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WILLS AND SUCCESSION

Atty. Jan Jason Lumanag

SOURCES: Paras, Atty. Yang Yang-Espejo Notes, Mison,

Lecturer’s undergrad notes.

COURSE DESCRIPTION. Study of concepts, theories and principles of

the law on succession, testamentary succession (wills in general,
testamentary capacity and intent, forms of wills, witnesses to wills,
codicils and incorporation by reference, revocation of testamentary
dispositions, republication and revival of wills, allowance/disallowance
of wills , institution of heir, substitution of heirs, conditional
testamentary dispositions/ dispositions with a term, legitime,
disinheritance, legacies and devises) , legal or intestate succession
(general provisions, relationship, right of representation, order of
intestate succession, descending direct line, ascending direct line,
illegitimate children, surviving spouse, collateral relatives), preterition,
reserva troncal, provisions common to testate and intestate
succession ( right of accretion , capacity to succeed by will or intestacy,
acceptance and repudiation of the inheritance, executors and
administrators, collation, partition and distribution of estate, partition,
effects of partition, rescission and nullity of partition).

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GENERAL PROVISIONS
What is the legal definition of succession?
Article 774 provides that it is a mode of acquisition by virtue of which
the property, rights and obligations to the extent of the value of
inheritance of a person are transmitted through his death to another
or others either by his will or by operation of law.

Succession may be inter vivos or mortis causa.

What is inter vivos ? What is mortis causa?

Basis of Succession

1. Natural Law
It obliges a person to provide for those he would leave behind.

2. Socio -Economic Postulate

It would prevent wealth from becoming inactive or stagnant.

3. Attribute of Ownership
The owner has the right to enjoy and dispose of a thing, without other
limitations than those established by law.

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Is there a mention of succession in the Constitution?

Yes! , Sec. 7 Art. XII of the Constitution provides that save in cases of
hereditary succession, no private lands shall be transferred or conveyed
except to individuals, corporations, or associations qualified to acquire or
hold lands of the public domain.
What do you mean by save in cases of hereditary succession? What kind of
succession is being referred to here?
In Ramirez v Ramirez the Supreme Court held that when the Constitution
says hereditary succession , this refers to LEGAL OR INTESTATE
SUCCESSION(succession by operation of law)
KINDS OF SUCCESSION
1 AS TO ITS EFFECTIVITY:
• Inter vivos
• Mortis causa
Why is it important to know whether the transfer is inter vivos o mortis
causa?
• In Ganuelas v. Cawed and Cuevas v. Cuevas, the Supreme Court delves
that, It is important to know whether the transfer is inter vivos or mortis
causa in order for the proper observance of the formalities required by law
for its validity.

Formalities for notarial will

Writing, dialect known to the testator, subscribed by the testator or by
another person in his presence and under his express direction, attested
and subscribed by 3 credible witnesses in the presence of one another,
each and every page is signed and must be numbered, it must contain
attestation clause.

Formalities for holographic will

It must be entirely handwritten, dated and signed by the testator
For instance: (application)
X executed a document entitled last will and testament. He stated “ I
will give my son Y my 2019 Nissan Terra Black engine no. 123 chasis no
143, and he shall enjoy, own and can dispose it even if I’m still alive.
The document was not attested and subscribed by 3 credible
witnesses. Is the document valid?

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2 AS TO WHETHER OR NOT THERE IS A WILL:

• Testamentary- there is a will
• Intestate or legal succession – there is no will or the will is declared void or
ineffective
• Mixed succession – part of the estate is disposed by will and another part is
by operation of law

3 AS TO TRANSFEREES OF THE PROPERTY

• Compulsory succession – refers to legitime
• Voluntary succession – refers to free disposal
legitime- compulsory heirs
free portion – anybody designated by the decedent

4. AS TO THE EXTENT OF RIGHTS AND OBLIGATIONS INVOLVED

Universal Succession – covers all juridical relations involving decedent; heirs
succeed by universal title.
Particular succession – covers only a certain, specific items or properties
(legatees, devisees)

5 SPECIAL KIND
Contractual succession – provided by the Family Code; that kind where a
future husband and a future wife give credit to each other future property,
effective mortis causa , by means of marriage settlement.

Can the human body be transmitted by succession?

NO! because it is incapable of appropriation.
Exception; RA 7170 or Organ donation act. .

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REPUBLIC ACT NO. 7170 January 7, 1992

An act authorizing the legacy or donation of all or part of a human body after
death for specified purposes
Section 6. Persons Who May Become Legatees or Donees. – The following persons
may become legatees or donees of human bodies or parts thereof for any of the
purposes stated hereunder:

(a) Any hospital, physician or surgeon - For medical or dental education,

research, advancement of medical or dental science, therapy or transplantation;
(b) Any accredited medical or dental school, college or university - For
education, research, advancement of medical or dental science, or therapy;
(c) Any organ bank storage facility - For medical or dental education, research,
therapy, or transplantation; and
(d) Any specified individual - For therapy or transplantation needed by him.

