TESTAMENTARY

SUCCESSION
WILL - 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)
Kinds of Wills: 1. Notarial or ordinary 2. Holographic
Characteristics of a Will:
1. UNILATERAL
2. STRICTLY PERSONAL ACT - The disposition of property is solely
dependent upon the testator.
3. FREE AND VOLUNTARY ACT – Any vice affecting the testamentary
freedom can cause the disallowance of the will.
4. FORMAL AND SOLEMN ACT – The formalities are essential for the
validity of the will.
5. ACT MORTIS CAUSA
6. AMBULATORY AND REVOCABLE DURING THE TESTATOR’S LIFETIME
7. INDIVIDUAL ACT – Two or more persons cannot make a single joint
will, either for their reciprocal benefit or for another person. However,
separate or individually executed wills, although containing reciprocal
provisions (mutual wills), are not prohibited.
INTERPRETATION OF WILLS (ARTS. 788-792)
All rules of construction are designed to ascertain and give
effect to that intention. It is only when the intention of the
testator is contrary to law, morals, or public policy that it
cannot be given effect.

In case of doubt, the interpretation by which the disposition is

to be operative shall be preferred.
Kinds of Ambiguities: (Article 786)
1. LATENT OR INTRINSIC AMBIGUITIES – that which does not appear on
the face of the will and is discovered only by extrinsic evidence.
2. PATENT OR EXTRINSIC AMBIGUITIES – that which appears on the face
of the will itself.
AFTER-ACQUIRED PROPERTY (Art. 793) Gen. Rule: Property acquired
during the period between the execution of the will and the death of
the testator is NOT included among the property disposed of.
Exception: When a contrary intention expressly appears in the will

This rule applies only to legacies and devises and not to institution of
heirs.
TESTAMENTARY CAPACITY
– refers to the ability as well as the power to make a will.
– must be present at the time of the execution of the will.

Requisites:
1. At least 18 years of age
2. Of sound mind, i.e., the ability to know: a. the nature of the estate
to be disposed of; b. the proper objects of his bounty; and c. the
character of the testamentary act.
FORMALITIES OF WILLS (EXTRINSIC VALIDITY)
COMMON FORMALITIES:
1. Every will must be in writing; and
2. Executed in a language or dialect known to the testator.
SPECIAL FORMALITIES OF NOTARIAL OR ORDINARY WILL
a. SUBSCRIPTION – made at the end thereof by the testator himself or
by the testator's name written by some other person in his
presence and by his express direction;
b. ATTESTATION AND SUBSCRIPTION - (evidenced by an “attestation
clause”) by 3 or more credible witnesses in the presence of the
testator and of one another;
 Attestation consists in the act of witnesses of witnessing the
execution of the will in order to see and take note mentally that such
will has been executed in accordance with requirements prescribed by
law.
Attestation Subscription
1. an act of the senses 1. an act of the hand
2. mental act 2. mechanical act
3. purpose is to render available proof 3. purpose is identification
during probate of will

c. MARGINAL SIGNATURES – affixed by the testator or the person

requested by him to write his name and the instrumental witnesses of
the will on each and every page thereof, except the last, on the left
margin;
d. PAGE NUMBERINGS – Written correlatively in letters placed on the
upper part of each page;
e. ACKNOWLEDGMENT – Done before a notary public by the testator
and the instrumental witnesses.

WITNESS TO NOTARIAL WILLS (ARTS. 820 & 821)

Requirements:
1. of sound mind; 2. able to read and write; 3. not blind, deaf or dumb;
4. at least 18 years of age; 5. domiciled in the Philippines; 6. has not
been convicted of falsification of a document, perjury, or false
testimony
HOLOGRAPHIC WILL (Article 810) a. entirely written by the hand of the
testator; b. entirely dated by the hand of the testator; and c. entirely
signed by the hand of the testator.
Rule in case of insertion, cancellation, erasure or alteration: Testator
must authenticate the same by his FULL SIGNATURE. (Article 814)

Probate of Holographic Will

1. If UNCONTESTED, requires that at least 1 witness who knows the
handwriting and signature of the testator explicitly declare that the
will and signature are in the handwriting of the testator; if no
witness, expert testimony may be resorted to.
2. If CONTESTED, requires at least 3 of such credible witnesses, if none
expert witness.
CODICIL AND INCORPORATION BY REFERENCE

CODICIL 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.
(Article 825)
REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS
REVOCATION An act of the mind, terminating the potential capacity of
the will to operate at the death of the testator, manifested by some
outward or visible act or sign, symbolic thereof. Such right to revoke a
will cannot be waived or restricted.

LAWS WHICH GOVERN REVOCATION (ART 829) 1. If the revocation

takes place in the Philippines, whether the testator is domiciled in the
Philippines or in some other country, it is valid when it is in accordance
with the laws of the Philippines 2. If the revocation takes place outside
the Philippines, by a testator who is domiciled in the Philippines, it is
valid when it is in accordance with the laws of the Philippines
3. Revocation done outside the Philippines, by a testator who does not
have his domicile in this country, is valid when it is done according to
the: a. laws of the place where the will was made, or b. laws of the place
in which the testator had his domicile at the time of revocation;

MODES OF REVOCATION (ART 830)

1. By implication of law
2. By some will, codicil, or other writing, executed as provided in case
of wills, which may either be: a. Express – when there is a revocatory
clause expressly revoking the previous will or a part thereof b.
Implied – when the provisions thereof are partially or entirely
inconsistent with those of the previous will
3. By burning, tearing, cancelling, or obliterating the will.
REPUBLICATION AND REVIVAL OF WILLS
REPUBLICATION The act of the testator whereby he reproduces in a
subsequent will (express) the dispositions contained in a previous will
which is void as to its form, or he executes a codicil (constructive) to his
will. Its purpose is to cure the will of its formal defects.

Effects of Republication by virtue of a Codicil:

1. Codicil revives the previous will
2. The old will is republished as of the date of the codicil— makes it
speak, as it were, from the new and later date.
3. A will republished by a codicil is governed by a statute enacted to the
execution of the will, but which was operative when the codicil was
executed.
REVIVAL The restoration to validity of a will previously revoked by
operation of law (implied revocation).

ALLOWANCE AND DISALLOWANCE OF WILLS

PROBATE A special proceeding mandatorily required for the purpose of
establishing the validity of a will.
Questions determinable by the probate court: (ICE)
1. identity of the will;
2. testamentary capacity of the testator at the time of the execution of
the will; and
3. due execution of the will.
Grounds for Disallowance of a Will (ART 839)
1. Formalities required by law have not been complied with;
2. Testator was insane, or otherwise incapable of making a will, at the
time of its execution;
3. Will was executed through force or under duress, or the influence of
fear, or threats;
4. Will was procured by undue and improper pressure and influence,
on the part of the beneficiary or of some other person;
5. Signature of the testator was procured by fraud;
6. Testator acted by mistake or did not intend that the instrument he
signed should be his will at the time of affixing his signature thereto.
REVOCATION
1. voluntary act of the testator.
2. with or without cause.
3. may be partial or total.
DISALLOWANCE
1. given by judicial decree.
2. must always be for a legal cause
3. always total except: when the ground of fraud or
influence for example affects only certain portions of
the will.