SUCCESSION

SUCCESSION
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.
(Art. 774)
Kinds:
1. Testamentary or Testacy (by will);
2. Legal or intestacy (by operation of law based on
the decedents presumed will);
3. Mixed (Partly Testamentary and Legal); and
4. Partition inter vivos (to a certain degree).
Elements:
1. DECEDENT (subjective element)
2. SUCCESSORS (subjective element)
a. Heirs - those who are called to the whole or to
an aliquot portion of the inheritance either by
will or by operation of law
1) Voluntary those instituted by the testator
in his will, to succeed to the inheritance or
the portion thereof of which the testator
can freely dispose.
2) Compulsory or Forced those who succeed
by force of law to some portion of the
inheritance, in an amount predetermined
by law, known as the legitime.
3) Legal or Intestate those who succeed to
the estate of the decedent who dies
without a valid will, or to the portion of
such estate not disposed of by will.
b. Devisees or legatees - persons to whom gifts of
real or personal property are respectively
given by virtue of a will
NOTE:
The distinctions between heirs and
devisees/legatees are significant in these cases:
1. Preterition (pretermission)
2. Imperfect disinheritance
3. After-acquired properties
4. Acceptance or non-repudiation of the
successional rights.
3. DEATH OF THE DECEDENT (casual element)
Moment when rights to succeed are transmitted
(Art 777)
However, a person may be presumed dead for
the purpose of opening his succession (see rules on
presumptive death). In this case, succession is only

of provisional character because there is always the

chance that the absentee may still be alive.
4. Inheritance (objective element);
NOTE: Whatever may be the time when actual
transmission takes place, succession takes place in any
event at the moment of the decedents death. (Lorenzo
vs. Posadas 64 Phil 353)
SUCCESSION
Refers to the legal
mode by which
inheritance
is
transmitted to the
persons entitled
to it

INHERITANCE
Refers
to
the
universality
or
entirety of the
property,
rights
and obligations of
a person who died

Inheritance includes:
1. PROPERTY, RIGHTS
AND
OBLIGATIONS
NOT
EXTINGUISHED BY DEATH
General rules on rights and obligations
extinguished by his death
a) Rights which are purely personal are by their
nature and purpose intransmissible for they are
extinguished by death (e.g. those relating to
civil personality, family rights, discharge of
office).
b) Rights which are patrimonial or relating to
property are generally part of inheritance as
they are not extinguished by death.
c) Rights of obligations are by nature transmissible
and may constitute part of inheritance both with
respect to the rights of the creditor and as
regards to the obligations of the debtor.
2. ALL WHICH HAVE ACCRUED THERETO SINCE THE
OPENING OF SUCCESSION (Article 781 Civil Code)

I. TESTAMENTARY SUCCESSION
A. CONCEPT
WILL - an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain
degree the disposition of his estate to take effect after
his death (Art. 783)
NOTE: Thus, a document that does not purport to
dispose of ones estate either by the institution of heirs
or designation of devisees/legatees or, indirectly, by
effecting a disinheritance, is not to be governed by the
law on testamentary succession but by some other
applicable laws.
Kinds of Wills:

1. Notarial or ordinary
2. Holographic
Characteristics of a Will:
1. UNILATERAL
2. STRICTLY PERSONAL ACT - The disposition of
property is solely dependent upon the testator.
NOTE: The following acts MAY NOT be left to the
discretion of a third person: (Article 785, 787 Civil
Code)
duration or efficacy of the designation of heirs,
devisees or legatees;
determination of the portions which they are to take,
when referred to by name; and
determination of whether or not the testamentary
disposition is to be operative.

8.

NOTE: However, the following acts MAY be entrusted

to a third person: (Article 786 Civil Code)
a. distribution of specific property or sums of
money that he may leave in general to specified
classes or causes; and
b. designation of the persons, institutions or
establishments to which such property or sums are
to be given or applied.
3. FREE AND VOLUNTARY ACT Any vice affecting the
testamentary freedom can cause the disallowance of
the will.
4. FORMAL AND SOLEMN ACT The formalities are
essential for the validity of the will.
5. ACT MORTIS CAUSA
6. AMBULATORY AND REVOCABLE DURING THE
TESTATORS LIFETIME
7. INDIVIDUAL ACT Two or more persons cannot make
a single joint will, either for their reciprocal benefit or
for another person. However, separate or individually
executed wills, although containing reciprocal
provisions (mutual wills), are not prohibited, subject
to the rule on disposicion captatoria.
DISPOSITION OF PROPERTY
B. INTERPRETATION OF WILLS (ARTS. 788-792)
The testators intent (animus testandi), as well as
giving effect to such intent, is primordial. It is
sometimes said that the supreme law in succession is
the intent of the testator. All rules of construction are
designed to ascertain and give effect to that intention.
It is only when the intention of the testator is contrary
to law, morals, or public policy that it cannot be given
effect.
In case of doubt, that interpretation by which the
disposition is to be operative shall be preferred. That

construction is to be adopted which will sustain and

uphold the will in all its parts, if it can be done
consistently with the established rules of law.

Kinds of Ambiguities: (Article 786)

1. LATENT OR INTRINSIC AMBIGUITIES that which does
not appear on the face of the will and is discovered only
by extrinsic evidence.
2. PATENT OR EXTRINSIC AMBIGUITIES that which
appears on the face of the will itself
NOTES:
There is no distinction between patent and latent
ambiguities, in so far as the admissibility of parol or
extrinsic evidence to aid testamentary disposition is
concerned.
Extrinsic evidence to explain ambiguities in a will
cannot include oral declarations of the testator as to
his intention.
The validity of a will as to its form depends upon the
observance of law in force at the time it is made.
(Art. 795).
If a law different from the law in force at the time
of the execution of the will goes into effect before
or after the death of the testator, such a law shall
not affect the validity of the will, provided that such
will was duly executed In accordance with the
formalities prescribed by law in force at the time it
was made.
AFTER-ACQUIRED PROPERTY (Art. 793)
Gen. Rule: Property acquired during the period between
the execution of the will and the death of the testator is
NOT included among the property disposed of.
Exception: When a contrary intention expressly appears
in the will
NOTE: This rule applies only to legacies and devises and
not to institution of heirs.
C. TESTAMENTARY CAPACITY
refers to the ability as well as the power to make a
will.
- must be present at the time of the execution of the
will.

Requisites:
1. At least 18 years of age
2. Of sound mind, i.e., the ability to know:
a. the nature of the estate to be disposed of;
b. the proper objects of his bounty; and

c. the character of the testamentary act.

NOTE: The law presumes that the testator is of sound
mind, UNLESS:
a. he, one month or less, before making his will, was
publicly known to be insane; or
b. was under guardianship at the time of making his
will. (Torres and Lopez de Bueno vs. Lopez 48 Phil
772)
In both cases, the burden of proving sanity is cast
upon proponents of the will.
Effect of Certain Infirmities:
1. mere senility or infirmity of old age does not
necessarily imply that a person lacks testamentary
capacity;
2. physical infirmity or disease is not inconsistent
with testamentary capacity;
3. persons suffering from idiocy (those congenitally
deficient in intellect), imbecility (those who are
mentally deficient as a result of disease), and
senile dementia (peculiar decay of the mental
faculties whereby the person afflicted is reduced
to second childhood) do not possess the necessary
mental capacity to make a will;
4. an insane delusion which will render one incapable
of making a will may be defined as a belief in
things which do not exist, and which no rational
mind would believe to exist;
5. if the insane delusion touches to subject matter of
the will, testamentary disposition is void.
6. a deaf-mute and blind person can make a will (i.e.
Art. 807-808). A blind man with a sound and
disposing mind can make a holographic will.
7. an intoxicated person or person under the
influence of drugs may make a will as there is no
complete loss of understanding.
Exception: where the testator has used
intoxicating liquor or drugs excessively to such an
extent as to impair his mind, so that at the time
the will is executed, he does not know the extent
and value of his property, or the names of persons
who are the natural objects of his bounty, the
instrument thus executed will be denied probate
for lack of testamentary capacity.
D. FORMALITIES OF WILLS
(EXTRINSIC VALIDITY)
COMMON FORMALITIES
1. Every will must be in writing; and
1. Executed in a language or dialect known to the
testator.

