universality or entirety of the property rights

and obligations of a person who died.

Kinds of Succession
Testamentary Succession – Testamentary
succession is that which results from the
designation of an heir made in a will executed
in a form prescribed by law.
Legal or Intestate Succession – Legal or
CIVIL LAW REVIEW Intestate succession is that which takes place
by operation of law in the absence of a valid will
Wills and Succession Mixed Succession – Mixed succession is that
which is affected partly by will and partly by
SUCCESSION operation of law.

Kinds of Heirs
Article 774: Succession is a mode of acquisition by
The compulsory heirs – The compulsory heirs
virtue of which the property, rights, and obligations
are those who succeed by force of law to some
to the extent of the value of the inheritance, of a
portion of the inheritance in an amount
person are transmitted through his death to another
predetermined by law of which they cannot be
or others either by his will or by operation of law.
deprived by the testator, except by a valid
disinheritance.
Elements of Succession
The voluntary or testamentary heirs –
The decedent.
Voluntary or testamentary heirs are those who
The successors.
are instituted by the testator in his will to
o These are the heirs or those who are
succeed to the portion of the inheritance of
called to the whole or to an aliquot
which the testator can freely dispose of.
portion of the inheritance either by will
The legal or intestate heirs –Those who
or by operation of law.
succeed to the estate of the decedent who dies
o The devisees or legatees or the persons
without a valid will or to the portion of such
to whom gifts of real or personal
estate not disposed of by will
property are respectively given by
virtue of a will
Article 775:In this Title, "decedent" is the general
The death of the person.
term applied to the person whose property is
o However, a person may be presumed
transmitted through succession, whether or not he
dead for the purpose of opening his
left a will. If he left a will, he is also called the
succession. In this case, succession is
testator.
only of a provisional character because
there's always the chance that the
Article 776: The inheritance includes all the property,
absentee may be alive.
rights and obligations of a person which are not
o Article 390 of the Civil Code provides an
extinguished by his death.
absence of seven years it being
unknown whether or not the absentee
Article 777: The rights to the succession are
still lives, he shall be presumed dead
transmitted from the moment of the death of the
for all purposes except for those of
decedent.
succession. The absentee shall not be
presumed dead for the purpose of
**Succession opens from the moment of the death of
opening his succession till after an
the decedent.
absence of 10 years if he disappeared
after the age of 75 years an absence of
Article 778: Succession may be:
five years shall be sufficient in order
that his succession may be opened.
(1) Testamentary;
The inheritance.
o It is the subject matter of succession,
(2) Legal or intestate; or
and it includes property and
transmissible rights and obligations
(3) Mixed.
existing at the time of his death and
those which have accrued thereto
Article 779: Testamentary succession is that which
since the opening of succession.
results from the designation of an heir, made in a will
executed in the form prescribed by law.
Succession v. Inheritance
Succession refers to the legal mode by which Article 780: Mixed succession is that effected partly
inheritance is transmitted to the persons by will and partly by operation of law. (n)
entitled to it; while Inheritance refers to the
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.
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.
WILLS
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.
Discussion:
The execution of a will must be in writing. Every
will must be in writing pursuant to Article 804
of the Civil Code.
The right to make a will is purely statutory. This
is stated in Article 783 when it provides that a
person is only permitted with the formalities
prescribed by law to dispose of his estate
effective upon his death through a will the
formalities required by law must be complied
with the formalities provided for under Articles
804 to 819 of the New Civil Code.
The execution of a will is to control to a certain
degree the disposition of his estate. The power
of the testator to dispose of his estate is
subject to the limitations provided under the
rules on legitimes.
The disposition of his estate takes effect after
the after his death; such disposition can be
done either:
o Directly – by the institution of heirs or
designation of devisees or legatees and
the property or share they are to
receive or
o Indirectly – by validly disinheriting
those who would otherwise inherit by
operation of law.
The disposition of his estate will take effect
after his death.
A will is a disposition mortis causa, or it takes
effect only upon the death of the testator.
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.
Discussion:
This refers to one of the characteristics of a will:
It is purely personal.
The other characteristics of a will are:
o It is a free act – without violence, fraud,
or deceit.
o It is essentially revocable – revocability
springs from the fact that the will does
not take effect except upon the death
of the testator up to that moment of
such death the mind of the testator
may still change, he may therefore
revoke what he has already expressed
as his will and substitute his new
wishes or desires in as much as that
which has been previously expressed
has not yet taken effect.
o It is formally executed – the testator
must have testamentary capacity. The
making of a will is a unilateral act heirs
cannot accept while the testator is still
alive.
o It is an act mortis causa or one to take
effect upon the death of the testator.
o It is purely statutory.
The making of a will is purely a personal act. As
a consequence of which, the law provides now
that the making of a will cannot be left in whole
or in part to the discretion of a third person.
That the making of will cannot be
accomplished through the instrumentality of
an agent or attorney. the testator cannot make
a testamentary disposition in such a manner
that another person has to determine whether
or not it is to be operative (Article 787, Civil
Code).
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.
Discussion:
It has been held, that it is the making of the
disposition or the exercise of the disposing
power that is not subject to delegation. The
testator cannot substitute the mind or will of
another for his own. Hence the mere
mechanical act of drafting the will may be done
by a third person because this does not fall
within the prohibition.
Under Article 785 these matters are
testamentary in nature they constitute
expressions of the will or disposition of the
testator hence pursuant to Article 784 they
cannot be delegated to a third person.
The following may not be delegated:
o The designation of heirs, devisees, or
legatees.
o The duration or efficacy of such
designation including such things as
conditions terms or substitutions; or
o The determination of the portions they
are to receive when referred to by
name
De Vera, P | 2
 The exceptions to this non-delegability rule are
the following. The testator may validly
delegate to a third person the following:
o The manner of distribution of specific
property or sums of money that
testator may leave in general to
specified classes or causes (Art. 786,
CC) provided, that the testator has
already determined the property or
amount of money to be given.
o The designation of the persons,
institutions, or establishment to which
such property or sums are to be given
or applied. Provided that the stator has
already determined the class or cause
to be benefited.
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.
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.
Discussion:
Articles 785 and 787 prevent the delegation of
the exercise of testamentary discretion as to
whom and how much is to be given.
In the cases provided under Article 786, there
is no delegation of the will or testamentary
disposition. The testator has already expressed
his will by leaving specific property or sums of
money in general to specified classes or causes.
The third person entrusted to make the
distribution to the extent of choosing the
persons, institutions, or establishments to
which the property or money will be given or
applied does not make any disposition. It
simply carries out details in the execution of
the testamentary disposition made by the
testator himself in his will. Such delegation is
allowed because the testamentary discretion
has already been exercised and what is merely
delegated is the implementation of such
discretion this is considered ministerial in
nature.
When the class institution is too broad, the law
already provides the limits. For instance:
o If the beneficiaries of the estates are
the poor – The law will interpret such
provision as the poor living in the
locality where the testator lived.
o If the provision states to charity – The
law will divide the amount in half and
give half to the local government for
public schooling and charitable works
and the other half will go to the
conference of the testator’s church to
be used for whatever the church
wants.
Under article 787, to delegate a third person
the power to determine whether or not a
testamentary disposition is to be operative is in
effect delegating the power to make the
testamentary disposition and this is not
permitted pursuant to the general rule laid
down in Article 784. In such cases, not only the
delegation is void, but the testamentary
disposition also whose effectivity will depend
upon the determination of the third person is
the one which cannot be made. The disposition
itself is considered as void.
RULES OF CONSTRUCTION AND
INTER PRETATION
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.
Discussion:
Under the rules for the interpretation of wills,
all rules of construction are designed to
ascertain and to give effect to that intention of
the testator.
Testate succession has always been preferred
over intestacy.
Doubts should be resolved in favor of testacy,
and that intestacy should be avoided, and the
wishes of the testator should prevail.
Substance rather than form must be regarded,
and the instrument should receive the most
favorable construction to accomplish the
purpose intended by the testator.
