Wills
Wills
Wills
As to Citizenship of Testator:
- If Filipino
o Determine where the will was executed
If executed in the Philippines it is determined by
Philippine law, the Civil Code
If executed outside the Philippines, it is governed by lex
loci celebrationis
o Lex loci celebrationis law of the place
where will was executed
Or if executed outside the Philippines testator may
choose Philippine law
o Executed in the Philippine embassy
- If non-Filipino
o He may choose from the following:
(1) Domiciliary law if in foreign country domiciled
(2) Lex Nationalis his own citizenship or nationality
(3) Philippine Law
o Note: If foreigner executes his will abroad (note: it is possible
that some property is in the Philippines, or some of the heirs are
Filipino citizens, thus such will need to be proven in the
Philippines.) he can choose the following:
Example: a citizen of the US legally residing in japan but
happen to have Filipino illegitimate children, or a Japanese
national residing in Singapore but who have shares of stock
or condominium unit in the Philippines.
He can choose numbers 1, and 2 above or lex loci
celebrationis
Note: If the extrinsic validity has already been threshed out in the probate
proceedings, that is the only time that the will be given effect. If will is in not
the form prescribed by law the will has no effect.
Thus after the issues of the form has been determined the next step
would be to determine the intrinsic validity of the will
Intrinsic validity of a will executed by Filipino
Note: The intrinsic validity of a will executed by a Filipino whether in the
Philippines or abroad, intrinsic validity pertains to the following:
o (a) order of succession
o (b) amount of successional rights
o (c) capacity of the heirs to inherit
The items mentioned above shall be governed by
Philippine law which is the law at the time of death,
or the law at the time successional rights will vest.
As to Issue:
- Concerned about the bare substance and effectively of
testamentary dispositions
o Example
Won the heir named is capacitated to inherit
WON the property to be given can in fact be conveyed
As to Time:
- Governed by the law at the time of death of the testator
o Reason: because that is when the successional rights vest
Note: although a will is executed inter-vivos it can only
take effect upon the death of its maker, prior to death of
the testator no rights can be transferred to the heirs.
Intrinsic validity of a will executed by a Non Filipino
- Article 16 paragraph 2 gives rise to a presumption that foreigners
are also governed by their own national law at the time of their
death.
- When a foreign law is material to the adjudication of a case in the
Philippines the following rules shall be observed:
o (a) the foreign law must be alleged and proved as if it were an
ordinary fact
o (b) Proved by official publication of foreign law if not
o (c) By an authenticated copy of that foreign law by the official
custodian abroad if not
o (d) By an authenticated or certified copy of the said law by the
Philippine embassy or consular official abroad
o (e) Note: if the foreign law upon proof refers it back to another
law then apply the principle renvoi
o (f) in the absence of proof of the foreign law or absence of
relevant evidence to the court then the rule on processual
presumption shall apply
Processual presumption means that the foreign law is
presumed to be the same as Philippine law
Testamentary Capacity
Note: The right to make a will is a purely statutory right, thus the
requirements for the law for its validity must be strictly or substantially
complied with as the case maybe, thus only certain persons are accorded a
right to make a will.
Testamentary power
- Refers to the statutory right to dispose of property post mortem
Testamentary Capacity
- Refers to qualifications or disqualification to make a will, as set forth by
the law itself
o Answers the question of who may exercise testamentary power
Qualifications to exercise Testamentary Capacity
- (1) must be at least 18 years of age at the time of execution
o 18 years old are allowed to make a will because they are
possessed of full civil capacity
o Minor cannot execute a valid will because of absence of
testamentary capacity
o If will is executed by a person below 18 years old such will
cannot be subsequently ratified when the testator reached the
age of majority the fact that it is void
Minors in the Philippines always die intestate
Remedy: make another will
Note: the specific formalities and solemnities for each kind or form are all
intended for the following purpose:
a. To close the door against fraud and false claims, the fact that
testator is already dead
b. To prevent substitution of wills, thus the law on formalities imposes
certain identifying marks in each and every page, so that no
insertion, removal or intercalation of pages shall be done, thats
why a will is a single continuous act
c. These formalities would be to avoid any part of the hereditary
estate from passing to persons never intended by the testator to
benefit
Specific solemnities of a Notarial or Ordinary Will
- (1) every notarial will must be subscribed (signed, act of affixing a
signature) by the testator
o Note: signature refers to any mark or symbol manifesting the
intent to be bound
o Subscription or the Signature identifies the parties to the
instrument
o Note: The signature of the testator must appear in the following
places:
(a) at the bottom of the will
Does not refer to the physical bottom but the logical
end of the testamentary act
o This is the signature after the last
testamentary provision
o This is mandatory
Reason: this is to conclude the dispositive act
made by the testator
(b) at the margin of each and every page
Purpose: to identify each and every page but
only if the will is spread and scattered on different
pages
o Note: A single page will need not be signed on
each and every page, it needs to be signed
only at the logical end.