Section 8. Manner of Executing a Legacy. –

(a) Legacy of all or part of the human body under Section 3 hereof may be
made by will. The legacy becomes effective upon the death of the testator
without waiting for probate of the will. If the will is not probated, or if it is
declared invalid for testamentary purposes, the legacy, to the extent that it was
executed in good faith, is nevertheless valid and effective.
(b) A legacy of all or part of the human body under Section 3 hereof may
also be made in any document other than a will. The legacy becomes effective
upon death of the testator and shall be respected by and binding upon his
executor or administrator, heirs, assigns, successors-in-interest and all members
of the family. The document, which may be a card or any paper designed to be
carried on a person, must be signed by the testator in the presence of two
witnesses who must sign the document in his presence. If the testator cannot
sign, the document may be signed for him at his discretion and in his presence,
in the presence of two witnesses who must, likewise, sign the document in the
presence of the testator. Delivery of the document of legacy during the
testator's lifetime is not necessary to make the legacy valid.

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(c) The legacy may be made to a specified legatee or without

specifying a legatee. If the legacy is made to a specified legatee who is
not available at the time and place of the testator's death, the
attending physician or surgeon, in the absence of any expressed
indication that the testator desired otherwise, may accept the legacy as
legatee. If the legacy does not specify a legatee, the legacy may be
accepted by the attending physician or surgeon as legatee upon or
following the testator's death. The physician who becomes a legatee
under this subsection shall not participate in the procedures for
removing or transplanting a part or parts of the body of the decedent.
(d) The testator may designate in his will, card or other document,
the surgeon or physician who will carry out the appropriate
procedures. In the absence of a designation, or if the designee is not
available, the legatee or other persons authorized to accept the legacy
may authorize any surgeon or physician for the purpose.

What is a will?
A will is an instrument by virtue of which a person disposes of his
property to take effect after his death.

What are the 2 kinds of wills?

• Notarial will- attested and subscribed by three or more witnesses;
with attestation clause; and acknowledge before a notary public.
• Holographic will- entirely written and dated by the testator; subject to
no form.

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Art. 775. In this Title, "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. (n)

Decedent – general term which either refer to a testator or intestate

Testator- if he left a will
Intestate- if he left no will

Art. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death. (659)

Subjects of succession (PRO)

1 Property- includes real and personal properties as well as the
accessions to the property accruing thereto from the moment of death.
2 Rights – that are not extinguished by death and are therefore
transmissible.
3 Obligations – not extinguished by death.

PROPERTIES
Remember Real and Personal properties.
This does not include those outside the commerce of men, unlawful,
illegal or immoral.

Take note: Inheritance does not include everything that belongs to the
deceased at the time of his death. It is limited to his property, rights
and obligations NOT EXTINGUISHED BY HIS DEATH.

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what are rights and obligations extinguished upon death?

• personal obligations -> such as personal qualification of the debtor
has been taken into account
• Intransmissible by express agreement or will by the testator
• Intransmissible by express provision of law. Example: life pensions
given under the contract

RIGHTS
VERY IMPORTANT! Patrimonial rights can be transmitted by succession.
Patrimonial rights are those rights that relate to property.

Rights that can be transmitted by succession are as follows:

1 contractual rights arising from a contract of lease.

In INOCENCIO V. HOSPICIO DE SAN JOSE the Supreme Court delves that
“lease contracts, by their nature, are not personal. The general rule,
therefore, is lease contracts survive the death of the parties and
continue to bind the heirs except if the contract states otherwise.
2 rights of insurance.
In GREAT PACIFIC LIFE INSURANCE V. CA AND LEUTERIO the Supreme
Court held that a policy of insurance upon life or health may pass by
transfer, will or succession to any person, whether he has an insurable
interest or not, and such person may recover it whatever the insured
might have recovered.

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3 right to file an action for forcible entry or unlawful detainer

For instance:
Mr. A an owner of a real property, and the property is encroached or
usurped by Mr. B, Mr. A can file an action for unlawful detainer against
Mr. B.
Even if Mr. A dies before filing the action or during the pendency of the
action, the right to file is not extinguished because the rights of the
owner is transferred to his heirs.

4 Right of the heirs to compel the execution of a public document

These are the acts or contract which, transmission, modification or
extinguishment of real rights over immovable should appear in public
document , although the appearance in public document is for
convenience or enforceability not for validity. or enforceability.
For instance.
Mr. A sold a parcel of land to Mr. B . For it to be enforceable it has to be
in a public instrument, so what if private document lang, wala na
notaryo wala na acknowledge before a notary public?
Is it valid? Is it enforceable? What is the effect against third persons?

So what if wala na notarized and the buyer dies? His heirs can compel
the seller to execute the necessary public document. That right is
transmissible.

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5 Right to recover possession of property

6 Right to civil liability

For instance:
Mr. A was hit by a truck. Mr. A sustained injuries and incurred
expenses, he can recover civil damages. But what if he died before
seeking damages? The heirs can file the action to recover damages.