The intention of the testator is always the
controlling factor. It has been held that the
object of construction of the will is to sustain it
if legally possible.
When the language of the testamentary
disposition, however, is plain and
unambiguous, courts are not permitted to rest
it from its natural meaning in order to save it
from nullity.
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.
De Vera, P | 3
Ambiguities in the Will
Under article 789 it refers to ambiguities in the
will. The ambiguities in the will can be:
o Patent or extrinsic ambiguity; or
o Latent or intrinsic ambiguity.
Ambiguities, whether latent or patent, shall be
resolved as follows:
o By determining the intention of the
testator.
o By examining the words of the will;
and/or
o By resorting to parole or extrinsic
evidence.
What is a latent or intrinsic ambiguity?
Latent or intrinsic ambiguity – It is the kind of
ambiguity which cannot be seen from a mere
perusal of the will, but which appears only
upon consideration of extrinsic circumstances.
It is an ambiguity not apparent on the face of
the will. It may exist when there is an imperfect
description or when no person or property
exactly answers the description.
Example: One that does not appear on the face
of the will and is discovered only by extrinsic
evidence:
o For instance, that the testator states in
his will that he institutes his sister, but
it turns out that the testator has two
sisters; or
o Let us say, he provides that he gives his
house to a friend, but the stator has
two houses.
What is a patent or extrinsic ambiguity?
Patent or extrinsic ambiguity – An ambiguity
appears upon the face of the instrument when
the testator gives a device or legacy.
Example: For instance, “to some of the six
children of my brother Juan.”
Additional Notes:
Latent or intrinsic is one which cannot be seen
from a mere perusal or reading of the will, but
which appears only after considering extrinsic
circumstances.
The latent or intrinsic ambiguity may arise
either: when a will names a person as the
beneficiary of a gift or a thing, as the subject
matter of such gift, and there are two or more
persons that answer to such name, or two or
more things that meet such description.
Extrinsic evidence is admissible to show the
situation of the testator and all the relevant
facts and circumstances surrounding him at the
time of the making of the will, for the purpose
of explaining or resolving a patent ambiguity.
This includes evidence on the estate of his
property, the condition of his family, and other
matters which may introduce and enable the
court to construe the intent of the testator.
**The extrinsic evidence to explain ambiguities in a
will cannot include, however, oral declarations of the
testator.
Reason: The admission of oral declarations of the
testator whose lips have been sealed by death and
therefore can no longer deny or affirm the truth of
what witnesses may say he declared would create
confusion and give rise to false claims. Such oral
declarations are inadmissible whether made before or
after the execution of the will.
In resolving these ambiguities:
If it is a latent or intrinsic ambiguity, it can be
resolved from the context of the will or
extrinsic evidence, excluding the oral
declaration of the testator.
If it is a patent or extrinsic ambiguity, the words
of the will should be considered or the
circumstances under which the will was made,
but not the oral declarations of the testator.
Summary:
Latent = not obvious on the face of the will.
Patent = Obvious on the face 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 he was unacquainted with such technical sense.
Discussion:
Article 790 provides that 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 can be
ascertain.
The supreme law in succession is the intent of
the testator. All rules of construction are
designed to assert and give effect to that
intention of the testator.
It is only when the intention of the testator is
contrary to law, morals, or public policy, that it
cannot be given effect. To give effect to the
intention of the testator, words and provisions
in the will must be plainly construed in order to
avoid a violation of the testator’s intention and
real purpose.
In case there are technical words, the technical
sense of words if it is drafted by a skilled
draftsman, such as a lawyer, it should be
construed with some strictness emphasis
being placed upon their accepted technical
meaning. Where the will is prepared by persons
who have no knowledge of the law, they are to
be interpreted liberally, with reference to their
popular meaning or the meaning they would
De Vera, P | 4
 commonly have to a person in the situation of
the one who used them.
It was held that in case of holographic wills,
being usually prepared by one who is not
learned in the law, should be construed more
liberally than one’s drawn by an expert, and the
words and phrases employed in such
instruments should be interpreted according
to their ordinary acceptation even though they
may have a different technical legal meaning
where the circumstances surrounding the
execution of the will indicate that the testator
so intended.
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.
Discussion:
Effect should if possible be given to all words,
clauses, and provisions of the will, if they are
not inconsistent with each other or with the
general intent of the whole will take in its
entirety.
Where two constructions are possible, the one
disregarding a word or clause for the will, and
the other giving effect to the will as a whole, it
is the latter interpretation that must be
followed. No part of the will should be
discarded, unless in conflict with some other
part, in which case, that part will be enforce
which expresses the intention of the testator.
This is to prevent intestacy.
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.
Discussion:
Where a will has been executed, the
reasonable and natural presumption is that the
testator intends to dispose of all his property.
The presumption against intestacy is so strong
that courts will adopt any reasonable
construction of a will in order to avoid it.
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.
Discussion:
With respect to 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 the making of the will should it
expressly appear by the will that such was his
intention. This refers to after acquired
property.
Property acquired during the period between
the execution of the will and the death of the
testator is not included among the property
dispose of, except when a contrary intention
expressly appears on the will.
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.
Discussion:
When the testator does not state the extent of
the interest that he gives to the legacy or the
devisee in the property transmitted, it is
understood that his whole interest passes. But
the testator under the present article may
manifest his intention to convey a less interest.
Under Article 929, he may expressly convey a
larger interest. In such cases, it is the intention
of the testator that will be followed.
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.
Discussion:
Article 795 refers to the law on formal validity
of the will.
The validity of a will, as to its form, depends
upon the observance of the law in force at the
time it is made. The law governing the
execution and effect of wills may be amended
by the legislature subsequent to the death of
the testator - this does not affect the operation
of the will.
As the property passes on the death of the
testator, either to his heirs or next of kin by
intestate succession, or to the devisees and
legacies in case of a will, and as vested property
rights are not permitted to be taken away
without compensation and due process.
On the other hand, if the will was valid, or any
gift in the will took effect on the death of the
testator, the rights of the devisee or legacy
cannot be divested by any law passed
afterwards changing the requirements for wills
or for the validity of any gifts by them.
General rule is that the validity of the execution
of a will is controlled by the statute in force at
the time of the execution and a statute enacted
subsequent to the execution and prior to the
death of the testator, changing the rules
respecting the form of the instrument, the
capacity of the testator and the like has no
retroactive effect.
De Vera, P | 5
 With respect to the intrinsic validity, such
issues concerning: legitimes, capacity of the
heirs, those involving disqualification of certain
heirs, preterition, collation representation and
valid substitution. This will be governed by
Article 16 paragraph 2 of the New Civil Code
which provides that interstate and
testamentary successions, both with respect
to the order of succession and to the amount
of successional rights and to the intrinsic
validity of the 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 where said
property may be found.
The place of execution here has no effect,
whatever, upon the validity of the provisions of
the will. It is the law at the time when the
succession opens which must determine the
intrinsic validity of the provisions of the will,
because it is at this time that the rights are
transmitted to the heirs, devisees, or legacies.
The intrinsic validity of a will is determined by
the national law of the decedent, regardless of
the place where the will was executed or the
residence of the testator (Bellis v. Bellis, G.R.
No. L-23678).
Therefore, provision in the testator's will which
mandate the application of the laws of another
country, instead of his national law, is illegal
and it is without effect.
Article 795 refers to the formalities of the will
and the validity as to its form depends on the
observance of the law in force at the time the
will was made.
TESTAMENTARY CAPACIT Y AND INTENT
Article 796: All persons who are not expressly
prohibited by law may make a will.
Discussion:
The determination of testamentary capacity
has three components: (1) age, (2) soundness
of mind; and (3) express statutory prohibition.
The law presumes capacity to make a will. In
order that the person may be disqualified to
make a will, he must be expressly prohibited by
law.
A person under civil interdiction can make a
will. He is disqualified for dispositions of
property only, by an act inter vivos but not by
an act mortis causa.
