You are on page 1of 27

Chapter 2.

Testamentary Succession
Section 1. Wills
Subsection 1. Wills in General
ART. 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death.
A. Essential Elements & Characteristics
1. The making of a will is a statutory right.
Reyes v. CA
A will is the testator speaking after death. Its provisions
have substantially the same force. & effect in the probate court
as if the testator stood before the court in full life like making the
declarations by word of mouth as they appear in the will.
2. It is a unilateral act. No acceptance of transferees is needed.
3. It is a solemn or formal act.
4. There must be animus testandi (intent to make a will).
5. The testator must be capacitated to make a will.
6. The will is strictly a personal act in all matters that are
essential.
Rabadilla v. CA
A will is a personal, solemn, revocable and free act by
which a person disposes of his property, to take effect after his
death.
Since the will expresses the manner in which a person
intends how his properties be disposed, the wishes and desires
of the testator must be followed. Thus, a will cannot be a subject
of a compromise agreement which would thereby defeat the
very purpose of making a will.
7. It is effective mortis causa (produces effects only after death
of the testator).
8. It is essentially revocable or ambulatory.
9. It is free from vitiated consent (executed freely, knowingly,
and voluntarily).
10. It is an individual act.
B. Distinguish between "last will" & "testament"
Testament disposes of personal property while will disposes of real
property.
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 or attorney.
A. The mechanical act of drafting may be entrusted to another, as long
as the disposition itself expresses the testator's desires, and all the
formalities of law are complied with.
ART. 785. The duration or efficacy of the designation of heirs, devisees
or legatees, or the determination of the determination of the portions
which they are to take, when referred to by name, cannot be left to the
discretion of a third person.
ART. 786. The testator may entrust to a third person the distribution of
specific property or sums of money that he may leave in general to

specified classes or causes, and also the designation of the persons,


institutions or establishments to which such property or sums of money
are to be given or applied.
A. Art. 786 does not contradict Art. 785 because in the former, the
particular names are not designated whereas in the latter, the names
of particular persons are given. Moreover, in Art. 786, a class or a
cause is what is specified.
ART. 787. The testator may not make a testamentary disposition in
such a manner that another person has to determine whether or not it
is to be operative.
ART. 788. If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by which the
disposition is to be operative shall be preferred.
[Note: this only applies in case of DOUBT. If no doubt exists, and the
disposition is clearly illegal, it should not be given effect. (Cottman v.
Grace)]
ART. 789. [1. Latent or intrinsic ambiguity]When there is an
imperfect description{of the heir or property to be given}, or when
no person or property exactly answers the description, mistakes and
omissions must be corrected, if the error appears from the
context{declarations before and after a discourse which were not
stated in the discourse itself} of the will{the error or ambiguity does
not appear on the face of the will but is discovered from circumstances
outside the will} or from extrinsic evidence, excluding oral
declarations of the testator as to his intention; and [2. Patent or
extrinsic ambiguity]when an uncertainty arises upon the face of the
will, as to the application of any of its provisions, the testator's
intention is to be ascertained from the words of the will, taking into
consideration the circumstances under which it was made, excluding
such declarations.
A. Kinds of Ambiguity in a Will
1. Latent or Intrinsic Ambiguity that which does not appear on the
face
of
the
will,
&
is
discovered
only
by
extrinsic
evidence{circumstances outside the will}
This ambiguity arises:
a there is imperfect description of the heir, legitee, or devisee
b. there is an imperfect description of the given gift
c. when only one recipient is designated but it turns out that
there are two or more who fit the description
2. Patent or Extrinsic Ambiguity that which appears on the face of
the will
B. How may these ambiguity be cured
By examining:
a. the will itself
b. extrinsic evidence
JRT
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.

Technical words in a will are to be taken in their technical sense,


unless the context clearly indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn solely by the testator,
and that he was unacquainted with such technical sense.
ART. 791. The words of a will are to receive an interpretation which will
give to every expression some effect, rather than one which will render
any of the expressions inoperative; and of two modes of interpreting a
will, that is to be preferred which will prevent intestacy.
A. Priority/Preference of Testate over Intestate Proceedings
- testate proceedings take precedence over intestate proceedings
- only true if the will is validly made
ART. 792. The invalidity of one of several dispositions contained in a
will does not result in the invalidity of the other dispositions, unless it is
to be presumed that the testator would not have made such
dispositions if the first invalid disposition have not been made.
(Separability Clause)
JRT
ART. 793. Property acquired after the making of a will{up to the time
of his death} shall only pass thereby{the property acquired after
making the will shall be inherited by the heir mentioned in the will by
virtue of said will}, as if the testator had possessed{this should be
owned} it at the time of making a will, should it expressly appear
by{should be in} the will that such was his intention.
A. General Rule: What are given by the will are only those properties
already possessed and owned by the testator at the time the will was
made, not those acquired after.
B. Exception
1. If it expressly appears on the will that it was the intention to
give such "after-acquired" properties.
2. If the will is republished or modified by a subsequent will or
codicil.
3 if at the time the testator made the will he erronously thought
that he owned certain properties, the gift of said properties will
not be valid, unless after making the will, said properties will
belong to him.
4. Legacies of credit and remission are effective only as regards
that part of the credit or debt existing at the time of the death of
the testator.
C. Example:
A who has no compulsory heirs made a will and one provision
thereof reads: I hereby give all my real properties in favor of my
nephew B. At the time A made said will, he had 4 real properties but 2
years later, he acquired a commercial lot and building, and 6 months
later, A died.
1. Will B inherit the commercial lot and building?
ANS: No, because it does not expressly appear in A's will that
such was his intention.
2. Who will then inherit the said commercial lot and building?
ANS: The legal or intestate heirs of A shall inherit the said
commercial lot and building because he has no compulsory heirs.
[Note: The compulsory heirs of a person are:

1. Legitimate
children
&
other
legitimate
descendents
(grandchildren, great grandchildren) without prejudice to the
principle the nearer relatives exclude the more distant ones
2. Legitimate parents & other ascendants in the absence of no. 1
3. Spouse
4. Illegitimate children and other descendents whether legitimate
or illegitimate
If the testator dies without compulsory heirs, the estate goes to
intestate heirs, such as siblings, nephews, nieces, etc.]
ART. 794. Every devise{real property} or legacy{personal property}
shall convey{or pass or transfer} all the interest which the testator
could devise or bequeath in the property disposed of, unless it clearly
appears from the will that he intended to convey a less interest.
A. General Rule: the entire interest of the testator in the property is
given not more, not less.
B. Example:
The owner of the house who devises the same, transfers
ownership over the entire house. If he were a mere co-owner or
usufructuary he conveys his share in the co-ownership or his
usufructuary right{This is true if the usufruct shall subsist after the
death of the usufructuary because as a rule usufruct is extinguished
upon the death of the usufructuary(Art. 603). An example of a usufruct
which is not extinguished upon the death of the usufructuary is when
the deed of usufruct expressly provides that its duration is for a
specified number of years & will subsist despite the death of the
usufructuary and until the expiration of the period agreed upon.} No
more, no less.
C. Exceptions:
1. He can convey a lesser interest if such intent clearly appears
in the will.
2. He can convey a greater interest, thus, the law provides "if the
testator ... owns only a part of, or an interest in the thing
bequeathed, the legacy or devise shall be understood limited
such part or interest, UNLESS the testator expressly declares that
he gives the thing in its entirety."
3. He can even convey property which he very well know does
not belong to him, provided that it also does not belong to the
legatee or devisee.
D. Example:
A & B are co-owners of a residential lot consisting of 1,000
square meters co-owned by them equally.
1. If A devises to C his interest in the said lot, how many square
meters will C inherit?
ANS: C will inherit 500 square meters because that is the interest
which A could devise in the property disposed of.
2. May A devise to C only 300 square meters?
ANS: Yes, the testator could devise in the property disposed of a
lesser interest than what the testator could devise.
3. May A devise to C the entire 1,000 square meters?
ANS: Yes, under Art. 929 (implied order to acquire to the
executor). It is even allowed by law to devise or bequeathed something
which the testator does not own at the time of the making of the will
under Articles 930 & 931.
ART. 795. The validity of a will as to its form{extrinsic validity}
depends upon the observance of the law in force at the time it is

