Succession TSN 2016

WILLS & SUCCESSION TRANSCRIPT 2016
FromthelecturesofAtty.LielanieYangyangEspejo,CPA|AteneodeDavaoCollegeofLaw
2.
FIRST EXAM
June 20, 2016 (K.J.Du)
Legal or intestate succession the distribution of the

properties shall be by virtue of law, not by will
Although there are different ways by which there can be intestate

succession, but as a general rule, when a person dies without a will,
then that is legal or intestate succession.
This is Wills and Succession. Practically, this is a very morbid subject

because we always talk about death. The law on succession cannot
apply without death.
3.
Why do we have the laws on succession?

Basis of succession:
1.
Natural Law it is in the nature of man to really provide for
the ones whom he would leave behind
2.
Based on Social Economic Postulate the purpose is to
prevent the property from becoming idle. Once a person
dies, his properties are not buried with him but are left. If we
do not determine or provide to whom shall these properties
go then these properties will be left idle.
3.
As an Attribute of Ownership this is in relation to Article 428
on the Law on Property:
[There is also mixed succession]
Q: Why is it that in our Constitution, the succession referred to is limited

to legal or intestate succession?
A: The limitation is to make sure that ownership of properties is only
within Filipinos by rule. If you put it through a will then you circumvent
the reason to why you put a limitation based on the Constitution.
Under our Constitution, foreigners cannot own lands in the Philippines.
So if you cannot sell to them, or donate to them, but you can give to
them by will, that would be circumventing our prohibition under our
Constitution.
Even if the testator, the one who dies, makes a will and gives the land
to a foreigner, the foreigner would not be able to get it by succession
because the succession being referred to is only by legal or intestate
succession.
Article 428. The owner has the right to enjoy and dispose of a thing,
without other limitations than those established by law.
The owner has also a right of action against the holder and possessor
of the thing in order to recover it.
Take note that although the case of Ramirez says that the succession
being referred to under our Constitution only means legal or intestate
succession but actually, that will also include compulsory succession or
what we call succession to the legitime.
The right to dispose covers not only the right to dispose inter vivos or
during the lifetime, but also upon death. Because if we will limit the
right only to transfers during the lifetime of the person, then his
ownership will be hampered.
Q: Have you encountered the term succession before? In first year?
A: In Persons and in Constitutional Law.
Article XII. Section 7. Save in cases of hereditary succession, no private
lands shall be transferred or conveyed except to individuals,
corporations, or associations qualified to acquire or hold lands of the
public domain.
There is also a mention of succession in the Constitution. That mentions
of hereditary succession.
GR: No foreigners can own lands in the Philippines. It is prohibited
under the Constitution.
Exception: In cases of hereditary succession
Here, even if there is a will but if the heir is a compulsory heir of the
testator (such as a child, spouse or parent) even if there is a will, even
if technically that is testate succession, but it does not foreclose
inheritance by the compulsory heirs of their legitime. The legitime is the
portion of the estate of the decedent which is reserved by law to the
compulsory heirs.
So that constitutional provision could also refer to the legitimes in
testamentary succession.
Basically, the case of Ramirez makes a distinction between testate
and intestate succession.
Under the Constitution, the exception refers to legal succession, and
again, as I will add, this will not prevent succession by means of the
legitime.
Ramirez vs. Ramirez

(111 S 39 | GR L-27953 | Feb. 15, 1982)
Q: What did the SC say about succession being referred to under the
Constitution?
A: One of the issues in the case is that there was a specific provision in
the will of the decedent that the usufruct of the properties will be
transferred to a certain Wanda Wrobleski who the respondents in the
case questioned because she is an Austrian who lives in Spain. They
are questioning why a usufruct is transferred to a foreigner.
There are other different kinds (classifications) of succession (as to

effectivity):
1.
Succession inter vivos (or even for donation inter vivos) it
refers to a transfer made during the lifetime of the transferor
2.
Succession mortis causa the transfer happens or is
effective upon death of the transferor
It is very important that you should know which is succession or
donation inter vivos and which is succession or donation mortis causa.
Why is there a need to know the distinction?
Because there are different formalities involved.
The SC decided that even though she is a foreigner, the concept of

succession operates not only to notarial wills but also intestate
succession.
For example: If you want to transfer a property to your friend and you
want to transfer it to her during your lifetime, immediately during the
execution of the document she becomes the owner. So you donate
to her the property.
Other than that, the usufruct is not a clear transfer of ownership but
more of the use of property so it does not violate the limitations
provided by the Constitution.
Q: When you say succession under the Constitution, based on that
case, what is the kind of succession being referred to?
A: Intestate succession.
Q: What do you understand by intestate succession?
A: It is a form of succession where the process succession operates
through law and not through will.
In general, there are two kinds of succession (as to origin):
1.
Testamentary or testate succession it is made by virtue of a
will
Donation, as you have learned in Property, is a formal contract so you

have to observe the formalities of law in order for the donation to be
valid:
a. If the donation is personal property, the donation would be
valid if there is simultaneous delivery, and acceptance
b. If the value of the property exceeds Php5,000, then it has to
be in writing, both the donation and the acceptance
c. If the donation is a real property, both the donation and the
acceptance must be in a public instrument
These are the requisites for a valid donation. That is of you want to
transfer a property and you want it to be effective to transfer during
your lifetime, you follow the form prescribed for a donation.
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But, if you want to transfer your property upon your death, that is
actually mortis causa, that is governed by the law in succession. Here,
it is not enough that the donation or the transfer is made in a public
document, it must be in the form of a will. That is in Article 728 of the
Civil Code:
The 3 distinguishing characteristics of a donation mortis causa:

1.
It conveys no title or ownership to the transferee before the
death of the transferor; or, what amounts to the same thing,
that the transferor should retain the ownership (full or naked)
and control of the property while alive;
Article 728. Donations which are to take effect upon the death of the
donor partake of the nature of testamentary provisions, and shall be
governed by the rules established in the Title on Succession.
It must not transfer title of ownership to the transferee prior to the

death of the transferor.
So, for the transferee to effectively get the ownership of that property,
wherein the transfer is effective upon death, the document where the
transfer is embodied must be in the form of a will. Even if you followed
all the formalities of a donation, that transfer will not be valid.
In the same way that you want the transfer to be effective during your
lifetime but you followed the formalities of the will, that will also not
effectively transfer ownership to the supposed donee.
[From 2015 TSN:]
Donation inter vivos
A gratuitous disposition that takes
effect during the lifetime of the
donor
Governed by the law on
donation; you follow the
formalities of a real donation
Synonymous to succession inter
vivos
Donation mortis causa

A gratuitous disposition which
takes effect upon the death of
the donor
Governed by the law on
succession, particularly Article
728 of the Civil Code; you follow
the formalities of a will
Synonymous to succession mortis
causa
Q: What kind of ownership is being referred to here?

A: Full or naked ownership.
Q: Can you give us an example?
A: For example, if property is to be transferred prior to the death of the
transferor, the full ownership, then it is not mortis causa.
Q: What if I donated to you a property and said that you can use and
enjoy the property, you can harvest the fruits and cultivate it but the
title retains with me. What is that?
A: A usufruct.
Q: So that is inter vivos or mortis causa? What kind of ownership is
being transferred to you?
A: Beneficial ownership.
So I still retain the naked title. So when you say that the donor does not
transfer ownership, whether full or naked, and that will only happen
upon the death of the donee, then it is a donation mortis causa. As
long as there is reservation of ownership, whether full or only naked
ownership and the entire beneficial use is already given to the donee,
it is still a donation mortis causa.
It is easy to think that if it is during the lifetime then you follow donation
and if it is mortis causa then you follow the formalities of the will. In
reality, that is a difficult question. In fact, several cases reached the SC
on that question alone, whether the document refers to a disposition
inter vivos or mortis causa.
Ganuelas vs. Cawed

(401 S 447 | GR 123968 | Apr. 24, 2003)
It is not really revocable at will unlike when it comes to Last Wills and
Testaments where you can always revoke the will at any time even
without a ground, even for an arbitrary or whimsical reason. If that is
the tenor of the donation then it is really in the nature of a Last Will and
testament, it is not a donation proper.
Facts: Celestina Ganuelas executed a Deed of Donation in favor of

her niece Ursulina. Years later, Celestina executed a document
denominated as a revocation of the donation she previously
executed purporting to set aside the donation. A month later, she
died.
After she died, Ursulina now had been sharing the products of the
property deemed to have been donated by Celestine to her. 24 years
after the execution of the Deed of Donation, Ursulina was able to
secure a tax declaration under her name. The respondents here now
filed a complaint against Ursulina including Antonio and Manuel
Ganuelas alleging that the donation made in favor of Celina was
void.
Q: What was the tenor of that Deed of Donation?
A: The donation made was executed by Celestina out of love and
affection.
Q: Can you read that provision?
A: That, for and in consideration of the love and affection which the
donor has for the donee, and of the faithful services the latter has
rendered in the past to the former, the said donor does by these
presents transfer and convey, by way of donation, unto the donee the
property above, described, to become effective upon the death of
the donor; but in the event that the donee should die before the
donor, the present donation shall be deemed rescinded and of no
further force and effect..
Ruling: The SC elucidated the distinguishing characteristics of a

donation mortis causa
That before his death, the transfer should be revocable by

the transferor at will, ad nutum; but revocability may be
provided for indirectly by means of a reserved power in the
donor to dispose of the properties conveyed;
Q: Why should it be considered as mortis causa if the donation is

revocable?
A: [Since the revocability of the transfer means that there is a
reservation of the power to dispose the property.] Since if it is a
donation inter vivos, it may be revoked only on the grounds provided
under the Civil Code.
There are certain cases where the title of the document is Donation
inter vivos but the SC said that it is actually a mortis causa disposition
and therefore it should be in the form of a will.
Issue: Is the donation inter vivos or mortis causa?
2.
3.
That the transfer should be void if the transferor should

survive the transferee.
The transfer should be void if the transferee dies ahead of the

transferor.
Q: Why should this be considered as donation mortis causa?
A: The heir should not die ahead or else there will be no succession.
Q: In a real donation, what would happen if the donee dies ahead of
the donor? If I give to you a property by way of real donation then
you will die, what will happen to the property?
A: If it is a real donation, the moment that you have given the
property and parted ownership with it, I will already be the owner. The
moment that I will die then the property will be given to my heirs.
So that is what happens in a real donation. So if you will provide that if
the property upon the death of the donee will revert to the donor
because it is essential that the donee should survive the donor, that is
not donation proper. There is no requirement in a real donation that
the donee should survive the donor. As long as there is already a
Deed of Donation, it is accepted by the donee, he becomes the
owner of the property. If he dies, then the property shall be inherited
by his own heirs. But if you say I am giving to you this property but if
you will die ahead of me, the property will go back to me, that is not a
real donation, that is actually the essence of a mortis causa
disposition.
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A: To know whether it passed title to Rodriguez, to ascertain who has

the better title to the land in question
In succession, the donee or the heir should survive the donor, you
cannot become an heir if you die ahead of the testator or the
decedent.
Q: Can you discuss what the nature of the Deed of Donation is?
A: The SC said that this was a donation inter vivos
Q: What was the ruling of the SC?

