SUCCESSION DEVISE AND LEGACY

( 2024 edition ) Art. 782 An heir succeeds by universal title. Devisee or legatee succeeds by
particular title.
Art. 774. Succession is 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 an heir is one who succeeds to the whole (universal) or aliquot part of the
are transmitted through his death to another or others either by his will or by estate. Devisee or legatee is one who succeeds to definite, specific, and
operation of law. individualized properties.
E.g., I bequeathed 1/2 of my fishpond in Pampanga to A. Is the successor an
Two elements of Succession.-- (1) identity of objects; (2) change of subjects.
heir, legatee or devisee? A devisee, the prop. being a specific real prop.
Rule.-- The estate of the decedent pays for the obligations of the decedent.
What is left is given to the heirs.
It is not important to distinguish bet. heir devisee and legatee. Except in
Connect Art. 774 w/ Art. 776, supra. one instance, in case of preterition in Art. 854. If read carefully, institution of
-For money debts: If not paid in settlement proceedings, heirs could be liable to heir is annulled while devise and legacy are not, so long as there is no
the extent of what they received impairment of the legitime.
-For obligations: E.g., lessee-lessor-- obligation to keep the lessee in the
peaceful possession is transmitted to the heirs.
-Property and Rights: Passed on to the decedent's successors
4BLUE95 NOTE: The distinction between heirs and devisees or legatees is
important in these cases:
(a) Preterition (Art. 854)
(b) Imperfect/Ineffective disinheritance
Art. 776. The inheritance includes all the property, rights and obligations of a
(c) After-acquired properties (d) Acceptance or non-
person which are not extinguished by his death.
repudiation of successional rights

Guidelines on whether rights/ obligations are extinguished by death:

1. Property, rights and obligations which are purely personal are extinguished
by the death of the decedent. They are not part of the inheritance, e.g.,
membership in the bar or right of consortium w/ your wife.
AFTER ACQUIRED PROPERTY:
2. Those w/c are purely patrimonial. General rule: They form part of the
inheritance, e.g., credits.
Exception: Money debts.-- obligation to pay is not transmissible, although
purely patrimonial bec. the estate pays for it. Art. 793. prop. acquired after the making of the will will not pass unless
there is a clear intention or express provisions that the prop. will be passed
3. Those obligations transmitted to the heirs w/c are not monetary, e.g.,
by the testator.
obligation of a lessor-- patrimonial. B leased to C a parcel of land for a term of
3 years. After 2 years, B died. The heirs of B are bound by the lease 2022 notes: applicable only to Legacy and Devise
contract.Obligation as lessee and bailee are transmissible.
E.g., I give as legacy to M my cars. I only had 2 cars when I executed the
4blue95. Under Article 774 of the Civil Code, through succession, the property, will. After w/c I acquired 15 more cars. When I die, how many cars will
rights, and obligations (including debts) to the extent of the value of the she get? Following Art. 793, she will get only 2 cars. The additional cars
inheritance are transmitted from a decedent to another. That means that debts are not included.
survive death; however, it does not follow that creditors may go after the
decedent’s heirs’ in their personal capacity. Creditors may only go after the General rule: After acquired property shall not pass.
estate of the decedent, effectively reducing the heirs’ shares, if any, in such Exception: If the will provides otherwise. If he said "all my cars when I
estate. die, " then M gets all 17 cars.

Art. 777. The rights to the succession(inheritance) are transmitted from the BAR. There was a building in 2000 owned by T which was devised to D.
moment of the death of the decedent. --heart and soul of succession. The most T died in 2010. which means the rental income from 2000 to 2010 shall
essential provision of the law on succession go to T (walang mapunta kay D since T is still alive… as such the rental
income operates as after acquired property ) however, after death of T, D
Four Elements of Succession: already is the owner of the building and also of the rentals.
1. Death
2. Will or Operation of law
3. Existence and capacity of the successor
4. Acceptance.
Rights to succession are vested from the moment of death, not upon the filing of
petition for testate/ intestate proceedings, not upon the declaration of heirship or upon Art. 794.
settlement of the estate.

The rights to succession are automatic. Tradition or delivery is not needed. Fiction
General rule: Legacy or devise will pass exactly the interest of the testator
of the law is that from the moment of the death of the decedent, the right passes to over the property.
the heirs.
During the lifetime of the predecessor, rights to succession are a mere expectancy. Exception: Unless it appears from the will that he is giving less.
Hence, no contract can be legally entered into regarding the expected inheritance.
When a heir receives his inheritance, he is deemed to have received it at the point of The testator may give a lesser interest, e.g., I give the usufruct of my land
death. this is so by legal fiction to avoid confusion. to X. What results? Usufruct to X, ownership of the land goes by
intestacy.

Art. 778. Succession may be: B, G and J are co-owners. B gave to A the land they owned in common,
that is the entire land and full ownership over it giving more than what he
(1) Testamentary; (Art. 779.)-- designation of an heir in a will owns. Is this allowed? Yes. The remedy is to buy the shares of J and G
(2) Legal or Intestate; -- w/o a will or the will is invalid
but he can not compel them to buy his share, there being no redemption of
(3) Mixed. (Art. 780.)-- partly by will and partly by law
the whole land or give to A the value of B's share, if G and J are not
(4) Compulsory.-- Succession to the legitime by a forced heir.
willing to sell their shares.
 2

TESTAMENTARY SUCCESSION Art. 784. The making of a will is a strictly personal act; it cannot
be left in whole or in part to the discretion of a third person, or
accomplished through the instrumentality of an agent of an
attorney.
WILLS
E.g., A dictated The Secretary wrote it down and typed. Is the will
Art. 783. A will is an act(dapat document!) whereby a person
valid? Yes. What cannot be left in whole or in part to a third person
(natural persons_ is permitted, with the formalities prescribed by
is the exercise of the will making power, the exercise of the
law, to control to a certain degree the disposition of his estate, to
disposing or testamentary power. The mechanical act can be
take effect upon his death.
delegated.
"Permitted to control to a certain degree."-- why certain degree?
Bec. compulsory heirs cannot be deprived of their legitimes. If there
Art. 785. Things Which Cannot be Delegated to a Third Person
are no compulsory heirs, the power of the decedent to dispose of his
by the Testator:
estate is absolute.
1. Designation of heir, legatee or devisee, e.g., I hereby appoint X as
my executor and it is in his discretion to distribute my estate to
Characteristics of Wills:
whomever he wants to give it. This can not be done.
2. Duration or efficacy of such disposition like, "Bahala ka na,
Purely personal act. (Arts. 784-787.)-- non-delegable; personal
Ruben."
participation of the testator is required.
3. Determination of the portion to w/c they are to succeed, when
referred to by name.
Free act.-- it means w/o fraud, violence, deceit, duress, or
intimidation. It is voluntary. No vitiated consent.
Examples of Prohibited Delegation:
Dispositive of property.-- If it does not, it will be useless. But as
1. Can not delegate the designation of the amount of prop., e.g., I
far as the law is concerned, it can be probated but a useless expense.
hereby set aside the sum _____ w/c my executor may determine for
It is only valid as to form and nothing else.
the cause of mental health. The amount is not specified.
Exceptions:
a. when a will recognizes an illegitimate child
2. Can not delegate the determination of causes or classes to w/c a
b. when a will disinherits a compulsory heir
certain amount is to be given, e.g., I hereby set aside P1M for such
c. when it appoints an executor
worthy causes as you may determine. This is not valid bec. the cause
Essentially revocable.-- ambulatory, it is not fixed, can be taken
is not specific.
back (while the testator is alive.) There is no such thing as an
irrevocable will. It only becomes irrevocable upon death of the
testator.
Art. 786. The testator may entrust to a third person the
Formally executed.-- If the form is defective, it is void. It can not
distribution of specific property or sums of money that he may
be cured.
leave in general to specified classes or causes, and also the
designation of the persons, institutions or establishments to
Testamentary capacity of the testator.
which such property or sums of money are to be given or
Unilateral act.-- does not involve an exchange of values or depend
applied.
on simultaneous offer and acceptance.
---an exception to Arts 784 and 785. It covers things that are part of
Mortis causa.-- takes effect upon the person's death (Art. 777.)
the essence of will making but allowed to be delegated.
Statutory grant.-- granted only by civil law. The law can also take
it away. It is not a constitutional right but merely statutory. In
By way of exception, there are 2 things w/c can be delegated.
Russia, there are no wills, all intestacy
The testator must specify-- (a) the amount of property; (b) the
cause of classes of property-- before the delegation can take
Animus Testandi.-- There must be an intent to dispose mortis causa
effect.
the property of the testator. There must be a real intent to make a
will or a disposition to take effect upon death. Said intent must
1. The designation of person or institution falling under the class
appear from the words of the will.
specified by the testator. Choosing the members of the class but is
Montinola v. CA, 3 CA Reports 377.-- The Republic contended that
restricted by the class designation, e.g., I hereby set aside the sum of
the phrase "I hereby leave you (motherland), parents, loved ones... "
P1M for the development of AIDS research. M will choose w/c
is a testamentary disposition in favor of the Republic as an heir. CA
institution. This is allowed bec. you have guided already M's
ruled that it was not. The phrase is a mere piece of poetry, there
decision. However, M cannot designate Manila Hotel.
being no animus testandi. The lack of such intent might be seen
from the face of the document itself.
2. The manner of distribution or power of apportioning the amount
of money previously set aside or prop. specified by the testator, e.g.,
Individual.-- One person alone. Joint wills are prohibited under
I designate the following hospitals to get the share in my estate and
Art. 818.
appoint M to apportion the amount of P10M. I set aside P250,000
for the following institutions: UP, PGH, SR, in an amount as my
Vitug v. CA.-- A couple executed a survivorship agreement wherein
executor may determine.
their joint bank account would become the sole property of the
surviving spouse should one of them die. The SC held that such
agreement is valid. The conveyance is not a will bec. in a will, a
person disposes of his prop. In this case, the bank account is part of
the conjugal funds. Neither is the agreement a donation inter vivos
Art. 787. The testator may not make a testamentary disposition
bec. it takes effect after death.
in such manner that another person has to determine whether or
not it is to be operative (clarifies what is meant that "a will is
personal.")
 3

VALIDITY OF WILLS

Art. 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 (it refers to
extrinsic validity in the view point of time).

