodem loco) -
 This means that all of the parties
(testator and the witnesses) must act at
the time of the execution without
interruption and in the presence of
one another.
The third witness although back turned back and
busy talking on the phone, the will is valid because
he was in the presence of all the witnesses (test of
presence)
What if W3 opened the door and stepped out was the will
executed in the presence of one another?
Answer: the will is void because they were not
present with one another at the time of signing
The will of the testator took 17 pages, all of them were
taking turns to sign, W1 and W2 asked permission to go to
the bathroom as the testator was signing 15, 16 and 17 is
the will valid?
Answer: no because they are not in the presence of
each other
What if the testator was signing with the two witnesses,
the third witness was playing a game in his tablet?
Answer: will is still valid because of presence
What if the witness steps out, but peeks through the door?
Answer: Yes, Test of sight
What if the testator was signing and the W1 is in the far
corner talking to the phone, W2 on another corner of the
room playing, and W3 on another corner writing, is the will
valid?
Answer: Test of Knowledge
W3 is by the door still inside the room, W1 is in the left and
W2 in the right, and a fifth person who is fat or wide, is in
front of the testator signing is the will valid?
Answer: valid because under the test of presence W3
can simply move to see the signing, under the test of
knowledge the W3 knows that the testator is signing
and all witness are present in the same room, and
under the test of sight because two witnesses saw
the will being signed
What if all parties are present in the same room, two
witnesses at the side of the testator W3 is on his chair but
dozing off, is the will valid?
 Answer: the will is void, because he could not see the
will signed
o Where must the witnesses sign?
(1) On the margin of each and every page if the will is
spread on several pages to prevent substitution or
intercalation
(2) at the bottom of the will
Note: witnesses are required to execute attestation
clause usually embodied in the will thus they must
sign at the bottom after the testator, (kasi nasa taas
yng signature ng testator after ng mga dispositions
niya, tapos nasa baba yung attestation clause kung
saan mag sign yung mga witness)
o The attestation clause is actually a certification or affidavit
executed by instrumental witnesses containing certain facts:
(a) the number of pages of the will that is signed
error in the number of pages makes the entire will
void
failure to state the number of pages invalidates the
will
If the attestation clause contains three pages but a
physical examination reveals that it has 7 pages the
entire will is void
An error in the numbering of pages stated in the
attestation clause cannot be corrected by the
number of pages stated in the acknowledgement
clause(Lopez case)
(b) The fact that the witnesses saw the testator sign in
their presence, or some other person (agent whose name
must be stated in the attestation) signed in the presence
and under the express direction of the testator.
(c) That the witnesses themselves signed the will in the
presence of the testator and of each other
Note: General rule: Omission of items a b and c
would be a fatal defect the fact that those
mentioned in those items are mandatory
Exception: in the absence of fraud forgery or
bad faith mere defect in the language or form
in the attestation clause should not invalidate
it for as long as the three compulsory
requirements are stated there in.
 Note: substantial compliance with the requirements in
items a b and c is enough, but when these
requirements are absent, then strictly the will is void
Note: as long as all the three requirements are present
the will is valid, all other additions to the attestation clause
are considered as mere surplus.
Note: if the attestation clause is written in a language not
known to the witnesses it is still valid, because mere
translation of the contents of the attestation clause for the
benefit or understanding of the witnesses is sufficient,
unlike the rule for the testator, magkabaliktad sila.
Note: an unsigned attestation clause invalidates the
whole will, or a will without attestation clause is void.
Note: if the testator signs the attestation clause the will is
still valid, the signature is considered mere surplusage.
Holographic Wills
Three essential requirements for a valid holographic will
- (1) It must be entirely written by the hand of the testator
- (2) It must be dated by the hand of the testator
- (3) Signed personally by the testator
o Note: outside of the three elements above (meaning all
elements must first be complied with) a holographic will may be
written in any form
Illustration: Court concluded that what was presented
was a notebook containing list of the debtors of the
testator and beside each name was the amount lent by the
testator to these various parties, and after the amount she
would indicate any payment made (listahan ng utang)
personally kept and updated by the testator. Upon her
death it was discovered that in some of the pages of this
notebook, she gave specific instructions as to how her
property shall be divided after her death, and that she
affixed a date on such instructions and designated a
person who is tasked to make such division, and then she
signed afterwards, this is considered as a holographic will
by the Supreme Court.