General rule: the signature must appear on the
right hand margin
o Exception: if there is sufficient compliance
Thus: if the signature appears on the
left, on the top or on every margin, or on
the bottom, for as long as there is a
marginal signature of the testator on
each and every page
o Note: the last page of the testamentary
disposition need not be signed on the margin
as long as the testator signs at the bottom,
that fact alone sufficiently identifies the pages.
- The testator must sign the notarial will
o How:
Either by full signature (whole name)
By the customary signature
By any mark or symbol affixed by the testator on the
instrument as long as made with animus testandi
(intention) (cross or X)
o If there are discrepancies in the signature of the testator
In the case above the will should not be immediately
invalidated in the absence of proof or forgery or
falsification
Such discrepancies maybe explained by sufficient proof
In the use of marks or symbols there must be an
explanation as to why the testator signed on that manner
and did not use the customary or full signature
Such explanation above becomes necessary only
if none of the witnesses present in the execution
are present during probate
Illustration: if there were witnesses during probate,
the witnesses should testify in court that the testator
signed with a mark or symbol during probate, no
explanation necessary but if no witnesses could be
presented, that is the time where other witnesses
maybe required for an explanation.
o Note: rubber stamp not a signature
o If the testator is unable to personally sign the will the testator
may appoint some other person, to sign the will under
the express direction and in the presence of the testator.
Thus five persons present, three witnesses and the testator and
the person who was asked to sign
Note: the person assigned by the testator he or she must
write the name of the testator not copy the signature of
the testator, if he or she copy then there would be
accusation of forgery
Illustration: the testator is not able to physically sign it
must be signed this way:
Vitalliano Aguirre for Leila De Lima, or Leila De Lima
for Vitalliano Aguirre
Or Vitalliano Aguirre the agent can write the name of
Leila De Lima withour writing his own name
o Note: there must be an attestation clause
stating the Aguirre signed for and in behalf of
De Lima
o If the agent writes in his or her own name but
omits the name of the testator, the will is void
o What signature should the agent use?
Full name of the testator should be used
- (2) Every notarial will must be attested to and subsequently
subscribed by at least three instrumental witnesses who are
capacitated, qualified and disinterested
o Witnesses must possess all qualifications and none of the
disqualifications
Note: attestation: is a mental act, or act of the senses, it
involves observing or making a mental note that all the
requirements of law for the validity of the notarial will are
followed
Note: subscription: purely mechanical act, or by hand
- Illustration:
o Who among the witnesses and the testator should sign the will
first?
Answer: The testator
o What if one of the witnesses signed first?
Answer: it will not invalidate the will because no particular
order is prescribed by law
- Note: three tests to determine the validity of the will:
o (a) Test of sight as presence - The act of signing was actually
seen by the witness.
o (b) Test of position as presence The witnesses need not see
the testator or witnesses in the act of signing, but they must be
so positioned with one another that they could see if they
wanted to without any physical difficulty or physical
obstruction just by turning their head or by shifting their body.
o (c) Test of Knowledge for as long as the witnesses know that
the testator is signing provided that they are physically
present in the same room
o Note: the principle of In eodem Die ac tempore in eodem
loco applies to the tests above
What if the testator is seated on the table, parang yung
table ng teacher sa classroom. (Legend: W=witness,
T=Testator), W1 is on the left hand side , W2 is on the right
hand side and W3 is by the door talking on a phone with
the back turned against the testator and the other
witnesses, is the will valid?
Answer: will is valid, In eodem Die ac tempore in
eodem loco
o This means in the same date (in eodem die)
o For the same act or purpose (ac tempore)
o At the same place (in eodem loco) -
This means that all of the parties
(testator and the witnesses) must act at
the time of the execution without
interruption and in the presence of
one another.
The third witness although back turned back and
busy talking on the phone, the will is valid because
he was in the presence of all the witnesses (test of
presence)
What if W3 opened the door and stepped out was the will
executed in the presence of one another?