SPECIAL FORMALITIES
I. NOTARIAL OR ORDINARY WILL
a. SUBSCRIPTION made at the end thereof by the
testator himself or by the testator's name written by
some other person in his presence and by his express
direction;
Subscription refers to the manual act of
testator and also of his instrumental witnesses
of affixing their signature to the instrument.
b. ATTESTATION AND SUBSCRIPTION - (evidenced by an
attestation clause) by 3 or more credible
witnesses in the presence of the testator and of one
another;
Attestation consists in the act of witnesses of
witnessing the execution of the will in order to
see and take note mentally that such will has
been executed in accordance with requirements
prescribed by law.
ATTESTATION

SUBSCRIPTION

1. an act of the
senses
2. mental act
3. purpose is to
render
available proof
during probate
of will

1. an act of the
hand
2. mechanical act
3. purpose is
identification

c. MARGINAL SIGNATURES affixed by the testator or

the person requested by him to write his name and
the instrumental witnesses of the will on each and
every page thereof, except the last, on the left
margin;
Exceptions to the rule that all of the pages of the will
shall have to be signed on the left margin by the
testator and witnesses::
(1) in the last page, when the will consists of two or
more pages;
(2) when the will consists of only one page;
(3) when the will consists of two pages, the first of
which contains all the testamentary dispositions and
is signed at the bottom by the testator and the
witnesses and the second contains only the
attestation clause duly signed at the bottom by the
witnesses.

The inadvertent failure of one witness to affix his

signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of
signing, is not per se sufficient to justify denial of
probate (Icasiano vs. Icasiano II SCRA 422).

d. PAGE NUMBERINGS Written correlatively in letters

placed on the upper part of each page;

NOTE: This is not necessary when all of the dispositive

parts of a will are written on one sheet only.

3. that the witnesses witnessed and signed the will

and all the pages thereof in the presence of the
testator and of one another.

e. ACKNOWLEDGMENT Done before a notary public

by the testator and the instrumental witnesses.
NOTE: The notary public before whom the will was
acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge
before himself his having signed the will. If the third
witness were the notary public himself, he would have
to avow, assent, or admit his having signed the will in
front of himself. To allow such would have the effect
of having only two attesting witnesses to the will
which would be in contravention of Arts. 805 and 806.
(Cruz vs. Villasor 54 SCRA 31)
MANNER OF SIGNING:
The use of any signature, marks or design intended
by the testator to authenticate renders the will
sufficiently signed by the testator.
A signature by mark will be sufficient even if at
the time of placing it, the testator knew how to
write and is able to do so.
It is sufficiently signed by writing his initials, or his
first name, or he may use even an assumed name.
A complete signature is not essential to the
validity of a will, provided the part of the name
written was affixed to the instrument with intent
to execute it as a will.
ATTESTATION CLAUSE
- memorandum or record of facts wherein the
witnesses certify that the will has been executed
before them, and that it has been executed in
accordance with the formalities prescribed by law.
Absence of this clause will render the will a nullity.
It must state the following ESSENTIAL FACTS:
1. the number of pages used upon which the will
is written;
HOWEVER, even if number of pages is omitted in the
AC BUT if there is an acknowledgment clause which
states the number of pages or the will itself mentioned
such number of pages, it may still be considered valid
applying the Liberal Interpretation of the law.
(Tabuada vs. Rosal)
2. the fact that the testator signed the will and
every page thereof, or caused some other
person to write his name, under his express

direction, in the presence of the instrumental

witnesses;
When the testator expressly caused another to sign
the formers name, this fact must be recited in the
attestation clause. Otherwise, the will is fatally
defective. (Garcia vs. Lacuesta 90 Phil 489)

TEST OF PRESENCE: Not whether they actually saw

each other sign, but whether they might have seen
each other sign had they chosen to do so considering
their mental and physical condition and position
with relation to each other at the moment of
inscription of each signature. (Jaboneta vs. Gustilo)

In the case of an ordinary or attested will, its

attestation clause need not be written in a language
or dialect known to the testator since it does not
form part of the testamentary disposition.
The language used in the attestation clause likewise
need not even be known to the attesting witnesses.
Art. 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said
witnesses. (Caneda vs. CA 222 SCRA 781)

Effects of defects or imperfections in the Attestation

Clause:
If the defect of the attestation clause goes into the
very essence of the clause itself or consists in the
omission of one, some, or all of the essential facts,
and such omission cannot be cured by an
examination of the will itself, the defect is
substantial in character, as a consequence of which
the will is invalidated.

However, In the absence of bad faith, forgery, 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 Art. 805 (formal requirements). This is known
as the DOCTRINE OF LIBERAL INTERPRETATION (Art.
809)

Purposes of requiring witness to attest and to

subscribe to a will:
1. identification of the instrument
2. protection of the testator from fraud and deception
3. the ascertainment of the testamentary capacity of
the testator.

NOTE: Certain points to consider (Tolentino)

1. Mere knowledge by testator that another is
signing, and acquiescing in it, there being no
express direction, is NOT sufficient.
2. Not required that the name of the person who
writes the testators name should also appear on
the will; enough that testators name is written.
3. If the required numbers of attesting witness are
competent, the fact that an additional witness,
who was incompetent also attested to the will,
cannot impair the validity.
4. Immaterial in what order the acts are performed
provided the signature or acknowledgment by the
testator and the attestation of the witnesses be
accomplished in one occasion, and as part of one
transaction.
5. The law refers to page and not to sheet or leaf or
folio, so every page used in the will should be
signed on the left margin.
6. An attestation clause need be signed ONLY by the
witnesses and not by the testator as it is a
declaration made by the witnesses.
7. date of will:
a. ordinary will: not an essential part;
b. holographic will: an essential part.
8. Failure or error to state the place of execution
will not invalidate the will.
9. Signing of a will by the testator and witnesses and
acknowledgment before a notary public, need not
be a single act.
10. Testamentary capacity must also exist at the
time of acknowledgment.
ADDITIONAL REQUIREMENTS FOR SPECIAL CASES
1. Deaf or deaf-mute testator:
a) personal reading of the will, if able to do so;
OR
b) if not possible, designation of 2 persons to
read the will and communicate to him, in
some practicable manner, the contents
thereof. (Article 807)
2. Blind testator:

Double-reading
requirement:
a. first, by one of the subscribing witnesses, AND
b. second, by the notary public before whom the
will is acknowledged. (Article 808)
Art. 808 applies not only to blind testators but also
to those who, for one reason or another are
incapable of reading their wills (e.g. poor,
defective or blurred vision).

In a case where the testator did not read the final

draft of the will, but the lawyer who drafted the

document, read the same aloud in the presence of

the testator, 3 witnesses, and notary public, the
Court held that the formal imperfections should be
brushed aside when the spirit behind the law was
served though the letter was not. (Alvarado vs.
Gaviola 226 SCRA 347)
WITNESS TO NOTARIAL WILLS
(ARTS. 820 & 821)
Requirements:
1. of sound mind;
2. able to read and write;
3. not blind, deaf or dumb;
4. at least 18 years of age;
5. domiciled in the Philippines;
6. has not been convicted of falsification of a
document, perjury, or false testimony
NOTE: A witness need not know the contents of the
will, and need not be shown to have had a good standing
in the community where he lives. Also, the
acknowledging notary public cannot be one of the 3
minimum numbers of witnesses.
Interested witness
A witness to a will who is incapacitated from
succeeding from the testator by reason of a
devise/legacy or other testamentary disposition
therein in his favor, or in favor of his spouse, parent,
or child. However, his competence as a witness
subsists.
2. HOLOGRAPHIC WILL (Article 810)
a. entirely written by the hand of the testator;
b. entirely dated by the hand of the testator; and
c. entirely signed by the hand of the testator.
NOTE: The law exacts literal compliance with these
requirements. HENCE, THE DOCTRINE OF LIBERAL
INTERPRETATION CANNOT BE APPLIED.