made.{Not at the time of the death of the decedent, hence, if valid at


the time the will was made but void at the time of death of the testator
the will is valid.}
A. Kinds of Validity
1. Extrinsic validity refers to the forms & solemnities needed.
e.g. Number of witnesses, kind of instrument
2. Intrinsic validity refers to the legality of the provisions in an
instrument, contract or the will.
e.g. WoN the omission of a child in the will renders the whole will
void; WoN a compulsory heir has been given his rightful share.
B. General Rules on Validity
EXTRINSIC VALIDITY
1. From the viewpoint of TIME what must be observed is the
law in force at the time the will is MADE or EXECUTED.
2. From the viewpoint of PLACE or COUNTRY what law
must be observed depends:
a) if testator is Filipino, he can observe Philippine laws
(ART. 804-814); or those in the country where "he may
be"{country of domicile or residence}(ART. 815); or those
in the country where he executes the will (ART. 17, lex loci
celebrationis or locus actum).
b) {non-resident alien resident} if testator is an alien
who is abroad, he can follow the law of his domicile, or
his nationality or Philippine laws (ART. 816) or where he
executes the will (ART. 17).
c) {resident alien decedent} if testator is an alien in
the Philippines, he can follow the law of his nationality
(ART. 817) or the Philippine laws, since he executes the will
here (ART. 17).
INTRINSIC VALIDITY
1. From the viewpoint of TIME successional rights are
governed by the law in force at the time of the DECEDENT'S
DEATH{because succession takes effect upon the death of the
decedent}. Not at the time of the making of the will
2. From the viewpoint of PLACE or COUNTRY {successional
rights are governed by} the national law of the decedent, the
law of his country or nationality (ART. 16) regardless of the place
of execution or death {or place of domicile or residence}
C. Reason for this ART.
- a testator cannot be expected to know the future, hence, it is enough
the law in force at the time he makes the will.
Subsection 2. Testamentary Capacity & Intent
A. Distinguish between Testamentary Power & Testamentary Capacity
1. In one viewpoint, testamentary power is the statutory right to
dispose of property by acts effective mortis causa; while
testamentary capacity is the right to make a will provided certain
conditions are complied with, namely the testator is not prohibited to
make a will, that the testator is at least 18 years of age and that the
testator is of sound mind at the time of the execution of the will.
2. The 2nd viewpoint states that the testamentary capacity may be
classified into 2 kinds active and passive. The former often referred to
as the testamentary power may also be referred to as plain
testamentary capacity.

3. In the 3rd viewpoint, testamentary capacity is the ability of one to


make a will, while testamentary power is the privilege ground by the
law to someone to make a will.
ART. 796. All persons{only natural persons} who are not expressly
prohibited by law may make a will.
A. Who can make wills
1. General rule is CAPACITY. Incapacity is the exception.
2. General qualifications:
a) 18 years old or over
b) soundness of mind during the will's creation
3. a convict under civil interdiction is allowed because civil interdiction
only prohibits a disposition of property inter vivos, not mortis causa.
testamentifaccion active capacity to make a will
testamentifaccion passive capacity to inherit
ART. 797. Persons of either sex under eighteen years of age cannot
make a will.
ART. 798. In order to make a will it is essential that the testator be of
sound mind at the time of its execution.
ART. 799. To be of sound mind, it is not necessary that the testator be
in full possession of all his reasoning faculties, or his mind be wholly
unbroken, unimpaired, or unshattered by disease, injury or other
cause.
[Memorize] It shall be sufficient if the testator was at that time
of making the will [1] to know the nature of the estate to be disposed
of, [2] the proper objects of his bounty, and [3] the character of the
testamentary act.
A. Soundness of mind requires:
1. Testator knows the nature of the estate to be disposed of (character,
ownership of what he's giving)
2. Testator knows the proper objects of his bounty (by persons who for
some reason expect to inherit something from him)
3. Testator knows the character of the testamentary act (that it is really
a will, that it's a disposition mortis causa, that it's essentially
revocable)
B. Senility (infirmity of old age) should be distinguished from senile
dementia (decay of mental faculties) since the latter, when advanced
or absolute, may produce unsoundness of mind resulting in
testamentary incapacity.
C. How unsoundness of mind is manifested
1. Religious delusions resulting in the unsettling of judgement
2. Blind extraordinary belief in spirits while executing a will

3. Monomania (insanity on a single subject) if this happens to be on


the subject of wills or succession
4. Insane delusion belief in things which no rational mind would
believe to exust
5. Drunkenness if this results in failure to know the nature of the
testamentary act
6. Congenital intellectual deficiency
7. A comatose stage which prevents the testator from talking or
understanding
8. State of delirium
ART. 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at
the time of making his disposition is on the person who opposes the
probate of the will; but if the testator, one month, or less, before
making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made
during a lucid interval.
A. Instances when testator is presumed insane
1. If the testator, 1 month or less before making his will is
publicly known to be insane.
2. If the testator made the will after he had been judicially
declared insane, & before such order has been set aside or lifted.
ART. 801. Supervening incapacity{or subsequent} does not
validate an effective will{valid & duly probated}, nor is the will of an
incapable validated by the supervening of capacity.
JRT
ART. 802. A married woman may make a will without the consent of her
husband and without the authority of the court.
ART. 803. A married woman may dispose by will of all her separate
property as well as her share of the conjugal partnership or absolute
community property.
JRT
Subsection 3. Forms of Wills
A. Kinds of Wills
1. Ordinary or notarial will that which requires among other
things, an attestation clause, & acknowledgment before the notary
public.
2. Holograph/ic will the most important feature of which is its being
written entirely, from the date to the signature, in the handwriting of
the testator. Here, neither an attestation clause nor an
acknowledgment before a notary public is needed.
VERY VERY IMPORTANT

