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Article 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 are transmitted through his death to another or others either by his will or by
operation of law. (n)
Article 775. In this Title, "decedent" is the general term applied to the person whose property is transmitted through
succession, whether or not he left a will. If he left a will, he is also called the testator. (n)
Article 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by
his death. (659)
Article 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)

Successional rights of an heir are always based on the at the time of the death of the decedent.
So, important elements for the transmission of successional rights
the first important element is DEATH. There will be no successional rights transmissible if there is no
death.
Second, ALL PROPERTIES, RIGHTS, AND OBLIGATIONS IN THE EXTENT OF INHERITANCE ARE
TRANSMISSIBLE. Like I said, it is not extinguished by death. These may be transmitted through
succession.
And third is that THE HEIR MUST NOT PREDECEASE, OR INCAPACITATED OR REPUDIATES
INHERITANCE.
Now, what therefore is the implication or the effects of transmission of rights from the moment of death
of a person.
This is so resolved in the case of Tordilla vs Tordilla and Barretto vs Tuason. In these cases,
important elements or issues that were resolved in this cases is that prior to the persons death, his
heirs merely have an inchoate right. Thus the heirs have no right to dispose of or alienate the
property of a person still alive. Your share to the inheritance cannot also be disposed because of
article 777. Logically therefore, after the death of the person, his heir right has now ripen into
ownership, and what is the implication here?
When it is ripen to ownership, then he has the right to sell. But not necessarily a concrete or
specific property of the estate because the partition has not yet been made. The only thing or
subject matter of alienation is your share to the inheritance.
Why? Because, at the moment of death of a person, his inheritance is no longer a future
inheritance. It is already ownership per se.
Now, one of the most cardinal principles under the law on succession is that future
inheritance cannot be a subject of sale, or encumbrance or donation, while the person is
still alive. The reason is because under article 777, all successional rights of a person can
only be transmitted at the moment of death of a person.
One of the most important elements for succession to occur of course is that there is death. There are two
kinds of death under our law.
One is actual death, and the other is presumed death.
Now, actual death, we dont have any problems with that. And how would you determine it? By
certificate of death. So from the moment the certificate of death has been issued, then the successional
rights of the heirs have been transmitted.
We have a dilemma as with regard to presumptive death. Now, there are two kinds of presumptive death
under articles 390 and 391 and the effects of presumptive death under 392.
Under Articles 390, these are important articles in connection with your study of the law on succession.
This talks about death, but death which are considered presumed.
Under Article 390, this is an ordinary presumption of death because of ordinary absence. Under
Article 391, extraordinary presumption of death because of extraordinary or qualified absence.
Why do we have to know this? Because of a period of time and the effects of successional rights
transmission to an heir. So let us discuss article 390 and 391 and compare it, and well have to
discuss how the significance of these provisions in connection with your study in the law of
succession.

Succession Notes 2013-2014

All right first article 390: an absentee disappears under normal conditions there being no danger of
death shall deem presumed dead for all purpose and opening of succession. It says there 10 years.
At the end of 10 years or at the end of 5 years if the person disappears 75 years old. That is a
presumed death by ordinary circumstance. Now, what is the implication here. The implication here
is that death, is presumed to have occurred at the end of the 10 year period, or at the end of the 5
year period as the case may be.
You differentiate it with extraordinary presumption of death under article 391. It provides that
qualified absence occurs because there is great probability of death, this is qualified absence and is
presumed dead for all purposes. And what are these conditions as set forth under article 391?
If a person is onboard a vessel or if you are a military person, you are exposed to danger or
declared missing, and a person being in danger of death under other circumstances, and his
existence may not be known for 4 years.
The significant point to remember in extraordinary presumption of death is that in
extraordinary absence, the person is presumed dead or have died at the time of the
disappearance.
Death of a person is not presumed at the end of 4 years but at the time of his disappearance.
For example, a member of the AFP was sent to Mindanao to fight the Abu Sayaff, he was
declared missing in action on January 25, 2010. Following the law on extraordinary
presumption of death, the person is deemed dead, presumed died, on January 25, 2010
and not four years thereafter. And what is the significance here of knowing when a
person is presumed dead? In matters of successional rights, it means that the heirs, at
the time of the disappearance of this military man have already acquired his right to the
inheritance on January 25, 2010, which means that at the time of the disappearance,
the heirs can now sell his share to a stranger because from the time of the moment of
death of a person his successional rights is been transmitted.
If you are going to compare this, if a person is presumed dead under ordinary
circumstances, the heir would have to wait the end of 10 years or 5 years for them to
validly sell or dispose of their share in the inheritance because in this point in time,
under ordinary absence, his inheritance is only considered as future inheritance.
So what is really controlling here is that, first you have to determine whether the presumption of death
is under qualified absence or ordinary absence in order to determine when the successional rights of the
heir have been transmitted. Now, the question would be asked, what happened if its under
extraordinary circumstance, can the heirs distribute or partition the estate?
The answer is no. although the heirs right to the inheritance has already been transmitted but they
cannot partition the estate until 4 years has passed, reckoned from the time of disappearance. What
happened now if the person declared missing in action came back or returned, what will happen to
his estate?
It is provided under article 392. It says there, if the absentee appears or without appearing, his
existence is proven, he shall recover his property in the condition in which it may be found. But
he cannot claim the fruits and interests when he was away. But he can recover the price of any
property of his estate that may have been alienated. AT THE MOMENT OF HIS DISAPPEARANCE,
HE MUST BE 75.

Article 778. Succession may be:


(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed. (n)

Kinds of succession
Under 778-780, testamentary succession. Why testamentary? You always have to remember that when
we talk about testamentary succession, there is an existence of a testament called a will.
If there is no will, succession becomes legal or intestate by operation of law. If mixed, partly by will,
partly intestate. If all the properties are not written in the will, the remaining properties of the estate
shall descend by intestate succession.

Succession Notes 2013-2014

Article 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form
prescribed by law. (n)
Article 780. Mixed succession is that effected partly by will and partly by operation of law. (n)

Under article 779, it says there that testamentary succession is that which consists of a designation of an
heir in a will and it has to be executed in the form or solemnities as provided by law. This will may either
be notarial or holographic will. Testamentary succession.
Are non-cupative wills are sanctioned or admissible by our law on succession?
Non-cupative meaning tape-recorded wills. In our jurisprudence, no. it is only holographic and
notarial will.
Mixed succession occurs if the whole estate is not given in the will. Part of the estate not given in the will
shall descend by intestate succession unless of course the testator provides otherwise. If the testator
intends to give the whole estate, and whole properties of the estate was not given in the will itself,
intestate succession will not be applicable in this case because there is an intention of the testator to
give the entire estate (?).
in relation to the scope of inheritance, we have said that property whether real or personal and its
accruals are included in the inheritance.

Article 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the
time of his death, but also those which have accrued thereto since the opening of the succession. (n)

Article 781 says that accruals should be given to the legatee or devisee but not after acquired properties.
After-acquired properties means properties acquired after the execution of the will and at the moment of
death of the testator.
Between the time the will was made, and the time he dies.
The rule is that after-acquired properties are not given to the designated heir unless the contrary has
been provided and it has to be expressly stated in the will.
So, in the example I have given you, I said I give my condos to x. there is no mention of how many
condos but at the time of the execution of the will, there are 2 condos. At the moment of death of the
testator, there were already 4 condos, question, how many condos should be given to the heir?
Would you consider the two more which were acquired after the execution of the will an afteracquired properties?
YES! So if your answer would be YES, then your answer would not be 4. Because we said the
additional two were acquired after the execution of the will, that is considered after-acquired
properties.
You have to differentiate it with accruals.
The time to determine accruals is after the moment of death of the testator. And its not a
property or a specific property itself. This is an addition to the property, which is the
subject of a legacy or a devisee.

Article 782. An heir is a person called to the succession either by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. (n)

Heir a person called to succession either the provision of a will or by operation of law. In both
testamentary and intestate succession, there are always heirs.
Devisees to whom gifts of real property are given while legatees are persons to whom gifts of personal
property are given. Heirs maybe compulsory or voluntary.
Compulsory heirs are entitled to the legitimes of the decedent.
These compulsory heirs are protected as with regard to the legitime the compulsory heirs, protected

Succession Notes 2013-2014

by law so much so that if the heir, as compulsory heir inherits his legitime, this is not by voluntary,
this is not by will but by operation of law because it is the provision of the law that legitime is
always to be respected.
Compulsory heirs like legit children and their legit descendants, illegitimate children and their
descendants whether legit or illegitimate. Then we have legit parents and their legit ascendants.
And then we have surviving spouse. These are the compulsory heirs and they are always entitled to
their legitime because the law protects the legitime for the compulsory heirs. So that is why we have
what you call as preterition or impairment or prejudicing the legitime. It cannot be.
Lets move on to voluntary heirs. And when is that? If they are designate in the will like Ill give you a
piano, youre a legatee, house and lot, youre a devisee. So these are voluntary heirs because they are
designated in the will given personal or real property.
Instituted heirs is different because instituted heir refers to those heirs who are given an aliquot
portion of the estate. So there is no specific property but only a specific portion of a property. So if I
say I hereby institute B to 1/3 of my estate then B is considered as an instituted heir.
When is an heir enjoying a dual status?
An heir is enjoying a dual status when an heir is a compulsory heir and hes entitled to his legitime
but hes also given a share in the free portion. So hes entitled to the free portion.
Thus, the heir will now be considered as a compulsory heir as to his legitime, and a voluntary heir as
to the free portion. So it could be possible that a compulsory heir may be at the same time a
voluntary heir.
Important things to note here. While there can be heirs in either testate, legal or mixed succession,
legatees and devises cannot exist in intestate succession.
The reason is because they can only exist if theres a will.
What then is the significance of knowing the distinction between a compulsory heir and a voluntary heir.
In matters of successional rights, if a person is a compulsory heir and he predeceases or is
incapacitated to inherit, then his heirs will inherit by representation, except if he repudiates;
But if you are a voluntary heir, if you predecease or incapacitated you will not transmit anything to
your heirs. It will be reverted back to the estate of the testator and it will descend by intestate
succession. There is no right of representation if a voluntary heir predeceases the testator.
At this point in time, always remember, that if an heir predeceases or incapacitated to inherit, there
is a right of representation. But if an heir repudiates inheritance, there is no right of representation.
Lets go to the terms legatee, devises vis--vis instituted heir.
Why do we have to know this?
If a person is a legatee or a devisee, in matters of preterition, this early, preterition means total
omission of a direct compulsory heir.
If one of the compulsory heirs is omitted, what will happen? The effect would be that the
institution of an heir is automatically annulled but the legacy and devise remains valid as
long as it is not inofficious.
Now in matters of valid disinheritance, it has a different effect. It means that the institution
of an heir may not be automatically voided as long as it does not impair the legitime of the
other compulsory heirs. In matters of valid disinheritance and preterition, one has to know
the difference between a legatee and devisee from that of an instituted heir.

Article 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 this estate, to take effect after his death. (667a)

A will is an act whereby a person is given or permitted with the formalities provided by law to dispose of
his property to take effect after his death.
If you dispose of your property during your lifetime, its not a will because its only a donation.
So the question would be, are wills executed by a person immediately effective upon the death of the
testator?
The answer is no. why? Because of the provision of article 838. Article 838 says that no will
shall pass either real or personal unless it is proven in accordance with the rules. Now these

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proceedings is called probate of the will.


The will whether it is holographic or notarial must pass on for the approval of the court. So it is
not immediately effective.
There are only two issues which has to be resolved in the probate proceedings.
One is the testamentary capacity of the testator and the other is the extrinsic validity of
the will, which means that if the will is duly executed in accordance with the formalities
and solemnities of the law especially if it is a notarial will.
And whether the testator has the capacity to execute the will.
If the court approves or admit the will of a person, that means that the will is authentic
and genuine.
Thus, you could no longer raise the issue of forgery anymore because this goes into
the signature of the person in a will.
The general rule is that all wills, whether notarial and holographic must be admitted in order to take
effect.
But the exceptions are the following:
First, RA 7170, this is a person or a legacy of a human organs. I assigned this to you so its
up to you to determine why this is an exception!
Second, when the will does not in anyway dispose of any property. You dont have to go to
the court and admit the will because after all there is no disposition of properties.
Third, if the will only appoints an executor, or administrator. Then you dont have to submit
the will for probate.

Article 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. (670a)

The making of the will is a statutory right. It is not a natural right.


Why is it a statutory right?
Because the making of the will is subject to the limitation as provided by the law. Only to a certain
degree provided by the law under articles 804-808.
So the making of the will is not a natural right of a person. If the making of the will is not in
accordance with the rules of the law, then youre will will not be admitted.
Second, it is a unilateral act. The making of a will is a unilateral act. There must be an intent on the part
of the testator to make a will. In order to validate the will, or to render it as valid, you have to follow, you
have to show to the court that you have the intention to make a will.
And then the testator must have testamentary capacity which has to be proven during probate
proceedings.
Strictly a personal act and the will must be effective mortis causa, after the death.
Are the provisions of the will revocable? Yes of course! It is essentially revocable because it is
ambulatory in character.
It should be free and voluntary and it is to be made in only one instrument.
A very important element in the validity of a will is that only one person shall make one will.
In other words, not necessarily that he has to make two persons in one joint will. That is why
our law in succession frowns joint wills.
What do you mean by joint will?
Joint will is a will executed by two or more persons in one instrument and the law on
succession does not admit such.
Are oral conveyances valid?
Under our law, there is a leading case of lasam vs lasam (?). in this case, jurisprudence in the
Philippines recognizes oral contracts as valid provided such partition of the estate does not
prejudice.
Always remember that were talking here only of oral conveyances but if the question would be, are
oral wills valid?
The answer would be no because there are only two kinds of wills: holographic and notarial.

Succession Notes 2013-2014

Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which
they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a)
Article 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 are to be given or applied. (671a)
Article 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether
or not it is to be operative. (n)

Now the making of a will is a personal act but sometimes, you have to ask the service of a lawyer
especially if it is a notarial will.
That is not prohibited here as long as what the contents of the will is your own intention.
Now, since it is a personal act, delegations of the contents of the will is strictly prohibited. Thats
why under the law on succession, there is so called non-delegation in the execution of the making of
the will.
Now, this rule on non-delegation of the making of the will is found under the provisions of articles
785, and 787. Now the exception to this rule is found under article 786. So take note of this.
Under article 785 and 787 you cannot delegate to a third person. If you want to delegate to a third
person for the efficacy of the designation of an heir, it cannot be.
If youll say, I will give piano to x as long as y will approve. So the efficacy of such designation is
dependent upon the approval of y and that is not valid.
How about determinations of the portions to be given to them?
This is not also valid. Why?
Because the determination of such portions is given to the discretion of a third person, and
this cannot be admitted.
The third is under article 785. Determination of another person whether or not is to be operative.
So these are the rules of non-delegation rule of the making of a will. The exceptions is found in the
provisions under article 786.
What is this exception?
It says there that the testator may entrust a third person the distribution of specific property or
specific sums of money to a specific class or cause.
So 1M to be given to a specific class lets say home for the aged to be determined by a third
person. That is acceptable!
Or the designation of a person or institution of establishments to which money or property
is to be given. These are the two exceptions to the general rule on non-delegation in the
making of will to a third person.

Article 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. (n)
Article 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and
omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral
declarations of the testator as to his intention; and 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 oral declarations. (n)

Article 788-792. these articles can only be applied if theres ambiguity in the will. If theres no ambiguity
in the will then do not apply these articles.
What are these two kinds of ambiguities? Latent or intrinsic and the other is patent or extrinsic.
Latent or intrinsic. The ambiguity does not appear in the face of the will thats why it is latent. And
that which does not appear in the face of the will and is only discovered after the death of the
testator.
So if I say I institute my brother-in-law from the provision in itself, this is valid but ambiguity
comes in after the death of the testator when there are more than one brothers-in-law. So the

Succession Notes 2013-2014

question would be which brother-in-law is instituted.


If the heir is not determinable, then the disposition in itself is already void because you
cannot pinpoint who is referred to in the will.
How about patent or extrinsic? It is actually found in the face of the will. Just by reading the will, you
can already say that it is ambiguous.
I hereby institute a few of my sisters. If you have 10 sisters, how do you determine the few.
In the contents of the will itself, the provision itself is already void because it is very
ambiguous.
Now, if there is an ambiguity in the will, whether its latent or patent, what is the remedy then to show to
the court that this is the provision, thats the intention of the testator in the will.
First, you have to determine the examination of the will itself. The whole will in itself.
And then you can introduce extrinsic evidence in court during the probate proceedings. But oral
declarations of testators are not admissible.
Only written declarations of the testator may be acceptable.
For sometimes, you also have to go around the circumstances during the execution of the will.
For example there are two Mercy Mercy, Ill give piano to Mercy. But at the time of the
execution of the will, you can prove that the other Mercy is an enemy of the testator and the
other Mercy is under his blessings so which Mercy was intended to be given the piano?
Even if theres ambiguity but if you can prove surrounding circumstances at the time of
the execution of the will, then the dispositions will not be void as long as the heir is
determinable.

Article 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. (675a)
Article 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. (n)

For the interpretation of the will, if there is an ambiguity or none, usually, the general rule is that the
contents of the will should be interpreted in its grammatical sense.
But if it uses technical sense or technical words, then it has to be interpreted in its technical sense.
Unless of course the testator is not a doctor an hes using medical words then it would be open to doubts
if thats really the intention of the testator or the will of the testator.
So as a general rule, the words of a will shall be interpreted in its grammatical sense, if technical words,
in its technical sense unless there is a contrary intention appearing in the will.

Article 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 other dispositions if the first invalid disposition had not been
made. (n)

Sometimes in a will, there are provisions, different kinds of provisions and there is one provision, which
is invalid in a will. Probably because of ambiguity. So does it affect the whole will? Article 792 says that
invalid dispositions in the will do not affect all the valid dispositions in the will. Whether it is notarial or
holographic.

