8.

LOSS OF A WILL
(Lipana vs CFI of Cavite, 70 Phil 365
if a will is shown to have been torn by some other person without the express direction of the testator. it may be
admitted to probate, if its contents, due execution and its unauthorized destruction are established by satisfactory
evidence. The applicant, therefore, was entitled to hearing to prove the due execution of the original will and its loss
or destruction, and the respondent court had no statutory authority to dismiss the application without such hearing.

A. Concept of Republication (art 835)

Art. 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a
previous one which is void as to its form. (n)

Republican- It is the process of re-establishing a will, which has become useless because it was void, or had been
revoked.

Republication may be made by:

(a) re-execution of the original will (the original provisions are COPIED)
(b) execution of a codicil (also known as implied republication).

If the testator wishes to republish a will that is void as to form, the only way to republish it is to execute a subsequent
will and reproduce [copy out] the dispositions of the original will. Mere reference to the prior will in the subsequent will
is not enough.

B. Revival of Wills (Art 837)

Art. 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the
second will does not revive the first will, which can be revived only by another will or codicil.

As has already been intimated, a void will or a revoked one is a nullity, devoid of any effect, and is useless. And the
only ways of giving effect to it are:
(a) republication (this includes both re-execution and reference by a codicil — already discussed)
(b) revival

Distinctions Between Republication and Revival

(a) Republication is an act of the TESTATOR.
(b) Revival is one that takes place by OPERATION of LAW.
(“Revival” has been defi ned as the restoration or reestablishment of revoked will or revoked provisions thereof, to
effectiveness, by virtue of legal provisions.)

Examples of Revival
(a) While omission of a compulsory heir in the institution of heirs annuls the institution, still if the omitted heir dies
ahead of the testator, the institution is revived, without prejudice to the right of representation.
(b) If after making a will, the testator makes a second will impliedly revoking the first, the revocation of the second will
revives the first will. (?)

INSTANT REVOCATION
 That the revocatory effect of the 2nd will is immediate.
 However, such theory is inconsistent with the principle that wills take effect mortis causa.
 Furthermore, to be effective for the purpose of revoking the first will, the second will must be probated. But it has
already been revoked by the third will. A revoked will now has to be submitted to probate

Article applies only when the revocation of the first will by the second will is EXPRESS. If the revocation by the
second will is implied due to incompatible provisions, the article will not apply and the effect will be that the first will is
revived.
 However, when will 3 is itself inconsistent with will 1, there is still revocation.
 Also keep in mind Article 831 – Implied Revocations only annul such dispositions in the prior wills as are
inconsistent with or contrary to those contained in the latter wills.

9. CONCEPT OF PROBATE OF A WILL

(Manahan vs Manahan, 58 Phil 449)- Probate may also be called “probation,’’ “legalization,’’
“protocolization,’’ and “authentication.”

Probate is the act of proving before a competent court the due execution of a will by a person possessed of
testamentary capacity, as well as approval thereof by said court.
-Probate is one thing; the validity of the testamentary provisions is another. The first decides the execution of the
document and the testamentary capacity of the testator; the second deals with descent and distribution.

A. Characteristic

B. Necessity
(a) It is essential because under the law “no will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court.’
(b) So essential is probate that a provision in a will stating that “the will shall not be presented before the courts” is a
void provision, for a person cannot by his actuations deprive a competent court of its jurisdiction.
(c) However, the heirs concerned may extrajudicially agree to partition the property among them, even though such
partition is not in accordance with the provisions of the will.
-ownership is acquired not only by testamentary succession, but by legal succession.
(d) It should also be noted that even a void will, or one that has been refused probate (approval by the court) may in
certain cases give rise to a natural obligation.
Thus in probate proceedings, the court —
1) orders the probate proper of the will
2) grants letters testamentary or letters with a will annexed
3) hears and approves claims against the estate
4) orders the payment of the lawful debts
5) authorizes the sale, mortgage, or any other encumbrance of real estate
6) and directs the delivery of the estate or properties to those who are entitled thereto.

C. Kinds (Art 838(2))

Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the
Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his
will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's
a death shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on
petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall
be conclusive as to its due execution. (n)

2 Kinds of probate:
(a) Probate during the testator’s lifetime (this does not prevent the testator from revoking his probated will or from
making another one).
(b) Probate after the testator’s death.

