WILLS & SUCCESSION

Part I

4th
YEAR
REVIEW CLASS

ST. THOMAS MORE

SCHOOL OF LAW
WHAT IS SUCCESSION?

A mode of acquisition by virtue of

which the property, rights and
obligations to the extent of the
value of the inheritance, of a
person are transmitted through his
death to another or others either by
his will or by operation of law. (Art.
774)
• Mortis Causa
• Elements: Definition
–Mode of acquisition (ownership)
–Transfer of the property, rights and
obligations to the extent of the
value of the inheritance of a
person
–Transmission thru death
–Transmission to another
SCOPE OF INHERITANCE

GR: The inheritance includes all the property,

rights and obligations of a person which are
not extinguished by his death. (Art. 776)

Exceptions:
1. Rights and obligations which are not
transmissible by their nature
a. Those relating to family relations
- parental authority
- support
- action for legal separation
 b. Those arising from public law
- right to suffrage
- right to public office
c. Those involving personal skills or
qualifications
- singing
- acting
d. Criminal Responsibility
2. Rights and obligations which are not transmissible
by stipulation
3. Rights and obligations which are not transmissible
by provision of law (usufruct, agency, personal
easements, commodatum)
4. Money Debts
BQ 2012: 92. The following rights are
extinguished by death, except:

a) Legal support
b) Parental authority
c) Right to inherit
d) Agency
Can Human Corpse be subject of succession?

• Human Corpse is not part of the inheritance

• Without prejudice to RA 1056 AN ACT TO

AMEND REPUBLIC ACT NUMBERED
THREE HUNDRED AND FORTY-NINE,
ENTITLED

"AN ACT TO LEGALIZE PERMISSIONS TO

USE HUMAN ORGANS OR ANY PORTION
OR PORTIONS OF THE HUMAN BODY
FOR MEDICAL, SURGICAL, OR
SCIENTIFIC PURPOSES,
UNDER CERTAIN CONDITIONS"
Who may grant or allow the use of human
organs or any portion or portions of the
human body? (Sec. 1)
• Any Person

Who may be granted such use?

1.Licensed physician, surgeon, known
scientist, or
2.any medical or scientific institution,
including eye banks and other similar
institutions (Sec. 1)
When can the said individuals legally detach
the human organs or any portion or
portions of the human body?
• At any time after the grantor's death (Sec.
1)

For what purpose/s?

• Medical, surgical or scientific purposes
(Sec. 1)
What are the requirements? (Sec. 2)
• Authorization must be in writing;
• Specify the person or institution
granted the authorization, the organ,
part or parts to be detached, the use
or uses of the organ, part or parts are
to be employed; and
• Signed by the grantor and two
disinterested witnesses.
What are the requirements if the grantor is a
minor? (Sec. 2)
• The authorization may be executed by his
guardian with the approval of court;
• In default thereof, by the legitimate father or
mother, in order, named.

Do married women need the consent of their

husband? (Sec. 2)
• Married women may grant the authority referred
to in section one of this Act, without the consent
of the husband.
Other than the deceased, who else can grant
the said authorization? (Sec. 2)
1.His nearest relative or guardian at the time of
his death or in the absence thereof,
2.by the person or head of the hospital, or
3.institution having custody of the body of the
deceased

What is the condition for the above grant of

authorization if made by 2 & 3?
• the said person or head of the hospital or
institution has exerted reasonable efforts to
locate the aforesaid guardian or relative.
Is there any exception for the
implementation of the law?

• It shall be illegal for any person or any

institution to detach any organ or portion
of the body of a person dying of a
dangerous communicable disease even
if said organ or portion of the human
body shall be used for medical or
scientific purposes.
WHO ARE THE PARTIES TO SUCCESSION?

1. Decedent – person whose properties is transmitted

through succession
a. Testator – If he left a will
b. Intestate – If he did not leave a will

2. Successor – person who succeeds the property of

the decedent
a. Heir - what is given is whole or aliquot part.
An heir can be:
• Compulsory heir – those who succeeds by
operation of law with recognized legitime
• Voluntary heir – those instituted by testator in
order to succeed to the free portion
• Legal or intestate heir - those who succeed to
the estate of the decedent if there is no will
b. devisee - what is given in an
individualized or specific real property

c. legatee - individualized or specific

personal property

If in a will, a compulsory heir is given

more than his legitime, he assumes a
dual status
WHEN DOES THE OPENING OF SUCCESSION
OCCUR?

The rights to the succession are transmitted from

the moment of the death of the decedent. ( Art.
777)

Requisites of Succession:

1. death of decedent
2. transmissible estate
3. existence (transferee is still alive)
4. capacity of successor
5. designated by decedent or by law; and
6. acceptance of successor (no repudiation)
BQ 2012: 90. The requisites of succession
are as follows, except:

a) Death of decedent
b) Transmissible estate
c) Existence and capacity of successor,
designated by decedent or law
d) Payment of Taxes
Death: Kinds
• Actual death – successor becomes the owner at
the time of death and not at the time of the
delivery of the property

• Presumed death
Ordinary Death (Art. 390)
– Shall be presumed dead for the purpose of
opening his succession at the end of ten
years (5 years in case he disappeared after
the age of 75)
– Death is presumed at the end of ten or five
years
Extraordinary Death (Art. 391)
– Death is presumed to have occurred at the
time of loss and not at the end of four years
BQ (1991)

a) For purposes of succession, when is

death deemed to occur or take place?
2011 BQ # 3. Can future inheritance be the subject of
a contract of sale?

a.No, since it will put the predecessor at the risk of

harm from a tempted buyer, contrary to public policy.

b.Yes, since the death of the decedent is certain to

occur.

c.No, since the seller owns no inheritance while his

predecessor lives.

d.Yes, but on the condition that the amount of the

inheritance can only be ascertained after the
obligations of the estate have been paid.
Endaya vs. Villaos, G.R. No. 202426. January 27, 2016

FACTS: Respondent purchased a parcel of land from petitioners' ascendants

as evidenced by a Deed of Absolute Sale. The said property has been
occupied by petitioner. When respondent asked petitioner to vacate the
premises, the latter refused on the ground that he has better rights over the
property as evidenced by the Owner's Certificate of Title (still in the name of
his ascendant, Atilano) which was in his possession.

ISSUE: Can respondent legally evict petitioner from the property?

RULING: In the instant case, the evidence showed that as between the parties,
it is the petitioner who has a Torrens Title to the property. Respondents
merely showed their unregistered deeds of sale in support of their claims. In
resolving the issue of possession in an ejectment case, the registered
owner of the property is preferred over the transferee under an unregistered
deed of sale.

While respondent has in his favor deeds of sale over the eight parcels of land,
these deeds were not registered; thus, title remained in the name of the
owner and seller Atilano. When he died, title passed to petitioner. Under
Article 777 of the Civil Code, "[t]he rights to the succession are transmitted
from the moment of the death of the decedent." Thus, applying the principle
enunciated in the above-cited cases, petitioner and her co-heirs should
have been favored on the question of possession, being heirs who
succeeded the registered owner of the properties in dispute.
Calalang-Parulan vs. Calalang-Garcia, G.R. No. 184148, Dec. 09, 2014

FACTS: Pedro Calalang contracted two marriages during his lifetime. The first
marriage was with their mother Encarnacion Silverio. During the
subsistence of this marriage, their parents acquired the above-mentioned
parcel of land from their maternal grandmother Francisca Silverio. Despite
enjoying continuous possession of the land, however, their parents failed to
register the same. On June 7, 1942, the first marriage was dissolved with
the death of Encarnacion Silverio.

On November 6, 1967, Pedro Calalang entered into a second marriage with

Elvira B. Calalang who then gave birth to Nora B. Calalang-Parulan and
Rolando Calalang. According to the respondents, it was only during this
time that Pedro Calalang filed an application for free patent over the parcel
of land with the Bureau of Lands. Pedro Calalang committed fraud in such
application by claiming sole and exclusive ownership over the land since
1935 and concealing the fact that he had three children with his first spouse.
As a result, on September 22, 1974, the Register of Deeds of Bulacan
issued Original Certificate of Title (OCT) No. P-2871 5 in favor of Pedro
Calalang only.

On February 17, 1984, Pedro Calalang sold the said parcel of land to Nora B.
Calalang-Parulan as evidenced by a Deed of Sale executed by both Pedro
Calalang and Elvira B. Calalang. Accordingly, the Register of Deeds of
Bulacan cancelled OCT No. P-2871 and issued Transfer Certificate of Title
(TCT) No. 283321 in the name of Nora B. Calalang-Parulan. On December
27, 1989, 7 Pedro Calalang died.
ISSUE: Respondents argued that the sale
of the land was void because Pedro
Calalang failed to obtain the consent of the
respondents who were co-owners of the
same. As compulsory heirs upon the death
of Encarnacion Silverio, the respondents
claimed that they acquired successional
rights over the land. Thus, in alienating the
land without their consent, Pedro Calalang
allegedly deprived them of their pro
indiviso share in the property.
RULING: Pedro Calalang is the sole and exclusive owner of the disputed property.

A close perusal of the records of this case would show that the records are bereft of
any concrete proof to show that the subject property indeed belonged to
respondents' maternal grandparents. The evidence respondents adduced
merely consisted of testimonial evidence such as the declaration of Rosario
Calalang-Garcia that they have been staying on the property as far as she can
remember and that the property was acquired by her parents through purchase
from her maternal grandparents. However, she was unable to produce any
document to evidence the said sale, nor was she able to present any
documentary evidence such as the tax declaration issued in the name of either
of her parents. Moreover, we note that the free patent was issued solely in the
name of Pedro Calalang and that it was issued more than 30 years after the
death of Encarnacion and the dissolution of the conjugal partnership of gains of
the first marriage. Thus, we cannot subscribe to respondents' submission that
the subject property originally belonged to the parents of Encarnacion and was
acquired by Pedro Calalang and Encarnacion.

As the sole and exclusive owner, Pedro Calalang had the right to convey his
property in favor of Nora B. Calalang-Parulan by executing a Deed of Sale on
February 17, 1984. The CA therefore erred in ruling that Pedro Calalang
deprived his heirs of their respective shares over the disputed property when he
alienated the same.