Nevertheless, the Court held in a case that as a

general rule, the date in a holographic will should
include the day, month, and year of its execution.
However, when there is no appearance of fraud, bad
faith, undue influence and pressure and the
authenticity of the will is established and the only
issue is whether or not the date FEB./61
appearing on the will is a valid compliance with Art.
810, probate of the holographic will should be
allowed under the principle of substantial
compliance. (In the matter of Intestate Estate of
Andres de Jesus and Bibiana Roxas de Jesus, 134
SCRA 245)

Rule in case of insertion, cancellation, erasure or

alteration:
Testator must authenticate the same by his FULL
SIGNATURE. (Article 814)
NOTE: In the case of Kalaw vs. Relova (134 SCRA 241),
the holographic will in dispute had only one substantial
provision, which was altered by substituting the
original heir with another, but which alteration did not
carry the requisite of full authentication by the full
signature of the testator, the effect must be that the
entire will is voided or revoked for the simple reason
that nothing remains in the will after that which could
remain valid.
Effects of words written by another and inserted in
the words written by the testator:
a. If the insertion was made after the execution of
the will, but without the consent of the testator,
such insertion is considered as not written,
because the validity of the will cannot be defeated
by the malice or caprice of third person.
b. If the insertion after the execution of the will was
with the consent of the testator, the will remains
valid but the insertion is void.
c. If the insertion after the execution is validated by
the testator by his signature thereon, then the
insertion becomes part of the will, and the entire
will becomes void, because of failure to comply
with the requirement that it must be wholly
written by the testator.
d. If the insertion made by a third person is made
contemporaneous to the execution of the will,
then the will is void because it is not written
entirely by the testator.
Probate of Holographic Will
1. If UNCONTESTED, requires that at least 1 witness
who knows the handwriting and signature of the
testator explicitly declare that the will and
signature are in the handwriting of the testator; if
no witness, expert testimony may be resorted to.
2. If CONTESTED, requires at least 3 of such credible
witnesses, if none expert witness.
NOTE: Where the testator himself petitions for the
probate of his holographic will and no contest is file,
the fact that he affirms that the holographic will and
the signature are in his own handwriting, shall be
sufficient evidence thereof. If the holographic will is
contested, the burden of disproving the genuineness
and due execution thereof shall be on the contestant.

A photostatic or xerox copy of a lost or destroyed

holographic will may be admitted because the
authenticity of the handwriting of the deceased can
be determined by the probate court, as comparison
can be made with the standard writings of the
testator. (Rodelas vs. Aranza, 119 SCRA 16)

GOVERNING LAW ON FORMALITIES

1. As to time:
The validity of a will as to its form depends upon the
observance of the law in force at the time it is
made. Its intrinsic validity, however, is judged at
the time of the decedents death by the law of his
nationality.
2. As to place:
a. Filipino testator executing a will in the Philippines:
Philippine law
b. Filipino testator executing a will outside of the
Philippines: either
1) The law of the country in which it is executed;
or
2) The law of the Philippines.
c. Alien testator executing a will in the Philippines:
either
1) The law of the Philippines; or
2) The law of the country of which he is a citizen
or subject.
d. Alien testator executing a will outside of the
Philippines: either
1) The law of the place where it is executed; or
2) The law of the place in which he resides; or
3) The law of his country; or
4) The law of the Philippines.
Aspects of the will governed by National Law of the
Decedent (Article 1039 and Article 16 Civil Code)
a. Order of succession
b. Amount of successional rights
c. Intrinsic validity
d. Capacity to succeed
Joint will a single testamentary instrument which
contains the wills of two or more persons, jointly
executed by them, either for their reciprocal benefit or
for the benefit of a third person
--will of 2 or more persons is made in the same
instrument and is jointly signed by them
Mutual wills wills executed pursuant to an agreement
between two or more persons to dispose of their
property in a particular manner, each in consideration of
the other

--separate wills of 2 persons, which are reciprocal in

their provisions.
Reciprocal wills- wills in which the testators name
each other as beneficiaries under similar testamentary
plans
NOTE: A will that is both joint and mutual is one
executed jointly by two or more persons, the
provisions of which are reciprocal and which shows on
its face that the devises are made in consideration of
the other. Such is prohibited.
Reasons:
1. will is purely personal and unilateral act
2. contrary to the revocable character of a will
3. may expose the testator to undue influence, and
may even induce one of the testators to kill the
other.
NOTE: Joint wills executed by Filipinos in a foreign
country shall not be valid in the Philippines, even
though authorized by the foreign country in which they
may have been executed (Article 819 Civil Code).
This prohibition is applicable only in joint
wills executed by Filipinos in a foreign country; it does
NOT APPLY to joint wills executed by aliens.

E. CODICIL AND INCORPORATION BY REFERENCE

CODICIL
A supplement or addition to a will, made after the
execution of a will and annexed to be taken as a
part thereof, by which any disposition made in the
original will is explained, added to, or altered.
(Article 825)
NOTE: To be effective, it must be executed as in the
case of a will. Its execution has the effect of
republishing the will as modified.
INCORPORATION BY REFERENCE
(ART 827)
Contemplates only lists of properties, books of
accounts, and inventories.
Provisions which are in the nature of testamentary
dispositions must be contained in the will itself.
Requisites for a valid incorporation by reference:
(ART 827)
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;
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.
F. REVOCATION
DISPOSITIONS

OF

WILLS

AND

TESTAMENTARY

REVOCATION
An act of the mind, terminating the potential
capacity of the will to operate at the death of the
testator, manifested by some outward or visible act
or sign, symbolic thereof. Such right to revoke a will
cannot be waived or restricted.
LAWS WHICH GOVERN REVOCATION (ART 829)
1. If the revocation takes place in the Philippines,
whether the testator is domiciled in the Philippines
or in some other country, it is valid when it is in
accordance with the laws of the Philippines
2. If the revocation takes place outside the Philippines,
by a testator who is domiciled in the Philippines, it
is valid when it is in accordance with the laws of the
Philippines
3. Revocation done outside the Philippines, by a
testator who does not have his domicile in this
country, is valid when it is done according to the:
a. laws of the place where the will was made, or
b. laws of the place in which the testator had his
domicile at the time of revocation;
MODES OF REVOCATION (ART 830)
1. By implication of law:
a. legal separation revokes testamentary provisions
in favor of the offending spouse;
b. preterition revokes the institution of heir;
c. judicial action for recovery of debt revokes a
legacy of credit/remission of debt;
d. transformation,
alienation,
or
loss
of
bequeathed property revokes a legacy of such
property;
e. act of unworthiness by an heir, devisee/legatee
revokes testamentary provisions in his favor;
f. if both spouses of the subsequent marriage
acted in bad faith, said marriage shall be void
ab initio and testamentary dispositions made by
one in favor of the other are revoked by
operation of law (Art. 44, Family Code); and
g. void ab initio or annulled marriages revoke
testamentary dispositions made by one spouse in
favor of the other (Art. 50, Family Code).
2. By some will, codicil, or other writing, executed as
provided in case of wills, which may either be:
a. Express when there is a revocatory clause
expressly revoking the previous will or a part
thereof

b. Implied when the provisions thereof are

partially or entirely inconsistent with those of
the previous will
NOTE: While express revocation may be effected by a
subsequent will, or a codicil, or a nontestamentary
writing executed as provided in case of wills, implied
revocation may be effected only by either a
subsequent will, or a codicil.
3. By burning, tearing, cancelling, or obliterating the
will.
Requisites:
a. testamentary capacity at the time of
performing the act of destruction;
b. intent to revoke (animus revocandi);
c. actual physical act of destruction;
d. completion of the subjective phase; and
e. performed by the testator himself or by some
other person in his presence and express
direction
(THE LIST IS EXCLUSIVE.)
NOTE: The act of revocation is a personal act of the
testator. He cannot delegate to an agent the authority
to do the act for him. Another person, however, may
be selected by him as an instrument and directed to
do the revocatory acts in his presence. A destruction
not accomplished in the testators presence is an
ineffective revocation of the will.
DOCTRINE OF PRESUMED REVOCATION
Whenever it is established that the testator had in
his possession or had ready access to the will, but
upon his death it cannot be found or located, the
presumption arises that it must have been revoked
by him by an overt act.
Where it is shown that the will was in custody of
the testator after its execution, and subsequently,
it was found among the testators effects after his
death in such a state of mutilation, cancellation or
obliteration as represents a sufficient act of
revocation, it will be presumed in the absence of
evidence to the contrary, that such act was
performed by the testator with the intention of
revoking the will.
DOCTRINE OF DEPENDENT RELATIVE REVOCATION
(ART 832)
A revocation subject to a condition does not
revoke a will unless and until the condition occurs.
Thus, where a testator revokes a will with the
proven intention that he would execute another
will, his failure to validly make a latter will would
permit the allowance of the earlier will.

Where the act of destruction is connected with the

making of another will so as fairly to raise the
inference that the testator meant the revocation of
the old to depend upon the efficacy of the new
disposition intended to be substituted, the
revocation will be conditional and dependent upon
the efficacy of the new disposition; and if for any
reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and
the original will remains in full force (Vda. De Molo
vs. Molo 90 Phil 37).