1. EXTRINSIC VALIDITY 2. INTRINSIC VALIDITY

Refers to forms and solemnities needed. E.g: no of witnesses to a Refers to legality of the provisions in the instrument,contract or will.
will, kind of instrument (public or private) E.g: items with regard dispositions,whether or not omission of a child
in the will renders will void, or disposition in favor of a friend
impairs legitime or whether compulsory heir has been given his
rightful share or legitime.

a. if Pilipino is the one who makes the will (art 17 and 815 applies):
4blue95 notes: Before Effectivity of Civil Code,illegitimate or
Art 17:forms and solemnities of contracts,wills and other instruments recognized natural/spurious child cannot inherit, as such ,if testator
shall be governed by law of country in which there are executed
If it is executed before diplomatic officials of RP in foreign
did not state it in his will at time of his death that such child can
country,solemnities establish by RP laws shall be observed in their inherit ,then the child cannot contend that he has a rightful share in
execution. the estate (this is an example of Intrinsic as to Time).
(it is also applicable on the alien)
4blue95 notes: At time of death, a citizen and resident of Texas who
Art 815: if pinoy is in foreign country, he is authorized to make a will in did not give anything to his illegit children any legitimes,latter
any form established by law of country in which he may be. cannot contend that they have been deprived of their legitimes since
the national law of decedent do not recognized any legitimes

Intestate and testamentary succession, both w/ respect to : order of

b.if Alien is the one who makes the will succession, amount of successional rights and the intrinsic validity
of testamentary provision shall be regulated by the national law of
Outside the Philippines(816) person whose succession is under consideration whatever is the
he may choose the formalities of the country – where he resides, or in nature of the property and regardless of the country wherein said
accordance with formalities of his country or in accordance with RP laws.
property may be found.
Inside the Philippines (817) Exception to such is when it focuses on property not located in the
Execute it in accordance with law of country in which he is a citizen and Philippines and even if law of foreign person states that property
which is allowed by his country shall have same effect as if executed in distribution is in accordance with Philippine law ,still, such is not
accordance with law of RP. applicable since it contravenes Art 16: that ―real as well as personal
property is subject to law of the country where it is situated‖
2022 notes:since now we know what law to follow, the next step to know
is what effective law to follow, the old or new, as such it is called as Time
Problem:Turk executed in the RP a will, whereby, observing RP
criterion.-- so we will follow the law at the time of execution; subsequent laws, he stated that his estate be distributed in accordance with RP
laws cannot apply retroactively. law on succession.
HELD: Void since estate must be distributed in accordance with the
laws of his country and not the law of RP and even If Turkish law
allows the distribution of property in accordance with RP laws, still
the provision is to be regarded as void since it contravenes Art 16.

RULES OF FORMAL VALIDITY OF WILLS

Every testator, whether Filipino or alien, wherever he may be, has five choices as to
RENVOI DOCTRINE:
what law to follow for the form of his/her will: If deceased was a citizen of California but was domiciled in RP at
(a) Law of his citizenship (Art. 15, 816, 817) time of death,we ordinarily apply California law but since such it
(b) Law of the place of execution (Art. 17) provides that succesional rights shall be governed by law of place of
(c) Law of his domicile (Art. 816) domicile (the Philippines) we should apply our law to avoid
(d) Law of his residence (Art. 816)
(e) Philippine law (Art. 15, 816, 817) international football. In effect ,we would be accepting the RENVOI
(return to us) doctrine.

2022 notes: Renvoi is only applicable where decedent is a national of

TESTAMENTARY CAPACITY AND INTENT
one country and a domiciliary of another and not when the decedent
It is the ability as well as the legal capacity to make a will. It must be present at the is both a national and domiciliary of one country (see 2 nd 4blue95
time of the execution of the will. (Balane, supra, p. 52) Who are capacitated to make notes under intrinsic)
a will (NES) 1. Natural person not expressly prohibited by law to make a will. (Art.
796) 2. Eighteen (18) years old and above (Art. 797). 3. Of Sound mind, at the time
of its execution (Art. 798) All of these must be present at the time of the execution of
the will. (in relation with Art. 801)
2022 notes:conflict of law pertains to:
Procedural law and if such is not proven, will cannot be
probated, but if it is substantive law, doctrine not proven, will
can still be probated.
 4

TESTAMENTARY CAPACITY AND INTENT INTERPRETATION OF WILLS

Art. 796 Art. 788. If a testamentary disposition admits of different interpretations,

General rule: All persons have the testamentary capacity to make a will. in case of doubt, that interpretation by which the disposition is to be
operative shall be preferred.
Exception: Incapacity, when expressly prohibited by law:
(1) disqualified by reason of age (Art. 797); --Persons of either sex under eighteen Kinds of Ambiguity:
years of age cannot make a will.
(2) disqualified by reason of mental incompetence. (Art. 798.) --Soundness of mind
a. Patent, apparent.-- that w/c appears in the face of the will, e.g., "I
is determined at the time of the execution of the will
give 1/2 of my estate to one of my brothers." Who among the brothers?
2022 notes: A convict under civil interdiction is allowed to make a will since civil This is patently ambiguous.
interdiction prohibits disposition of property inter vivos not mortis causa.. Aside
from that, spendthrifts or prodigals ,even under guardianship can make a will b. Latent, hidden.-- perfectly unclear on its face. The ambiguity does
provided they are atleast 18 years of age and are of sound mind. not appear until you apply the provisions of the will, e.g., "I give to M
the prop. intersecting Buendia and P. de Roxas. The ambiguity is
determined only when the will is probated. That is, when it appears
that I am the owner of all the 4 corners of the lot. Now, w/c of those
Art. 799. To be of sound mind, it is not necessary that the testator be in full lots?
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other cause. Rule:Testacy should be preferred or upheld as far as practicable. Any
It means realization of or knowing:
doubt shall be resolved in favor of testacy(789).
a. The nature of his estate.-- Know what you ownIt is enough that he has more or
less a fairly accurate idea what his properties are. If you think you own Ayala bridge
and gives it as a devise, something is wrong w/ you. How will you resolve the ambiguity? What evidence do you admit?

b. Proper objects of his bounty.-- Know his immediate relatives. You can admit any kind of evidence as long as relevant and
admissible according to the Rules of Court. This includes written
c. Character of the testamentary act.-- Know the essence of making a will. declarations.
Know that you are:
(1) making a document that disposes (freely, gratuitously) of your property; Except: Oral declarations of the testator. Why? Bec. they cannot
(2) to take effect upon your death. be questioned by the deceased. Also, bec. they are easy to
fabricate.
2006 Notes: Even if you are insane as to other things, as long as you know these If inspite of evidence you still cannot cure ambiguity, then annul
three (3) things, you have testamentary capacity.
the will.If the ambiguity is patent, disregard the will. If latent,
look into the evidences allowed by law.
Insanity is relative. It is different in marriage and in contracts. But in wills, not
knowing one or more of the 3 mentioned above, you are considered insane. 2022 notes:to cure ambiguity: use intrinsic evidence first
(evidence found in a will) then use extrinsic evidence(going
beyond the will)

Art. 790. The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in another sense
can be gathered, and that other can be ascertained.

GENERAL RULE: PRESUMPTION IS FOR SOUNDNESS OF MIND. 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
Exception: Insanity is rebuttably presumed when:
appears that the will was drawn solely by the testator, and that he was
1. Art. 800 par. 2.-- One month or less before the making of the will, the
unacquainted with such technical sense.
testator was publicly known to be insane. E.g., A, one month before
making of the will was running in the Plaza Miranda naked and shouting Art. 792. The invalidity of one of several dispositions contained in a will
"Ibagsak!" This is what you mean by publicly known. does not result in the invalidity of the other dispositions, unless it is to be
presumed that the testator would not have made such other dispositions if
2. If there had been a judicial declaration of insanity and before such the first invalid disposition had not been made.
order has been revoked. (Torres v. Lopez, 48 P 772.)

In these 2 cases, it is the proponent's duty to offer evidence to the contrary,

i.e., prove that the making of the said will was made by the testator during
a lucid interval. FORMS OF WILLS
2022 notes:once proven to be insane ,the presumption is that his insanity
Art. 804. Every will must be in writing and executed in a language or
continued.
dialect known to the testator.
Judicial Declaration of Insanity Consists of:
1. A guardian appointed by reason of insanity. (Rule 93, ROC.) Requirements:
2. If the insane was hospitalized by order of the court
1. In writing but no specific form is required. It could be in a marble glass or
In either of these cases, there is a presumption of insanity. But on a wall, so long as there was testamentary capacity.
once the order is lifted, the presumption ceases.
Effect: 2. Written in a language or dialect known to the testator.
1. Rebuttable presumption of sanity is nullified or swept away.
2. There is a rebuttable presumption of unsoundness of mind. Suroza v. Honrado.-- The law does not require translation nor interpretation of
the language to the testator but that he himself personally understands the said
Art. 801 Sanity should exist only at the time of execution. Subsequent insanity language.
does not affect the validity of the will nor an invalid will be validated by the
recovery of the senses of the testator.
2022 notes: It is not necessary for a will to state that the testator knew the
Art. 802. A married woman may make a will without the consent of her
husband, and without authority of the court. language since Extrinsic/ testimonial evidence may prove this. Direct evidence
Art. 803. A married woman may dispose by will of all her separate property as is not always necessary to prove that the testator knew the language,sometimes,
well as her share of the conjugal partnership or absolute community property. circumstantial evidence is sufficient.
--E.g., a person w/ a college degree does a will in English. Is it not enough
that he studied 3 levels to prove that he understands English.
 5

SPECIAL REQUIREMENTS FOR ATTESTED WILLS. 2. ATTESTED AND SUBSCRIBED BY AT LEAST THREE
CREDIBLE WITNESSES IN THE TESTATOR'S PRESENCE
1. SIGNED BY THE TESTATOR OR HIS AGENT IN HIS AND OF ONE ANOTHER.
PRESENCE AND BY HIS EXPRESS DIRECTION AT THE
END THEREOF AND IN THE PRESENCE OF THE The testator should sign at their presence (Vda. de Ramos case.) There is some
WITNESSES. inconsistency here but we have to follow Art. 805.

Can the validity be affected if the witness signed ahead of the testator?No. Provided
a.Subscribe.-- literally means "to write one's name." Sign means "to put a distinctive it is made in one occasion or transaction. However, in strict theory, it can not be
mark" (this is the better term to use.) done bec. before the testator signed there is no will at all w/c the witnesses can sign
b.Signing.-- by writing his own name; a person may sign in other ways and attest to. If there is more than one transaction, then the testator must always sign
ahead of the witnesses.
Matias v. Salud.-- The testator signed affixing her thumb mark on the will, this is
because he can no longer write due to sickness/ disease called herpes zoster, cold,
physical infirmity. Is this a sufficient signature? Yes. A thumb mark is a sufficient Attestation Subscribing
signature of the testator. It is less possible to forge. A thumb mark is always a valid --visual act -- manual act
way of signing whether literate or illiterate. However, there is also the danger of --witness -- sign
falsifying it by affixing the thumb of a newly dead person.
The three witnesses must do both attesting and subscribing.
The controversy is that what if after the testator affixed his thumb mark, another Where must witnesses sign? This is not clear.
person signed on her behalf. The SC said that the person signing on his behalf is not
an agent and besides it was already signed by the testator affixing his thumb mark 2022 notes: the purpose of attestation is witnessing the testator‘s execution of a will.
and to state this (the affixing of the thumb mark) in the attestation is a mere 2006 notes: in subscribing, it is signing on every page whereby purpose is for
surplusage. identification.