Illustration: the testator wrote a letter to his brother in
the anticipation of his death, after the usual salutations, he
reminded his brother on how his property will be
partitioned after his death, and who would be given
 property, the SC held that it is a holographic will, because
it is entirely hand written, dated and signed by the testator.
Explanation of three elements:
- (1) must be written by the testator (entire will)
o This means that the making of a holographic will is purely
personal therefore it is void should any part of the holographic
will is type written or written by some other person.

- (2) must be dated by the hand of the testator

o Date is indispensable to the validity of the holographic will
o Requirements as to the date:
(a) Must be placed by the hand of the testator
(b) That the date must be a definite date (this means
certain) or at least ascertainable.
Example: July 1, 2010 definite and certain date
On this occasion of my 81st birthday ascertainable
Note: General rule: the statement of an impossible
date nullifies the HW, Exception: what appears to
be an impossible date is a mere product of an error.
o Example: February 30 impossible date (no
such thing) only up to 28 or 29 days, this is not
a common mistake
o June 31 (note that June has only 30 days)
this will be construed in favor of validity of the
entire will mere error
o Where should the testator write the date?
The law does not specify thus it may be placed :
At the top of the HW usually if will is in letter form
At the bottom near or around signature of testator
Labrador case: SC held that the will is valid if the
date was integrated in the body of the provisions
o Undated will is a void will
o Note: a notarial will does not require that it should be dated
- (3) The testator must personally sign
o This manifests the intent of the testator to be bound by what is
contained in the will
o This shows that what is written in the instrument is the testators
own act
o How should the testator sign the HW:
(a) By a full signature
(b) by a customary signature
 Note: if a mark or symbol is used in a holographic will its
validity is now in doubt.
Is thumb mark acceptable It depends, dont
invalidate out rightly (validity is in doubt) thus there
must be substantial evidence showing the intent
of the testator in affixing said mark or symbol instead
of the usual signature, if there is no evidence that
could persuade the court then the will is invalid.
o Where should testator put his signature:
(1) At the bottom refers to the logical end after the last
testamentary disposition
Purpose: to conclude the testamentary act and to
prevent insertions before the signature
If there is no signature in the logical end the will is
void
(2) After each and every post script disposition
Post script dispositions are those subsequent
additional provisions placed on the same instrument
even at different times. This is placed after the
signature. Kung baga yung P.S sa letter after ng
signature mo.
Rule on P.S. dispositions to take effect
o It must be both signed and dated by the
testator (every post script dispositions)
If all the previous P.S are signed but not dated and
the last one is both signed and dated, the
presumption is that the earlier ones were executed
at the same time as the last one
If the post script dispositions contained specific dates
and are unsigned by the testator, however the last
one contains the signature and the date, only the
last one is valid, the first two are void because they
are not signed thus for P.S. dispositions it is
mandatory to sign for it to be valid
o The deficiency of the signature in the previous
PS dispositions cannot be cured by the last
signature.
Summary:
o (a) for each one of the P.S to be valid they
must signed and dated
o (b) for all of them to be valid or operable it is
enough that the earlier ones are signed, for as
long as the last one is signed and dated
 (3) For every alteration, erasure, cancellation or
interpolation the same must be authenticated by the
signature of the testator in order to be valid and operative.
Case of Ajero: the will presented for probate
contains so many erasures, SC held that between the
testamentary dispositions that were unaltered and
between the cancelations of several testamentary
dispositions the latter was invalidated, because
testator forgot to counter sign.
Necessity to counter sign: to determine WON the
erasures were the act of the testator, because some
unscrupulous person who may have obtained the HW
may simply erase, thus to guarantee that the
erasure or change is the intent of the testator,
the counter signature is indispensable
What is the effect if the signature of the testator is
erased?
o In NW it means that the testator is revoking
the will
o In HW he should counter sign the erasure
( haha absurd)
Two schools of thought:
o In the absence of counter signature, for as long
as the writing is still legible, the original
provision is valid as if un amended, the
insertion or addition is invalid because of the
absence of counter signature (old civil code)
o Ajero case changed the above rule thus there
is a need to countersign every erasure
insertion or amendment in the will.
Problem: the testator who was unmarried and had
no descendants or ascendants gave the entire estate
in a HW to the sister and then the testator signed.