7 Action to claim legitimacy

Art 173 of the FAMILY CODE- the action to claim legitimacy may be
brought by the child during his lifetime and shall be transmitted to the
heirs should the child die DURING MINORITY OR IN A STATE OF
INSANITY. In this case the heirs shall have a period of five years within
which to institute the action.

LETS GO BACK! Diba I have discussed earlier that:

Patrimonial rights can be transmitted by succession.
Patrimonial rights are those rights that relate to property.

There is an exception! The following patrimonial rights cannot be

transmitted by succession.
1 expressly stipulated that it is not transmissible
2 usufruct (extinguished by the death of usufructuary unless contrary
intention clearly appears)
3 contract of agency (death, civil interdiction, insanity or insolvency of
the principal or of the agent)

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4 law on tenancy.
For instance:
If you have tenants under the agrarian law, a tenant has the right in the
land on which he is a tenant. You cannot just terminate or evict him,
there has to be a ground for eviction. If he dies, the tenancy is not
extinguished.

RA 3844 it is the land owner who chooses to succeed to the tenancy. IF

NO SELECTION IS MADE, THEN THE RIGHT TO TENANCY IS NOT
TRANSMISSIBLE. In ROBLES V. BATACAN, the Supreme Court provides
that when the tenant dies, the right of the heirs of the tenant to
succeed is not absolute. The choice belongs to the landowner. The
landowner decides who will be the tenant.

OBLIGATIONS
How about namatay si MR.A nga naay mga utang? Kinsay mubayad sa
utang?
The debts are transmitted but only up to the value of the inheritance.

In RABADILLA V. CA the supreme court held that the obligations of the

decedent were transmitted to his heirs upon his death.

What are the exceptions to the rule that obligations are transmissible.
1 purely personal (personal qualifications and circumstances of the
debtor has been taken into account)
2 Intransmissible by express agreement or by will of testator
3 Intransmissible by express provision of law

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Art. 777. The rights to the succession are transmitted from the
moment of the death of the decedent. (657a)

Prior to the decedent’s death can the future heirs claim anything from
the property of the decedent? Can you claim the properties of your
parents while your parents are still alive?

No, the future heirs cannot claim anything from the property of
decedent. What the future heirs have over the properties of decedent
are mere expectancy or inchoate rights. Thus, it is not absolute.
CORONEL V CA 1996

Exception: Partition of future inheritance. Why? Because there was no

transfer yet. There is just a separation, allocation, division of shares
which the heirs will be acquired.

Correlate this to law on sales. Can you sell future property?

Yes, when the sale is subject to the condition that the thing will exist (
emptio rei sitae- sale of an expected thing)
For instance: Mr. A planted Mangoes in his land, as of now he is looking for
prospective buyers of his mangoes. Mr. A can enter into contract with them
for an exclusive buying and selling of the bananas that will be harvested .This
is emptio rei sitae.

Take note: lahi ang emptio spei. Emptio spei is a sale of a mere hope or
expectancy that the thing will come to existence. Sale of the hope itself.
For instance: Sale of sweepstakes or raffle ticket that is yet to be drawn is
valid.

But the sale of a sweepstake that has already been drawn , the sale is void
as it involves da sale of vain hope or expectancy. THE SALE OF VAIN HOPE OR
EXPECTANCY IS VOID.

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Take note: Death is the operative act which transfers the right to the
succession. Death opens succession.

Death is either actual or presumed.

What is actual death?

Death is irreversible cessation of circulatory and respitory functions or
the irreversible cessation of all functions of the entire brain, including
the brain stem.

KINDS OF PRESUMED DEATH

1 Ordinary presumption-
Article 390. After an absence of seven years, it being unknown whether
or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening
his succession till after an absence of ten years. If he disappeared after
the age of seventy-five years, an absence of five years shall be sufficient
in order that his succession may be opened. (n)

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2 Qualified or Extraordinary presumption- caused by qualified absence; after

4 years if the disappearance was under danger of death.

Article 391. The following shall be presumed dead for all purposes, including
the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane

which is missing, who has not been heard of for four years since the loss of
the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been
missing for four years;

(3) A person who has been in danger of death under other circumstances
and his existence has not been known for four years. (n)

Article 392. If the absentee appears, or without appearing his existence

is proved, he shall recover his property in the condition in which it may
be found, and the price of any property that may have been alienated
or the property acquired therewith; but he cannot claim either fruits or
rents. (194)

Take note: there is no obligation to reimburse when the heir has

already spent the money provided that the consumption had been
made in good faith. The recovery may not be made by the absentee if
the heir, devisee, or legatee has acquired the property through
prescription. It is then a case of extraordinary prescription in view of
the lack of just title, there being no true succession.