1. POST MORTEM – after the testator‟s death

2. ANTE MORTEM – during his lifetime, features:
 Easier for the courts to determine mental condition of a testator
 Fraud, intimidation and undue influence are minimized
 Easier correction of formal defects in the will
 Once a will is probated ante mortem, the only questions that may remain for the courts to decide after the testator‟s
death will refer to the intrinsic validity of the testamentary dispositions.

D. Issues in Probate Proceedings

E. Effect of Probate
Mercado vs Santos, 66 Phil 215- As long as there has been FINAL JUDGMENT by a court of COMPETENT
JURISDICTION, and the period for filing a petition for relief (Rule 38, Secs. 2 and 3, Rules of Court) has expired
without such petition having been submitted, the PROBATE PROPER (or allowance) of the will is binding upon the
WHOLE WORLD (being a proceeding in rem) insofar as TESTAMENTARY CAPACITY (at least 18; sound mind) and
DUE EXECUTION (including all formalities and absence of any ground for disallowance) are concerned. (See Art.
838, last paragraph).
-In fact, the order allowing probate of the will is not interlocutory and is, therefore, immediately appealable.
-An order determining the distributive share of the estate to which a person is entitled is, of course, appealable,before
final judgment.
-In no case is the judgment conclusive on matters such as ownership of property.

F. Disallowance of a Will (Art 839);

DBP vs CA, 494 SCRA 25;
Pascual vs Dela Cruz, 28 SCRA 421; - FACTS: A will was drafted by a lawyer, who is the nephew of X, the
beneficiary in a will executed by Y. Is there a presumption here of undue influence?
HELD: No. The presumption that undue influence exists from the fact that the beneficiary participates in the drafting
or execution of the will favoring him, is of no consequence.
Sim, Jr. vs CA, 428 SCRA 459;
Maninang vs CA, 114 SCRA 478;
Pecson vs. Coronel, 45 Phil 216.- The grounds given in Art. 839 are exclusive, thus, no other
ground can serve to disallow a will.

Art. 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of
affixing his signature thereto. (n)

Expound
1) and 2)- have been discussed on the subject of testamentary capacity and formalities required.
3) The Ground of Force, Duress, Fear or Threat
(a) These grounds connote the idea of coercion, mental or physical
(b) While their presence in a contract renders it voidable (and therefore susceptible of ratification), their presence in a
will renders the will VOID.
4) The Ground of Undue and Improper Pressure and Influence- Undue influence connotes the idea of coercion by
virtue of which the judgment of the testator is displaced, and he is induced to do that which he otherwise would not
have done.
5) The Ground of Fraud- Fraud is the use of insidious machinations to convince a person to do what ordinarily he
would not have done. For fraud to vitiate a will, there must be intent to defraud.
6) The Ground of Mistake or Lack of Testamentary Intent Insofar as the Document Is Concerned
Example: A man signed a document not believing it to be a will. This mistake is a ground for disallowance.

Revocation vs. Disallowance- Revocation is a voluntary act of the testator, while disallowance is given by judicial
order.

10. CONCEPT OF INSTITUTION OF HEIR (Art 840)

Art. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are
to succeed him in his property and transmissible rights and obligations. (n)

(a) Institution being a voluntary act, cannot be allowed to affect the legitime.
(b) In general, the provisions on “institution” are applicable to devises and legacies.
(c) There can be an instituted heir only in testamentary succession (for the heir in intestate succession is called legal
or intestate heir).
(d) A conceived child may be instituted, if the conditions in Arts. 40 and 41 are present.

Requisites for a VALID Institution

(a) The will must be EXTRINSICALLY VALID.
(b) The institution must be valid INTRINSICALLY. (The legitime must not be impaired, the heir must be certain or
ascertainable; there should be no preterition
(c) The institution must be EFFECTIVE (no predecease, no repudiation by the heir, no incapacity of the heir

A. Requisites (Art 841)

Art. 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not
comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be
incapacitated to succeed.

In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder
of the estate shall pass to the legal heirs.

A will, unless otherwise defective, is valid, even if:

(a) there is no institution of heir
(b) the instituted heir is given only a portion of the estate
(c) the heir instituted should repudiate or be incapacitated to inherit

Ex: T died, giving nothing in his will to his brother B, and instituting his friend F. If F refuses to accept, or is
disqualified to inherit, B as sole legal heir gets the estate without prejudice to the remaining effective provisions of the
will.

Even if the will does not contain any testamentary disposition, it will be formally valid provided it complies with all the
formal requisites. This is in keeping with the character of wills as dispositive of property under Art783.