A: The donation made in favor of Ursulina was a donation mortis
causa.
Q: What else was present in the Deed of Donation which the SC said
confirmed that the donation as mortis causa?
A: First, there is no mention in the said deed that indicated that the
title or the right has already been transferred to Ursulina.
Second, the phrase that to become effective upon the death of the
donor is already a clear indication that it is a donation mortis causa
and admits no other interpretation.
And the most important one is that the provision in the deed stating
that should the donee die before the donor, the donation shall be
deemed rescinded
Q: How about the phrase that the donation was founded by
consideration of love and affection? Isnt it that in a donation the
consideration is love and affection? Can you not consider this as a
Deed of Donation?
A: The SC partly mentioned that the basis or ground that the donation
is a donation inter vivos because it is founded in love and affection is
erroneous because it could also be a ground of a transfer mortis
causa.
So it is irrelevant because both donation and succession are actually
founded on the same consideration: of love and affection.
The SC also mentioned here the presence of the attestation clause in
the Deed of Donation and confirmed that it was really intended to be
a donation mortis causa.
We will discuss later on what an attestation is. It is actually an essential
part of a notarial will. Donations do not have attestation clauses, only
wills.
Villanueva vs. Spouses Branoco
(GR 172804 | Jan. 24, 2011)
Q: Was there an issue here as to the nature of that donation, whether

it was mortis causa or inter vivos?
A: Yes, the respondents here were alleging that they had better title
and that they acquired it through prescription since they have been in
possession of the land.
Q: Lets go back first to the question of who has the better right to the
land. You mentioned that the donation was made ahead of the sale.
Here, insofar as the Deed of Donation is concerned, there was an
allegation that it was actually a donation mortis causa. Why is it
important?
A: If it is a donation mortis causa, it has to follow the formalities of a will
otherwise it will be void, but if it is a donation inter vivos, then it is
immediately effective and just needs to follow the formalities required
of donations.
Q: What if, assuming for the sake of argument, that such document
was in the form of a will, would that be sufficient now to say that it
transferred ownership to Rodriguez? Assuming that such Deed of
Donation was really intended to be a mortis causa disposition, and it
was made in the form of a will, will it now transfer ownership to the
transferee in the Deed of Donation?
A: Not yet.
Here, there was a question as to the nature of the donation, because
according to the buyers that is a donation mortis causa. If it is really a
donation mortis causa, it should be in the form of a will. Unfortunately
that document was not in the form of a will.
Assuming for the sake of argument that it was really in the form of a
will, the subsequent sale or transfer of the property has the effect of
revoking the mortis causa disposition, so that would still also defeat the
right of the supposed transferee, assuming that the formalities of wills
were followed.
Q: You mentioned that the Deed of Donation was really a donation
inter vivos and you also mentioned the 3 distinguishing characteristics,
which we already discussed in the case of Ganuelas. What are the
additional characteristics mentioned here?
Facts: Gonzalo Villanueva, represented by his heirs, filed a case

against Spouses Branoco. Villanueva claimed that they owned the
property in question from Vere who in turn purchased it from Rodrigo.
The Branocos claim that they purchased it from Rodriguez to whom
Rodrigo donated the property to.
4.
5.
Basically, the other party was insinuating that they bought it to

purchase and the respondents claim that they purchased it from
someone who inherited it from Rodrigo. What is in question here also is
a certain document written by Rodrigo.
Q: What was the title of that document?
A: It was a Deed of Donation written by Rodrigo. She said that
because of that one Eufracia Rodriguez, one of my nieces who also
suffered with our poverty, obedient as she was to all the work in our
house, and because of the love and affection which I feel for her, I
have one parcel of land I give said land in favor of Rodriguez
6.
Issue: Who holds the better title, the heirs of Gonzalo Villanueva (who
claim they purchased it from Vere) or the heirs of Branoco (who claim
that Rodriguez inherited it from Rodrigo)?
Ruling: The better title is with the Branocos since naked title passed
from Rodrigo to Rodriguez.
Q: Who was the original owner of the property?
A: Alvegia Rodrigo
Q: What did she do first with respect to that property? Which came
first, the donation or the sale?
A: The donation came first. When Vere bought the property from
Rodrigo in 1970, Rodriguez, the niece, was already in possession of the
property from Rodrigo.
Q: Why do we have to examine the Deed of Donation?
The specification in a deed of the causes whereby the act

may be revoked by the donor indicates that the donation is
inter vivos, rather than a disposition mortis causa;
That the designation of the donation is mortis causa, or a
provision in the deed to the effect that the donation is to
take effect at the death of the donor are not controlling
criteria; such statements are to be construed together with
the rest of the instrument, in order to give effect to the real
intent of the transferor; and
That in case of doubt, the conveyance should be deemed
donation inter vivos rather than mortis causa, in order to
avoid uncertainty as to the ownership of the property subject
of the deed.
Q: So applying that to the case?

A: First, Rodrigo here stipulated that if the herein donee predeceases
me, the same land will not be reverted to the donor, but will be
inherited by the heirs. This signals the irrevocability of the donation.
Second, Rodrigo also reserved herself beneficial title to the property.
So she parted with the naked ownership of the property.
Lastly, there was a phrase that this was done in consideration of the
donors love and affection, which corroborates with the fact that this
was a donation inter vivos.
If you compare that with the case of Ganuelas, the SC said that such
phrase is irrelevant to determine whether or not the transfer is inter
vivos because both donation and succession are founded upon the
same consideration. But here, the SC said that it corroborates the
intention that it is really a donation inter vivos.
Q: What else?
A: The court basically said that based on those three mentioned, it
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can be said that the donation was inter vivos. Also, there are certain
terms used in the deed.
wherein if you fail to follow the specific requirement for transfer, such
as a donation, then the donation will be void. The same with wills.
Q: How about the phrase that ownership be vested on her upon my

demise? Can you not consider it as indicative of a mortis causa
disposition?
A: The other aspects of the Deed of Donation should also be taken
account.
In the cases of Ganuelas and Villanueva, the SC explained the

distinguishing characteristics of donation or succession mortis causa.
Remember those very important distinguishing characteristics
because that will guide you to determine whether or not a specific
transfer is inter vivos or mortis causa.
Chapter 1: General Provisions
Q: So what could that phrase mean?

A: It could mean that upon her demise, the full ownership would be
given or transferred since she reserved for herself the beneficial right.
She retained the beneficial right, the usufruct, but she gave the naked
ownership to the donee. So this should only refer to the beneficial
ownership, that it should only vest upon her death to the donee.
Q: How about the fact that the donee, after the Deed of Donation,
sold the property? Would it not show the intention of the donor to
really consider it a donation mortis causa?
A: No, even if they say that they bought the property from Rodrigo. So
the court said that given that, for them to acquire the property, they
had to be possessors in good faith in order for them to acquire just
title. Here, they could not be held to be in good faith since they knew
that Rodriguez, the donee, was already in possession of the property
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.
Please remember this definition.
It gives us the elements of succession:
1.
It is a mode of acquisition.
Meaning, it is actually one of the different modes wherein ownership is
transferred from one person to another.
Remember Article 712 in your Law on Property:
In other cases actually, when the donor after the execution of the
Deed of Donation, transfers the property to some other person, that
could be indicative that he really intended that donation to just be a
donation mortis causa. When you say mortis causa, it can be revoked
anytime by the donor. So even after she already executed the Deed
of Donation, it really being in the nature of a donation mortis causa,
she could sell the property subsequently and that sale would now
render ineffective that donation mortis causa.
Article 712. Ownership is acquired by occupation and by intellectual

creation.
Q: Was this applied in this case?

A: No, it was already held that this was a donation inter vivos to
immediately take effect during the lifetime of the donee so ownership
has already vested with the donee.
These are the different modes of acquiring ownership:

1.
Original mode there is no prior owner such as intellectual
creation (you compose a song or a poem and have it
copyrighted; copyright is property and in this case it is an
original mode). Occupation is also an original mode since
there is no prior owner.
2.
Derivative mode like succession, donation, there is a first or
prior owner then by such means of succession, donation, or
tradition like in sale, ownership is transferred by one person
to another.
Q: What did the SC say here about that sale, that post-donation
transfer?
A: Rodrigos post-donation sale of the property vested no title to Vere.
Vere acquired no better right than him. Rodrigo cannot afterwards
revoke the donation nor dispose the said property. So the postdonation sale had no effect.
In fact it was criticized by the SC because according to them, the
donor could not capitalize on the post-donation transfer of the
property as proof of her intention of ownership. If such was the
barometer in interpreting deeds of donation, not only will great legal
uncertainty be visited on gratuitous dispositions, this will give license to
rogue property owners to set at naught perfected transfers of title,
which, while founded on liberality, is a valid mode of passing
ownership. The interest of settled property dispositions counsels against
licensing such practice.
In effect, you already donated the property, why did you sell the
property subsequently? You are in bad faith, that is what the SC is in
effect saying.
Here, it was really a donation inter vivos.
Ownership and other real rights over property are acquired and
transmitted by law, by donation, by testate and intestate succession,
and in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription.
So, succession is a derivative mode of acquiring ownership.

[Only the first element was discussed.]
Elements of succession: [from Mison]
1.
A mode of acquiring ownership as enumerated in Article 712
of the Civil Code
2.
It is a gratuitous transmission, sometimes referred to as a
donation mortis causa
3.
It is a transmission of property, rights and obligations to
another to the extent of the value of the inheritance
4.
The transmission of property, rights, and obligations is by
virtue of death
5.
The transmission occurs either by will or by operation of law
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.
Q: In case of doubt what is the rule? Why?

A: In case of doubt it is a donation inter vivos. In donations inter vivos,
then there is certainty as to the ownership of property unlike in
donations mortis causa.
The term decedent is applied if he or she is the person who died and
who left properties. If he left a will then he is called a testator, but he
may also be called a decedent. If he did not leave a will he is called
a decedent.
In donations mortis causa, even if there is already a will, you are not
sure until the testator is dead because the will is essentially revocable.
June 23, 2016 (K.J.Du)
Decedent is the general term.
Recap:
We already discussed the distinctions between donation or succession
inter vivos and donation or succession mortis causa. To emphasize, it is
very important to know the distinction because these different modes
of transfer have different formalities. There are formal requirements
Article 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death.
Article 776 defines what inheritance is.
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Inheritance it includes all property, rights and obligations of a person

which are not extinguished by his death
case the organs may be considered as property to be transferred to

another.
So, the subjects of succession, the ones which are transferred by

death, by succession, are the properties, rights and obligations.
Q: Is donation the only mode?

A: You can also transfer it by will.
You should be able to distinguish succession from inheritance:
So it is not only limited by donation but also by will or succession.
Succession
Under Article 774
It is the mode of acquisition of
these properties, rights and
obligations
Again, as a general rule, the organs of the human body or parts

thereof cannot be transferred by succession. These are the
exceptions:
Inheritance
Under Article 776
We are talking about the
properties, rights and obligations
themselves which are transferred
by succession
We have these subjects of succession:

I. Properties
R.A. No. 7170 or the Organ Donation Act of 1991

Section 6. Persons Who May Become Legatees or Donees.
The following persons may become legatees or donees of human
bodies or parts thereof for any of the purposes stated hereunder:
(a) Any hospital, physician or surgeon - For medical or dental
education, research, advancement of medical or dental science,
therapy or transplantation;
Q: What are the different kinds of properties that may be transferred

by succession? What are these properties which you studied in your
Property?
A: We have real properties or immovable and personal properties or
movables.
(b) Any accredited medical or dental school, college or university For education, research, advancement of medical or dental
science, or therapy;
Q: What else? Aside from the classification of real and personal?

A: We also have intangible properties.
Intangible or incorporeal properties are those created by legal fiction.
They are those that have no physical existence but in legal
contemplation may exist.
Ex. Patent, copyright, franchise, goodwill
(c) Any organ bank storage facility - For medical or dental

education, research, therapy, or transplantation; and
(d) Any specified individual - For therapy or transplantation needed
by him.
Section 8. Manner of Executing a Legacy.
(a) Legacy of all or part of the human body under Section 3 hereof
may be made by will. The legacy becomes effective upon the
death of the testator without waiting for probate of the will. If the
will is not probated, or if it is declared invalid for testamentary
purposes, the legacy, to the extent that it was executed in good
faith, is nevertheless valid and effective.
Q: Can the human body be considered as property?