It is hornbook doctrine that successional rights are vested only at the time of death.
Article 777 of the New Civil Code provides that "[t]he rights to the succession
are transmitted from the moment of the death of the decedent.
Kinds of Succession:
1. Testamentary – succession by will

2. Legal or intestate – succession by operation

of law in default of a will

3. Mixed - effected partly by will and partly by

operation of law

4. Contractual Succession - future husband

and future wife give to each other future
property, effective mortis cause, by means
of a marriage settlement
 TESTAMENTARY SUCCESSION

• Testamentary succession is preferred to

intestate succession
– Doubts are resolved in favor of testacy
– Expressed desire of testator must be followed
– Dispositions in the will should be upheld

• Right to make a will is purely statutory right

– Making a will is not a natural right
– Must comply with the requirements of the law
– Legitimes must be respected
WHAT IS A WILL? It is an act whereby a person is
permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate,
to take effect after his death. (Art. 783)

a. “formalities prescribed by law”

- dispositions in the will has statutory basis
b. “to control to a certain degree”
- testator cannot impair the legitime of his
compulsory heirs
c. “disposition of his estate”
- an instrument disinheriting an heir must be
probated
- disinheritance is an act of disposition
d. “take effect after his death”
- a will can validly be revoked even if already
probated as long as the testator is still alive
 Vitug vs. CA, et al., G.R. No. 82027, March 29,
1990

We hereby agree with each other and with the

BANK, that all money now or hereafter
deposited by us or any or either of us with the
BANK in our joint savings current account shall
be the property of all or both of us and shall be
payable to and collectible or withdrawable by
either or any of us during our lifetime, and after
the death of either or any of us shall belong
to and be the sole property of the survivor
or survivors, and shall be payable to and
collectible or withdrawable by such survivor or
survivors.
Does the survivorship agreement constitute
a conveyance mortis causa that should
comply with the formalities prescribed by
Article 805 of the Civil Code?

Can the survivorship agreement be

considered as the decedent's last will and
testament?
SC: The conveyance in question is not, first of all,
one of mortis causa, which should be embodied
in a will.

A will has been defined as "a personal, solemn,

revocable and free act by which a capacitated
person disposes of his property and rights and
declares or complies with duties to take effect
after his death."

In other words, the bequest or device must pertain

to the testator. In this case, the monies subject
of savings account No. 35342-038 were in the
nature of conjugal funds.
Kinds of Will:

1.Notarial will - executed with the formalities

of the law and is duly acknowledged and
notarized by a notary public

2.Holographic will - entirely written in the

handwriting of the testator and must be
signed and dated also in his handwriting

3.Nuncupative will = oral will (not allowed)

Essential Characteristics of Testamentary Act
(PASSUCFRIDM):

• Personal Act
• Animus testandi
• Solemn or formal act
• Statutory Right
• Unilateral
• Capacity
• Free from vices of consent
• Individual
• Revocable
• Disposes of the testator’s estate
• Mortis causa
BQ 2012: 91. The characteristics of
succession are as follows, except:

a) It is a legal contract.
b) Only property, rights and obligations to
the extent of the value of the inheritance
are transmitted.
c) The transmission takes place only at the
time of death.
d) The transmission takes place either by
will or by operation of law.
 MAKING OF A WILL AS A STRICTLY
PERSONAL ACT (Art. 784)

Rules to be observed:
1. 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. (Art. 784)
2. The duration or efficacy of the designation
of heirs, devisees or legatees, or the
determination of the portions which they
are to take, when referred to by name, cannot
be left to the discretion of a third person. (Art.
785)
3. 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. (Art. 787)

Exceptions:

The testator may entrust to a third person:

a. The distribution of specific property or sums of

money that he may leave in general to
specified classes or causes, and
b. The designation of the persons, institutions or
establishments to which such property or sums
are to be given or applied. (Art. 786.)
 INTERPRETATION OF A WILL

1. Giving effect to the will

- 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. (Art. 788)
- 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 (Art. 791)
- Of two modes of interpreting a will, that is to be
preferred which will prevent intestacy. (Art. 791)
2. Ambiguity

A. Intrinsic or Latent Ambiguity

- ambiguity is hidden
- it does not appear on the face of the will

How to Remedy Intrinsic or Latent Ambiguity?

When there is an imperfect description, or when no
person or property exactly answers the
description,
a. mistakes and omissions must be corrected, if the
error appears from the context of the will or from
extrinsic evidence,
b. excluding the oral declarations of the testator as
to his intention (Art. 789)
B. Extrinsic or Patent Ambiguity
- ambiguity appears on the face of the will
- apparent and not hidden

How to Remedy Extrinsic or Patent Ambiguity?

When an uncertainty arises upon the face of the will,

as to the application of any of its provisions,

a. the testator's intention is to be ascertained from

the words of the will, taking into consideration the
circumstances under which it was made,
b. excluding such oral declarations. (Art. 789)
3. Usage of Words

• The words of a will are to be taken in their

ordinary and grammatical sense,
– unless a clear intention to use them in another
sense can be gathered, and that other can be
ascertained.

• Technical words in a will are to be taken in their

technical sense,
– unless the context clearly indicates a contrary
intention, or
– unless it satisfactorily appears that the will
was drawn solely by the testator, and that he
was unacquainted with such technical sense.
4. Invalidity of Certain Provisions

GR: The invalidity of one of several

dispositions contained in a will does not
result in the invalidity of the other
dispositions,

Exception: 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.
5. After-acquired Properties - 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. (Art. 793)

Gen. Rule: A will only includes those properties already

possessed and owned by the testator at the time of
his death, not those acquired after

Exceptions:
• if expressly stated in the will to include after-acquired
properties
• if will is republished or modified by a subsequent will
or codicil
• will erroneously stated properties unless after making
the will, said properties will belong to the testator
• legacy of credit or remission
BQ (1996) Alfonso, a bachelor without any
descendant or ascendant, wrote a last will and
testament in which he devised." all the
properties of which I may be possessed at
the time of my death" to his favorite brother
Manuel.

At the time he wrote the will, he owned only one

parcel of land. But by the time he died, he
owned twenty parcels of land.

His other brothers and sisters insist that his will

should pass only the parcel of land he owned at
the time it was written, and did not cover his
properties acquired, which should be by
intestate succession. Manuel claims otherwise.
Who is correct? Explain.
 LAW GOVERNING
FORMAL VALIDITY OF A WILL

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.

Extrinsic Validity Intrinsic Validity

form of the will substance of the will
viewpoint of time:
law in force at the time law in force at the time of
the will was made the decedent’s death
TESTAMENTARY CAPACITY AND INTENT

A. All persons who are not expressly

prohibited by law may make a will. (Art.
796)

• A blind or a deaf-mute person can make

a will (Art. 807)
• A person under guardianship can make
a will
• A person under civil interdiction can
make a will
B. A person of either sex may make a will (Art.
797)

– A married woman may make a will without the

consent of her husband, and without the
authority of the court. (Art. 802)

– 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. (Art. 803)
Requisites for the testator at the time of the
execution:

1.Testator is not expressly prohibited by

law may make a will. (ART. 796)

2.Testator is of either sex and at least

eighteen years of age. ( ART. 797)

3. Testator is of sound mind at the time of

its execution. (Art. 798)
 SOUNDNESS OF MIND

Presumption: Every person is of sound mind, in the

absence of proof to the contrary. (Art. 800)

Who has the burden of proof?

• 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 (Art.
800)

Exception: 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.
(Art. 800)
When testator is deemed to be of sound mind (Art.
799)

• 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
1. the nature of the estate to be disposed of,
2. the proper objects of his bounty, and
3. the character of the testamentary act.
There is still soundness of mind in:

• paralysis
• loss of speech
• cholera
• insomnia
• diabetes
• sleeping sickness or addison’s disease
• cerebral hemorrhage affecting half body
• deafness
• blindness
• poor memory
There is unsoundness of mind in:

• religious delusion
• blind extraordinary belief in spirits
• monomania (insanity on a single object)
• insane delusions
• drunkenness
• idiocy
• comatose stage
• state of delirium
 CAPACITY TO MAKE A WILL

Rule: In order to make a will it is essential that the

testator be of sound mind at the time of its
execution. (Art. 798)

What happens in case of supervening incapacity?

• Supervening incapacity does not invalidate an

effective will
• The will of an incapable is not validated by the
supervening of capacity. (Art. 801)
BQ 2008. Stevie was born blind. He went to
school for the blind, and learned to read in
Baille Language. He Speaks English
fluently. Can he:

1. Make a will? (1%)

2. Act as a witness to a will? (1%)
3. In either of the above instances, must the
will be read to him? (1%)
 WHAT ARE THE RULES GOVERNING THE
EXTRINISIC VALIDITY OF A WILL?
(Arts. 17, 815-817, 819)
Testator Place of Rule governing extrinsic (formal) validity
Exec.
Filipino Phil NCC
Filipino Foreign 1. law of the place where it was made
country 2. NCC
Foreigner Phil 1. NCC
2. laws of his own country
Foreigner Foreign 1. law of the place where the will was
country made
2. law of his own country or nationality
3. law of the country where he resides or
domiciled
4. NCC
 WHAT ARE THE LAWS GOVERNING THE
INTRINSIC VALIDITY OF A WILL?
(Arts.15, 16, 1039 of the NCC)

National Law of the Deceased Governs:

1. Order of succession
2. Amount of successional rights
3. Intrinsic validity of the provisions of the will
4. Capacity to succeed
BQ 2004 In his lifetime, a Pakistani citizen, ADIL,
married three times under Pakistani law. When he died
an old widower, he left behind six children, two sisters,
three homes, and an estate worth at least 30 million
pesos in the Philippines. He was born in Lahore but
last resided in Cebu City, where he had a mansion and
where two of his youngest children now live and work.

xxx

xxx

The law of which country shall govern succession

to his estate? (5%)
BQ 2009. On December 1, 2000, Dr. Juanito Fuentes
executed a holographic will, wherein he gave nothing to
his recognized illegitimate son, Jay. Dr. Fuentes left for the
United States, passed the New York medical licensure
examinations, resided therein, and became a naturalized
American citizen.

He died in New York in 2007. The laws of New York do not

recognize holographic wills or compulsory heirs.

[a] Can the holographic will of Dr. Fuentes be admitted to

probate in the Philippines? Why or why not? (3%)

[b] Assuming that the will is probated in the Philippines,

can Jay validly insist that he be given his legitime? Why
or why not? (3%)
BQ 2011 # 60. An Australian living in the Philippines
acquired shares of stock worth P10 million in food
manufacturing companies.

He died in Manila, leaving a legal wife and a child in

Australia and a live-in partner with whom he had two
children in Manila.

He also left a will, done according to Philippine laws,

leaving all his properties to his live-in partner and
their children.

What law will govern the validity of the disposition in the

will?
A.Australia law since his legal wife and
legitimate child are Australians and
domiciled in Australia.
B.Australian law since the intrinsic validity of
the provisions of a will is governed by the
decedent’s national law.
C.Philippine law since the decedent died in
Manila and he executed his will according
to such law.
D.Philippine law since the decedent’s
properties are in the Philippines.
BQ (1990)

(1) If a will is executed by a testator who is a Filipino

citizen, what law will govern if the will is executed in
the Philippines?

What law will govern if the will is executed in another

country? Explain your answers.

(2) If a will is executed by a foreigner, for instance, a

Japanese, residing in the Philippines, what law will
govern if the will is executed in the Philippines?