Article 797: Persons of either sex under eighteen
years of age cannot make a will.
**Sex or gender is immaterial in determining the
capacity to make a will for as long as one is 18 years
and above, he or she can make a will.
Article 798: In order to make a will it is essential that
the testator be of sound mind at the time of its
execution.
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.
Soundness of Mind
Soundness of mind is determined at the time of
the execution of the will. This means that the
testator is able to execute his or her will with
an understanding of (1) the nature of the act,
such as the recollection of the property he
means to dispose of, (2) the persons who are
or who might reasonably be the objects of his
bounty, and (3) the manner in which it is to be
distributed among them.
It is sufficient if he or she understands what it
is about even if he or she has less mental
capacity than would be required to make a
contract.
Soundness of mind, for purposes of
determining testamentary capacity, does not
mean complete possession of mental and
physical faculties.
The testator must have mental capacity to
understand the nature and effect of his act. He
must know that the instrument is an act mortis
causa which will dispose of his property upon
his death.
That the preparation and the execution of the
will involves dispositions affecting his
properties to take effect upon his death.
The testator must have sufficient recollection
of his properties. He must be able to remember
the natural objects of his bounty and he must
have sufficient mental ability to make a
disposition of his property among the objects
of his bounty according to some plan which he
has formed in his mind.
There is no presumption of incapacity by
reason only of advance age.
One who is deaf or dumb and blind are not
prohibitions in making a will. There is no
presumption of incapacity from making a will
by reason of blindness alone.
The determination of soundness of mind of the
testator must be determined as of the
execution of the will. If he was not of sound
mind at that time, the will is invalid regardless
of his state of mind. Before or after such
execution, if he was of sound mind when the
will was made it will be upheld even if he should
later become insane and die in that condition.
De Vera, P | 6
**A person suffering from civil interdiction is
qualified to make a will. He is deprived of the power
to dispose of his properties through acts inter vivos
but not through acts mortis causa. The burden of
proving that the testator acted in lucid interval lies on
the person who maintains the validity of the will
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.
Discussion:
There must be conclusive proof of the mental
incapacity at the time that the testator
executed his will before the will may be set
aside on the ground of the mental incapacity of
the testator.
It was held that the testimony of subscribing
witnesses to a will concerning that the
testator’s mental condition is entitled to great
weight when they are truthful and intelligent.
The evidence of those presents at the
execution of the will and of the attending
physician is also to be relied upon.
Article 801: Supervening incapacity does not
invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity.
**The capacity of the person who leaves a will is to be
determined as of the time of the execution of such
will.
Article 802: A married woman may make a will
without the consent of her husband, and without the
authority of the court.
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.
Article 804: Every will must be in writing and
executed in a language or dialect known to the
testator.
Discussion:
This is with respect to the forms of will.
The legislature has the power to prescribe the
formalities to be observed in the execution of
a will.
The failure to comply with and satisfy the
statutory requirements as to the execution of
a will, the document will be denied probate.
The rule is that the intention of the testator
must govern. But this applies to the
interpretation of wills. It does not apply to the
execution of the will.
The liberalization of the manner of the
execution of a will is to give the testator more
freedom in expressing his last wishes.
But the sufficient safeguards and restrictions
to prevent the commission of fraud and the
exercise of undue and improper pressure and
influence upon the testator are assured by the
formalities in the execution of a will.
Kinds of Wills Allowed in the Civil Code
Ordinary or attested will; and
o Requires an attestation clause, an
acknowledgement before a notary
public.
Holographic or handwritten will.
o Must be entirely written, dated and
signed in the handwriting of the
testator.
**A nuncupative will is an oral will made by the
testator in contemplation of death. The new civil code
does not recognize nuncupative wills.
FORMS OF WILLS
Article 804: Every will must be in writing and
executed in a language or dialect known to the
testator.
The common requirements for both attested and
holographic wills are the following:
It must be in writing.
o A holographic will must be written by
the hand of the testator himself or
herself.
o In attested wills it is immaterial who
performs the mechanical act of writing
the will so long as the testator signs it
or has somebody sign his name in his
presence.
It must be in a language known to the testator.
o The language or dialect used in the will
must be known to the testator.
o It was held that when a will is executed
in a certain province or locality in the
dialect currently used in such province
or locality, there arises the
presumption that the testator knew
the dialect so used in the absence of
evidence to the contrary.
**SIXTO ACOP v. SALMING PIRAS – The Supreme
Court held that the decedent’s alleged will, being
written in English, a language unknown to said
decedent, cannot be probated, because it is prohibited
by the law, which clearly and positively requires that
they will be written in the language or dialect known
by the testator. The probate court denied the probate
of the will since it was in English where the testator was
De Vera, P | 7
an Igorot and the will was executed in Baguio city
where the testator lived and died, there was no
evidence that English is the language in the City of
Baguio and there is no positive proof that the testator
knew only the Igorot dialect and did not know English.
There is no statutory requirement that the will should
express that the testator knows the language or
dialect used. That fact may be established by extrinsic
evidence or proof aliunde, such as in one case, the
Supreme Court held that the failure of the petitioner's
witness to testify that the testator knew the language
in which the will was written, does not of itself suffice
to give the conclusion that this important requirement
has not been complied with when there is enough
evidence on record which supplies the technical
omission. Example, where the will is in Spanish, the fact
that the testatrix was a mestiza Espanol married to a
Spaniard made several letters in her own handwriting
written in Spanish, all of this gave rise to the
presumption that she knows Spanish which
presumption would stand unless the contrary is
proved.
Article 805: Every will, other than a holographic will,
must be subscribed at the end thereof by the testator
himself or by the testator's name written by some
other person in his presence, and by his express
direction, and attested and subscribed by three or
more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write
his name and the instrumental witnesses of the will,
shall also sign, as aforesaid, each and every page
thereof, except the last, on the left margin, and all
the pages shall be numbered correlatively in letters
placed on the upper part of each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under
his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to
the witnesses, it shall be interpreted to them.
The object of the solemnities surrounding the
execution of a will:
To close the door against bad faith and fraud.
To avoid substitution of wills and testaments.
To guarantee their truth and authenticity.
**The fact that the will was executed in a language
known to the testator NEED NOT be stated in the
attestation clause. This fact can be established by
extrinsic evidence or evidence aliunde.
**This rule does NOT apply to witnesses in a notarial
or attested will because the witnesses do not need to
know the contents of the will. The attestation clause,
on the other hand, must be understood by the
witnesses even if it is in a language not known to
them.
Discussion:
The body of the will must be in a language
known to the testator.
The attestation clause need not be in a
language known to the testator.
With respect to the witnesses, they need not
know the language in which the attestation
clause is written. It is only required to know the
contents thereof. Meaning, that if that the
attestation clause is in a language not known
to the witnesses, it shall be interpreted to
them.
The will must be signed at the end thereof by
the testator himself or by the testator’s name
written by another person in his presence and
by his express direction.
The signature need not be the complete
signature. It is not essential to the validity of
the will. For greater authenticity that the status
customary signature is enough. Since the law
does not require his full signature, the initials or
even a thumb mark by the testator may be
deemed sufficient to comply with the
requirement provided it is his customary
signature.
**JOSE S. LOPEZ v. AGUSTIN LIBORO – The testator
affixed his thumbmark to the instrument instead of
signing his name. The reason for this was that the
testator was suffering from "partial paralysis." While
another in testator's place might have directed
someone else to sign for him, as appellant contends
should have been done, there is nothing curious or
suspicious in the fact that the testator chose the use
of mark as the means of authenticating his will. It was
a matter of taste or preference. Both ways are good.
A statute requiring a will to be "signed" is satisfied if
the signature is made by the testator's mark.
**In notarial wills, subscription by fingerprint is
allowed as long as it is voluntarily made but not in
holographic wills given the explicit requirement for a
holographic will to be entirely written, dated and
signed with the hand of the testator.