A: Generally, no since it cannot be appropriated like other property.
GR: The human body is not considered as property because it is
incapable of appropriation. So you cannot sell your eyes, kidney,
heart, brain, as a general rule.
Q: What do you mean by res nullus?
A: It is not owned by anyone.
(b) A legacy of all or part of the human body under Section 3

hereof may also be made in any document other than a will. The
legacy becomes effective upon death of the testator and shall be
respected by and binding upon his executor or administrator, heirs,
assigns, successors-in-interest and all members of the family. The
document, which may be a card or any paper designed to be
carried on a person, must be signed by the testator in the presence
of two witnesses who must sign the document in his presence. If the
testator cannot sign, the document may be signed for him at his
discretion and in his presence, in the presence of two witnesses
who must, likewise, sign the document in the presence of the
testator. Delivery of the document of legacy during the testator's
lifetime is not necessary to make the legacy valid.
Q: Can you give an example?

A: The sun, stars, or the air
Q: How about the fishes while they are still in the ocean?
A: They are still res nullus, they are not owned by anyone. While they
are swimming in the ocean, you cannot sell them. But once caught,
you can sell them.
Q: How about res communes?
A: Those properties which are considered to be owned by anyone.
Ex. Public parks, municipal plazas, streets, sites
Q: Can you transfer properties which are considered as res communes
or res nullus?
A: No, you cannot transfer these by succession since they are not
considered as illicit property which is the subject of succession.
Q: What if you have 10 sacks of shabu in your warehouse, can you
give that by will to your heirs?
A: No, it is considered as illegal property.
Remember, for a property to be transmissible by succession, the
property:
1.
Must be capable of appropriation
2.
Must be within the commerce of man; it must not be res
nullus or res communes
3.
Must not be prohibited by law
So these are the requirements for property to be considered as proper
subjects of succession.
Q: We mentioned that as a general rule, the human body cannot be
transferred by succession since it is not capable of appropriation. Is
there an exception?
A: Yes, under the Organ Donation Act of 1991. In this act, a person
may donate his organs when he dies to a specific recipient and in this
(c) The legacy may be made to a specified legatee or without

specifying a legatee. If the legacy is made to a specified legatee
who is not available at the time and place of the testator's death,
the attending physician or surgeon, in the absence of any
expressed indication that the testator desired otherwise, may
accept the legacy as legatee. If the legacy does not specify a
legatee, the legacy may be accepted by the attending physician
or surgeon as legatee upon or following the testator's death. The
physician who becomes a legatee under this subsection shall not
participate in the procedures for removing or transplanting a part
or parts of the body of the decedent.
(d) The testator may designate in his will, card or other document,
the surgeon or physician who will carry out the appropriate
procedures. In the absence of a designation, or if the designee is
not available, the legatee or other persons authorized to accept
the legacy may authorize any surgeon or physician for the
purpose.
Take note of Section 6 on who may be legatees or donees. When you
say legatees, these are the recipients by virtue of a will; and donees,
those by donation. Under Section 6, these are the only acceptable
purposes and only for these recipients. You cannot leave a will and
Page5of55

GR: Patrimonial rights are transmissible.

These are rights which pertain to properties. They can be transferred
by succession.
leave your boyfriend or girlfriend your heart placed in a jar as your

memory.
As to the manner by which the organs of the human body or parts
thereof may be transferred by succession, you exhibit a will. The grant
is called a legacy.
Examples of patrimonial rights:

1.
Contract of lease
Legacy it is a gift of specific personal or movable property
What is there in a contract of lease? The lessor who is the owner of the
property leases the property to the lessee.
So when you give your heart of kidney by will, it is a legacy. It should

be in a will or in a written donation under Section 8(a).
What are the rights involved in that contract?

The lessor has the right to demand lease rentals.
The lessee also, as long as he pays the lease rentals, has the right to
remain in peaceful possession of the leased premises.
Under the law on succession, when property is left by will, it is

mandatory that the will should first pass probate.
Probate it is a special proceeding intended to determine the
genuineness and due execution of the will
What if the lessor dies, will the lease contract be extinguished? Can his
heirs still collect rentals from the lessee? Or what if the lessee dies, can
the heirs of the lessee still continue possession of the property? Is there
a transmission of the rights of the lessor or lessee?
Yes, as a general rule in a contract. Contractual rights are generally
transmissible. So there, even if the lessor dies, his heirs can collect lease
rentals; and if the lessee dies, as long as the heirs continue paying the
rentals, they can enjoy the property, they still have the right to possess
the property peacefully.
During probate, the will shall be submitted to the court and there will
be witnesses who will testify as to the will and the court will examine
whether the will is genuine or not forged, whether it was executed
without the presence of vitiated consent, whether the formalities
prescribed by law have been followed, whether it has not been
revoked. So if these questions have been answered and the will is
determined to be valid, then the will is said to be allowed probate.
2.
Even if you are given 1 million or a parcel of land in the will, that grant
is not yet effective until the will is probated. The will without having
passed probate cannot be the source or foundation of any right. That
is the principle.
If an organ like a heart or kidney is given by will, do we have to wait
for the probate of the will before the grant of the organ be effective?
The law says no. The legacy becomes effective upon the death of the
testator without waiting for the probate of the will (Section 8(a)).
This is because probate proceedings take time. If there is an
opposition, 10 years is already a short period. What will happen to the
intended recipient?
Under the law on succession also, if the will turns out to be void, any
legacy provided for in that will cannot be given effect. Because a
legacy exists only in testamentary succession. Testamentary
succession presupposes a valid will. If the will is declared void, then
legal succession shall follow.
Under the Organ Donation Act, even if the will is not probated or even
if the will turns out to be void, still, for as long as the legacy is made in
good faith, it is valid, it can be given effect.
Q: Who are the parties in the Group Life Insurance contract?

A: Grepalife and DBP (there is another insurance contract entered
into by Dr. Leuterio). It was Dr. Leuterio who applied for
membership in that Group Life Insurance.
Ruling: Yes, the widow can receive the insurance proceeds.

Although it appears in the contract that the one who will receive
the insurance proceeds, the designated payee, is DBP, the SC held
that in a policy of life insurance upon life or health, it may pass by
transfer of will or succession to any person whether he has an
insurable interest or not.
As a general rule, the property that you are giving away by

succession should be your own property.
You cannot give what you do not own. There are also exceptions.
[Exceptions not discussed].
II. Rights
Rights can also be transferred by succession as long as these rights are
transmissible rights. They are those which are not extinguished by
death, which survive the death of the decedent.
Patrimonial rights
Q: What is the purpose of that contract of insurance?

A: In that the mortgagors would die during the pendency of the
contract the insurance proceeds would answer for the mortgage
debt.
Issue: WON the widow can receive the insurance proceeds
Another requirement:
A.
Facts: A contract of Group Life Insurance was executed between

Grepalife and DBP. Dr. Leuterio, applies for an insurance contract
from Grepalife which was approved.
The wife of Dr. Leuterio then filed a complaint for specific

performance with damages against Grepalife. The RTC ruled in
favor of Leuterio.
However, there is an allegation of Grepalife that the widow cannot
ask for the insurance proceeds because she is not a party in
interest since she was not a party to the insurance contract
entered into with Grepalife.
What if you donated your heart and the will turns out to be void. Will
the will for the legacy of the heart also be void?
Under Section 8(a): If the will is not probated, or if it is declared invalid
for testamentary purposes, the legacy, to the extent that it was
executed in good faith, is nevertheless valid and effective.
What are these transmissible rights?
Great Pacific Life vs. CA

(GR 113899 | Oct. 13, 1999)
Later, Dr. Leuterio died during the pendency of the mortgage

contract. DBP now asked from Grepalife the insurance proceeds to
pay for the mortgage debt. However, Grepalife declined to give
the insurance proceeds since according to them, Dr. Leuterio
concealed his true state of health.
Therefore, prior probate is not required if the subject is an organ to be

given for these purposes. That is one exception.
4.
The right to insurance
In this case, DBP actually has the right to receive the insurance
proceeds. But under the facts of the case, it appears that after
Grepalife declined to give the insurance proceeds to DBP, the DBP
foreclosed the mortgaged lot.
Since the insurance proceeds should be given, the one who should
receive the insurance proceeds is the widow since DBP already
foreclosed the lots mortgages.
So, the rights in a contract of insurance are transmissible to the heirs.
Page6of55

Take note here that supposedly under a contract of Group Life

Insurance like this, it was in the nature of a Mortgage Redemption
Insurance (MRI).
Dr. Leuterio borrowed money from DBP, a housing loan. As a collateral
for that loan, he mortgaged his house. But under the insurance, if
anything happens to Dr. Leuterio, Grepalife would pay DBP, the
mortgagee, so that the debt would be settled. That should have been
the arrangement.
But because Grepalife did not pay DBP, DBP foreclosed the
mortgage. So eventually it was the estate of Dr. Leuterio which was
affected. Naturally, the heirs can file a suit against Grepalife because
they have an interest. They stepped into the shoes of their
predecessor, the decedent Dr. Leuterio.
A right to file an action for forcible entry or unlawful detainer
Exceptions:
1.
When there is a stipulation in the contract
GR: Contractual rights are transmissible.
But if there is a stipulation in the contract that upon the death of the
lessor or lessee the contract of lease is extinguished, here, there is no
transmission.
Inocencio vs. Hospicio de San Jose
(GR 201787 | Sept. 25, 2003)
An action by heirs to compel the execution of a public

document under Article 1357 of the Civil Code:
Here, a contract of lease was also the subject and there is a

stipulation under Section 6: This contract is non-transferrable unless
prior consent of the lessor is obtained in writing.
Article 1357. If the law requires a document or other special form,

as in the acts and contracts enumerated in the following article,
the contracting parties may compel each other to observe that
form, once the contract has been perfected. This right may be
exercised simultaneously with the action upon the contract.
This is the stipulation in controversy. Because what is the effect if the

lessee, for example, dies?
Here, the lessor contended that upon the death of the lessee, the
contract was already extinguished because of Section 6 which
says that the contract is non-transferrable unless prior consent of
the lessor is obtained in writing. So the lessor said that they did not
consent that the lease contract be now transferred to the heirs. So,
upon the death of the lessee, the lease contract is already
extinguished.
These are the contracts where form is required but merely for
convenience.
For example, you have the sale of a parcel of land. It is in a private
document, it is not notarized. As buyer, you would like the property
now to be transferred to your name so you go to the ROD. You show
your Deed of Sale. The ROD cannot honor that private Deed of Sale.
The ROD would require a notarized Deed of Sale. But the seller no
longer wants to go to the notary public and have it notarized.
The SC said that the general rule is that lease contracts survive the
death of the parties and continue to bind the heirs except if the
contract states otherwise.
[In reality, there are notaries who sign even if the parties do not go to
them. But if it is an honest to goodness transaction, the notary public
will not notarize unless such person or seller is in his presence.]
A lease contract is not essentially personal in character thus the

rights and obligation therein are transmissible to the heirs, except
when the rights and obligations are not transmissible:
(1) by stipulation;
(2) by their nature; or
(3) by provision of law.
What should the buyer do? He can file an action.