And what law will govern if the will is executed in

Japan, or some other country, for instance, the
U.S.A.? Explain your answers.
BA 2012: The capacity of an heir to succeed
shall be governed by the:

a) national law of the decedent's heirs

b) law of the country where the decedent
was a resident at the time of his death
c) national law of the person who died
d) law of the country where the properties of
the decedent are located.
BQ 2012: 5. Atty. BUKO, a Filipino, executed a will
while he was in Spain. The attestation clause of
the said will does not contain Buko's signature. It
is valid under Spanish law. At its probate in
Manila, it is being opposed on the ground that
the attestation clause does not contain BUKO's
signature Is the opposition correct? Choose the
best answer ..

a) Yes, because it is a fatal defect.

b) Yes, the will is not valid under Philippine law.
c) No, attestation clause is not an act of the
testator.
d) No, the governing law is Spanish law.
BQ 2012: 8. If a will is executed by a testator who
was born a Filipino citizen but became a
naturalized Japanese citizen at the time of his
death, what law will govern its testamentary
provisions if the will is executed in China and the
property being disposed is located in Indonesia?

a) Chinese law
b) Philippine law
c) Indonesian law
d) Japanese law
BQ 2012: 13. The will of a Filipino executed in a
foreign country---

a) cannot be probated in the Philippines;

b) may be probated in the Philippines provided that
properties in the estate are located in the
Philippines;
c) cannot be probated before the death of the
testator;
d) may be probated in the Philippines provided it
was executed in accordance with the laws of the
place where the will was executed.
 FORMALITIES REQUIRED IN MAKING A NOTARIAL OR
ORDINARY WILL?

1. In writing (common req’t for Notarial & Holographic Wills)

2. In a language or dialect known to the testator (common req’t.
for Notarial & Holographic Wills)
3. Subscribed at the end thereof by the testator himself or the
testator’s name written by another person in his presence and
by his express direction
4. Attested and subscribed by 3 or more credible witnesses in the
presence of the testator and in the presence of each other
5. 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.
6. All pages shall be numbered correlatively in letters on the
upper part of each page
7. The attestation clause shall . . . .
8. Acknowledged before a Notary Public
 2nd Req: In a language or dialect known to the testator

• Presumption: Testator knows the language or dialect in the will

– The circumstance appearing in the will itself that same was
executed in the city of Cebu and in the dialect of this locality
where the testatrix was a neighbor is enough x x x to
presume that she knew this dialect in which her will is
written. (Abangan vs. Abangan, 42 Phil 476)
– No evidence, that Spanish is the language currently used
either in San Juan, Rizal, or Manila. It follows, therefore, that
no presumption can arise that the testator knew the Spanish
Language (Javellana et al. vs. Javellana, January 30, 1960 )

• Knowledge of the language can be established by proof aliunde

– There is no statutory requirement that such knowledge be
expressly stated in the will itself. It is a matter that may be
established by proof aliunde. (Lopez vs. Liboro, 81 Phil 429)
 3rd Req. (First Part): Ordinary or Notarial Will
Subscribed at the end thereof by the
testator himself x x x

• Purpose: to prevent unauthorized additions

• End of the will means “logical end”, not physical end
• The requirement of the statute that the will shall be "signed" is
satisfied not only by the customary written signature but also by
the testator's or testatrix' thumbmark. (Solar vs. Diancin, 55 Phil
479)
• A statute requiring a will to be "signed" is satisfied if the signature
is made by the testator's mark. (Lopez vs. Liboro, 81 Phil 429)
• It is not here pretended that the cross appearing on the will is the
usual signature of Antero Mercado or even one of the ways by
which he signed his name. After mature reflection, we are not
prepared to liken the mere sign of a cross to a thumbmark, and
the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark. (Garcia vs. Lacuesta, G.R. No. L-
40767, November 29, 1969)
 3rd Req. (2nd Part): Ordinary or Notarial Will
x x x or the testator’s name written by another person
in his presence and by his express direction.

• 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
(Garcia vs. Lacuesta, G.R. No. L-40767, Nov. 29, 1969)
• There is no necessity whatever, so far as the validity of
the instrument is concerned, for the person who writes
the name of the principal in the document to sign his
own name also. (Barut vs. Cabacungan, 1 Phil 461)
• It will be seen that the witness Feliciano Maglaqui,
instead of writing the name of the testatrix on the will,
wrote his own. Probate of the will was refused in the
court below on the ground that the name of the testatrix
was not signed thereto (Guison vs. Conception, 5 Phil
551)
 "At the request of Señora Maria Siason.
(followed by signature of)

"CATALINO GEVA. And three witnesses

"T. SILVERIO.
FRUCTUOSO G. MORIN.
"RAFAEL ESPINOS."

The majority of the court, however, are of the opinion that

the distinction is a tenable one inasmuch as in the
Concepcion will the name of the testatrix occurred only in
the body of the attestation clause, after the first signatures
of the witnesses, whereas in this will it immediately follows
the testament itself and precedes the names of the
witnesses.(In re: Will of Siason, 10 Phil 504)
 Macapinlac vs. Alimurong, 16 Phil 41

•It is shown by the evidence that the will was

wholly written in the handwriting of the
subscribing witness, Gregorio Sangil, and at the
foot thereof the following words appear in a new
paragraph and sufficiently apart:

"At the request of the testatrix, Da. Simplicia de

los Santos, I signed.

"For Simplicia de los Santos.

"Amando de Ocampo."
 Ex Parte Arcenas, 4 Phil 700

"John Doe, by the testator, Richard Roe;"

or in this form:

"By the testator, John Doe, Richard Roe.“

All this must be written by the witness

signing at the request of the testator.
 4th Req: Ordinary or Notarial Will
1st Part: Attested and subscribed
by 3 or more credible witnesses in the presence
of the testator and in the presence of each other

• 1st Part: Attestation vs. Subscription (Taboada vs.

Rosal, L-36033, November 5, 1982 )

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.

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.
 4th Req: Ordinary or Notarial Will
2nd Part: Three or more credible witnesses

– The mere fact that there six witnesses to the

said will and that one of them did not see the
others sign is not sufficient to invalidate the
said will when the other requirements of the
law are satisfied. (Gillesania vs. Menesalvas,
13 Phil 116)

– The attorney who will notarize the will cannot

be at the same time a witness thereto (Cruz
vs. Villasor, G.R. No. L-32213, November 26,
1973)
 4th Req: Ordinary or Notarial Will
3rd Part: Attested & subscribed x x x in the presence of
the testator and in the presence of each other

- The actual seeing of the signature made is not

necessary. It is sufficient if the signatures are made
where it is possible for each of the necessary parties, if
they so desire, to see the signatures placed upon the
will. (Yap tua vs. Yap Ka Kuan, 27 Phil 579)

- 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 been 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. (Nera vs. Rimando, 18 Phil.
450)
Jaboneta vs. Gustillo, 5 Phil 541

Facts: After one witness signed, he left the place where

the will was signed but before leaving, he saw the last
witness begin to sign but was not yet consummated
when the first witness turned his back and left the room

Ruling: He, with the other witnesses and the testator,

has assembled for the purpose of execution the
testament, and were together in the same room for that
purpose, and at the moment when the witness
Javellana signed the document he was actually and
physically present and in such position with relation to
Javellana that he could see everything which took place
by merely casting his eyes in the proper direction, and
without any physical obstruction to prevent his doing so
BQ (1994)

On his deathbed, Vicente was executing a

will. In the room were Carissa, Carmela,
Comelio and Atty. Cimpo, a notary public.
Suddenly, there was a street brawl which
caught Comelio's attention, prompting him
to look out the window. Cornelio did not
see Vicente sign a will. Is the will valid?
BQ 2007. Clara, thinking of her mortality, drafted a will and asked Roberta,
Hannah, Luisa and Benjamin to be witnesses.

During the day of the signing of her will, Clara fell down the stairs and
broke both her arms. Coming from the hospital, Clara insisted on signing
her will by thumb mark and said that she can sign her full name later.

While the will was being signed, Roberta experienced a stomach ache and
kept going to the restroom for long periods of time.

Hannah, while waiting for her turn to sign the will, was reading the 7th
Harry Potter book on the couch, beside the table on which everyone was
signing.

Benjamin, aside from witnessing the will, also offered to notarize it.

A week after, Clara was run over by a drunk driver while crossing the street
in Greenbelt.

May the will of Clara be admitted to probate? Give your reasons briefly.
 5th Req: Ordinary or Notarial Will
Marginal signatures of the testator or the person
requested by him to write his name and the
instrumental witnesses of the will

• The execution of a will is supposed to be one act and

cannot be legally effective if the various participants sign
on various days and in various combinations of those
present (Andalis vs. Pulgueras, 59 Phil 643).
• It is not necessary that the instrumental witnesses
should give an accurate and detailed account of the
proceeding, such as recalling the order of the signing of
the document by the said witnesses. (Javellana et al. vs.
Javellana et al., G.R. No. L-13781, January 30, 1960 )
• Location of signatures is immaterial. Such can make no
possible difference. It can still be protected from possible
alteration (Avera vs. Garcia, 42 Phil 145; Nayve vs.
Mojal, 47 Phil 152)
 Abangan vs. Abangan, 42 Phil 476

Facts: Will consists of two sheets, the first of which

contains all of the disposition of the testatrix, duly signed
at the bottom by Martin Montalban (in the name and
under the direction of the testatrix) and by three
witnesses.

The following sheet contains only the attestation clause

duly signed at the bottom by the three instrumental
witnesses.

Ruling: It is not necessary that both sheets be further

signed on their margins by the testator and the
witnesses, or be paged

The testator's signature is not necessary in the attestation

clause because this, as its name implies, appertains only
to the witnesses and not to the testator.
• Absence of signature on page 2 of the will does
not guarantee all the contents of page 2. It may
very well be that it was subsequently added,
thereby substituting the will of the testatrix, a
result for the prevention of which this manner of
authenticity by affixing the signature on each
page and not merely on each folio was provided
by law (In re: Estate of Saguinsin, 41 Phil 875)

• The noncompliance with section 2 of Act No.

2645 by the attesting witnesses who omitted to
sign with the testator at the left margin of each of
the five pages of the document alleged to be the
will of Ventura Prieto, is a fatal defect that
constitutes an obstacle to its probate.(In re: Will
of Prieto, 46 Phil 700 )
• A will consisting of two pages and the last page
had been duly signed by the testatrix and the
three testimonial witnesses who also signed the
first page but the testatrix failed to sign the left
margin of the first page does not comply with the
requirements of the law. (Estate of Tampoy vs.
Alberastine, G.R. No. L-14322, February 25,
1960)

• The inadvertent failure of an attesting 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. (Icasiano vs. Icasiano,
11 SCRA 422)
 6th Req: Ordinary or Notarial Will
Numbering or Pagination

• Purposes: Prevent fraud; Prevent substitution;

and Detect loss of any page
• All pages shall be numbered correlatively in
letters on the upper part of each page
• The paging with Arabic numerals and not with
letter, as in the case before us, is within the spirit
of the law and is just as valid as paging with
letters. (In re: Will of Tan Duico, 45 Phil 807)
• Pagination appearing as “pass on to the second
page”, “pass on to the third page”, complies with
the requirements of the law (Testate Estate of
Pilapil, 72 Phil 546)
• A will not paged correlatively in letters "one,"
"two", "three", etc., but only with the letters A, B,
C, etc complies with the requirements of the law
(Aldaba vs. Roque, 43 Phil. 378)
 Lopez vs. Liboro, 81 Phil 429

• The omission to put a page number on the first

sheet, if that be necessary, is supplied by other
forms of identification more trustworthy than the
conventional numeral words or characters.
• The unnumbered page is clearly identified as the
first page by the internal sense of its contents
considered in relation to the contents of the
second page.
• By their meaning and coherence, the first and
second lines on the second page are undeniably
a continuation of the last sentence of the
testament, before the attestation clause, which
starts at the bottom of the preceding page.
• As to the numbering of the sheet containing the
attestation clause, it is true that it does not
appear on the upper part of the sheet, but it
does appear in its text, the pertinent part of
which is copied hereinafter, with the words,
having reference to the number of sheets of the
will, underscored, including the page number of
the attestation
• If, as stated in this clause, the foregoing
document consists of three sheets, besides that
of the clause itself, which is in singular, it is clear
that such a sheet of the attestation clause is the
fourth and that the will, including said sheet, has
four sheets. (Fernandez vs. de Dios, 46 Phil
922)
 7th Req: Ordinary or Notarial Will
Attestation Clause

What shall the AC state?