Taboada v. Rosal.-- In this case, the witnesses signed at the left hand margin.
General rule: A cross is unacceptable as a signature. Petitioner contended that they should have singed at the same place where the
Exception: That is his normal way of signing. testator signed, that is, at the bottom of the end of the will. The SC was liberal
Purpose.:to authenticate the will Literal requirement.-- witnesses must also sign at the end/ last page
Where should the testator sign? At the end of the will. There are 2 kinds of ends: Now.-- under or on margin, OK.
(i) Physical end.-- where the writing ends
(ii) Logical end.-- that where testamentary disposition ends.

Usually, they are the same. But if different, t hen either will do. What if after the
signature, some clauses follow? What is the effect of the said clauses to the will? If
annuls or makes the whole void bec. of the non-compliance w/ Art. 805. 3. THE TESTATOR OR AGENT MUST SIGN EVERY PAGE
EXCEPT THE LAST PAGE

Testator directs another to sign his name.

a. Purpose.-- to prevent the disappearance of the pages.
Four cases: Testator- A; Agent- B b. "Every page except the last." Why not the last? Bec. it will already be signed at
a. "B" is not valid the bottom.
b. "A" handwritten "by B" typewritten is valid c. Left hand margin.-- requirement was made when right hand was not justified
c. "A" typewritten "by B" handwritten is not valid. when typed.
d. "A" is valid d. Now, testator can sign anywhere in the page.
(i) each page is signed and authenticated.-- mandatory
Barut v. Cabacungan.-- Requirements: (1) agent must write the name of the testator (ii) left margin.-- directory.
by hand; (2) advisable if the agent write his name also.
2022 notes: in attestation clause, dapat may attesting signature apart form margin
Balonan v. Abellana.-- The witness signed his name above the typewritten words signature.
"por la testadora Anacleta Abellana." The SC held that the testator's name be written
by the agent signing in his stead in the place where he would have signed if he were
able to do so. It is required that the witness write the testator's name in the testator's
presence and under her express direction.
4. WITNESSES MUST SIGN EACH AND EVERY PAGE,
4blue95:The agent must sign where the testator's signature should be. EXCEPT THE LAST, ON THE LEFT MARGIN.
4blue95:Purpose of the rules: to test the authenticity of the agency. It is an added
safeguard to minimize fraud. This is the same as number 3.
Witnesses may sign anywhere as long as they sign
2022 notes: if person sign in behalf of T, it must be in the presence and express
direction of T. Icasiano v. Icasiano.-- In the will submitted for probate, one page was not signed by
one of the witnesses. Such failure to sign was due to inadvertence since in the copy,
Testator must sign in the presence of witnesses all pages were signed. The SC held that this was not a fatal defect.

Four cases: Testator.-- A; Witnesses.-- B, C, D Unusual circumstances w/c existed in the case:
(1) there was another copy
a. A signs w/ B breathing on her face. Is it signing in the presence of the testator? (2) inadvertence/ oversight
YES. (3) because of the notarial seal.
b. A signs while B is talking to C. B can see A through peripheral vision. Is A The presence of these facts led the SC to allow the will. The general rule, however,
signing in B' s presence? YES is that, the failure to sign any page is a fatal defect.
c. A signs while B is talking to C w/ B's back to A. Is it signing in B's presence?
YES. All pages must be numbered in letters on the upper part of the page.
d. B goes out and stands behind the wall. He cannot see A. B is also talking to F. Is
a signing in B's presence? NO. Mandatory.-- there must be a method by w/c the sequence of the pages can be
known; to prevent an insertion or taking out of a page.
Nera v. Rimando.-- Actual seeing is not required. What is required is that the person Directory
required to be present must have been able to see the signing, if he wanted to do so, (i) Manner it is numbered- letters, numbers, Arabic, roman numerals, etc.; any
by casting his eyes in the proper direction. His line of vision must not be impeded by conventional sequence of symbols is allowed
a wall or curtain. This is a question of fact for the lower court to determine. Blind (ii) Upper part
witnesses are therefore disqualified.
 6

5. ATTESTATION CLAUSE. SPECIAL MANDATORY ADDITIONAL REQUIREMENTS.

Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the
a. Three things that must be stated:
will, if able to do so; otherwise, he shall designate two persons to read it and
(i) the number of pages in the will
communicate to him, in some practicable manner, the contents thereof.
(ii) the fact that the testator or his agent signed the will in every page thereof in the
presence of the instrumental witnesses
Art. 808
(iii) that the instrumental witnesses witnessed and signed the will and all the pages
thereof in the presence of the testator and one another.
1. If the testator is blind, the will must be read to him twice:
(1) by one of the subscribing w.itnesses; and
b. Attestation clause is not a part of the will proper bec. if contains no dispositions.
(2) by the notary public, not necessarily in that order.
It is merely essential for the formal requirements of a valid will. It is a statement of
the witnesses.
2. This provision is mandatory, if this is not followed, the will is void. (Garcia v.
Vasquez.) It cannot be presumed.In the case, the will was read to the testator only
c. Where must witnesses sign? At the bottom in order to prevent additions.
once. The SC denied probate of the will for failing to comply w/ the requirements of
Art. 808. Such failure is a formal defect.
Cagro v. Cagro.-- In the case, the page where the attestation clause appears was
signed by the witnesses on the side and not after the attestation clause. The SC held
It can be proven to have been complied w/ by competent evidence. In the absence of
that this was a fatal defect.
w/c the will is void. Such fact or reading must be proven by evidence during the
probate proceedings.
Must the language of the will be understood or known by the witnesses? No. After
all, witnesses need not know the contents of the will.
3. Purpose: The reading is mandatory for the purpose of making known to the
Is it required that the witnesses knew the language of the attestation clause: No. So
testator the provision of the will so that he may object if it is not in accordance w/ his
long as it has been interpreted to them.Must the testator know the language of the
wishes.
attestation clause?No. What is required of the testator is to know the language of the
will. An express requirement of Art. 804.

Abangan v. Abangan.-- This case concerns a will that has only 2 pages. The first
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
page contained the dispositions and was signed by the testator and the witnesses at
the bottom. The second page contained the attestation clause only and was signed by pressure and influence, defects and imperfections in the form of attestation or in
the language used therein shall not render the will invalid if it is proved that the
the witnesses at the bottom.Since it was already signed by the witnesses at the bottom
will was in fact executed and attested in substantial compliance with all the
of the attestation clause, then there is no need for them to sign on the margin.
Lack of date does not annul an attested will. But a holographic will must be dated. requirements of article 805.
(Art. 810.)
This is a liberalization rule, an attempt to liberalize Articles 804 to 808. Substantial
6. Notarization.-- A will is a public instrument that is why it must notarized.
compliance w/ Articles 805 and 806 will validate the will despite some defects in the
attestation clause.
General rule: The notary public cannot be a witness.
Looking at Art. 809, you get the impression of utmost liberalization. We can not
determine how liberal we can be or can we go. This article does not give a clear rule.
Exception: When there are more than 3 witnesses. In such a case, the requisite
JBL Reyes and Tolentino suggest that you make a distinction.
of 3 witnesses is achieved.
Guide: If the defect is something that can be remedied by the visual examination of
Cruz v. Villasor.-- This case involves a will wherein the notary public
the will itself, liberalize. If not, then you have to be strict.
was also one of the three instrumental witnesses. Did the will comply w/
the requirement of 3 witnesses? No. The SC gave 2 reasons: (1) The
Illustration: If in an attestation clause, the number of pages used was not stated, then
notary public can not be an oath witness and at the same time an oath
you can liberalize bec. by examining the will itself, you can detect the defect. This is
taker. It is impossible for him to acknowledge before himself; (2) the aim
bec. the pagination of statement in the attestation clause is merely a double check.
of the notary public to insure the trustworthiness of the instrument would
be lost bec. he will try to insure the validity of his own act.
If the attestation clause failed to state that "the testator signed in the presence of
witnesses," and this can not be remedied by visual examination of the will, then you
need to be strict.
Gabucan v. Manta---The absence of the documentary stamp does not
affect the validity of the will.
Suggested amendment of the law: "If such defect and imperfections can be supplied
by examination of the will itself and it is proved."
Javellana v. Ledesma.-- The case deals w/ the question of whether or not
the acknowledgement of the will should be done on the same occasion as
the execution of the will. The SC said no. Acknowledgement may be
validly done after execution. In fact, the testator and the witnesses do not
have to acknowledge together. You can acknowledge one by one. As
long as the testator maintains his testamentary capacity and the witnesses
maintain their witnessing capacity until the last person acknowledges, then
the will is valid. However, if the testator dies before the last person
acknowledges, then the will is not valid. The will is considered as being
unacknowledged.

Questions.
Q1: Can a witness be an agent who will sign for the testator?
A1: (a) Yes. There is no prohibition.
(b) No. The testator must sign before 3 witnesses. He cannot sign
before himself.
To be safe, do not let this happen. As the lawyer, be sure you have at least 3
witnesses.

Q2: Is there any particular order of signing?

A2:
(a) No. As long as the signing is done on one occasion or one continuing
transaction.
(b) Yes. If the signing is not done on one occasion or transaction. In such a case,
there is nothing that the witness is attesting to.

2022 notes: in notarial will, pwede i-delegate ang mechanical typing but in
Holographic Will, id pwede i-delegate ang handwriting.
 7

PROVISIONS ON HOLOGRAPHIC WILLS.