Succession Notes 2013-2014

Article 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of
making the will, should it expressly appear by the will that such was his intention. (n)
Article 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed
of, unless it clearly appears from the will that he intended to convey a less interest. (n)

Property acquired after the making of the will and properties still being acquired after the death. That is
the opinion of Pineda. But that is not the opinion of Paras. They seem to have conflicting opinions.
Pineda said that properties to be given are only those already possessed and owned by the testator
at the time the will is made, not those acquired after the making of the will. That is the general rule .
first exception, unless the testator expressly provides otherwise in the will.
So if I say I hereby give my condo to x and all condos that I may acquire before my death. Its
no longer after-acquired properties because he intended to give all the properties, condos
at the moment of his death.
If the will is republished or modified, thats another exception. If you talk about republication or
modification of a will, it means, that the will is as if its originally executed during republication.
So what actually happens is this, executed a will January 25, 2010, he has 2 condos. On
January 25, 2011, republication. Upon republication, he already has 4 condos. Death is Feb
25, 2012, he has 6 condos.
How many condos would x receive at the time of his death? 2. Why? Because these are
considered as after-acquired properties. Supposing, he did not intend to give the afteracquired property but he republished it on jan 25, 2011, upon his death, how many
condos? 4 why? Because belongs to the exception to the general rule. Why an
exception?
The effect of a republication of a will is that it is as if the will was originally executed on
jan 25, 2011.
Now, supposing, he would say, all condos that I will get until my death will have to be given to x.
so time of his death, he has to give 6. Another exception to the general rule on after-acquired.
At the time of the execution of the will, the testator thought that he has 2 condos, and he
said I will give these 2 condos to x. but he has no condos.
Under the rule, you cannot give what you dont own. So what now happens to this legacy. It
makes it void.
But if before he died, he already has 2 condos, so can x demand?
The answer is yes because she erroneously thought that it is his but he acquired it
at the time of his death so x can demand the 2 condos. It would be the other way
around if he did not acquire the 2 condos because first and foremost, upon the
execution of the will it wasnt his condo. That is an exception to the general rule.
Another exception. Legacy of credit or remission of debt.
This legacy of credit and remission of death is an exception because the basis of
determining the credit and the debt to be remitted is not at the time of the execution of the
will but at the time of the death of the testator.
So supposing, at the time of the execution of the will, I say legacy of credit 3 persons x y
z. x is the testator, he will give to y the debt of z.
for example Im the testator then let us say Kristina and Kathleen. Kathleen owes me
100k. Ill give kathleens debt to Kristina as a credit. So this is a legacy of a credit in my
will. Now what happened now is that in my will at the time of the execution. It said that
I will give a legacy of my credit of Kathleen to Kristina but Kathleen before I died paid
me 50k. so how much would Kristina get in my estate?
The rule says the legacy of a credit should not be based at the time of the execution
of the will but it should be based at the moment of death. So the determining
period of time is not at the execution of the will but at the time of death.
When it comes to remission. In the remission of debt, there are only 2 persons involved.
Kristina and I. Kristina owes me money but I will remit. So just dont pay me. 100k for
example. I put in my will, I will hereby give a legacy of the remission of debt of Kristina from
my estate. What happened? Shes supposed to no longer pay the 100k anymore because I

Succession Notes 2013-2014

already remitted it. But if you dont know and you pay me 50k, only the 50k may be
remitted. So you could no longer demand the 50k anymore. Why?
Because you paid me! Its like that. So thats an exception to the general rule on afteracquired properties because the determining period of time to determine the credit is
not at the execution of the will but at the time of death of the testator.
The interpretation of the will must be according to how it is stated. We have already discussed the
concept of succession based on law, its definition of terms etc.

Article 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n)

2 KINDS OF VALIDITY OF THE WILL


1. Intrinsic refers to the legality of the provisions of the will. This actually refers to successional rights, order
of successional rights of the heirs.
Viewpoint of Place and Country National law of the decedent which shall govern the intrinsic
validity of the will
Viewpoint of time - at the moment of the decedent's death, not at the time of the execution of the
will
2. Extrinsic refers to the formalities and solemnities in the execution of the will. It depends actually in the
observance upon the law at the time the will was executed. Again, this only refers to the formalities and
solemnities of the will. It may either be from the
viewpoint of time must observe the law at the time of the execution of the will
viewpoint of place/country IT DEPENDS:
Filipino Philippine laws, where he is or where he executed the will (Permissive so you have to
make a choice)
Alien if he executes the will abroad, the law of his domicile or his nationality or Philippine law or
where he executed the will, may govern the extrinsic validity of the will
Alien if he executes here in the Philippines, Philippine law will govern or the law of his nationality
What is really important for you to remember here is the rules on the extrinsic and intrinsic validity of
the will.
PROBLEM: A Filipino executed a holographic will in Switzerland. At the time of execution, holographic
will is recognized in Switzerland. But this person is a Filipino. He executed the will in accordance to the
law where he executed the will, in Switzerland. At the time of the execution, Philippine law did not
recognize holographic wills. At the time of his death, the Philippines has already passed the New Civil
Code which recognizes holographic wills.
Can his will, which was executed in Switzerland be admitted in probate here in the Philippines?
If you will apply the rules, this will go into the extrinsic validity (holographic). Lets go to the
viewpoint of time. At the time of the execution of the will, holographic will was not
recognized in the Philippines but it was executed in accordance with the laws of
Switzerland which recognizes holographic wills. But at the time of his death, holographic
will is already recognized in the Philippines.
The answer is NO. From the viewpoint of time, it is not extrinsically valid. Why? Because it
was not recognized in the Philippines. This goes to the extrinsic validity of the will. The
extrinsic validity of the will in the viewpoint of time states that it must be valid at the time
of its execution. At the time of its execution, the Philippines did not recognize holographic
wills. It is immaterial when the testator dies or where he dies. What is important here in the
viewpoint of time is the law that is observed at the time of its execution. Now the extrinsic
validity of the will in the viewpoint of time is the provisions which is set forth under Article
795. It may state that from the viewpoint of place it is extrinsically valid but in the
viewpoint of time it is not extrinsically valid because the will is not valid in the Philippines
at the time of its execution.
PROBLEM: In 1990, X, a Filipino, executed a will in Dubai. In his will he gave all his estate in the
Philippines to his friend. He did not give any to his wife and children. At the time of the execution, Dubai
did not have any laws regarding compulsory heirs and their legitimes. The Philippines also did not
recognize compulsory heirs at the same time. At the time of his death in 2000, he died in Dubai. At the
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time of his death, Philippine law already recognizes the legitimes of compulsory heirs. Will this will of X,
be considered to be intrinsically valid? Can the compulsory heirs of X in the Philippines demand their
respective legitimes?
This now refers to the legality of the provisions of the will. In the viewpoint of time, the law
enforced at the time of the deah of the testator. At the time of his death, the Philippines already
recognized the legitimes of compulsory heirs. Therefore, the will is VALID? Pero it cannot be
intrinsically valid because he did not give anything to his compulsory heirs at the time of the
execution, (the Philippines did not recognize the compulsory heirs). Therefore it cannot be
probated.
From the viewpoint of place/country, the will is not intrinsically valid because it is the national
law of the testator that will govern, the national law of the testator is the Philippine law. At the
time of the death of the testator, the Philippine law already recognizes the legitime of
compulsory heirs.
Question 1: Does the will has to be both intrinsically and extrinsically valid for it to proceed to probate proceedings?
As you can see, probate proceedings are to determine the extrinsic validity of the will. after determining its
extrinsic validity) It is only then the intrinsic validity of the will will be determined for the distribution of the
estate of the testator. The probate courts has only limited jurisdiction, and it is to determine the extrinsic
validity of the will. That it is voluntarily executed, the testator has the capacity to execute it and its due
execution. As with regards to the legality of the provisions in the will, the probate court MAY have
jurisdiction, in some jurisprudential exceptions, it may touch whether there is preterition in the same
proceedings. BUT GENERALLY, the jurisdiction of the probate court is only limited to the determination of
the extrinsic validity of the will.
Question 2: The viewpoint of country/place in both extrinsic and intrinsic validity always follow the respective time, like
in the intrinsic validity, the country/ place should be limited to the execution of the will. Are they the same?
Always refer to the law or rule regarding the intrinsic or extrinsic validity of the will
To determine the intrinsic validity of the will, always refer to the nationality of the testator in accordance
with Article 16 and 17 of the Civil Code
A very interesting case on this is on the First Gentleman's brother, Miggy Arroyo.
Question 3: A Filipino executes his holographic will abroad at the time when the Philippines does not recognize
holographic wills. At the time of his death, Philippines already recognized holographic wills. Does lex loci celibracionis
apply?
In this case, we are determining the extrinsic valdity of the will. The said doctrine cannot be applied. The
said will cannot be submitted to probate since at the time of its execution, holographic wills are not
recognized in the Philippines.
This will be discussed later for joint wills. Aliens who execute joint wills abroad may be allowed probate here
in the Philippines but Filipinos who execute joint wills abroad, the said will cannot be probated here in the
Philippines. This prohibition I only applicable for Filipinos executing joint wills abroad. BUT if aliens execute
joint wills here, the said will will not be allowed probate here.
TESTAMENTARY CAPACITY AND INTENT
Article 796. All persons who are not expressly prohibited by law may make a will. (662)
Article 797. Persons of either sex under eighteen years of age cannot make a will. (n)
Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n)
Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his
mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of the testamentary act. (n)
Article 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 dispositions is on the person who opposes the

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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 it during a lucid interval. (n)
Article 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening
of capacity. (n)
Article 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n)
Article 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. (n)

WHO CAN EXECUTE A WILL?


Active testamentary capacity refers to the capacity of the person to execute a will
Passive testamentary capacity refers to the capacity of the person as a recipient (heir etc.)
Can a member of a third sex execute a will? YES. Sex (Gender) does not matter.
This person must not be disqualified under the law to execute a will in an express manner.
Like a person who suffers civil interdiction, can he execute a valid will? He is not expressly
prohibited under the law, thus he can execute a valid will.
A person who is a prodigal can also execute a valid will.
So second qualification would be the age, 18 years of age. Sex (Gender) is immaterial here.
Third qualification is the person must be of sound mind at the time of the execution of the will.
What is important here is the person who executed the will, during the probate proceedings, must prove
to the court that he was of sound mind during the execution of the will. How about a person under
guardianship? Because this goes to the soundness of the mind of the person. Yes.
It is not necessary that the testator possesses all the physical capabilities/faculties.
Requisites of soundness of mind:
1. Testator knows the nature of the estate to be disposed of (character, ownership of what he
is giving)
2. The testator knows the proper objects of his bounty (by persons who for some reason
expect to inherit something from him)
3. The testator knows the character of the testamentary act (that it is really a will, that it is a
disposition mortis causa, that is essentially revocable)
If the person is suffering from senility? Senile Dementia? Qualified to make a will but ssubject to
questioning during the probate
Senile forgetfulness due to age
Senile Dementia decay of mental faculties
If the person is suffering from disability, blindness, loss of speech, paralysis?
They can do so as long as they can communicate ad prove soundness of mind

Under the law, a person is presumed of sound mind, but such presumption is disputable.
It is the oppositor to the probate of the will who shall have the burden of proving that the testator was of
unsound mind during the execution of the will.
EXCEPTION: When the testator made the will after he has been judicially declared insane AND the
testator, one month or less before making the will was publicly known to be insane.
The petitioner shall prove that the will was made during the testator's lucid interval.
The testator was of sound mind during the execution of the will but the following day, he became insane.
Can this will be admitted to probate? YES. The supervening incapacity of the testator will not invalidate
an effective will nor the will of an incapable validated by the supervening capacity. (Article 801) At the
time of the execution of the will, the person was of sound mind. THE RECKONING POINT OF
ASCERTAINING THE CAPACITY OF THE TESTATOR IS AT THE TIME OF THE EXECUTION OF THE WILL.

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FORMS OF WILLS
Article 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)

When you talk about notarial will, its formalities, you have to enumerate Articles 804-808. For holographic
wills, enumerate Articles 804, 810 and 814.
Under testamentary succession, there are two kinds of will:
Notarial
Holographic
Under Article 804, which applies to both kinds, states that all wills must be in writing and executed in a
language or dialect known to the testator. Oral wills are not admissible as valid wills in probate proceedings.
For example, my language is Tagalog and I executed the will in Bisaya, the said will will be opened to
questions since there is a presumption that I do not understand Bisaya. If there is this someone who
interpreted the Bisaya will to me in Tagalog then it must be stated in the attestation clause for it to be
admissible in probate.
Is it required for the witnesses to know the contents of the notarial will? No. What is important for the
witnesses is to know the language in the attestation clause and it must be interpreted to the witnesses.

Article 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 three or
more credible 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, 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 number of pages used upon which 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 the will and all the pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)

Essential formalities
1. Will must be in writing
2. Will must be executed in a language or dialect known to the testator
3. Will must be subscribed (signed) at the end thereof by the testator OR by the testator's name
written by another person in his presence, and by his express direction
It is not the physical end of the will but it is the logical end of the will
If the will starts on page 1, continues on page 3, then on page 2 then the logical end is page 2
and not page 3. If the signature and the attestation clause are found in page 2 then there is
substantial compliance with the making of the will because the laws contemplates a situation
where the signature must be found and subscribed at the end of the will.
The testator must subscribe his signature. Or if it is another person, then it is possible, as long
as it is in his presence and under his direction. The said other person must not be one of the
witnesses.
REFER to CASE COMPARISON for jurisprudence
Customary signature vis-a-vis thumbrak vis-a-vis crossmark
4. Will must be attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another
Attestation clause and Acknowledgement
Subscription must be made in the presence of three witnesses and in the presence of one
another, including the testator. It may not be in the presence of the notary public.
Subscription act of affixing the signature in a document in the particular places indicated by
law
Attestation act of certification to the effect that a memorandum of facts stated in the

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attestation clause surrounding the execution of the will whereby the witnesses attest the
following facts:
1. Number of pages used upon which the will is written;
2. The testator signed (or expressly caused another to sign, the said fact must be indicated)
the will and every page thereof in the presence of the instrumental witnesses;
3. The instrumental witnesses witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
SAMPLE:
ATTESTATION CLAUSE (signed by the WITNESSES)
We, the undersigned attesting witnesses, do hereby affirm that the forgoing is the last Will and Testament of
[name of testator] and we certify that the testator executed this document while of sound mind and memory.
That the testator signed this document in our presence, at the bottom of the last page and on the left hand
margin of each and every page, and we, in turn, at the testators behest have witnessed and signed the same in
every page thereof, on the left margin, in the presence of the testator and of the notary public, this [ date] at
[city]. Source: the net. :)
* leading experts: not part of the will but for compliance for its validity.
ACKNOWLEDGEMENT (JOINT ACKNOWLEDGMENT)
Republic of the Philippines)
City of ___________ ) s.s.
At the City of __________, on this ___ day of (month and year), personally appeared the Testator X, and his three
(3) instrumental witnesses to wit: AB, BC and CD, all known to me to be the same persons who executed and
attested, respectively, the foregoing Last Will and Testament, consisting (number of pages), including this page
on which this acknowledgment is written, and they all acknowledged to me that the Testator signed the will and
every page thereof on the left margin in the presence of the instrumental witnesses, that the latter signed and
witnessed the will on every page thereof on the left margin in the presence of the testator and of one another ;
that all the pages of said will are numbered correlatively in letters placed on the upper part of each page, and
that the attestation clause is in English, a language known to the instrumental witnesses; they further
acknowledged to me that the said will and attestation are their own free and voluntary act and deed. The
community tax certificates and competent evidences of identities of the said Testator and three (3) instrumental
witnesses were exhibited to me, to wit:
WITNESS MY HAND AND SEAL at the place and date first above stated. Source: the net :)
Acknowledgement
Must be acknowledged to the notary public by the testator and witnesses.
Acknowledging the presence and identity of the persons by the notary public
Notary public as witness? No because he's there to acknowledge. So he will be
acknowledging himself? Absurd. :)
Who are credible witnesses?
Credible when he possesses all the qualifications under 820 and none of the
disqualifications under 821.
A witness must be:
of sound mind
at least 18 years of age
be able to read and write
not be blind, deaf or dumb
domiciled in the Philippines
not have been convicted by final judgment of falsification of a document, perjury or
false testimony
goes in to the honesty of the person

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5.

6.

Can a blind person execute a will? YES


Can he witness a will? No.
Testator or the person requested by him to write his name, and the instrumental witnesses of the
will shall sign each and every page thereof except the last, on the left margin
There was this one case wherein thhe names of the witnesses appeared in the attestaion clause
but did not subscribe there. However, there signatures were subscribed at the left margin of
every page except the last page. The SC held that the will is invalid. It is important that the
witnessess also subscribe their signatures at the end of the attestation clause. It rendered the
will fatally defective.
All the pages shall be numbered correlatively in letters placed on the upper part of each page
-ONE- -TWO- -THREE Must be stated in the Attestation clause (number of pages)
There was a case wherein there was no mention in the attestation clause of the number of pages
but said number of pages were mentioned in tha acknowledgement part. SC held that the will is
still valid (as jurisprudential exception), the acknowledgement cured the defect.

Art. 806. Every will 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. (n)

Attestation can only be made by the act of witnessing the execution of the will, its acts must be attested by
the witnesses. The subscription by the witnesses and the testator, and the will which is notarial must always
be acknowledged before a notary public.

Case: Cruz vs. Villasor 54 SCRA 21


This is a landmark case. It has been settled that notary public cannot be made as one of the subscribing
witness in a will, because a notary public cannot acknowledge his own act.

Now as to question on whether it is necessary that the acknowledgment of the will of the testator must be
made in the presence of one another?
Acknowledgment may be madeis it necessary that all the witnesses when they signed the will, and the
testator, must they be present with each other?
Not necessarily, but the act of affixing their signatures is required that all the witnesses must be present,
as well as the testator at the time of affixing their signatures.
Acknowledgment vs. Subscription vs. Attestation
Acknowledgment is different from that of subscription, and subscription is different from attestation.
In the attestation, at the end of the attestation clause, it is necessary; it is the requirement under the law
that all the witnesses and testator must be present at the time of affixing their signature.
Q: Is it required for the notary public to be present during the execution of the will?
No, because he is only required during the acknowledgment.

It is not also necessary that at the time of acknowledgment that ALL the witnesses and the testator must be
present at the same day on the occasion that the will was executed.

Case: Javellana vs. Ledesma 97 Phils 25


It is not necessary that acknowledgment of the will by the testator and the witnesses be made on the
same day, or same occasion when the will was executed.

Q: Is a notarized will considered a public document? Is this will duly acknowledged and subscribed to by the
witnesses a public document?
The answer may be yes because of the fact that it has been notarized. But strictly speaking it shall not be
considered a public document because the notary public is not required to submit a copy of the last will
to the court. Normally, as a matter or procedure, if you are a notary public, all documents that you have
notarized for the month should be submitted at the end of the month in the clerk of court. In our case, in

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the Palace of Justice, to the Clerk of court, ex officio.


But in the case of last will and testament, it is not a requirement for them to submit the copy of the
notarial wills. The reason is because this is a matter of personal (records), this last will and testament of
a person who is going to die, or shall take effect upon his death, and it does not need to be announced to
the whole world, the contents of the last will and testament.
Q: Is it necessary for the notary public to read the contents of the will that he acknowledged?
The notary public need not have to read through the contents of the will, unless of course he was the one
who prepared the notarial will. But if you are acknowledging the witnesses and the testator, you need
not read the contents of the will. It is more than enough that the person appeared personally before you
and he attest to the fact that he has voluntarily executed his signature in the will, voluntarily, without
undue pressure.
There is a presumption of regularity if the document has been duly notarized by an accredited notary
public. Not all lawyers are notary public, but all notary public are lawyers. You have to get a special
commission to be a notary public.

Another important requisite of a notarial will is about the witnesses. Witnesses should not only sign at
the end of the attestation clause, but also they have to sign in each and every page at the left margin of
the will, except at the last page.