Revocation by mistake
A revocation of a will based on a false cause or an
illegal cause is null and void. Thus, where a testator
by a codicil or later will, expressly grounding such
revocation on the assumption of fact which turns out
to be false, as where it is stated that the
legatees/devisees named therein are dead, when in
fact, they are living, the revocation does not take
effect.
G. REPUBLICATION AND REVIVAL OF WILLS
REPUBLICATION
The act of the testator whereby he reproduces in a
subsequent will (express) the dispositions contained
in a previous will which is void as to its form, or he
executes a codicil (constructive) to his will.
Its purpose is to cure the will of its formal defects.
NOTES:
To republish a will void as to its form, all the
dispositions must be reproduced or copied in the
new or subsequent will;
To republish a will valid as to its form but already
revoked the execution of a codicil which makes
reference to the revoked will is sufficient.
Effects of Republication by virtue of a Codicil:
1. Codicil revives the previous will
2. The old will is republished as of the date of the
codicil makes it speak, as it were, from the new
and later date.
3. A will republished by a codicil is governed by a
statute enacted to the execution of the will, but
which was operative when the codicil was executed.
REPUBLICATION

REVIVAL

1. Takes place by an
act of the testator

1. Takes place by
operation of law.

2.
Corrects
extrinsic
and
intrinsic defects.

2.
Restores
revoked will

REVIVAL
The restoration to validity of a will previously
revoked by operation of law (implied revocation).
PRINCIPLE OF INSTANTER
The express revocation of the first will renders it
void because the revocatory clause of the second
will, not being testamentary in character, operates
to revoke the previous will instantly upon the
execution of the will containing it.
NOTE: In implied revocation, the first will is not
instantly revoked by the second will because the
inconsistent testamentary dispositions of the latter do
not take effect immediately but only after the death
of the testator.
H. ALLOWANCE AND DISALLOWANCE OF WILLS

In Nepomuceno vs CA (139 SCRA 207), the Court

ruled that the court can inquire as to the intrinsic
validity of the will because there was an express
statement that the beneficiary was a mistress.
NOTES:
Criminal action will not lie against the forger of a
will which had been duly admitted to probate by a
court of competent jurisdiction. (Mercado vs. Santos
66 Phil. 215)

The fact that the will has been allowed without

opposition and the order allowing the same has
become final and executory is not a bar to the
presentation of a codicil, provided it complies with
all the formalities for executing a will. It is not
necessary that the will and codicil be probated
together as the codicil may be concealed by an
interested party. They may be probated one after
the other. (Macam vs. Gatmaitan 60 Phil 358)

When a will is declared void because it has not been

executed in accordance with the formalities
required by law, but one of the intestate heirs, after
the settlement of the debts of the deceased, pays a
legacy in compliance with a clause in the defective
will, the payment is effective and irrevocable
(Article 1430, NCC; Natural Obligations).

PROBATE
A special proceeding mandatorily required for the
purpose of establishing the validity of a will.
The statute of limitations is not applicable to
probate of wills.
Questions determinable by the probate court: (ICE)
1. identity of the will;
2. testamentary capacity of the testator at the time
of the execution of the will; and
3. due execution of the will.
GENERAL RULE: In probate proceeding, the courts
area of inquiry is limited to an examination of, and
resolution on the extrinsic validity if the will, the due
execution thereof, the testatrixs testamentary
capacity and the compliance with the requisites or
solemnities prescribed by law. The probate court
cannot inquire into the intrinsic validity of
testamentary provisions.
EXCEPTION: Practical considerations, e.g. when the
will is intrinsically void on its face.

In Nuguid vs Nuguid (17 SCRA 449), the Supreme

Court held that, if the case were to be remanded
for probate of the will, nothing will be gained. On
the contrary, this litigation would be protracted.
And for aught that appears in the record, in the
event of probate or if the court rejects the will,
probability exists that the case will come up once
again before us on the same issue of the intrinsic
validity or nullity of the will. RESULT: waste of
time, effort, expense, plus added anxiety.

Grounds for Disallowance of a Will (ART 839)

1. Formalities required by law have not been complied
with;
2. Testator was insane, or otherwise incapable of
making a will, at the time of its execution;
3. Will was executed through force or under duress, or
the influence of fear, or threats;
4. Will was procured by undue and improper pressure
and influence, on the part of the beneficiary or of
some other person;
5. Signature of the testator was procured by fraud;
6. Testator acted by mistake or did not intend that the
instrument he signed should be his will at the time
of affixing his signature thereto.
NOTE: GROUNDS ARE EXCLUSIVE.

Fair arguments, persuasion, appeal to emotions, and

entreaties which, without fraud or deceit or actual
coercion, compulsion or restraint do not constitute
undue influence sufficient to invalidate a will.
(Barreto vs. Reyes 98 Phil 996)
Burden is on the person challenging the will to show
that such influence was exerted at the time of its
execution.

To make a case of UNDUE INFLUENCE, the free

agency of the testator must be shown to have been
destroyed; but to establish a ground of contest
based on FRAUD, free agency of the testator need
not be shown to have been destroyed.
Allegations of fraud and undue influence are
mutually repugnant and exclude each other; their
joining as grounds for opposing probate shows
absence of definite evidence against the validity of
the will (Icasiano vs. Icasiano 11 SCRA 422)
REVOCATION

DISALLOWANCE

1. voluntary act of
the testator.

1. given by judicial
decree.

2. with or without
cause.

2. must always be
for a legal cause.

3. may be partial or
total.

3. always total
except: when the
ground of fraud or
influence
for
example
affects
only
certain
portions of the
will.

I. INSTITUTION OF HEIRS
(ARTS. 840-856)
INSTITUTION
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. (Art 840)
The proper test in order to determine the validity
of an institution of heir is the possibility of finally
ascertaining the identity of the instituted heir by
intrinsic or extrinsic evidence.
PRESUMPTIONS
1. Presumption of Equality Heirs instituted without
designation of shares shall inherit in equal parts.
This is limited only to the case where all of the
heirs are of the same class or juridical condition,
and where there are compulsory heirs among the
heirs instituted, it should be applied only to the
disposable free portion.
2. Presumption of Individuality When the testator
institutes some heirs individually and others
collectively, those collectively designated shall be
considered as individually instituted, unless it
clearly appears that the intention of the testator
was otherwise.

3. Presumption of Simultaneity when the testator

calls to the succession a person and his children,
they are all deemed to have been instituted
simultaneously and not successively.
INSTITUTION BASED ON A FALSE CAUSE (Article 850)
GENERAL RULE: The statement of a false cause for the
institution of an heir shall be considered as not written.
Reason: Generosity of the testator is the real cause
of the testamentary disposition.
EXCEPTION: If it appears from the face of the will that
the testator would not have made the institution had he
known the falsity of the cause.
Example: Where the person instituted is a total
stranger to the testator, it is obvious that the real
cause of the testamentary disposition is not the
generosity of the testator but the fact itself which
turned out to be false.
REQUISITES FOR THE ANNULMENT OF INSTITUTION OF
HEIRS:
1. cause of institution of heirs must be stated in will;
2. cause must be shown to be false;
3. it must appear from the face of the will that the
testator would not have made the institution had he
known the falsity of the cause.

Where the one-sentence will institutes the

petitioner as the sole, universal heir and preterits
the parents of the testatrix, and it contains no
specific legacies or bequests, such universal
institution of petitioner, by itself, is void. Intestate
succession ensues. (Nuguid vs. Nuguid, et al. 17
SCRA 449)

PRETERITION (ART. 854)

Omission in the testators will 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.
Requisites:
1. The heir omitted must be a compulsory heir in the
direct line;
2. The omission must be complete and total in
character; and
3. The compulsory heir omitted must survive the
testator.
There is no total omission when:
a. A devise/legacy has been given to the heir by
the testator
b. A donation inter vivos has been previously given
to the heir by the testator; or

c. Anything is left from the inheritance which the

heir may get by way of intestacy.
NOTE: In the above cases, the remedy of the heir
is completion of legitime under Art. 906, in case
the value of the property received is less than the
value of the legitime.
Effects of Preterition:
1. It annuls the institution of heir;
2. The devises and legacies are valid insofar as they
are not inofficious; and
3. If the omitted compulsory heir should die before
the testator, the institution shall be effectual,
without prejudice to the right of representation.
NOTE: In case of omission without preterition, the
rule in Art. 855 should be followed. The suggested
alternate phrasing of Dr. Tolentino to the said article
is: The share of the compulsory heir omitted in a will
must be first 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 heirs given to
them by will.

PRETERITION

DISINHERITANCE

1. deprivation of a
compulsory heir of
his legitime is tacit

1. deprivation of a
compulsory heir of
his
legitime
is
express.