HOW MUCH CAN BE DISPOSED OF BY WILL?

1. No Compulsory Heirs – Entire hereditary estate
2. There are Compulsory Heirs – the disposable portion or the net hereditary estate minus the legitimes.

 The amount of the legitimes depends on the kinds and number of compulsory heirs. Various combinations are
possible and so the amount of disposable portion is also variable.

 If the testator disposes by will of LESS than he is allowed to, there will be MIXED succession –
 Testamentary succession as to the part disposed of by will, and
 Intestate succession as to the part not disposed of by the will.
 The legitimes, of course, pass by strict operation of law.

B. Limited power of Disposition (Art 886)

Art. 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for
certain heirs who are, therefore, called compulsory heirs.

Purpose of Legitime:
(a) To protect the children and the surviving widow or widower from the unjustified anger or thoughtlessness of the
other spouse — this is the purpose of the legitime.
(b) If there are no compulsory heirs, it follows that there can be no legitime.
(c) Legitime may be received from two aspects: first as a right; and second, as the property itself. This means that
when a person refers to his legitime from his father, he talks either of the right to succeed to a certain portion of the
inheritance; or he may be referring to the actual property itself.
(d) The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law.
(e) Even if a testator does not want to make a compulsory heir an heir, he cannot do so, because this limitation is
imposed upon him directly by the law.

This article gives the statutory definition of legitime.

C. Rules on designation of an heir (Art 843, 844, 845)

Art. 843. The testator shall designate the heir by his name and surname, and when there are two persons having the
same names, he shall indicate some circumstance by which the instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he designate him in such manner that there
can be no doubt as to who has been instituted, the institution shall be valid.

How Designation of Heir is Made

Allowable institutions:
(a) to “Edgie Boy Paras”
(b) to “Adobo” or “Pacitos” (if this be the nickname of the heir intended, and the testator knows him by such name).
(c) to “my friend, Liwayway”
(d) to “my brother” (if there be only one)
(e) to “the children of my friend Guitarist Chet Atkins” (this is all right, even if the names of the children be omitted)

In the following cases, no one inherits because there is a doubt as to who is being instituted:
(a) “to my classmate in IV-A, Jose” (if there be two Joses)
(b) “to my brother-in-law who is studying Criminology” (if there be two such brothers-in-law)

REQUIREMENT FOR DESIGNATION OF HEIR

 The heir, legatee or devisee must be identified in the will with sufficient clarity to leave no doubt as to the testator‟s
intention.
 The basic rule in testamentary succession always is respect for and compliance with the testator‟s wishes.

The designation of name and surname is DIRECTORY. What is required is that the identity of the designated
successor be sufficiently established. This is usually done by giving the name and surname, but there are other ways
as can be gleaned from Art843 par2, such as to one‟s „eldest first cousin‟.

 If there is any AMBIGUITY in the designation, it should be resolved in light of Art789 – by the context of the will and
any extrinsic evidence available, except the testator’s oral declarations.
 If it is not possible to resolve the ambiguity, the testator‟s intent becomes indeterminable and therefore intestacy as
to that portion will result.

Art. 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is
possible, in any other manner, to know with certainty the person instituted.

If among persons having the same names and surnames, there is a similarity of circumstances in such a way that,
even with the use of the other proof, the person instituted cannot be identified, none of them shall be an heir. (773a)

Examples:
(a) “My brother, Eduardo” will mean “my brother, Edgardo” if there is no brother named Eduardo, and one brother
named Edgardo.
(b) “Enrique, Gloria and Ramon del Rosario, natural children of Don Clemente del Rosario” — here, Enrique and
Ramon will inherit, even if they are not natural children, for this latter circumstance is merely an additional description
of persons already well-identified.

Misdescription may be corrected even by extrinsic evidence (“any other manner”) but NOT by oral declarations of the
testator.

“My stout cousin, Jorge.” If there be three stout cousins named Jorge, the impossibility of identification renders the
institution void; hence, no one will get.

Art. 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his
identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a)

Ex: (a) A instituted “my friend.” If A has many friends, the disposition is void, for lack of certainty.
(b) A instituted “my student in IV-A who will get the highest grade in Civil Law among his classmates in the bar of
2004.” This is valid because of the determining circumstance.

“Unknown person” means one who cannot be identified from the will; not one who is a stranger to the testator

The determining event or circumstance may occur before or after the testator’s death. This is so, since the law does
not distinguish. Moreover, a contrary doctrine would frustrate the testator’s will.