Q: Why do you think the law requires the signing of the will on each and every page except the last page? what
is the purpose of the law in requiring the witnesses to sign on each and every page of the will?
So that the other pages of the will cannot be substituted with another page. In order to prevent people
or third persons to substitute a page in the will.
Take note that a sheet is different from a page. Sheet means front and back. The law requires that the
signature would only have to be affixed in the page, in the front page.
General Rule: The general law adhered to under the law, is that the failure of the witness, even one witness
to sign any page of the will is considered as a fatal defect. This is the general rule.
Exception: Jurisprudential exception:
Case: Ycasiano vs. Ycasiano 11 SCRA 422
The facts of the case is that one of the witnesses failed to sign page 3 of the will, because it was actually
concealed by the seal of the notary public. Now in sealing the document, the notary public should couple
the pages together, in this case, there were 2 pages that were pasted, because of the seal. So because of
this, one of the witnesses was not able to sign on the left margin of page 3.
As a rule generally adhered to is that even one witnesses who failed to sign his signature on the left
margin in one of the pages of the will, it is fatally defective, rendering the whole will void, therefore it is
not admitted by the court. But in this particular case, the court takes exceptions to the fact that there is
an unusual circumstance surrounding the facts of the case, because the court cited the ground of
inadvertence or oversight on the part of the witness, and second because of the notarial seal which was
not the fault of the witness that he was unable to sign the page.
Even the general rule adhered to by our law can have an exception, in the form of jurisprudential
exception rendered by the court.

Supposing that the testator is a deaf-mute, or the testator is blind. Aside from these qualifications or
requisites of the execution of the notarial will, there are additional requirements for a person physically
disabled to make a notarial will.

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 to him, in some practicable manner, the contents thereof. (n)

It is very clear in Art. 807. That if the testator is deaf of deaf mute, first if he is literate, he must personally
read the contents of the will. Kay ngano man? Di man siya blind, so basahon niya. But if he is illiterate, unya
deaf pa gyud siya, or deaf mute pa gyud siya, then unsa may requirement sa law? It says there that it should

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15

be read to him by two persons and these two persons need not be one of the subscribing witnesses, nor a
notary public. That is the requirement, it should be read to him twice, or it must be communicated to the
person through any sign language, or any other way. So communication of the will is really important to
show that the contents of the will are really the desire of the testator.
Now if a person who is going to execute is a blind person, naturally dili siya kabasa, so it must be read to him
and the law is VERY CLEAR on the PERSONS who are going to read to him the will. ONLY ONE OF THE
SUBSCRIBING WITNESSES AND NOTARY PUBLIC which notarized the will.

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(n)

Q: Is it mandatory that these persons must read the contents of the will to the blind person?
The answer is YES, because of the word shall. But with regards to the deaf or deaf mute, it must be read
to him by any two persons under article 808.

SUBSTANTIAL COMPLIANCE
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper 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 will was in fact
executed and attested in substantial compliance with all the requirements of Article 805. (n)

When there is substantial compliance of the law where the purpose sought by the attestation clause is
obtained, the same should be considered as valid.
The rule says, in the absence of fraud, improper 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 will
was in fact executed and attested in substantial compliance with all the requirements of Article 805.
Case: Roxas vs. De Jesus 143 SCRA 245
It is a holographic will, but the law says that it must bear the complete date. Now in this particular
case, the date is only February /65. So it is not a complete date since there is no day/date. The SC
considered this on the ground that there is a substantial compliance of the law as regards to the
execution of a holographic will. As long as one can prove that there is no presence of bad faith or
fraud.
The law mandates that the strict compliance of the formal requirements of the will is mandatory. But
in some jurisprudential rulings, the SC had in a way liberalized the strict posture of the law applying
liberal construction of the law in several cases.
Because of this substantial compliance, or when the purpose of the law has been achieved, then
substantial compliance may be admitted in order to consider the validity of the will.

So in the following cases, these are examples of substantial compliance.


Cases:
Rey vs. Cartajena 56 Phil 282
Sebastian vs. Panganiban 59 Phil 653
Rodriguez vs. Yap 68 Phil 126
Sano vs. Quintana 46 Phil 560
These cases refer to the jurisprudential exemptions on the mandatory application of the law on the formal
requirements of the will.
This is a notarial will (referring to the document she is holding), it contains the body of the will, and then the
signature of the testator, followed by attestation, and followed by the signature of the three witnesses. Take
note that the three witnesses are required, not only mere witnesses but witnesses who are considered as
COMPETENT and CREDIBLE. Because it may be possible that there are three witnesses but only two are
credible witnesses rendering your will as void. After the attestation, there is the subscription, the affixing of
signatures by the witnesses and the testator. After the attestation, then follows the joint acknowledgment. All
of them acknowledge before the notary public that their act is their own due act. Another requirement is that
signatures should be affixed on the left margin of the will except on the last page and it must be numbered.
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16

Now it says there that it must correlatively numbered in words. But the mere fact that there is only 2 or page
2, it would render the will as valid. There are jurisprudential exceptions to this. So even if there is only 2, 3 or
4, it is still considered as valid.

HOLOGRAPHIC WILL
Article 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. (678,
688a)
Article 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.
In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert
testimony may be resorted to. (619a)
Article 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in
order to make them valid as testamentary dispositions. (n)
Article 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last
disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior
dispositions. (n)
Article 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the
same by his full signature. (n)

A holographic will is very easy document to make because it is entirely written in your handwriting, entirely
dated and signed by the hand of the testator. The law says that it must be signed, dated by the hand of the
testator, very clear, hand. What if the person has no hands, can he make a valid holographic will? Are you
going to interpret the word hands literally?
The law says hands would mean the usual way of affixing the signature by way of an instrument. So kung
wala kay hand, foot or kung wala kay foot, then mouth, or kung wala gyud, then ears.
So Ill give you a scenario here, it says that a holographic will must be written, dated, and signed by the hand
of the testator. Now supposing a person lives in a very remote area, say ikapitong bundok, and he wants to
execute a will. So what he did was to write the will, giving all his properties to his son, on the wall of the
house, duly dated and signed by the hand of the testator.

Q: Can this holographic will be admitted to probate? Would you consider this as a valid holographic will? First
is the will a valid holographic will?
A: yes, because its entirely handwritten, dated and signed by the hand of the testator.

Q: Does it matter where the will is written? Is it necessary that the will is written in a clean bond paper?
A: In the requirements of the law, it mentions that the will must be written by the hand of the testator,
but it does not mention where the will must be written, so it can be written in the paper, leaves, or on
the wall, as long as it complies with the requisites of a valid will.

Now, there is no question that the will is valid. It is a valid holographic will as long as it complies with all the
requirements of the law. But we have a requirement on how to admit the will. If you go to court and file a
petition for probate of the will, if the will itself cannot go to court, then the court will go to the will.
So the judge here will assign personnel of the court to go to the site of the will. So a will that is written on the
wall is a valid will, and the will can be probated by the court.
So what is really important here to know is that a holographic will must be ENTIRELY WRITTEN. Thus, if you
started with the execution of your holographic will in your own handwriting, and you followed it up with a
second page which is printed, then this will is not valid. It is not valid as a holographic will, and at the same
time it is not valid as a notarial will, because it does not comply with the formalities of the notarial will. In
the same manner that all the contents of the will is in your handwriting, but if the date is printed, it is not
also a valid holographic will, why?, because this goes into the provision of the law which is very clear that the

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holographic will must be ENTIRELY WRITTEN , DATED AND SIGNED BY THE HAND OF THE TESTATOR.
Another requisite of a holographic will is that it must be written in a language known to the testator and if
there are insertions, cancellations, or obliterations, or alterations in the will, it is required that in a
holographic will, these alterations must be authenticated by the full signature of the testator.
The full signature does not mean to say that it must be the first name, the middle name and the last name.
But it is still possible, it can be validated by the signature which does not contain a middle name, as long as
you can prove to the court that that is your usual full signature. Definitely in a holographic will when there
are erasures, initials are not acceptable. So if you have erasures there, and at the top you put only your
initials, then such is not validated by your signature. Which means to say that if there are erasures in the will,
it does not follow that the whole will is voided, only that particular provision which is not authenticated by
the full signature is voided. Except of course if there is only one disposition in the will, because if there is
only one disposition in the will and there is an alteration which is not authenticated by the full signature of
the person of the testator, then the whole will is therefore voided.
As a general rule, there are dispositions contained in the holographic will and only one disposition is not
authenticated by the full signature of the testator, only that disposition is considered as void.
As regards to a holographic will, its a very delicate document, why? Because it is open to fraud, it is open to
forgery. So any alterations in the holographic will must always be authenticated by the full signature of the
testator, especially if the erasures or omissions go into the date and signature of the will. Without
authentication therein, the whole will is voided, not only the dispositions, but he whole will. Because the
substance of the holographic will depends on the date and signature of the will.
So if the signature of the will is omitted or erased, and cancelled without authenticating them, then the
whole will is voided, not only the dispositions of the will.
We have said that in a holographic will, all erasures should be authenticated. This provision, you have to
observe, is only applicable to a holographic will.

Q: Is this provision on authentication applicable to notarial wills? In other words, if there are erasures in the
notarial will do you have to authenticate it to retain the validity of the will? Because it has not been explicitly
stated under the law that if there are erasures, it needs the authentication by the full signature of the testator.
A: It can be said that authentication in a notarial will can be done. Let us remember that the purpose of
the will is to safeguard the desire and intentions of the testator. Let us take note that the law has no
provisions on the alterations in the notarial will, but by implication, because of the fact that safeguarding
of the wishes and desires of the testator is the first priority in the making of the will. Thus, the
provisions with regards to erasures and authentication, although it is not provided in the law, in
analogous cases, this can also be applied in the making of a notarial will. Ngano man? Kay si bisan kinsa
nalang diay diha ang mo-ilis sa notarial will nimo, ilisan ug legacy, from X to Y, unya walay authentication
from the testator. That cannot be, so the provision can also be applied in a notarial will.
Probably the provision of the law is very clear, it is very explicit on holographic will ka yang holographic
will dali ra ma forge, it is open to fraud. That is why they did not explicitly provide for the notarial will
kay after all there are three witnesses who can attest to the execution of the will, and as a matter of fact,
there is what you call the attestation clause, to show to the court that the witnesses attest to the fact that
all the surrounding circumstances happen during the execution of the notarial will. But not as with
regards to a holographic will, it is not safeguarded, that is why there is no point of protecting the
testator, as long as it is authenticated by him, not necessarily by the other witnesses, because a
holographic will has no witnesses.

Holographic will is not subject to any formalities, as long as the three requisites are complied with.
So how is that probated? The law says that you should file a petition for probate of a holographic will. Who
will do that? It may be probated by the testator himself during his lifetime, or it may be probated or admitted
to court by the heirs, the legatee or devises. They will go to court and file for probate of a holographic will.
This is a kind of special proceedings.
The law is very clear that if it is not contested, nobody contested the holographic will, nevertheless, one
witness must still be presented. If there are contestants of the probate of a holographic will, three witnesses
must always be presented in court.
Take note that these three witnesses, if there are contestants is mandatory. The law does not say maybe, but
the law provided that it SHALL be presented. So the word shall is synonymous to mandatory.

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If there are no witnesses available, then you can resort to expert witness.
Can a lost or destroyed holographic will be admitted to probate?
Yes, by parole evidence, naa siguroy tawo nga naka hibaw unsa ang imong gibutang sa will. Can this
statement by a witness be sufficient in order to admit probate of the will?
Well settled in our jurisprudence that a lost or destroyed holographic will, as a general rule cannot be
admitted to probate. As you can see kanang holographic will kay imong handwriting, so the best evidence is
the document itself. Kung walay copy, there is no point of comparing the handwriting and signature of the
testator.
Case: Gan vs. Yap 104 Phil 509
It cannot be proven by parole evidence since the document itself is the best evidence of the existence of
the will. But as an exception, is the case of:
Case: Rodelas vs. Aranza 119 SCRA 16
A photostatic copy of the will was presented in lieu of the lost or destroyed holographic will, and the
court admitted the same for probate.
Now there some observations of this case, some of the jurists would contend that the wisdom of the
decision in the case of Rodelas vs. Aranza as a jurisprudential exception to the rule is doubtful because
according to them the penlips, an instrument used by handwriting experts to determine or to discern
the similarity of the handwriting cannot be made available and cannot distinguish in a photostatic copy.
But this just a mere observation. The fact is that the admissibility of the photostatic copy of the
holographic will was put to question because of the applicability of penlips used by the experts.

Now in a holographic will, you state that:


I hereby give my piano to X.
I hereby give my house and lot to Y.
I hereby give my condominium to Z.
SGD.

Now sometimes, after the signature, you put another provision.


I hereby give my piano to X.
I hereby give my house and lot to Y.
I hereby give my condominium to Z.
SGD.
I will give my car to Y.

After that, you put another dispositions.

Is there a valid disposition? If after the signature, there is another disposition, and it is not signed and dated,
only the disposition after the signature is considered as null and void, but all other preceding dispositions
which contained the date and the signature are considered as valid.
But sometimes, there are dispositions which are dated and signed, and there are succeeding dispositions
which are not signed and dated, all succeeding dispositions are considered as void.
But sometimes there are dispositions which are signed but not dated, and the last dispositions are signed
and dated, what is the effect?
The effect is that it validates all the dispositions which are signed.

Ex:
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I give my condo to Y.
I give my house to X.
I give my car to Z.
SGD & dated
I give my hairpin to Nancy.
SGD
I give my volleyball to Bulit.
Dated
I give my Hermes bag to Pacquiao.
SGD & dated

The general rule is that, if the dispositions contained in the holographic will are signed and dated, they are
considered valid. After the dispositions, naa say gibutang I give my hairpin to Nancy. Now we said it must
be signed and dated, now what is the effect of this? It is void because it is not dated. Now another, I give my
volleyball to Bulit, no sign, just dated. And the last I give my hermes bag to Pacquiao, signed and dated.
The law says, which of these dispositions after I give my car to Z are validated by the disposition I give my
Hermes bag to Pacquiao.
General Rule: The general rule is that, if there is no signature and date, the disposition is void.
Exception: The exception is that, if the last disposition is signed and dated, it validates the dispositions
before it.
This disposition I give my volleyball to Bulit is not validated by the last disposition which is signed
and dated, since only those dispositions which are signed but not dated are validated.
Now supposing ang last disposition, signature lang, walay date, unsa may effect ani? All the
dispositions preceding it are void. Only the first three dispositions are considered as valid.

CASES for DISCUSSION


Uson v. Del Rosario

FACTS:
This is an action for recovery of the ownership and possession of five (5) parcels of land in Pangasinan, filed
by Maria Uson against Maria del Rosario and her four illegit children. Maria Uson was the lawful wife of
Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation. Faustino Nebreda left
no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in
1945, his common-law wife Maria del Rosario took possession illegally of said lands thus depriving her of
their possession and enjoyment. Defendants in their answer set up as special defense that Uson and her
husband, executed a public document whereby they agreed to separate as husband and wife and, in
consideration of which Uson was given a parcel of land and in return she renounced her right to inherit any
other property that may be left by her husband upon his death. CFI found for Uson. Defendants appealed.

ISSUE:
1. W/N Uson has a right over the lands from the moment of death of her husband.
2. W/N the illegit children of deceased and his common-law wife have successional rights.
HELD:
Yes. There is no dispute that Maria Uson, is the lawful wife of Faustino Nebreda, former owner of the five
parcels of lands litigated in the present case. There is likewise no dispute that Maria del Rosario, was merely
a common-law wife with whom she had four illegitimate children with the deceased. It likewise appears that
Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is
evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time passed
from the moment of his death to his only heir, his widow Maria Uson (Art 777 NCC).As this Court aptly said,
"The property belongs to the heirs at the moment of the death of the ancestor as completely as if the
ancestor had executed and delivered to them a deed for the same before his death". From that moment,
therefore, the rights of inheritance of Maria Uson over the lands in question became vested. The claim of the
defendants that Maria Uson had relinquished her right over the lands in question because she expressly

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renounced to inherit any future property that her husband may acquire and leave upon his death in the deed
of separation, cannot be entertained for the simple reason that future inheritance cannot be the subject of a
contract nor can it be renounced.
No. The provisions of the NCC shall be given retroactive effect even though the event which gave rise to them
may have occurred under the prior legislation only if no vested rights are impaired. Hence, since the right of
ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late
husband, the new right recognized by the new Civil Code in favor of the illegitimate children of the deceased
cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.

Principles of Succession:
The successional right of a wife is vested on the moment of the testators death.
The intrinsic validity of the will would follow the law at the moment of death of the testator.
As to the agreement as with regards to the renunciation of the wife, his future inheritance cannot be a subject
of renunciation.
IBARLE vs. PO, February 27, 1953

FACTS:
Leonard died in June 1946 leaving his surviving spouse, Catalina, and some minor children as his heirs.
Catalina sold an entire parcel of land, which is a conjugal property, to spouses Canoy. It was then sold to
Ibarle. The Deeds of Sale were not registered. In 1948, Catalina sold of the said land to Po, which portion
belongs to the children.
HELD:
The moment of death is the determining factor when the heirs acquire a definite right to the inheritance,
whether such right be pure or contingent. It is immaterial whether a short or long period of time lapses
between the death of the predecessor and the entry into possession of the property of the inheritance
because the right is always deemed to be retroactive from the moment of death. When Catalina sold the
entire parcel of land to the Canoy spouses, of it already belongs to the children. Thus, the first sale was
null and void in so far as it included the childrens share. On the other hand, the sale to the Po having been
made by authority of the competent court was undeniably legal and effective.

Principles of Succession:
A sale of a co-owner of an entire property, not necessarily invalidate the sale, but only to the extent of the
proportion of the share.
TORRES, LOPEZ DE BUENO vs. LOPEZ, February 26, 1926

FACTS:
The testator made a will. Manuel Torres, one of the executors, which was also named in the will, presented it
for probate. Margarita Lopez, contended that the testator lacked mental capacity because at the time of the
execution of the will, he had senile dementia and was under guardianship. Evidences were presented, since
the will was made in the hospital, the physicians said that the testator was in his right mind when he made
the will, has the testamentary capacity in making it, and was aware of the nature of his estate.
HELD:
The testator may have been of advanced years, may have been physically decrepit, may have been weak in
intellect, may have suffered a loss of memory, may have had a guardian, and may have been extremely
eccentric, but he still possessed the spark of reason and of life, that strength of mind to form a fixed intention
and to summon his enfeebled thoughts to enforce that intention, which the law terms testamentary
capacity. Only complete senile dementia will result to testamentary incapacity. SC held that the will should
be accepted for probate.