For some unknown reasons when the will was
presented for probate the name of the sister was
deleted and cancelled by the testator, and the name
of the brother instead was inserted, the cancellation
makes the name of the sister legible, and the name
of the brother is also clear, what gave rise to this
quarrel was that there was no counter signature. SC:
the entire will is void, because when a HW
contains only one testamentary disposition
and it contains an erasure without a counter
 signature, there is nothing left to be
implemented in the will, thats why it renders
the whole will a complete nullity. (kalaw case)
Problem: there are 4 testamentary
Probate of a HW
Issues involved:
- (1) It is necessary for probate to establish that the whole will was
indeed in the handwriting of the testator
o (a) Thus if the will is uncontested it is enough that one witness
will testify as to hand writing
o (b) If the will is contested or opposed the law requires that there
must be at least three witnesses attesting to the fact that indeed
the will was written by the testator
In letters a and b the court is allowed to require expert
testimony (handwriting experts)
If the witnesses do not qualify in the above mentioned,
then expert testimony will be required by the probate
court to ascertain whether the instrument presented before
it is the will of the testator
Such expert testimony becomes indispensable if
the HW is claimed to be a complete fraud
o Requisite of witness to testify:
(a) the witness must show familiarity with the hand
writing and signature
the kind of familiarity is that the witness saw the
testator write and sign
o Can registrar of SLU be competent witness?
no because the registrar cannot see you write
and sign
o Can you testify on Maam Lulus handwriting? -
yes on hand writing and no on signing, hindi
sya nag sisign sa board
o Is Maam LULU competent enough to testify on
your own handwriting? yes, read so many of
the works, she has familiarity, but not on
signing
Case: Comelec, punong barangay, registrar of elections,
register of deeds and other government officials, when
asked did you see the testator sign, the uniform answer
was no, the SC held that there was no witness presented.
- (2) the HW will itself cannot be presented
 o General rule: the probate must continue, because the best
evidence of the will is the will itself
Reason: since the purpose of the probate of the will is
only to compare the handwriting of the testator with other
documents executed by him or her, mere copy of the
HW is sufficient for probate, whether that copy is a
photographic copy.(EXCEPTION)
Examples: carbon copy, photographic copy or xerox
o Note: if there is evidence that the testator prior to death the
testator has physical control or absolute possession or custody of
the will, which cannot be found after the death then the probate
must be dismissed.
Reason: the legal presumption is that the will has been
revoked by the testator
Note: presumption is a disputable presumption
Case: The testator after making the HW, she always carry
that will with her, in her purse inside her pocket, and when
she finds an audience she takes out the will and show it to
that person and brag about it, and after showing it to
anyone, she refused anyone who would touch it, after
showing it off, she would fold it and put it back in her purse
and pocket, everyday she did this. The testator died, they
could not find the will itself. SC: the probate cannot be
given due course, because despite diligent efforts the will
cannot be found, the presumption of the law is that the
testator destroyed it for the purposes of revoking it.
Note: under the Rules of Court probate in general will
continue even if there is a lost or destroyed will
Basis: the basis of the above rule is on testimony of
the witnesses who saw the will, provided that there
is proof that its loss or destruction is accidental, and
not to revoke the HW.
Note: question sa class:
- No matter what appendage was used, hand feet, mouth or any, as long
as it is a purely personal act of the testator the will is valid.
o Remedy pag walang kamay execute a notarial will
Codicil
- A codicil or codex is a little will, it is executed by the testator
after making the principal will it is part of the testamentary
act
- Requisites of a valid codicil
 o (a) it must be valid as to form thus the codicil may either be
notarial or holographic
Is a NW required to be followed by a notarial codicil or if
the original will is a HW is it required that the codicil be
holographic?
Answer: the law does not require such, thus a HW
may be followed by a notarial codicil, a NW maybe
followed by a holographic codicil, for as long as
each one is valid as to form
o (b) the codicil must be made by the testator for any of the
following purposes:
(1) to add to the will
Thus addition to a notarial will maybe made by way
of codicil
(2) to explain the will
If the identity of the heir cannot be established
because of imperfect description, latent ambiguity or
patent ambiguity, the codicil may explain who
the heir in the will is.