Also, if there is still no delivery of the land by the seller to the buyer, he
can file an action for specific performance and in that same action,
pray that the prior public instrument be executed. That right can also
be transmitted. If the buyer dies then his right to file such an action
can pass on to his heirs.
In this particular lease contract, not only were there no stipulations

prohibiting any transmission of rights, but its very terms and
conditions explicitly provided for the transmission of the rights of the
lessor and lessee to their respective heirs and successors.
Action to recover possession (accion publiciana)
What is the difference between an action to recover possession and

an action for forcible entry and unlawful detainer?
There are certain requisites for the filing of forcible entry. It must be
within 1 year from forcible entry, from the discovery of the stealth, etc.
For unlawful detainer, also within 1 year from the date of last demand.
If you will exceed then you can still recover but not under the law of
forcible entry or unlawful detainer. An action to recover possession,
that can also be filed. The right to file such an action can be passed
on to the heirs.
6.
The same thing, if the victim dies whether before filing the action or
during the pendency of the action, his rights may be transferred to his
heirs.
There are also rights which, even if they are patrimonial, they are
extinguished upon the death of the decedent. These are the
exceptions.
If you are the owner of a land and somebody entered it by force,

intimidation, strategy or stealth, that is a case for forcible entry. But
before you filed the case or during the pendency of the action you
died, then that action can be instituted by your heirs. The same for
unlawful detainer
5.
Right to enforce civil liability arising from a crime
Right to recover from tort or negligence
Again, the general rules is that patrimonial rights are generally not
extinguished by death. They are transferred to the heirs by succession,
either by will or by operation of law.
Dr. Leuterio was the debtor, and when he died his rights under that
insurance were transferred to his heirs.
4.
7.
If he dies during the pendency of the action, there will be substitution

of parties in that case. You apply your Rules in Civil Procedure as to
the substitution of the parties.
Remember, the SC said that whether he has an insurable interest or

not, a policy of insurance upon life or health may pass by transfer, will
or succession to any person and such person may recover whatever
the insured might have recovered.
3.
If you are a victim of theft, then you have the right to recover the civil
liability arising from the crime. If you die, then your heirs may also
continue the action.
The death of a party does not excuse non-performance of a

contract which involves a property right. And the rights and
obligations thereunder pass to the successors or representative of
the deceased.
How about that provision in Section 6? Is it not a prohibition for the
transmission of rights?
The SC said no. Again, as a general rule lease contracts involve
rights and obligations which are transferrable.
What Section 6 seeks to avoid is for the lessee to substitute a third
party in place of the lessee without the lessors consent. This refers
to transfers inter vivos and not to transmissions mortis causa. This
cannot be construed to refer to transfers mortis causa because as
Page7of55

a general rule, rights under a contract are transmissible.
partnership;
(4) When a specific thing which a partner had promised to
contribute to the partnership, perishes before the delivery; in any
case by the loss of the thing, when the partner who contributed it
having reserved the ownership thereof, has only transferred to the
partnership the use or enjoyment of the same; but the partnership
shall not be dissolved by the loss of the thing when it occurs after
the partnership has acquired the ownership thereof;
(5) By the death of any partner;
(6) By the insolvency of any partner or of the partnership;
(7) By the civil interdiction of any partner;
(8) By decree of court under the following article.
If your intention is to really end the contract upon the death of

either party, you have to make it really clear. Such as stating that
the death of either the lessor or the lessee extinguished the
contract.
Without mention of death, the SC said that this should only refer to
transfers inter vivos and not mortis causa.
2.
Usufruct
Usually when you say usufruct that involves use of property. But under
Article 603 of the Civil Code, when either party in a contract of
usufruct dies, the usufruct is extinguished, unless otherwise stipulated.
The death of a partner extinguishes or terminates the partnership.

If A is a partner and his partners are B, C and D. If A dies, his child
cannot succeed him in his right to become a partner because
partnership is based on mutual trust and confidence. The heir of the
partner may not necessarily enjoy the same trust and confidence from
the other partners.
Article 603. Usufruct is extinguished:

(1) By the death of the usufructuary, unless a contrary intention
clearly appears;
(2) By the expiration of the period for which it was constituted, or by
the fulfillment of any resolutory condition provided in the title
creating the usufruct;
(3) By merger of the usufruct and ownership in the same person;
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person constituting the
usufruct;
(7) By prescription.
3.
6.
Article 2027. No annuity shall be claimed without first proving the

existence of the person upon whose life the annuity is constituted.
For example, you are paying premiums now and then after 5 years if
you survive then you will continue receiving annuities. If you die, the
annuity will also stop because it is based on the existence of the
person entitled to receive the annuity. Even if it is patrimonial, it is not
transmitted to the heirs.
Agency under Article 1919 of the Civil Code:
Article 1919. Agency is extinguished:

(1) By its revocation;
(2) By the withdrawal of the agent;
(3) By the death, civil interdiction, insanity or insolvency of the
principal or of the agent;
(4) By the dissolution of the firm or corporation which entrusted or
accepted the agency;
(5) By the accomplishment of the object or purpose of the agency;
(6) By the expiration of the period for which the agency was
constituted.
7.
4.
Tenancy under R.A. No. 3844
When you have an agricultural tenant in your land, the death of the
tenant or the death of the owner does not extinguish the tenancy.
This right pertains only to the donor, it cannot be exercised by the

heirs.
8.
Right to become a partner in a partnership under Article

1830 of the Civil Code:
Article 1830. Dissolution is caused:

(1) Without violation of the agreement between the partners:
(a) By the termination of the definite term or particular
undertaking specified in the agreement;
(b) By the express will of any partner, who must act in good
faith, when no definite term or particular is specified;
(c) By the express will of all the partners who have not
assigned their interests or suffered them to be charged for their
separate debts, either before or after the termination of any
specified term or particular undertaking;
(d) By the expulsion of any partner from the business bona fide
in accordance with such a power conferred by the
agreement between the partners;
(2) In contravention of the agreement between the partners,
where the circumstances do not permit a dissolution under any
other provision of this article, by the express will of any partner at
any time;
(3) By any event which makes it unlawful for the business of the
partnership to be carried on or for the members to carry it on in
Commodatum under Article 1939:
Article 1939. Commodatum is purely personal in character.

Consequently:
(1) The death of either the bailor or the bailee extinguishes the
contract;
(2) The bailee can neither lend nor lease the object of the contract
to a third person. However, the members of the bailee's household
may make use of the thing loaned, unless there is a stipulation to
the contrary, or unless the nature of the thing forbids such use.
Because commodatum is purely personal in character. So the death
of either the bailor or the bailee extinguishes the contract.
9.
If the tenant dies, he will be succeeded by his heirs in his right. The
landowner will choose which of the heirs will succeed in the tenancy.
5.
The right to revoke a donation by reason of ingratitude
(Even if this is a patrimonial right because this relates to a property)
Ordinarily, in a contract of agency, the death of either the principal or

the agent extinguished the agency, unless while it is an agency
coupled with an interest.
[This is discussed under BusOrg I]
The right to annuity under Article 2027 of the Civil Code:
In case of a gratuitous deposit under Article 1995 of the Civil

Code:
Article 1995. A deposit its extinguished:

(1) Upon the loss or destruction of the thing deposited;
(2) In case of a gratuitous deposit, upon the death of either the
depositor or the depositary.
In case of a gratuitous deposit, it is extinguished upon the death of
either the depositor or the depositary.
So those are examples of patrimonial rights which are extinguished.
Those are exceptions to the general rule.
B.
Purely personal rights
When it comes to purely personal rights, the rule is that they are
extinguished upon the death of the decedent. Purely personal rights
cannot be transmitted to the heirs, they do not survive the decedent.
GR: Purely personal rights are not transmissible.
Examples:
1.
Parental authority
Page8of55

If the parents die, there is substitute parental authority but it is not by

inheritance, it is provided for by law.
2.
3.
4.
5.
6.
Vano succeeded as administratix of the Jose Vano Estate.

Issue: Which of the two contracts should prevail?
Marital rights relating to persons or property

Actions for legal separation
Right to receive support
Right to vote
Guardianship
Q: Which 2 contracts are you referring to?

A: The Contract to Sell between Teodoro and Benito Liu made
during the lifetime of Jose and the Contract of Sale between
Teodoro and the spouses Loy.
These are examples of purely personal rights which do not survive the
decedent. Upon his death, if he is entitled to support in his lifetime, his
right is extinguished. His heirs cannot demand support. It cannot be
transmitted.
7.
Ruling: The Contract to Sell between Teodoro and Frank Liu should
prevail.
The SC held that while a Contract of Sale has greater force and
effect than a Contract to Sell, the heirs of Vano should respect the
Contract to Sell entered into between Teodoro and Frank Liu.
Right to hold public office
How about the right to hold public office?

For example, if a governor dies, will his children inherit? Of course not.
There is another law on succession under the Local Government
Code, not under this subject.
The SC also ruled that a prior Contract to Sell made by the

decedent prevails over the subsequent Contract of Sale made by
the administrator without probate court approval. The
administrator cannot unilaterally cancel a Contract to Sell made
during his lifetime.
Public office is a public trust. You cannot give it away just like any
other property or right. In fact, it is just a privilege.
It is immaterial if the previous contracts is a mere Contract to Sell

and does not immediately convey ownership.
III. Obligations
Q: What is there in a Contract to Sell?

A: There is no transfer of ownership until you pay the purchase price
in full.
GR: Obligations are transmissible. Purely personal obligations are not

transmissible.
Just like rights, obligations are also transmitted to the heirs.
Take note however that there is a limitation: Insofar as obligations are
concerned, the transmission is only up to the extent of the value of the
inheritance.
If your parents left properties amounting to 10 million and they also left
debt amounting to 12 million, what will happen is that you will be
compelled to pay the debt because you inherited the debts, but only
up to 10 million. In short, you will not receive anything because the
assets that you receive will be paid for the debts. In fact, the rule is
that prior to the distribution of the estate to the heirs, the debts and
taxes should be paid first.
Q: What is the obligation of the seller?

A: It is to transfer the title or to execute a Deed of Sale in favor of
the buyer upon the fulfillment of the obligation of the buyer.
Here, even if it was just a Contract to Sell, nevertheless, it gave rise
to an obligation on the part of the seller that when the condition is
fulfilled then he is bound to execute the proper Deed of Sale and
to convey the property subject of the sale to the buyer.
So that obligation upon his death was transmitted to his heirs. His
heirs cannot disregard that contract by entering into another
contract after the death of the decedent, even if that contract is a
Contract of Sale. Because again, they are bound by the prior
obligation entered into by their predecessor.
How about the remaining 2 million? Who will pay for that? No more.
Here, the heirs cannot be made personally liable for the debts of the
decedent.
Alvarez vs. IAC

(GR 68053 | May 7, 1990)
[So if you are a creditor and you have a debtor whom you feel will
already die and he offers to pay, then you might as well accept it
especially if he still has a lot of other creditors. Because you cannot run
after the heirs more than the value of their inheritance, especially if he
has no properties. That is with respect to the obligation.]
Liu vs. Loy
(GR 145982 | Sept. 13, 2004)
Facts: Jose Vano, the decedent, entered into a Contract to Sell 5
parcels of land thru his son and attorney-in-fact Teodoro, with
Benito Liu. Benito Liu made a deposit of 1,000 and undertook to
pay the balance in installments. Jose Vano passed away. Benito Liu
continued to make payments until he discovered that Teodoro is
unable to make the transfer of the title to Benito.
In 1954, the SC pronounced Joses will valid. Teodoro informed
Frank Liu that he can now transfer the title upon the payment of
the balance of 1,000. It appears that in 1996, Benito sold to Frank
Liu the lot sold to him with Frank assuming the balance.
9 years later, Frank responded that he was willing to pay the
balance of 1,000 and requested the execution of the Deed of
Absolute Sale by sending a check covering the amount. However,
his request letters were unheeded.
Teodoro then also sold one of the lots previously sold to Benito to
Teresita Loy. Subsequently, he also sold the lot to Alfredo Loy.
Teodoro died during the pendency of the proceedings. Milagros
Facts: The real properties involved here are 2 parcels of land

owned by Mr. Anecito Yanes who was survived by his heirs Rufino,
Felipe and Teodora. The private respondents are the children of
Rufino and Felipe.
The Yaneses filed an ex part motion of the issuance of an alias writ
of execution. Siason opposed it.
Q: What is the case filed by the Yaneses?
A: A civil case for recovery of possession of real property with
damages
Q: Against whom?
A: Against Siason, Laura, Flora, Alvarez, and the ROD.
Q: Why was Siason included in the case?
A: Because Alvarez sold the 2 lots and another lot to Siason. Siason
succeeded in declaring the 2 lots in his name for assessment
purposes.
[Just limit your discussion to the topic in Succession. Do not include
matters which are not relevant. How did the claims or how did that
controversy arise?]
Q: Yaneses filed a case against Alvarez. Alvarez sold the lots to
Siason, that is why he was included. After he sold the lots to Siason
what happened to Alvarez?
A: He died.
Q: What happened to the case against Alvarez? Was it decided?
Did the Yaneses win or lose?
Page9of55

A: The Yaneses won the case.