Principles of Succession:
Testator must have testamentary capacity in making a will
Testamentary Capacity includes:

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a. Sound Mind.-- Ability to comprehend what he is doing, same as soundness of mind


for contracts.
b. At least 18 yrs or over.
c. Must not expressly disqualified under the law
Alejandrino vs. CA
Facts:
The late spouses Alejandrino left their six children named Marcelino, Gregorio, Ciriaco, Mauricia, Laurencia
and Abundio a lot in Cebu City. Upon the death of the spouses, the property should have been divided among
their children, however, the estate of the Alejandrino spouses was not settled in accordance with the
procedures.
Petitioner Mauricia (one of the children) allegedly purchased portion of the lots from her brothers,
Gregorio's, Ciriaco's and Abundio's share. It turned out, however, that a third party named Nique, the private
respondent in this case, also purchased portions of the property from Laurencia, Abundio and Marcelino.
However, Laurencia (the alleged seller to Nique) later questioned the sale in an action for quieting of title
and damages. The trial court (Quieting of title case) ruled in favor of Nique and declared him the owner of
the lots. Laurencia appealed the decision to the Court of Appeals but later withdrew the same.
Nique filed a motion for the segregation of the portion of the property that had been declared by the trial
court (Quieting of title case) as his own by virtue of purchase. The trial court segregated the property on the
basis of the Extra-Judicial Settlement between Mauricia and Laurencia.
Issue:
Whether or not partition of the lot was validly made
Held:
Yes.
Although the right of an heir over the property of the decedent is inchoate as long as the estate has not been
fully settled and partitioned, the law allows a co-owner to exercise rights of ownership over such inchoate
right. Laurencia was within her hereditary rights in selling her pro indiviso share. The legality of Laurencia's
alienation of portions of the estate of the Alejandrino spouses was upheld in the Quieting of title case which
had become final and executory by Laurencia's withdrawal of her appeal in the CA. When Nique filed a
motion for the segregation of the portions of the property that were adjudged in his favor, he was in effect
calling for the partition of the property. However, under the law, partition of the estate of a decedent may
only be effected by (1) the heirs themselves extrajudicially, (2) by the court in an ordinary action for
partition, or in the course of administration proceedings, (3) by the testator himself, and (4) by the third
person designated by the testator.
Extrajudicial settlement between Mauricia and Laurentia became the basis for the segregation of the
property in favor of Nique. However, evidence on the extrajudicial settlement of estate was offered before the
trial court and it became the basis for the order for segregation of the property sold to Nique. Mauricia does
not deny the fact of the execution of the deed of extrajudicial settlement of the estate. She only questions its
validity on account of the absence of notarization of the document and the non-publication thereof.
A partition is valid though not contained in a public instrument. Moreover, the execution of the deed of
extrajudicial settlement of the estate reflected the intention of both Laurencia and Mauricia to physically
divide the property. Both of them had acquired the shares of their brothers and therefore it was only the two
of them that needed to settle the estate. The fact that the document was not notarized is no hindrance to its
effectivity as regards the two of them. The partition of inherited property need not be embodied in a public
document to be valid between the parties.
Principles of Succession:
Over the right of an heir over the property of the decedent is inchoate, as long as the estate has not partitioned.
Law allows the co-owner to exercise his right of ownership over such inchoate right because it is pending
partition. But because of Article 777, the moment of death of the testator, there is already that right of the
inheritance.

Leading cases on the signature of the testator in a notarial will as well as that of the witnesses.
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Solar v Diansing(?) and De Gala v Gonzales now these particular cases, the Supreme Court held that a

thumb-mark which was affixed in a will is a recognized mode of signature, provided that one can prove that,
that thumb-mark is the usual customary signature of the testator as well as that of the witnesses. In these 2
cases, the court allows the thumb-mark of the testator to be valid signature. During probate of the will one
has to prove that this thumb-mark is the usual customary signature of the testator and that would suffice for
the grant of or admission of the will.
In Garcia v Laquesta the signature of the testator resembles a mere sign of the cross. Now the question is
whether a mere sign of the cross is considered to be a valid signature of the testator. In this particular case,
the court ruled that the signature in the form of a cross is not a customary signature and cannot be a valid
signature of the testator, unless it can be proven that it is his normal way of signing. As a general rule, a mere
sign of a cross is not a valid signature. Why? Because its easy to falsify. But as long as one can prove that the
cross is the customary signature or the normal way of signing on the part of the testator, that can be
admitted to probate as a valid signature.
In Barut v Cabacungan in this particular case the testator directs another person to sign in behalf of the
testator. However, that third person did not write the name of the testator but only the name of the person
who was directed to sign. Supreme Court held even in the presence of the testator, even at his express
direction, if the name of the testator does not appear in the will itself, then it cannot be validated as a valid
will, as a valid signature, even if the circumstance of the fact that it has been signed by another person is
found as stated in the attestion clause does not in any way suffice the solemnities or formalities of the law as
with regards the signature of the testator. Why? Because of the fact that name of the person that was
directed to sign appear without the name of the testator appearing.
Now in the case of Nera v Remando and Jaboneta v Gustilo this is about the true test of the presence of the
testator (witnesses man siguro ni). In the notarial will, we have said that the signature of the testator as well
as the witnesses must be made in the presence of each other, of one another. Thats a mandatory
requirement of the law. However, there was a question as with regards to the issue of the physical presence
of each other. In these particular cases, one of the witnesses was at a distant away from the other witnesses
when they affixed the signature. But according to the Supreme Court, it says there it is not the physical
presence at the time of signing which is in compliance required by the law, but it is the fact that they might
have seen each other sign had they chosen to do so. So even at the time the other witnesses affixed their
signatures in the will, but the other witness was in the other side of the room and he could look back and see
others sign their names in the will. Now in this particular case, the true test of determining whether the
signature was affixed in the presence of one another is not the physical presence nor the closer distance
between each other but the fact that at the time of the signing, the other witnesses are there in a distance
though they might have seen each other sign even if they are not close or in proximity with the other
witnesses who signed. Theres another case where the other witness was in the other room and there was a
division. In this case, the SC ruled that the requirements of the presence of one another is not complied with,
the fact that there was a curtain, so they cannot see the other witnesses sign.

Now the requisites of a holographic will, naturally it must be in writing. It must be a language known to the
testator, and it must be completely dated, signed and written by the hand of the testator. Insertions,
cancellations, erasures, or alterations must first be authenticated by the full signature of the testator, this is a
very clear provision with regards alterations or omissions in a holographic will. But you cannot find any
provision like this in a notarial will.

So I address this question to you: Is this requirement for the authentication of any alterations or omissions in
a holographic will applicable to notarial will? I have already asked that question to you right? And we have
said, what? What is your conclusion? Is it applicable to a notarial will? So if a notarial will has already been
signed and acknowledged, if there are alterations of omissions in that notarial will, is it required for the
testator to authenticate the same? The law is silent with regards to this. But as with regards to holographic
will, the law is very clear. That it has to be authenticated.
If you cannot authenticate any alterations or omissions in a notarial will, it means that there is doubt as to
whether the notarial will is valid or not. Thus oppositions will have to be filed during the probate of a
notarial will. Because if you are a practitioner, it would be best if you would have to do it yourself, you have

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to instruct the testator to authenticate with the full signature. It does not in any way affect the validity of a
notarial will.

Now, it says there, by the hand of the testator. Does it mean to say that if the testator, if the person does not have
hands, he cannot make a holographic will?
No. The law interprets the word hand as the customary way of writing of a person. So if a person does
not have a hand, he may be able to write through his mouth, or ear, or foot, or nose. So if anyone can
prove that this is his usual way of writing, then the holographic will may be admitted in a probate
proceeding.

Now, substantial compliance says, as long as the purpose of the law is achieved, then there is substantial
compliance.

In the case of Roxas v de Jesus in the will, the date indicated there was Feb/61. In this particular case, court
allows the admission on the principle of substantial compliance. So even if its not a complete date, but if its
achieved that you can interpret it as a date, Feb, the month, and the year. If its only Feb. 15, no year, can you
identify? No. But if you can identify Feb/61 that is actually the month of February and the year 1961. If only
Feb. 15 cannot be admitted because there is fatal defect.

Now furthermore, it says that insertions, cancellations must be authenticated by a full signature. What do you
mean by full signature?
Legally we interpret a full signature as comprising of Brenda, thats the first name, and then the middle
name, and then the family name. But there are jurisprudential exceptions to this rule which states that
the first name and the family name may suffice. It may be sufficient in order to comply with the so-called
full signature.

If there are omissions therefore, or alterations, erasures in a holographic will and is not authenticated, does it
affect the validity and efficacy of the whole will?
Not necessarily, unless of course that disposition is the only disposition in the will.

Now, supposing there are alterations or omissions in the dispositions of the will and the other dispositions
remain as valid. Now what if the erasures and alterations goes into the date and the signature in a holographic
will without authenticating them, does it affect the whole will or only the signature?
Now this time, it affects the whole will itself. So all the dispositions contained in the will, if the signature
or the date is not duly authenticated, then it affects the whole will rendering it as void.

Now if the signature and the date is altered and authenticated, what is the effect as with regards to the
authentication of the same? Would it void the whole will or render it inefficient or ineffective or remains
valid? What do you think?
If the will is witnessed by two or more witnesses can it affect the validity of a holographic will?
What is the notarial will is not witnessed by 3 but only 2, does it affect the whole will? If it is witnessed by 5
competent and credible witnesses?
So what is really important here to know is that in a holographic will, there are no witnesses needed or
required. In a holographic will, there is no form required. As long as it is completely dated, signed and
written by the hand of the testator. So as with regards to erasures, it must be authenticated in a
holographic will. In notarial will, it is silent with regards the application of such, but in order to be safe, it
has to be authenticated by the testator in order to prevent oppositions during the probate.

Now the probate of a holographic will, only one witness has to be presented.

Question: Why would there be a witness to be presented, when, as a matter of fact you dont need witnesses in
your holographic will? Who is going to be presented as a witness if there are no oppositions?
All right, we said that the probate of a will may be made ante mortem or post mortem. Now, probate was
made ante mortem by the testator during his lifetime, because the testator can do so, go to court and

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probate his own will. So, do you need a witness to attest to the fact that this handwriting is a holographic
will in the handwriting of the testator? How about if there are oppositions? Present 3 witnesses? Under
the law, you need to present one witness to attest that, that is your handwriting. And if there are
oppositions, then you present 3 witnesses.

So, we ask the usual question, can a lost or destroyed notarial will be proved by parol evidence? Yes.

Can a lost or destroyed holographic will be presented even in the absence of the original holographic will?
Can a lost holographic will be probated?
As a general rule: no. It cannot be proven by parol evidence the reason is because holographic will is the
best evidence to show the handwriting signature of the testator. However, that is the general rule and
admits of exceptions: exceptions in the form of jurisprudential exceptions.
So in the case of Gan v Yap, this is the general rule: a lost or destroyed holographic will cannot be
admitted to probate.
But the jurisprudential exception in the case of Rodelas v Aranza where a photostatic copy of the
holographic will was presented in court and it was admitted by the court.
There are some jurists who questioned the wisdom of the decision in Aranza case. Why?
Because the instrument usually used by the expert witnesses called penlifts cannot discern the
authenticity of a handwriting of a person in a photostatic copy. So how would we be able to
testify as to the authenticity of the handwriting when penlifts cannot even distinguish it is the
authentic handwriting of the testator. But nevertheless it becomes a decision in the Rodelas v
Aranza as an exception to the rule in the case of Gan v Yap.

Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the
country in which he may be. Such will may be probated in the Philippines. (n)
Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law
of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code
prescribes. (n)
Article 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. (n)
Article 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the
benefit of a third person. (669)
Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines,
even though authorized by the laws of the country where they may have been executed. (733a)

Article 815 talks about extrinsic validity of a will. When you talk about extrinsic validity, this refers
to the forms and solemnities of a will. Now take note that in summary, you have to differentiate the
provisions of Article 815 to 819.
815 refers to the rule to determine the extrinsic validity of a will executed by a Filipino abroad. So a
Filipino executed, whether a notarial or holographic will, abroad.
Now Article 816 refers to a case where the will is executed by an alien abroad. This alien may either
be a resident or non-resident in the Philippines.
Now Article 817, this refers to the execution of a will by an alien in the Philippines. So, not abroad.
So, an alien executing a will here in the Philippines.
Article 818 refers to prohibition of a joint will. Prohibition as to the institution of a joint will.

Article 819 in summary: THIS JOINT WILL IS APPLICABLE ONLY TO FILIPINOS WHO EXECUTED A WILL
ABROAD AND EVEN IF THEY EXECUTED A WILL IN THE PHILIPPINES. As you can see Article 819 therefore,
is an exception as to the rule as provided under Article 815. Article 815 provides, to determine the extrinsic
validity of the will executed by a Filipino abroad. It has to be executed in any way , in any form established in
the country where he may be. Now this is very explicit in Art. 815 but this is merely permissive. As you have

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studied before, it is not only the law that governs the extrinsic validity of the will on the country where he
may be, it could also be governed by Philippine law, or it could be governed by the country where he may be,
where he executes the will. So all these are just permissive. It could either be Philippine law, or could either
be the place of domicile, or it could be either the place where he executes the will in order to determine the
extrinsic validity of the will from the viewpoint of place or country.

Now, if the will is probated abroad, the will of the alien or the will of the Filipino is probated abroad. Can this
still be required to be probated here in the Philippines if it involves properties in the Philippines?
Now we said that his will executed abroad has been admitted outside the Philippines, but it cannot be
immediately admitted here in the Philippines because it has to undergo a proceeding. All right, so this
kind of proceeding is called REPROBATE OF A WILL.
Which means that there are already conclusions and issues on the testamentary capacity of the
testator as well as that of the due execution of a will because it has already been probated abroad. So
that is what my question is.
What then are the issues to be resolved in a probate proceeding when this issue on testamentary
capacity and due execution of a will has already been resolved outside? When the court admits the
will, it means that there is a conclusive resolution as with regards to the due execution of the will. So
you dont need to prove it anymore to court, because it has already been proven in a foreign tribunal.
So why do you need to prove it here? So in other words, what are the five issues to be resolved in a
reprobate proceeding? Which means, probated na sa gawas, diri, reprobate. But if you have to file
probate of a will originally here in the Philippines, d parehas ug proceedings. Why? You have to
present witnesses. And they need 3 witnesses if there are oppositions, you have to follow
publications, posting, follow as with regards to the procedure of notices to be considered in a special
proceeding. But in reprobate proceedings, you dont have anymore to go through presentation of
evidence. Why? Because its already been resolved in a probate court abroad.

5 issues to be resolved in a probate proceeding:


1. Due execution of the will in accordance with the foreign laws, you have to show it in court;
2. The testator has his domicile in the foreign country and not in the Philippines;
3. That the will has been admitted to the probate of such country;
4. The fact that that foreign tribunal is a probate court;
5. The fact that the laws of a foreign country on procedure on allowance of wills have been proven also
in that proceeding.

So these are the 5 evidences to be presented in a reprobate of a will. The landmark case is enunciated in the
case of de Perez v Tolete. So as to the questions on whether if the will is probated abroad, does it have to be
probated again here in the Philippines in order for the will to be effective here, the answer is no. Why?
Because of the doctrine of processual presumption.

Now what is the DOCTRINE OF PROCESSUAL PRESUMPTION? It says there, it is presumed that our laws on
probate are the same as that of the laws in the foreign country. That is the doctrine of processual
presumption. However, there must be a proceeding. And this proceeding is called a reprobate of a will to
show proof of its probate in the foreign tribunal.

As to aliens who executed wills abroad, usually the law that governs as to the extrinsic validity is that of his
own country or nationality. If the foreigner is an Italian, then its the law of Italy that will govern the extrinsic
validity of a will. But merely permissive because it may be the law in the Philippines, or it may be the law of
the place of execution. So if youre an Italian, you can make use of the rule as to the extrinsic validity of the
will by Italian law, or in Switzerland if he executed it in Switzerland, or he may make use of the law in the
Philippines, as with regards to the extrinsic validity of his will. This is an alien who executed his will abroad.
Not in the Philippines.

Now under Article 817 this is an alien executing a will here in the Philippines. So Italian ka, nag execute kag
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will sa Pilipinas, so unsa may, naturally Phillippine law, or his country. All right.

Article 818 refers to the prohibition as to the making of joint wills. What is a joint will? How do you
differentiate it with reciprocal wills or mutual wills? The very difference here is that joint wills are
prohibited in our Philippine law. But reciprocal wills or mutual wills is recognized here. The joint wills are
those, which contain in one instrument, the will of two or more persons jointly signed by them. There is only
one instrument and in the same instrument, the wills of both are contained in the same instrument and
signed in the same instrument. It could either be for the benefit of each other or it could be for the benefit of
a 3rd person. It does not matter as long as they sign or make their own will in one instrument. What is the
difference between mutual or reciprocal wills from that of a joint will? This mutual reciprocal will is
admissible in our jurisdiction because this is not contractual in nature. There are two wills here, one
executed by one and one is executed by another. Even if in the disposition of the wills of both, there is a
reciprocity. Reciprocity character in the dispositions of the will, it is not prohibited here because it is not
considered a joint will. One will kay X, second kay Y, in the will of X he would say I will give my entire estate
to Y. In the will of Y, he would say I would give my entire estate to X. This is not prohibited. What is
prohibited is when they executed one instrument.

All right. I say that Article 819 is an exception to 815 because as with regards to joint will, this is only
applicable to Filipinos who execute abroad or in a foreign land. Thus, apparently, because of 819, if such joint
will were made and executed by foreigners abroad and valid in accordance with the place of execution or
816, the same should be considered as valid here in the Philippines. So if I would say X and Y, naturalized
American citizens, executed a joint will in America, where joint will is considered as valid, can this will be
admitted in the Phils? Yes. Why? Becasuse, naturalized American citizens. Because at the time of the
execution of the will they were already considered as foreigners, aliens.

But if I say X and Y, Filipinos, executed a will in 1990 and became naturalized American citizens 1991. Can
this joint will be admitted in the Philippines? The answer is no because at the time of their execution of the
will they were still considered as Filipinos. And joint wills are prohibited only for Filipinos executing joint
wills abroad.

What if Filipinos executed joint will here in the Philippines, is this prohibited? Prohibited jud. Because joint
wills per se is prohibited. Exception is when foreigners executed joint will abroad. But, exception to the
exception is when the foreigner or alien executed the joint will here in the Philippines. This time, this joint
will is now prohibited in matters of public policy.

Article 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 and
write, may be a witness to the execution of a will mentioned in article 805 of this Code. (n)
Article 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document, perjury or false testimony. (n)

As you have observed, the qualifications of a person to be a witness to a will is broader and restrictive than
that of a person who is qualified to execute a will.
Now qualifications of a person who attests to a will, as a witness to a will must be of sound mind, at least 18
years of age, able to read and write, should not be blind, deaf and dumb. Must be domiciled in the Philippines
except if the wills are executed abroad, then you need not have to be domiciled here.
And a very interesting, a very intriguing qualification is that a person should not be convicted of falsification
of a document, perjury or false testimony. Why do you think only these kinds? Why not murder or rape,
arson? Supposing there is a conviction in the lower court of X, convicted of falsification of documents and on
appeal and then he was made a witness to a will, and he was made as one of the 3 witnesses, will it in any
way affect? Suppose this witness is give in legacy in the will, is he qualified to inherit despite that he was
convicted of falsification? Supposing he is a creditor? Is he qualified to inherit? Qualified to be a witness?

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Cannot inherit the legacy but can be qualified as a witness.


Take note, you have to observe that in the book of Paras it mentions final conviction. In the book of
Pineda it does not mention final conviction, which means that if he is convicted in the lower court,
he is incapacitated to be a witness.
But if you submit to the opinion of Paras that there must be a final conviction, then final conviction is
required in the cases of falsification of documents, perjury and false testimony for a person to be
disqualified to be a witness to a will.
So in the meantime, pending, on appeal, what happens on appeal, he is convicted? What
happens to the validity of the will?
Paras: it seems that the will is still valid, because at the time of the execution of the
will he was not yet convicted by final judgment.
Pineda: he does not mention of a final conviction, which means that at the time he is
convicted, he is disqualified to be a witness to a will, thereby affecting the validity of
the will. So which one?
Final conviction! Why? Because there is a principle here, you have to respect the
wishes and desires of the testator. In the will, the tendency is to interpret the will in
accordance with what is provided in the will. To give the will the validity it needs.
Construction is more to the validity of the will. So its more of by final conviction.
Article 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently
incompetent shall not prevent the allowance of the will. (n)

So, the principle here is that what is important to determine the qualifications of a witness is at the time of
attesting in the execution of the will. So if the witness is sane at the time of attesting, but he became insane
the day after, the will is still considered as valid. As long as at the time of attesting the will, he was sane. He
can be proven as a sane person.
Can a foreigner be made a witness to a will?
Yes. There is no prohibition for a foreigner or an alien to be a witness to a will as long as he is a resident
here in the Philippines. Sometimes also, if the will is executed abroad, then a foreigner can be made a
witness to a will.