• The number of pages used upon which will is
written
• That the testator signed (or expressly directed
another to sign) the will and each and every
page in the presence of the witnesses
• That the latter witnessed and signed the will and
all the pages thereof in the present of the
testator and of one another
BQ 2012: 93. The attestation clause contains the
following, except:

a) the number of pages used;

b) that the testator signed or caused another to
sign the will and every page thereof in the
presence of the instrumental witnesses;
c) notary public;
d) the instumental witnesses witnessed and signed
the will and all ·the pages thereof in the
presence of the testator and one another.
What is the purpose of AC?
• Preserve in permanent form a record of the facts
attending the execution of the will
• Render available proof that there has been
compliance with the laws
• Minimize fraud

What is the effect in the absence of AC?

• There must be attestation clause and that it must
express the material matters mentioned in the
foregoing quotation with substantial accuracy. x
x x the Legislature intended that the
requirement as to the presence of an attestation
clause and as to its contents should be
mandatory. (In re: Neumark, 45 Phil 481)
Should the testator sign the AC as well?
• The testator's signature is not necessary in
the attestation clause because this, as its
name implies, appertains only to the
witnesses and not to the testator.
(Abangan vs. Abangan, 42 Phil 476)

Which part of the AC should the witnesses

sign?
• If an attestation clause not signed by the
three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to
add such clause to a will on a subsequent
occasion and in the absence of the
testator and any or all of the witnesses. (In
re: Testate of Cagro, G.R. No. 158, April 29,
1953)
What is the effect of the statement of AC but
not signed by the witnesses?

• An unsigned attestation clause cannot be

considered as an act of the witnesses,
since the omission of their signatures at
the bottom thereof negatives their
participation. (In re: Testate of Cagro, G.R.
No. 158, April 29, 1953)
Should the language of the AC be known to the
testator and to the witnesses?

• As to the testator: the attestation clause need

not be written in a language or dialect known to
the testator since it does not form part of the
testamentary disposition. (Caneda vs. CA, G.R.
No. 103554, May 28, 1993)
• As to the witnesses: Furthermore, the
language used in the attestation clause likewise
need not even be known to the attesting
witnesses. The last paragraph of Article 805
merely requires that, in such a case, the
attestation clause shall be interpreted to said
witnesses. (Caneda vs. CA, G.R. No. 103554,
May 28, 1993)
Facts: AC did not state that the testatrix signed the
will in the presence of the instrumental
witnesses. What is the effect? What if proof
aliunde has been presented and admitted?

SC:
• That is a fact required by law to be stated in the
attestation clause itself
• If it is settled that where it is not so stated it
cannot be established by evidence aliunde
• Where such evidence has been admitted, even
without opposition, it should not be given the
effect intended. (Testate Estate of Paula Toray,
G.R. No. L-2415, July 31, 1950)
Facts: The will fails to state that the testator and the
three witnesses signed each and every page of the
will in the manner prescribed by law. Is the defect
fatal?

SC: The requirement is sufficiently complied with for

the following reasons:
– It appearing that the testator and the
witnesses signed each and every page of the
will according to the stipulation of the
parties.
– This fact being shown in the will itself, and
there being, furthermore, no question raised
as to the authenticity of the signature of the
testator and the witnesses. (Leynez vs.
Leynez, 68 Phil. 745)
 Doctrine of Liberal Interpretation of
Attestation Clause (Art. 809)

• 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
• There must be no bad faith, forgery, or
fraud, or undue and improper pressure
and influence
• Applies to defects and imperfections (not
of substance) in the FORM of attestation
clause and the LANGUAGE used therein
Fernandez vs. de Dios, 46 Phil 922

Facts: Instead of stating “That the testator signed (or

expressly directed another to sign) the will and each
and every page in the presence of the 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” the will states:

". . . and he (the testator) signed at the bottom of the

aforesaid will in our presence and we at his request
did the same in his presence and in that of each other
as witnesses to the will, and lastly, the testator, as
well as we, as witnesses, signed in the same manner
on the left margin of each sheet."
Issue: Will the said clause be interpreted similarly with
the requirements of the law?

SC:
• The underscored phrase "in the same manner"
cannot in the instant case mean, and it in fact
means nothing, but that the testator and the
witnesses signed on the left margin of each sheet of
the will "in the same manner" in which they signed at
the bottom thereof, that is, the testator in the
presence of the witnesses and the latter in the
presence of the testator and of each other.

• This phrase in the same manner cannot, in view of

the context of the pertinent part, refer to another
thing, and was used here as a suppletory phrase to
include everything and avoid the repetition of a long
and difficult one, such as what is meant by it.
 Teodoro Caneda vs. Court of Appeals,
G.R. No. 103554, May 28, 1993

"We, the undersigned attesting Witnesses, whose

Residences and postal addresses appear on the
Opposite of our respective names, we do hereby
certify that the Testament was read by him and the
testator, MATEO CABALLERO, has published unto
us the foregoing Will consisting of THREE PAGES,
including the Acknowledgment, each page
numbered correlatively in letters on the upper part of
each page, as his Last Will and Testament and he
has signed the same and every page thereof, on the
spaces provided for his signature and on the left
hand margin, in the presence of the said testator
and in the presence of each and all of us."
ISSUE:

The attestation clause is fatally defective

since it fails to specifically state that the
instrumental witnesses to the will
witnessed the testator signing the will in
their presence and that they also signed
the will and all the pages thereof in the
presence of the testator and of one
another.
SC: The phrase "and he has signed the same and every
page thereof, on the spaces provided for his signature
and on the left hand margin," obviously refers to the
testator and not the instrumental witnesses as it is
immediately preceded by the words "as his Last Will and
Testament."

On the other hand, although the words "in the presence of

the testator and in the presence of each and all of us"
may, at first blush, appear to likewise signify and refer to
the witnesses, it must however, be interpreted as
referring only to the testator signing in the presence of
the witnesses since said phrase immediately follows the
words "he has signed the same and every page thereof,
on the spaces provided for his signature and on the left
hand margin."

What is then clearly lacking, in the final logical analysis, is

the statement that the witnesses signed the will and
every page thereof in the presence of the testator and of
one another.
Can petitioners invoke Article 809?

The rule on substantial compliance in Article 809 cannot be

invoked or relied on by respondents since it presupposes
that:

• the defects in the attestation clause can be cured or

supplied by the text of the will or a consideration of
matters apparent therefrom which would provide the
data not expressed in the attestation clause or from
which it may necessarily be gleaned or clearly inferred
that the acts not stated in the omitted textual
requirements were actually complied with in the
execution of the will.
• In other words, the defects must be remedied by
intrinsic evidence supplied by the will itself.
Can the testimonies of the witnesses be
considered in invoking Art. 809?

What private respondent insists on are the

testimonies of his witnesses alleging that they
saw the compliance with such requirements by
the instrumental witnesses, oblivious of the fact
that he is thereby resorting to extrinsic
evidence to prove the same and would
accordingly be doing by indirection what in law
he cannot do directly.
Lopez vs. Lopez, G.R. No. 189984. November 12, 2012.

FACTS: The RTC disallowed the probate of the will for

failure to comply with Article 805 of the Civil Code which
requires a statement in the attestation clause of the
number of pages used upon which the will is written. It
held that while Article 809 of the same Code requires
mere substantial compliance of the form laid down in
Article 805 thereof, the rule only applies if the number of
pages is reflected somewhere else in the will with no
evidence aliunde or extrinsic evidence required.

While the acknowledgment portion stated that the will

consists of 7 pages including the page on which the
ratification and acknowledgment are written, the RTC
observed that it has 8 pages including the
acknowledgment portion. As such, it disallowed the will
for not having been executed and attested in accordance
with law.
ISSUE: Can petitioner validly invoke Art. 809?

RULING: The law is clear that the attestation must state the number of pages
used upon which the will is written. The purpose of the law is to safeguard
against possible interpolation or omission of one or some of its pages and
prevent any increase or decrease in the pages. 9

While Article 809 allows substantial compliance for defects in the form of the
attestation clause, Richard likewise failed in this respect. The statement in
the Acknowledgment portion of the subject last will and testament that it
"consists of 7 pages including the page on which the ratification and
acknowledgment are written" cannot be deemed substantial compliance.
The will actually consists of 8 pages including its acknowledgment which
discrepancy cannot be explained by mere examination of the will itself but
through the presentation of evidence aliunde. On this score is the comment
of Justice J.B.L. Reyes regarding the application of Article 809, to wit:

. . . The rule must be limited to disregarding those defects that can be supplied
by an examination of the will itself: whether all the pages are consecutively
numbered; whether the signatures appear in each and every page; whether
the subscribing witnesses are three or the will was notarized. All these are
facts that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely disregarded. But the
total number of pages, and whether all persons required to sign did so in the
presence of each other must substantially appear in the attestation clause,
being the only check against perjury in the probate proceedings.
 8th Req: Ordinary or Notarial Will
Notarial Acknowledgment

• notarial will although notarized is not considered

public document
• notary public cannot be a witness
• the NCC does not require that the acknowledgment
of the will before a Notary Public should be
accomplished in one single act. (Testate Estate of A.
Ledesma, G.R. No. L-7179, June 30, 1955 )
• A jurat is different from acknowledgment, the former
not being in compliance with the requirement of the
law
• Notary public should not be related to the party up to
the 4th civil degree
BQ 2011 # 96. Pepito executed a will that he and 3 attesting
witnesses signed following the formalities of law, except that
the Notary Public failed to come. Two days later, the Notary
Public notarized the will in his law office where all
signatories to the will acknowledged that the testator signed
the will in the presence of the witnesses and that the latter
themselves signed the will in the presence of the testator
and of one another. Was the will validly notarized?