2. may be voluntary
but
the
law
presumes that it is
involuntary

2.
voluntary.

always

3. law presumes
that there has been
merely an oversight
or mistake on the
part of the testator.

3. done with
legal cause.

4. omitted heir gets

not only his legitime
but also his share in
the free portion not
disposed of by way
of legacies/ devises.

4. if disinheritance
is
not
lawful,
compulsory heir is
merely restored to
his legitime.

Where the deceased left no descendants,

legitimate or illegitimate, but she left forced heirs
in the direct ascending lineher parents, and her
holographic will does not explicitly disinherit them
but simply omits them altogether, the case is one
of preterition of parents, not a case of ineffective
disinheritance. (Nuguid vs. Nuguid 17 SCRA 449)

NOTE: Preterition of the surviving spouse (SS) does not

entirely annul the institution of the heir since SS is not a
compulsory heir in the direct line. However, since Article
842 protects the legitime of the SS, the institution is
partially annulled by reducing the rights of the instituted
heir to the extent necessary to cover the legitime of SS.
(Tolentino)
EFFECT OF PREDECEASE
--an heir who dies before the testator shall transmit no
right to his own heirs (rule is absolute with respect to a
voluntary heir)
--what is transmitted to the representatives of
compulsory heir is his right to the legitime and not to
the free portion
EFFECT OF INCAPACITY
--A voluntary heir who is incapacitated to succeed from
testator shall transmit no right to his own heirs.
--compulsory heir may be represented, but only with
respect to his legitime
EFFECT OF REPUDIATION
--whether voluntary or compulsory, the heir who
repudiates his inheritance cannot transmit any right to
his own heirs.
J. SUBSTITUTION OF HEIRS
(ARTS 857-870)
SUBSTITUTION
The act by which the testator designates the person
or persons to take the place of the heir or heirs first
instituted (Tolentino). It may be considered as a
subsidiary and conditional institution.
Kinds:
1. Simple or Common (that which takes place when
the testator designates one or more persons to
substitute the heirs/s instituted in case such heir/s
should die before him, or should not wish, or should
be incapacitated to accept the inheritance)
2. Brief or Compendious: brief (there are two or more
persons designated by the testator to substitute for
only one heir), compendious (one heir is designated
to take the place of two or more heirs)
Instances when substitution takes place:
a. instituted heir predeceases the testator;
b. incapacity of the instituted heir to succeed from
the testator; and
c. repudiation of the inheritance.
Effect of substitution:

General rule: once the substitution has taken

place, the substitute shall not only take over the
share that would have passed to the instituted
heir, but he shall be subject to the same charges
and conditions imposed upon such instituted heir.
Exceptions:
(1) When the testator has expressly to the
contrary;
(2) When the charges or conditions are personally
applicable only to the heir instituted.
3. Fideicommissary
Requisites:
a. First heir (fiduciary) called to the succession.
b. An obligation clearly imposed upon such first heir
to preserve the property and to transmit it to the
second heir.
c. Second heir (fideicommissary) to whom the
property is transmitted by the first heir.
Without the obligation clearly imposing upon the
first heir the preservation of the property and its
transmission to the second heir, there is no
fideicommissary substitution (Rabadilla vs. CA 334
SCRA 522)
NOTE: Pending transmission of property, the fiduciary
is entitled to all the rights of a usufructuary, although
the fideicommissary is entitled to all the rights of a
naked owner.
Limitations:
a. Substitution must not go beyond one degree from
the heir originally instituted.
b. Degree means degree of relationship.
c. Fiduciary and fideicommissary must be living at
the time of the death of the testator.
d. Substitution must not burden the legitime of
compulsory heirs.
e. Substitution must be made expressly.
A fideicommissary substitution is void if the first
heir is not related in the 1st degree to the second
heir (Ramirez vs. Vda. De Ramirez 111 SCRA 704)
K.
CONDITIONAL,
MODAL
TESTAMENTARY
DISPOSITIONS, AND TESTAMENTARY DISPOSITIONS
WITH A TERM (ART 871-885)
GENERAL RULE: The institution of an heir may be
made 1) conditionally, 2) for a term, or 3) for a certain
purpose or cause (modal). Conditions, terms, and
modes however, are not presumed; they must be
clearly expressed in the will. The condition must fairly
appear from the language of the will. Otherwise, it is
not binding.

LIMITATIONS:
1. The testator cannot impose any charge, burden,
encumbrance, condition, or substitution whatsoever
upon the legitime of compulsory heirs.
2. Impossible conditions and those contrary to law or
good customs are presumed to have been imposed
erroneously or through oversight, thus, are
considered as not imposed.
3. An absolute condition not to contract a first
marriage is always void and will be considered as not
written.
4. An absolute condition not to contract a subsequent
marriage is generally void, unless imposed upon a
widow or widower by the deceased spouse or by the
latters ascendants or descendants. Even so,
however, the legitime of the surviving spouse cannot
be impaired.

An absolute condition not to contract marriage when

validly imposed is resolutory in character.
Consequently, if the testator institutes his wife as
heir subject to the condition that she will never
marry again, she immediately acquires a right to the
inheritance upon the death of testator, but if she
violates the condition by contracting a 2nd marriage,
she loses her right to said inheritance.

NOTE: However, the following relative conditions

regarding marriage have been considered as valid and
binding:
a. generic condition to contract marriage;
b. specific condition to contract marriage with a
determinate person; and
c. specific condition not to contract marriage with
a determinate person.
5. Any disposition made upon the condition that the
heir shall make some provisions in his will in favor of
the testator or of any other person shall be void
(disposicion captatoria).
6. Conditions imposed by the testator upon the heirs
shall be governed by the rules established for
conditional obligations in all matters not provided
for by the law on succession.
Kinds of Conditions
1. Potestative Condition depends exclusively upon
the will of the heir, devisee, or legatee, and must be
performed by him personally.
2. Causal Condition depends upon the will of the heir,
devisee, or legatee, but upon the will of a third
person.

3. Mixed depends jointly upon the will of the heir,

devisee, or legatee and upon chance and/or will of
a third person.

CHAPTER 1: GENERAL PROVISIONS

ELEMENTS OF SUCCESSION
1. Decedent
2. Successors
a.Heirs those who are called to the whole or to
an aliquot portion of the inheritance either by
will or by operation on law
b. Devisees or Legatees persons to whom gifts of real or
personal property are respectively given by virtue of a will.
3. Death of the Person However, a person may be
presumed dead for the purpose of opening his succession
(see rules on presumptive death). In this case, succession
is only of provisional character because there is always
the chance that the absentee may be alive.
4. Inheritance is the subject matter of Succession it
MODAL INSTITUTION (INSTITUCION SUB MODO)
includes:
Attachment by the testator to an institution of Property and transmissible rights and obligations
Existing at the time of his death
heir, or to a devise or legacy, of a statement of

AND
those
which have accrued thereto since the
the:
opening
of
succession.
a. object of the institution;
Fulfillment of Conditions:
1. Potestative Conditions must be fulfilled after the
death of the testator (except when it has already
been fulfilled and is of such nature that it cannot
be repeated);
2. Causal or mixed conditions may be fulfilled either
before or after such death, unless the testator
has provided otherwise.

b. application of the property left by testator; or

c. charge imposed by him.
1.
2.
3.
NOTES:
When in doubt as to whether there is a condition 4.
5.
6.or merely a mode, consider the same as mode.
Agency
When in doubt as to whether there is a mode or
merely a suggestion, consider same only as a
suggestion.
The condition suspends but does not obligate;
the mode obligates but does not suspend (for he
who inherits with a mode is already an heir; one
who inherits conditionally is not yet an heir)
DOCTRINE of CONSTRUCTIVE FULFILLMENT: When
without the fault of the fault of the heir, an institucion
sub modo cannot take effect in the exact manner
stated by the testator, it shall be complied with in a
manner most analogous to and in conformity with his
wishes.
NOTE:
If the condition is casual, the doctrine is not
applicable since the fulfillment of the event which
constitutes the condition is independent of the will
of the heir, devisee/legatee. If the condition is
potestative or mixed, the doctrine is applicable.
SUCCESSION

SUCCESION - 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

RIGHTS EXTINGUISHED BY DEATH

Support
Usufruct
Those arising from personal consideration
Personal easements
Partnership rights
QuickTime and a

KINDS OF SUCCESSION
1. Testamentary that which results from the
designation of an heir, made in a will executed
in the form prescribed by law
2. Legal or Intestate that which takes place by
operation of law in the absence of a valid will
3. Mixed that which is effected partly by will and
partly by operation of law
KINDS OF HEIRS
1. Compulsory those who succeed by force of
law to some portion of the inheritance, in an
amount predetermined by law, of which they
cannot be deprived by the testator, except by a
valid disinheritance
2. Voluntary or Testamentary those who are
instituted by the testator in his will, to succeed
to the portion of the inheritance of which the
testator can freely dispose
3. Legal or Intestate those who succeed to the
estate of the decedent who dies without a valid
will, or to the portion of such estate not

(Uncompressed) decompressor are

7. Life Annuity TIFFneeded
to see this picture.

Succession
Refers to the legal
mode
by
which
inheritance
is
transmitted to the
persons entitled to it.