Article 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by
such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one
claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will.
However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n)

Is a compulsory heir qualified to be a witness to a will he inherits?


Yes, there is no prohibition.
But, if the son is given a legacy in the same will in which he witnessed, can he inherit the legacy or devise?
No. He is disqualified to inherit.
There are two questions here:
1. Can a compulsory heir witness a will? Yes.
2. Is he qualified to inherit in the same will? Depends.
It depends because he is a compulsory heir. If he is a compulsory heir, he could either be a
compulsory heir and a voluntary heir. Now the answer would be to qualify.
Yes, he is disqualified to inherit from the free portion, if there are only 3 witnesses.
But no, he is not disqualified to inherit from the legitime. So the legitime can never be imposed
any burden at all. So a compulsory heir may inherit the legitime, but not as to the free portion,
as a voluntary heir. If the case would be that there are more than 3, other than the son, then he
is qualified to inherit both the legacy and his legitime.
Is the legatee, devisee or instituted heir qualified to witness in a will?
Yes. But if they are given any legacy or devise in the same will, they forfeit their legacy and devise, but
they are qualified to witness the will.

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There are two different things there. What actually is the effect of this?
The witness, devisee, legatee, instituted heir is qualified to witness the will but dili sila ka-inherit as
an heir.
So under Article 823, it refers to witnesses that cannot inherit. Some points to ponder here:
What if, there are 4 witnesses to a will. A is given a legacy and D is given a devise. Supposing, assuming
that ABCD are all competent. The question is: A and D, are they qualified to inherit their corresponding
legacy and devise? Possible answers here: that either will receive, or that both will not receive, D will
receive his A will not receive his, or A will receive his D will not. So which is which?
Now, there are 2 possible answers:
1. They will be given the legacy and the devise at the same time. Why? Because from the viewpoint of
A, if given the legacy, there are 3 remaining witnesses, BCD. On the viewpoint of D, ABC;
2. None of them will inherit.
Why? You cannot sacrifice the effectivity or validity of a will just because of the legacy or devise.
They are disqualified to inherit. What if both of them are disqualified to inherit, then you still
have the remaining 4 witnesses. So actually, there is no write or wrong answer in this case.
Well, I submit more to giving effect to the validity of the will than to sacrifice the validity
of the will.

Not only the witness which is disqualified to inherit, but the spouse, the parent and the child and anyone
claiming, in behalf of the witness. And who are these persons, anyone claiming in behalf? Creditors.

So if there are only 3 witnesses, and a legacy is given to the brother of A, is the brother qualified to inherit
the legacy?
The answer is yes. Why? Because the brother is not included as heirs disqualified to inherit.
But what if I say a legacy is given to the spouse of A, is he qualified to inherit assuming that there are only 3
witnesses?
No.
Now take note if I say grandchild. So let us say C1. Naay anak si C, grandchild ni A. legacy of piano to C1.
There are only 3 witnesses, ABC. Is the legacy given to C1 valid?
Yes. Why? Because C1, even if there are only 3 witnesses, C1 is not among those disqualified to inherit.
In the same manner, brother of C, C3. If a legacy is given to C3, is he disqualified to inherit?
Yes. Because hes a child of A.
Legacy given to B (parent-in-law), parent of SS (spouse ni A), witness is A, assuming that there are only 3
witnesses.
No. In-law is not disqualified to inherit.
ABC, can a creditor be made qualified to witness a will?
The answer is yes.
Qualified to inherit the legacy given in the same will? Assuming that there are only 3, legacy to C. Can the
legacy to C given in the same will?
Disqualified to inherit because there are not more than 3 competent witnesses.
How about if there are 4 witnesses ABCD, all competent, can the creditor be qualified to inherit the legacy?
Yes.
Supposing C is also the creditor of D, and D was given a piano. The creditor wans to receive the piano in
behalf of D. Can the creditor receive the piano given to D? I am trying to point this out to you, if you are going
to read through the provisions of the law, it seems that all those creditors not only limited to the witness
himself, is disqualified. Also creditors of other witnesses and creditors of the spouse, the child, and the
parent of the witness is also prohibited or disqualified to inherit unless, there are more than 3 other
witnesses. So disqualification, not only the witness disqualified, but also the parent, the child and then
spouse and anyone claiming as creditor of the spouse, etc.

Article 825. A codicil is supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof,

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by which disposition made in the original will is explained, added to, or altered. (n)
Article 826. In order that a codicil may be effective, it shall be executed as in the case of a will. (n)

Why are codicils considered as small wills? Or little will? Can a codicil be executed ahead of a will?
It cannot be executed ahead of a will because it is merely a supplement. It is an addition to a will. It was
made after a will has been executed.
And this codicil may be made as annexed to the original will and to be taken as an integral part of the
will itself. But we have said that original wills may be revoked by the execution of another codicil. An
original will may either be revoked by another codicil.
Now in the same manner, a will may either be a notarial will or a holographic will. A notarial will may be
revoked by a holographic codicil or a holographic will may be revoked by a notarial codicil.
WHAT IS REALLY IMPORTANT HERE TO KNOW IS THAT A CODICIL MUST BE EXECUTED WITH THE
FORMALITIES OF A WILL. That is why it is called a little will. It if is a notarial codicil, it must be
acknowledged, witnessed, and must contain an attestation clause, all those requisites of a notarial will is
applicable to a notarial codicil.

Article 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document
or paper shall not be considered a part of the will unless the following requisites are present:
(1) The document or paper referred to in the will must be in existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same, stating among other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or
inventories. (n)

Sometimes there are documents that you want to be part of the will pero it is so voluminous that you cannot

put everything or the substance of the documents in the will itself, thus the law recognizes incorporation of a
document as part of the will.
Is this incorporation for reference also applicable in a holographic will?
Paras: Yes. As long as these papers and documents are handwritten in the hand of the testator or if the
holographic will happens to have 3 witnesses, then the witnesses can be presented during probate
proceedings that would attest to the handwriting or to the existence of the documents, which are
incorporated by reference. With regards to holographic will, the law is silent. So its a matter of arguing
in court that these documents maybe a part of the holographic will because you have to comply with all
the requisites of the valid incorporation of the documents.
At this point in time you have to know the difference between revocation and republication and revival.
All right, if you talk about REVOCATION, the presumption is that there is a valid will you want it
ineffective/void.
In REPUBLICATION void or revoked will you want it to be effective valid.
REVIVAL void revoked valid.
When you talk about republication, there is a presumption of existence of a valid will and you want to revoke
it, making it ineffective and void.
But if you talk about republication, there is a valid revoked will, you want to republish it.
Now, so this republication is an act of testator while revival is by operation of law.

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Article 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a)
Article 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in 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. (n)

There are only 3 legal ways of revoking a will. Naa na xay valid will, muingon ka, ganahan ko mawa iya
effectivity, what am I going to do? If you put it in your will, I hereby prohibit that this will be revoked at any
time before my death, this particular disposition in the will is void. Why? Because of Article 828.
The purpose of revocation is to render a valid will as ineffective or void. Now this particular provision 828 is
also true in the case where the testator has already filed for probate of his will during his lifetime, but he can
still revoke it any time even if its admitted already in court.
3 legal ways of revoking a will:
1. by implication or operation of law. It may either be total or partial revocation;
2. is by an overt act by burning, tearing, cancelling, or obliterating the original will;
3. by execution of a revoking will, codicil, totally, partially, expressly or impliedly.
None other acts of revocation is acceptable under the law. So these 3 ways of revoking a will are EXCLUSIVE.

So when is a will deemed revoked by operation of law?


Usually the disposition in a will by the act of the testator gave shares of stock to X, later on, sold my
shares of stock to Y tantamount to me changing my mind of giving the stocks to X. This act of alienating
or selling the same is an implied act of revoking your legacy to be given to X.
Or I would say I hereby give my swimming pool to X, but before I die I convert the swimming pool to a
basketball court. This is a way of transformation of the legacy, which tantamount to an implied
revocation of my legacy of swimming pool to X.
Another example is when an heir committed an act of unworthiness, or in a legal separation. So what is
the presumption here? The revocation made by the testator change of mind and heart to give the same
to the person concerned.

Now, another interesting way of revoking a will is by overt acts. But only exclusive to 4 acts: BTCO.
So if I say I have an original will here, I want to revoke my original will I tear 1 page, but I taped it back.
So there are 2 questions here: is there a valid revocation, and is there a republication of? Act: tearing and
pasting it back. Now tearing, is that enough to effect revocation?
Yes, but it has to comply with the following rules:
1. There must be an overt act;
2. Completion of the subjective phase of the overt act;
3. That there must be an intent to revoke;
4. The testator at that time must have the capacity to execute a will.

So the capacity to revoke a will is also the same as the capacity to execute a will. And the revocation may be
done by the testator himself or by another by his express direction, and in his presence.
It says there that mere tearing if it is coupled with an overt act and with the intent to revoke can revoke an
original valid will. Burning, is it necessary that the entire will should be burned?
No. As long as there is intent to revoke, an overt act of burning and has completed the subjective phase.

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This is the scenario: I want to revoke my will, so, knowing for a fact that early in the morning, the maid will

come to my room and burn the garbage, so I crumpled my original will and throw it in my garbage, thinking
that the maid will come in the morning and burn the garbage. Before it was burned, a son of mine who is a
jeprox saw the will. When he saw the will na tagaan xa ug car, iyang gitaguan ang will. So paghuman na ana
iya na gipa probate ang will. Karon, is the will revoked?
No.
Can my son inherit the car?
No. Ngano man? Even his legitime he cannot inherit. It is an act of unworthiness.
What if I changed the facts of the case, I would say, I tore into 4 pieces akong will, and threw it in the garbage
knowing that the made will come and burn it in the morning, would your answer be the same?
No. Is there an act of revocation here? Yes. Now there is.
Why? Because there are 2 acts here, tearing and burning, although burning is not an overt act because it
does not undergo the subjective phase. But when I tore it into 4, definitely there is an act of tearing
coupled with intention to revoke.
So what is really important here is you cannot do acts which is not within the recognized form of
revoking by the overt acts.

Questions:
Judgment rendered by a competent court of jurisdiction renders judgment a voidable judgment. In matters
of probate proceedings, which part is considered to be a competent jurisdiction over the said proceedings?
Do you know the difference between venue and jurisdiction? Jurisdiction is the authority of the court to try
and decide case. So in matters of probate proceedings, which court?
Can you expound on the principle which states that an invalid revoking will does not revoke but an
ineffective revoking revokes?
Distinction between the void will, valid? When is a will rendered ineffective?
So in matters of probate proceedings, which court? How about outside metro Manila?
Can a conceived child be validly instituted in a will?
So at the time of the execution of the will, the testator provides that I will institute the third child of my
eldest son. Should this be valid when at the time of the execution of the will, the eldest child had not been
married and no child? Should this institution of the unborn child be regarded as valid?
What if at the time of the death of the testator, the child had already been conceived? Is the institution of the
child valid?
May an unborn child be validly instituted in a will?
Conceived child conceive at the time of the death of the testator. So it may be possible that a conceived child
instituted at the time of the execution of the will... But what is the reckoning point in time to determine the
validity of the institution of the conceived child?
Conceived child should be conceived at the time of the death of the testator but subject to the conditions as
provided under Art. 40 and 41 of the New Civil Code:
Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes
that are favorable to it, provided, it be born later with the conditions specified in the following article.
Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered
from the mothers womb. However, if the fetus had an intra-uterine life of less than seven months, it is
not deemed born if it dies within the twenty-fours after a complete delivery from the material womb.
State the rule on the freedom of disposition of the estate of the person effective mortis causa?
State the rule on equal division and its succession?
What are the exceptions to the general rule that heir of not designated properly will receive equal shares?
o T: The exception is if one of the executed designated heir is a compulsory heir, there is no equal
division yet. Why? Because the compulsory heir receives as XX to his proportion, so he would have
to receive greater than that of the designated heirs
If in the will, you define what is preterition? Does it apply to all kinds of compulsory heirs?
If a grandparent is omitted in the will, would there be preterition? If a parent is omitted in the will, would
there be preparation? How about brothers and sisters? How about surviving spouse?

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If there is a total omission or preterition, what is the effect as to the institution to the heirs and legacy device
given on the will? Compulsory heir to the direct line?
o Would the answer be the same if the omitted heir predeceases the testator?
What is the effect if the omitted heir predeceases the testator with regard to the institution of the heir?
o There is an omitted heir, the effect is the institution will be automatically void or annulled. Would
the effect be the same if the omitted heir predeceases the testator with regard to the institution of
the heir? Is it still annulled?
Rules on revocation of wills

Article 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. (n)

If a revocation is done outside the Philippines, by a person who does not have a domicile in this country,
what law governs?
Law of the place where the will was executed or law of the place in which the testator had his domicile at
the time at the of the revocation and at the time of the making of the will.
This is separate from determining the extrinsic validity of the will.
Always remember that the act of revocation means the act of rendering a valid will is revoked. So in order to
revoke a will which is considered as a valid will you have to follow the three ways of revoking a will.
However, the rules for revocation of will must follow in accordance where the act of revocation was
made and whether the testator who revoked the will is domiciled in the Philippines or not.
Now under the rules for revocation of wills, if not domiciled in the Philippines then the revocation should be
done outside the Philippines.
You have to follow the law of the place where the will was made or follow the place where the domicile
of the testator was at the time of the execution of the will.
So in other words it is the Lex Loci Celebraciones of the execution of the will.
If the revocation of the will made outside the Philippines and the one revoked or the testator is domiciled at
the Philippines at the time of revocation which law will govern in the act of revocation?
It is very clear. Follow the law of the place where the testator was domiciled at the time of the
revocation, follow the place of revocation or follow the Philippine law because he is domiciled in the
Philippines at the time of the revocation but the revocation was made outside of the Philippines.
If the revocation was made in the Philippines naturally you have to follow Philippine law whether the one
who revokes is domiciled in the Philippines or not.
In a case were a revocation was made outside the Philippines and the one who revokes is a domiciled in the
Philippines. If done outside the Philippines by a person not domiciled in the Philippines, Ill give you an
example.
X is an Italian national who executed a will in the Philippine. At the time of the execution, he was
domiciled in China. Act of revocation was done in London.
Which law governs the act of revocation?
At the place of the execution of the will Philippines or
the place where he was domiciled China.
Outside of the Philippines meaning revocation was done in London but it was executed in the
Philippines. He is an Italian national but he was domiciled in China at the time of the execution of the
will.
Another scenario: X is a Filipino national and domiciled in the Philippines. He executed a will in Italy. In
Italy, oral revocation is not recognized. Act of revocation in London which recognizes oral revocation.
Philippine law does not recognize oral revocation.
Which law shall govern the act of revocation? Since the place of execution is in Italy, the answer
should be either in the place where the will was executed in Italy or the Philippine law where he was
domiciled.
Is there a valid revocation of the will in London? Since Philippine law and Italian law does not
recognize oral revocation, there was no valid revocation and the will stands.

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If you have to take note of the book of Paras, it seems that there is a conflicting view with Pineda. Why?
Because according to Paras, it is the law where the act of revocation was made that should govern
following Lex Loce Celebraciones. However, in Pinedas opinion, it is the place where the will was
executed that governs the act of revocation.
If you are going to adopt the opinion of Pineda it seems that there is no valid revocation because it is the
place where the will was executed at the time of revocation and since it is executed in Italy and it does
not recognized oral revocation then there is no valid recognition.
But then if you are going the adopt the opinion of Paras the place of revocation then it seems that there
is a valid revocation in this case because the act of revocation was made in London which recognizes oral
revocation.
Which is which? In my opinion, I submit to the opinion of Pineda where it should be the law of the place
where the will was executed and not the law of the place where the act of revocation took place.
So if the act of revocation was done in the Philippines, there is no doubt the Philippine law should be
upheld whether or not the one who revokes is a domiciled in the Philippines or not.
Take note that act of revocation is different with the extrinsic validity and intrinsic validity of the will as well
as to the ambiguity extrinsic validity and ambiguity intrinsic validity of the will. Suffice to make a difference
on this is to memorize the rulesact of revocation and determining the extrinsic validity of the will.

Article 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. (n)
Article 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the
incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. (740a)

Implied revocation of wills


That is when there is no express statement of revocation and the provisions on the subsequent will are
incompatible with the first will.
So there is an implied revocation of a disposition which contain:
In the first will, I hereby give my piano to X. In the second will he executed, I hereby give my piano to Y.
There is an implied revocation of the disposition in favor of X to Y because it is incompatible with
the disposition in the first will. But there is no express statement that whole will was rendered
revoked.
It may be possible that in the original will I give my piano to X but in the second will I give my piano
to Y. Implied revocation it is.
But supposing that Y refuses or renounced his share to the piano since he is a voluntary heir.
Would that affect the whole will?
No. It is only the disposition in itself which the heir renounced is considered ineffective so
the other dispositions contained in the subsequent will remains valid.
Which means to say that an ineffective will revokes an original will. Why? Because it is ineffective only as
to the parts of the dispositions contained in the second will, the second remains as valid. Thereby,
because of its validity, it hereby revokes the original.
The second will now is called ineffective. That is why the rules say that ineffective will revokes the first
will just because the legatee here refuses does not in any way affect the validity of the second will. If he
renounced the first will, the second will still remains.
An invalid will does not revoke the first will because in the first place, the second will is void. So that is
the rule which says that an ineffective will revokes but an invalid will does not revoke.

Doctrine of Dependent Relative Revocation.


which makes the revocation of the will dependent upon the efficacy of the second will which means
that if the second revoking will is considered as void, it does not revoke the original will. The effect
is the original will subsist. And if there is an ineffective will, the will may be valid though ineffective
because of the incapacity of the heir to inherit or by reason of heir renouncing his inheritance.

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Article 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n)

If a testator revoked his will giving his estate to A upon hearing that somebody told him that A is already
dead but it turns out that A is still alive. There was a false cause so he revoked his will and changed it to B
but he doesnt know the real story that A is still alive.
Now at the time of his death which of the heirs is entitled to the inheritance or legacy?
It will be A. Therefore revocation is considered null and void thus A remains the heir of the testator.

Article 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should
be revoked. (741)

Sometimes the testator will also state the recognition of a child as his illegitimate child, if the will is revoked,

this statement with regard to his acknowledgement with the illegitimate child is still valid, even if the will is
deemed revoked.
Revocation is different from republication. The latter presumes that there is void or revoked will.