(3) the codicil maybe executed to amend alter or revoke
the prior will
Note: if the codicil is executed for this purpose,
(amend, alter or revoke) then the codicil shall
prevail in case a conflict arises between its
provisions and the original will
o Reason: because the codicil was executed
on a later date and therefore expressive
of the later intent of the testator
o Note: If all the requisites of a codicil are present the codicil must
be submitted for probate at the same time as the original
will.
Incorporation by reference
- The rule on incorporation by reference is intended largely for the
convenience of the testator
- To abbreviate the making of a will, the testator may simply refer to
external documents or papers that form part of the testamentary act or
integral to the testamentary disposition
- The will can simply refer to this extrinsic documents or papers for
convenience
- Similar to pleadings, attaching promissory note as an annex A for
evidence this can also be done in the will
- Requisites for incorporation by reference:
 o (a) that the paper or document referred to in the will must
already be existing or present when the will was made
Thus: no incorporation by reference of future document
shall be valid
o (b) that the will itself must sufficiently describe the paper or
document being referenced
Note: the description must include the following
statement:
(1) number of pages of document for the pages not
to be substituted or lessened
o (c) the paper or document must be proved during the
probate as the same document referred to in the will
Thus: there must be clear and convincing evidence
that the document attached to the will is the same
document proved during probate
o (d) the testator or the witnesses must have signed each and
every page of that paper or document along with the will
Reason: to prove authenticity
What if the papers are to voluminous, example 200 page
ledger or document?
Answer: the law allow the relaxation of the rules,
thus for voluminous papers or documents there is no
need for signature on each and every page, but
there must the signatures on significant parts
of the document, record or paper.
o Example: sign on the first page, on the last
page and some pages in between, as long as
the signing guarantees that the sequencing of
the documents remain intact
Codicil vs Incorporation by reference
A codicil and incorporation by reference are both parts of the will, except that
a codicil is made after the will while incorporation by reference is at the
same time as the will itself
- In a sense both are annexes to the will
REVOCATION:
- The right of the testator to revoke while still alive is absolute, this is
part of the power to dispose of the property, and that it is based on the
principle that prior to death no successional rights are transferred
- The absoluteness of the right to revoke cannot be minimized, even
by stipulation made by the testator
 o Example: after making the last will of statement, the testator
said this on my will I promise I will not revoke it anymore
because I have made 82 wills already the stipulation must be
disregarded, it does not mean anything
- The law merely regulates the exercise of the power to revoke by
requiring that it must be made through the means recognized
by law

Means and methods of revoking a will:

- (a) the revocation is by implication of law
o The law implies a revocation when there is a change in the
nature of the property given after the will was made, or a change
between the relationships between the testator and the heirs
when the will was executed. Thus this changes also imply a
change in the intent of the testator
o Instances where the will is revoked by operation of law:
(1) Under the FC in case of legal separation between
husband and wife - the provision states that any
testamentary disposition made in the will of the innocent
spouse are revoked by operation of law if they are in favor
of the guilty spouse.
(2) When there is pretirition this means that there is
omission of a compulsory heir from the inheritance. This is
a revocation by implication of law because when there is
pretirition the will is annulled, it is annulled inorder to
protect the successional rights of the compulsory heir who
was omitted
(3) When after the testator makes a will giving a legacy or
devise, the testator destroys transforms or alienates
the property this implies a change in the intent of the
testator.
- (b) By mutilation or overt act of destroying the will itself.
o Requisites:
(1) at the time of the revocation the testator was of
sound mind
Note: the same soundness of mind to make a will is
required to revoke one
(2) that the testator must be possessed of animus
revocandi
Explanation: it must be clear from the act of the
testator that he had the mind to cancel the existing
 will either partially or totally, this is known as the
subjective phase of the revoking act, it goes to
the state of mind of the testator
Without animus revocandi there is no
revocation and therefore the will still stands
(3) the will itself must be burned, torn, cancelled or
obliterated(objective phase) (this is the act itself)
Note: the acts mentioned above are the acts of
revocation contemplated under the law
o Note: the burning of the will amounts to total
revocation whether the entire will is reduced to
ashes or whether the corner was singed or
partial burning Note: when the will is torn
meaning its cut into pieces (any number of
pieces) it amount to total revocation, whether
all of it is torn or only a slight tare
o Note: cancellation is different from
obliteration because cancellation is running a
clean line across the text of the will (putting
lines on the will) obliteration on the other
hand is the blackening the text.