ART. 804. {notarial or holographic}Every will{referring to the act}


must be in writing and executed in a language or dialect known to the
testator{even if not known to the instrumental or notarial witness, in
case of notarial will}
ART. 805. {notarial only}Every will{referring to the document},
other than a holographic will, must be subscribed{signed} at the end
thereof{every page} 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{or certified or witnessed} and subscribed by
three or more credible{Art. 820} witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid{in the presence of the testator and of one another}, each
and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively, in letters placed on the upper
part of each page.
The attestation shall state the [1] number of pages used upon
which the will is written, and [2] the fact that the testator signed the
will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
If the attestation clause{not the will itself} is in a language not
known to the witnesses, it shall be interpreted to them.
A. Requirements{or requisites} of a Notarial or Ordinary Will
1. Must be in writing (handwritten, typed or printed)
2. Must be executed in a language or dialect known to the testator
3. Must be subscribed at the end thereof by the testator himself or by
the testator's name written by another person in his presence, and by
his express direction
if the will is signed anywhere else but not in the end, the will is
NOT VALID
if after the signature there are other clauses or provisions, not
only should those clauses be considered void but also the whole
will from beginning to end and will therefore be denied probate
END of the will the logical end, not physical
full name must appear
if the testator's first name appears without surname, the will is
valid
misspelled, abbreviated, or by nickname, or by "father" or
"mother", or in an assumed name is all right provided intended
same to be signature
testator can sign with his thumbmark, a rubber stamp, or an
engraved dye, provided, he intends the same to be his signature
even if a person knows how to write his name, he can still use a
mark as a signature
express direction the delegate must be expressly authorized
to do so
4. Must be attested and subscribed by 3 or more credible witnesses in
the presence of the testator and one another.
[Note: In the presence does not necessarily require actually seeing
but possibility of seeing without any physical obstruction. Hence, when

a person merely has his back turned, the signing is done in his
presence since he could have cast his eyes in the proper direction. On
the other hand, if there is a curtain separating the testator and the
witnesses from the other witness, there will be a physical obstruction
and will cannot be valid.]
5. The testator or the person requested by him to write his name, & the
instrumental witnesses of the will shall sign on each and every page,
except
the last, on the left margin
The law said page not sheet. A sheet has two pages, the
front and back side. If both are used, both must be signed
If the last page, contains only the attestation clause, the
testator need not sign on the margin
If the whole, including the attestation clause, consist of only 1
page, no marginal signatures are needed since this would be
purposeless since the page already has all the necessary
signatures
Whenever the marginal signatures are required, although the
law says on the left margin, the purpose is served even if they
are on the right, top, or bottom margin, for the only purpose is to
identify the pages used and thus prevent fraud.
6. All pages shall be numbered correlatively in letters placed on the
upper part of each page
[Note: Correlative numbering in letter means one, two, etc. But
numbers are sufficient such as page 1, 2, 3, etc.]
7. The attestation clause shall provide:
a) number of pages used
b) the testator signed, or expressly caused another to sign) the
will & every page thereof in the presence of the instrumental
witnesses
[NOTE: absence of the attestation clause is a fatal defect]
c) the instrumental witnesses witnessed & signed the will & all
the pages thereof in the presence of the testator & one another
d) while the testator is required to know the language of the will,
the witnesses are not required to know the language of the
attestation clause. It is sufficient that it{the language of the
attestation clause} be translated to them.
Example of an attestation clause:
This will consisting of 3 pages was signed by the testator
and by all of us in the presence of all of us and the testator.
Sgd(Signed A)
Sgd(Signed B)
Sgd(Signed C)
[Note: The testator does not sign in the attestation clause.]
B. Other comments on formalities of notarial will
1. It is not essential that the will has to be read to the witnesses
or that they know the contents. While they are required to
participate in the acknowledgment in the notary public, still what
they will acknowledged is not the will but the attestation clause
2. It is not necessary that the notarial will be dated.
Why is it that the law does not require that the notarial will be
dated?
ANS: The reason is, if the notarial will is not dated the date
of acknowledgment before the notary public is deemed the day
of the execution of the will.

ART. 806. Every will{notarial} must be acknowledged before a


notary public by the testator and the witnesses. The notary public shall
not be required to retain a copy of the will, or file another with the
office of the Clerk of Court. {Will is confidential in nature, hence, the
law. This refers to the 2nd sentence.}
A. Acknowledgement the act of one who has executed a deed in
going before some competent officer or court & declaring it to be his
act or deed.
B. Jurat that part of an affidaivit whereby the notary certifies that
before him, the document was subscribed & sworn by the executor.
C. Intervention of Notary Public
The notary public does not have to be present at the time of the
execution of the will. He cannot however be one of the instrumental
witnesses.
Ordinarily, the notary public is not required, not even allowed to
read the will or know the contents of the will unless the testator
permits him to do so. It should be remembered that the notary public is
not the person acknowledging the will. It is he before whom it is
acknowledged. The only instance where the notary public is required to
read the will is in the situation regarding blind testators.
The testator and the instrumental witnesses do not have to make
the acknowledgement in the presence of one another. This is required
only in the attestation clause, not in the acknowledgement.
ART. 807. If the testator be deaf, or a deaf-mute, he must personally
read the will, if able to do so; otherwise, he shall designate two
persons to read it and communicate it to him, in some practicable
manner, the contents thereof.
ART. 808. If the testator is blind, the will shall be read to him twice;
once, by one of the subscribing witnesses, and again, by the notary
public before whom the will is acknowledged.
A. Disqualification of Notary Public
The notary public before whom the will has been acknowledged
cannot be one of the 3 witnesses of said will, in view of the absurdity of
a person acknowledging something to himself.
VERY VERY IMPORTANT
JRT
ART. 809. In the absence of bad faith, forgery or fraud, or undue or
improper pressure & influence, defects and imperfections in the form
of attestation or in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed and attested in
compliance with all the requirements of Article 805.
Note: the law speaks not of the substantive defects but defects &
imperfections
A) in the FORM of the attestation
B) in the LANGUAGE used therein
A. How substantive defect can be cured?
only by evidence within the will itself
JRT

[Memorize] ART. 810. A person may execute a holographic will


which must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed.
A. Holographic will is one entirely written, dated, and signed by hand
of the testator.
B. Formalities for a Holographic Will
1. Language must be known to the testator
2. Will must be entirely written in the hand of the testator himself
3. Will must be dated date, month & year
4. Will must be signed by the testator himself
Signature must appear at the end of the will. The law does not
require that every page, assuming there are 2 or more pages, be
signed by the testator.
5. There must be animus testandi
6. Must be executed at the time that holographic wills are allowed,
not before, the time of death being immaterial
C. Other Features
1. No witnesses are required.
2. Even the mechanical act of drafting a holographic will may be
left to someone other than the testator, as long as the testator
himself copies the draft in his own handwriting, dates it and signs
it.
ART. 811. In the probate of a holographic will, it shall be necessary that
at least one witness{identifying witness} who knows the
handwriting and signature of the testator explicitly declares that the
will and the signature are in the same handwriting of the testator. If
the will is contested, at least three of such witnesses shall be required.
[JRT] In the absence of any competent witnesses referred to in
the preceding paragraph, and if the court deem it necessary, expert
testimony may be resorted to. [JRT]
A. Probate of Holographic Wills
1. Probate the allowance{or approval} of a will by the court after
its due execution{compliance with the formalities required by law}
and testamentary capacity of the testator has been proved
2. Proof of identity of the testator's signature & handwriting is
important, otherwise, the will is VOID.
3. Proof may be:
a) uncontested one identifying (subscribing not necessary) witness. If
no witness, expert may be resorted to.
b) contested at 3 witness. If none are available, experts may be
called upon; otherwise, the will may be frustrated thru no fault of his
own.
B. May a will be probated during the lifetime of the testator?
ANS: Yes, by express provision of Art. 838, 2nd paragraph.
If the testator himself is the petitioner and no opposition or contest is
filed with the probate court, the fact that he affirms that the
holographic will and the signature are in his own handwriting shall be
sufficient evidence of the genuineness and due execution thereof. (Rule
76, Sec. 12)
C. If a holographic will has been lost or destroyed with intent to revoke
and
IMPORTANT