Article 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one
which is void as to its form. (n)
Article 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil.
(n)
Article 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will
does not revive the first will, which can be revived only by another will or codicil. (739a)

There are two ways on how to republish a revoked will


by copying all the statements in the original will verbatim and comply with the defects as to form
If there is defect as with regard to the formal requisites as for example the original will lacks three
witnesses required so only two were present, there is an extrinsic defect.
In order to cure the defect, you have to copy verbatim all the dispositions in the original will
verbatim and comply with the three witnesses rule.
Another type of republication is by reference, it would only be true if by reference.
For example, is the original will is extrinsically valid meaning it conformed to all the solemnities
required of a notarial and holographic will but because of the presence of vices consent for example
fraud, trickery, improper pressure, improper influence the validity of the will open to question.
In order to correct this you need have to copy all the contents in the original will but you only
have to execute another will making reference to the original will.

This Art. 836 with regard to reference of the original will in the act of republishing the same is what you
called implied republication.
It can only be made if the original will is considered valid as to its form but because of the existence of
vices of consent like intimidation , improper pressure and improper influence, the will will be rendered
void.

So differentiate it with what is the effect of republication?


If a will is republished the law states that the date of republishing a will is deemed the date that the will
was executed so if the original will was executed on February 20, 2011 and it was republished in
February 20, 2012, the date of the will is now February 20, 2012.
Revival of a void revoked will can be made only by operation of law, this is not an act of a testator. The
rule is that if the testator makes a second will expressly revoking the first will and the second will is
revoked by a third will, the revocation of the second will by the third will does not revive the original
will.

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First will. Executing a first will, valid and then revoked. Execute a second will which expressly revoked first
will and later revoked the second will.
Question: is the revocation of the second will by the third wheel revives the first will?
No because the law says if the first will is revoked by a second will expressly which means to say
that if it is revoked impliedly then the revocation of the second will revives the first will.
Points to ponder:
Is it necessary the third will must be in express revocation of the second will in order to revoke the
first will or is it only necessary that it would only impliedly revoke the second will to revive the first
will.
What if the fourth will revokes the third will impliedly does it revive the first will or the second will?
So the law does not deal with this.

Republication vs Revival
Republication is the act of the testator thus to republish you have to execute another will or re-execute
the will making reference to the original will
but revival is by operation of law automatically the original will is revived of the third will revokes the
second will expressly and the second will revokes the first will in the same manner there is no revival
but if the second will revokes the first will impliedly then the revocation of the second will revives the
first will.
Second, the republication corrects the extrinsic and intrinsic validity of the will because if the will is
intrinsically invalid then you have to re-execute the same will and comply with the formalities
While revival restores only a revoked will.

Article 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.
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 a death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the
testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be
conclusive as to its due execution. (n)

Upon the death of the testator or the person he left the will the heirs cannot immediately take over his
estate, it has to undergo probate proceedings. This probate proceedings is a special proceeding, it is a
proceeding in rem.
How do you define probate?
In laymans term, allowance and disallowance of a will whether the court will allow or shall not allow
the terms.
It is defined as the act of proving before a competent court the due execution of a will, the testamentary
capacity of the testator and the approval or admission of the court by the will.
Can a testator provide in its will that a will may not be submitted to probate to be effective?
No because of the provision in Art. 838.
So in the case of Mendoza vs Pilapil, there was a provision in the will of Mendoza which states that
the will should not be presented for probate.
The court ruled that such disposition or provisions in the will is void in violation of Art. 838.
Therefore, by this provision, the probate of the will is mandatory whether the will is executed outside or
within the Philippines, whether holographic or notarial, it is immaterial.
In the case of Lasam vs Omegan, it enunciated the principle that if the will had been probated, the will has no
effect whatsoever and thus it cannot be the basis of any claim or right of possession by the heirs.
In a probate proceedings, once admitted due execution of the will is conclusively presumed. The allowance of
the will either during the lifetime or after the testators death shall always be conclusive as to the due
execution of the will

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it cannot be attacked by any criminal action for perjury even if the probate proceedings or the decision

is rendered by the court is erroneous, it still cannot be attacked because there is a presumption that the
will was genuine.
Who and when a will may be probated?
The will may be probated at any time after the death of the testator or it may be presented for probate
by the testator himself.
If after the death of the testator, heirs, devices and legatees can go to court.
How about executor, administrator, devicee, legatee or interested person such as creditors may have the
legal standing to go to court and file for the probate proceedings.
If the will is left to a custodian, the custodian of the will is given one month to surrender the copy of the
will or else the court will sanction him. Thats why if the will has been surrendered in court, you can
deposit it ahead of the filing of the petition for probate proceedings.
Now during the probate proceedings, a very important jurisdictional fact will be presented, the proof of the
persons death, because if there is no death then there is no point for probate proceedings.
Another jurisdictional fact is the copy of the publication of the notice of hearing in a newspaper of general
circulation for thee consecutive weeks.
Other than that, as sub-markings, you also have to present in the probate proceedings the clippings of
the notice of hearing in the newspaper for every week.
If these jurisdicitional fact wont be presented in a probate proceedings, then the court will not allow you to
present your witnesses further.
Why? A notice of hearing shall also be presented in court to show to the court that notices had been sent
to all the heirs, legacies and devices which are mentioned in the petition.
They have to formally offered as evidence for the court to acquire jurisdiction over the subject matter of
a probate proceedings before you can continue to present your case.
Judgment in probate proceedings is conclusive to its due execution and testamentary capacity of the testator.
But its not conclusive, however, to matters involving ownership and possession.
The court sitting as probate has limited jurisdiction, they can only decide whether the will has been duly
executed and the testamentary capacity of the testator and thats all.
For matters of distribution, if it has already been proven that the will is extrinsically valid then the probate
court may enter into the determination of the intrinsic validity of the will.
General Rule: Questions as to regards the title, possession of the property cannot be passed upon by a
probate court because they have limited jurisdiction and exception are those jurisprudential exceptions
cases of Kayanan, Alvarez, Magallanes.
The cases states the one of the parties mainly pray for the exclusion of a property as part of the estate of
the decedent. In this issue, the court touches on whether the subject property is to be included or
excluded in the estate of the decedent.
In the case of Magallanes vs Kayanan and the case of Sebial vs Sebial, the parties voluntarily submit the
issue of title ownership for the court to resolve. If all the parties voluntarily agreed to submit the issue of
title and possession of the properties subject to the estate of the decedent, then the court will touch on
this issue but without prejudice to the filing of the case to resolve issues of title and ownership in the
proper forum.
By which I mean, you can file a separate action for quieting of title in order to settle the ownership
and possession of the property.
All judgment rendered by probate proceedings or probate court is not interlocutory but are rather
considered as final judgments thus it is subject to appeal.
Judgment to be conclusive, it must be rendered by a court of competent jurisdiction and which court has to
the authority to entertain matters on probate?
BP 129 as amended by RA 7691. It could either be MTC or RTC depending on the gross value of the
estate of the decedent its not the net value.
So outside of Metro Manila, exceeding P300,000 it will not be vested in the RTC. If it does not exceed
P300,000 naturally it will be in MTC, MCTC. The jurisdictional amount or basis in determining the
value is P400,000. So if it exceeds P400,000, it is lodged with RTC and less than it will be at MTC.

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Jurisdiction vs Venue
Venue relates to the place where you will file your case but jurisdiction as a matter of substantive law is
the matter of jurisdiction that lies with the court.
Before BP 129, you have to observe all probate proceedings are an action incapable of pecuniary
estimation. Thus it was only exclusive with the RTC but because of the BP 129 which increases the value
or the jurisdictional amount of the courts it is now the RTC or the MTC depending on the value of the
gross estate of the person.
Is there prescriptive period in instituting probate proceedings?
None. At any time, any interested person may file for a probate proceedings. This has been enunciated in
the case of Guevarra vs Guevarra et al. In the same manner, the rule of estoppels is not applicable in
probate proceedings because it is demmed invested with public interest.

Art. 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
(3) If it was executed through force or under 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. (n)

What are the grounds for denying probate by the court?


There are other grounds. Not an exclusive list.

An RTC or an MTC jurisdiction over probate proceedings is merely there to hear and decide probate of a will.
Thus they are only there sitting as a probate court. RTC of general jurisdiction can sit as probate court unless
the petition had been file before the RTC. As well as the MTC.
Probate proceedings doesnt only mean testamentary successions can also mean intestate settlement of
estate. If the will is deemed denied then succession becomes intestate.

Institution of Heirs
Points to remember for the valid institution of a will:
Institution of an heir refers only to voluntary heir
It can only exist in testamentary succession
The rules are applicable to legacies or devices
In instituting an heir, this heir must be certain or ascertainable. When an heir is instituted it must not
prejudice the legitimes of compulsory heirs.
When instituting an heir, may a conceived child be instituted validly on a will?
In 1991, X executed a will instituting the first child of his eldest son. At the time of the execution of
the will, the eldest child was single. When he died in 1995, the son was already married and the wife
conceiving the first child.
Can the child demand a share on the estate of the testator?
The institution is valid but subject to the conditions set forth by Art. 841.
The mere fact that the child was conceived at the date of the testator does not guaranty
him the inheritance unless he was born, completely delivered from the maternal womb
of the mother except if the child has an intra-uterine life of less than seven month he is
not deemed born for civil purposes if he dies within 24 hours.
If the case problem was that if the child has intra-uterine life of 5 months. It died within 36
hours. Is the institution of the child valid?
Yes because he lived more than 24 hours.
Would your answer be the same if in 1991 when X executed the will executing the first child
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of the eldest son and at the time of the execution of the will the live-in partner of the eldest
son has already been conceiving the first child and at the moment of his death the child was
born. Is the institution of child valid?
Since it does not specify whether legitimate or illegitimate so the institution is valid
because at the moment of his death the child was born.
I institute the first child of my eldest son, At the time of the death the wife of both of my
eldest son had been conceiving their first child. My first son, one legitimate the other
illegitimate, had the same date na-born.
Which of the particular child will inherit the estate?
If you cant identify which of this child then none. So the intstitution of heir must be
ascertainable because if not he cant accept the inheritance.
What then is the proper manner of designating an heir?
The proper manner of instituting an heir is that.. I hereby institute
Jonathan Capanas to have of my estate
Supposing there are two persons with the same names, it shall state
additional description or circumstances.
If the name is omitted but identifiable, the institution is still considered
valid.
I institute my sister-in law who is a practicing lawyer
Even if you have two sisters-in-law still can be identified because of the
description that she is a practicing lawyer.
I institute my classmates in the college of law of USJR who graduated cum
laude in 1990 is it valid? It is identifiable? Identifiable if theres only one
classmate who graduated cum laude but wont apply if theres are two or
three classmates in this case nobody will inherit.
If theres a mistake in the spelling name or in the circumstances of the heir,
is the institution valid?
It depends. It shall not invalidate the institution of the identity of the heir
can be ascertained.
Ambiguity or non-identification of the heir by reason of similarity of
names, surnames or circumstances cannot be identified then the
institution is void.
Ex: I institute my two mestizo looking cousins Henry Sy, Henry Sy. But
who point of view of mestizo?
Since you cant identify, the institution of such is void and nobody can
inherit.

Article 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed
him in his property and transmissible rights and obligations. (n)
Article 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the
entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed.
In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall
pass to the legal heirs. (764)
Article 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having
capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the
legitime of said heirs. (763a)

Institution of an heir is different from substitution of an heir.


Institution of an heir set forth under article 840 to 856 and we have discussed this that a conceived child
may be the subject of a valid institution but the conception of a child must always be reckoned from the
moment of death of the testator, it is immaterial whether it was conceived aor not at the time of the

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execution of the will as long as the child has been conceived at the time of the moment of death of the
testator but subject to the provisions of Article 41 of the Civil Code;
As we have said that for civil purposes, a fetus acquires civil personality when he is completely
delivered from the maternal womb but a fetus which has an intra-uterine life of less than seven months
can only be considered as having a civil personality if he does not die within 24 hours from the
complete delivery. (Art. 41)
Article 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same
names, he shall indicate some circumstance by which the instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt
as to who has been instituted, the institution shall be valid. (772)
Article 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any
other manner, to know with certainty the person instituted.
If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use
of other proof, the person instituted cannot be identified, none of them shall be an heir. (773a)
Article 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity
becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a)

How do you properly institute an heir in the will?


The proper institution of an heir usually involves the indication of the name, family name.
May a name or family name suffice?
Sometimes there is no name, but there is a descriptive circumstance as with regards to the
person. So it boils down to the rule which says in the institution of an heir, as long as the heir
can be recognised or can be identified therewith, then the institution is valid.
Can a person or unknown person be validly instituted in the will?
Answered in article 845, every disposition in favor of an unknown person is always void but if
there are some events or circumstances that he can be identified then the institution is valid.
Example: I say in my will "I institute the first child of my eldest son." unknown, the child was not
yet born when I instituted the child - unknown person. But at the moment of death he was
conceived and he was born after the death of the testator and he can be identified, meaning that
he is the eldest child of the eldest son, then the institution is valid.

Article 846. Heirs instituted without designation of shares shall inherit in equal parts. (765)
Article 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A
and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears
that the intention of the testator was otherwise. (769a)
Article 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the
inheritance shall be distributed equally unless a different intention appears. (770a)
Article 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted
simultaneously and not successively. (771)

How about heirs, without designation of shares? How are they going to inherent?
Article 846, this is the rule on equal division. If the institution of an heir has no specific share, this means
they will equally receive or entitle to the inheritance.

Institution and substitution is only applicable to a voluntary heir - applicable to the free portion. It is never
applicable to the legitime. Why?
Because the legitime is always reserved by law for the compulsory heir.
If a compulsory heirs is given something in a free portion. Which means to say that the testator wants
this compulsory heir to get more than the other compulsory heirs, he will get his legitime but he's also

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1.

2.
3.

given a piano,if he is given more than his legitime then he becomes a compulsory heir and a voluntary
heir as to the piano.
The rule says if the heirs instituted without designation of shares shall inherit equal parts, it
admits of exceptions;

When those who are substituted are instituted to the will is one of the compulsory heirs, then there is no
equality in the division.
Why is it so? Because he will get his legitime plus his share in the free portion.
Example: One instituted was a compulsory heir A and the other two friends B and C. If the estate is
300,000. How much will each one get? There is only one compulsory heir, you have to divide the estate
in order to get the legitime of the compulsory heir, because this is testamentary. So in order to get the
legitime of the compulsory heir being the son of the testator, then 300,000 divided by 2 equals 150,000.
This goes to the legitime of A. Now because there others also instituted, we have the free portion of
150,000. Now because this free portion is subject to institution divided by three A, B and C, they will get
50,000 each.
This is an exception because by then, A who is a compulsory heir will get the legitime of 150,000 plus his
share in the free portion of 50,000, then you will get a total of 200,000. While B and C will only get
50,000 because he is not a compulsory heir. Even if the testator did not specifically indicate the share of
the institution of A, B and C, it is still an exception to the general rule on equal division because A is
entitled to it.
When there is a specific share given by the testator to each of the instituted heir.
Example: If the testator give 1/10 to A, while the rest of the 9/10 will have to be divided between B and
C. So there is no equal division.
When the testator provides for cash money pro indiviso between A, B and C. But it does not specify how
much each will get.
This is an exception because if the testator provides that they have to be instituted in the free portion of
his estate but B was given a piano worth 50,000and C was given a car worth 50,000. How much will each
get? They will not get in equal shares. Because the 50,000 will have to be deducted from the share of B
and C. So they will no longer get a cash money because this has been deducted in the form of a car. While
A who was not given anything will get 200,000.
Under Article 847, the rule says if the testator instituted some heirs individually and some
collectively it means that they are collectively designated, unless it appears that the testator should
not have instituted them in the same equal share.
So if I say, I institute A, B and the three children of C to my estate of 500,000, how much will each get?
They are collectively and individually instituted when they are collectively designated.

If the testator institutes his brothers and sisters to his estate, some sisters and brothers are full and
other are half-blood. How much will each get?
This is testamentary succession, not intestate. Saying in my will that I institute my brothers and
sisters but it turned out that some of my brothers and sister are half-blood, how much will each get?
You will not apply the provision under intestate succession, it means they are equally instituted to
my estate, because in intestate succession, if the inheritance covers, inheritance of collateral
relatives and the brothers and sisters which are half and full blood, the share of the full blood
brothers and sisters are double that of the half-blood, but this is testate. If they are collectively
designated in my will, you will not apply the ratio of 2:1, you will apply that provision Article 848
which is equal distribution.

Now if the testator calls to succession a person and his children, it means that they are
simultaneously instituted and not successively.
So if I say I hereby institute A, B and the children of C,or I hereby institute A,B and C, and the
children of C, it means that they are simultaneously instituted and individually instituted. So A,B, C
and the three children of C, so it will have to be divided into six.
But if they are designated collectively like A, B, and then institutes A,B and C as substitutes, the

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institution here is only as with regards to A, B. But C as substitute and it will not be simultaneously
instituted. But if you will say A, B and C are instituted then that means to say that they are
simultaneously instituted.
Article 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from
the will that the testator would not have made such institution if he had known the falsity of such cause. (767a)

GR: Sometimes there's a statement of false cause. Under Article 850, it says there a statement of a false cause
or legal cause the institution of heirs shall be considered as not written.
XPN: Unless it appears from the will that the testator would not have made such institution if he had known
the falsity of such cause.
So in my example, I hereby institute my favorite student for having topped the bar exam of 2005, but in
actuality he was not able to top the bar exam in 2005. Can my student demand for his share in my estate?
So there's a false cause for the institution.
What is the purpose of instituting my favorite student, is it because of generosity? or is it because he topped
the bar exam? when in truth he did not pass the bar exam. He does not know about that, can this student of
mine demand for his share of the institution?
YES. Because the topping of the bar exam is not the main cause although it is a wrong cause but it is the
main cause for instituting the student of mine he being a favorite student of mine.
But compare it to this, I love CPA topnotcher, I should have instituted A but because I love a CPA topnotcher I
hereby institute B, because he topped the CPA exam of 2005. If he did not actually topped the CPA exam of 2005,
would the institution be valid?
There's a false cause here. What is the false cause? he did not top. But the main reason of instituting that
person is because I love CPA topnotcher. So which means to say that if he did not actually top the CPA
exam, then the institution is VOID.
How about if it is illegal? If the real motive is illegal, for example, I hereby institute X, because I want him to kill
my political rival Y. What is the purpose of instituting X?
Because I want him to kill my political rival Y. Thus, if he was able to kill my political rival Y, is the
institution valid? If he did not kill my political rival Y, is the institution valid? So either way, VOID.
Because the main consideration is illegal.
But if I say I hereby institute my sister who helped me get through my law studies because she helped me cheat
in the beauty contest (?!?) If she did not cheat in the beauty contest, would my sisters institution be valid?
YES, because there is generosity and kindness for what her sister has done to her even if the cause of her
institution is cheating which is against morals. In other words, it boils down to whether the purpose or
the aim of consideration of instituting an heir is because of generosity or kindness even if it's based on a
false cause it means that the institution is valid, unless it is illegal.