Inheritance
Refers
to
the
universality or entirety
of the property, rights
and obligations of a
person who died.

disposed of by will
CHAPTER 2: GENERAL PROVISIONS ON WILLS
1.
2.
3.
4.
5.
6.

ELEMENTS OF A WILL
It is an act;
whereby a person is permitted;
with the formalities prescribed by law;
to control to a certain degree;
the disposition of his estate;
to take effect after his death.

KINDS OF WILLS:
1. Notarial an ordinary or attested will
2. Holographic a handwritten will
COMMON REQUISITES BETWEEN THE TWO
WILLS:
1. must be in writing and
2. in a language or dialect known to the testator
CHARACTERISTICS OF A WILL:
1. Unilateral
2. Strictly Personal act
a. Acts which may not be left to the discretion of
third persons (Articles 785 AND 787):
i.
Duration or efficacy of the designation of
heirs, devisees or legatees;

Adviser: Dean Cynthia del Castillo Head : Joy Ponsaran, Eleanor Mateo; Understudy: Joy Tajan, John Paul
Lim;
Subject Head : Polaris Rivas;

Civil Law Summer Reviewer

ATENEO CENTRAL BAR OPERATIONS 2007
ii.

Determination of the portions which they

3. Of sound mind, at the time of its execution; A

are to take, when referred to by name;

and
iii.

3.
4.
5.
6.
7.

Determination of whether or not the

testamentary disposition is to be
operative
b. Acts which may be entrusted to third persons
(Article 787);
i.
Distribution of specific property or sums
of money that he may leave in general to
specified classes or causes; and
ii.
Designation of the persons, institutions or
establishments to which such property or
sums are to be given or applied.
Free and voluntary act
Formal and solemn act
Act mortis causa
Ambulatory and revocable during the testators
lifetime
Individual act

testator is considered of sound mind if he

knows at the time of making of the will the
following:

INTERPRETATION OF WILLS
1. Animus Testandi - The testators intent (animus
testandi), as well as giving effect to such intent is
primordial. EXCEPT: when the intention of the testator
is contrary to law, morals or public policy.
2. In case of doubt, the interpretation by which the
disposition is to be operative or will sustain and uphold
the will in all its parts shall be adopted, provided that it
can be done consistently with the established rules of
law.
3. Ambiguities in Wills Intrinsic or extrinsic evidence
may be used to ascertain the testatorial intent of the
testator. EXCEPT: the oral declarations of the testator
as to his intentions must be excluded because such
testimony would be hearsay.

4. After Acquired Property - Property

acquired during the period between the
execution of the will and the death of the
testator is NOT included among the property
disposed of. EXCEPT: When a contrary
intention
expressly
QpuiclkieTimon
anndwill.
NOTE: This
rule apappears
seothe
lya to
legacies
and

a. Nature of the estate to be disposed of

b. Proper objects of his bounty
c. Character of the testamentary act

Supervening capacity or incapacity does not

affect the will because the validity of a will is
determined at the time of the execution of the
will.

LEGAL
PRESUMPTION
SOUNDNESS OF MIND

FAVOR

OF

GENERAL RULE: The law presumes that the

testator is of sound mind
EXCEPT:
a. When the testator, one month or less, before
making his will was publicly known to be
insane; or
b.Was under guardianship at the time of the
making of his will. (Torres and Lopez de
Bueno vs. Lopez, 48 Phil. 772)
CHAPTER 3: FORMS OF WILL
1. NOTARIAL WILL a valid notarial will:
a. Must be in writing and in a language or
dialect known to the testator
b. Subscribed at the end by the testator himself
or by the testators name written by some
other person in his presence, and by his
express direction
c.

Attested & subscribed by three or more

credible witnesses in the presence of the
testator and of one another
Mandatory Part: The signing on every
page in the witnesses presence
NOTE: Test of presence is not whether
they actually saw each other sign, but
whether they might have seen each other
sign had they chosen to do so

considering their mental and physical

condition and position with relation to
each other at the moment of
inscription of each signature.

TIFF (Uncompressed) decompressor

devisees and noatretnoeedinedstotisteue tthiois npictouref.

heirs
TESTAMENTARY CAPACITY
1. All persons who are not expressly prohibited by law
2. 18 years old and above

IN

Directory
signature,

Part: The place of

i.e. the left margin;
Page 15 of
297

the
the

Civil Law Summer Reviewer

ATENEO CENTRAL BAR OPERATIONS 2007
signature can be affixed anywhere on the
d. Each and every page, except the last, must be

signed by the testator or by the person

requested by him to write his name, and by
the instrumental witnesses of the will, on the
left margin. Signatures on the left margin on
each and every page NOT REQUIRED:

page.
The attestation clause need only be

signed

by the witnesses and not by the testator as it is a

declaration made by the witnesses.

i.

ii.

In the last page, when the will consists of two

or more pages;
When the will consists of only one page;
iii. When the will consists of two pages, the first
consists of all the testamentary disposition
and is signed at the bottom by the testator
and the witnesses and the second contains
only the attestation clause duly signed at the
bottom by the witnesses.

Icasiano vs. Icasiano, II SCRA 422

the inadvertent failure of one witness to
affix his signature to one page of the
original will due to the simultaneous lifting
of two pages in the course of signing is not
per se sufficient to justify denial of probate

Cruz v. Villasor, 54 SCRA 31- the notary

public cannot be counted as one of the attesting
witnesses

e. Each and every page of the will must be

numbered correlatively in letters placed on the
upper part of each page.
Mandatory Part: Pagination by means of a
conventional system.
Directory Part: The pagination in letters on
the upper part of each page

Subscription - The manual act of

instrumental witnesses in affixing their
signature to the instrument.

f.

It must contain an attestation clause, stating the

following:
a. The number of pages used upon which the
will is written
b. The fact that the testator signed the will and every
page, or caused some other person to write his name,
under his express direction, in the presence of the
instrumental witnesses
c. All the instrumental witnesses witnessed and
signed the will and all its pages in the
presence of the testator and of one another

ATTESTATION

g. It must be acknowledged before a notary public

by the testator and the witnesses

SUBSCRIPTION

1. act of the senses

1. act of the hand

2. mental act

2. mechanical act

3. Purpose is to render
available proof during the
probate that such will had
been executed in
accordance with the
formalities prescribed by
law
4. Found after the
attestation clause at the
end or last page of the will

3. Purpose is for
identification

4. Found at the left side

margin of every page of
the will

ATTESTATION v. SUBSCRIPTION

Attestation An act of witnessing execution of will by testator in order to see and take note mentally those things are do

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The attestation clause need not be written in

a language or dialect known to the testator
nor to the witnesses since it does not form
part of the testamentary disposition

ADDITIONAL REQUISITES FOR VALIDITY

a.

If the Testator be Deaf or Deaf-Mute:

i.
Testator must personally read the will, if
able to do so;
ii.
Otherwise, he shall designate two
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ii.

persons to read it and

communicate to him, in some
practicable manner, its contents
(Art 807)
Once by the notary public before

whom

the will is acknowledged (Art 808)

NOTE: Articles 807 and 808 are mandatory, failure to

comply with either would result in nullity and denial of
probate.

2. HOLOGRAPHIC WILL a holographic will is valid if it

is:
a. In writing and in a language or dialect known
to the testator
b. Entirely written, dated, and signed by the hand of the
testator himself
c. Dispositions of the testator written below his signature
must be dated and signed by him in order to validate
the testamentary dispositions. (Art 812)
EXCEPT: In case of dispositions
appearing in a holographic will which are
signed without being dated, where the last
disposition has a signature and a date,
such date validates the dispositions
preceding it, whatever be the time of prior
dispositions
A holographic will is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed. (Art 810)
PROBATE OF HOLOGRAPHIC WILL
a. There must be at least one witness.
EXCEPTION: If the will is contested, at
least three of such witnesses shall be
required (merely directory). In the absence
of such competent witness and if the court
deems it necessary, expert testimony may be
resorted to.
b. who knows the handwriting and signature of
the testator
c.

b. If the Testator be Blind: The will shall be read to

the testator twice i.
Once by one of the subscribing
witnesses

must explicitly declare that the will and the

signature are in the handwriting of the
testator. (Art 811)QuickTime and a

INSERTION, CANCELLATION, ERASURE

ALTERATION IN A HOLOGRAPHIC WILL

OR

a. If made after the execution of the will, but

without the consent of the testator, such
insertion is considered as not written
because the validity of the will cannot be
defeated by the malice or caprice of a third
person
b. If the insertion after the execution of the will
was with the consent of the testator, the will
remains valid but the insertion is void.
c.