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Take note of very important case: EASTERN SHIPPING LINES V. LUCERO

In EASTERN SHIPPING LINES V. LUCERO , the Supreme Court explained
that where the pieces of evidence point to the fact of death, there is no
need to wait for the 4 year period to expire before succession can be
opened. Presumptions regarding the time of death are rebuttable,
since proof may be presented as to when death actually occurred.

The rule on presumption should yield on the rule of preponderance of

evidence

Take note of article 43 of the Civil Code in relation to RULE 131 sec. 3
(kk) of the Rules of Court.

Take note: right to succession are transmitted from the moment of

death of the decedent.

Question: Can they immediately dispose of the properties of

decedent?
NO!
YES!
(to be discussed during lecture)

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In EMNACE V. CA the Supreme Court delves that the heirs can file an
action based on the rights of the decedent in the partnership. However,
the right to be a partner in a partnership is not transmissible (based on
the principle of delectus personae).

In GOCHANG V. YOUNG the Supreme Court recognizes the legal

standing of the heirs to represent the rights and properties of the
decedent under administration pending the appointment of an
administrator.
If there is an appointed administrator then they have the legal standing
.
But there are instances that even if there is an appointed administrator,
jurisprudence recognizes 2 exceptions.
1 the executor or administrator is unwilling or refuses to bring suit
2 when the administrator is alleged to have participated in the act
complained of and he is made a party defendant.

Diba I already explained that death opens succession, is there

exception?
THE ONLY EXCEPTION: FREAK SUCCESSION. There is a case of
succession which takes place without the triggering effect of death
under article 52 of the Family Code.

Question 1999 bar what do you men by presumptive legitime, in what

case or cases must the parent deliver such legitime to the children,
and what are the legal effects in each case if the parent fails to do so?

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As used in the Family Code, presumptive legitime is understood as the

equivalent of the “common children’s” legitime s assuming that
spouses had died immediately after the dissolution of the community
property.

Article 53 of the Family Code provides that presumptive legitime is to

be delivered to common children of the spouses when the marriage is
annulled or declared void ab initio and possibly, when the conjugal
partnership or absolute community is dissolved as in the case of legal
separation.

Question. Mr. A stated in his will that upon his death there will be no
transfer of property to his heirs? Can he?

Take note of this prohibition: the decedent may provide prohibition on

partition of his property within a certain period of time. The maximum
period will be 20 years.

For instance
The testator provided in his will that “MY HEIRS A,B,C AND D CANNOT
DISPOSE, PARITION, SELL MY PROPERTIES FOREVER”, this means that
the period will only be 20 years. WALANG FOREVER. This is true to the
free portion.

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Question 2014 bar. Crispin died testate and was survived by Alex and
Josine, his children from his first wife; Rene and Ruby, his children
from his second wife; allan, bea, cheska, his children from third wife.
One important provision in his will reads as follows.
“ang lupa at bahay sa lungsod ny Maynila ay ililipat at ilalagay sa
pangalan nila Alex at Rene hindi bilang pamana ko sa kanila kundi
upang pamahalaan at pangalagaan lamang nila at nang ang sinuman
sa aaking mga anak, sampu ng aking mga apo at kapuapuhan ko sa
habang panahon, ay may tutuluyan kung magnanais na mag-aral sa
Maynila o sa kalapit na mga lungsod.”

Is the provision valid?

The provision imposing prohibition on the division of the property

“habang panahon” is invalid. In Santiago v Santiago (2010) the
Supreme Court held that when the testator imposed a period of
indivision, it must not exceed 20 years.

In the given case, the will contains a provision imposing a prohibition

on the division of property “habang panahon”. Therefore the
prohibition is invalid as to the excess beyond 20 yrs.

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Article 778. Succession may be:

(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed. (n

Testamentary → when the decedent left a will

Legal or intestate → dies without leaving a will, dies and leaves a void
will, dies and leaves totally valid but inoperative will.
Mixed → fails to dispose all his properties in a will, the will does not
validly dispose all the properties the remainder of the estate would
have to be distributed in accordance with the law on intestate
succession.

Article 779. Testamentary succession is that which results from the

designation of an heir, made in a will executed in the form prescribed
by law. (n)

Question, can there be a will without institution of heirs?

Yes! When a will contains disinheritance. It is still a valid will. “ I hereby
disinherit my son”. There is no institution because it did not mention
any one who will receive but it just mentioned the one who will be
excluded.

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PRINCIPLES OF TESTAMENTARY SUCCESSION

1 Testamentary succession is preferred over intestate succession.

In RODRIGUEZ V. BORJA the Supreme Court held that the testate
proceedings prevails over the intestate proceeding which was instituted
ahead.
2 Doubts must be resolved in favor of testacy.
In BALANAY JR. V. MARTINEZ the Supreme Court held that even if in a
will, there are certain dispositions which are not valid, that fact will not
invalidate the WHOLE will. The will remains valid, what should be
followed are the dispositions which are valid. The reason for this is
testacy is favored over intestacy.