Article 851. If one heir instituted is given an aliquot part of the inheritance, legal succession takes place with respect to the
remainder of the estate.
The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover
the whole inheritance. (n)

This article actually contemplates of a situation where the testator have no intention of giving the entire
estate.
Now my question is this, would this provision of Article 851 applicable to a situation of testamentary succession
where the testator has no compulsory heir or has compulsory heirs?
I would say it covers both.
For example, you are spinster, you have no descendants, you have no line, descending and ascending
heirs, you only have collateral relatives. Your colateral relatives they are not considered as intestate
heirs, but if you give, for example our estate is 100,000 and you give half of your estate to X, that is the
first paragraph of article851, there's a remaining half portion. And if you're spinster you can do so

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because of the freedom of institution, you have no compulsory heirs. What happens to this? According to
Article 851, a part will proceed intestate, why? because this presupposes that there is no intention on
the part of the testator to give everything to the only one heir.
Supposing, the second paragraph says, more than one heir, so several heirs were given an aliquot portion
of his estate, so not only A but given to B, C, D. There is a remaining half portion here, this is the second
paragraph of article 851, this remaining portion of his estate will descend by intestate succession which
means that this part will have to go to the brothers and sisters, nephews and nieces of the testator who
is a spinster.
The first paragraph of this article refers to one heir and instituted to the estate, but it's not the whole estate
that was instituted. So there's a remaining balance of the estate.
The second paragraph of the same article, refers to several heirs, and the several heirs share or institution
does not cover the whole inheritance, there is no intention to give the whole inheritance.

Under Article 852, exception to this rule, because this presupposes that the testator will give everything the
entire estate to the instituted heirs, so what does this say? As to the question whether it is applicable to a case
where there is a compulsory heirs or non-compulsory heirs?
I would say yes, because it may be possible that there is a compulsory heir the legitime here is
considered legitime. But if there's only one heir and he is given only one half portion, the one halfportion refers only to the free portion, this legitime is set aside to the compulsory heirs. If he has
compulsory heirs of three children for example, their share will have to be covered under this, because
they have half of the estate of the testator but since A is instituted to one half of the free portion there is
a balance remaining in that free portion. Which means to say that this provision will also be applicable
in a case where there is compulsory heir or there is no compulsory heir. If there are no compulsory
heirs, the whole entire estate. But if there are compulsory heirs, only the free portion because the
legitime must always be set aside for the compulsory heirs.
Article 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole
free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts
together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n)

Under Article 852, simply put, it says there if there are no compulsory heir for example, 1/4 goes to

A, 1/4 goes to B, 1/4 goes to C. There is an intention on the part of the testator to give the entire
estate to the instituted heirs.
What will happen now to the balance of the estate of 1/4 which has to be given?
If there is an intention in the part of the testator to give the entire estate it will not descend by
intestate it will go back to A,B and C. Which means that the share will be given in addition to A,
B, C. Supposing this is an excess, under Article 853, it says there, if all that was given exceeds the
entire estate, the law says, their share shall be taken proportionately from the shares of A, B, and
C in order to cover the excess.

Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal
succession takes place with respect to the remainder of the estate.
The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not
cover the whole inheritance. (n)

Institution of Heirs to aliquot part/parts of the estate without covering the entire disposable portion.
This is the scenario, there is no intention of the testator to give the entire portion of the free portion of the
estate. Thus if there is a remaining balance after giving all of the shares of the instituted heirs, the remaining
balance will be distributed by intestate succession.
The fact that the testator has no intention of giving the entire estate or the entire disposable portion to the
instituted heirs must be expressly stated in the will.
First paragraph of the same article says this refers to the institution of only one heir to a part of the
inheritance, remainder shall be disposed of in accordance with the rules on legal succession or intestacy.

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We have illustrated that in the board, where the disposable portion is the entire estate as the remaining
balance after subtracting the share of the instituted heirs, and the remaining balance shall go to the intestate
heirs of the testator.
legitime

Free portion to be distributed

So if this is the estate, this part here may be a legitime and the subject of the institution would be the
free portion. Now in order to apply article 851, one heir is only given of the free portion. The
question is, what will happen now to the remaining balance? Article 851 says the intention to give,
thus this remaining balance will be distributed by intestate succession.
Paragraph 2 of the same article says there, 2 or more given to the instituted heirs, each, what will
happen now to the remaining free portion? Again, it will be by intestate succession.

balance

Art. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole
free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts
together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally.(n)
Art. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole
inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally.(n)

However, articles 852 and 853 are the exemptions. This contemplates a situation where the testator
intends to give the entire estate or the free disposable portion. It means that all the instituted heirs are
given by the testator, either to the entire estate or to the free portion of the estate.
The situation of article 852 is this, each heirs is given an aliquot portion of the inheritance, and the
aliquot portion taken together do not cover the whole of the inheritance, whether the free portion or the
entire estate. What will happen now? If there is a remaining balance, and there is an intention of the
testator to give everything, or the entire free portion, the entire estate to the instituted heirs, then each
aliquot part must be increased proportionate to their share in the institution. This is the principle. (But
in the exam, I will let you do the application of the principle)
So the principle is, if there are more than 1 heir, and you are instituted to the aliquot portion of the
estate, and the totality of the share of the instituted heir does not cover the whole inheritance, whether
the testator intends the whole inheritance to the instituted heirs, the rule is that each of their share in
the aliquot portion shall be increased, in proportionate to their share in the inheritance.
So I have an illustration here, try to practice this.
The testator instituted A, B, C, and D, sole heirs to the estate of 1M, giving each of them 1/5 share. To
get the share of each heir, you have to multiply 1M to 1/5 (1M / 1/5), so 200,000 each heir
multiplied by 4 of them (200,000 x 4), so it would only total to 800,000. But the estate is 1M, thus
there is a balance of 200,000. The question is, this balance of 200,000 after subtracting the total
inheritance of the instituted heirs to the value of 800,000 and the total estate is 1M, there is a
remaining 200,000. What would happen to the remaining 200,000, would this be distributed

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through intestate succession or would it go the instituted heirs?


First you have to determine if the testator had the intention to give the total free portion or the total
estate. If not, if there is no intention to give, then the remaining balance must be distributed by
intestate succession. But if there is an intention to give everything, the entire estate, or the entire
free portion, then all the aliquot shares of the instituted heirs must be increased proportionately.
Now take note and you have to observe, under article 853, it is the other way around. Meaning if
that is 1M, there is intention to give everything, but the totality of the shares exceed the total
inheritance which is 1M, the rule is that their share should be decreased proportionately, in
proportion to their share in the estate. So what do you mean by this? You have no problem if the
institution is equal, but you have a problem on how to decrease the share in proportion to their
respective shares.
For example, the share of A, B, C and D are not the same, one is instituted to 1/3, the other is to 1/5, the
other is instituted to . Now the rule is that, the cardinal principle is this: If the heir is instituted in
equal proportions, they will inherit the remaining portion in proportion to their proportionate share in
the institution.
So if you say that A is instituted to 1/3, b is instituted to 1/5, which is bigger? 1/3. So in matters of
reducing the 1/3 portion, it would be bigger reduction than that of 1/5. But if it would be the other way
around, if it would be in addition to, because there is a remaining balance which is not covered by the
institution of the heirs, what will happen? The 1/3 portion will also be increased bigger than that of the
1/5.
What is really important here is the principle of the rule, the aliquot portion and the instituted heirs if
there is an intention to give the entire estate or the entire free portion of the estate, so article 851, 852
and 853.

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be
valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of
representation. (814a)

Preterition
In the institution, what is really important for you to remember is the concept of preterition. If you talk about
substitution, the most important concept for you to remember is fedeicommissary substitution, they usually
come out in the bar exams. And in matters regarding the legitime, the most important concept is reserva
troncal.
How do you define preterition? Very important elements are the following:
There is an omission
Omission must be total
Those who are omitted are 1 or more compulsory heirs
In the direct line
Now it says there, whether living at the time of the execution of the will, or born after the death of the
testator. So it may be possible that an heir, who is a compulsory heir in the direct line may be conceived
at the time of the execution of the will, conceived at the time of the death of the testator, but born
thereafter. Now if this compulsory heir in the direct line is born thereafter, and if he is not given anything
in the will? Would there be preterition?
Because if you have to define preterition, preterition is the omission of the compulsory heir in the direct
line, whether living at the time of the execution of the will or born after the death of the testator. So sa
ato pa, nagbuhat siya ug will, wala pa na conceive ang compulsory heir, ang wife wala pa naka conceive
sa child, at the moment of his death, the wife has already conceived but when he executed the will, he did
not leave anything to his child? Yes, because you have to look into the definition on what preterition is.
It may be conceived at the time of the execution of the will or living at the time of the execution of the
will or born thereafter. An institution is deemed valid if the child is conceived, not at the time of the
execution of the will, which is immaterial, but at the moment of death of the testator.
So if the case problem would say, at the time of the execution of the will, the testator is instituting the
third child of his wife, but died of miscarriage. At the moment of his death, the child is no longer alive.

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Now if the child is not given anything in the will, would there be preterition? The question would be,
does the child acquire civil personality? At the time of the execution of the will, nag conceive ang iyahang
wife, but this child who is in the womb of the mother was not given anything, the entire estate is given to
all, but not the child. If the child dies, nakuhaan ang iyang wife, pagkamatay niya, patay na ang child,
would there be preterition if the child was not given anything?
No, because the child did not acquire civil personality, subject to article 41. What is effect? Why do we
have to know if there is preterition? The effect is that if there is preterition of a compulsory heir in the
direct line, testamentary succession will be converted to intestate succession, total intestacy, except of
course if there is a provision on a legacy or devise, because it would not be total, but partial intestacy.
Why? Because the effect of preterition is that, it shall annul the institution of the heirs, but the legacies
and devisees remain as long as it is not inofficious.
In order to determine if there is preterition or not, you have to differentiate it from valid disinheritance
or invalid disinheritance.
Preterition vs. Disinheritance
PRETERITION

DISINHERITANCE

May be intentional or not.


There need not be any grounds, in order to validate the
preterition of a compulsory heir in the direct line.
The omission is applicable only to the compulsory
heirs in the direct line.
It is settled in jurisprudence that the surviving spouse
is compulsory heir but not in the direct line.

Usually done by the testator him/herself (which means


that disinheritance is intentional)
In invalid or ineffective disinheritance, disinheritance in
this case is not based on trues and existing legal
grounds, as enumerated by law.
Disinheritance is applicable to all. That is why there is
what you call disinheritance of the illegitimate children,
the descendants, ascendants, and the surviving spouse.

1.
2.
3.
4.

Requisites of Preterition:
There is omission.
Omission must be one, some or all of the compulsory heirs in the direct line.
This may be intentional or unintentional.
The compulsory heir omitted must be in the direct line, whether ascending or descending.

Now as to the question if the parent is not provided for in the will of his/her child, would there be
preterition?
Compulsory heir in the direct line, ascending line is a direct line, now would there be preterition?
You have to qualify, because if the parent or ascendant is not considered as compulsory heir in the
presence of legitimate children, but it depends of the testator is a legitimate or illegitimate child.
If the testator is an illegitimate child, and the parent is an illegitimate parent, and there is presence
of an illegitimate child, the illegitimate parent will not be allowed to inherit, therefore, in the
presence of illegitimate child, the illegitimate parents cannot inherit.
If the testator is an LC, parent is LP, it defers if the testator is an IC.

Parents legitimate parents (LP)

T- legitimate child (LC)

(LC)

B illegitimate child (IC)

C (LC)
A is the legitimate child of T, B is an illegitimate child of T. LC, IC, so in this particular case, in the
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presence of A and B, LC and IC, LP will not inherit. Why? Because there is a presence of a legitimate
child.
Now supposing the legitimate child A has a child C, can the parent inherit in the presence of
legitimate descendants? Now supposing namatay si A, so C can inherit by right of representation,
now, in the presence of descendant, can the LP inherit? No. In the absence of legitimate children and
legitimate descendants, the parents cannot inherit.
Now supposing A died and he has no descendants, only B remains, can the LP inherit? If T is a
legitimate child, therefore LP can inherit even in the presence of B who is an IC.
Parents illegitimate parents (IP)

T- illegitimate child (LC)

(LC)

Summary:

Testator (illegitimate child)

B illegitimate child (IC)

If the T is an illegitimate child, and there is the presence of A (LC) and B(IC), can the illegitimate
parent (IP) inherit? No. Can the parent inherit in the absence of a legitimate child? The answer is no,
which means to say that if you qualify, if the testator is a legitimate child, the parents are considered
as compulsory heirs only in the absence of legitimate children and descendants. So if the parent is
omitted in the will, then there is preterition, and the effect is, there is annulment of the institution of
heirs.
Now supposing the testator is an illegitimate child, the parents survived together with B (IC), can
the parent inherit? No, because the parent can only inherit in the absence of both, legitimate
descendants and illegitimate descendants.
So as to the question, if the parent is the surviving heir, can there be preterition if he/she is not given
anything in the will? The answer would always be qualified. It should be qualified if the parent is in
the direct line and he/she is the only surviving relative if the testator is an illegitimate child. If the
testator is a legitimate child, if the survived by illegitimate parent and illegitimate child, then
omitting the parent would cause preterition.

Testator (legitimate child)

Legitimate parents can inherit in the absence of legitimate child and legitimate
descendants
Illegitimate parents can inherit in the absence of BOTH legitimate and
illegitimate children and descendants

Take note that on the second paragraph of article 854, it says there, that if the omitted compulsory
heir should die before the testator, the institution shall be effectual without prejudice to the right of
representation. This means that if an heir in the direct line is omitted, but he died before the
testator, he has descendants, there is preterition, but the effect is that there is no annulment of the
institution of heirs. This could not be converted into intestate succession because the institution of
heirs remains effective, and the legacies and devisees remain valid as long as it is not inofficious.
So it is important to remember that in attacking the problem, try to see for yourself if the omitted
heir dies before the testator, is there an annulment of the institution of heirs?
No. it would be the other way around if the omitted heir dies after the testator dies. But if the
omitted heir dies before the testator, though there was an omission, it would not affect, or it
would not annul the institution of heirs.

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CASE ILLUSTRATION:
T

A-1

C
C-1

Facts: T instituted his children, A, B, and C to his estate of 300,000.


Scenario I: T predeceases A, B & C
Legitime
50,000
50,000
50,000

A
B
C

Institution
50,000
50,000
50,000

Total
100,000
100,000
100,000

In scenario I, T predeceases all, meaning A, B and C survived T. What will happen now? Normal, there is no
preterition; all of them are instituted heirs. So first, you have to get the legitime since this is a testamentary
succession. You divide the estate of 300,000 to 2, 150,000, divided by the number of legitimate children,
divided by 3, so each will get 50,000 as their share in the legitime. Since they are instituted to the free
portion, the free portion is 150,000, instituted equally, no designation of shares, so they are instituted in
equal division, so each one will get 50,000, so total is 100,000 each. If its testamentary succession, you must
see to it that the legitime must always be given beforehand, and you determine the free portion which will be
the subject of legacies, devisees and institution of heirs.

Scenario II: C is omitted


Effect: institution is annulled, descend intestate

100,000

100,000

100,000

300,000 / 3

In scenario II, C is omitted, what is the effect if there is preterition or omission? Institution is annulled;
therefore the whole estate will descend by intestate succession. It is total intestacy because there is no
presence of legacies or devisees, so each one will get 100,000.

Scenario III: If C is omitted but dies after T


Effect: Same answer as Scenario II
Except: C-1 inherits by right of representation
In scenario III, if C is omitted but dies after T, so you will get the same answer as scenario II. Why? Because
he did not predecease T, he died, but only after T, because there is no annulment of institution of heirs, only
intestate succession.

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Scenario IV: C is omitted but predeceases T. Institute A & B to the whole estate
Effect: Preterition occurs but institution of A & B remains effectual as long as it is not inofficious.
Legitime

Institution

Total

50,000

75,000

125,000

B
C-1 (representative of C)

50,000
50,000

75,000

125,000
50,000
300,000 (Total)

In scenario IV, this is different, C is omitted but he predeceases T, that is the 2 nd paragraph of article 854,

it says there, if the preterited heir predeceases the testator, institution remains effectual. Meaning there
will be no annulment of institution of heir as long as it is not inofficious or when it impairs the legitime,
when it will prejudice the legitime of the compulsory heirs. Since the institution remains effectual, then
the succession would not be intestacy. You have to give the legitime of A, B and C, C being represented by
C-1, C-1 will get the legitime by right of representation. A very important principle of the right of
representation si that in testamentary succession, the right of representation only covers the legitime.
There is no right of representation as to the free portion of the voluntary heirs.
There is no right of accretion as regards with the legitime of the compulsory heirs but there is a right of
accretion as to the voluntary share of voluntary heirs.
In intestate succession, the right of representation covers all the inheritance of the compulsory heirs.
Thus in this particular case, C1 will only inherit the legitime of C by right of representation. C is not
institued in the free portion but only A and B. the institution of A and B will remain effectual thus
they will get more than C.
This is total intestacy.
There will be a partial intestacy if legacies or devisees are given.
SCENARIO V
For example:
Facts:
Estate = P 300,000
A legacy was given
There are 3 children, one is omitted (preterition). The two children are instituted to the whole
estate.
If the legacy is P 100,000, the said legacy shall be first deducted from the P 300,000. the
remaining will have to go to the children, so divide the P 200,000 to 3. This will not result
directly to total intestacy. Why? It is the wishes of the testator to give the legacy of P
100,000, which must be subtracted.
Now, according to the law, it states there that except if the legacy or devise is inofficious or
prejudices the legitime of the compulsory heirs.
This time you have to determine. If the legacy now is P 200,000. Is it inofficious? Yes. If your
estate is P 300,000, in order to get the legitime of the compulsory heirs, you have to divide
the estate into two (P150,000) and now the legacy given is P 200,000. What is the rule
here? The rule is not to annult the institution of the legacy as a whole but it will only be
reducible to cover the free portion which is P 150,000.
When a compulsory heir, omitted in the will, it is immaterial as to whether or not he was mentioned in
the will as long as he is a compulsory heir in the direct line. He is not given anything in the will and the
will covers the entire estate. Because even if it is not given in the will but there are remaining balance in
the estate which will be distributed by intestate succession, in which case he becomes an intestate heir
then there is no preterition.

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Article 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may
demand that the same be fully satisfied. (815)

If the heir is not given the complete share of his legitime, the compulsory heir is only entitled to the
completion of his share. There is no preteretion, meaning there is no annulment of institution of heirs.
If the compulsory heir is not given anything at all in the will but he was given a donation, the donation
will be considered an advance legitime and there will be no preterition. Now, if we talk about donations,
it is a donation given during the lifetime of the testator. If we talk about succession, then it is effective
mortis causa, by virtue of a will or by operation of law.
For example: If the son has a debt with PNB for P 1M and he cannpot pay. He asks his mother to pay
the said debt.
The payment of such by the parent is considered a donation which means that it is an advance
to the legitime of the compulsory heir which shall be deducted from the moment of death of the
parent. The said P 1M will be deducted to the legitime of the son .
Supposing in this case, the parents acted as a guarantor. Since the son cannot pay the P 1M
then the parent paid the P 1M, is this a donation which was given gratuitously?
NO. iIt is the duty of the parent as a guarantor to pay the obligation without prejudice to
reimbursement from the son.
But if the parent asked for the reimbursement from the son, then this may be
considered a donation which is considered as his advanced legitime.
Why do we have to know if there is preterition?
In order to determine if the institution of the heirs are valid.
If grandparents are omitted, will there be preterition?
It depends.
If the grandparents are the only surviving compulsory heirs who are entitled to the inheritance
of their grand child.
If the parents of the testator are still alive then there is no preterition. THE CLOSER EXCLUDES
THE FARTHER PRINCIPLE
In the case of Julian and Bonghanay vs. Martinez, the court ruled that a surviving spouse, though a
compulsory heir, is not considered a compulsory heir in the direct line. They do not have blood relations.
If brothers and sisters are omitted, will there be preterition?
No. They are only collateral relatives. Only considered as heirs in intestate succession (collateral
relatives up to the 5th degree).