This article refers to a successor whose identity cannot be determined because the designation in the will is so
unclear or so ambiguous as to be incapable of resolution.

 This does not refer to one with whom the testator is not personally acquainted. The testator may institute
somebody who is a perfect stranger to him, provided the identity is clearly designated in the will

Example of class institution- “All the Ateneo fourth year law students for the school year 2003-2004.’’ This is valid
provided all are capacitated: those incapacitated will naturally not inherit.

Special Kinds of Class Institutions

(a) of the poor in general. (Art. 1030).
(b) relatives of the testator. (Art. 959).
(c) a person and his children. (Art. 849).
(d) brothers and sisters of the full and half-blood. (Art. 848).
(e) the institution of descendants or relatives of a legatee.

D. Rules on interpretation of institution of heirs (Art 845, 848, 849, 959)

Art. 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his
identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. – see
above
Art. 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half
blood, the inheritance shall be distributed equally unless a different intention appears.

Old Code — In TESTAMENTARY succession, the brother of the full blood gets DOUBLE the share of brother of the
half blood.
New Civil Code — In TESTAMENTARY succession, the shares are the SAME, unless a different intention appears.

I instituted the following as my heirs:

A — my full-brother
B — my half-brother
C — my step-brother
D — my brother-in-law
E — my illegitimate brother (illegitimate child of my father).
How much will each get if the estate is P100,000?
ANS.: Each gets P20,000 (same share). While the law mentions only the full and the half-brother, it is evident that the
others may be considered in the same category as strangers, making Art. 846 applicable.

Art848 only applies to testamentary succession, wherein siblings, regardless of whether full or half blood, get equal
shares except if a different intention of the testator appears.

 In INTESTACY, the rule is different. The applicable provision is Art 1006 which establishes a proportion of 2:1
between full and half blood brothers and sisters, but without prejudice to the rule prohibiting succession ab intestato
between legitimate and illegitimate siblings. [Art992]

Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the
former shall be entitled to a share double that of the latter.

Art. 992. An illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father
or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

Art. 849. When the testator calls to the succession a person and his children they are all deemed to have been
instituted simultaneously and not successively.

(a) “His children” refers not to the children of the testator, but to the children of the person instituted also as an heir.
(b) T instituted A and A’s two children to an estate of P30,000. Each of the three heirs gets P10,000 all at the same
time

“Deemed” here means presumed, hence, if a contrary intention is present (that is, to institute them successively), said
intention must prevail, for the testator’s will, if not illegal, must be followed.

 Article lays down the same rule as Arts. 846 and 847.
 Equality and Individuality of institution are presumed.
 If the testator desires a different mode of apportionment, he should so specify.

Art. 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of
those nearest in degree.

The relatives must be within the fifth degree, since persons farther than this are no longer considered relatives. It is
evident that relatives by affinity are excluded.

The nearer in degree excludes the farther. Hence, those in the 3rd degree for example exclude the farther.

the right of representation does not exist.

Ex: A testator gave all of his cash assets to “the relatives of my wife.” Can Art. 959 apply to this will? No because the
law speaks of the testator’s relatives. The provision regarding “those nearest in degree” cannot be applied.

(see table in book)

This article is misplaced because it applies not just to legatee/devisees but to all testamentary heirs as well. It should
be placed under the chapter on “Institution of Heir.”

E. Effect of Falsity of Cause (Art 833)

Art. 833. A revocation of a will based on a false cause or an illegal cause is null and void.

-one of the aspects of “dependent relative revocation,” or more properly, at least for the purpose of this Article, “a
revocation made under a mistake.”

Example: T made a will making A his heir. T then learned that A was dead, so he made another will instituting B as
heir. If A turns out to be still alive, who inherits?
ANS.: A inherits, because the revocation was based on a false cause.

If the testator states in his second will: “I am not sure whether A is dead or still alive. However, I hereby revoke the
legacy to him which I made in my fi rst will.” Is there a revocation of the legacy?
ANS.: Yes. For here, he cannot be said to be proceeding upon an error.

Wills are revocable ad nutum or at the testator‟s pleasure. The testator does not need to have a reason to revoke the
will.
-However, precisely because the law respects the testator‟s true intent, this article sets aside a revocation that does
not reflect such intent.
REQUISITES FOR A FALSE / ILLEGAL CAUSE TO RENDER REVOCATION VOID –
1. CAUSE MUST BE CONCRETE, FACTUAL AND NOT PURELY SUBJECTIVE
 If a testator revoked on the stated ground that the heir was Ilocano and all Ilocanos are bad, it would just be
prejudice and the revocation is valid because it is based on a subjective cause.
2. IT MUST BE FALSE
3. THE TESTATOR MUST NOT KNOW OF ITS FALSITY
4. IT MUST APPEAR FROM THE WILL THAT THE TESTATOR IS REVOKING BECAUSE OF THE CAUSE WHICH
IS FALSE.