If the insertion after the execution is validated

by the testator by his signature thereon, then
the insertion becomes part of the will, and the
entire will becomes void, because of failure
to comply with the requirement that it must
be wholly written by the testator

d. If the insertion made by a third person is

made contemporaneous to the execution of
the will, then the will is void because it is not
written entirely by the testator
WHO MAY BE A WITNESS TO A WILL

Any

person may be a witness provided he is:

a. Of sound mind
b. Of the age of 18 years or more
c. Not blind, deaf or dumb
d. Able to read and write
e. Domiciled in the Philippines
f. Have not been convicted of falsification of a
document, perjury or false testimony
CHAPTER 4: LAWS GOVERNING VALIDITY OF A
WILL

1. FORMAL VALIDITY
NOTE: TThIFiFs(Unacormtpirceslesed) daecpompplrieesssor only to post
a re ne e d ed to s ee this
pic tu re.
a. If the testator is a Filipino and the will is
mortem pro b a t e s a n d n o t to ante
executed in the Philippines then its formal
mortem probates since in such cases the
validity is governed by the CC of the
testator himself files the petition and will
Philippines
identify the document himself.

Gan v, Yap, 104 Phil 509 in the

probate of a holographic will, the document
itself must be produced; a lost holographic
will cannot be probated. Exception:

b. If the testator is a Filipino and the will is

executed in a foreign country, then its formal
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i.
ii.

validity is governed either:

By the law of the place where the will

was made

By the CC of the Philippines

c.

If the testator is a foreigner and the will is

executed in the Philippines, then its formal
validity is governed either:
By the CC of the Philippines
By the law of his own country

i.
ii.

are also dated and signed, and everything is

written by the hand of the testator himself
b. Certain dispositions or additional matter may
be suppressed or inserted PROVIDED that
said cancellation is signed by the testator
and written by the hand of the testator
himself
c. Through a codicil which may either be
notarial or holographic
ELEMENTS OF A CODICIL

d. If the testator is a foreigner and the will is

executed in a foreign country, then its formal
validity is governed either:
i.
By the law of the place where the will
was made
By the law of his own country
iii. By the law of the country where he
resides
By the CC of the Philippines

ii.
iv.

2. SUBSTANTIVE VALIDITY
ASPECTS OF THE WILL GOVERNED
NATIONAL LAW OF THE DECEDENT:

BY

a. Order of succession
b. Capacity to succeed
c. Amount of successional rights
d. Intrinsic validity (Art 16)
VALIDITY OF JOINT WILLS

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)
NOTE: Joint wills 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.
CHAPTER 5: AMENDMENTMENT, REVOCATION
AND REPUBLICQuAickTTimIOeNandOa F WILLS
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AMENDMENT OF WILLS
1. Notarial only through a codicil
2. Holographic in three ways
a. Dispositions may be added below the
signature, PROVIDED that said dispositions
b. IMPLIED When the provisions thereof

are

1. It is a supplementary or addition to a will

2. made after the execution of the will
3. and annexed to be taken as a part thereof
4. by which any disposition in the original will may
be explained, added to or altered
REQUISITES
REFERENCE

FOR

INCORPORATION

BY

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
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
REVOCATION OF WILLS
1. By operation of law instances of revocation by
operation of law:
a. decree of legal separation
b. preterition
c. legacy or credit against third person or
remission of debt was provided in will and
subsequently, testator brings action against
debtor
d. substantial transformation of specific thing
bequeathed
e. when heir, devisee or legatee commits any of
the acts of unworthiness
2. By the execution of a will, codicil or other writing
executed as provided in case of wills
a. EXPRESS When there is a revocatory
clause expressly revoking the previous will or
a part thereof

partially or entirely inconsistent with those of the

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a. The cause must be concrete, factual and not

previous wills

c.

3. By burning, tearing, canceling, 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.
REQUISITES:
a. Testamentary capacity at the time of
performing the act of destruction;
b. Intent to revoke (animus revocandi);
Actual physical act of destruction;
d. Completion of the subjective phase; AND
e. Performed by the testator himself or by some
other person in his presence and express
direction

purely
subjective

c.

b. It must be false
The testator must not know of its falsity
d. It must appear from the will that the testator
is revoking because of the cause which is
false.

Art. 834. The recognition of an illegitimate

child does not lose its legal effect, even
though the will wherein it was made should
be revoked.
Art. 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.

LAWS WHICH GOVERN REVOCATION

If the revocation takes place in the Philippines whether
the testator is domiciled in the Philippines or not,
a. Laws of the Philippines

1.

2.

If the revocation takes place outside the Philippines, by

a testator who is domiciled in the Philippines,
a. Laws of the Philippines

3.

Revocation done outside the Philippines by a testator

who is not domiciled in this country,
a. Laws of the place where the will was made;
or
b. Laws of the place in which the testator had
his domicile at the time of the revocation.

FACTS DEMONSTRATING ART 837

In 1985, X executed Will 1
In 1987, X executed Will 2, expressly revoking
Will 1
In 1990, X executed Will 3, revoking Will 1
CONCLUSION ON THE FACTS
The Revocation of Will 2 by Will 3 does not revive
Will 1

Art. 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 le

EXCEPTION: Molo v. Molo, (90 Phil 37), When the testator provides in the subsequent will that the revocation of the pr

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subsequent
revocation)

REVOCATION BASED ON A FALSE OR ILLEGAL

CAUSE

Revocation based on a false or illegal cause is null and

void. REQUISITES:

will

This demonstrates the theory of instant

revocation because the revocatory effect of the
second will is immediate upon the first will
NOTE: This article only applies where the
revocation of the first will by the second will is
express.

REPUBLICATION AND REVIVAL OF WILLS

If the testator wishes to republish a will that is

void as to form, the only way to republish it is to
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execute a subsequent will and reproduce it

The testator need only execute a

subsequent will or codicil referring to the

CHAPTER 6: ALLOWANCE AND DISALLOWANCE

OF WILLS

c.
i.
iii.

1. PROBATE OF A WILL
a. A special proceeding required for the purpose of
establishing the validity of the will.
b. Probate of a will is mandatory
The probate court can only inquire into the extrinsic
validity of testamentary provisions, which include the
following:
That the testator was of sound and disposing mind
ii.
That his consent was not vitiated
That the will was signed by the required number of
witness
iv. That the will is genuine

previous will if the testator wishes to republish a

will that is either:
a. Void for reason other than a formal defect
b. Previously revoked

at the time of affixing his signature

thereto.(Art 839)

REPUBLICATION
Takes place by an act of
the testator
and
Corrects
extrinsic
extrinsic defects

REVIVAL
Takes
place
by
operation of law
Restores a revoked will

EXCEPTION: Nuguid v. Nuguid, 17

SCRA 449, the probate court may pass
upon the intrinsic validity of the will when
its probate might become an idle ceremony
if on the wills face it appears to be
KINDS OF PROBATE
1. Post-Mortem after the testators death
2. Ante-Mortem during his lifetime

FINAL DECREE OF PROBATE

Once a decree of probate becomes final in accordance
with the rules of procedure it becomes Res Judicata
It is conclusive as to the due execution of the will
(extrinsic validity only)

2. DISALLOWANCE OF WILL - grounds for disallowance

of a will:
a. If the formalities required by law have not
been complied with;
b. If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
ui ckTim
c. If it was executQeTIFF
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threats;
d. If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some
other person;
e. If the signature of the testator was procured
by fraud;
f. If the testator acted by mistake or did not intend that
the instrument should be his will
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CHAPTER 7: INSTITUTION OF
HEIRS INSTITUTION OF HEIR
1. It is an act by virtue of which a testator
designates in his will
2. the person or persons who are to succeed
him in his property and transmissible
3. rights and obligations
REQUISITES FOR A VALID INSTITUTION OF
HEIR
1. Designation in will of person/s to succeed
a. Directory - designation of name and
surname
b. Mandatory identity of the heir must
be
established,
otherwise
void
disposition, unless his identity becomes
certain.