Article 780. Mixed succession is that effected partly by will and partly
by operation of law. (n)

Article 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. (n)

Take note: the purpose of this provision is to protect creditors, since

after the point of death, the obligation still accrues interest.

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After-acquired properties. Property required by the testator between

the time the will is made and the time he dies, it is not given to the
designator persons unless contrary has been expressly provided.

Take note see article 793.

781- refers to properties accruing after the death of the decedent
793- properties accruing after the making of the will up to the moment
before the testator’s death.

Article 782. An heir is a person called to the succession either by the

provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real and personal
property are respectively given by virtue of a will. (n)

Who is an heir?
An heir is a person called to the succession either by the provision of a
will or by operation of law.
What about a legatee?
Persons who are given personal or movable property by virtue of a will.
How about a Devisee?
Persons who are given real or immovable property by virtue of a will.

Take note: Devisees and legatees exists only in testamentary

succession. There is no such thing as devisee or legatees in legal or
intestate succession.

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Kinds of heirs
Compulsory heirs or forced heirs → these are heirs who are entitled to
their legitimes, cannot be excluded from participating in estate unless
there is disinheritance.
Voluntary heirs → those persons who are not entitled to legitimes.

Can a compulsory heir be at the same time a voluntary heir?

Yes , if they are given above their legitime.

Take note: Compulsory heirs are legal heirs but not all legal heirs are
compulsory heirs.

TESTAMENTARY SUCCESSION
SUBSECTION 1 WILLS IN GENERAL
Article 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of this estate, to take effect after his death. (667a)

Take note of this! “LAST WILL AND TESTAMENT”

Will → disposes of REAL PROPERTIES
LAST TESTAMENT → disposes of PERSONAL PROPERTIES

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Very important! (BAON SA BAR)

ELEMENTS OF A WILL
PASSUCFRIDM (pass you see freedom) ( from Atty. Yangyang-Espejo)
1 Personal – it IS TRICTLY A PERSONAL ACT .
As a general rule, documents acknowledge before a notary public are
public documents.
Exceptions are will, because one of its characteristics is, it is a
PERSONAL ACT.
Question: can the testator delegate the mechanical drafting of the
will?
Yes in notarial will. But not in holographic will because it has to be
entirely hand written, dated and signed in the hand of the testator.

2 Animus Testandi -there must be an intent to make a will.

In MONTINOLA V HERBOSA , a very interesting case, it is a CA case,
the CA stated that the poem mi ultimo adios by jose rizal is not a will.
The dispute is centered on one passage of the poem which goes “ to
you, I give all of my parents, kindered and friends…” The answer is, it is
not a will because Jose Rizal has no intent to make a will.

3 Statutory – the making of a will is merely a privilege not an inherent

right. So the law can withhold testamentary power.

4 Solemn – it is a formal act. The formalities required by law must be

complied with when making a will.

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5 Unilateral- unilateral act of the testator.

6 Capacity- the testator must be capacitated to make a will. He must

have a testamentary capacity. He must be of sound mind and he should
know the nature of what he was doing.

7Freedom from vitiated consent- it must be voluntary act. If the

consent is vitiated, it is a cause for disallowance of a will.

8 Revocable – the testator can revoke his will anytime during his
lifetime.

9 Individual act

10 Disposition of property- it disposes of testator’s estate in

accordance with his wishes.

How about a will nga disinheritance lang? this is called indirect

disposition.

11 Mortis Causa – the will takes effect only upon death.

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- The freedom of a person to dispose of his property by virtue of a will

shall be necessarily subject to the provisions of the law on legitimes.

Article 784. The making of a will is a strictly personal act; it cannot be

left in whole or in part to the discretion of a third person, or
accomplished through the instrumentality of an agent or attorney.
(670a)

Question, can the testator entrust the drafting of his will to any other
persons? Yes in a notarial will. Take note that it refers to the mechanical
drafting of the will to other person, the will must contain the wishes of
a testator and not the wishes of any other person because what is
under consideration is his will.

In CASTANEDA V. ALEMANY the Supreme Court held that the

mechanical act of drafting the will can be left to a third person. What is
important is that the testator signs the will or he let another person to
sign but under his direction.

Article 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. (670a)

Article 785 speaks about matters that CANNOT be delegated.

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1 The duration of the designation of the heirs, devisees or legatees.

For instance:
I hereby give my car to B and C and they will use the car alternately but
the duration of the use of each shall be subject to the will of X.
This cannot be delegated, why? Because it is not actually the will of the
testator that is being followed. It is already the will of X.

2 The efficacy of the designation of the heirs, devisees or legatees.

For instance:
I hereby institute B as heir to all my properties but this shall be subject
to the approval of Y. This cannot be delegated because it is not actually
the will of the testator that is being followed. The efficacy of the
designation of B as heir is subject to the approval of Y.

3 the determination of the portions which the heir, or legatee or

devisee shall take, when referred to by name.
For instance:
I leave my properties to X, Y and Z and A will determine how much will
be the share of each. This cannot be delegated because it is not
actually the will of the testator that is being followed.