A. No, since it was not notarized on the occasion when the

signatories affixed their signatures on the will.
B. Yes, since the Notary Public has to be present only when
the signatories acknowledged the acts required of them in
relation to the will.
C. Yes, but the defect in the mere notarization of the will is not
fatal to its execution.
D. No, since the notary public did not require the signatories to
sign their respective attestations again.
BQ 2008. Arthur executed a will which contained only:

(i) x x x
(ii) x x x

The will was very brief and straightforward and both the above provisions
were contained in page 1, which Arthur and his instrumental witness,
signed at the bottom.

Page 2 contained the attestation clause and the signatures, at the bottom
thereof, of the 3 instrumental witnesses which included Lambert, the driver
of Arthur; Yoly, the family cook, and Attorney Zorba, the lawyer who
prepared the will.

There was a 3rd page, but this only contained the notarial
acknowledgement. The attestation clause stated the will was signed on the
same occasion by Arthur and his instrumental witnesses who all signed in
the presence of each other, and the notary public who notarized the will.
There are no marginal signatures or pagination appearing on any of the 3
pages.

x x x What are the defects in the will? (2%)

 Special rules for handicapped testators (Arts. 807-808)

WHAT IF THE TESTATOR BE DEAF OR DEAF-MUTE OR BLIND?

Deaf or Deaf-Mute Testator Blind Testator

(Art. 807) (Art. 808)
if testator is literate, must whether literate or not, the will
personally read the will must be read to him

if illiterate, the will must be read whether literate or not, the will
by 2 persons designated by the must be read twice once by
testator subscribing witness and
another by the Notary Public

reading is not enough; must reading is enough

communicate the contents to the
testator
Application of Art. 808

Garcia vs. Vasquez, 32 SCRA 489

 testators with poor and defective eyesight or blurred

vision should comply with the requirements under Art.
808

 The rationale is to make the provisions thereof known to

him, so that he may be able to object if they are not in
accordance with his wishes.

 The aim of the law is to insure that the dispositions of the

will are properly communicated to and understood by the
handicapped testator, thus making them truly reflective
of his desire.
 In Re: Alvarado vs. Gaviola, Jr.
G.R. No. 74695, Sept 14, 1993

 Instead of the notary public and an instrumental witness,

it was the lawyer who drafted the will who read the same
aloud to the testator, and read them only once, not twice
as Art. 808 requires.

 Prior and subsequent thereto, the testator affirmed, upon

being asked, that the contents read corresponded with
his instructions. Only then did the signing and
acknowledgement take place.

 The notary public and the three instrumental witnesses

likewise read the will and codicil, albeit silently.
Afterwards, the notary public and one of the three
instrumental witnesses and the testator's physician
asked the testator whether the contents of the
documents were of his own free will. Brigido answered in
the affirmative.
 With four persons following the reading word for word
with their own copies, it can be safely concluded that the
testator was reasonably assured that what was read
to him (those which he affirmed were in accordance
with his instructions), were the terms actually
appearing on the typewritten documents.

 This Court has held in a number of occasions that

substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being
that the solemnities surrounding the execution of wills
are intended to protect the testator from all kinds of fraud
and trickery but are never intended to be so rigid and
inflexible as to destroy the testamentary privilege.
Witnesses to wills (Arts. 820-824)

Qualifications of Witnesses:
1. of sound mind
2. at least 18 years of age
3. able to read and write
4. not be blind, deaf or dumb
5. must be domiciled in the Phil
6. not convicted of falsification of document, perjury or
false testimony

When should the qualifications exist?

 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. (Art. 822)
BQ 2008. Stevie was born blind. He went to
school for the blind, and learned to read in
Baille Language. He Speaks English
fluently. Can he:

1. Make a will? (1%)

2. Act as a witness to a will? (1%)
3. In either of the above instances, must the
will be read to him? (1%)
CAN WITNESSES INHERIT IF DESIGNATED IN THE
WILL AS DEVISEE OR LEGATEE?

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.
 disqualified to inherit but not to testify

 only the part pertaining to them is considered

void

 disqualification extends to:

• witness
• spouse of witness
• parent of witness
• child of witness
• any one claiming under such person or
spouse, or parent, or child
BQ 2010. A executed a 5-page notarial will
before a notary public and three witnesses. All of
them signed each and every page of the will.
One of the witnesses was B, the father of one of
the legatees to the will. What is the effect of B
being a witness to the will? (1%)

1. The will is invalidated

2. The will is valid and effective
3. The legacy given to B’s child is not valid
Can a creditor of the testator act as a
witness?

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.
 Holographic wills

REQUIREMENTS: Must be
• Entirely written by hand of testator himself;
• Dated by the hand of the testator himself;
 There is already substantial compliance with
“FEB./61” (Roxas vs. de Jesus, 134 SCRA 245)
• Signed by the hand of the testator himself;
 Full or customary signature
 Thumbmark is not allowed in HW unlike in ordinary
will
 AC in HW is a mere surplasage
• Executed in the language or dialect known to testator
• Animus testandi
• Executed at the time that such wills are allowed
BQ 2012: 94. The following are the
formalities required 1n the execution of
holographic will, except:

a) Entirely written;
b) Dated;
c) Signed by testator himself
d) Notarized by a notary public.
 PROBATE OF HOLOGRAPHIC WILLS

• In the probate of a holographic will,

– IF NOT CONTESTED: at least one witness
who knows the handwriting and signature of
the testator.
– IF 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.
Can a lost or destroyed HW still be probated?
• the will cannot be probated because the best and
only evidence is the handwriting of the testator in
said will. It is necessary that there be a comparison
between sample handwritten statements of the
testator and the handwritten will. (Rodelas vs.
Aranza)

Can a photostatic copy be allowed in the probate of

HW?
• the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the
authenticity of the handwriting of the deceased can
be determined by the probate court. (Rodelas vs.
Aranza)
BQ (1997). Johnny, with no known living relatives,
executed a notarial will giving all his estate to his
sweetheart. One day, he had a serious altercation
with his sweetheart. A few days later, he was
introduced to a charming lady who later became a
dear friend. Soon after, he executed a holographic
will expressly revoking the notarial will and so
designating his new friend as sole heir.

One day when he was clearing up his desk, Johnny

mistakenly burned, along with other papers, the only
copy of his holographic will. His business associate,
Eduardo knew well the contents of the will which
was shown to him by Johnny the day it was
executed. A few days after the burning incident,
Johnny died. Both wills were sought to be probated
in two separate petitions. Will either or both
petitions prosper?
WHAT SHOULD THE TESTATOR IF
THERE ARE MORE OR ADDITIONAL
DISPOSITIONS WRITTEN BELOW HIS
SIGNATURE?

• The dispositions of the testator must be

dated and signed by him in order to make
them valid as testamentary dispositions.
(Art. 812)

• Unsigned and undated dispositions are

invalid but will not affect validity of the will.
WHAT IS THE EFFECT IF THERE ARE SEVERL
DISPOSITIONS WHICH ARE SIGNED BUT
NOT DATED?

• 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. (Art. 813)

• Subsequent dispositions if dated not signed,

the disposition is not validated by subsequent
dispositions, although the latter are dated and
signed
 INSERTIONS AND ALTERATIONS

• In case of any insertion, cancellation, erasure or

alteration in a holographic will, the testator must
authenticate the same by his full signature. ( Art. 814)

– Unauthenticated insertions or alterations will not

invalidate the entire will.
– The holographic Will in dispute had only one
substantial provision, which was altered by
substituting the original heir with another, but which
alteration did not carry the requisite of full
authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked
for the simple reason that nothing remains in the Will
after that which could remain valid. (Kalaw vs.
Relova, G.R. No. L-40207, September 28, 1984 )
Rationale by the SC:

• To state that the Will as first written should

be given efficacy is to disregard the
seeming change of mind of the testatrix.

• But that change of mind can neither be

given effect because she failed to
authenticate it in the manner required by
law by affixing her full signature.
BQ (1996)

Vanessa died on April 14, 1980, leaving

behind a holographic will which is entirely
written, dated and signed in her own
handwriting. However, it contains
insertions and cancellations which are not
authenticated by her signature. For this
reason, the probate of Vanessa's will was
opposed by her relatives who stood to
inherit by her intestacy. May Vanessa's
holographic will be probated? Explain.
 WHAT ARE THE EFFECTS OF INSERTIONS
MADE BY A 3RD PERSON?
When made Consent of Effect
Testator

After execution without  Insertion is considered as

not written
 Validity of the will cannot
be defeated by the malice
of the third person
After the execution With  Will is valid but insertion is
void
After the execution Validated by Insertion becomes part of
testator’s the will
signature Entire will is void
Contemporaneous with Entire will is void
with the execution
 JOINT WILLS

Concept
• It is a will made on one instrument by 2 or more
persons who jointly signed the same as their will
• If executed by a foreigner, joint wills may be
considered valid if allowed by their national law

Distinguished from Mutual Wills:

• Mutual Wills are separate wills of 2 or more
persons with reciprocal provisions
• Mutual Wills are valid as long as they are
separate
• 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.
Testators Place of Exec. Validity of Joint Wills
in the Philippines
Filipinos Phil or Abroad VOID even if valid under lex loci
celebrationis
Aliens Abroad VALID if valid under their lex
nationalii or lex domicilii or lex
loci celebrationis
Aliens Phil VOID even if valid under lex
nationalii or lex domicilii
Alien and Abroad As to the Alien - VALID if valid
Filipino under their lex nationalii or
lex domicilii or lex loci
celebrationis

As to the Filipino - VOID

BQ Wills; Joint Wills (2000)

Manuel, a Filipino, and his American wife Eleanor,

executed a Joint Will in Boston, Massachusetts
when they were residing in said city. The law of
Massachusetts allows the execution of joint wills.
Shortly thereafter, Eleanor died.

Can the said Will be probated in the Philippines

for the settlement of her estate? (3%)
BQ 2008. John and Paula, British citizens at birth, acquired
Philippine citizenship by naturalization after their marriage.

During their marriage the couple acquired substanial

landholdings in London and in Makati. Paula bore John three
children, Peter, Paul and Mary.

In one of their trips to London, the couple executed a joint will

appointing each other as their heirs and providing that upon the
death of the survivor between them the entire estate would go to
Peter and Paul only but the two could not dispose of nor divide
the London estate as long as they live.

John and Paul died tragically in the London Subway terrorist

attack in 2005. Peter and Paul filed a petition for probate of their
parent's will before a Makati Regional Trial Court.

Should the will be admitted to probate? (2%)

BQ 2011 # 70. Ric and Josie, Filipinos, have been
sweethearts for 5 years. While working in a
European country where the execution of joint
wills are allowed, the two of them executed a
joint holographic will where they named each
other as sole heir of the other in case either of
them dies. Unfortunately, Ric died a year later.

Can Josie have the joint will successfully

probated in the Philippines?
A. Yes, in the highest interest of comity of nations and to
honor the wishes of the deceased.

B. No, since Philippine law prohibits the execution of joint

wills and such law is binding on Ric and Josie even
abroad.

C. Yes, since they executed their joint will out of mutual love
and care, values that the generally accepted principles of
international law accepts.