**ROSARIO GARCIA vs. JULIANA LACUESTA – The
Supreme Court ruled that the attestation clause is
fatally defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to write the
testator’s name under his express direction, as
required by Section 618 of the Code of Civil Procedure.
Petitioner’s argument that such recital is unnecessary
because the testator signed the will himself using a
cross mark which should be considered the same as a
thumbmark (which has been held sufficient in past
cases) is not acceptable. A cross mark is not the same
De Vera, P | 8
as a thumb mark, because the cross mark does not
have the same trustworthiness of a thumb mark.
The purpose of the signature is to authenticate
the will. The placement of the signatures of
both the testator and of the witnesses as
required under this provision of the New Civil
Code, must be found at the logical end of the
will. The logical end of the will is after all the
significant property dispositions in the will. This
is to ensure that there will be no insertions of
other property dispositions not belonging to
the testator.
The signature at the end of the will signifies the
completion of intent and confirmation to all
the dispositions found above.
It is mandatory that there must be the signing
on every page in the presence of the witnesses.
The test of presence is not whether they
actually saw each other sign, but whether they
might have seen each other sign had they
chosen to do so considering their mental and
physical condition and position in relation to
each other at the moment of the inscription of
each signature.
The place of the signature is merely directory.
It should be placed at the left margin. However,
the signature can be affixed anywhere on the
page. Each and every page except the last page
must be signed by the testator or by the person
requested by him to write his name and by the
instrumental witnesses of the will on the left
margin.
Signatures on the left margin must be placed
on each and every page of the will.
Each and every page of the will must be
numbered correlatively in letters placed on the
upper part of each page.
The signatures on the left-hand corner of every
page signify, among others, that the witnesses
are aware that the page they are signing forms
part of the will. On the other hand, the
signatures to the attestation clause establish
that the witnesses are referring to the
statements contained in the attestation clause
itself.
It is mandatory that there must be pagination
by means of a conventional system. It is merely
directory that the pagination will be in letters
on the upper part of each page.
**The question whether the testator and the
subscribing witnesses to an alleged will sign the
instrument in the presence of each other does not
depend upon proof of the fact that their eyes were
actually cast upon the paper at the moment of its
subscription by each of them, but whether at that
moment existing conditions and the position of the
parties, with relation to each other, were such that by
merely casting their eyes in the proper direction they
could have seen each other sign.
**If the entire document consists only of two sheets,
the first containing the will and the second, the
attestation clause, there need not be any marginal
signatures at all
Attestation and Subscription
Attestation is an act of witnessing execution of
will by the testator in order to see and take
note mentally those things are done which the
statute requires for the execution of a will and
that the signature of the testator exists as a
fact.
Attestation clause need not be written in a language
or dialect known to the testator nor to the witnesses.
Since it does not form part of the testamentary
disposition, the attestation clause need only be signed
by the witnesses and not by the testator as it is a
declaration made by the witnesses (1st)
In ICASIANO v. ICASIANO the Supreme Court
held that the inadvertent failure of one witness
to affix his signature to one page of a
testament, due to the simultaneous lifting of
two pages in the course of signing, is not per se
sufficient to justify denial of probate.
Impossibility of substitution of this page is
assured not only the fact that the testatrix and
two other witnesses did sign the defective
page, but also by it bearing the coincident
imprint of the seal of the notary public before
whom the testament was ratified by testatrix
and all three witnesses. The law should not be
so strictly and literally interpreted as to
penalize the testatrix on account of the
inadvertence of a single witness over whose
conduct she had no control, where the purpose
of the law to guarantee the identity of the
testament and its component pages is
sufficiently attained, no intentional or
deliberate deviation existed, and the evidence
on record attests to the full observance of the
statutory requisites.
In CRUZ v. VILLASOR the Supreme Court held
that the notary public cannot be considered as
the third instrumental witness since he cannot
acknowledge before himself his having signed
the said will. An acknowledging officer cannot
serve as witness at the same time.
**Subscription on the other hand, is the manual act of
instrumental witnesses in affixing their signature to
the instrument.
We must distinguish an attestation signature from a
subscription signature.
ATTESTATION SUBSCRIPTION
Is an act of the senses Act of the hand
Mental act Mechanical act
Its purpose is to render A subscription signature is
available proof during the for purposes of
probate that such will had identification
De Vera, P | 9
 been executed in
accordance with the
formalities prescribed by
law.
The attestation signature is Subscription is found at the
found after the attestation left side margin of every
clause at the end of last page of the will
page of the will.
Name in lieu of Signature
If it is the name of the testator that displays in
lieu of his or her signature instead of a
signature that the testator’s name must appear
at the end of the will written by some person in
the presence of the testator and by his
expressed direction, the person writing that
the testator’s name needs not place his own
signature.
The law merely requires the name of the
testator.
In the case of LUCIO BALONAN v. EUSEBIA
ABELLANA, a will subscribed at the end thereof
by some person other than the testator in such
manner that the signature of said person
appears above the typewritten statement "Por
la Testadora Anacleta Abellana . . . Ciudad de
Zamboanga," may not be admitted to probate
for failure to comply with the express
requirement of the law that the testator must
himself sign the will or that his name be affixed
thereto by some other person in his presence
and by his express direction. The law requires
the name of the testator written at the end of
the will not the phrase containing the name of
the testator.
The person signing should not be one of the
attesting witnesses unless there are more than
three other witnesses.
Another requirement in an attested will is that each
and every page of the will must be numbered
correlatively in letters placed on the upper part of
each page (2nd).
This is to prevent fraud, substitution or to
detect loss of any page.
Substantial compliance is sufficient.
The next requirement for an attested will is that each
and every page must be signed by the testator or by
the person requested by him to write his name and by
the instrumental witnesses in the presence of each
other on the left margin of the will except the last
page (3rd).
The signature may be on the right.
It may be on top or at the bottom of the margin
of the page of the will.
Meaning of “in the presence of”
The presence of the witnesses does not simply
mean physical presence in the vicinity of the
place of the execution of the will.
It depends upon the opportunity of the
witnesses to see the execution of the will by
merely casting their eyes had they opted to see
the same.
In NERA v. RIMANDO, The Supreme Court
emphasized that the true test of presence of
the testator and the witnesses in the execution
of a will is not whether they actually saw each
other sign, but whether they might have seen
each other sign, had they chosen to do so,
considering their mental and physical condition
and position with relation to each other at the
moment of inscription of each signature.
The position of the parties with relation to each
other at the moment of the subscription of
each signature, must be such that they may see
each other sign if they choose to do so.
The next requirement for an attested will, it must be
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another (4th).
What does credible mean?
Of Sound mind.
At least 18 years of age.
Able to read and write.
Not Blind, deaf or dumb.
**While a blind or deaf may not be witness, he could
be a testator in a notarial will.
Purpose of the Qualifications of the Witnesses
If the witnesses possess all the qualifications
and none of the disqualifications under the law,
the law assumes that they would likely give
credible testimony and the will be admitted to
probate.
The qualifications are meant to benefit the
testator.
In the case of VDA. DE RAMOS v. THE COURT
OF APPEALS, the issue involves whether or not
the last will and codicil were executed in
accordance with the formalities of the law,
considering two of the attesting witnesses
testified against their due execution while
other non-subscribing witnesses testified to
the contrary. The Supreme Court held that the
last will and codicil were executed in
accordance with the formalities required by
law. There is no question that each and every
page of the will and codicil carry the authentic
signatures of Eugenia Danila and the three (3)
attesting witnesses. Similarly, the attestation
claims far from being deficient, were properly
signed by the attesting witnesses. Neither is it
disputed that these witnesses took turns in
signing the will and codicil in the presence of
each other and the testatrix. Both instruments
were duly acknowledged before a Notary
Public who was all the time present during the
execution. There is no showing that the
lawyers had been remiss in their sworn duty.