o Note: cancellation or obliteration may either
be partial or total and if made on a HW it
must be countersigned
o Case: in the heat of anger when the testator
crumpled his will, the SC said it is tantamount
to revocation
(4) both the objective and subjective phase must be
complete in the mind of the testator
Thus: intent alone without the act is useless and it
does not revoke and the act alone without intent
cannot produce revocation
o Example: the testator with intent to revoke,
took out the envelope that contained the will
and then threw it into the fire, the envelope
started to burn until it was turned to ashes, but
the testator discovered that it was a wrong
envelope, the will was contained in another
envelope and was intact, was the will revoked?
Answer: No, there was intent to revoke
(subjective) but there was no objective
act
 What if the testator wants to clean the office and
started taking out files to be destroyed, and he
burned the files, the only purpose of the testator was
to de clutter his office, unknowingly he threw the last
will and testament in the fire and it completely
burned was there revocation? Answer: none
because there was no animus revocandi.
o How do you probate the will above?
Answer: if there is photocopy probate
must still continue if none by testimony
of the witnesses who saw the will
(5) the revocation itself must done personally by the
testator or by some other person acting in the presence
of the testator and under the express direction of
the testator
Example: an heir who was not named to inherit the
free disposable portion took out the will and burned
it, was there revocation? Answer: the will is not
revoked and the heir is disqualified to inherit for
supplanting the will of the testator.
What if the testator with intent to revoke put the will
on top of a stove turned the ignition on and fire
started to burn on the stove, but because the stove
is near the window a strong wind blew and shut off
the ignition, the will was no burned and in fact it flew
away, is there revocation? Answer: yes because
both the subjective and objective phase are present
and the act of revocation itself was done by the
testator.
Same example as above but before the will could
completely burn the testator had a change of heart
and mind withdrew the paper, before it could
completely burn, was the will revoked? Answer: no
because the intent was no longer present, thus
evidence must be presented in this case that the
testator voluntary desisted from completing the act.
Same example as above but the testator left because
after the testator saw that the paper started to burn,
he knew that it would completely burn, inday the
katulong when she entered the kitchen saw the will
and saves it before it could completely burn, was the
will revoked? Answer: yes, because inday is
 disqualified to inherit for interfering with the power of
the testator to revoke the will ???

- (c) third method of revoking a will is through a subsequent will or

codicil
o The subsequent will or codicil may either revoke totally or
partially, it may either be express or implies
o Case of Alsua: SC: held that the later will shall prevail
therefore there is a need to present the all the wills, for the
probate court to determine WON there is revocation
o Total revocation when nothing of the original will or earlier
will is left to enforce, it is the later will that will prevail
o Partial revocation only some of the stipulations of the earlier
will are cancelled or abrogated leaving the other part of the
earlier will valid, thus there are two wills submitted for probate
o Express revocation if it contains an express revocatory
caluse or statement
Example: i hereby execute this will revoking all my prior
wills
o Revocations by implication:
General rule: if separate wills are executed by the
testator the first thing the probate court must do is to
harmonize them, thus the court will interpret all those wills
in a manner that will make its provisions effectual
Exception: if the will contradicts one another and there
arises serious incompatibilities meaning irreconcilable
this is the time there is revocation by implication
arises and in this case the later will shall prevail.
Example: in the earlier will only one provision was made
by testator, I institute X as my sole universal heir to the
entire estate, and then after wards a will was executed
stating that I hereby institute B as my sole universal heir
to my entire estate, should they share? No because they
are sole universal heirs, who will get the entire estate?
Answer: the first will was entirely revoked by the second
will because of the irreconcilability of X and B being the
SOLE universal heirs.
- Note: for revocation by overt act or mutilation or revocation by
subsequent will or codicil, courts observe dependent relative
revocation principle this principle means that the act of
revocation in itself must be valid in order to give rise to said
effect otherwise the prior will is not revoked
 o IN SHORT: THE VALIDITY OF REVOCATION IS DEPENDENT
ON THE VALIDITY OF THE REVOCATORY ACT
o Example: testator executed a 2009 will( this is the earliest will)
leaving A the entire hereditary estate, and then a will dated 2015
was presented this time leaving B the entire hereditary estate as
the sole hereditary heir, however the will that institutes B as the
sole universal heir appears to be a notarial will but there was
only one witness instead of three, is there a valid revocation of
the earlier will? Answer: No because a VOID will cannot
revoke thus under the doctrine of dependent relative
revocation if the revocatory act is void it cannot revoke.