ART. 812. In holographic wills, the dispositions{additional} of the


testator written below his signature{original} must be dated and
signed by him in order to make them valid as testamentary
dispositions.
A. Dispositions after the {original} signature, has been dated and
signed by the testator is VALID. If signed by not dated or if dated but
not signed, the additional dispositions are VOID{but the dispositions
preceding the original signature are valid, in other words, the original
will is valid; except under Art. 813} for lack of an essential requisite.
IMPORTANT
Example:
The estate of A consisting of bank deposits, cars, old appliances,
other personal properties, family home, 3 residential lots, 2-hectar
farmland, and an apartment lot and building is worth P40M, more or
less. On January 2, 2014, A, a widower with 2 legitimate children B and
C, made a holographic will as follows:
I hereby declare that:
1. Out of my estate worth P40M, thereof or P20M shall go
to my 2 legitimate children B and C as their legitime at
P10M each.
2. I bequeath P2M cash to my granddaughter D.
3. I devise my residential lot located in Magarao, Camarines
Sur worth P3M to my grandson E.
4. I devise my 2-hectar farmland worth P4M to my youngest
sister M.
Sgd. (Signed A)
January 2, 2014
On July 2014, December 24, 2014 and June 26, 2015, A made
additional dispositions as follos:
5. I bequeath my Rolex watch worth P800k to my friend G.
(Signed A)
6. I bequeath my BMW car worth P2.5M to my brother H.
(Signed A)
7. I devise my residential lot located in Bombom, Camarines
Sur worth P1.7M to my aunt I.
(Signed A)
June 26, 2015
This is valid because of Art. 813.
ART. 813. When a number of dispositions{below the original
signature of the testator} appearing in a holographic will are signed
without being dated, and the last disposition has a signature and date,
such date validates the dispositions preceding it, whatever be the time
of prior dispositions.
A. Rules for Curing Defects
If last disposition is SIGNED and DATED by HIMSELF
a) preceding dispositions which are SIGNED but
DATED are validated.
b) preceding dispositions which are NOT SIGNED
DATED are VOID.
c) preceding dispositions which are NOT SIGNED
DATED are VOID, unless written on the SAME date
occasion as the latter disposition.
If last disposition is SIGNED and DATED by ANOTHER

NOT
but
and
and

a) if without the testator's consent, same will not affect the


previous dispositions, which remains VOID, if in themselves
VOID; and remain VALID, if in themselves VALID.
b) if with the testator's consent, same effect as previous,
because the latter disposition is not really HOLOGRAPHIC.
ART. 814. In case of any insertion, cancellation, erasure or alteration in
a holographic will, the testator must authenticate the same by his full
signature.
A. Authentication of Correction by Full Signature
full signature means full or usual or customary signature
if without full signature, only the alteration is VOID. However, if the
DATE or SIGNATURE is altered & has no signature, the entire will is
VOID.
ART. 815. When a Filipino is in a foreign country, he is authorized{or
permitted or allowed} to make a will in any of the forms{except joint
wills} established by the law of the country in which he may be. Such
will may be probated in the Philippines.
A. Formalities of Wills Executed by Filipinos Abroad
A Filipino if in California can make a will there in accordance with the
forms {extrinsic validity} of:
a) California
b) The Philippines
[Note: There is one exception to this Article, and that is a Filipino
cannot execute in abroad a joint will even if the same is valid there.]
B. Bar Question
Carlos Reyes, a Filipino citizen, residing in Washington, USA,
executed a will in accordance with the laws of said state. Assuming the
testator returns to the Philippines and dies here without modifying or
executing a new will in accordance with Philippine laws, how shall is
estate be dealt with, estate or intestate?
ANS: The succession will be testamentary since under 815 he is
allowed to make a will in any of the forms allowed in the foreign state
where he may be. The will he executed in Washington may indeed be
probated in the Philippines. Of course, intrinsic validity of the will, the
amount of successional rights and the order of succession will be
governed by his national law, that is the Philippine law on Succession.
C. If a will is probated abroad, is the will probated again in the
Philippines?
In one sense, there is no need for an ordinary or unusual probate
here. What is required however is that there must be a proceeding
here to proved that indeed the will had already been probated abroad.
In other wards, the rule is the same as with proving the existence of a
foreign judgement.
ART. 816. The will of an alien who is abroad{non-resident alien}
produces effect in the Philippines if made with the formalities
prescribed by the law of the [a] place in which he resides {or
domicile}, or according to[b] the formalities observed in his country, or
[c] in conformity with those which this Code prescribes {Philippine
laws}. {[d] or law of the place where the will was executed}
A. If a joint will is made by a non-resident alien in accordance with the
formalities prescribed in [a], [b] or [d], and is valid there, it is
also valid here in the Philippines. If said joint will is made in accordance

with the formalities prescribed in [c], it is VOID here in the


Philippines.
B. A Chinese domicile in Argentina is on his way to Manila. The boat
where he is stay for one day is in Japan. In Japan, can he make a will. If
so, what formalities should he observe?
ANS: This is a typical case of an alien abroad. Therefore he can
make a will in accordance with the testamentary formalities of
Argentina {country of domicile}, China {country of his nationality},
Philippines, or Japan.
JRT
ART. 817. A will made in the Philippines by a citizen or subject of
another country, which is executed in accordance with the law of the
country of which he is a citizen or subject, and which might be proved
and allowed by the law of his own country, shall have the same effect
as if executed according to the laws of the Philippines.
JRT
[Memorize] ART. 818. Two or more persons cannot make a will jointly,
or in the same instrument, either for their reciprocal benefit or for the
benefit of a third person.
A. Joint Wills those which contain in ONE instrument the will of two
or more persons jointly signed by them
B. Reciprocal or Mutual Wills those that provide that the survivor
of the testators will succeed to all or some of the properties of the
decedent.
C. Mutual wills or reciprocal wills are, by themselves, valid. Joint wills,
whether reciprocal or not, are void.
D. A joint will executed by a husband and his wife was erroneously
probated by the RTC. There being no appeal, the judgement became
final. Can the joint will be given effect.
ANS: Yes, for while joint wills are prohibited and should have
been disallowed, still in this case, the judgement had already become
final. This is not a case of lack of jurisdiction. It is simply an instance of
an erroneous but valid judgement. Otherwise stated, this is merely an
error in law, not an error in jurisdiction. The principle is even applicable
if both estate clause of the joint will were already death at the time the
will was probated. If only one was dead and the other was still alive,
the final judgement can only have reference to the estate of said
deceased.
E. Reciprocal wills between a husband and wife, as long as not made
jointly, are valid.
ART. 819. {Joint wills}Wills, prohibited by the preceding article,
executed by Filipinos in a foreign country shall not be valid in the
Philippines, even though authorized by the laws of the country where
they may have been executed.
A. Know that Art. 819 is an expression of public policy and it's clearly
one exception to the rule of lex loci celebrationis. Note, however,
that the provision only refers to Filipinos. Hence, if made by foreigners
abroad and valid in accordance with Art. 816, the same should be
considered as valid here.