Consequently, respondent court failed to
De Vera, P | 10
 consider the presumption of regularity in the
execution of the questioned documents. There
were no incidents brought to the attention of
the trial court to arouse suspicion of anomaly.
While the opposition alleged fraud and undue
influence, no evidence was presented to prove
their occurrence. With regard to the
testimonies of the witnesses against the due
execution of a will, it does not necessarily
disallow its probate. Although the subscribing
witnesses to a contested will are the best
witnesses in connection with its due execution,
to deserve full credit, their testimony must be
reasonable, and unbiased; if otherwise, it may
be overcome by any competent evidence,
direct or circumstantial.
As a rule, if any or all of the subscribing
witnesses testify against the due execution of
the will, or do not remember having attested to
it, or are otherwise of doubtful credibility, the
will may, nevertheless, be allowed if the court
is satisfied from the testimony of other
witnesses and from all the evidence presented
that the will was executed and attested in the
manner required by the law.
It has been regarded that the function of the
Notary Public is, among others, to guard
against any illegal or immoral arrangements in
the execution of a will. In the absence of any
showing of self-interest that might possibly
have warped his judgment and twisted his
declaration, the intervention of a Notary
Public, in his professional capacity, in the
execution of a will deserves grave
consideration.
In the attestation clause the witnesses not only
attest to the signature of the testatrix but also
the proper execution of the will.
Their signature implicitly certifies the validity of
the will and the truth of the facts stated
therein.
A blind or an illiterate can make a will but
cannot be a witness to a will.
The law requires the presence of at least three
witnesses in the execution of wills for the
primary purpose of safeguarding the
authenticity of the document being signed by
the testator since the testator who would
testify as to its genuineness and authenticity
would be already dead by the time the will is
presented for probate.
There is a need for witnesses to testify with
respect to the compliance with all the
requirements of law in the execution of the
testator's will.
An attested will must contain an attestation clause
which must state: 1) The number of pages where the
will is written; 2) That the testator signed in the
presence of the witnesses; and 3) The witnesses
signed in the presence of the testator and each other
(5th).
The purpose of the attestation is to preserve in
permanent form the records of the fact, to
have proof of compliance, and to minimize
commission of fraud or undue influence.
The attestation clause of an ordinary will does
not have to be written in a language or dialect
known to the testator.
The language used in the attestation clause
does not even have to be known to the
witnesses. It should however be translated to
them.
The attestation clause is a memorandum of
facts required by law to be made and signed by
the witnesses; that the testator has no
participation in the attestation clause; that his
signature at the bottom may be considered
merely inconsequential a mere surplus edge.
In TESTATE ESTATE OF CAGRO v. CAGRO –
found below the attestation clause was the
signature of the testator and not the signature
of the three witnesses. However, the page of
the of the attestation clause was signed by the
witnesses on the left margin. The will is void
since the signature on the left margin cannot
be considered as an attesting signature.
In re: Petition for the probate of the will of the
deceased LEONA SINGSON. MANUEL
SINGSON, vs. EMILIA FLORENTINO and
GONZALEZ v. GONZALEZ, there is an error in
the number of pages of the will as stated in the
attestation clause material to invalidate the
will. The Supreme Court held that error in the
number of pages of the will as stated in the
attestation clause is not material to invalidate
the will. The position of the court is in
consonance with the Doctrine of Liberal
Interpretation enunciated in Article 809 of the
Civil Code which reads: In the absence of bad
faith, forgery, or fraud, or undue and improper
pressure and influence, defects and
imperfections in the form of attestation or in
the language used therein shall not render the
will invalid if it is proved that the will was in fact
executed and attested in substantial
compliance with all the requirements of Article
805 (Celada v. Abena).
In the case of Al-wad v. Al-wad aside from
signing at the logical end of the will, the
testator must also sign at the left margin of
each and every page of the will. The placement
of the signature of the testator at the end of
the will is crucial to its validity, while the
placements of the signature on each and every
page on the left margin will not invalidate the
will. The difference between a subscribing and
attesting signature lies in the purpose of the
signature.
The signature as required in the first paragraph
of Article 805 is to attest, declare and confirm
that all the dispositions above it are off and by
the testator, while the signature as required in
De Vera, P | 11
 the second paragraph of Article 805 is merely
to identify each and every page of the will.
An attesting signature must be found below
the dispositions in the will as a matter of
necessity while an identifying or subscribing
signature may be placed anywhere in the will
preferably on the left margin as a matter of
style.
In Tabuada v. Rosal the Supreme Court held
that the signatures of the witnesses required at
the end of the will are for identification
purposes only similar to the signatures on the
left margin. As such, these signatures need not
be found at the end of the will or on the left
margin. The placement of the attesting
signatures of the testator must be found at the
logical end of the will otherwise, the will is void.
Placement of Attesting Signatures
The attesting signature of the witnesses must
be found at the end of the attestation clause
otherwise the will is void.
It must be noted that the law uses the terms
attested and subscribed. Attestation consists
in witnessing the testator's execution of the
will in order to see and take note mentally that
those things are done which the statute
requires for the execution of a will and that the
signature of the testator exists as a fact. On the
other hand, subscription is the signing of the
witnesses' names upon the same paper for the
purpose of identification of such paper as the
will which was executed by the testator.
Next requirement of an attested will; it must be
acknowledged before a notary public by the testator
and the witnesses (6th).
Article 806: Every will must be acknowledged before
a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of
the will, or file another with the Office of the Clerk of
Court.
The following are not essential:
The date.
Place of execution; and
The reading of the will to the witnesses.
**Only the attestation clause is interpreted to the
witnesses if the language is not known to them and
not the will itself.
The notary does not have to read the will
except if the testator is blind.
The notary public need not be present at the
time of the execution of the will.
The witnesses also need not appear before the
notary public at the same time
If the testator is deaf or a deaf mute, he must
personally read the will or he must designate
two persons to read or communicate the will to
him, but they must know the sign language.
Article 807: If the testator be deaf, or a deaf-mute, he
must personally read the will, if able to do so;
otherwise, he shall designate two persons to read it
and communicate to him, in some practicable
manner, the contents thereof.
Rules if the Testator is Deaf or Mute
If the testator is able to read, he must
personally read the will; or
If the testator is unable to read, he must
designate two persons to read it and
communicate to him, in some practicable
manner, the contents thereof.
**The notary public cannot be one of the attesting
witnesses because he cannot acknowledge his own
act.
Article 806: Every will must be acknowledged before
a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of
the will, or file another with the Office of the Clerk of
Court.
Discussion:
Article 806 refers to notarial wills or attested
wills.
When should acknowledgement before the notary
public be made?
The law does not provide a specific period but
the best time to have the will notarize is
immediately after the execution of the will.
Though the law does not require that both the
testator and the witnesses acknowledge
before the notary public at the same time, it is
best to have both of them together before the
notary public.
After the will is acknowledged before a notary
public the will is already considered complete.
Acknowledgement is essential for its formal
validity.
The notary public is not legally required to
either retain a copy of the will or file another
with the Office of the Clerk of Court and this is
to safeguard the secrecy of the contents of the
will during the lifetime of the testator.
What is the purpose of acknowledgement?
The purpose is to minimize fraud and exertion
of undue pressure and influence upon the
testator.
The testator acknowledges before the notary
public in order to certify his voluntariness in
executing the will.
The witnesses acknowledged before the
notary public to certify that they signed the
document without being coerced, threatened,
or hurt and that they signed because the
document is authentic based on their
attestation.
De Vera, P | 12
 This acknowledgement is done before an
independent notary - a person who must have
no interest in the will in order to ensure his or
her impartiality in ascertaining the free
execution of the will.
**Cruz v. Villasor – The Supreme Court held that the
notary public cannot be considered as the third
instrumental witness since he cannot acknowledge
before himself his having signed the said will. An
acknowledging officer cannot serve as witness at the
same time. The function of notary is to guard against
illegal arrangements would be defeated if he becomes
one of the witnesses as he would then be interested in
validating his own acts.