SUMMARY OF NOTARIAL WILL

4blue 95: Holographic Wills so no need for witnesses , notary and

attestation. Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
Art. 810. Real Requirements.-- MANDATORY.-- must be by three or more credible witnesses in the presence of the testator
the hand of the testator himself (810). and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
1. Written entirely by the testator aforesaid, each and every page thereof, except the last, on the left
(a) If partly by the testator and partly by another person, VOID margin, and all the pages shall be numbered correlatively in
(b) If another person wrote an additional part w/o knowledge of the letters placed on the upper part of each page.
testator, the will is VALID but the addition is VOID.
(c) If another person wrote an additional part w/ the knowledge of The attestation shall state the number of pages used upon which
the testator, VOID. the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed
2. Dated the will and all the pages thereof in the presence of the testator
and of one another.
Roxas v. de Jesus.-- On the will, the date was written as "Feb./ 61."
Is it valid? Yes. If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
General rule: Day, month and year must be indicated.
Exception: When there is no appearance of fraud, bad faith, undue
influence, and pressure and the authenticity of the will is established,
and the only issue is whether or not "Feb./61" is valid, then it should A. Fourth Paragraph.-- Know the language
be allowed under the principle of substantial compliance. 1. Body of the will.-- testator
2. Attestation clause
COMMENT: I am not happy w/ the decision bec. the period covers a. Testator.-- No.
one whole month. One of the purposes is to know when it was b. witnesses.-- No. Only required to know the contents thereof.
executed, specially in the cases where there are other wills.
Example, another will dated Feb. 17/ 61. As such, it is dangerous to B. Discrepancies
say that "Feb./61" is sufficient. 1. Par. 1.-- No mention that the testator signs in the presence of
witnesses and yet par. 3 states this.
Labrador v. Ca.-- In this case , the date was indicated in the body of 2. Par. 2.-- No statement that the testator and the witnesses must
the will as part of the narration. Is this valid? Yes. It is not sign every page in one another's presence and yet that is required to
necessary that the will be separate from the body. In fact, it can be be stated in the attestation clause.
anywhere in the will as long as the date appears in the will. 3. Par. 3.-- In case of agent, all it requires is that the agent signed by
his direction and not in his presence, but that is required in par. 1.
If the date is proven wrong, then its validity depends on whether the
error is deliberate or not. If deliberate, the will is considered not C. Requisites for an ordinary attested will (notarized will.).--
dated and the will is void. If not deliberate, the date will be Purpose of requisites: judgment call of Code Commission; balancing
considered as the true date. of 2 policies.-- (1) to encourage a person to make a will; (2) to make
sure that the will is testament of the testator to minimize fraud.
Date is usually written by putting the day, month, and year.
However, other ways may be adopted such as "Christmas day of
1995."

3. Signature.

Commentators have said that the signature must consist of the

testator's writing his name down. The reason for this is since he is
able to write his will, then he is literate enough to write his name.

Are holographic wills in letters allowed? Yes, provided there is an

intent on the part of the testator to dispose of the property in the
letters and the 3 requisites are present.
E.g., "I give you 1/2 of my estate as provided for in the document I
kept in the safe." This is a holographic will bec. the letter does not in
itself dispose of the property.

2. Can a blind testator make a holographic will? Yes. There is no

form required. What is important is the presence of the 3 requisites.
 8

PROBATE OF HOLOGRAPHIC WILLS Art. 812. In holographic wills, the (additional) dispositions of the
testator written below his signature must be dated and signed by
him in order to make them valid as testamentary dispositions.
1. Documentary Requirement

a. General rule: The will itself must be presented Art. 813. If a will has several additions, the testator has two
options:
Gan v. Yap.-- The SC said that the actual will should be presented to (1) Sign each disposition and sign and date the last; or
the court. The reason is that the will itself is the only material proof (2) Sign and date each one of the additions.
of authenticity. How can they oppose the will if the will is not there?
E.g., You are presented in the probate court the bloody test papers of Art. 814. In case of any insertion, cancellation, erasure or
A in Civil Law, just to show the handwriting of A, but you do not alteration in a holographic will, the testator must authenticate
have the will. How will you compare when you do not have any will the same by his full signature.
to be compared. But if the will is there, I would be the first one to
prove your handwriting by showing your bloody test papers.
Kalaw v. Relova.-- In the case, there were 2 alterations. In the first
Exception: If there is an existing copy or duplicate photostatic alteration, the name of Rosa as sole heir was crossed out and
xerox. Gregorio's name was inserted. In the second alteration, the name of
Rosa as executor was crossed out and Gregorio's name was inserted.
4blue95 do not agree with this exception since Authenticity of the The second alteration was initialed. Are the alterations valid? No.
will is based on the handwriting and the signature. Handwriting Alteration 1: Not signed, thus, not valid.
experts use as a bases the penlifts of the writer. In photocopies, Alteration 2: Initialed, thus, not valid; it must be full signature.
penlifts are not discernible and so the experts are deprived of their
basis in determining the authenticity of the will. Gregorio cannot inherit as a sole heir bec. it was not authenticated.
Rosa cannot inherit as sole heir bec. her name was crossed out. This
indicated a change of mind on the part of the testator. The SC held
that a change done by cancellation and putting in a new name, w/o
the full signature, is not valid. As such, the probate is denied and
b. Lost holographic wills can not be probated even by the they both inherit by intestacy.
testimonies of the witnesses. The reason is that the will itself is
the only proof of its authenticity. Rosa should inherit as sole heir. The cancellation was not done
properly since it was not signed. The effect is as if the cancellation
was not done. If the testator wants to change his mind, he should
reflect it in the proper way.

Q: How do we make a change in a notarial will?

2. Testimonial Requirement : A: There is no provision of law dealing on this. The ordinary rules
of evidence will apply. To prove change, the testator should affix
To challenge the Signature and Handwriting of Testator either his signature or initials. The best way, however, is to have the
testator and notary public sign.

a. Uncontested will.-- only one witness to identify the signature and BAR Matter June 28 ,2007: if you want to modify, don‘t insert, issue
handwriting of the testator. a codicil.

b. Contested will.-- three witnesses to identify the signature and

handwriting of the testator.

Azaola v. Singson.-- In the case, the oppositors of the will contested LAWS WHICH GOVERN FORMAL EXECUTION
the will on the ground that it was executed through fraud. They, ACCORDING TO THE PLACE OF EXECUTION
however, admitted its due execution. During the case, the proponent
presented only one witness to identify the signature and handwriting
of the testator. Is one witness sufficient considering there is an What law governs the validity of will?
oppositor to the will?Yes. The SC held that one witness is sufficient. a. Intrinsic.-- the national law of the testator
What the law envisions is that the genuineness of the handwriting b. Time.-- At the time of death.
and signature be contested. Contested holographic will refers to the c. Place.-- the same for Filipinos and aliens.
challenge by the oppossitors that the will is not in the handwriting of
the deceased. The oppossitors in this case did not challenge the The same rule wherever you make your will. You have five (5)
handwriting of the deceased. Their ground for opposing probate is choices--the law of
that the will was executed through fraud and improper and undue 1. The testator's citizenship
influence. Hence, the probate required only one witness. 2. Testator's domicile
3. Place of execution
Bar Matter June 28,2007: The three witness provision for contested 4. Testator's residence
holographic will is merely directory. The court upon satisfying itself 5. Philippines.
of the authenticity of the will can require one or ten witnesses
EX: an Argentine citizen, domiciled in France, residing in Belgium
4blue95: if person has no personality to contest, then , 3 witnesses is visiting the Phils. In Japan, he executed a will. He may choose
not required, 1 witness is sufficient. among the five (5) places as to what law shall govern the formal
requirements of his will.
4blue95: if NO COPY, in holographic—probate NOT allowed (since EX: Ronald executed a will in Makati, he will have to follow
no copy), but in notarial it is allowed since other person may testify. Philippine law bec. all the choices points to that only.
 9

JOINT WILLS
CODICILS AND INCORPORATION BY REFERENCE.

Art. 818. Two or more persons cannot make a will jointly, or in Art. 825. 1. It is a codicil when it explains, adds to, or alters a
the same instrument, either for their reciprocal benefit or for the provision in a prior will.
benefit of a third person. 2. It is another will if it makes an independent
disposition.
1.Definitions.--
(a) A joint will is one document w/c serves as the will of 2 persons; E.g., In a will, "I give my car to A, July 2, 1995." Bec. I want to
this is prohibited; specify w/c of my cars, I make a will stating "In my will of July 2,
(b) A reciprocal will involves 2 instruments reciprocally making 1995, I gave a car to A. I want to clarify that I am giving him my
each other heir; this is not prohibited. BMW w/ plate number ......."

2.Elements of a Joint Will: E.g., June 1, 1995, "I give my car to A."
(a) one single instrument; July 1, 1995, "I give my house to B." This is a 2nd will.
(b) it is the will of 2 or more persons.
Four Questions:
3.Joint Wills are Prohibited since : 1. If original will is attested, can you make an attested codicil?
(a) It encourages undue influence, murder, or attempt to kill the 2. If original will is attested, can you make a holographic codicil?
other bec. generally, joint wills benefit each other. 3. If original will is holographic, can you make a holographic
(b) It runs counter to the idea that wills are revocable. It makes codicil?
revocation more difficult. E.g., tearing it up-- destroys the will of 4. If the original will is holographic, can you make an attested
another. codicil?
(c) It undermines the personal element of a will.-- It becomes a
multiple will. A: Yes to all. The form of a codicil does not have to conform to the
form of the will. A will does not impose its form on the codicil. As
4.Examples: long as the codicil complies w/ the form of wills, it is valid. (Art.
826).
a. One sheet of paper. On each side is a will of one person. Is it ---Whether you call the second document a will or a codicil does not
valid? Yes, bec. there are 2 documents. really matter. It is all theoretical. It is only a matter of
terminologies. They both require the formal requisites of a will.
b. One sheet of paper. On the front page, on the upper half is a will
of A. On the bottom half is the will of B. Is it valid? Yes. This is
not a joint will bec. there are still 2 documents.
--In Germany, joint wills are allowed only if executed by the
spouses.
-- The presumption is that wills are valid. The fault probably is in Art. 827. Requisites for Incorporation by Reference:
the wording of the law. Joint will-- one instrument. What the law 1. Document must pre-exist the will. It must be in existence
prohibits is not 2 wills on the same sheet of paper but joint wills. when the will is made.
2. The will must refer to the document, stating among other
things the number of pages of the document.
3. The document must be identified during the probate of the
will as the document referred to in the will
4. It must be signed by the testator and the witnesses on each
and every page, except in case of voluminous books of accounts
or inventories.
Art. 819. Wills, prohibited by the preceding article, executed by
Filipinos in a foreign country shall not be valid in the Philippines, Q: What do you incorporate?
even though authorized by the laws of the country where they A: Generally, the documents that clarify provisions in the will to w/c
may have been executed. it is attached. E.g., inventories, sketches, books of account

1. This provision is an exception to the rule enunciated in Articles Q: Can a document contain any testamentary disposition? Why?
815 to 817 that for Filipinos, as long as the will is valid in the place A: No. Bec. they do not conform to the requirements of wills.
of execution, then it is valid in the Phils.
Can a document be incorporated in a holographic will considering
2. Filipinos, whether here or abroad, cannot execute joint wills. It is that the attached document must be signed by witnesses and that the
against public policy. holographic will has no witnesses?
A: There are 2 views.
3. Can aliens execute joint wills? (a) Yes, witnesses referred to by law should be taken to mean only if
a. If executed in the country where it is allowed, YES, it may be there are witnesses to the will. There is no specification in the law.
probated here. (b) No. The fourth requisite presupposes there were witnesses. It
b. If made here and their country allows them to do this? There are seems to cover only attested wills.
2 views on this:
(i) Yes, follow the personal law.
(ii) No bec. it is against public policy.
 10