Q: How about against Alvarez, what was the ruling of the court?
A: In that case, the court adjudged the case in favor of the
Yaneses. The court ordered Alvarez to return the properties to the
Yaneses or to pay the monetary value of the properties.
You said that Alvarez already died. Can the court order that the
heirs of Alvarez pay the monetary value of the property when in
fact they did not receive the property because during the
pendency of the case Alvarez died. So, at the time the case was
decided, he died already and his heirs did not receive the property
subject of the case as it was already sold before to Siason.
Q: Can the heirs of Alvarez be ordered to pay the monetary value
of the property when in fact they did not receive the property?
A: Yes, they cannot escape the legal transaction contracted by
their father. It transmits to them, the obligation.
Q: How about the fact that they did not receive the property, that
such property never formed part of the estate of their father?
A: It is of no moment since the proceeds of the sale became part
of the estate. It devolved into the mass of the hereditary estate of
their father. Even if they did not receive that property but it was
sold, so there must be proceeds and that proceeds formed part of
the estate, and the estate was inherited by the heirs.
Q: But what is the limitation of this liability of the heirs?
A: The heirs may only be liable to the extent of their share in the
estate. It is only up to what they inherited.
Q: What about the progressive depersonalization of patrimonial
rights and duties? What do you mean by that? What did the SC
discuss?
A: It is a Roman concept of a relation from person to person, the
obligation has evolved into a relation from patrimony to patrimony,
with the persons occupying only a representative position, barring
those rare cases where the obligation is strictly personal, i.e., is
contracted intuit personae, in consideration of its performance by
a specific person and by no other.
Q: Can you explain that? What do you understand by that? When
you say from a relation from person to person, the obligation has
evolved into a relation from patrimony to patrimony, with the
persons occupying only a representative position, how do you
explain that? Expound.
A: For example, if you have a debt and if your heir will represent
you, the representation is transmitted to your heir so he will also be
liable for it.
With respect to properties, if there are rights and obligations
attached to the property, and whoever is the new owner of that
property, also assumes the rights and obligations of that property.
So if you are the owner and you have properties and then you die,
that does not mean that the rights and obligations die with you.
Because again, the relation is not from person to person but from
patrimony to patrimony.
If you are still alive and you are the owner of that property, then
you have the rights and obligations pertaining to that property.
If you die, whoever succeeds you in that property, also assumes the
rights and obligations with respect to that property.
In our jurisdiction, the person merely occupies a representative
position. If he dies, he loses his representation but he is succeeded
by another. And again, that who succeeds has the corresponding
right and obligations pertaining to the property which he now
owns.
So that is the meaning of the progressive depersonalization of
patrimonial rights and duties. Meaning, it has now been
depersonalized, it is no longer with respect to the person but with
the patrimony.
Genato vs. Baylon
(GR 171035 | Aug. 24, 2009)
The SC also mentioned here that same concept of

depersonalization of patrimonial rights and duties. This also refers to
a loan obligation which is subject to a mortgage.
The SC said that the obligations of the decedent were transmitted
to the heirs.
Here, during the pendency of the case, the mortgagor died. So
does the death of the mortgagor extinguish the claims?
No, because his obligations are transmitted to his heirs who now
succeed him in the property which is the subject of the mortgage.
But what is the effect of his death?
There will be substitution of heirs. The rule here for the substitution is
discussed under Section 20 of Rule 3 of the Rules of Court:
Section 20. Action and contractual money claims. When the
action is for recovery of money arising from contract, express or
implied, and the defendant dies before entry of final judgment
in the court in which the action was pending at the time of such
death, it shall not be dismissed but shall instead be allowed to
continue until entry of final judgment. A favorable judgment
obtained by the plaintiff therein shall be enforced in the manner
especially provided in these Rules for prosecuting claims against
the estate of a deceased person.
So, the case will be continued, it shall not be dismissed but shall
instead be allowed to continue until entry of final judgment,
because there was already a pending case.
A favorable decision or judgement obtained by the plaintiff shall
be enforced in the manner provided in the rules for prosecuting
claims against the estate of a deceased person.
[You dont have your Special Proceedings yet?]
What will happen? If there is already a pending case for collection
of sum of money or foreclosure of mortgage and then the
defendant dies?
Pursuant to the principle that his obligations are transmitted to his
heirs, so the case will not be dismissed but it will be continued but
the heirs will now substitute him.
If there is already a judgment in the case, what will happen?
The favorable judgment shall be presented in the settlement of the
estate of the deceased person, whether testate (there is a will) or
intestate (there is no will). That decision you will present that in the
intestate or testate court as a claim against the estate. So all claims
against the estate will be prosecuted in that same proceeding for
the settlement of the estate of the deceased person. That is under
your Special Proceedings.
It is not like an ordinary civil action because under an ordinary civil
action, if there is a final decision, the debtor, if he is still alive, will be
ordered to pay. If he does not pay, a motion for execution will be
filed by the prevailing party. The court will issue a writ of execution.
The sheriff will go to the debtor and demand from him the
payment. If he does not pay, then his properties will be levied upon
in execution. That is if he is alive. If he is dead then there is a
different procedure- the judgment will be presented in the
settlement of the estate of the deceased person. So that was also
discussed in this case.
Purely personal rights and obligations, as we have discussed, are not
transmitted upon the death of the decedent. They are extinguished.
So what are these purely personal obligations?
1.
Parental obligations
2.
Marital obligations
3.
Contracted to do a piece of work
Ex. You have been contracted to paint a portrait of A but you were
not able to finish it because you died. Can your children be
compelled to finish the painting?
No because that obligation is also purely personal. It takes into
account the qualifications of the painter. It cannot be assumed by the
heirs of the painter.
Page10of55

4.
Under the law on succession, that 8 million will be collated, meaning it

will be returned to the estate. 2 million + 8 million is 10 million. That will
serve as the basis of the legitime of the children, so it will be 5 million,
one-half of the estate. So if there will only be 2 million left, that
donation is now inofficious because it prejudices the legitimes of the
compulsory heirs.
Obligation to give or pay support
If the person obliged to give support dies, that cannot be passed on

to his heirs.
5.
Criminal liability
To prevent the circumvention on the law on legitimes, that is why there

is a need for collation because there are instances when a decedent
does not want to give to an heir or a child, so he will disinherit such heir
(because he is ugly? That is not a ground for disinheritance) and just
donate the property so the heir will not receive anything. So again, we
have collation.
So you have been convicted and sentenced to be imprisoned for 10

years but you died in your fifth year, can your children be compelled
to serve the remaining sentence?
No, because criminal liability is personal.
6.
The obligation to pay taxes
Whose obligation is that?

With respect to taxes and debts, there are two views on the matter:
1.
First view: It is not passed on to the heirs. Why? Because prior to
the distribution to the heirs, the taxes and debts will be settled first
so the heirs will only receive the residue.
2.
Second view: That obligation is passed on to the heirs because

the payment of the debts and the taxes will diminish the shares
that will be distributed to the heirs. So ultimately, the burden of
the taxes and the debts are shouldered by the heirs because of
their reduced shares.
Can the children say that the donation is inofficious and question it
because it prejudices his legitime?
Still, you cannot do that during the lifetime of your parents. Why? You
do not even know if you will survive your parents. What if you die
ahead? You will not have any legitime.
So that is why any disposition or any alienation made by the
predecessor during his lifetime cannot be questioned by the
successors. They only have an expectancy or an inchoate right.
It is only when one dies when you can question the sale or the
donation. Upon death, it is when the right of the heirs become vested.
That is the effect of death.
This is also discussed in the case of Alvarez.

The second view is the prevailing view. Debts and taxes are assumed,
are obligations which are transmitted to the heirs. But again, the
liability of the heirs would only be up to the extent of the value of their
inheritance. They cannot be held liable for more than their share.
Article 777. The rights to the succession are transmitted from the
moment of the death of the decedent.
The law says death is the operative fact which gives rise to succession.
Actually, this should be read as: The rights of the succession are
made effective from the moment of the death of the decedent.
June 27, 2016 (K.J.Du)

Recap:
We already discussed the subjects of inheritance: rights, properties
and obligations.
Again, we have to emphasize that it is death which opens succession.
Without death there can be no transfer of properties, right and
obligations by succession. While the decedent is still alive, his heirs only
have inchoate rights or an expectancy. As a consequence, the heirs
cannot question any disposition made by the decedent of his
properties; they cannot impugn any sale, donation or conveyance.
That was also illustrated in the case of:
Because you do not transmit you rights to the succession. Your rights
you can transmit but your rights to the succession are not transmitted.
The rights to the succession pertains to the heirs themselves. So that
right is made effective upon the death of the decedent.
So it is death that operates to transfer properties by succession.
GR: Without death, there can be no succession.
So while the decedent is alive, what rights do the heirs have over his
properties?
Example: You parents are billionaires. Can you claim any right to a
property? If your parents will like to sell their properties, can you
question the sale? If they donate can you impugn the donation? Or
can you yourself sell their properties on the expectation that you will
be the only heir?
No. Without death, the rights of the heir will only be an inchoate right,
a mere expectancy. So even if your parents would like to sell their
properties or if they like to donate, you cannot question that.
There is the concept of inofficious donation in succession, you cannot
give by donation more than what you can give by way of support,
because you are obliged also to retain property for your support and
for your children.
Felipe vs. Heirs of Aldon

(GR L-60174 | Feb. 16, 1983)
Fact: The wife of Maximo Aldon performed a transfer of part of the
properties of her husband without the consent required by law.
Since under the law, the consent of the husband must be obtained
prior to any sale or conveyance or transfer of conjugal properties.
So the wife of Aldon made the transfer to Felipe. Upon the death of
the Aldon, his heirs should receive the property. They filed for
reconveyance of title of the properties on the basis that the
transfer was improperly done since the wife failed to obtain the
consent of Aldon during his lifetime. The buyer Felipe, on his part,
contested that the sale was already effective.
Q: When did the sale happen? When did the buyers acquire
possession of the property?
A: It happened on 1951, before the death of Felipe.
Q: When did Felipe die?
A: On April 26, 1959
There is also a concept of inofficious donation wherein you cannot

give away something which will prejudice the legitimes of your
compulsory heirs.
Q: In that case, what was the contention of the defendants Felipe?

A: First, that when the right was transmitted, prescription already
started counting.
Second, that the children of Aldon has no legal standing given that
they do not have the right over the properties so they cannot sue
for a complaint to recover ownership of properties.
Compulsory heirs, like children, they are reserved a legitime under the
law. This means that they have a minimum share which they will
receive upon the death of the decedent. For children, one-half of the
estate is reserved for them.
Q: So how did the SC resolve the case?

A: The SC said first that prescription will not operate in this case
because the death of Aldon in 1959 is the reckoning period for the
count of the time of prescription.
Ex. If the father donated several of his properties worth 8 million out of
his 10 million estate. Then he died so he had in his estate the 2 million.
Q: Why would it be counted from the time of death of Aldon?