REVOCATION
DISALLOWANCE
Voluntary act of the Given by judicial decree
testator NOTE: If there is ambiguity in the
With or without
cause the Always
for a legal
causebe
designation,
designation
must
May be partial or total
Always total EXCEPT
resolved by discerning
the testators
when the ground of fraud
intent. If the or
ambiguity
cannot
be
influence for
example
affects
only
certain
resolved, intestacy to that portion results.
portions of the will
2. Will specifically assigns to such person an
inchoate share in the estate.
3. The person so named has capacity to succeed
4. The will is formally valid
5. No vice of consent is present
6. No preterition results from the effect of such will
THREE PRINCIPLES IN THE INSTITUTION OF
HEIRS
1. Equality heirs who are instituted without a
designation of shares inherit in equal parts
2. Individuality heirs collectively instituted are
deemed individually named unless a contrary
intent is proven
3. Simultaneity when several heirs are instituted,
they are instituted simultaneously and not
successively
RULES ON A PERSONS RIGHT TO DISPOSE OF
HIS ESTATE

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1. If one has no compulsory heirs:

a. He can give his estate to any person
qualified to inherit under him
b. However, he must respect restrictions
imposed by special laws
2. If one has compulsory heirs:
a. He can give only the disposable portion to
strangers
b. Legitimes of compulsory heirs must be respected
REQUISITES FOR THE ANNULMENT OF
INSTITUTION OF HEIRS:
1. Cause of institution of the heirs must be stated in
will
2. Cause must be shown to be false
3. It appears from the face of the will that the
testator would not have made the institution had
he known the falsity of the cause.
RULES ON INSTITUTION OF ALIQUOT SHARE
LESS THAN OR IN EXCESS OF THE WHOLE
ESTATE:
1. Intestacy Results if
a. the heir institutes an aliquot portion of the estate
b. to only one heir If the heir institutes several
heirs to an aliquot part of the
2. Each heirs share shall be proportionally increased:
a. There are more than one instituted heir
b. The testator intended the heirs to inherit the whole
estate
c. The aliquot parts of each share do not cover
the whole inheritance
3. Each heirs share shall be proportionally
decreased:
a. There are more than one instituted heir
b. The testator intended the heirs to inherit the whole
estate
c. The aliquot parts of each share exceed the
whole inheritance
PRETERITION
1. There must be an omission of one, some or all of
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will
2. The omission
mu s t b e th a t o f a

COMPULSORY HEIR
3. Compulsory heir omitted must be of the DIRECT
LINE
4. The omitted compulsory heir must be LIVING at the
time of testators death or must at least have been
CONCEIVED before the testators death
5. The omission must be complete and total in character. :
There is no omission if

they shall have the same share in the

substitution

a. A devise or legacy has been given to the heir

b. A donation inter vivos has been previously
given to the heir
c. Anything is left from the inheritance which the
heir may get by way of intestacy
EFFECTS OF PRETERITION:
1. The institution of heir is annulled
2. Devises and legacies shall remain valid as long
as they are not inofficious
3. If the omitted compulsory heir should die before
the testator, the institution shall be effectual,
without prejudice to the right of representation
DISTINGUISH
PRETERITION
FROM
DISINHERITANCE
PRETERITION
DISINHERITANCE
Deprivation
of
a Deprivation
of
the
compulsory heir of his compulsory of his legitime
legitime is tacit
is express
May be voluntary but Always voluntary
the law presumes that it
is involuntary
Law presumes
that Done with a legal cause
there has been merely
an oversight or mistake
on the part of
the
testator
Omitted heir gets not If
disinheritance
is
only his legitime but also unlawful, compulsory heir
his share in the free is merely restored to his
portion not disposed of legitime
by way of legacies or
devises
CHAPTER 8: SUBSTITUTION OF HEIRS
CLASSES OF SUBSTITUTION:
1. Vulgar or Simple the testator may designate
one or more persons to substitute the heir or
heirs instituted in case such heir or heirs should:
a. die before him (PREDECEASE)
b. should not wish, (RENOUNCE) or
c. should be incapacitated to accept the
inheritance (INCAPACITATED)
2. Brief or Compendious two or more persons
may be substituted for one; and one person for
two or more heirs
3. Reciprocal if heirs instituted in unequal shares
should be reciprocally substituted, the substitute
shall acquire the share of the heir who dies,
renounces, or incapacitated, unless it clearly
appears that the intention of the testator was
otherwise. If there are more than one substitute,

as in the institution

4. Fideicommissary Substitution - if the testator

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institutes an heir with an obligation to deliver to

another the property so inherited. The heir
instituted to such condition is called the first heir
or fiduciary heir, the one to receive the property is
the fideicommissary or second heir

1.

3.
4.
5.

REQUISITES
FOR
A
FIDEICOMMISSARY
SUBSTITUTION:
A fiduciary or first heir instituted entrusted with the
obligation to preserve and to transmit to a
fideicommissary substitute or second heir the whole or
part of the inheritance
2. Such substitution must not go beyond one
degree from the heir originally instituted
The fiduciary or first heir and the second heir are living
at the time of the death of the testator
The fideicommissary substitution must be expressly
made
The fideicommissary substitution is imposed on the
free portion of the estate and never on the legitime

NOTE: Pending the transmission of the property,

the fiduciary is entitled to all the rights of a
usufructuary although the fideicommissary is
entitled to all the rights of a naked owner.
CHAPTER 9: CONDITIONAL TESTAMENTARY
DISPOSITIONS AND DISPOSITIONS WITH A
TERM

TESTAMENTARY DISPOSITIONS
1. Condition future or uncertain event, or a past
event unknown to the parties, upon which the
performance of an obligation depends
2. Term the day or time when an obligation either
becomes demandable or terminates
3. Modal Institution the statement of the
institution; application of the property left by the
testator or the charge imposed on him
4. Disposicion Captatoria condition that the heir
shall make some provision in his will of the
testator or of any other person (prohibited

8. Suspensive term one that merely suspends

the demandability of a right. It is sure to

happen
9. Caucion Muciana bond or security that should
be given in favor of those who would get the
property if the condition not be complied with
INTERPRETATION
When in doubt whether there is a condition or
merely a mode, consider the same as mode

When in doubt as to whether there is a mode or

merely a suggestion, consider same only as a
suggestion

The condition suspends but does not obligate,

the mode obligates but does not suspends (for he
who inherits with a mode is already an heir; one
who inherits conditionally is not yet an heir.)

RULES ON POTESTATIVE, CASUAL AND MIXED

CONDITIONS
1. POTESTATIVE

Positive Potestative Condition:

General Rule must be fulfilled as soon as the

heir learns of the testators death
EXCEPTION
a. the condition was already complied with at
the time the heir learns of the testators death
b. the condition is of such nature that it cannot
be fulfilled again

Negative Potestative Condition:

Heir must give security to guarantee the return of

the value of property, fruits, and interests, in
cases of contravention

2. CASUAL OR MIXED

Positive

a
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the will

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5. Causal Condition condition us casual if it
depends upon chance and/or upon the will of a
third person
6. Mixed Condition - It is mixed if it depends both partly
upon the will of the heir himself and upon chance

GENERAL RULE may be fulfilled at any other

time (before testators death), unless testator
provides otherwise.
If ALREADY FULFILLED at the time of
execution
of the will
a. If testator
unaware of fact of fulfillment-

and/or the will of a third person

7. Potestative Condition one the fulfillment of which
depends purely on heir

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deemed fulfilled
i.

b. If testator aware thereof

If it can no longer be fulfilled again
deemed fulfilled

ii.

If it can be fulfilled again must be

fulfilled again

Constructive Compliance
a. if casual not applicable

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San Beda College of Law

25

MEMORY AID

IN

CIVIL LAW

b. if mixed
i. If dependent partly on chance not
applicable
ii. If dependent partly on will of third party
rd
1. if 3 party interested applicable
rd
2. if 3 party not interested not
applicable
EFFECTS OF SUSPENSIVE CONDITION OR TERM

1.
2.
3.

The estate shall be placed under administration until

condition is fulfilled
until it becomes certain condition will never be fulfilled
until arrival of the term

CONDITIONS PROHIBITING MARRIAGE

1. If a first marriage is prohibited condition considered
always as not imposed
2. If a subsequent marriage is prohibited as imposed
by the deceased spouse or by his/her ascendants
or descendants - valid
3. if a subsequent marriage is prohibited and imposed by
anyone else- considered not written