Article 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by
the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other
compulsory heirs. (1080a)

If indeed there is preterition, what is the effect? The share of the compulsory heir will be given and taken
from the free portion if there is sufficient balance from the free portion. If there is none, the share shall
have to be taken from the compulsory heirs, pro-rata.
If we talk about proportionate sharing, you will ask, if it will be taken from the legitime of the
compulsory heirs, then their legitime will be prejudiced. But this was interpreted by Paras. He said that
actually we are talking about a compulsory heir who is at the same time a voluntary heir. The share shall
be taken not directly from the legitime but from the share as a voluntary heir.

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Article 856. A voluntary heir who dies before the testator transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall
transmit no right to his own heirs except in cases expressly provided for in this Code. (766a)

If voluntary heir dies before the testator, he or she does not transit anything to his or her heirs. It is as if
he never inherited
No more civil personality to inherit when he predeceases the testator
If compulsory heir dies before the testator, or even becomes incapacitated, renounces shall transmit no
right to hi own heirs too. It seems that there is no difference. But it continues with, except in cases
expressly provided for in this Code.
In testamentary succession, if a compulsory heir dies before a testator or becomes incapacitated, his
heirs will inherit by right of representation
In cases of valid disinheritance, the heir who was disinherited may be represented by his heirs
BUT NOT FOR A COMPLUSORY HEIR WHO RENOUNCES. IT IS A CARDINAL PRINCIPLE THAT A
REPUDIATING HEIR CANNOT BE REPRESENTED.
What will happen to his share?
His share will be subject to accretion (ISRAI)
In testamentary succession, the right of representation only covers the legitime.

Article 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir
originally instituted. (n)
Article 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)

As defined under the law, substitution is the apportionment of another heir so that he may enter into an
inheritance in default of the heir originally instituted. But the said definition is cosidered defective by
Paras and Pineda. Why? It does not cover fideicommissary substitution.
Can there be a valid institution without a substitution? YES
Can there be a valid substitution without any institution? NO.
Substitution is dependent upon the institution of the heir. The person will only susbtitutue if
there is an instituted heir.
The first three kinds are considered conditional substitution. The conditions of PREDECEASE,
INCAPACITATED and RENUNCIATION (PIR) by the first heir must exist before the second heir can
substitute. But in the case of a FS, these conditions may not exist however the first and second heir
inherits simultaneously. Thats why you cannot apply the definition to an FS
The correct definition would be in default or after the heir originally instituted.
The other two kinds are variations of simple substitution

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Article 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs
should die before him, or should not wish, or should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding
paragraph, unless the testator has otherwise provided. (774)
Article 860. Two or more persons may be substituted for one; and one person for two or more heirs. (778)
Article 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir
who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more
than one substitute, they shall have the same share in the substitution as in the institution. (779a)

Simple (Instituted heir + substituted heir + condition (PIR))


I institute A as heir but if A predeceases me then B shall substitute A. There is a specific provision for its
condition.
Scenario: If A, instead of predeceasing the testator, renounces the inheritance. Can B inherit as a
substitute?
No. because the condition of predeceasing the testator is expressly provided
But if there is no express provision as to the condition, then B may substitute A and inherit.
Brief - two or more persons substitutes for one heir
Compendious one person substitutes for two or more heirs
Reciprocal the instituted heirs themselves are the substitute sof each other
T institutes A to 1/3 and B to 2/3 of his estate. If A predeceases, incapacitated or renounces the
inheritance (PIR) then B shall inherit everything and vice versa.
Scenario:
A was validly instituted and B was the substitute. B predeceased the testator. Upon death of A, can be
inherit?
No. Substitution is already extinguished
Instances where substitution is extinguished
Substitute is PIR (Predeceases the testator, Incapacitated, Renounces inheritance) ;
Institution of the heir was annuled; There's no one to substitute;
Substitution is revoked;
The will was declared void in its entirety.

Article 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless and testator
has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted. (780)

As a general rule: The substitute must fulfill the conditions imposed on the original instituted heir.
Example: I institute Martin Nievera as my heir with the condition that he shall have a concert in my
name before I die. And if Martin shall predecease me, then Anne Curtis shall substitute him.
Martin predeceases the testator. So Anne shall conduct the concert.
Exception:
If the testator provided for the contrary and
If the conditions are personally applicable only to the instituted heir.
Anne Curtis cant sing and have a concert for the testator.

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Article 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to
preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir
and the second heir are living at the time of the death of the testator. (781a)
Article 864. A fideicommissary substitution can never burden the legitime. (782a)
Article 865. Every fideicommissary substitution must be expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from
legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise. (783)
Article 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though he should die
before the fiduciary. The right of the second heir shall pass to his heirs. (784)
Article 867. The following shall not take effect:
(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing
upon the fiduciary the absolute obligation to deliver the property to a second heir;
(2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in
article 863;
(3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in
article 863, a certain income or pension;
(4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the
same according to secret instructions communicated to him by the testator. (785a)
Article 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first
designated; the fideicommissary clause shall simply be considered as not written. (786)
Article 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct,
shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of article 863 shall
apply. (787a)
Article 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void. (n)

1.
2.
3.
4.
5.

6.
7.
8.

FS is considered as an indirect substitution.


It is defined as the substitution by virtue of which, the testator institutes a first heir called a fiduciary,
charges the first heir of fiduciary with the obligation to preserve and then deliver or transmit the whole or
part of the inheritance to the second heir, called the fidicoumisary.
It is valid, provided that both the first and the second heir are alive at the time of the death of the testator
and one degree apart from each other. VERY IMPORTANT!
So there are two elements here:
1) both of them, the first and the second heir must be alive at the time of the death of the testator,
2) the first and the scond heir must always be one degree apart.
So there are 8 legal requirements:
the existence of the first heir
an obligation imposed upon him to preserve and to deliver to the second heir
there must be a second heir
the first and the second heir must be one degree apart
both heirs must be alive or at least concieved at the time of the death of the testator
So it may be possible that the substitute has not yet been born at the time of the
testator's death? Is the institution valid? Is the substitution valid? At least concieved at the time of
the testator's death. May be born after his death.
must be made in express manner
must not burden the legitime
and must not be conditional

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What is the nature of the right of the first heir now?


The right to enjoy and possess.
Property possession and enjoyment belongs to the first heir, the fiduciary, but he is obliged to preserve
the property for the fidicoumisary. So the first heir enjoys the use and the fruits of the property while
the second heir is considered as a naked owner. Both property is still in the possession of the first heir.
The naked owner is vested on the second heir.
So in thr meantime that the property is in the hands of the first heir, the second heir has ownership over the
property, only naked owner.

Can the first heir therfore alienates the property subject of an FS? While it is still in his possession? In as
much as the second heir or the fidicoumisary, right of ownership to the property is vested upon him at the
moment of death of the testator, can he have the right to sell or alienate the property while still the property
is in the hands of the fiduciary?
The second heir is more like of a usufruct, he enjoys the right of usufruct over the property. The only
difference here is that he is not also called a trustee.
Because a trustee could only manage the property while the first heir enjoys possesion of the
property.
However it is different from the right of a usufructuary because the first heir is not required to
put up a bond and the fiduciary has the right to ask for reimbursement of any useful
improvements or expenses or the maintenance of the property or if the property's value has
increased. He could ask for reimbursement. These are the nature of the function of the first heir
to the property.

So the time of delivery from the fiduciary to the fidicoumisary institution,


if there is no specified time fixed by the testator of the delivery, it means upon the death of the first heir.
But if the testator specifically provides for the delivery, 20 years after my death, then whether he is living
or dead, it has to be delivered after when the 20 year period has lapsed.
If the testator provides for the delivery should be made 20 years thereafter, but the fiduciary dies
before the 20 year period. Pangutana, asa mana mapunta ang property? So muingon kag 20 years,
stipulated, testator institute A and B as substitute, this is an FS, 20 year period delivered to B, A1, B1.
A died on the 15th year. There is a stipulation that A shall take possession of the property, enjoy it
for 20 years and deliver it to B but before the determination of the 20 year period, A died on the
15th year. Question: Asa mana mapunta ang property?
It would go directly to B as the fidicoumisary, the reason is that the property is subject to an FS.
No matter what, upon the death of the first heir, this right of the first heir who is a fiduciary is
not transmissible, but it will go directly to the fidicoumisary Or the second heir. So even if the 20
year period has not lapsed, upon the death of A, A must or the estate of A, this particular
property subject of the institution to the fidicoumisary and not to the heirs under Art. 867.

Effect of alienation of property subject to FS


If the property is alienated such as by deed of sale by the first heir in favor to the third person.
The effect is that, upon the death of the first heir, the buyer is obliged to deliver the property to the
second heir, irregardless of the good faith or the bad faith of the buyer, that is the general rule.
Which means to say that the deed of sale or the sale that was entered into by the first heir with
the third party is not void per se. It is subject, it is valid but subject to the condition that at the
time of the first heir's death, this property must be delivered to the fidicoumisary. It doesnt
matter however, whether the third party knows or the buyer is in good faith or bad faith.
The reason is because,he acquired merely the rights of the first heir or fiduciary which is
merely that of a usufructuary.
Now in the case of Moralejo vs Makiano, alienation may be subject to FS, if the

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property is covered by a torrens titled, the second heir should cause the registration of
his right to the property to warn innocent buyer of the existence of such FS, otherwise
the second heir might lose the property in the hands of other subsequent transferies in
good faith.
The remedy here, which means to say that if the subject property, covered subject
of an FS is a land, real estate covered under torrens title. In this particular case,
wherein the land was registered by the father in the name of the father and the
second heir did not oppose during registration of the land. Not of a mere
opposition but in order to annotate his right of an FS to that parcel of land and he
failed to do so. Thus, the preference is now given to the buyer in good faith. Which
means the buyer did not know about the existence of FS.
Unless of course, this is called Sleeping on his rights. So therefore, unsa mn dy na,
the question woild then be, ikaw second heir maam unsa mn diay imong buhaton
para to protect the property. Imong father for example mangwaldas, and iya lang
kuanon ang property subject of an FS, unsa man imong protection.
If the property is covered under torrens title and the property is sold to a third
person or a buyer in good faith and for value, there are only two remedies that
the second heir can do.
He would go after the assurance fund, get it from the asurance fund of the
torrens title or
he must get reimbursement from the estate of the first heir.
Now supposing the subject matter of an FS, is a personal property, a car,
unya imong father gkuha na ang manibela, gkuha na ang airconditioning
unit, murag iya nang gdamage ang property. Unsa man imong mahimo ana
as a second heir mao nay question? You cannot go to LTO to annotate your
right as a fidicoumisary, there is none.
You can go to court, compel your father to put up a security or a bond
in order to protect your interest on the property, while property is still
in the possession of the first heir.

What then the effect of an invalid FS?


If the FS is invalid, the rule says, it does not affect the validity of the institution of heir. So the annulment
of an FS or a substitution for that matter does not prejudice the validity of the institution of the heir.
The effect would be, that the FS close is merely considered as not written, as provided therefore under
Art. 868.
So the first heir is no longer obliged preserve and transmit inheritance to the second heir if the FS is
invalidated.
Consequently, for a property subject of an FS forms part of his estate and upon his death, the first heir
will have to transmit his right to the property to his heirs. Why? Because the FS is considered as not
written, its institution remains valid. The right of the first heir with respect to the property, like that of
a usufruct. But the rule says, the law says, you cannot alienate the property. It is very clear. But as to
regards the jurisprudential ruling in the case of Makiano, he was able to alienate the property. And
there was a question whether the buyer is in good faith or bad faith, basta ang property is in the
coverage of torrens system.
Now under Art. 870, as a general rule, the disposition of the testator declaring all or part of the estate
inalienable is void.
The exception to this is when there is FS under Art. 867. Ngano man? Niingon man ang FS, ang first heir
in possession of property and disposition will not go beyond 20 year period. Which means to say that he
can still possess the property even beyond the 20 year period because after all it will go to the
fidicoumisary and not to third person.
Furthermore, this prohibition as to regards to 20 year period, inalienability of a property does not

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apply to the legitime of the compulsory heir. It is only applicable to voluntary share in the free
portion. Why?
Because of the provision which says that "no one can impose a burden, conditions, or
impositions on the legitime of compulsory heirs".
Inalienability not exceeding 20 year period may be acceptable prohibited to alienate with
20 year peiod is only applicable to a share in a free portion and not to the legitime of the
compulsory heirs.
Exception: there is a prohibition to divide. The prohibition to divide is different from
the prohibition to alienate. The prohibition to divide may be applicable to the legitime
of the compulsory heirs but it should not exceed the 20 year period.
The prohibition to divide may be imposed upon the legitime of compulsory heirs
but not exceeding 20 year period.The prohibition to alienate should not exceed the
20 year period but could only be applicable only to the share in the free portion
and not to the legitime.

Just have to remember the substitute will only inherit in a simple substitution, in simple substitution the
substitute will only inherit in the presence of 5 preconditions, that in an FS, they will inherit both at the same
time of the testator at the moment of his death but both must be living or alive at the testator's death and
should be one degree apart from each other.

Example on the kind of questions to be asked:


T institutes A as first heir and B as second heir. Now A is the first son of T, while B is the second son of T.
Now, T died 2000, A died 2001, B died 2002. A has a son, A1 and B has a son B1.
1. If this is simple substitution, can substitute B inherit the property upon the death of A?
Reason.
2. If this an FS, can B, a substitute, inherit the property upon the death of T? Reason.

Sample Questions:
2012 BAR Questions for Succession
Atty. BUKO, a Filipino, executed a will while he was in Spain. The attestation clause of the said will does not
contain Buko's signature. It is valid under Spanish law. At its probate in Manila, it is being opposed on the
ground that the attestation clause does not contain BUKO's signature. Is the opposition correct? Choose the
best answer.
a) Yes, because it is a fatal defect.
b) Yes, the will is not valid under Philippine law.
c) No, attestation clause is not an act of the testator.
d) No, the governing law is Spanish law.
Ramon, a Filipino, executed a will in Manila, where he left his house and lot located in BF Homes Paranaque
in favor of his Filipino son, Ramgen. Ramon's other children RJ and Ramona, both Turkish are disputing the
bequest to Ramgen. They plotted to kill Ramgen. Ramon learned of the plot, so he tore his will in two pieces
out of anger. Which statement is most accurate?
a) The mere act of Ramon Sr. is immaterial because the will is still readable.
b) The mere act of tearing the will amounts to revocation.
c) The tearing of the will may amount to revocation if coupled with intent of revoking it.
d) The act of tearing the will is material.
If a will is executed by a testator who was born a Filipino citizen but became a naturalized Japanese citizen at
the time of his death, what law will govern its testamentary provisions if the will is executed in China and the
property being disposed is located in Indonesia?
a) Chinese law
b) Philippine law
c) Indonesian law
d) Japanese law

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A Japanese national and a Filipino national entered into a contract for services in Thailand. The services
will be rendered in Singapore. In case of breach, what law will govern?
a) Thailand law
b) Philippine law
c) Singapore law
d) Japanese law
Pedro (Filipino) and his wife Jane (American) executed a joint will in Canada, where such joint will is
valid. In case the joint will is probated in Japan, what law will govern the formalities of the joint will?
a) American law
b) Philippine law
c) Canadian law
d) Japanese law
A French national revokes his will in Japan where he is domiciled. He then changed his domicile to the
Philippines where he died. The revocation of his will in Japan is valid under Japanese law but invalid
under Philippine law. The affected heir is a Malaysian national residing in the Philippines. What law will
apply?
a) Japanese law
b) Philippine law
c) French law
d) Malaysian law
The will of a Filipino executed in a foreign country--a) cannot be probated in the Philippines;
b) may be probated in the Philippines provided that properties in the estate are located in the
Philippines;
c) cannot be probated before the death of the testator;
d) may be probated in the Philippines provided it was executed in accordance with the laws of the
place where the will was executed.
JURADO 2011 CIVIL LAW REVIEWER
X, a Spanish Citizen but a resident in San Francisco, California, executed a will in Tokyo, Japan. May such
will be probated in the Philippines and his estate in this country be distributed in conformity with the
provisions of the will?
ANSWER: YES, the will may be probated in the Philippines and his estate in this country be
distributed in conformity with the provisions of the will, provided that said will was executed in
accordance with the formalities prescribed by any of the ff. laws:
1. Law of the place in which X resides
2. Law of his own country
3. Law of the Philippines
4. Law of the place where the will was made

Mr. Reyes executed a will which is completely valid as to form. A week later, however, he executed
another will which expressly revoked his first will, following which he tore his first will. Upon the death
of Mr. Reyes, his second will was presented for probate by his heirs, but was denied probate due to
formal defects. Assuming that a copy of the first will is available, may it now be admitted to probate and
given effect?
ANSWER: YES, Doctrine of Dependent Relative Revocation.
When the testator tore the first will, he was under the mistaken belief that the second was perfectly
valid and he would not have destroyed the first will had he known that second will is not valid. The
revocation by destruction is therefore dependent on the validity of the second will. Since it turned
out that the second will was invalid, the tearing of the first will did not produce the effect of
revocation.

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X died in 1970, survived by his 2 legitimate children, A and B, and by his 3 grandchildren; D, E, F, the
legitimate children of C, a legitimate child of X who predeceased him. In his will, he instituted A, B, the
children of C, and a friend M as heirs without designating their shares. The residue of his estate is P
180,000. How shall the distribution be made?
ANSWER: Satisfy the legitime of the compulsory heirs then the free portion in equal parts (no
designation, so division in equal parts) so:
A
P 30,000 as compulsory heir
P 15,000 as voluntary heir
B
P 30,000 as compulsory heir
P 15,000 as voluntary heir
D
P 10,000 as right of representation
P 15,000 as voluntary heir
E
P 10,000 as right of representation
P 15,000 as voluntary heir
F
P 10,000 as right of representation
P 15,000 as voluntary heir
M
P 15,000 as voluntary heir

A instituted B (his son) and his brothers C and D as his heirs to an estate of P 600,000. Distribute the
estate.
ANSWER: Satisfy the legitime of the compulsory heir then the free portion in equal parts (no
designation, so division in equal parts) so:
B
P 300,000 as compulsory heir
P 100,000 as voluntary heir
C
P 100,000 as voluntary heir
D
P 100,000 as voluntary heir

A died with a will in 1970. In the will, he instituted his legitimate son, B, as sole heir, omitting N, an
acknowledged natural son, completely. In 1960, however, A had donated to the latter a parcel of land
worth P 20,000. Is there preterition? What is the remedy of N?
ANSWER: There is no preterition in this case. N is a compulsory heir in the direct line, yet he
had received a donation inter vivos of P 20,000 from the testator. In order that there will be
preterition as contemplated under Art 854, it is indispensable that the omission of the heir
should be total and complete in such a way that he has not received anything from the
testator by any title or whatsoever. The omitted heirs must be totally deprived impliedly of
his legitime. In this case, there is no total deprivation.
If there is an impairment of his legitime, his remedy is found in Art 906. He can demand for
its completion.

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