A: In accordance with Article 777, the right is transmitted upon the
Page11of55

moment of death of the decedent Aldon. Since he died in 1959

and prescription operates until 30 years after the death, while the
case was filed in 1976, it is still within the prescriptive period.
Q: So are you saying that if she died intestate, those donations may
be annulled? Those sales?
A: Yes, if they are inofficious.
Q: Why couldnt the children file during the lifetime of their father?
A: Because they have not yet obtained the right as to the
properties because the rights to succession only arises upon the
death of the decedent.
Take note, if there is a will then a person has no compulsory heirs so

she can just dispose of her properties in any way and to anybody
she wants during her lifetime. She is only obliged to reserve for her
compulsory heirs.
Q: What rights did they have during the lifetime of their father?
A: They merely have an inchoate right or a mere expectancy.
The compulsory heirs are the children; in the absence of children

and descendants, you have the parents and ascendants; the
spouse; and the illegitimate children. So if there are none, you can
give away by will your properties. You can even deprive your legal
heirs, your brothers and sisters, nephews and nieces.
So they could not have possibly questioned the sale because their
rights accrued only upon the death of their father. The period of
prescription should be counted from that time.
Q: How about the second issue?
A: The second contention by the buyers Felipe is that the heirs of
Aldon did not have a right or legal standing.
Q: Do they have legal standing?
A: Yes, because they already possess the right over the properties
upon the death of the decedent.
Again, that illustrates the principle that during the lifetime of the
decedent, the heirs only have an inchoate right.
Here, he SC counted the prescriptive period only, insofar as the
children are concerned, from the time of the death of their father.
Locsin vs. CA
(GR 89783 | Feb. 19, 1992)
Facts: Dona Catalina was married to Mariano. Mariano died and
she inherited certain properties from him. During her lifetime,
Catalina donated certain properties to her nieces, the Locsins. 4
years before her death, she executed a will affirming these
transfers to her nieces.
The other nieces, the Jaucians, filed an action after her death
questioning the donations she made during her lifetime alleging
that these donations will prejudice their legitimes.
Issue: WON these nephews or nieces has good standing to
question the donations made during her lifetime
Ruling: No, the nephews and nieces here are not compulsory heirs.
When Catalina died, she does not have compulsory heirs. Only
compulsory heirs have legitimes that may be prejudiced. Although
these nephews and nieces are legal heirs, they are not compulsory
heirs. Even during Catalinas lifetime, they did not have standing to
sue since what they had was only an inchoate right. Hence, they
do not have standing to question.
Q: Did she execute a will in this case?
A: Yes, 4 years before her death.
Q: How about if she did not execute a will, could these legal heirs
question?
A: No, they are only nephews and nieces.
Q: If they are nephews and nieces that means they are heirs, could
they not question the donations, assignments, transfers made by
Dona Catalina during her lifetime?
A: I think yes they can question.
Q: They could question? On what basis?
A: Because if she died intestate, all her properties will devolve to
her legal heirs.
Q: How about the donations made during her lifetime, what would
be the status of those donations, transfers and assignments?
A: They will be valid.
Q: So you said they could question?
A: Yes, they could question after their death, because during her
lifetime they only have an inchoate right.
Here, she died with a will so it was within her right to dispose her
properties to any person she wanted.
Q: If she died intestate here, those sales, transfers and assignments
made, you said the legal heirs can question it?
Q: If a person dies without a will and she has no compulsory heirs so
the estate will go to the legal heirs?
A: Yes.
Q: What would comprise the estate at the time of her death?
A: Only the properties remaining at the time of her death.
Q: How about those donations, transfers and assignments?
A: They no longer form part of her estate.
Because she was well within her right to dispose of those properties.
She had every right because she was the owner of those
properties. The nephews and nieces cannot question because they
will only be entitled to whatever property would remain at the time
of death of the decedent.
Q: How about the fact that those donations, transfers and
assignments supposedly reduced the estate and their legitime?
A: They cannot question it because they do not have legitimes that
can be prejudiced since they are not compulsory heirs.
They could not question even on the ground that those donations
are inofficious. The question of inofficiousness would only come into
play when you are a compulsory heir, because you have a
legitime.
Nephews and nieces do not have a legitimes. Therefore, they
cannot question those donations as being inofficious. So whatever
would be left at the time of death of the decedent, that would be
her estate.
They cannot question because:
a. They only had inchoate rights.
b. They are not compulsory heirs.
Without the intervening effect of death, we cannot distribute the
properties of the person by succession. There has to be death first.
The rights to the succession are made effective from the moment of
death of the decedent.
What is death? When do we know that the person is already dead so
that we can already distribute his properties by succession?
2 kinds of death recognized under the law on succession:
1.
Actual death
In laymans understanding, you know what death is. If the person is
already buried, he is dead.
It is also defined under the Organ Donation Act of 1991:
Section 2. Definition of Terms. As used in this Act the following
terms shall mean:
(j) "Death" - the irreversible cessation of circulatory and respiratory
functions or the irreversible cessation of all functions of the entire
brain, including the brain stem. A person shall be medically and
Page12of55

legally dead if either:

(1) In the opinion of the attending physician, based on the
acceptable standards of medical practice, there is an
absence of natural respiratory and cardiac functions and,
attempts at resuscitation would not be successful in restoring
those functions. In this case, death shall be deemed to have
occurred at the time these functions ceased; or
(2) In the opinion of the consulting physician, concurred in by
the attending physician, that on the basis of acceptable
standards of medical practice, there is an irreversible cessation
of all brain functions; and considering the absence of such
functions, further attempts at resuscitation or continued
supportive maintenance would not be successful in resorting
such natural functions. In this case, death shall be deemed to
have occurred at the time when these conditions first
appeared.
Facts: We have Julio Lucero Jr who was appointed by Easter

Shipping as the captain of MV Eastern which plies the HK-MNL
route. On one of its voyage from HK-MNL, Eastern received 3
messages from Lucero:
1.
encountered boisterous weather with strong
northeastern winds vessel rolling and pitching violently
2.
vessel laboring violently jettison cargo
3.
need immediate assistance seawater was entering
inside hatch vessel preparing to abandon anytime
There were no more messages after that.
Subsequently, Lloyds of London, the insurer of MV Eastern, declared
that the ship had already sunk and confirmed the loss of the vessel.
It is either confirmed by the doctor or confirmed by us, we know when

a person is dead.
[There is not much confusion when it comes to actual death. In the first
place, before you bury, the doctor must declare that the person is
dead. You will not just decide by yourself to bury a person.]
2.
Presumed death
The SC ruled that after the 3 messages received by Eastern, no

other messages were received. It is also undisputed that the boat
had sunk and the members of the crew, including Lucero,
perished.
Article 390. After an absence of seven years, it being unknown

whether or not the absentee still lives, he shall be presumed dead
for all purposes, except for those of succession.
In view of that, there is enough evidence to show that the

circumstances attending the loss and disappearance of MV
Eastern, is sufficient to lead us to a moral certainty that at the time
the vessel sunk, the persons aboard thereon also died.
The absentee shall not be presumed dead for the purpose of

opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of
five years shall be sufficient in order that his succession may be
opened.
For purposes of succession, if he disappears for a period of 10 years
(we dont know if he is still alive), he can be presumed dead. Again,
we have no idea of his whereabouts because even if we have no
communication with him but he is abroad, we cannot presume him as
dead.
But, the law provides that if he disappeared after the age of 75, an
absence of 5 years would be sufficient. The law presumes that when a
person is already over 75, he has lesser chances of survival.
Qualified or extraordinary presumption
Article 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four
years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and
has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four years.
Under the qualified or extraordinary presumption, there is danger of
death.
So how many years do we need before he can be presumed dead?
The law says 4 years.
If you notice, the circumstances mentioned here are the same as in
the purposes of remarriage. How about for remarriage, how many
years before the absent spouse can be presumed dead and the
absence spouse can remarry?
Isnt it 2 years if there is danger of death?
Because of the circumstances, a shorter period is required for the
presumption to set in.
Eastern vs. Lucero
(124 S 326 | GR L-60101 } Aug. 31, 1983)
Issue: When will the presumption of Luceros death arise?

Ruling: The presumption of death under Article 391 should not
overwrite the facts established in this case.
We have 2 kinds of presumption:

1.
Ordinary presumption
2.
Eastern now paid the corresponding death benefits of the crew

members including Lucero. However the wife of Lucero, Josephine,
alleged that instead of the death benefits, she should receive the
payment for the accrued monthly allotment which her husband
should receive in view of the fact that the voyage was on a
voyage-basis which should only terminate when the vessel arrived
in Manila.
Q: So what is the principle with respect to the rule on presumption?

A: The rule on presumption should yield to the rule on
preponderance of evidence.
If there are facts known or knowable from which a rational
conclusion can be made, the presumption does not step in and
the rule on preponderance of evidence should control.
Q: So here, do we have to wait for 4 years?
A: No, because of the presence of danger of death.
There are facts, there are pieces of evidence which would lead to
a moral certainty that Captain Lucero already perished in that
calamity.
Here, we do not need to wait for 4 years. SC held that the death
benefits should be received by the spouse because there is no
more reason to continue giving the monthly allotment. He already
died.
[Actually, this case was asked in the bar exam last year, 2015.]
When will the moment of death be counted? When do we start
counting the time of death?
a.
When it is actual death, there is no problem, it is at the time

of his actual death.
Insofar as presumptive death is concerned, we have to make a

distinction:
b.
Insofar as ordinary presumption is concerned:
For example, a person disappeared in 1990. Then you waited for 10

years but he did not reappear. After 10 years, which is 2000, he can
be presumed dead already. He is presumed dead as of the year 2000.
The time of death will be counted from year 2000.
Here, whatever properties which accrued to his estate from 1990 to
2000 will be part of his estate. Whatever will be the value if his
Page13of55

properties in 2000, that will be the basis for the computation of the
estate tax.
pertaining to the decedent.

Q: Did we not discuss before in subject in succession that the right
to become a partner in a partnership cannot be transmitted? How
can you reconcile that with this case?
A: Tabanao has the right to receive his share in the partnership. As
a successor of Tabanao, then the wife also had the right to receive
the shares of Tabanao.
Whatever properties which accrue after year 2000 will go to the

respective heirs. We will discuss that when we go to Article 781 on
after-acquired properties.
If he disappeared after the age of 75, then you also count after 5
years.
c.
Q: Does this involve succession to become a partner?

A: No, merely the shares of Tabanao in the partnership.
Insofar as qualified or extraordinary presumption is

concerned:
Q: When was the partnership terminated here?