B. If executed in the Philippines {in accordance with Philippine laws by


a foreigner}, same should be considered void{if executed in the
Philippines in accordance with their national law, the joint will is valid}.
Subsection 4. Witnesses to Wills
JRT
ART. 820. Any person of sound mind and of the age of eighteen years
or more, and not blind, deaf or dumb, and able to read or write, may be
a witnesses to the execution of a will mentioned in Article 805 of this
Code.
JRT
[MEMORIZE]
A. Qualifications of Witnesses for Notarial Wills
a) be of sound mind
b) be at least 18
c) be able to read & write
d) not be blind, deaf or dumb
e) be domiciled in the Philippines
f) not have been CONVICTED (by final judgement)
FALSIFICATION of a document; PERJURY; or FALSE TESTIMONY

of

B. The witness need not know how to read & write in the will's
language. After all, he doesn't even need to know the contents of the
will.
[MEMORIZE]
ART. 821. The following are disqualified from being a witness to a
will{notarial}:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document,
perjury or false testimony
A. Is the spouse or son or daughter of the testator qualified as witness
to the latter's will?
ANS: Yes, provided the spouse or son or daughter of the testator
possesses all the qualifications under Art. 820 and none of the
disqualifications under Art. 821. The relationship of the witness to the
testator is not a disqualification.
B. It is not essential that the witness be a citizen of the Philippines for
domicile is what the law merely requires. Domicile is the place of
habitual residence.
JRT
ART. 822. If the witness attesting the execution of a will are competent
at the time of attesting, their becoming subsequently incompetent
shall not prevent the allowance of the will.
JRT
VERY VERY IMPORTANT
[Memorize] ART. 823. If a person{witness} attests the execution of a
will {and}, to whom or to whose spouse, or parent {of the witness},
or child {of the witness}, a devise or legacy is given by such will, such

devise or legacy shall, so far only only{other dispositions are valid}


as concerns such person, or spouse, or parent, or child of such person,
or anyone{creditor of the witness} claiming under such persons or
spouse, or parent, or child, be void, unless there are three other
competent witnesses to such will. However, such person so attesting
shall be admitted as a witness as if such devise or legacy had not been
made or given.
A. Witnesses cannot inherit
1. The persons named in the Article are incapacitated to inherit,
but not incapacitated as witness. Hence, only the part
appertaining to them should be considered void; unless, there
are 3 witnesses other than the one incapacitated to inherit.
2. The disqualification extends to
a) the witness
b) spouse of the witness
c) parent of the witness
d) child of the witness
e) anyone claiming the right of said witness (e.g. Creditor
of the witness if said creditor has not been paid yet)
B. If the witness, spouse, parent or child (of the witness) is a
compulsory heir, s/he is still entitled to the LEGITIME, otherwise this
would be an easy way to sort of disinherit him without any justifiable
cause. The purpose of the law being to prevent undue influence, it is
understood that the prohibition refers only to free portion.
VERY VERY IMPORTANT
ART. 824. A mere charge{or obligation or debt of the testator} on
the estate of the testator for the payment of debts due at the time of
the testator's death does not prevent his creditors from being
competent witnesses to his will.
A. The charge referred to here is a debt of the estate or of the testator.
B. While a creditor who acts as a witness is disqualified to inherit, he is
qualified to receive his credit, which after all cannot be considered a
gift.
Subsection 5. Codicils and Incorporation by Reference
IMPORTANT
ART. 825. A codicil is a supplement or addition to a will, made after the
execution of a will and annexed {thereto} to be taken as a part thereof
by which any disposition made in the original will be explained, added
to, or altered.
A. Codicil derived from the Latin "codex" & literally means "little
code" or "little will".
B. In case of conflict between the will & the codicil, it is understood
that the latter should prevail, it being the later expression of the
testator's wishes.
IMPORTANT
ART. 826. In order that a codicil may be effective, it shall be executed
as in the case of a will.

A. Formalities of Codicils
a) notarial or ordinary codicils
b) holographic codicils
[Note: if a codicil is not executed with the formalities of a will, it is void.
Also, a valid will can never be revoked, expressly or impliedly, by an
invalid codicil.]
ART. 827. If a will, executed a required by this Code, incorporates into
itself by reference any document or paper{such as inventory of
goods and schedule of receivables if the testator is a trader}, such
document or paper shall not be considered as part of the will unless
the following requisites are present:
(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same, stating
among other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the
document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on each
and every page, except in case of voluminous books{at least some
of them AND the last page be signed} of account or inventories.
A. Said documents or inventories, when referred to in a notarial will, do
not need any attestation clause, because the attestation clause of the
will itself is sufficient. (Unson v. Abdlla)
B. Requisites:
1. The document or paper referred to in the will must be in
existence at the time of the execution of the will. Therefore:
a) reference to future papers will render the incorporation
void, though the will is still valid.
b) the will must refer to the papers as having been made; it
is not enough that in truth it was already in existence.
2. The will must clearly describe and identify (location, general
appearance) the same, stating among other things the number
of pages thereof. (This is true even in voluminous books of
accounts and inventories)
3. It must be identified by clear and satisfactory proof as the
document or paper referred to therein. (Parol evidence or
evidence aliunde is needed here)
4. It must be signed by the testator and the (same instrumental)
witnesses on each and every page, except in case of voluminous
books of account or inventories.
C. Generally, incorporation can be done only in notarial wills. But, if a
holographic will has at least 3 credible & qualified witnesses, then
there can be a proper incorporation by reference. Moreover, if a
holographic will (w/out witnesses) refers to a document entirely
written, dated, & signed in the handwriting of the testator, there can
also be a proper incorporation by reference.
Subsection 6.
Dispositions

Revocation

of

Wills

and

Testamentary

[Memorize] ART. 828. A will may be revoked by the testator at any


time before his death. Any waiver or restriction of this right is void.
A. Revocability of a Will
Until the death of the testator, a will is ambulatory{alterable} and
revocable.