Q: Alfonso, a bachelor without any descendant or ascendant, wrote a last will and Q: Alden and Stela were both former Filipino citizens. They were married in the
testament in which he devised." all the properties of which I may be possessed at the Philippines but they later migrated to the United States where they were naturalized
time of my death" to his favorite brother Manuel. At the time he wrote the will, he as American citizens. In their union they were able to accumulate several real
owned only one parcel of land. But by the time he died, he owned twenty parcels of properties both in the US and in the Philippines. Unfortunately, they were not blessed
land. His other brothers and sisters insist that his will should pass only the parcel of with children. In the US, they executed a joint will instituting as their common heirs
land he owned at the time it was written, and did not cover his properties acquired, to divide their combined estate in equal shares, the five siblings of Alden and the
which should be by intestate succession. Manuel claims otherwise. Who is correct? seven siblings of Stela. Alden passed away in 2013 and a year later, Stela also died.
Explain. (1996 Bar) The siblings of Alden who were all citizens of the US instituted probate proceedings
A: Manuel is correct because property acquired after the making of a will shall only in a US court impleading the siblings of Stela who were all in the Philippines. 1. Was
pass thereby, as if the testator had possessed it at the time of making the will, should the joint will executed by Alden and Stela who were both former Filipinos valid?
it expressly appear by the will that such was his intention. (Art. 793) Since Alfonso's Explain with legalbasis. 2. Can the joint will produce legal effect in the Philippines
intention to devise all properties he owned at the time of his death expressly appears with respect to the properties of Alden and Stela found here? If so, how? 3. Is the
on the will, then all the 20 parcels of land are included in the devise. situation presented in Item I an example of dépeçage? (2015 Bar)
A:
Q: Natividad‘s holographic will, which had only one (1) substantial provision, as first 1. Yes, the joint will of Alden and Stela is valid. Being no longer Filipino citizens at
written, named Rosa as her sole heir. However, when Gregorio presented it for the time they executed their joint will, the prohibition under our Civil Code on joint
probate, it already contained an alteration, naming Gregorio, instead of Rosa, as sole wills will no longer apply to Alden and Stela. For as long as their will was executed
heir, but without authentication by Natividad‘s signature. Rosa opposes the probate in accordance with the law of the place where they reside, or the law of the country
alleging such lack of proper authentication. She claims that the unaltered form of the of which they are citizens or even in accordance with the Civil Code, a will executed
will should be given effect. Whose claim should be granted? Explain. (1996, 2012 by an alien is considered valid in the Philippines. (Art.816)
Bar) 2. Yes, the joint will of Alden and Stela can take effect even with respect to the
A: It depends. If the cancellation of Rosa's name in the will was done by the testator properties located in the Philippines because what governs the distribution of their
himself, Rosa's claim that the holographic will in its original tenor should be given estate is no longer Philippine law but their national law at the time of their demise.
effect must be denied. The said cancellation has revoked the entire will as nothing Hence, the joint will produces legal effect even with respect to the properties situated
remains of the will after the name of Rosa was cancelled. Such cancellation is valid in thePhilippines.
revocation of the will and does not require authentication by the full signature of the 3. No, because dépeçage is a process of applying rules of different states on the basis
testator to be effective. However, if the cancellation of Rosa's name was not done by of the precise issue involved. It is a conflict of laws where different issues within a
the testator himself, such cancellation shall not be effective and the will in its original case may be governed by the laws of different states. In the situation in letter (a), no
tenor shall remain valid. The efficacy of a holographic will cannot be left to the conflict of laws will arise because Alden and Stela are no longer Filipino citizens at
mercy of unscrupulous third parties. The writing of Gregorio‗s name as sole heir was the time of the execution of their joint will and the place of execution is not
ineffective, even though written by the testator himself, because such is an alteration thePhilippines.
that requires the authentication by the full signature of the testator to be valid and
effective. Not having been authenticated. The designation of Gregorio as an heir was
ineffective. (Kalaw v. Relova, G.R. No. L-40207, September 28, 1984) Q: John Sagun and Maria Carla Camua, British citizens at birth, acquired Philippine
citizenship by naturalization after their marriage. During their marriage, the couple
Q: On December 1, 2000, Dr. Juanito Fuentes executed a holographic will, wherein acquired substantial landholdings in London and in Makati. Maria begot three (3)
he gave nothing to his recognized illegitimate son, Jay. Dr. Fuentes left for the children, Jorge, Luisito, and Joshur. In one of their trips to London, the couple
United States, passed the New York medical licensure examinations, resided therein, executed a joint will appointing each other as their heirs and providing that upon the
and became a naturalized American citizen. He died in New York in 2007. The laws death of the survivor between them, the entire estate would go to Jorge and Luisito
of New York do not recognize holographic wills or compulsory heirs. 1. Can the only but the two (2) could not dispose of nor divide the London estate as long as they
holographic will of Dr. Fuentes be admitted to probate in the Philippines? Why or live. John and Maria died tragically in the London subway terrorist attack in 2005.
why not? 2. Assuming that the will is probated in the Philippines, can Jay validly Jorge and Luisito filed a petition for probate of their parents‘ will before a Makati
insist that he be given his legitime? Why or why not? (2009 BAR) RTC. Joshur vehemently objected because he was preterited. 1. Should the will be
A: admitted to probate? Explain. 2. Are the testamentary dispositions valid? Explain. 3.
1. Yes, the holographic will of Dr. Fuentes may be admitted to probate in the Is the testamentary prohibition against the division of the London estate valid?
Philippines because there is no public policy violated by such probate. The only issue Explain.(2000, 2008, 2012 Bar)
at probate is the due execution of the will which includes the formal validity of the A:
will. As regards formal validity, the only issue the court will resolve atprobate is 1. No, the will should not be admitted to probate since the couple are both Filipino
whether or not the will was executed in accordance with the form prescribed by the citizens. Arts. 818 and 819 shall apply. Said Articles prohibit the execution of joint
law observed by the testator in the execution of his will. For purposes of probate in wills and make them void, even though authorized by the laws of the country where
the Philippines, an alien testator may observe the law of the place where the will was they wereexecuted.
executed (Art 17), or the formalities of the law of the place where he resides, or 2. No. Since the joint will is void, all the testamentary dispositions written therein are
according to the formalities of the law of his own country, or in accordance with the also void. However, if the will is valid, the institutions of heirs shall be annulled
Philippine Civil Code (Art. 816). Since Dr. Fuentes executed his will in accordance because Joshur was preterited. He was preterited because he will receive nothing
with the Philippine law, the Philippine court shall apply the New Civil Code in from the will, will receive nothing by intestacy, and the facts do not show that he
determining the formal validity of the holographic will. The subsequent change in the received anything as an advance on his inheritance. He was totally excluded from the
citizenship of Dr. Fuentes did not affect the law governing the validity of his will. inheritance of hisparents.
Under the New Civil Code, which was the law used by Dr. Fuentes, the law enforced 3. Assuming the will of John and Maria is valid, the testamentary prohibition on the
at the time of execution of the will shall govern the formal validity of the will.(Art. division of the London estate shall be valid but only for 20 years. A testamentary
795) disposition of the testator cannot forbid the partition of all or part of his estate for a
2. No, Jay cannot insist because under New York law he is not a compulsory heir period longer than twenty (20) years. (Arts. 1083 and 494)
entitled to a legitime. The national law of the testator determines who his heirs are,
the order that they succeed, how much their successional rights are, and whether or
not a testamentary disposition in his will is valid. (Art 16) Since, Dr. Fuentes was a Q: True or False. X, a widower, died leaving a will stating that the house and lot
US citizen, the laws of the New York determines who his heirs are. And since the where he lived cannot be partitioned for as long as the youngest of his four children
New York law does not recognize the concept of compulsory heirs, Jay is not a desires to stay there. As coheirs and co-owners, the other three may demand partition
compulsory heir of Dr. Fuentes entitled to a legitime. anytime. (2010 ar)
A: FALSE, The other three co–heirs may not anytimedemand thepartitionofthe house
and lot since it was expressly provided by the decedent in his will that the same
cannot be partitioned while his youngest child desires to stay there. Adecedent to
prohibit, by will, the partition of a property and his estate for a period not longer than
20 years no matter what his reason maybe. (Art. 1083) Hence, the three co-heir can
Q: Ricky and Arlene are married. They begot Franco during their marriage. Franco demand its partition only after 20 years from the death of their father. Even if the
had an illicit relationship with Audrey and out of which, they begot Arnel. Franco deceased parent did not leave a will, if the house and lot constituted their family
predeceased Ricky, Arlene and Arnel. Before Ricky died, he executed a will which home, partitionisprohibitedfor a periodof ten (10) years, or for as long as there is a
when submitted to probate was opposed by Arnel on the ground that he should be minor beneficiaryliving inthefamilyhome. (Art. 159)
given the share of his father, Franco. Is the opposition of Arnel correct? Why? (2012
Bar)
A: No, his opposition is not correct. Arnel cannot inherit from Ricky in
representation of his father, Franco. The representative must not only be a legal heir
of the person he is representing but he must also be a legal heir of the decedent he
seeks to inheritfrom. While Arnel is a legal heir of Franco, he is not a legal heir of
Ricky because an illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother. (Art. 992) Arnel is
disqualified to Inherit from Ricky because Arnel is an illegitimate child of Franco
and Ricky is a legitimate relative of Franco.
 11

WITNESSES TO WILLS.

820 and 821 provisions are applicable only to attested wills and HEIR- WITNESS
not to holographic wills
Art. 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
Six Qualifications of Witnesses to Wills or Requisites for such will, such devise or legacy shall, so far only as concerns such
Competence to be a Witness: person, or spouse, or parent, or child of such person, or any one
claiming under such person or spouse, or parent, or child, be
a. Sound Mind.-- Ability to comprehend what he is doing, same void, unless there are three other competent witnesses to such
as soundness of mind for contracts. will. However, such person so attesting shall be admitted as a
b. At least 18 yrs or over.-- Computed according to the calendar witness as if such devise or legacy had not been made or given.
year.
c. Not Blind, deaf and mute/ dumb.-- This is important bec. these
are the three senses you use for witnessing.
BAR MATTER 2022 :
d. Able to read and write.-- Literate. Some commentators say General rule: Witness, his spouse, parent, child, or person
thumb mark is not sufficient for witnesses; he has to affix his claiming under any of them cannot inherit.
signature.
Exception: There are three other witnesses to the will.
e. He must be domiciled in the Philippines.