F. Shares of the Instituted Heirs

F.1 Heirs without designated shares (art 846)

Art. 846. Heirs instituted without designation of shares shall inherit in equal parts.

Ex: T instituted A and B as his heirs. T has no compulsory heirs. How much will A and B inherit?
ANS.: They will inherit equally, that is, 50-50. Reason for the law: The law merely expresses what it presumes to
have been the testator’s intention, for had he desired otherwise, he should have been more specific.

It is believed that the rule in Art. 846 cannot be applied absolutely in case one of those instituted is a compulsory heir,
inasmuch as institution in general refers merely to the free portion (free disposal). Hence, the legitime must first be
removed and what remains will be divided equally.

Ex: T instituted A (his son), B, and C, to an estate of P300,000. A gets as legitime 1/2 of the estate or P150,000. The
remaining P150,000 will be divided equally among A, B, and C. Thus, A gets a total of P200,000 – P150,000 as
legitime, P50,000 as instituted heir.

 GENERAL PRESUMPTION
 Equality in cases of collective designation.
 If the testator intends an unequal apportionment, he should so specify.

 The article applies only in testamentary succession, and only among testamentary heirs or devisees or legatees.
 It will NOT APPLY to an heir who is both a compulsory and a testamentary heir, for in that case the heir will get his
legitime and his testamentary portion.

 Not explicitly covered by this article is an instance where the shares of some of the heirs are designated and those
of others are not.

 Example – “I institute to ¼ of my estate A, B, C and D, of which A will get 1/3 and B is to get ¼.” The shares of C
and D are unspecified. Are they to divide equally the remaining portion of the ¼ of the estate, after deducting A‟s and
B‟s portions [The remainder is 5/12 of ¼?]

YES, because the article talks about heirs instituted without designation of shares. A and B have been designated
their shares, therefore Art846 applied to C and D.

F.2 Partial Institution (Art 851)

Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance,
legal succession takes place with respect to the remainder of the estate.

The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the
parts do not cover the whole inheritance. (n)

Art. 851 applies when there is a remainder or balance and there is NO INTENT to give all to the instituted heir or
heirs. If there is such INTENT, the remainder should be divided proportionately, applying Art. 852.

One heir instituted- If the heir is given 3/4, the remaining 1/4 should go to the legal heirs.
Several heirs instituted-
T instituted A to 1/3, and B to 1/4 of the inheritance
1/3 plus 1/4 = 7/12. The remaining 5/12 will go to the legal
heirs by way of intestate succession.

Aliquot- a portion of a larger whole; divide (a whole) into aliquots

There may after all be compulsory heirs whose legitimes will therefore cover part of the estate, the and the legitimes
do not pass by legal or intestate succession.

F.3 Proportionate increase of shares (Art 852)

Art. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or
the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance
and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be
increased proportionally.

In both articles 852 and 853 –

1. There are more than 1 instituted heir
2. Testator intended them to get the whole estate or the whole disposable portion
3. Testator designated a definite portion for each.
-Art. 852 applies only if the intent is to give all only to those instituted, otherwise legal succession takes place as to
the remainder, unless said remainder has been completely disposed of by way of legacies or devises. In other words,
while Art. 851 provides the general rule, Art. 852 states the exception.

Ex: “I hereby institute as my only heirs A, B, and C, each one to get 1/4 of my estate.” The 1/4 still undistributed
should clearly be divided proportionately in this particular case, equally among A, B, and C, since this is the evident
intention of the testator.

ART. 852 – the total of all the portions is less than the whole estate or the whole disposable portion. Therefore, a
proportionate increase is necessary.
 The difference cannot pass by intestacy because the testator‟s intention is clear to give the instituted heirs the
entire amount.

F.4 Proportionate reduction of shares (Art 853)

Art. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together
exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced
proportionally. (n)

-This is the counterpart of Art. 852. In case of excess, the share of each must be reduced proportionately.

ART. 853 – the reverse occurs, the total exceeds the whole estate or the whole disposable portion. Thus a
proportionate reduction must be made.