Here, the determination of the share of X,Y and Z is to be determined

by A.

For the next provisions article 782-792 are rules for the interpretation
of wills.

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Article 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 are to
be given or applied. (671a)
Article 786 provides for VALID DELEGATION.

Remember the requisites for a valid delegation.

The testator entrust to a third person:
1 the distribution of specific property or sums of money;
2 these specific property or sums of money are left in general to
specific classes or causes;
3 There is the designation of the persons, institutions or establishments
to whom such property or sums of money are to be given or applied.

ARTICLE 786 ARTICLE 785

There is no mention of a class or There is no mention of a class or

cause which is specified by the
testator
What the person does, the one
who is instructed by the testator, is
to determine the persons
cause
Here the third person is entrusted
the distribution of specific property
or sums of money. What is
prohibited is to determine the
portion to be given to the named
heirs, legatees or devisees.

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EXERCISES
1 I hereby leave all my properties to my SMC College of Law students
and my girlfriend X will determine how much will each receive. Is there
a valid delegation?

2 I hereby leave all my properties to a,b,c and d will determine how

much each will receive. Is there a valid delegation?

3 I leave 100 million to support the Pinoy Big Brother winners to be

apportioned to the winners in such amount as X shall determine.

Article 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)

For instance:
I hereby leave my house and lot in toril but X shall determine if this is
valid because X can also provide that a Sports Utility Vehicle instead
shall be given.

Here, X has to determine whether or not it is to be operative.

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Article 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. (n)

This is in line with the principle that TESTACY is favored over intestacy.
Take note that article 788 applies only in case of doubt. When the
terms of the will are not clear and are ambiguous.

Article 789. When there is an imperfect description, or when no

person or property exactly answers the description, mistakes and
omissions must be corrected, if the error appears from the context of
the will or from extrinsic evidence, excluding the oral declarations of
the testator as to his intention; and when an uncertainty arises upon
the face of the will, as to the application of any of its provisions, the
testator's intention is to be ascertained from the words of the will,
taking into consideration the circumstances under which it was made,
excluding such oral declarations. (n)

There are 2 kinds of ambiguity

1 LATENT OR INTRINSIC AMBIGUITY – that which does not appear on

the face of the will.

How do we discover? We discover it when we go beyond the will.

Investigate, look for the heirs or the properties disposed of in the will
and when you discover that actually the will contains ambiguity.

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What are latent or intrinsic ambiguity.?

1 Imperfect description of the heirs, legatees or devisees.
i.e. “I hereby give my 65 inches curve TV to John Doe”. There seems to
be nothing wrong, but it turns out that I did not know anybody named
John Doe, friends or family. So here lies ambiguity.

2 Imperfection in the description of the property to be given.

i.e. “I hereby give my 65 inches curve TV to A”. There seems to be
nothing wrong here, but it turns out that I do not have 65 inches curve
TV , only a black and white CRT TV. So here lies ambiguity.

3 When 2 or more person meets the description.

i.e. “I hereby give to PIOLO PASCUAL my 65 inches curve tv. There
seems to be nothing wrong, but it turned out I have many friends and
two of them actually named PIOLO PASCUAL. So here lies ambiguity.
4 When 2 or more things/properties meets description.
i.e. “ I hereby give my land in TORIL to A”. There seems to be nothing
wrong, but it turned out that I have 3 lands in TORIL. So here lies
ambiguity.

2 PATENT OR EXTRINSIC AMBIGUITY – that appears on the face of the

will itself. By just looking at the will you know there is an imperfection,
or mistakes or an ambiguity.
i.e. “ I hereby give B some of my properties”. WHAT? What are those
properties given? So patent ang ambiguity.

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HOW TO CURE THE AMBIGUITY?

You cure the ambiguity through intrinsic evidence, by examining the

will.
i.e. “ I hereby give my Car to JUAN DELA CRUZ my best friend”. And it
turns out that I have 3 best friends named JUAN DELA CRUZ. But by
examining the will, in the third page the JUAN DELA CRUZ I have
mentioned is the JUAN DELA CRUZ that owns the laundry shop beside
my house and my classmate since elementary.

You can also cure the ambiguity through extrinsic evidence, when you
go beyond the will, look for documents or persons.
i.e. if bisan unsaon pag bali bali sa will wala jud ka kaila kinsa si JUAN
DELA CRUZ and wala jud na clarify sa will kinsa na JUAN DELA CRUZ.
But you find letters na JOAN DELA CRUZ ANG recipient and you had
discovered na all this time it was JOAN DELA CRUZ not JUAN DELA
CRUZ.

When can you question the ambiguity?

You cannot raise it when the testator is still alive.

There must first be probate (determine the genuineness, capacity, due execution of
the will), then after the will being probated , there would be distribution. Then it
would be the time to raise the issue of the provisions of the will.