If a will is executed abroad in a place where there is no one (a) Testator A, Witnesses B, C, D. It is presumed that they are all
domiciled in the Phils. although there are Filipino citizens not qualified to be witnesses. A, in a will, makes legacy to B, giving him
domiciled in the Phils., does domicile requirement still apply?There a car. Does it disqualify B to be a witness? No, it disqualifies B to
are two answers for all theory inherit. The legacy is void.
1. Yes bec. the law does not distinguish
2. No, there is an implied qualification.-- The rule applies in wills (b) If there were 4 witnesses. The legacy is given to B. Is the
executed in the Phils. legacy valid? Yes, bec. there are 3 other witnesses.

To be practical, there are two solutions: (c) If there are four witnesses, each one is given a devise or legacy.
1. You have 5 choices as to w/c law governs. Choose any. (i) Are they competent to be witnesses? Yes.
2. Just execute a holographic will. (ii) Are bequests to them valid? There are 2 views:
1. Yes. Bec. for each of them, there are three other
f. He must not have been convicted of falsification of document, witnesses. (Liberal view.)
perjury or false testimony. 2. No. Bec. this is an obvious circumvention of Art.
Why not rape? Bec. chastity has nothing to do w/ truthfulness. 823. Art. 823 has for its purpose the prevention of collusion. (Strict
Truthfulness is the gauge. view.)

Gonzales v. CA.-- In the case, the oppossitor of the probate alleged

that the will cannot be probated bec. the proponent was not able to
prove that the 3 witnesses were credible. She claims that Art. 805 BAR MATTER 2022:
requires that witnesses must be credible as shown in the evidence of
record. Is the oppossitor correct? No. Under the law, there is no 1. if witness is a compulsory heir: he cannot claim his
mandatory requirement that the proponent of the will prove the voluntary share but he can claim his legitime
credibility of the witnesses to the will. Such credibility is presumed.
However, the oppossitor may prove otherwise by presenting 2. if witness is a legatee/devisee: he cannot claim his legacy
evidence. The SC also said that credibility is determined by the or devise.
manner the witness testifies in court. In other words, credibility
depends on how much the court appreciates and believes his
testimony. Social standing or financial position has nothing to do w/
a witness' credibility. Lastly, the SC said that competency and
credibility are different. A witness to a will is competent if he has all Art. 824. A mere charge on the estate of the testator for the
the qualifications and none of the disqualifications to be a witness payment of debts due at the time of the testator's death does not
while credibility depends on the appreciation of the court of the prevent his creditors from being competent witnesses to his will.
testimony of the witness.

Art. 822 :Competency or capacity to be a witness:

(1) is determined at the time of witnessing;
(2) must have the six qualifications. In effect, this is the same
rule in testamentary capacity.
 12

REVOCATION OF WILLS AND TESTAMENTARY

DISPOSITIONS. ELEMENTS:
a. Corpus.-- Act of destruction-- completion of intent-- all acts
needed to revoke have been done
Art. 828. One of the characteristics of a will is that it is
ambulatory. It is not fixed, it is revocable. Revocability is an Q: Must it be total destruction?
essential requisite of a will. So any waiver or restriction of this A: No. As long as evidence on the face of the will shows act to
right is void. There are no exceptions to this rule. revoke.

A testator cannot make a will irrevocable. As long as he is alive, he b. Animus.-- Intent and capacity to revoke.
can revoke will at pleasure. Distinguish this from a donation inter
vivos w/c cannot be revoked at pleasure by the donor. 2022 notes: Both elements must concur.(4blue 95)

How do you revoke? What law governs revocation? Examples:

A: It depends where the revocation is made(829):
a. A blind testator asked his nurse to give him his will.
1. If done outside the Phils: The nurse gave him his old letters. The testator thinking
a. If the testator is not domiciled in the Phils: it is his will, threw it into the fire. In this case, there is
(i) the law of the place where the will was made animus but no corpus. Revocation is ineffective.
(ii) the law of the place where the testator was domiciled at the time
of the revocation b. I threw my civil law exams. But it turned out it was
my will. Revocation is not valid. There is no animus or
b. If the testator is domiciled in the Phils: intent to revoke.
(i) Phil. law bec. his domicile is here.
(ii) Law of the place of revocation bec. of Art. 17, NCC

2. If done inside the Phils., follow Phil. law. BAR MATTER 2022:

1. How much destruction of the corpus do you need? You need the
Three Ways of Revoking a Will (830): physical destruction of the will itself. Does it mean total destruction of
the will, so that nothing will be left? No. As long as there is evidence of
physical destruction, like let us say, edges were burned. If only the cover
was burned, there is no revocation-- no corpus. If the destruction was not
1. By Implication of Law. total, there is still revocation, as long as there is/ was evidence of the
destruction of the will, the destruction need not be total.
a. Art. 1032.-- Unworthiness to succeed, e.g., I instituted P as heiress,
after which she killed my parents. The will instituting her as heiress is 2. A man can not revoke the will effectively bec. of insanity.
revoked by implication of law.
3. In case of tearing, there must be intent to revoke. That is, the testator
b. Art. 957.-- Deals w/ the devise or legacy.-- transformation of the had completed what he intended to be done. If in the act of tearing, the
property by the testator, e.g., If I converted to a subdivision the fishpond testator was dissuaded not to continue, is there revocation? No, bec. the
w/c I gave to T as devise. testator was not able to do what he intended to be done.
E.g., If the testator tore the will into 2, and when he was about to tear it
c. Art. 106.-- Legal separation. The guilty spouse, who gave the ground into quarters, the heir asked for his forgiveness. The testator said: "Just
for legal separation, will not inherit and anything given to her is impliedly paste the will." Is there revocation? None. There is no animus bec. he
taken away by law. was not able to complete what he intended to do.
d. Art. 854.-- Preterition annuls the institution of heirs.
4. If the testator totally destroyed the will and he changed his mind, is
there revocation? Yes. The act was already consummated. His remedy is
to execute another will.
2. By Subsequent Instrument, Will or Codicil:
4blue95: Where the will can not be located at the time of the death of the
testator but was shown to have been in the possession or control of the
a. Requisites: testator when last seen, the presumption is that in the absence of
1. Capacity to revoke.-- Insane persons can not revoke
competent evidence to the contrary, the will was cancelled or destroyed
2. Revoking instrument, will or codicil must be valid
by the testator. The rationale is that it is hard to prove the act of
3. Revoking instrument, will or codicil must contain either a
revocation of the testator. The presumption is disputable.
revoking clause (express) or be incompatible (implied)
Q: what if the will was not seen in the possession of the testator? Will
4. Revoking will must be probated bec. w/o probating, it can not
there be the same presumption of revocation?
have the effect of revocation.
A: The case does not say so. But by analogy, yes. The SC, however, had
not gone this far.
b. Such revocation may either be:
1. Express.-- Contains an express revocatory clause
4blue95: to revoke a will, it needs soundness of mind
2. Implied.-- Provisions of subsequent will are incompatible with
the provisions of the prior will. It may either be: (i) total when all the 4blue95: the new will ,to be effective, must be presented for probate since
provisions are incompatible; (ii) partial when only some provisions are a person cannot present a new will that is completely destroyed.
incompatible.
Art. 831. Subsequent wills which do not revoke the previous
3. By physical Destruction.
ones in an express manner, annul only such dispositions in the
This is the most unlimited way of revocation bec. it covers any act of physical
prior wills as are inconsistent with or contrary to those contained
destruction. It is not an exclusive list but more or less covers everything in the latter wills.
 13

GENERAL RULE: DOCTRINE OF ABSOLUTE REPUBLICATION AND REVIVAL OF WILLS

REVOCATION
Art. 836. The execution of a codicil referring to a previous will
The revocation of a prior will by means of a subsequent will is has the effect of republishing the will as modified by the codicil.
absolute. Such revocation does not depend on:
1. Capacity of heirs, devisees, and legatees in the 2nd will; or 4blue95: nullity due to other cause so refer & republish .The mere
2. On their acceptance. reference to a previous will will revive it

The revocation will be operative even the heirs, devisees, or legatees named in
the revoking will are disqualified or they renounce.
E.g., Will 1.-- "I give my house and lot to A." (1995)
Will 2.-- "I give my house to B and hereby revoke
my first will." (1997)
Art. 835 If you want to revive a will w/c is void as to its form, you
must republish the will and just cannot refer to it.
Suppose, upon the testators's death, B renounces or is incapacitated, what is the
effect? The institution of A is still revoked. House and lot will go by 4blue95: nullity due to form so republish only (re-execute)
intestacy. The first will not be revived by the reason of the inoperation of the
revoking will due to its renunciation or the incapacity of heirs, devisees, or Example, Attested will w/ just 2 witnesses. You discovered the mistake later
legatees in it. The rationale is that the second will was valid except that it was on. You cannot just republish it. You have to write it all over again.
rendered inoperative.

How to reconcile the two articles above?

Art. 835 explicitly refers to wills void as to form. Cause of the nullity is the
defect in the form. You must reproduce the dispositions in a subsequent will.
Art. 836 applies if the reason of nullity is other than defective form, e.g.,
Underage testator, fraud, under duress. You may republish or refer to the will.
EXCEPTION: DOCTRINE OF DEPENDENT RELATIVE E.g., "I hereby republish and revive my will of Oct. 15, 1995..." Said
REVOCATION. republication was made after the discovery of the reason of the nullity.

Revocation of the first will is made by the testator to be dependent on the 4blue95 notes: republication is the act of testator since it re-executes the will
capacity and acceptance of the heirs, devisees, and legatees of the while revival is the act of law.
subsequent will. How do you know? The testator said so in the will.
EX: Will 1.-- "I give my car to A." (1995) 4blue 95: an example of revivial is the reinstitution of an heir due to
Will 2.-- "I give my car to B. Such legacy is dependent upon the preterition.
capacity and acceptance of B." (1997)
The institution of B is conditional.
Primary institution-- B;
Secondary institution-- A. Art. 837. If after making a will, the testator makes a second will
expressly revoking the first, the revocation of the second will
Art. 833. A revocation of a will based on a false cause or an illegal cause is
does not revive the first will, which can be revived only by
null and void. another will or codicil.