B. The heirs do not acquire any vested right to the disposition of a will
until after the testator's death.
C. Provisions in a will which are ordered to be effected immediately,
even during the testator's lifetime, are all right, provided the proper
formalities and requisites{of a donation such as public document, if
real property is donated, and acceptance on the part of the donee} are
present but they are not{they are donations inter vivos} really
testamentary dispositions.
[JRT] ART. 829. A revocation done outside the Philippines, by a person
who does not have his domicile in this country, is valid when it is done
according to the law of the place where the will was made, or
according to the law of the place in which the testator had his domicile
at the time; and if the revocation takes place in this country, when it is
in accordance with the provisions of this Code.
A. Revocation Outside the Philippines
1. if not domicile in the Philippines
a. follow of place where will was made; or
b. follow of law of place where testator is domicile
2. if domicile in the Philippines
a. follow the law of the Philippines; or
b. follow the rule of lex loci celebrationes of that revocation
B. Revocation in the Philippines
Follow the Philippine law. This is true whether or not the domicile
is in the Philippines.
[Memorize] ART. 830. No will shall be revoked except in the following
cases: {Ways or manner of revocation}
(1) By implication{or operation} of law; or
(2) By some will, codicil, or other writing{deed of revocation
or affidavit} executed as provided in the case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will with
the intention of revoking it, by the testator himself, or by some other
person in his presence, and by his express direction. If burned, torn,
cancelled, or obliterated by some other person, without the express
direction of the testator, the will may still be established, and the
estate distributed in accordance therewith, if its contents, and due
execution, and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court.
A. Revocation by Implication of Law
the kind of revocation produced by OPERATION of LAW when
certain acts or events take place after a will has been made, rendering
void or useless either the whole will or certain testamentary
dispositions therein.
[Note, however, the revocation of a legacy does not operate to revoke
the entire will. Only total and absolute revocation of the entire will will
prevent the probate of the revoked testament.]
Some instances of revocation by implication of law:
1. When after the testator has made a will. He sells, or
donates the legacy or devise.{only the legacy or devise is
revoked and the will remains valid as to the other
provisions}
Example:
T gave A a legacy of his car in his will. A
year later, T sold the car to B for P2M. On his death,
will A get the car, the P2M, or nothing?

ANS: A gets nothing because by express


provision{Art. 957} of law, T's alienation of the car
revoke the legacy automatically.
2. Provisions in a will in favor of a spouse who has given
cause for legal separation shall be revoked by operation of
law the moment a decree of legal separation is granted.
{Art. 63, no. 4, Family Code}
3. When an heir, legatee, or devisee commits an act of
unworthiness. {Art. 1032}
4. When a credit had been given as a legacy is judicially
demanded by the testator.
5. When one, some or all of the compulsory heirs have
been preterited or omitted, the institution of heir is void
{but legacies and devises remain valid so long as they are
not inofficious or excessive}.
{6. Ammendment of law on Succession prior to testator's
death such as when the commendatory law declares that
all properties of the decedent shall be inherited by the
Republic of the Philippines. [This is an example where the
entire will is revoked by operation of law].
Another example of revocation of the entire will by
implication of law:
A testator who has several compulsory heirs in the
direct line institutes only one of them to the entire
hereditary estate and there are no legacies nor devises.}
B. Revocation by an Overt Act
Requisites:
a) there must be an overt act specified by law
b) there must be a completion{the testator has
considered the will to have been revoked} at least of the
subjective phase of the overt act
c) there must be animus revocandi (intent to revoke)
d) the testator at the time of revoking must have capacity
to make a will
e) the revocation must be done by the testator himself, or
by some other person in his presence & by his express
direction.
The overt act of burning
a) a small part of the will burned is sufficient even if the
writings are still visible
b) even if there's an overt act to revoke, if there's no overt
act of burning, the will is not revoked
Example:
A wanted to revoke his will so he threw it into the
stove so that it would be burned later on when a fire would
be lighted in the stove. However, the will was later
removed by another person from the stove before the
stove was lighted. There was no revocation here for while
there was intent to revoke, there never was an overt act of
burning. However the person who prevented the revocation
if he be an heir or a legatee or devisee will still not inherit,
not because of revocation by means of an overt act, for
indeed there was no overt act, but because of revocation
by implication of law, said person may be incapacitated to
inherit by reason of unworthiness. {Art. 1032, no. 7}
c) accidental burning does not revoke the will due to lack of
intention
The overt act of tearing
a) even a slight tear is sufficient. Of course, the greater the
tear, the greater is the evidence of animo revocandi

b) the mere act of "crumpling" or the removal of the


"fastener" binding the pages of a will, does NOT constitute
a revocation, even though there be animo revocandi
The overt act of obliterating or cancelling
a) obliteration renders the words illegible; cancellation
the drawing of lines across a text, but the words remain
legible
b) if all parts are cancelled or obliterated, or if the
signature is cancelled or obliterated, the whole will is
revoked, the reason of the case of the signature being that
the act strikes at the existence of the whole instrument
c) cancellation or obliteration of non-vital part leaves the
other parts in force
C. Revocation by the Execution of Another Will or Codicil
revocation in this manner may be expressed or implied
(implied revocation consists in complete inconsistency between
the two wills)
the revoking will must be a valid will{extrinsically valid and
probated}; otherwise, there is no revocation
the revocation made in the subsequent will must indeed be a
definite one. A mere declaration that some time in the future, the
first would be revoked is not enough. However, there is nothing
wrong in making the revocation conditional, that revocation
takes place only if the condition is fulfilled. (Doctrine of
Conditional Revocation) (Dependent Relative Revocation)
Problem
Testator made will no. 1. After 1 week, he wanted to revoke
same. So, he executed will no. 2, expressly will no. 1. In the
belief that he had already accomplished what he wanted,
he then tore into 2 pieces will no. 1. On his death, it was
discovered that will no. 2 had not been validly executed.
Can we consider will no. 1 as having been revoked or
should it still be given effect?
ANS: In one case, it was held that while it is true that
revocation was not produced by the execution of an
INVALID will, revocation was made through an overt act,
the act of tearing or destruction with animo revocandi.
Hence, the court concluded that will no. 1 had indeed been
revoked.
However, in a subsequent case, it was ruled that
there was there was no revocation either by subsequent
will for same was invalid, or an overt act since the act of
destruction or tearing the first will was prompted by the
belief that the second will had been validly executed. Art.
833, this states that a revocation of a will based on a false
cause or illegal cause is null and void.
D. Probate of Lost or Destroyed Notarial Wills
Contents may still be proven by:
a) oral or parol evidence
b) carbon copy because a carbon copy signed by all concerned
is just as good as the original
ART. 831. Subsequent wills which do not revoke the previous ones in an
express manner, annul only such dispositions in the prior wills as are
inconsistent with or contrary to those contained in the later wills.
A. This Article speaks of implied revocation, & this may be total or
partial.