Thus in this example the earlier will is complete in itself, then A
should inherit because the will instituting A as the heir was never
revoked by the subsequent will the fat that it lacks form. (GAYO
CASE)
- Note: Revocation is different from nullity of a will because nullity of a
will affects its entirety, and no part of which can be rendered
operative but in revocation may operate either partially or totally.
o Another difference is that revocation is done while testator is
still alive, nullity is usually pronounced after death of
testator
Thus: if the revocation is based on a false cause the
revocation is ineffective
Example: in the original will A was instituted as the sole
universal heir, the original will was executed in 2003, in
2010 testator was informed that A has died, testator
executes a new will in 2014 changing the heir from A to B
on the belief that A has already died, and then Testator
died, it turns out that A was still alive, who between A and
B will inherit> Answer: A because the institution of B is
based on false cause, thats why the revocation is invalid.

Republication and Revival of Wills

Republication of Wills
- Republication is the act of re-establishing a will that is either (1) void
on its face or which was (2) revoked by the testator
o Example: there are only 2 witnesses to the NW if the testator
dies the will is void because of lack of formality, thus prior to
death the will may be republished
- Republication of a will Void on its face
 o (1) by re-execution
Meaning: the testator can simply copy or reiterate the
contents of the void will, but in the re-execution all the
formalities must be observed
Note: the will is deemed executed as of the date of
republication
Illustration: testator executed a prior will in 2001 and he
republished the will in 2015, it is as if the will was done in
2015, thats why if one of the provisions in 2001 states that
I give all my cars to X and in 2001 there are only three
cars, but in 2015 the testator already has 30 cars, how
many shall be given to X? Answer: 30 cars because 2015
is deemed to be the date of execution
- Republication of Will previously revoked by the Testator
o (1) re-execution same principles in void will
o (2) by another will or codicil
Illustration: 2001 will was revoked expressly by a 2009
codicil executed by the testator which says I hereby
revoke my 2001 will if the testator dies at this point(2009)
as if he died without any will, recently the testator re read
the 2001 will and wants to restore all the provisions in the
revoked will, thus he can simply execute a will or codicil in
2016 for purposes of republishing.
this is done by:
o (a) copying the previous will
o (b) Incorporate by reference the revoked will
Illustration letter (b): the testator can
simply state that I hereby execute this
will or codicil for the purpose of
republishing my 2001 will which I
revoked in 2009, copy of the 2001 will
consisting of 7 pages hereto attach as
Annex A copy of the 2009 codicil hereto
attach as Annex B.
THUS: if the codicil is published this year the codicil or will
is not executed in 2001 but in 2016.
NOTE: the date of republication is always the date of
the will regardless of its day of actual execution
Revival of Wills
- Revival answers the following question:
o What is the effect of the revocation of the revoking will on the
will first revoked?
 o Illustration: testator executed a will in 2005 containing several
testamentary dispositions, and then in 2008 testator executed
another will and the purpose of which is to revoke the first will,
and then the third will executed in 2014 was also executed for no
other purpose but to revoke the second will.
Rules:
(1) It would depend if the first revocation is
expressed or implied.
o (A) If the first will was expressly revoked by
the second will, the revocation of the
second will, will not revive the first will
Reason: because the first repeal is
governed by the principle of instanter
which means that an express revocation
is immediately final and executory
because it clearly expresses or manifest
the intent of the testator to abrogate
said conveyance
o (B) if the first will is impliedly revoked by the
second will and the second will itself is
subsequently revoked by the third will, there
will be revival
reason: the law implies that the testator
did now want to die intestate, thus the
purpose of revival avoids intestacy, thats
why the revival takes place by operation
of law
note: implied revocation arises if will is
executed in two different dates, and
there arises serious irreconcilable
differences, in which case the later will
shall prevail over the earlier one.
o (C) If the third will expressly states otherwise
first will shall not be revived.
Republication vs Revival
- Republication is an act of the testator while Revival happens by
operation of law
- Republication is performed during the lifetime of the testator,
while Revival is performed after death