D. Yes, since it is valid in the country where it was

executed, applying the principle of “lex loci
celebrationis.”
 CODICIL

Definition: A codicil is a supplement or

addition to a will, made after the execution of
a will and annexed to be taken as a part
thereof, by which any disposition made in the
original will is explained, added to, or altered.
(Art. 825)

How is it executed: In order that a codicil

may be effective, it shall be executed as in
the case of a will. (Art. 826)
 Incorporation by reference : Requisites

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;
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.
GR: Incorporation can be done only in
notarial wills because Art 827 speaks of
witnesses.

EXCEPTION:

1.if a holographic will happen to have

at least 3 credible and qualified
witnesses
2.if a holographic will (with NO
witnesses) refers to a document
entirely written, dated, and signed in
the handwriting of the testator
REVOCATION OF WILLS AND TESTAMENTARY
DISPOSITIONS

When can you revoke a will? A will may be

revoked by the testator at any time before his
death. (Art. 828)

Principles on revocation:
• Any waiver or restriction of this right is void. (Art.
828)
• A revocation of a will based on a false cause or
an illegal cause is null and void. (Art. 833)
• The recognition of an illegitimate child does not
lose its legal effect, even though the will wherein
it was made should be revoked. (Art. 834)
 LAWS GOVERNING REVOCATION

A.] Revocation made outside the Phil:

• If testator is not domiciled in Phil:

– law of the place where the will is made
– law of the place where the testator was domiciled at
the time the will was made (domiciliary law)

• If testator is domiciled in Phil:

– law of the Phil
– law of the place where the will was executed

B.] Revocation made in the Phil:

• Follow the NCC regardless of the domicile of the testator

• National Law will not apply
 HOW CAN A TESTATOR
REVOKE A WILL? (Art. 830)

1. By implication or operation of law

2. By virtue of overt act
3. By virtue of revoking will or codicil
 Revocation by implication of law

1. Decree of legal separation;

2. Preterition
3. Legacy or credit against 3rd person or
remission of debt was provided in will and
subsequently, testator brings action
against debtor;
4. Substantial transformation of specific thing
bequeathed;
5. When heir, devisee, or legatee commits
any of the acts of unworthiness
 Revocation by an Overt Act

• overt act of destruction is executed

• act must be completed at least on its
subjective phase
• these is an intent to revoke (animo
revocandi)
• at the time of the revocation, the testator
has capacity to make a will (of sound
mind)
• revocation is personally done or effected
by the testator himself, or by another
person by the express direction of the
former and in his presence
 Revocation by an Overt Act : Burning

• Burning of small part is sufficient

• Burning of envelope thinking it contains the will
but was actually removed is ineffectual
– person who removed the will cannot inherit
because of unworthiness
• An accidental burning is ineffectual
• If an envelope was burned but the will inside it
is untouched does not amount revocation
 Revocation by an Overt Act: Tearing

• Slight tearing of a will is sufficient

• Revocation is ineffectual if you were
stopped and persuaded by others to
discontinue such act
• Tearing of signature makes the will void
• Tearing includes cutting
 Revocation by an Overt Act :
Obliterating or Cancelling

• Cancellation - running of lines but words

remain legible
• Obliteration - to blot out or to render
undecipherable
– cancellation or obliteration revokes the will
totally or partially
– if all parts or just the signature is cancelled
or obliterated, the whole will is revoked
– signature strikes the existence of the entire
will

• Crumpling is not an overt act of destruction

 Revocation by the Execution of
Another Will or Codicil

• A subsequent will containing a clause

revoking a previous will, should possess
all the requisites of a will, should be signed
and attested in the manner provided by
law, and should be allowed, in order that
the revocatory clause thereof may produce
the effect of revoking the previous will.
(Samson vs. Naval, 41 Phil 638)
BQ 2012: 6. Ramon, a Filipino, executed a will in
Manila, where he left his house and lot located
in BF Homes Paranaque in favor of his Filipino
son, Ramgen. Ramon's other children RJ and
Ramona, both Turkish nationals, are disputing
the bequest to Ramgen. They plotted to kill
Ramgen. Ramon learned of the plot, so he tore
his will in two pieces out of anger. Which
statement is most accurate?

a) The mere act of Ramon Sr. is immaterial

because the will is still readable.
b) The mere act of tearing the will amounts to
revocation.
c) The tearing of the will may amount to revocation
if coupled with intent of revoking it.
d) The act of tearing the will is material.
 Implied Revocation

• Subsequent wills which do not revoke the

previous ones in an express manner,
annul only such dispositions in the prior
wills as are inconsistent with or contrary to
those contained in the later wills. (Art. 831)

– later provisions prevail

– only those incompatible are revoked
– not favored
 Doctrine of Absolute Revocation

A revocation made in a subsequent will shall

take effect, even if the new will should
become inoperative by reason of
• the incapacity of the heirs, devisees or
legatees designated therein, or
• by their renunciation. (Art. 832)
 Invalid Will Ineffective Will

invalid revoking will inoperative or ineffective

cannot revoke a valid will can revoke a
previous will previous will

valid but not operative

because incapacity of
heirs or renunciation
 Molo vs. Molo
Doctrine of Dependent Relative Revocation

• The testator cancels or destroys a will or executes an

instrument intended to revoke a will with a present intention to
make a new testamentary disposition as a substitute for the
old.

• The act of destruction is connected with the making of another

will so as fairly to raise the inference that the testator meant
the revocation of the old to depend upon the efficacy of the
new disposition intended to be substituted

• The revocation will be conditional and dependent upon the

efficacy of the new disposition; and if, for any reason, the new
will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force.

• The failure of the new testamentary disposition, upon whose

validity the revocation depends, is equivalent to the non-
fulfillment of a suspensive condition
2003 BQ: Mr. Reyes executed a will
completely valid as to form. A week later,
however, he executed another will which
expressly revoked his first will, which he tore
his first will to pieces. Upon the death of Mr.
Reyes, his second will was presented for
probate by his heirs, but it was denied
probate due to formal defects.

Assuming that a copy of the first will is

available, may it now be admitted to probate
and given effect? Why?
 ALLOWANCE AND DISALLOWANCE
OF WILLS

No will shall pass either real or personal property

unless it is proved and allowed in accordance
with the Rules of Court. (Art. 838)

• Probate
– process of proving before a competent court
the due execution of a will by a person
possessed of testamentary capacity and the
compliance with the solemnities prescribed by
law and its approval
General Rules:

1.Probate court’s area of inquiry is only

limited to the extrinsic validity of the will

2. Specifically, the Probate Court will deal

only with the:
a. due execution of the will
b. testamentary capacity of the testator
c. compliance with solemnities required by
law
Testate Estate of Pilapil, 72 Phil 546
• testator ordered to forego probate
• provision is void
• Probate is mandatory and is required by public
policy

Tolentino vs. Francisco, 57 Phil 749

• One of the witnesses repudiated the will
• a will may be admitted to probate
notwithstanding the fact that one or more of the
subscribing witnesses do no unite with the other,
or others it is sufficient if the court is satisfied
from all the proof that the will was executed and
attested in the manner required by law
Mercado vs. Santos, 66 Phil 215

• probated will later turned out to be a

forgery
• probate of a will is considered as
conclusive as to its due execution and
validity
• criminal action will not lie against the
forger of the will that has been duly
admitted to probate
Coso vs. Fernandez Deza, 42 Phil 596
• testator stated provisions in favor of a woman whom he
had illicit affairs
• mere affection, even if illegitimate, is not undue influence
and does not invalidate a will
• no imposition or fraud has been shown in the present
case.

Nepomuceno vs. Court of Appeals,G.R. No. L-62952.

October 9, 1985
• will contained provisions in favor of paramour
• the respondent court acted within its jurisdiction when
after declaring the Will to be validly drawn, it went on to
pass upon the intrinsic validity of the Will and declared
the devise in favor of the petitioner null and void.
• the probate court is not powerless to do what the
situation constrains it to do and pass upon certain
provisions of the Will.
Guevara vs. Guevara, 74 Phil. 479

• Will the right to ask for probate of wills prescribe?

– Reason and precedent reject the applicability of
the Statute of Limitations to probate proceedings,
because the same are established not
exclusively in the interest of the heirs, but
primarily for the protection of the testator's
expressed wishes

• Is probate still necessary even if decedent left no

debts?
– none of the heirs may sue for the partition of the
estate in accordance with a will without first
securing its allowance or probate by the court
Sps. Ricardo Pascual vs. Court of
Appeals, G.R. No. 115925, August 15,
2003

• there was a claim over a certain property

subject of a will pending probate

• article 838 means that, "until admitted to

probate, a will has no effect whatever and
no right can be claimed thereunder."
Reynoso vs. Tolentino., G.R. No. 46078. May
25, 1939.

• Court granted the partition of conjugal property

made in accordance with the will executed by
the spouse even if such partition is
disadvantageous to the other spouse
• The court should have substantiated the
opposition of the widow and should have given
her an opportunity to adduce evidence in its
support.
• The will, in so far as the testator alone made
therein a partition of the conjugal properties by
assigning to himself those which he liked and to
the wife those which she did not like, is illegal.
Nuguid vs. Nuguid [G.R. No. L-23445.
June 23, 1966.]

• testator omitted her parents in the will

• parties shunted aside the question of
whether or not the will should be allowed
probate
• these practical considerations induce this
Court to meet head-on the issue of the
nullity of the provisions of the will in
question, there being a justiciable
controversy awaiting solution.
• This is to avoid waste of time and
resources and as probate becomes an idle
ceremony when the will is obviously void
Martinez vs. Balanay [G.R. No. L-39247. June
27, 1975.

• wife disposed her husband’s share as hers

• where the will contains unusual provisions which

are of dubious legality, the trial court can pass
upon the will's intrinsic validity even before its
formal validity had been established.

• probate of a will might become an idle ceremony

if on its face the will is intrinsically void.
BQ (1990). H died leaving a last will and testament
wherein it is stated that he was legally married to W by
whom he had two legitimate children A and B.

H devised to his said forced heirs the entire estate except

the free portion which he gave to X who was living with
him at the time of his death. In said will he explained that
he had been estranged from his wife W for more than 20
years and he has been living with X as man and wife
since his separation from his legitimate family.

In the probate proceedings, X asked for the issuance of

letters testamentary in accordance with the will wherein
she is named sole executor. This was opposed by W and
her children.
(a) Should the will be admitted in said
probate proceedings?

(b) Is the said devise to X valid?