Article 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 the will was drawn solely by the testator, and that he was unacquainted
with such technical sense. (675a)

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Ordinary terms -- you know what it is.

Technical terms – terms that are used by person engaged in specialized
fields or profession. i.e. adopted is a technical term .

What is the rule then with respect to ordinary term?

General rule is give the ordinary or literal meaning except when there is
an intention to give it another meaning.

What is the rule with respect to technical term?

General rules is give it technical meaning EXCEPT!

1 when the testator himself made the will and is very clear that he is
unacquainted or unfamiliar with the term
i.e. adopted , when you say adopted dapat it has undergone through
adoption proceedings. What if niingon sya I gave my properties to a
and b my adopted children. What if si b lang ang legally adopted? What
will happen? Take note this is an exception, because the testator
himself is an ordinary person. This is true ha when the testator is not
assisted by counsel.

2 if the intention of the testator is to give the technical word an

ordinary meaning.
i.e. “I hereby give my house and lot in TORIL to my 2 adopted children”
clearly he intended that the word adopted should refer to his 2
children.

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Article 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.
(n)

Article 792. The invalidity of one of several dispositions contained in a

will does not result in the invalidity of the other dispositions, 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)

In BALANAY V MARTINEZ, the Supreme Court held that the invalidity of

one of the several dispositions obtained in a will, does not result to the
invalidity of other dispositions unless it is to be pursue of the testator
would not be such other dispositions , the first invalid disposition that
come within.

Article 793. Property acquired after the making of a will shall only
pass thereby, as if the testator had possessed it at the time of making
the will, should it expressly appear by the will that such was his
intention. (n)

This article applies to the properties acquired after the time the will is
made but before the moment of death of the testator. This article is
what we call second rule to the after acquired properties. The first
rule is Article 781.

781- properties acquired after death of decedent

791- properties acquired after the execution but before the death of
the decedent

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After acquired properties in article 793 do not belong to devisees but

after acquired properties in 781 belong the devisee, legatee or heir
being an incident of their ownership.

After acquired properties includes, rents, income and improvements.

Take note:
General rule, only those properties owned by the testator at the time
of the execution of the will are included. So those acquired after the
execution of the will are excluded.

Exception, if the testator expressly provides in his will that properties

acquired after the execution of the will are included.

Remember this!
If you are instituted an aliquot share, a fraction, a portion , and ideal
share and NOT A SPECIFIC PROPERTY, this article does not apply. THE
SUCCESSION IS BY UNIVERSAL TITLE.

Example:
I hereby give all my properties to my heir X. In 1985 A executed a will.
In 1987 acquired some property. In 1995 A died.
If X is a heir and A acquires properties after the execution of the will
still upon A’s death, X as heir will get all the properties of A because A
said I hereby give all my properties to X.

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Take note:
General rule, only those properties owned by the testator at the time of
the execution of the will are included. So those acquired after the
execution of the will are excluded.

Exception, if the testator expressly provides in his will that properties

acquired after the execution of the will are included.

Other exception:
• If there was a subsequent will or if the will is modified or republished.
• If at the time the testator made the will, he erroneously thought that
he owned certain properties, it will be valid if after making the will,
said properties will belong to him.
• Legacies of credit or remission are effective are regards that part of
the credit or debt existing ate time of the death of the testator.

Article 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. (n)

Devisee- a person to whom real estate is left by the terms of a will.

Legatee – a person to whom personal property is left by terms of a will.

General rule: All of the testator’s rights in a property are transmitted,

because the testator intended to dispose his whole interest in the property.
EXCEPTION!
1 If it clearly appears in the will that the testator merely intend to convey
less interest.
i.e. A owned a lot in Mirafuentes, then a provided in his will “I hereby give to
B the usufruct over my lot in Mirafuentes”. This is a less interest . Remember
usufruct is a less interest than ownership. So only usufruct lang. enjoyment
of the property.

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2 if the testator clearly provided that he conveys a greater interest

i.e. I hereby give to A 4 hectare lot in Toril. ¼ is owned by me but the
¾ is to be acquired by the estate to be given to A. So if the testator only
owns ¼ of the 4 hectare lot in Toril, he can provide in his will the entire
4 hectares by just providing that the estate will acquire the ¾ hectares.

3 If the testator can also give his property which he knows is not
owned by him.
i.e. The testator rented a house in san Miguel Tagum, the testator can
provide in his will “ I hereby give the house in San Miguel Tagum where
I live now and my estate will acquire this house from the owner”.

Article 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. (n)

Article 795 speaks of the extrinsic validity from the viewpoint of time.

Now, we will discuss the different kinds of validity. The formal

(extrinsic) and the intrinsic validity.

KINDS OF VALIDITY OF WILLS

1 EXTRINSIC VALIDITY – refers to the forms and solemnities that have
to be conformed and complied with in the execution of the will.
(number of witnesses, qualification of witnesses, attestation in the will,
signature of the testator, the capacity of the testator, etc)

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Extrinsic validity can be viewed from 2 points. We have from the

viewpoint of time and from the viewpoint of place or country.
A . VIEWPOINT OF TIME
This is article 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. This is because
the testator cannot possibly and is not expected to know what the laws
will govern in the future.