Answer: the will is void because they were not
present with one another at the time of signing
The will of the testator took 17 pages, all of them were
taking turns to sign, W1 and W2 asked permission to go to
the bathroom as the testator was signing 15, 16 and 17 is
the will valid?
Answer: no because they are not in the presence of
each other
What if the testator was signing with the two witnesses,
the third witness was playing a game in his tablet?
Answer: will is still valid because of presence
What if the witness steps out, but peeks through the door?
Answer: Yes, Test of sight
What if the testator was signing and the W1 is in the far
corner talking to the phone, W2 on another corner of the
room playing, and W3 on another corner writing, is the will
valid?
Answer: Test of Knowledge
W3 is by the door still inside the room, W1 is in the left and
W2 in the right, and a fifth person who is fat or wide, is in
front of the testator signing is the will valid?
Answer: valid because under the test of presence W3
can simply move to see the signing, under the test of
knowledge the W3 knows that the testator is signing
and all witness are present in the same room, and
under the test of sight because two witnesses saw
the will being signed
What if all parties are present in the same room, two
witnesses at the side of the testator W3 is on his chair but
dozing off, is the will valid?
Answer: the will is void, because he could not see the
will signed
o Where must the witnesses sign?
(1) On the margin of each and every page if the will is
spread on several pages to prevent substitution or
intercalation
(2) at the bottom of the will
Note: witnesses are required to execute attestation
clause usually embodied in the will thus they must
sign at the bottom after the testator, (kasi nasa taas
yng signature ng testator after ng mga dispositions
niya, tapos nasa baba yung attestation clause kung
saan mag sign yung mga witness)
o The attestation clause is actually a certification or affidavit
executed by instrumental witnesses containing certain facts:
(a) the number of pages of the will that is signed
error in the number of pages makes the entire will
void
failure to state the number of pages invalidates the
will
If the attestation clause contains three pages but a
physical examination reveals that it has 7 pages the
entire will is void
An error in the numbering of pages stated in the
attestation clause cannot be corrected by the
number of pages stated in the acknowledgement
clause(Lopez case)
(b) The fact that the witnesses saw the testator sign in
their presence, or some other person (agent whose name
must be stated in the attestation) signed in the presence
and under the express direction of the testator.
(c) That the witnesses themselves signed the will in the
presence of the testator and of each other
Note: General rule: Omission of items a b and c
would be a fatal defect the fact that those
mentioned in those items are mandatory
Exception: in the absence of fraud forgery or
bad faith mere defect in the language or form
in the attestation clause should not invalidate
it for as long as the three compulsory
requirements are stated there in.
Note: substantial compliance with the requirements in
items a b and c is enough, but when these
requirements are absent, then strictly the will is void
Note: as long as all the three requirements are present
the will is valid, all other additions to the attestation clause
are considered as mere surplus.
Note: if the attestation clause is written in a language not
known to the witnesses it is still valid, because mere
translation of the contents of the attestation clause for the
benefit or understanding of the witnesses is sufficient,
unlike the rule for the testator, magkabaliktad sila.
Note: an unsigned attestation clause invalidates the
whole will, or a will without attestation clause is void.
Note: if the testator signs the attestation clause the will is
still valid, the signature is considered mere surplusage.
Holographic Wills
Three essential requirements for a valid holographic will
- (1) It must be entirely written by the hand of the testator
- (2) It must be dated by the hand of the testator
- (3) Signed personally by the testator
o Note: outside of the three elements above (meaning all
elements must first be complied with) a holographic will may be
written in any form
Illustration: Court concluded that what was presented
was a notebook containing list of the debtors of the
testator and beside each name was the amount lent by the
testator to these various parties, and after the amount she
would indicate any payment made (listahan ng utang)
personally kept and updated by the testator. Upon her
death it was discovered that in some of the pages of this
notebook, she gave specific instructions as to how her
property shall be divided after her death, and that she
affixed a date on such instructions and designated a
person who is tasked to make such division, and then she
signed afterwards, this is considered as a holographic will
by the Supreme Court.
Illustration: the testator wrote a letter to his brother in
the anticipation of his death, after the usual salutations, he
reminded his brother on how his property will be
partitioned after his death, and who would be given
property, the SC held that it is a holographic will, because
it is entirely hand written, dated and signed by the testator.
Explanation of three elements:
- (1) must be written by the testator (entire will)
o This means that the making of a holographic will is purely
personal therefore it is void should any part of the holographic
will is type written or written by some other person.