(c) Was it proper for the trial court to

consider the intrinsic validity of the
provisions of said will? Explain your
answers,
 ARTICLE 839. The will shall be disallowed in any of the ff cases
(These lists are exclusive;
no other grounds can serve to disallow a will):

• Non-compliance with the formalities required by law

- notarial wills = Art 804-806
- holographic wills = 810
• Insanity or mental Incapacity to make a will
• will executed through force or duress or fear or threats
- force = violence = serious and irresistible force
- intimidations = reasonable and well grounded fear of an -
imminent and grave evil upon his perso prop or upon the -
person or prop of his spouse, descendants or ascendants
• undue and improper pressure
- to be sufficient to avoid a will, the influence exerted must be
of a kind that so overpowers and subjugates the mind of the
testator as to destroy his free agency and make him express
the will of another rather than his own
• Signature of testator was procured by fraud
- fraud or trick must be proved by evidence
• testator acted by mistake or did not intend that the document be his
will at the time of signing
Effect of Fraud, force, duress, threats, undue
influence, and mistake:

In contracts In wills
vitiates consent and these vices of
renders the contract consent render the
voidable will void
voidable contracts are not susceptible of
susceptible of ratification; in
ratification succession, there is
no voidable will
if wants to ratify =
execute a codicil or a
ratifying deed
BQ 2012: 95. The following are the grounds
for disallowance of wills, except:

a) The formalities required by law have not

been complied with.
b) The testator was insane or mentally
incapable of making will.
c) The will was executed through force or
under duress, or influence of fear or
threats.
d) The will contains an attestation clause.
 INSTITUTION OF HEIRS

What is Institution of heir?

It is an act by virtue of which a testator

designates in his will the person or
persons who are to succeed him in his
property and transmissible rights and
obligations. (Art. 840)
Does failure to institute an heir invalidate a will?

• 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
– 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.
(Art. 841)
Rights and Limitations in the Institution of Heirs

• One who has no compulsory heirs may

dispose by will of all his estate or any part of it in
favor of any person having capacity to succeed.
(Art. 842)

• One who has compulsory heirs may dispose

of his estate provided he does not contravene
the provisions of this Code with regard to the
legitime of said heirs. (Art. 842)
 Requisites of Institution:

1. It must be made in a valid will

2. Made personally

3. Within the authority granted by law

4. The heir designated must be capable of succeeding

5. The heir must be certain or ascertainable

6. There should be no preterition of a forced heir

 How do you designate or institute an heir?

A. Identity of Heir (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.
B. Errors in the Institution of Heirs

• When Valid? 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.

• When Not Valid? 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 other proof, the person instituted
cannot be identified, none of them shall be an
heir.
C. Disposition in the Institution of Heirs

• Every disposition in favor of an unknown

person shall be void, unless by some
event or circumstance his identity
becomes certain.

• A disposition in favor of a definite class or

group of persons shall be valid.
D. Sharing in the Institution of Heirs

• Principle of Equality: Heirs instituted without

designation of shares shall inherit in equal parts. (Art.
846)
– 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. (Art. 848)

• Principle of Individuality: When the testator institutes

some heirs individually and others collectively as when he
says, "I designate as my heirs A and B, and the
children of C," those collectively designated shall be
considered as individually instituted, unless it clearly
appears that the intention of the testator was otherwise.
(Art. 847)

• Principle of Simultaneity: When the testator calls to the

succession a person and his children they are all
deemed to have been instituted simultaneously and not
successively. (Art. 849)
E. False Cause in the Institution of Heirs

• The statement of a false cause for the institution of

an heir shall be considered as not written,
unless it appears from the will that the testator
would not have made such institution if he had
known the falsity of such cause. (Art. 850)

• Requisites:
1. Cause for the institution of heirs must be
stated in the will
2. Cause must be shown to be false
3. Cause must appear from the face of the will
such that the testator would not have made
such institution if he had known the falsity of
the cause
F. Coverage in the Institution of Heirs

• Institution PARTLY covers the estate (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.
• Institution intended to cover WHOLE estate (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.

FORMULA:
total amount of Estate x share of each heir
total amount given to all in the will
• Institution EXCEEDS the whole estate (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.

FORMULA:
share of each heir x excess amount
total amount given to all in the will
What are the effects if there are PRETERITION or
INVALID DISINHERITANCE in the Institution of
Heirs?

• Preterition
– Entire institution is annulled
– Legacy shall remain as long as it is not
inofficious

• Invalid Disinheritance
– Institution will be annulled only insofar as the
legitime is impaired
– Legacy shall remain as long as it is not
inofficious
• Preterition in Institution: Effects

A has 3 kids namely X, Y and Z.

A, in his will, instituted X and Y only and his driver R.
Z was omitted.
Estate is 300.

• Institution is annulled because there is preterition

• Intestacy takes over
• X,Y and Z gets 100 each

What if R was just merely given a legacy of 10?

• Legitime is 150
• Legacy is not inofficious – effective
• Legacy must remain valid
• 300 less 10 = 290
• Divide 290 among X, Y and Z
Invalid or Ineffective Disinheritance in Institution: Effects

A disinherited X and instituted Y and Z as heirs.

X disinheritance is invalid.
The estate is 300.

• Get X’s legitime – 50

• 300 – 50 = 250
• 250 will be divided by Y and Z
• Institution will be annulled only insofar as the legitime is
impaired

What if a legacy of 10 is given to R?

• Legitime is 150 (50 each)

• Legacy is not inofficious – effective
• Legacy must remain valid
• 300 less 10 = 290
• Give the legitime to X of 50
• 290 – 50 = 240
• Divide 240 between Y and Z
2014 BQ: What is the effect of preterition ?
(1%)

(A) It annuls the devise and legacy

(B) It annuls the institution of heir
(C) It reduces the devise and legacy
(D) It partially annuls the institution of heir
BQ (1999)

(a)Mr, Cruz, widower, has three legitimate children,

A, B and C. He executed a Will instituting as his
heirs to his estate of P1,000,000.00 his two
children A and B, and his friend F. Upon his
death, how should Mr. Cruz's estate be divided?
Explain. (3%)

(b) In the preceding question, suppose Mr. Cruz

instituted his two children A and B as his heirs in
his Will, but gave a legacy of P 100,000.00 to
his friend F. How should the estate of Mr, Cruz
be divided upon his death? Explain, (2%)
 PRETERITION

Concept: The preterition or omission of one,

some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of
the will or born after the death of the testator, shall
annul the institution of heir (Art. 854)
 Requisites of Preterition:

1. Total omission in the inheritance

– there is preterition if mentioned in the will but not
given any share
– there is no preterition in the following:
• Heir is given less than his legitime (completion of
legitime)
• Heir is given a device or a legacy
• Heir is given donation inter vivos (advance
legitime)
• Testator omitted heir in the will but there are still
other properties to be disposed of intestate
• Testator disposed only of the free portion but
leaving the legitime intact

2. Omitted person must be a compulsory heir

3. Omitted Compulsory heir must come from the
direct line, whether ascending or descending
– EXCEPTION: an adopted child is deemed a
legitimate child
– preterition of a spouse does not invalidate
because not in the direct line

4. Omitted compulsory heir must survive the

testator
- includes posthumous heirs
- If the omitted compulsory heirs should die
before the testator, the institution shall be
effectual, without prejudice to the right of
representation.
BQ 2012: 96. It is the omission in the
testator's will of one; some or all of the
compulsory heirs in direct line, whether
living at the time of execution of the will or
born after the death of the testator. What
principle is being referred to?

a) reserva troncal
b) preterition
c) fideicommissary
d) disposicion captatoria
BA 2001: Because her eldest son Juan had been
pestering her for capital to start a business, Josefa
gave him P100,000. Five years later, Josefa died,
leaving a last will and testament in which she
instituted only her four younger children as her
sole heirs.

At the time of her death, her only properly left was

P900,000.00 in a bank. Juan opposed the will on
the ground of preterition.

How should Josefa's estate be divided among her

heirs? State briefly the reason(s) for your answer.
(5%)
BQ 2008. Arthur executed a will which contained only:

(i) a provision disinheriting his daughter Bernica for running off

with a married man, and
(ii) a provision disposing of his share in the family house and
lot in favor of his other children Connie and Dora.

He did not make any provisions in favor of his wife Erica,

because as the will stated, she would anyway get ½ of the
house and lot as her conjugal share.

xxx

Upon his death, it was discovered that apart from the house
and lot, he had a P 1 million account deposited with ABC
bank.

Was Erica preterited? (1%)

What is the remedy of an heir who was neither
preterited nor validly disinherited but was given less
than his legitime?

• The share of a child or descendant omitted in a will

must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient,
so much as may be necessary must be taken
proportionally from the shares of the other
compulsory heirs. (Art. 855)
• Any compulsory heir to whom the testator has left by
any title less than the legitime belonging to him may
demand that the same be fully satisfied. (Art. 906)
• Completion of Legitime
 Substitution of Heirs

Definition: Substitution is the appointment of

another heir so that he may enter into the
inheritance in default of the heir originally
instituted. (Art. 857)

Kinds:

(1) Simple or common ( Art. 858);

(2) Brief or compendious ( Art. 860);
(3) Reciprocal ( Art. 861);
(4) Fideicommissary ( Art. 863);
What to remember:

• The substitute shall be subject to the same

charges and conditions imposed upon the
instituted heir, unless
– the testator has expressly provided the contrary,
or
– the charges or conditions are personally
applicable only to the heir instituted. (Art. 862)
• Neither can he impose upon the legitime of his
compulsory heirs same any burden, encumbrance,
condition, or substitution of any kind whatsoever.
(Art. 904)
• The testator cannot impose any charge, condition,
or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same
shall be considered as not imposed. (Art. 872)
• A fideicommissary substitution can never burden
the legitime. (Art. 864)
 SIMPLE, VULGAR OR COMMON SUBSTITUTION
(Art. 859)

Concept: The testator may designate one or more

persons to substitute the heir or heirs instituted in
case:
1. such heir or heirs should die before him, or
(predecease)
2. should not wish, or (repudiation /
renunciation)
3. should be incapacitated to accept the
inheritance. (incapacity)

N.B. A simple substitution, without a statement of the

cases to which it refers, shall comprise the three
causes, unless the testator has otherwise
provided.
 BRIEF OR COMPENDIOUS
SUBSTITUION (Art. 860)

Concept: Two or more persons may be substituted

for one; and one person for two or more heirs.

• Brief Substutuion – two or more take the place of

one
• There is plurality of substitutes
• Equal shares in absence of stipulation
• Compendious Substitution– one takes the place of
two or more
• One is appointed for all
 RECIPROCAL SUBSTITUTION (Art. 861)

• If heirs instituted in unequal shares should be

reciprocally substituted, the substitute shall
acquire the share of the heir who:
– dies,
– renounces, or
– is incapacitated, unless it clearly appears that
the intention of the testator was otherwise.