A: In 1986, when they decided to dissolve the partnership.
For example, he participated in the war in 1990 and he disappeared,

there was no news of him whatsoever. So we wait for 4 years, up to
1994. So after 1994 we already presume him as dead.
Even before the death of the husband, there was already

dissolution of the partnership. This is not a case of acquiring the
rights to become a partner, but just asserting the rights of the
deceased partner to demand for liquidation, accounting,
inventory and distribution of the partnership assets and profits.
When do we start counting the time of death? Should it be in 1994,

after 4 years? Take note that in qualified presumption, the reason for
the presumption is that he disappears and there is danger of death.
That is why the period is shorter because of the danger of death.
Q: As you said, was there a settlement proceeding already in this

case? A settlement of the estate of Tabanao?
A: There was none yet.
Now when do you think the danger of death occur, 1990 or 1994?
In 1990, when he disappeared.
So when he went to war and he was wounded, do you think he would
survive for 4 years then die? He mustve died in 1990, only that you
have to be sure since if he reappears after 4 years then he did not die.
But if he did not appear at all then certainly he died in 1990, at the
time of war.
So here, the counting should start from the date of disappearance.
The 4-year period is only need to give an opportunity for him to
appear. Maybe he will appear. But since he did not, then he really
died in 1990.
It is at the time of disappearance or at the time when there is danger
of death when you count the time of death.
Ordinary presumption
Under Article 390
Time of death is counted after
10 years or 5 years, as the case
may be, when the presumption
arises
Qualified or extraordinary
presumption
Under Article 391
Time of death is counted at the
time of disappearance, or
when there is danger of death
Lets go to the rights of the heirs upon the death of the decedent.
Again, prior to the death, it is only an inchoate right, an expectancy.
Upon death, what is the right of the heirs?
Emnace vs. CA
(370 S 431 | GR 126334 | Nov. 23, 2001)
The heirs, based on this case, had already stepped into the shoes
of their predecessor from the moment of death. The wife had legal
personality because as heir of the husband, she acquired the right
of the husband to demand for that accounting, distribution, etc.
There is no need for her to be appointed as administratix or
executrix.
Q: What do you understand by an executrix or an administratix?
A: The administratix is the one appointed by the court.
When you say executrix, she is the one who is appointed in the will.
She will administer the estate of the decedent.
If there is no will, or even if there is a will but there is no appointed
person mentioned, that person will be called an administrator. If a
woman, administratix.
Here, there was still no administration proceedings, but the heirs do
not have to wait for that. They can institute actions for and in
behalf of the estate, again, from the moment of death of the
decedent.
Rioferio vs. CA
(GR 129008 | Jan, 13, 2004)
Facts: This involves the properties of Alfonso. The ones fighting over
his properties are Esperanza (his wife) and children; and the
petitioners, Teodora (his paramour) and children.
Facts: Emnace, Tabanao and Jacinto were partners and decided

to dissolve their partnership. Before Tabanao died, the partners
failed to submit to Tabanao the statements of assets and liabilities
and they were not able to give him his shares in the partnership.
Alfonso died intestate leaving several properties and left them with
his wife and also to his paramour. It was later on discovered that
Teodora and her children actually executed an Extrajudicial
Settlement of the Estate of the Deceased Person with Quitclaim
involving the properties of Alfonso in Dagupan.
After Tabanao died, the widow filed against Emnace for

accounting, payment of shares, liquidation of assets and damages.
The contention of Emnace is that the wife has no legal capacity to
sue since she was never appointed as administratix or executrix of
his estate.
The wife and the children assailed the action of the paramour
stating that it was improper because they are not actually the legal
heirs of Alfonso. There was still no administrator appointed, yet the
wife Esperanza already instituted the said action against the
paramour.
Issue: WON the wife has legal capacity to bring action for
accounting, payment of shares and damages
Issue: WON the heirs may bring a suit to recover the property of
Alfonsos estate pending the appointment of the administrator
Ruling: Yes, pursuant to Article 777 of the Civil Code. The SC rules
that from the very moment of Tabanaos death, his rights, insofar as
the partnership was concerned, was transmitted to his heirs for
rights to the succession are transmitted from the moment of death
of the decedent.
Ruling: Yes, although there was no appointment yet of the

administrator, the mere fact of the death of Alfonso made
effective the succession. Hence, their right over the properties
already accrued at the time of the death of Alfonso. It is of no
moment that there is already an administrator appointed by the
court or none.
The prior settlement of the estate, or even the appointment of

Salvacion Tabano as executrix or administratix is not necessary for
any of the heirs to acquire legal capacity to sue since a successor
who steps into the shoes can commence any action originally
Q: Was there already an administrator appointed here?

A: None yet, but there was already a proceeding for the
appointment of an administrator.
Page14of55

For example, we have the presumption of survivorship. If 2 person

perished in a shipwreck and you do not know who died ahead. It is
presumed that the one who is older survived. But that is not applicable
to succession.
In the case of Emnace, it is clear that even without a proceeding

yet instituted, the heirs already can step into the shoes and institute
actions for and in behalf of the estate.
Here, there was already a proceeding brought for the settlement
of the estate, so there was a pending administration proceeding,
but still the heirs can institute actions, even if they have not yet
been appointed as administrator.
For succession, we have Rule 131 Section 3 (kk) of the Rules on

Evidence:
Section 3. Disputable presumptions. The following presumptions
are satisfactory if uncontradicted, but may be contradicted and
overcome by other evidence:
(kk) That if there is a doubt, as between two or more persons
who are called to succeed each other, as to which of them
died first, whoever alleges the death of one prior to the other,
shall prove the same; in the absence of proof, they shall be
considered to have died at the same time.
Q: What if there was already an appointed administrator, can the

heirs still sue in behalf of the estate?
A: Yes, it will not matter because we go back to the principle that
succession takes effect at the time of the death of the decedent.
Q: So if there is already an appointed administrator the heirs can
still file?
A: Yes, as an exception.
In succession, there is no presumption of survivorship. Presumptions on

survivorship will apply to other situations but not for the purpose of
distributing the estate of the deceased.
GR: If there is already an administrator, actions for and in behalf of

the estate should be instituted by the administrator. Because here,
the authority is now concentrated on the administrator.
For example, a father and a son are on board a plane. The father is 50
and the son is 17. The plane crashed and both of them died. We do
not know who died first.
Whoever alleges that the father died ahead of the son must prove it,
with facts. If we cannot prove who died ahead of the other, the
presumption is that they died at the same time and there is no
succession from one to the other.
Exceptions: When the heirs can still institute actions for and in
behalf of the state even if there is already an appointed
administrator:
1.
If the executor or administrator is unwilling or refuses to
bring suit
Of course, if the administrator is unwilling, the heirs cannot be
deprived of their right to institute.
2.
Why is it relevant since both of them are dead anyway? Will it make a
difference?
When the administrator is alleged to have participated in

the act complained of and he is made a party
defendant
If the suit would be against the administrator himself, he cannot be

expected to file a suit against himself, so the heirs can file.
Those are the two exceptions.
Remember, upon the death of the decedent, the rights to the
succession are already made effective.
The heirs can bring suit in behalf of the estate even if there is no
administration proceeding instituted but from the moment of death,
they step into the shoes of the decedent. Once there is already a
proceeding instituted, as long as there is no administrator appointed
yet, then the heirs can still file actions. But, when there is already an
appointed administrator then he should file the action, except when
the two situations mentioned are present. That is the rule.
When shall the heirs step into the shoes of the decedent?
It is from the moment of death.
What if they executed an extrajudicial partition 5 years from the death
of the decedent? When are they considered to have succeeded to
the property?
Still, from the moment of death.
If there is a will and the will is probated 10 years from the death of the
decedent, still, the rights of the heir shall start from the moment of the
death.
It is not the appointment as executor or administrator, it is not the
execution of the extrajudicial settlement, and it is not the probate of
the will that confers rights upon the heirs.
The rights, again, start from the moment of the death.
Article 392. If the absentee appears, or without appearing his
existence is proved, he shall recover his property in the condition in
which it may be found, and the price of any property that may
have been alienated or the property acquired therewith; but he
cannot claim either fruits or rents.
Under Rule 131 of the Rules on Evidence, there are also presumptions
there.
For example, A is married to C and they have a child B. As estate is 10

million. A and B were in the plane which crashed.
If we say that A died ahead of B, it means B inherited from B. How

do we distribute the estate assuming it is legal succession? 10
million divided by 2. So 5 million will go to B and the other 5 million
to C.
Because B also died, upon his death, the 5 million will also go to
his heirs. Lets say he has a son Y then it will go to him. How about
C? She is excluded by the child of B. Parents are excluded by the
presence of children.
If B died ahead of A, B will not receive anything, unless he has a

child by right of representation [will be discussed later on]. The
entire 10 million of A will go to C.
If we do not know and cannot prove who died first, then there is
no succession under the rules since they are presumed to have
died at the same time. Even if B has a child Y, and we cannot
prove who died ahead of the two, then the entire 10 million will
go to C since there is no succession between them.
If A died, his heir will now be his wife C. We cannot say that B will
inherit because if they died at the same time, B will not inherit
from A.
If B survived even for a few seconds, he can inherit and pass on

something to Y but if they died at the same time, there is no
inheritance from each other. Everything will go to C.
We can also apply this when we go to Article 891 on reserva troncal.
We will discuss that later on.
Is there a situation when there is succession even without death?
There is one exceptional circumstance when there can be
succession even without death. That is the concept of freak
succession.
Freak means unusual, uncommon, strange. It is freak because it is out
of the ordinary. When will this happen?
If you still remember your Family Code, in cases of declaration of nullity
of marriage or in annulment of marriages, part of the decree will be
the delivery of the presumptive legitimes of the children. When you
say presumptive legitimes, the estate of the spouses upon the
declaration of nullity or annulment will now be liquidated. There will
now be a computation, based on the estate what will be the legitimes
of the children. Based on that, you deliver to the children their
legitimes. That is the delivery of the presumptive legitime.
Page15of55

Why is there a need of delivery of that presumptive legitime?

When the marriage is annulled or declared null and void, the spouses
can already remarry. If they can remarry, they will have a new spouse
and their properties will now be merged into the properties of the
other spouse. To protect the children from that possibility of merging of
properties upon remarriage, the law requires that the presumptive
legitimes of these children be delivered. That will not form part of the
property of the spouse when he or she will remarry.
That is the concept of freak succession. Even if the spouses are still very
much alive, they have to deliver to their children their presumptive
legitimes.
Ordinarily, legitimes are distributed only upon death of the
predecessor. But here, even if the parents are still alive, the children
already get their presumptive legitimes.
3.
Observance of the form prescribed by law
The will must be in the form prescribed by law for there to be

testamentary succession. Because if the will is not valid, even if you
have a designation of heirs in that will, it will not be given effect. As a
consequence, the properties will be distributed by legal succession.
So these are the conditions for testamentary succession as defined
under Article 779.
There can be testamentary succession when there is a will or a codicil.
Codicil an addition or supplement to an existing will; it is termed as a
little will
Article 1083. Every co-heir has a right to demand the division of the
estate unless the testator should have expressly forbidden its
partition, in which case the period of indivision shall not exceed
twenty years as provided in article 494. This power of the testator to
prohibit division applies to the legitime.
Testamentary succession is preferred over legal succession.

Rodriguez vs. Borja
(17 S 41 | GR L-21993 | June 21, 1996)
Even though forbidden by the testator, the co-ownership

terminates when any of the causes for which partnership is
dissolved takes place, or when the court finds for compelling
reasons that division should be ordered, upon petition of one of the
co-heirs.
Facts: Sometime in 1963, Fr. Rodriguez died. There was a purported

will submitted by Apolonia Pangilinan and Adelaida Jacalan.
Q: When did they submit the will?
A: It was in March 4, 1963, almost a month after Fr. Rodriguez died.
What if the decedent in his will says that upon my death, my

properties will only go to my heirs 10 years after my death, can we
say that the rights to the succession here are transmitted only after 10
years from the death of the decedent?
Take note that the law says from the moment of death.
However, the testator may actually prohibit the partition of his estate,
even the legitime, or he can declare that it should remain intact, but
only for a period not exceeding 20 years. That is the limitation.
Again, we are only talking about the partition. The inheritance itself,
the transfer of ownership happens upon the death of the decedent.
In 1963, four days after, the Rodriguezes filed a petition for the
examination of the alleged Last Will and Testament but thereafter
they contended that there was no valid will so they filed an
intestate proceeding before the court.
Q: What happened to the will? Before March 12 something
happened.
A: Before the courts could decide on the merits on the case, they
withdrew their petition on the examination of the will and
thereafter, they filed these intestate proceedings contending that
there was no valid will and that Fr. Rodriguez died intestate.
Q: They filed that when? At what time? At what court?
A: March 12 at around 8am at the CFI of Rizal.
Article 778. Succession may be:

(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed.
At around 11am of the same day, the respondents who previously

submitted the will filed for a proceeding for the probation of the will
contending that there is a valid will.
Article 778 gives us the different kinds of succession.
Q: Same day? In what time? In what court?