**Garcia v. Garcia – The will was denied probate
because it was acknowledged before the north
republic only by the testator and not by the witness or
witnesses thereby failing to comply with the
mandatory requirement of acknowledgement of the
will before a notary public by the testator and the
instrumental witnesses. Such requirement is
indispensable for the validity of the will.
Article 807: If the testator be deaf, or a deaf-mute, he
must personally read the will, if able to do so;
otherwise, he shall designate two persons to read it
and communicate to him, in some practicable
manner, the contents thereof.
Article 808: If the testator is blind, the will shall be
read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before
whom the will is acknowledged.
Discussion:
Failure to comply with this requirement would
invalidate the will.
With respect to the provision where the
testator is blind, the testator need not be
clinically blind.
Garcia v. Vasquez – The rationale behind the
requirement of reading the will to the testator when he
is blind or incapable of reading the will to himself as
well as if he is illiterate is to make the provisions known
to him so that he may be able to object if they are not
in accordance with his wishes.
Article 809: In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and influence,
defects, and imperfections in the form of attestation
or in the language used therein shall not render the
will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with
all the requirements of Article 805.
**A will is not rendered invalid by reason of defects or
imperfections in the form of attestation or in the
language used therein.
This provides a liberal interpretation of the will.
The attestation clause is essentially the act of
the witnesses over whom that the testator has
no control.
The contents of attestation clause to support a
valid will must contain the following:
o The number of pages upon which the
will was written.
o The fact that the testator signed the
will and every page thereof or caused
some other person to write his name
under his express direction in the
presence of the instrumental
witnesses.
o The witnesses witnessed and signed
the will and all of the pages thereof in
the presence of the testator and of one
another.
In cases of omissions in the will, if it can be
supplied by an examination of the will itself,
without the need of resorting to extrinsic
evidence it will not be fatal and,
correspondingly, would be allowed for
probate. However, evidence aliunde are not
allowed to fill a void in any part of the
document or supply missing details that should
appear in the will itself.
Article 810: A person may execute a holographic will
which must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to no
other form and may be made in or out of the
Philippines and need not be witnessed.
The requirements for a holographic wheel are the
following:
It must be in a language known to the testator
(article 804).
It must be entirely written dated and signed by
the testator. It is subject to no other form
(article 810).
A holographic will may be made in or out of the
Philippines.
It need not be witnessed.
Insertions, cancellations, erasures, or
alterations in the holographic will must be
authenticated by the full signature of the
testator, otherwise, the alterations, erasures,
cancellations are void but not the will itself
(article 814).
If there are dispositions written below the
signature of the testator, they must be dated
and signed in order to be valid (article 812).
When there are dispositions that are signed but
not dated, but the last disposition has a
signature and a date such date validates the
dispositions preceding it (article 813).
**In the probate of a holographic will, if it is not
contested, only the testimony of one witness who
knows the handwriting and signature of the testator
is needed.
De Vera, P | 13

**If the will is contested, at least three of such
witnesses are required, and in the absence of said
witnesses, expert testimony may be presented.
Gann v. Gap
The Supreme Court held that the holographic
will was not presented at probate and
therefore the Supreme Court held that a
holographic will may not be probated without
presenting the document in evidence since the
law regards the document itself as material
proof of authenticity. Obviously, when the will
itself is not submitted, the means of opposition
and of assessing the evidence are not available.
Take note however of rule 77 of the rules of
court, which allows proof and probate of a loss
or destroyed will by secondary evidence the
testimony of the witnesses in lieu of the
original document. This rule could not have
contemplated a holographic will by reason of
the very nature of a holographic will.
The execution and contents of a lost or
destroyed holographic will may not be proved
by the bare testimony of witnesses who have
seen or read such will. However, in a footnote,
the supreme court held that perhaps it may be
proven by a photo static or photographic copy,
even a mimeograph or carbon copy or by other
similar means if any, whereby, the authenticity
of the handwriting of the deceased may be
exhibited and tested. Unlike holographic wills,
ordinary wills may be proved by testimonial
evidence when lost or destroyed.
What is the purpose of the date in a Holographic will?
The date in a holographic will indicates the true
date of execution of the will which determines
the age of the testator and his soundness of
mind at the time of the execution of a will.
What if the date place is only for instance February
1961, is there compliance with article 810 of the civil
code?
Yes. As a general rule, the date in a holographic
will should include the day month and year of
its of its execution. However, when there is no
appearance of bad faith, fraud, undue
influence and pressure, and the authenticity of
the will is established, and the only issue is
whether or not the date February 1961
appearing on the will is a valid compliance with
article 810. Probate of the will should be
allowed under the principle of substantial
compliance.
What is the consequence of an incomplete date?
Incomplete date is sufficient if it does not
create a controversy. If it will create a
controversy, then a complete date is
necessary. Hence, if an incomplete date will not
create a controversy as to the applicable law or
age and sanity of the testator in determining
testamentary capacity, then it would be
deemed sufficient.
Article 811: In the probate of a holographic will, it
shall be necessary that at least one witness who
knows the handwriting and signature of the testator
explicitly declare that the will and the signature are
in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be
required.
In the absence of any competent witness referred to
in the preceding paragraph, and if the court deem it
necessary, expert testimony may be resorted to.
Discussion:
The potential grounds for opposing the will
during the probate are usually:
o The will is not in the testator's
handwriting.
o The lack of testamentary capacity of
the testator.
o The failure to comply with legal
formalities
As a general rule, these are the only issues that
the probate court should address during the
probate proper. This is the formalities in the
execution of the will.
After the probate order is issued, the
substantive issues are to be considered.
Substantive issues are: 1) Preterition; 2)
Impairment of legitimate; or 3) Disqualification.
In the probate of a holographic will, the only
issue that can arise in the probate of the will is
the genuineness of the handwriting of the
testator.
The one witness rule shall be applied in case of
uncontested wills and the Three-Witness rule in
contested wills.
Expert testimony may be resorted to in either
case upon the court's discretion.
In a notarial will, in order to address each and
every requirement of article 805, competent
testimony over a number of things is required
because some things do not take place during
the execution of the will and others which take
place during the execution of the will are not
indicated or necessarily indicated in the will
itself, and therefore testimonial evidence
depends heavily on the subscribing witnesses
and the notary public.
However, in a holographic will, the only issue
which arises in the probate of the will is the
genuineness of the handwriting since the only
requirement in such a will is that it is entirely
written, dated, and signed by the testator
himself
Article 812. In holographic wills, the dispositions of
the testator written below his signature must be
De Vera, P | 14
dated and signed by him in order to make them valid
as testamentary dispositions.
Discussion:
Article 812 permits addition of new dispositions
through the execution of another will. These
dispositions are independent of each other
such that the nullity of the second does not
cause the nullity of the first, and the nullity of
the first does not cause the nullity of the
second.
The second disposition is supported uh is
supposed to be an addendum but being dated
and signed stands also as a will on its own.
Additional dispositions however in a notarial
will if found below the signature of the testator
will make the whole will void because under
article 805, the signature of the testator must
be found at the end of the will. Should there be
new dispositions in a notarial will the same can
only be introduced through a codicil.
Three ways to amend a holographic will:
Add dispositions below the signature of the will
provided that said dispositions are also dated
and signed and everything is in the handwriting
of the testator himself it must be written by the
testator himself.
Insert additional matters or cancel dispositions
provided that the same are written and signed
by the testator himself without need of a date.
Execute a codicil which may either be a notarial
will or a holographic will.
Article 813: When a number of dispositions appearing
in a holographic will are signed without being dated,
and the last disposition has a signature and a date,
such date validates the dispositions preceding it,
whatever be the time of prior dispositions.
Discussion:
This refers to a situation where there are
several testamentary dispositions in a will
made by the testator presumably on different
dates which were signed but not dated, should
the last testamentary disposition be dated and
signed then all the dispositions above it would
be validated by this provision.
Article 814: In case of any insertion, cancellation,
erasure or alteration in a holographic will, the
testator must authenticate the same by his full
signature.