B. The law does not favor this, & therefore, efforts to reconcile must be
made.
ART. 832. A revocation made in a subsequent will shall take effect,
even if the new will should become inoperative{not invalid} by
reason of incapacity{if the heir or devisee or legatee designated in
the subsequent will is guilty of an act of ingratitude or act of
unworthiness} of the heirs, devisees or legatees designated
therein{subsequent will}, or by their renunciation.
[IMPORTANT] ART. 833. A revocation of a will based on a false
cause{comment A} or an illegal cause{revoking the original will
by substituting it with another instituting his common law wife as the
sole heir} is null and void{and the original will subsisted}.
A. Example:
T made a will making A his heir. T then learned that A was dead.
So he made another will instituting B as heir. If A turns out to be still
alive, who inherits?
ANS: A inherits because the revocation was based on a false
cause, {and the original will is revived or subsisted.}
[IMPORTANT] ART. 834. The recognition of an illegitimate child does
not lose its legal effect, even though the will wherein it was made
should be revoked.
A. According to Art. 278, voluntary recognition od an illegitimate child
may be done:
(1) in a record of birth
(2) will
(3) statement before a court of record
(4) any authentic writing
Now then, if the will in which recognition had been made is
subsequently revoked, the recognition still remains valid.
B. Reason:
1. While a will is essentially revocable, recognition is not, unless
there be vitiated consent
2. Recognition is not really a testamentary disposition
3. Recognition does not wait for the testator's death to become
effective
[Note: this article only applies if the recognizing will is extrinsically
valid; otherwise, there can be no recognition that can be revoked.]
Subsection 7. Republication and Revival of Wills
ART. 835. The testator cannot republish{or re-establish}, without
reproducing in a subsequent will, the dispositions comtained in a
previous one which is void as to its form{extrinsically void}.
A. Republication the process of re-establishing a will, which has
become useless because it is void{extrinsically}, or had been
{extrinsically valid but} revoked.
B. How Made:
a) re-execution of the original will (original provisions are
COPIED), and this time there must be compliance with the law
b) execution of a codicil (implied republication)

ART. 836. The execution of a codicil referring to a previous will has the
effect of republishing the will as modified by the codicil.
A. Requisites & Limitations of Republication
1. To republish a will void as to its FORM, all the dispositions must be
reproduced or copied in the new or subsequent will.
2. To republish a will valid as to its form but already revoked, the
execution of a codicil which makes reference to the revoked will is
sufficient.
Note: there should be nothing wrong with the RE-EXECUTION.
ART. 837. If after making a will, the testator makes a second will
expressly revoking the first{this will revokes the first dated...},
the revocation of the second will does not revive the first will, which
can be revive only by another will or codicil.
A. Distinction between Republication or Revival
Republication is an act of the TESTATOR. Revival (restoration or reestablishment of revoked will or revoked provisions thereof, to
effectiveness, by virtue of legal provisions) is one that takes place by
OPERATION OF LAW.
B. Revocation takes immediate effect.
C. Examples of Revival
While omission{or preterition} of a compulsory heir{in the
direct line} in the institution of heirs annuls the institution, still if the
omitted dies ahead{or predeceases} of the testator, the
institution is revived{the institution becomes valid} without
prejudice to the right of representation{the legitimate children of the
omitted heir who predeceased the testator shall inherit the legitime of
the latter. Right of representation pertains only to the legitime of the
person represented.}
If after making a will, the testator makes a second will
impliedly{there is complete inconsistency between the first and
second will} revoking the first, the revocation of the second will revives
the first will.
D. Problems
1.
I made 3 wills. Will no. 2 expressly revoked will no. 1. Will no.3
revoked will no. 2. Is will no. 1 revived?
ANS: No, by express provision of Art. 837. The rule is based on
the principle that the revocatory clause of the second will took effect
immediately{or at the time of making the second will} or at the
instant the revoking will{will no. 2} was made. Principle of Instanter
{means that why a will is a disposition mortis causa, a revocation takes
effect inter vivos}.
2.
T made 3 wills. Will no. 2 is completely inconsistent with and
therefore impliedly repeals will no. 1. Later, will no. 3 revokes will no. 2.
Is will no. 1 revived?
ANS: Yes, this is a clear inference from Art. 837 since the article
uses the word expressly it follows that in case of an implied revocation
by the second will, an automatic revival of the first.
3.
A made will no. 1, then will no. 2 expressly revoking the first.
Then, he destroyed will no. 2, and orally expressed his desire that his
first will be followed. Should this be allowed?
ANS: No, the oral expression of the desire to revive cannot be
given effect. He should have made a new will or codicil.
Subsection 8. Allowance and Disallowance of Wills (Probate)

VERY VERY IMPORTANT


ART. 838. No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court. {Stated
otherwise, no property, whether real or personal, shall pass to the heirs
by virtue of a will unless said will is proved before and allowed by the
court.}
{Ante-mortem probate} The testator himself may, during his
lifetime, petition the court having jurisdiction for the allowance of his
will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator's death shall govern.
[JRT] The Supreme Court shall formulate such additional Rules of
Court as may be necessary for the allowance of wills on petition of the
testator. [JRT]
Subject to the right of appeal{Once a will is probated and
no appeal has been made on the decision of the probate court the due
execution of the will becomes conclusive and questions on the
formalities of the will and testamentary capacity of the testator can no
longer be entertained}, the allowance{or approval} of the will, either
during the lifetime of the testator or after his death{post mortem},
shall be conclusive as to its due execution{such as compliance with
formalities required by law and testamentary capacity of the testator
but it does not include the validity of testamentary provisions}.
A. Probate the act of proving before a competent court the due
execution of a will by a person possessed of testamentary capacity, as
well as approval thereof by said court. Probate is one thing, the validity
of testamentary provisions is another.
B. 2 Kinds of Probate
1. Probate during the testator's lifetime (can probate, alter, or
revoke will multiple times so long as the testator's alive)
2. Probate after the testator's death
C. In a {Post-Mortem only} Probate Proceeding, the Court:
a) orders the probate proper of the will
b) grants letters testamentary or letters with a will annexed
c) hears & approves claims against the estate
d) orders the payment of the lawful debts
e) authorizes the sale, mortgage, or any other encumbrance of
real estate
f) directs the delivery of the estate or properties to those who are
entitled thereto
D. Procedure and Reason for "Ante Mortem" Probate
1. Testator himself petitions the competent court for the probate
of the will
2. He then follows the procedure for the post mortem of ordinary
probate, except insofar as the Supreme Courtmay impose
additional rules for ante mortem probates
3. Reason: to prevent or minimize fraud, intimidation & undue
influence; also, to enable the testator to correct at once failure to
observe legal requirements.
E. 2 Parts of Post-Mortem Probate:
1. The probate proper that deals with the EXTRINSIC VALIDITY
2. The inquiry into INTRINSIC VALIDITY & the DISTRIBUTION itself
of the property
F. The petition for probate must, among other things, state:

a) the fact that the testator is dead, & the place & time of said
death
b) the fact that the deceased left a will, copy of which has to be
attached to the petition
c) the fact that the will was executed in accordance with legal
requirements
d) names, ages, addresses of the executor & all interested
parties or heirs
e) the probable value & character of the property of the estate
f) the name of the individual whose appointment as executor is
being asked for
g) if the will has not been delivered to the court, the name of the
person who is supposed to have the will in his custody
G. In court, there must be proof of death (actual or presumed),
publication of the notice of hearing, & the compliance of all formalities
required by law
H. The necessary witness must be produced if available, & their
absence must be satisfactorily explained. (Unson v. Abella) even if the
doesn't remember attesting (Rule 76, Sec. 11) or even if he or all
testifies against the validity & due execution, there is still a chance for
the court to allow the will, if it believes that all legal requirements have
been complied with. (Testate Estate of Reymundo) It is error to deny
allowance just because of contradictions among the witnesses.
(Fernandez v. Tantoco) After all, such inconsistencies are not
necessarily fatal to the validity of the will. (Tolentino v. Francisco)
However, as a rule, the testimony of the attesting witnesses should
prevail over expert evidence. (Roxas v. Roxas)
I. For a person to be able to intervene in an administration proceeding,
it is necessary for him to be interested in the estate to be
administered.
interested party one who would be benefited by the estate
(e.g. heir), or one who has a certain claim against the estate,
such as a creditor. (Sumilang v. Ramagosa)
J. Distribution the division, by order of the court having authority,
among those entitled thereto, of the estate of a person, after the
payment of the debts & charges.
K. To be conclusive, the probate must have been conducted by the RTC
of the province:
a) where he has the real estate (in case of NON-RESIDENT
testator)
b) where he resided at the time of his death (in case of a
RESIDENT testator)
[Note: all RTCs have jurisdiction. The residence or domicile only affects
the VENUE. The rule grants jurisdiction to the Court where jurisdiction
is first invoked, without taking venue into account.]
Moreover, it is essential that:
it be proved before the court that he died after having
executed a will (in case of post mortem probate)
and that the will has already been delivered to the Court
The SC is not inclined to annul proceedings regularly had in a
lower court, even if it is not the proper venue, if the net result would
be to have the same proceedings repeated in some other court of
similar jurisdiction. (Rosa Cayetano Cuenco v. CA)

L. The final judgement on a probate may be set aside by a petition for


relief brought within the legal period. Under Rule 38, Sec. 1 of the
Rules of Court, when a judgement or order is entered against a party in
the RTC thru FAME (fraud, accident, mistake, or excusable negligence),
he may file a petition in the same court & in the same cause, asking
the judge, order, or proceeds be set aside.
PERIODS petition has to be filed:
1. within 60 days after the petitioner learns of the
judgement or oder to be set aside
2. and within 6 months after such order or judgement was
entered. Should the judgement lapse, the judgement now
really becomes FINAL.
M. Procedure in the settlement of estates
1. First, proof of testamentary capacity & due execution are
presented, & the court then issues an order allowing or
disallowing the will
2. After this is done, the distribution of the estate may be done,
after all questions on intrinsic validity are disposed of.
Nacar v. Nistal
The creditor of a deceased person, if the credit is because of a
contract, must file the claim in the settlement or administration
proceedings of the estate of the deceased, not sue in a separate action
against the administrator.
N. Points, among others, that should NOT be included in the probate
order, since they affect intrinsic validity:
1. Exclusion of the widow from the inheritance
2. Disinheritance of a daughter
3. Impairment of the legitime
4. Declaring a certain woman to be the true wife of the testator
5. Partitioning of conjugal properties
6. Right of a widow to the inheritance
7. Titles to property, & annulment of alleged fraudulent sales.
Pedro Ermac, et. al v. Cenon Medelo, etc.
The settlement proceeding must go on, & not be delayed. The
probate court is not the best forum for the resolution of adverse claims
of ownership of any property ostensibly belonging to the decedent's
estate. While there are settled exceptions to this rule, it is not proper
to delay the summary settlement of deceased person's estate just
because an heir or a third person claims that certain properties do not
belong to the estate but to him. Adverse claims of ownership must be
ventilated in an independent action. For the protection of the claimant,
the appropriate steps is to have the proper annotation of lis pendens.
O. Proof of filiation may be given if it's essential to establish which of
the 2 wills has been revoked. Moreover, it can be given to prove prima
facte whether or not an oppositor or intervenor claims to be related to
the testator, can be allowed to intervene in the probate proceedings
for the purpose of protecting his rights. However, the final decision on
the matter of relationship can be threshed out either in another case,
or even in the later stages of the settlement proceedings, the stage
when the declaration of heirship is made, & only after the probate
order has been made.
Uriarte v. Uriarte, et al
There are two alternatives for an acknowledged natural child to
prove his status & interest in the estate of the deceased parent:

a) to intervene in the probate (or intestate) proceeding if it is still


open
b) to ask for its reopening if it has already been closed (if for
instance extrinsic fraud, as in the omission of heirs, has been
made in the judicial partition even if said partition had been
approved by the Court)
P. Prescription does not apply in probate proceedings. The Statute of
Limitations fixes time limits for the filing of civil actions but not for
special proceedings of which a probate is admittedly one.
Q. The rule of estoppel does not apply to probate proceedings for they
are invested with public interest, & if estoppel would be applied, the
ascertainment of the truth may be blocked.
[Memorize] ART. 839. The will shall be disallowed in any of the
following cases:
(1) If the formalities of the law has not been complied with;
(2) If the testator was insane or mentally incapable of making a
will, at the time of the execution;
(3) If it was executed through force or undue duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto.
A. The Ground of Force, Duress, Fear or Threat
connotes the idea of coercion, mental or physical
while their presence in a contract renders it voidable (and
therefore susceptible to ratification), their presence in a will
renders the will void.
B. The Ground of Undue or Improper Pressure & Influence
undue influence connotes the idea of coercion by virtue of
which the judgement of the testator is displaced, & he is induced
to do that which he would not have done. It is present when he
does something because of fear or a desire for peace or from any
other feeling which he is unable to resist.
he who alleges undue influence must prove the same.
(Macapinlac v. Alimurong)
there is no undue influence just because a testator has made
his mistress{incapable of succeeding}, or his illegitimate child
by her, the heir to the entire free partition. Mere affection, even if
illegitimate, is not undue influence, as long as the giving was
voluntary. (Coso v. Fernandez Deza)
[Note: though such a will may be admitted to probate because of
the absence of undue influence, still under the law, a mistress is
incapacitated to inherit.]
the fact that some heirs are more favored than others is proof
of neither fraud or undue influence. Diversity of appointment is
the usual reason for making a testament; otherwise, the
decedent right might as well die intestate. (Icasiano v. Icasiano)
according to Justice Villareal's dissenting opinion in Cuyugan v.
Baron, the will can be allowed, as the effect of the undue
influence has been destroyed. However, in several American
cases, it has been held that ratification cannot cure the defect.
C. The Ground of Fraud

fraud is the use of insidious machinations to convince a person


to do what ordinarily he would not have done. For fraud to vitiate
a will, there must be intent to defraud. This intent, & the nature
of the fraud, must be proved.
fraud & undue influence are mutually repugnant & exclude
each other; their joining as grounds for opposing probate shows
the absence of definite evidence against the validity of the will.
(Icasiano v. Icasiano)
D. A man signed a document not believing it to be a will. This mistake
is a ground for allowance.
E. Revocation is a voluntary act of the testator, while disallowance is
given by judicial order. R is with or without cause; D must always be for
a legal cause.