Is this article violative of the right to revoke, even without reason? No. The A. This provision is crazy!!!
testator need not have a reason to revoke his will. He may revoke it Situation:
capriciously or whimsically at pleasure. But if the revocation is due to mistake X makes a will in 1993 (Will 1)
or is based on some cause and such cause was later proven to be false, then the X makes a will in 1994 expressly revoking will 1. (Will 2.)
revocation is void bec. all transactions based on mistake are vitiated, that is, X makes a will in 1995 revoking will 2. (Will 3.)
you are acting on a false cause of facts. The cause, however, must be stated in
the will. This shows respect for the freedom of the testator to revoke, that his Revocation Instanter-- instantly
real intent be followed. Will 1 is not revived bec. its revocation was instant
E.g., a. Based on fact (kind of dependent relative revocation bec. he Exception: 1. Will 3 expressly revives Will 1.
would revoke only if his information is true.)-- I instituted C as my heir. Later, 2. will 3 reproduces provisions of Will 1.
I heard that it was C who killed my brother in Davao. So, I revoked my will.
But it turned out that C did not do it. Revocation therefore is void. Why crazy? Bec. this is contrary to established principles in succession.
b. Based on impression.-- I give my car to B who is from Manila. (4blue 95)
I revoke my designation of B bec. I have just found out that she is from Succession Principle
Quezon and I hate people from Quezon bec. they are arrogant and obnoxious. 1. Will takes effect upon death.
Is the revocation valid? Yes. Bec. the revocation is based on impression or is 2. Revocability of wills.
out of caprice, prejudice, or unfounded ethnic opinion.
4blue95: revocation instanter operates whereby revocation of 2 nd not
Elements for Revocation to be Inoperative: revive 1st will, but if 1st is revoke only impliedly, then revocation of 2nd
a. Cause must be a concrete and a factual one; revives 1st will.
b. Cause must be false;
c. Testator must not know of its falsity; Art. 837
d. It appears on the face of the will that the testator is revoking bec. of the 1. Gives the will 2 effects ante mortem,even if the testator is still alive. It
false cause. makes the will operative even if the testator is alive.
2. Makes it irrevocable.

Art. 834. The recognition of an illegitimate child does not lose its legal B. Applies only when revocation of will 1 by will 2 is express.
effect, even though the will wherein it was made should be revoked. By contrary implication, if revocation of will 1 by will 2 is implied, then
revocation of will 2 by will 3 will revive will 1 except if will 3 is
One of the modes of recognition was by a will.Even if the will is revoked, incompatible w/ will 1. In such cases, Art. 837 does not apply.
recognition is valid.Recognition is irrevocable. Why? Bec. it is not a
testamentary act but an act w/c under the law admits a relationship of
paternity. The same rule is still applicable under the FC.
 14

ALLOWANCE OF WILLS. DISALLOWANCE OF WILLS.

Art. 838. No will shall pass either real or personal property

unless it is proved and allowed in accordance with the Rules of Art. 839. The will shall be DISALLOWED in any of the
Court. following cases:
The testator himself must during his lifetime, petition the court
having jurisdiction for the allowance of his will. In such case, the (1) If the formalities required by law have not been
pertinent provisions of the Rules of Court for the allowance of complied with;
wills after the testator's death shall govern. (2) If the testator was insane, or otherwise mentally
The Supreme Court shall formulate such additional Rules of incapable of making a will, at the time of its execution;
Court as may be necessary for the allowance of wills on petition (3) If it was executed through force or under duress, or
of the testator. the influence of fear, or threats;
Subject to the right of appeal, the allowance of the will, either (4) If it was procured by undue and improper pressure
during the lifetime of the testator or after his death, shall be and influence, on the part of the beneficiary or of some
conclusive as to its due execution. other person;
(5) If the signature of the testator was procured by fraud;
Probate is mandatory. (6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time of
There are 2 kinds of probate: (a) ante-mortem at the instance of the testator; (b)
post-mortem at the instance of any interested party. affixing his signature thereto.

Effect: It is subject to appeal but once final, it becomes conclusive or res judicata as
to its due execution and testamentary capacity of the testator (extrinsic validity.)

Advantages of Ante-mortem Probate:

This enumeration is EXCLUSIVE. They either make the will void or
1. It eases the mind of the testator valid. There is no such thing as a voidable will.
2. There is opportunity to change
3. You can prove the capacity of the testator 1. Formalities.-- Art. 805 et seq.
2. Insanity.-- Art. 799
Disadvantage of Ante-mortem Probate.-- otios-- superfluous, futile. Why? Bec. 3. Force.-- violence-- Art. 1335 par. 1
the testator can easily make a subsequent will revoking it. So unless the testator is Duress-- intimidation-- Art. 1335 par. 2
very sure, it might be useless to have an ante-mortem probate. 4. Undue and Improper pressure and influence.-- Art. 1337
5. Fraud.-- Art. 1338
The issue in probate is the extrinsic or formal validity of the will. 6. Mistake.-- Art. 1331.
General rule: Intrinsic or substantive validity is not in issue in probate
Exception: There is an intrinsic defect on the face of the will.
4blue95: in DISALLOWANCE: its by means of judicial decree and by
Nepomoceno v. CA.-- In the case, the testator left his entire estate to his legal wife grounds enumerated by law which means it must be TOTAL
and children but devised the free portion to his common-law wife. When the
common-law wife sought the probate of the will, the CA declared the will valid, but 4blue95: while in REVOCATION: its the act of testator based on any
held the devise to the common-law wife null and void for being contrary to Art. 739 ground therefore it can either be TOTAL or PARTIAL.
of the NCC. In effect, the court ruled on the intrinsic validity of the will in the
probate proceedings. Was the holding of the CA correct? The SC held that it was
correct. Although the general rule is that only extrinsic validity could be at issue Q: What do you understand by "presumptive legitime", in what case or cases must
during the probate, this rule is not absolute. Given exceptional circumstances, the the parent deliver such legitime to the children, and what are the legal effects in each
probate court may do what the situation constrains it to do by passing upon certain case if the parent fails to do so? (1999 Bar)
provisions of the will. Clearly, the devise for the common-law wife was void. The A: PRESUMPTIVE LEGITIME is not defined in the law. Its definition must
CA had the authority to rule on such nullity. It would be practical for the court to have been taken from Act 2710, the Old Divorce Law, which required the
rule on such an obvious matter. Otherwise, the probate might become an idle delivery to the legitimate children of ―the equivalent of what would have been
ceremony if on its face it appears to be intrinsically void. due to them as their legal portion if said spouse had died intestate immediately
after the dissolution of the community of property.‖ As used in the Family
Code, presumptive legitime is understood as the equivalent of the legitimate
Gallanosa v. Arcangel- Probate are proceedings in rem and are mandatory. If the children‘s legitimes assuming that the spouses have died immediately after the
probate is allowed, it becomes conclusive as to its extrinsic validity which provides dissolution of the community of property. Presumptive legitime is required to
that: be delivered to the common children of the spouses when the marriage is
1. The testator was of sound mind when he executed the will. annulled or declared void ab initio and possibly, when the conjugal partnership
2. The testator was not acting under duress or fraud-- his consent was not vitiated or absolute community is dissolved as in the case of legal separation. Failure of
3. The will was executed in accordance w/ the formalities required by law the parents to deliver the presumptive legitime will make their subsequent
4. The will is genuine and not a forgery marriage null and void under Art. 53, FC.
Q: What if after the probate court becomes final a person was charged w/ forgery of
the will, can he can he be convicted? Q: How can RJP distribute his estate by will, if his heirs are JCP, his wife; HBR and
A: No, the probate is conclusive as to the will's genuineness even against the state. RVC, his parents; and an illegitimate child, SGO? (2012 Bar)
A: Testator may dispose of by will the free portion of his estate. Since the
De la Cerna v. Rebeca-Potot.-- This case involves a joint will executed by a husband legitime of JCP is 1/8 of the estate, SGO is 1/4 of the estate and that of HBR
and a wife. The husband died before the wife and the will was probated. Now, the and RVC is 1/2 of the hereditary estate under Art. 889 of the Civil Code, the
wife died and the testamentary heirs sought the probate of the will. Will the will be remaining 1/8 of the estate is the free portion which the testator may dispose of
probated? No. The SC held that the first probate was valid only as to the share of the by will.
husband. However, such earlier probate cannot be applied for the share of the wife
bec. she was still living at the time the first probate was made. As such, there is no Q: Manuel, a Filipino, and his American wife Eleanor, executed a Joint Will in
res judicata as to the share of the wife. As to the wife, since it is against a joint will, Boston, Massachusetts when they were residing in said city. The law of
then it is void and her property will pass by intestacy. 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?
(2000 Bar)
2024 NOTES: even if testator states that will needs no probate, such pronouncement A: Yes, the will may be probated in the Philippines insofar as the estate of
is void. Eleanor is concerned. While the Civil Code prohibits the execution of joint
wills here and abroad, such prohibition applies only to Filipinos. Hence, the
2023 NOTES: if will is disallowed, property cannot be passed or disposed. joint will which is valid where executed is valid in the Philippines but only with
respect to Eleanor. It is void with respect to Manuel whose joint will remains
void in the Philippines despite being validwhere executed. (Art. 819)
 15