Discussion:
When it comes to amendment by cancellation
addition erasure or alteration done in a
holographic will, they can be done provided
that they are authenticated by the full
signature of the testator himself. The date is
not required because it is presumed that the
alteration to the will was made at the time or
date of its execution.
Any cancellation, addition, erasure, or
alteration must be authenticated by the
testator.
The failure to authenticate the same would
result in the nullity of the cancellation addition
erasure or alteration as if it was not written at
all.
The will would stand as it as it were prior to the
cancellation, addition, erasure, or alteration.
However, if the cancellation although not
authenticated nevertheless results in the
revocation of the will, then although not valid
as a cancellation, it is valid as a revocation.
What are the effects of the cancellation, addition,
erasure, or cancellation on the validity of the will?
If such were made by the hand of the testator
himself, and he has authenticated the same, it
alters the will accordingly without affecting the
will's validity.
If such were made by the hand of the testator
himself but was not authenticated by him then
they would be dimmed as if not written at all
and the will remains valid as before.
If such were made by the testator but not
handwritten as when they were type written,
whether or not authenticated by the testator,
the entire will is nullified because it is no longer
entirely written by the hand of the testator
himself.
If such were made by a stranger and that the
stator has authenticated the same, then the
entire will is nullified because it is no longer
entirely written by the hand of the testator.
If such were made by a stranger but was not
authenticated by the testator, then such
changes would be deemed as if not written at
all and the will remains valid as it was before.
**Any cancellation insertion erasure or alteration
which was not authenticated by the testator does not
affect his will. On the other hand, if it is done by a
stranger, and that the testator authenticates the
same, the will is void, since it is no longer entirely in
the handwriting of the testator
Article 815: When a Filipino is in a foreign country, he
is authorized to make a will in any of the forms
established by the law of the country in which he
may be. Such will may be probated in the Philippines.
Article 816: The will of an alien who is abroad
produces effect in the Philippines if made with the
formalities prescribed by the law of the place in
which he resides, or according to the formalities
observed in his country, or in conformity with those
which this Code prescribes.
Article 817: A will made in the Philippines by a citizen
or subject of another country, which is executed in
De Vera, P | 15
accordance with the law of the country of which he is
a citizen or subject, and which might be proved and
allowed by the law of his own country, shall have the
same effect as if executed according to the laws of
the Philippines.
Discussion:
Wills that are executed abroad, if it is executed
by a Filipino, it can be in any form established in
the country where he may be at the time of the
execution. This is article 815 of the civil code.
If it is executed by an alien the Will may be
executed in accordance with:
o Lex domicili article 816.
o Lex nationali or Philippine law.
o Lex loci celebrationes pursuant to
article 17 of the civil code.
Article 818: Two or more persons cannot make a will
jointly, or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person.
Article 819: Wills, prohibited by the preceding article,
executed by Filipinos in a foreign country shall not be
valid in the Philippines, even though authorized by
the laws of the country where they may have been
executed.
Discussion:
A joint will is a will executed by two or more
persons in the same instrument either for the
reciprocal benefit or for the benefit of a third
person.
Reciprocal or mutual wills provide that the
survivor of the testators will succeed to all or
some of the properties of each decedent.
Mutual or reciprocal wills are valid, but if made
in one instrument, they are void because this is
considered as a joint will, and it is in violation of
article 818 of the civil code.
Joint wills whether reciprocal or not are void. The
reason here are:
To allow as much as possible the secrecy a will
being a purely personal act, so the law
prohibits joint wills.
The law also prohibits joint wills in order to
prevent undue influence by the more
aggressive testator on the other testator.
In case of death of the testators at different
times probate would be harder if we allowed
joint wills.
Also, joint wills militate against the right of the
testatrix or the right of the testator to revoke
his will or her will at any time, such as by
revocation by tearing or burning.
**In case that the testators are husband and wife one
of them may be tempted to kill the other.
**A joint Will is void even if executed by a Filipino in a
foreign country where such will is allowed.
What about if the joint will be executed by foreigners?
If it is executed abroad and valid in the country
of execution, we should consider it also as valid
here pursuant to the rule of lex loci
celebrations.
If it is executed in the Philippines however it is
void because it is against our public policy.
WITNESSES TO WIL LS
Article 820: Any person of sound mind and of the age
of eighteen years or more, and not blind, deaf, or
dumb, and able to read and write, may be a witness
to the execution of a will mentioned in article 805 of
this Code.
Article 821: The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines.
(2) Those who have been convicted of falsification of
a document, perjury or false testimony.
Discussion:
The reason for the domicile requirement of a
witness is for purposes of expediency.
A will executed in the Philippines must have
witnesses domiciled in the Philippines. This is to
expedite the service of summons where the
witness is called to testify in probate, and it is
also for administrative convenience as it gives
assurance that the witness will be in the
Philippines during the probate. The reason for
the disqualification against those convicted of
falsification is because, the credibility here of
the witness is in issue.
Article 822: If the witnesses attesting the execution
of a will are competent at the time of attesting, their
becoming subsequently incompetent shall not
prevent the allowance of the will.
**The competence of witnesses is determined at the
time of the execution of the will.
Article 823. If a person attests the execution of a will,
to whom or to whose spouse, or parent, or child, a
devise or legacy is given by such will, such devise or
legacy shall, so far only as concerns such person, or
spouse, or parent, or child of such person, or any one
claiming under such person or spouse, or parent, or
child, be void, unless there are three other
competent witnesses to such will. However, such
person so attesting shall be admitted as a witness as
if such devise or legacy had not been made or given.
Who are the persons disqualified to inherit under this
provision of the civil code?
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 Any person who is a witness to a will and at the
same time an heir, devisee, or legacy in the
same will.
A spouse of the witness unless there is already
legal separation between them.
Parent of the witness, child of the witness, any
person claiming under the witness, his spouse
parent or child.
What is the reason for the disqualification?
The reason for the disqualification as to the
witness his spouse parent or child is that a
witness proves or attests to the due execution
of a will, and under this provision of the civil
code it if such witness or their above-
mentioned relatives will testify during probate,
they will consciously or unconsciously give
false testimony in order to protect his or her
interests. Otherwise, he will not be able to
inherit.
These kinds of witnesses under article 823 are
called loaded witnesses. For his testimony is
not something that one could rely upon. To
become a witness and a devisee or legacy at
the same time, is an open invitation to commit
perjury. As the person's claiming under the
witness his spouse or child, a third person who
is to receive a benefit from the witness heir, the
spouse, parent, or child of such witness heir, is
also disqualified for such third person will also
or may also give a favorable testimony as he
will be indirectly benefited.
The exceptions to these disqualifications are as
follows:
If the above-mentioned witnesses are
compulsory heirs but only with respect to their
legitimes
If there is a substitute witness as when there is
a fourth witness as long as there are 3 other
disinterested witnesses even the witness
disqualified under article 823 will be able to
receive that portion given to him by the will as
the requirement of the law has been complied
with. Such witness will inherit but will be
prevented from testifying considering that his
perceived perjured testimony.
Rule on Devisee or Legacy as Witness
With respect to the devisee, legacy to the
attesting witnesses, article 823 provides the
following rule: 1) The device or legacy is void
but the will is still valid; 2) If given to the spouse
parent or child of an attesting witness, the
legacy or device is also void, but the attesting
witness can still act as a witness if there are 3
other competent witnesses to the will, but if
the witness or his spouse parent or child is a
compulsory heir he will not lose his legitime.
Can compulsory heir be an attesting witness?
Yes, but any property given to him out of the
free portion is considered as void.
Can a notary public will acknowledge the will be a
witness?
No, because he cannot acknowledge
something before himself
Article 824: A mere charge on the estate of the
testator for the payment of debts due at the time of
the testator's death does not prevent his creditors
from being competent witnesses to his will.
**A charge referred to is a death of the testator which
will be paid even without a provision in the will during
the liquidation of the estate.