In ENRIQUEZ V. BORJA, the Supreme Court held that the legislature

cannot validate a void will because the extrinsic validity of wills is
measured at the time of the execution of the will.

In TESTATE ESATE OF ABADA V. ABAJA, the Supreme Court held that

the legislature cannot invalidate a validly made will at the time when
the testator executed a will by providing a certain formalities.

B . VIEWPOINT OF PLACE OR COUNTRY

Article 17 par. 1; The forms and solemnities of contracts, wills and
other public instruments shall be governed by the laws of the country
in which they are executed.

Article 17 par. 2; When acts referred to are before the diplomatic or

consular officials of the Republic of the Philippines in a foreign country,
the solemnities established by the Philippine laws shall be observed in
their execution.

2 INTRINSIC VALIDTY – refers to the legality of the provisions of the

will.
i.e. the disposition in favor of a concubine is in valid, preterition, invalid
disinheritance.

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A . VIEWPOINT OF TIME
Governed by the laws enforced at the time of the opening of
succession which is the moment of death of the testator.

B . VIEWPOINT OF PLACE/ COUNTRY

Article 16. Real property as well as personal property is subject to the
law of the country where it is stipulated.

However, intestate and testamentary successions, 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 country wherein said property may be found. (10a)

Cayetano v. Leonidas,
Llorente v. CA,
PCIB V. Escolin,
Miciano v. Brimo,
Testate Estate of Suntay v. Suntay,
Aznar v. Duncan,
Bellis v. Bellis,
Malang v. Moson.

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SUBSECTION 2 : TESTAMENTARY CAPACITY AND INTENT

Article 796. All persons who are not expressly prohibited by law may make
a will. (662)

Testamentary capacity is he qualification of person to execute a will.

Qualification:
1 legal age (18 yrs old)
2 Sound mind

Take nore: A person who is suffering from civil interdiction may make wills
because they are only prohibited from disposing their properties inter vivos ,
during their lifetime. Remember, wills dispose of properties mortis causa,
after death.

All persons here means, NATURAL PERSONS not JURIDICAL PERSONS.

Article 797. Persons of either sex under eighteen years of age cannot
make a will. (n)

Article 798. In order to make a will it is essential that the testator be

of sound mind at the time of its execution. (n)

Article 799. 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)

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know the nature of the estate to be disposed of

meaning the testator must have a sufficient recollection of his
properties and comprehend their kind and character.

proper objects of his bounty

meaning, he should have known who are those persons to whom
he will be giving his properties.

the character of the testamentary act

he must understand that he is executing an instrument which will
dispose of his property upon his death and which he may revoke at
any time.

Take note of these JURISPRUDENCE!

In TORRES V. LOPEZ, Senile Dementia when it is not complete is not
indicative of unsound mind. Plus, the mere fact that she was under
guardianship because the same is not conclusive with respect to the
condition of a person.

In AVELINO V. DELACRUZ, blindness, no presumption of incapacity can arise

from the mere fact that he was blind.

In SAMSON V. CORRALES TAN, the testator was alleged to be Comatose

several days prior to the making of his will but there were testimonies hat
there were times when the testator was awake and had lucid intervals. Mere
professional speculation cannot prevail over the positive statements of 5
apparently credible witnesses whose testimony does not of itself seem
unreasonable.

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In BAGTAS V PAGUIO, paralysis and loss of speech, mere weakness of mind

and body, induced by age and disease do not render a person incapable of
making a will.

In NEYRA V. NEYRA , Addison’s disease (sleeping sickness) because people

who are afflicted with such do get a good sleep and the mind is well rested.

In ALSUA –BETTS V. CA, Mere weakness of mind or partial imbecility from

disease of body or from age does not render a person incapable of making a
will.

In SANCHO V ABELLA , deafness by itself does not establish the presumption

that the person is in the full enjoyment of his mental capacity.

In CARILLO V. JACOCO, When the subject person has been declared mentally
incapacitated after execution of the contract because this does not
conclusively presume that s/he was incapacitated when the contract was
executed.

Article 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.

The burden of proof that the testator was not of sound mind at the time of
making his dispositions is on the person who opposes the probate of the
will; but if the testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains the validity of the
will must prove that the testator made it during a lucid interval. (n)

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What proof is required? The burden of proof is clear and convincing

evidence.

Article 801. Supervening incapacity does not invalidate an effective will,

nor is the will of an incapable validated by the supervening of capacity. (n)

this is the Principle of Supervening Incapacity or Capacity.

Article 802. A married woman may make a will without the consent of her
husband, and without the authority of the court. (n)

Article 803. A married woman may dispose by will of all her separate
property as well as her share of the conjugal partnership or absolute
community property. (n)

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