Q: H died leaving a last will and testament wherein it is stated that he was legally Q: Mr. Reyes executed a will completely valid as to form. A week later, however, he
married to W by whom he had two legitimate children A and B. H devised to his said executed another will which expressly revoked his first will, which he tore his first
forced heirs the entire estate except the free portion which he gave to X who was will to pieces. Upon the death of Mr. Reyes, his second will was presented for
living with him at the time of his death. In said will, he explained that he had been probate by his heirs, but it was denied probate due to formal defects. Assuming that a
estranged from his wife W for more than 20 years and he has been living with X as copy of the first will is available, may it now be admitted to probate and given effect?
man and wife since his separation from his legitimate family. In the probate Why? (2003 BAR).
proceedings, X asked for the issuance of letters testamentary in accordance with the A: Yes, the first will may be admitted to probate and given effect. When the testator
will wherein she is named sole executor. This was opposed by W and her children. 1. tore first will, he was under the mistaken belief that the second will was perfectly
Should the will be admitted in said probate proceedings? 2. Is the said devise to valid and he would not have destroyed the first will had he known that the second
Xvalid? 3. Was it proper for the trial court to consider the intrinsic validity of the will is not valid. The revocation by destruction therefore is dependent on the validity
provisions of said will? Explain your answers. (1990 BAR) of the second will. Since it turned out that the second will was invalid, the tearing of
A: the first will did not produce the effect of revocation. This is known as the doctrine of
1. Yes, the will may be probated if executed according to the formalities prescribed dependent relative revocation. (Molo v. Molo, G.R. No. L-2538, September 21,1951)
by law.
2. No, the institution giving X the free portion is not valid, because the prohibitions Q: In 1986, Jennifer and Brad were madly in love. In 1989, because a certain Picasso
under Art. 739 of the Civil Code on donations also apply to testamentary dispositions painting reminded Brad of her, Jennifer acquired it and placed it in his bedroom. In
(Art. 1028), among donations which are considered void are those made between 1990, Brad and Jennifer broke up. While Brad was mending his broken heart, he met
persons who were guilty of adultery or concubinage at the time of the donation. Angie and fell in love. Because the Picasso painting reminded Angie of him, Brad, in
3. As a general rule, the will should be admitted in probate proceedings if all the his will, bequeathed the painting to Angie. Brad died in 1995. Saddened by Brad's
necessary requirements for its extrinsic validity have been met and the court should death, Jennifer asked for the Picasso painting as a remembrance of him. Angie
not consider the intrinsic validity of the provisions of said will. However, the refused and claimed that Brad, in his will, bequeathed the painting to her. Is Angie
exception arises when the will in effect contains only one testamentary disposition. In correct? Why or why not? (2007 Bar)
effect, the only testamentary disposition under the will is the giving of the free A: No, Angie is not correct. The Picasso painting is not given or donated by Jennifer
portion to X, since legitimesareprovidedby law.Hence, the trial court may consider to Brad. She merely ―placed it in his bedroom.‖ Hence, she is still the owner of the
the intrinsic validity of the provisions of said will. (Nuguid v. Nuguid, G.R. No. L- painting. Not being the owner of the Picasso painting, Brad cannot validly bequeath
23445, June 23, 1966; Nepomuceno v. CA, G.R. L-62952, October 9, 1985) the same to Angie. (Art. 930) Even assuming that the painting was impliedly given or
donated by Jennifer to Brad, the donation is nevertheless void for not being in
writing. The Picasso painting must be worth more that 5,000 pesos. Under Art. 748,
the donation and acceptance of a movable worth more than 5,000 pesos must be in
Q: Clara, thinking of her mortality, drafted a will and asked Roberta, Hannah, Luisa writing, otherwise the donation is void. Jennifer remained the owner of the Picasso
and Benjamin to be witnesses. During the day of signing of her will, Clara fell down painting and Brad could not have validly disposed of said painting in favor of Angie
the stairs and broke her arms. Coming from the hospital, Clara insisted on signing her in his will.
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 Q: Don died after executing a Last Will and Testament leaving his estate valued at
long periods of time. Hannah, while waiting for her turn to sign the will, was reading P12 Million to his common-law wife Roshelle. He is survived by his brother Ronie
the 7th Harry Potter book on the couch, beside the table on which everyone was and his halfsisterMichelle. 1. Was Don's testamentary disposition of his estate in
signing. Benjamin, aside from witnessing the will, also offered to notarize it. A week accordance with the law on succession? Whether you agree or not, explain your
after, Clara was run over by a drunk driver while crossing the street in Greenbelt. answer. Explain. 2. If Don failed to execute a will during his lifetime, as his lawyer,
May the will of Clara be admitted to probate? Give your reasons briefly. (1994, 2007 how will you distribute his estate? Explain. 3. Assuming he died intestate survived by
Bar) his brother Ronie, his half-sister Michelle, and his legitimate son Jayson, how will
you distribute his estate? Explain. 4. Assuming further he died intestate, survived by
A: No, the probate should be denied. The requirementthatthe testator and atleastthree his father Juan, his brother Ronie, his half-sister Michelle, and his legitimate son
(3) witnesses must sign all in the ―presence‖ of one another was not complied with. Jayson, how will you distribute his estate? Explain. (2006 Bar)
Benjamin who notarized the will is disqualified as a witness, hence he cannot be A:
counted as one of the three witnesses. (Cruz v. Villasor, G.R. No. L32213, November 1. Yes, Don's testamentary disposition of his estate is in accordance with the law on
26, 1973) The testatrix and the other witnesses signed the will not in the presence of succession. Don has no compulsory heirs not having ascendants, descendants nor a
Roberta because she was in the restroom for extended periods of time. Inside the spouse. (Art. 887) Brothers and sisters are not compulsory heirs. Thus, he can
restroom, Roberta could not have possibly seen the testatrix and the other witnesses bequeath his entire estate to anyone who is not otherwise incapacitated to inherit
sign the will by merely casting her eyes in the proper direction. (Jaboneta v. Gustilo, from him. A common-law wife is not incapacitated under the law, as Don isnot
G.R. No. 1641, January 19, 1906); (Nera v. Rimando, G.R. No. L5971, February 27, married to anyone.
1911) Therefore, the testatrix signed the will in the presence of only two witnesses, 2. After paying the legal obligations of the estate, I will give Ronie, as full-blood
and only two witnesses signed the will in the presence of the testatrix and of one brother of Don, 2/3 of the net estate, twice the share of Michelle, the half-sister who
another. It is to be noted, however, that the thumb mark intended by the testator to be shall receive 1/3. Roshelle will not receive anything as she is not a legal heir.
his signature in executing his last will and testament is valid. (Payad v. Tolentino, (Art.1006)
G.R. No. 42258, September 5, 1936; Matias v. Salud, G.R. No. L-10751, June 23, 3. Jayson will be entitled to the entire P12 Million as the brother and sister will be
The problem, however, states that Clara ―said that she can sign her full name later;‖ excluded by a legitimate son of the decedent. This follows the principle of proximity,
Hence, she did not consider her thumb mark as her ―complete‖ signature, and where "the nearer excludes the farther." 4. Jayson will still be entitled to the entire
intended further action on her part. The testatrix and the other witness signed the will P12 Million as the father, brother and sister will be excluded by a legitimate son of
in the presence of Hannah, because she was aware of her function and role as witness the decedent. (Art. 887) This follows the principle that the descendants exclude the
and was in a position to see the testatrix and the other witnesses sign by merely ascendants frominheritance.
casting her eyes in the proper direction.
Q: Mario executed his last will and testament where he acknowledges the child being
conceived by his live-in partner Josie as his own child; and that his house and lot in
Baguio City be given to his unborn conceived child. Are the acknowledgment and the
Q: Johnny, with no known living relatives, executed a notarial will giving all his donation mortis causa valid? Why? (2014 Bar)
estate to his sweetheart. One day, he had a serious altercation with his sweetheart. A A: Yes, the acknowledgment is considered valid because a will (although not
few days later, he was introduced to a charming lady who later became a dear friend. required to be filed by the notary public) may still constitute a document, which
Soon after, he executed a holographic will expressly revoking the notarial will and so contains an admission of illegitimate filiation. The recognition of an illegitimate child
designating his new friend as sole heir. One day when he was clearing up his desk, does not lose its legal effect even though the will wherein it was made should be
Johnny mistakenly burned, along with other papers, the only copy of his holographic revoked. (Art. 834) This provision by itself warrants a conclusion that a will may be
will. His business associate, Eduardo knew well the contents of the will which was considered as proof of filiation. The donation mortis causa may be considered valid
shown to him by Johnny the day it was executed. A few days after the burning because although unborn, a fetus has a presumptive personality for all purposes
incident, Johnny died. Both wills were sought to be probated in two separate favorable to it provided it be born under the conditions specified in Art. 41.
petitions. Will either or both petitions prosper? (1997BAR).
A: The probate of the notarial shall prosper. The holographic will cannot be admitted
to probate because a holographic will can only be probated upon evidence of the will
itself unless there is a photographic copy. But since the holographic will was lost and
there was no other copy, it cannot be probated. Therefore, the notarial will shall be
admitted to probate because there is no revokingwill. In the case of Gan vs. Yap (104
Phil 509), the execution and the contents of a lost or destroyed holographic will may
not be proved by the bare testimony of witnesses who have seen or read such will.
The will itself must be presented otherwise it shall produce no effect. The law
regards the document itself as material proof of authenticity.
 16

Q: Pedro had worked for 15 years in Saudi Arabia when he finally decided to engage
in farming in his home province where his 10- hectare farmland valued at
₱2,000,000.00 was located. He had already ₱3,000,000.00 savings from his long stint
in Saudi Arabia. Eagerly awaiting Pedro's arrival at the NAIA were his aging parents
Modesto and Jacinta, his common-law spouse Veneranda, their three children, and
Alex, his child by Carol, his departed legal wife. Sadly for all of them, Pedro suffered
a stroke because of his overexcitement just as the plane was about to land, and died
without seeing any of them. The farmland and the savings were all the properties he
left. a. State who are Pedro's legal heirs, and the shares of each legal heir to the
estate? Explain your answer. (4%) b. Assuming that Pedro's will is discovered soon
after his funeral. In the will, he disposed of half of his estate in favor of Veneranda,
and the other half in favor of his children and his parents in equal shares. Assuming
also that the will is admitted to probate by the proper court. Are the testamentary
dispositions valid and effective under the law on succession? Explain your answer.
(4%) (2017 BAR)
A:
(a) The shares to Pedro‘s estate are as follows: Alex shall inherit ½ of the estate of
Pedro while the other 3 children to Veneranda is entitled to 1/6 each of the estate
because they are illegitimate children. Under the Civil Code, a legitimate child shall
inherit ½ of the estate while under our family code, illegitimate children are only
entitled to half of the share of the legitimate child.) While Veneranda is not an heir
since she is not the legal spouse of Pedro while Modesto and Jacinta are excluded
because Pedro has children. Under the Civil Code, parents are excluded from the
shares of their child when the child has legal descendants.
(b) No the testamentary disposition are not valid and effective because such
testamentary disposition must not impair the legitimes of the testator‘s compulsory
heirs. Under the Civil Code, for the testamentary dispositions be effective, the
legitimes of the respective compulsory heirs must not be impaired by such
testamentary dispositions. In this case, the dispositions impair the legitimes of
Pedro‘s children, which are as follows:(i) 1/2 of the estate to Alex; (ii) 1/4 of the
estate each to the three illegitimate children, which shall be proportionally reduced
since the legitimes already exceed the balance of the estate. Hence, the testamentary
dispositions are not valid and effective.

Q: Princess married Roberto and bore a son, Onofre. Roberto died in a plane crash.
Princess later married Mark and they also had a son - Pepito. Onofre donated to
Pepito, his half-brother, a lot in Makati City worth P3,000,000.00. Pepito succumbed
to an illness and died intestate. The lot given to Pepito by Onofre was inherited by his
father, Mark. Mark also died intestate. Lonely, Princess followed Mark to the life
beyond. The claimants to the subject lot emerged - Jojo, the father of Princess;
Victor, the father of Mark; and Jerico, the father of Roberto. Who among the three
(3) ascendants is entitled to the lot? Explain. (2016 Bar)
A: Jojo, Princess‘ father, is entitled to the lot. This is a clear case of reserva troncal.
The origin is Onofre. The Prepositus is Pepito. The mode of transmission from
Onofre to Pepito is donation (hence, by gratuitous title). The Reservista is Mark, who
acquired it from his descendant (son) Pepito by legitime and intestacy (hence, by
operation of law). The Reservatario is Princess, a relative of the Prepositus Pepito
within the third degree and who belonged to the line of origin is the maternal line
because Onofre (the Origin) and Pepito (the Prepositus) are maternal half-blood
siblings. When Mark (Reservista) died, the property passed to Princess as sole
reservatario, thus extinguishing the reserve troncal. Upon Princess‘ death, the
property was transmitted ab intestate to her father Jojo. Transmission to Jojo is by the
ordinary rules of compulsory and intestate succession, not by reserva troncal, because
the reserve was extinguished upon the transmission of the property to Princess, this
making Princess the absolute owner subject to no reservation.