• If there are more than one substitute, they shall

have the same share in the substitution as in the
institution.
Effect: Reciprocal Substitution

• Only two heirs reciprocally substituted

– the substitute acquires the whole share that
the other heir left vacant, whether that share
is larger or smaller than his own, unless it
clearly appears that the intention of the
testator was otherwise
• More than two heirs reciprocally substituted
– the vacant share must be divided among the
substitutes in the same relative proportion
as the respective shares given to them by
the testator
 FIDEICOMISSARY SUBSITUTION
(Art. 863)

Concept: A fideicommissary substitution

by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation
to preserve and to transmit to a second
heir the whole or part of the inheritance x
x x.
Requisites: Fideicommissary Substitution

1. First Heir (Fiduciary)

2. An obligation clearly imposed upon him
to preserve and transmit to a third person
the whole of part of the inheritance
3. Second Heir (Fideicommissary)
4. First and the Second Heirs must be only
one degree apart
5. Both heirs must be alive or at least
conceived at the time of testator’s death
Requisites: Fideicommissary Substitution

1. First Heir (Fiduciary)

• Must be capacitated and must accept

• May enjoy and use the fruits (not an agent) but
cannot alienate
• Bound to make inventory but not required to
post a bond
• He must preserve the capital of the property
• He must deliver the inheritance to the
Fideicommissary (or heirs of the latter)
• Period for the performance of the obligation
may be provided by the testator or during the
fiduciary’s lifetime
2. An obligation clearly imposed upon him
to preserve and transmit to a third person
the whole of part of the inheritance

• Must be given expressly by name or by

specific obligation
• Suggestion is not allowed
• Not conditional
3. Second Heir

• Naked owner
• There is ownership upon transfer of property
• Inherits from the testator
• If he dies ahead of the Fiduciary, but after the
testator, the rights of the fideicommissary pass
to his own heirs
• If the fideicommissary heir is disqualified to
inherit or repudiates, the substitution is
inoperative
4. The First and the Second Heirs must be
only one degree apart

• one generation and not one transfer

5. Both heirs must be alive or at least

conceived at the time of testator’s death
What to remember:

• A fideicommissary substitution can never burden the legitime.

(Art. 864)

• The nullity of the fideicommissary substitution does not

prejudice the validity of the institution of the heirs first
designated
– the fideicommissary clause shall simply be considered as
not written. (Art. 868)

• A provision whereby the testator leaves to a person the whole

or part of the inheritance, and to another the usufruct, shall be
valid.
– If he gives the usufruct to various persons, not
simultaneously, but successively, the provisions of article
863 shall apply. (Art. 869)

• The dispositions of the testator declaring all or part of the

estate inalienable for more than twenty years are void. (Art.
870)
BQ 2008. Raymond, single, named his sister Ruffa in
his will as a devisee of a parcel of land which he
owned. The will imposed upon Ruffa the obligation
of preseving the land and transferring it, upon her
death, to her illegitimate daughter Scarlet who was
then only one year old. Raymond later died, leaving
behind his widowed mother, Ruffa and Scarlet.

1. Is the condition imposed upon Ruffa, to preserve the

property and to transmit it upon her death to Scarlet,
valid? (1%)
2. If Scarlet predeceases Ruffa, who inherits the
property? (2%)
3. If Ruffa predeceases Raymond, can Scarlet inherit
the property directly from Raymond? (2%)
 Conditional Testamentary Dispositions and
Testamentary Dispositions With a Term

ARTICLE 871. The institution of an heir may be

made conditionally, or for a certain purpose or
cause.

Classes of Institution of Heirs:

1. With a condition
2. With a term
3. For a purpose or cause
4. Simple institution
1) Simple or pure

• The heir or legatee acquires the inheritance

from the death of the testator

2) Conditional Institution

• Its effectivity is subordinated to the happening

or non-happening of a fact or event which is
both future & uncertain depending:
– upon chance (casual); or
– upon the exclusive will of the heir
(potestative); or
– upon both 1 & 2 (mixed)
Limitations: Institution with Condition/s
1. The testator cannot impose any charge,
condition, or substitution whatsoever upon the
legitimes.
– Should he do so, the same shall be
considered as not imposed. (Art. 872)
– Exceptions:
• Payment of legitime in cash to other
children where an industrial, agricultural
or manufacturing establishment is allotted
entirely to one heir by the parent
(1080(2))
• Imposition of indivision for not more than
20 years (1083(1))
2. Impossible, illegal and immoral conditions (precedent)
are considered not imposed (Art. 873)

• Said prohibition applies even if the testator should

otherwise provide.
• The effect is that of pure institution
• The same rule applies in donations (727)
• The reverse rule is true in ordinary obligations (1183)
where the obligation itself is void

– If the condition is to do an impossible or illegal

thing, both the condition and the obligation are void.
– If the condition is negative, not to do the impossible,
just disregard the condition but the obligation
remains.
– If the condition is negative, not to do an illegal thing,
both the condition and the obligation are valid.
3. An absolute condition not to contract a first or
subsequent marriage shall be considered as not
written (Art. 874)
• Exceptions:
– such condition has been imposed on:
• the widow or widower by the deceased
spouse, or
• the latter’s ascendants or descendants.
– the right of usufruct, or an allowance or some
personal prestation may be devised or
bequeathed to any person for the time during
which he or she should remain unmarried or
in widowhood.
• Absolute prohibition may be imposed on the widow or
widower
• Relative prohibition applies only to a stranger
– Prohibition to marry a particular girl, or at a particular
time, or for a number of years
• The prohibition must expressly state both the condition and
the consequence of non-fulfillment
• If prohibition is violated, legitime is not affected
– Prohibition only applies to the free portion

4. Any disposition made upon the condition that the heir shall
make some provision in his will in favor of the testator or of
any other person shall be void. (Art. 875)
• “Disposition captatoria”
• Disposition itself is void, not merely the condition
BQ 2012: 97. Any disposition made upon the
condition that the heir shall make some
provision in his will in favor of the testator or of
any other person shall be void. Here, both the
condition and the disposition are void. What
principle is being referred to?

a) reserva troncal
b) preterition
c) fideicommissary
d) disposicion captatoria
BQ 2011 # 38. Fernando executed a will, prohibiting
his wife Marina from remarrying after his death, at the
pain of the legacy of P100 Million in her favor
becoming a nullity.

But a year after Fernando’s death, Marina was so

overwhelmed with love that she married another man.

Is she entitled to the legacy, the amount of which is

well within the capacity of the disposable free portion
of Fernando’s estate?
A. Yes, since the prohibition against remarrying is
absolute, it is deemed not written.
B. Yes, because the prohibition is inhuman and
oppressive and violates Marina’s rights as a free
woman.
C. No, because the nullity of the prohibition also
nullifies the legacy.
D. No, since such prohibition is authorized by law
and is not repressive; she could remarry but
must give up the money.
 Fulfillment of Potestative,
Casual or Mixed Conditions

1. Potestative Conditions (Art. 876)

– the fulfillment of which is dependent
purely on the exclusive will of the heir
– must be fulfilled by him as soon as he
learns of the testator's death.
– This rule shall not apply when the
condition, already complied with, cannot
be fulfilled again.
2. Casual or Mixed Conditions (Art. 877)

• Casual Condition depends upon

chance and/or upon the will of a third
person

• Mixed Condition depends partly upon

the will of the heir, devisee, or legatee
and partly upon chance and/or will of a
third person
• It shall be sufficient if it happen or be
fulfilled at any time before or after the death
of the testator, unless he has provided
otherwise.
• Should it have existed or should it have
been fulfilled at the time the will was
executed
– It shall be deemed as complied with if the
testator was unaware thereof.
– If the testator had knowledge thereof, the
condition shall be considered fulfilled only
when it is of such a nature that it can no
longer exist or be complied with again.
3. Negative Potestative Conditions (Art.
879)
• Consists in not doing or not giving
something
• Heir shall give a security that he will not do
or give that which has been prohibited by
the testator (caucion muciana)
• In case of contravention he will return
whatever he may have received, together
with its fruits and interests.
 Performance of Conditions (Art. 883)

• When without the fault of the heir, an institution

referred to in the preceding article cannot take
effect in the exact manner stated by the testator,
it shall be complied with in a manner most
analogous to and in conformity with his wishes.
(Substantial Compliance)

• If the person interested in the condition should

prevent its fulfillment, without the fault of the heir,
the condition shall be deemed to have been
complied with. (Constructive Fulfillment)
 Institution with a Term / Period

• The designation of the day or time when

the effects of the institution of an heir
shall commence or cease shall be valid
(Art. 885)

Kinds:
1. suspensive or ex diem
2. resolutory or in diem
Suspensive or ex diem
• Instituted heirs enters into succession only upon
arrival of the term
• does not prevent the instituted heir from
acquiring his rights and transmitting them to his
heirs even before the arrival of the term. (Art.
878)
• the legal heir shall be considered as called to
the succession until the arrival of the period (Art.
885)
– But legal heir shall not enter into possession
of the property until after having given
sufficient security, with the intervention of the
instituted heir. (Caucion Muciana)
Resolutory or in diem

• Instituted heir immediately enters into the

succession but such right terminates upon
arrival of the term
• the legal heir shall be considered as called
to the succession until the expiration of the
period. (Art. 885)
• No security required as compared to
suspensive term
 MODAL INSTITUTION

• The institution of an heir may be made

conditionally, or for a certain purpose or
cause. (Art. 871)
• The statement of:
– the object of the institution, or
– the application of the property left by the
testator, or
– the charge imposed by him, shall not be
considered as a condition unless it
appears that such was his intention.
(Art. 882)
 Modal Institution vs.
Conditional Institution

1. Modal Institution
• As a rule, it is not a condition (Art. 881)
• If violated, the instituted heir is supposed
to forfeit the inheritance and return
anything received with fruits and interests
(Art. 882)
• Inheritance can be immediately demanded
provided that security is given (Caucion
Muciana)
2. Conditional Institution

• Suspensive
– Inheritance cannot immediately be demanded
even if the heir voluntarily provides for a
security
– In the meantime, property will be placed
under administration (Art. 880)

• Resolutory
– Property can be taken upon giving of a
security (Art. 879)
– There is hardly any difference between modal
institution vs. resolutory condition
What to remember: Modal Institution

1. When in doubt, mode prevails over condition

2. When in doubt, suggestion prevails over mode
3. A condition suspends but does not obligate
4. A mode obligates but does not suspend
5. When without the fault of the heir, an institution
referred to in the preceding article cannot take
effect in the exact manner stated by the
testator, it shall be complied with in a manner
most analogous to and in conformity with his
wishes. (Art. 883)
6. If the person interested in the condition should
prevent its fulfillment, without the fault of the
heir, the condition shall be deemed to have
been complied with. (Art. 883)
BQ # 29. In his will, the testator designated
X as a legatee to receive P2 million for the
purpose of buying an ambulance that the
residents of his Barangay can use. What
kind of institution is this?

A. a fideicomissary institution.
B. a modal institution.
C. a conditional institution.
D. a collective institution.
(2002) By virtue of a Codicil appended to his will, Theodore
devised to Divino a tract of sugar land, with the obligation
on the part of Divino or his heirs to deliver to Betina a
specified volume of sugar per harvest during Betina’s
lifetime. It is also stated in the Codicil that in the event the
obligation is not fulfilled, Betina should immediately seize
the property from Divino or latter’s heirs and turn it over to
Theodore’s compulsory heirs. Divino failed to fulfill the
obligation under the Codicil. Betina brings suit against
Divino for the reversion of the tract of land.

a) Distinguish between modal institution and substitution of

heirs. (3%)
b) Distinguish between simple and fideicommissary
substitution of heirs. (2%)
c) Does Betina have a cause of action against Divino?
Explain (5%)
 THANK YOU!!!

Part 1 Exam Coverage

Arts. 774 - 886