CODICI LS
Article 825: A codicil is a supplement or addition to a
will made after the execution of a will and annex to
be taken as part thereof by which dispositions made
in the original will is explained added to or altered.
What is a Codicil?
A codicil is a small will. It is a supplement or
addition to a will made after the execution of a
will and a next to be taken as part thereof by
which any disposition made in the original will
may be explained or added to or altered.
When must a codicil be made?
It is always made after the original will. It must
be made after the execution of a will. It must
be executed following the formalities of a will.
What is the effect of a codicil to the original will?
It is annexed and taken as part of that will and
it explains, adds, or alters the original will.
A codicil may be a notarial will or a holographic
will. Both notarial and holographic codicil may
revoke a notarial or holographic will.
**A valid will cannot be revoked by an invalid codicill
whether expressly or impliedly.
Article 826: In order that the codicil may be affected
it shall be executed as in the case of a will.
Article 827: If a will, executed as required by this
Code, incorporates into itself by reference any
document or paper, such document or paper shall
not be considered a part of the will unless the
following requisites are present:
(1) The document or paper referred to in the will
must be in existence at the time of the execution of
the will;
De Vera, P | 17
 (2) The will must clearly describe and identify the
same, stating among other things the number of
pages thereof;
(3) It must be identified by clear and satisfactory
proof as the document or paper referred to therein;
and
(4) It must be signed by the testator and the
witnesses on each and every page, except in case of
voluminous books of account or inventories.
Incorporation by Reference
This article refers to incorporation by reference
if a will executed as required by this code
incorporates into itself by reference any
document or paper.
What is meant by Incorporation by reference?
A will validly executed incorporates only by
reference, meaning without copying the whole
thing certain documents or papers especially
inventories and books of account to save time
and energy. This is what is meant by
incorporation by reference.
Requisites:
Such document or paper shall not be
considered a part of the will unless the
following requisites are present:
o The document or paper referred to in
the will must be in existence at the time
of the execution of the will;
o The will must clearly describe and
identify the same stating among other
things the number of pages thereof;
o It must be identified by clear and
satisfactory proof as the document or
paper referred to therein; and
o It must be signed by the testator and
the witnesses on each and every page
except in case of voluminous books of
account or inventories.
How is incorporation by reference done?
Incorporation by reference is done merely by
mentioning in the will that a certain document
is referred to thereto though not necessarily
attach to the will itself. The document or paper
referred to must be in existence at the time of
the execution of the will. Future papers,
therefore, cannot be incorporated by
reference. A statement to this effect need not
be stated in the will.
The will must clearly describe and identify the
document or paper especially the number of
pages thereof.
This requires a clear identification which must
be stated in the will aside from the number of
pages which has to be stated. It is best to state
the description of the document itself by
indicating its title or its nature. The document
or paper referred to must be identified by clear
and satisfactory proof as being the document
referred to in the will. This will be done by
parole evidence or evidence arguendo. This
second identification is necessary during
probate to substantiate the authenticity of the
document referred to in the will.
It is also necessary that the testator and the
witnesses must sign each and every page of the
paper or document except voluminous books
of account or inventories but the number of
pages must be stated. The purpose of this is to
prevent any insertion or deletion of pages.
REVOCATION OF WILLS
Article 828: A will may be revoked by the stator at
any time before his death. Any waiver or restriction
of this right is void.
Discussion:
A revocation is an act of the mind terminating
the potential capacity of the will to operate as
of the death of the stator manifested by some
outward and visible act or sign symbolic
thereof. It is an act to annul an existing will in
whole or in part wheels by their very nature are
ambulatory and inoperative till the death of the
testator.
The instrument does not pass a present
interest or right in the property and such right
or interest does not take effect until the death
of the testator. Prior to the death of the
dictator, it is entirely inoperative and is
ineffective for any purpose. This is the reason a
will is entirely revocable and may be revoked at
any time by the stator before he dies and with
or without cause.
Article 829: A revocation done outside the
Philippines, by a person who does not have his
domicile in this country, is valid when it is done
according to the law of the place where the will was
made, or according to the law of the place in which
the testator had his domicile at the time; and if the
revocation takes place in this country, when it is in
accordance with the provisions of this Code.
Governing Law in case of Revocation
If the revocation takes place in the Philippines,
whether the testator is domiciled in the
Philippines or in some other country –
Philippine Laws.
If the revocation takes place outside the
Philippines:
o By the testator who is domiciled in the
Philippines – Philippine laws.
o By the testator who is not domiciled in
the Philippines: Laws of the place
where the will was made; or Laws of
the place in which the testator had his
domicile at the time of revocation.
De Vera, P | 18

Article 830: No will shall be revoked except in the
following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the
will with the intention of revoking it, by the testator
himself, or by some other person in his presence, and
by his express direction. If burned, torn, cancelled, or
obliterated by some other person, without the
express direction of the testator, the will may still be
established, and the estate distributed in accordance
therewith, if its contents, and due execution, and the
fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of
Court.
Modes of Revoking a Will
If its contents and due execution and the fact
of its unauthorized destruction, cancellation,
or obliteration are established according to the
rules of court, there are three ways of
revocation:
o By implication of law;
o By some will, codicil, or other writing
executed as provided in the case of
wills; or
o By burning, tearing, cancelling, or
obliterating the will with the intention
of revoking it by the testator, himself
or by some other person in his
presence and by his express direction.
If burned, torn, cancelled, or
obliterated by some other person
without the express direction of the
testator, the will may still be
established and the estate distributed
in accordance therewith.
Revocation by implication or operation of law (1st
Mode)
This may be a total or a partial revocation. Only
specific provisions of the Will, will be revoked
by implication of law. This takes place when
after the execution of a will certain acts or
events take place rendering void the will totally
or partially. This presupposes a change of mind
on the part of the testator.
The instances where there is revocation by implication
or by operation of law are the following:
The nullity of legacies and devices by
transformation alienation or loss of the subject
matter of the legacy or device such as when the
testator sells, ordinates the thing given by way
of legacy or device (Article 957 of the civil
code).
In cases of legal separation, annulment of
marriage, and declaration of nullity of marriage
with respect to the property given to the guilty
spouse.
o Article 63 paragraph 4 of the family
code with respect to the degree of
labor legal separation provides that
where there is a decree of legal
separation, it shall disqualify the
offending spouse from inheriting from
the innocent spouse by intestate or
testate succession.
o Article 43 paragraph 5 of the family
code states that where the termination
of the subsequent marriage shall
disqualify the spouse who contracted
the subsequent marriage in bad faith
and it will disqualify him to inherit from
the innocent spouse by testamentary
and intestate succession;
o Article 44 of the family code, in cases
where both spouses of the subsequent
marriage acted in bad faith, all
donations made by one in favor of the
other are revoked by operation of law;
o Article 50 of the family code reiterates
the disqualification to inherit in cases
of marriages which are declared void
ab initio or annulled by final judgment
under article 40 and article 45 of the
family code.
When an heir legacy or device or device he
commits an act of unworthiness under article
1032. Regarding the incapacity of individuals to
succeed by reason of unworthiness such as
abundant or corruption of children, conviction
of an attempt against the life of the testator,
false accusation of a crime for which the law
prescribed imprisonment for six years or more,
those persons who should cause the testator
to make a will or to change one already made
through fraud, violence, intimidation, or undue
influence, and those persons who shall forge a
supposed will of the decedent.
When a credit given as a legacy is judicially
demanded by the testator. This is Article 936 of
the civil code in relation to Article 935
concerning legacies of remission against third
persons. The legacy of credit or remission of a
death shall lapse if the testator having made it
should bring an action against the debtor for
the payment of his debt even if such payments
should not have been affected at the time of
his death.
When one or some of the compulsory heirs are
pretreated or omitted in the will, the institution
of heirs is void but the legacies and devices
remain valid as long as the legitime is not
impaired (Article 854, Civil Code).
De Vera, P | 19