A: Yes, at around 11am at the CFI of Bulacan.
What is testamentary succession? It is defined under:

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.
There were two petitions, the first one is a Petition for the Settlement
of the intestate Estate filed at 8am in Rizal; and the second was for
the probate of the will filed at the same day at 11am at Bulacan.
Testamentary succession is when a person or decedent leaves a will.

When a person leaves a will, he is called a testator. While he may also
be called a decedent, it is more technical to call him a testator if
there is a will. This is also called voluntary succession.
Take note, as defined under Article 779, testamentary succession
happens when:
1.
There is a will
It was contended by the petitioners that since they first filed the
intestate proceedings, this should be prioritized over the testate
proceedings. There is also the rule that the first court which first
acquires jurisdiction over the case shall exclude all the other courts
respecting the same issue.
The SC ruled that with respect to testacy and intestacy, the testate
proceeding should prevail because it is the intention of the law to
favor what has been contained in the will. Even if in the probate
proceedings later on it will be decided that it is void then it should
still be prioritized over intestate proceedings.
Of course, if there is no will, then automatically the property will be

distributed by legal succession.
2.
of the properties in the will, there is no designation of an heir. Again,

you follow the will only for the disinheritance but you follow legal
succession thereafter.
There is a designation of an heir
Without the designation of an heir, we cannot distribute the properties

according to the will.
As we will discuss also, there can be a will providing for only for a
disinheritance. In that case, there is no designation of an heir. But
here, there will be no testamentary succession. The probate of the will
shall be done only to determine whether or not the will is valid so we
can give effect to the disinheritance. But after that, still the property
will be distributed by legal succession because there is no distribution
So the first reason is that testacy is favored over intestacy. As long

as there is a will, it has to be probated.
Q: What is the other reason?
A: The SC held that the will should be given as much as possible in
order to give effect to the wishes of the testator. The wishes of the
testator must be given such preference first. Probate of the will is
needed in order to determine whether or not the will was really
valid, whether or not the will was executed in observance with the
formalities of the law.
Page16of55

When can this happen?

a. If the testator did not dispose of all his properties in the will
Q: That is still pursuant to the reason that testacy is favored over

intestacy. There is another reason given by the SC based on the
Rules of Court.
A: With respect to Rule 76 Section 3 of the Rules of Court:
For example: He left properties amounting to 20 million but in the will

he only distributed 10 million. What will happen to all those not
disposed in the will? Those will be governed by the law on legal
succession. But for those disposed by the will, by testamentary
succession.
Section 3. Court to appoint time for proving will. Notice thereof

to be published. When a will is delivered to, or a petition for
the allowance of a will is filed in, the court having jurisdiction,
such court shall fix a time and place for proving the will when all
concerned may appear to contest the allowance thereof, and
shall cause notice of such time and place to be published three
(3) weeks successively, previous to the time appointed, in a
newspaper of general circulation in the province.
b.
If he disposed of everything in his will but there are void provisions,

those void provisions, if there is no substitution, representation,
accretion, it will go by way of legal succession.
Q: Meaning? Technically, which was instituted first here if you follow

Rule 76 Section 3?
A: It was actually the testate proceeding.
Those which cannot be given effect because they are illegal but
there are still other valid provisions, and the provisions can be
separated, the void provisions will be governed by legal succession,
the properties affected by the void provisions. The properties which
are not affected by the void provisions, since they are valid, they can
be distributed by the will.
Q: Why? When will the probate court acquire jurisdiction?

A: Two ways by which the probate court may acquire jurisdiction:
1.
Delivery of the will
2.
By filing of a petition
As for legal succession, there is actually no direct definition of what it is

under the New Civil Code. However, under Article 960, there are
enumerations of those instances of when there is legal succession.
Q: When was the will delivered?

A: It was delivered as early as March 4, 1963.
Article 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which
has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all the
property belonging to the testator. In such case, legal succession
shall take place only with respect to the property of which the
testator has not disposed;
(3) If the suspensive condition attached to the institution of heir
does not happen or is not fulfilled, or if the heir dies before the
testator, or repudiates the inheritance, there being no substitution,
and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in
cases provided in this Code.
Q: What is the consequence of that delivery?

A: It gives the court the jurisdiction over the probate proceedings.
If we are to be very technical about it, which was instituted ahead,
it was really the probate proceeding also, because at the time
when the will was delivered at March 4, 1963, that is already
equivalent to the filing of the petition, that is one way by which the
court acquires jurisdiction over the proceedings. Technically, the
probate was filed first.
Even assuming for the sake of argument that the probate was not
filed earlier, then testacy is favored over intestacy.
Q: In that case, you said that the probate proceeding should be
given priority over the intestate proceeding, what will happen to
the intestate proceeding?
A: It will be suspended. There will be ni intestate proceeding if there
is actually a will.
Again, when you say legal succession, it is when there is no will; or

even if there is a will but the will is void, so the distribution of the
properties will be by law, based on the provisions of the New Civil
Code on succession.
Classifications of succession:
So in the meantime, it will be suspended. If the will turns out to be

valid, the n you distribute the estate according to the will. Here,
there will be no room for the intestate proceeding to proceed. But
if the will turns out to be void, then you can continue the intestate
proceeding.
I.
II.
[Actually, I also experienced this kind of dilemma. Before I had a client

who were disinherited in the will and their brother was instituted as an
heir but their brother did not want to probate the will. He just said he
will give them some properties even if they were not in the will. He did
not probate the will and the will is very defective. But you cannot say
that it is void if you do not probate it. They also do not want to file a
petition for allowance of the will since they did not want to allow it.
What we did, we just delivered a copy of the will to the court and the
court did not act. So I asked and referred this case of Rodriguez that
even if there is no petition, you can just fix the time and the date for
the hearing so that the oppositors can appear. Eventually, they were
convinced since this was the first time in Davao that there is such case.
They called a hearing and that was the time we filed our opposition.]
Just by the delivery of the will to the court, the court can already fix
the time and the place for the hearing. So if you are the oppositor,
you do not need to file a petition for the allowance of the will since
you do not want the will to be allowed; but you can file an opposition
once the court fixes the place and date and time for the hearing.
[The case of Balanay will be discussed later in the interpretation of
wills.]
Article 780. Mixed succession is that effected partly by will and
partly by operation of law.
If the testator disposed of all his properties in his will but some
provisions turn out to be void
III.
As to effectivity
a. Succession inter vivos
b. Succession mortis causa
As to origin
a. Testamentary succession
b. Legal or intestate succession
c. Mixed succession
As to extent
a. Universal succession
This is inheritance by the heirs, who are instituted to the entire estate,
to an aliquot portion, to an ideal share, to a spiritual share of the
estate. Here, the shares are not particularized or specified.
Ex. I hereby give to A my entire estate.
Ex. I hereby give to A of my estate. (an aliquot share)
A here is an heir by universal succession. He is not instituted to a
specific property in the estate.
b.
Particular succession
This is succession to a specific or particular property in the estate. This is

the succession of legatees and devisees.
Legacy gift of specific personal or movable property
Devise gift of specific real or immovable property
IV.
Page17of55
As to part of property transmitted

a. Forced or compulsory succession

This is succession to the legitime. Forced meaning the testator cannot

avoid this. He must give to the heirs their legitimes. He can only
deprive his heirs of their legitimes if there is a valid ground as provided
by law, the grounds for disinheritance.
b.
Voluntary succession
What if the lessees decide then to pay those rentals which accrued
from 1985 to 1990, before the death of the testator? Who is entitled to
the 100,000? Can A claim that? Pursuant to Article 781?
Article 781 refers to those which accrued from the moment of death.
These did not accrue from the moment of death but before death.
Article 781 only apply to accruals or earning or interests earned or
additions after death.
Instead, these would pertain to the estate. It will be governed by
Article 793, the other concept of after-acquired properties, which we
will discuss later.
This is succession to the free portion.

The estate of the testator in testamentary succession is actually
divided into two:
1.
Legitime there is compulsory or forced succession
2.
Free portion there is voluntary succession
Again, when we talk about Article 781, 1990 onwards, as an incident

of ownership.
In the free portion, he is not obliged to give. He can give it to anybody

he wants- his friends, neighbors or even to some of his children.
Strictly speaking, these properties are not really inheritance anymore

because they are incidents of ownership. As an owner of the principal,
he also owns the accessories and the accessions.
The children can receive more than their legitimes but insofar as to the
excess, that is already voluntary succession, as long as they are not
disqualified to inherit.
Article 782. An heir is a person called to the succession either by

the provision of a will or by operation of law.
Again, forced succession is succession to the legitime while voluntary

succession is succession to the free portion.
Devisees and legatees are persons to whom gifts of real and

personal property are respectively given by virtue of a will.
We also have contractual succession.
An heir can exist whether in testamentary succession or in legal

succession.
These will be governed not by the law on donation but by the law on
succession, it is governed by the formalities of wills.
Donations of future property between spouses by reason of marriage

shall be governed by the provision of testamentary succession and
the formalities of wills.
Testamentary heirs if there is will

Compulsory heirs if they are in the legitime
Voluntary heirs if they are instituted in the free portion
Legal or intestate heirs if there is no will
In testamentary heirs, we have compulsory heirs or forced heirs who

are entitled to their legitimes. If there is no will, these same compulsory
heirs are entitled to inherit by legal succession. So all compulsory heirs
are actually legal heirs.
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.
Can we also say that all legal heirs are compulsory heirs?
No, because there are more legal heirs than compulsory heirs.
What does the inheritance include?

It includes not only the property given by the decedent but it also
includes all other properties, income, rent which accrue to that
property starting from the moment of death.
For example: The testator owned a particular building which is being
rented out to third parties. The testator during his lifetime was receiving
rental income from the building. Then he devised the building to A.
Then he died in 1990.
So what will A receive in 1990?
The building, because it was devised to him.
How about the rentals which will be earned from that building starting
from the time of death in 1990 onwards?
That is part of Article 781. Because the devisee A is already the owner
of the building, starting from the time of death, he also owns whatever
is owned from that building.
This is also in relation to your Law on Property on accession. The owner
of the principal also owns the accessories, the accession, those which
are added to or incorporated. So the rental incomes from that
building from that time onwards should also be owned by the devisee.
That is the first concept of after-acquired properties.
In Article 781, we are referring to those which are added to, or
incorporated or which are earned from the property transmitted
starting from the moment of death onwards.
Remember that because under Article 793, we have another concept
of after-acquired properties.
How about those rentals which accrued?
Same example: The will was executed in 1985. The testator devised to
A the building. This building is being rented out. From 1985 to 1990
there are uncollected rentals amounting to 100,000. Then he died in
1990. So the property will now go to A as his devise, and also the
rentals from the building starting from 1990 will also go to A.
Compulsory heirs (4 groups):

1.
Children and descendants
2.
Parents and ascendants
3.
Spouse
4.
Illegitimate children
Legal heirs:
1.
The 4 groups under compulsory heirs
2.
Brothers and sisters
3.
Nephews and nieces
4.
Uncles and aunts
5.
Other collateral relatives up to the 5th degree of
consanguinity
Voluntary heirs cannot inherit if there is no will since they only inherit
based on the will of the testator, they are instituted to the free portion.
Devisees and legatees are those who are given specific properties.
Heirs
They succeed by general right
or universal title; or to all or a
fraction or an aliquot share.
The term heirs exists in both
testamentary and legal
succession.
The heir, if compulsory,
succeeds to the inheritance
regardless of the will since it is
mandated by law.
The quantity cannot be
determined until after the
liquidation of the properties of
the estate.
Prior to the delivery of the
Page18of55
Legatees and devisees

They succeed by special or
particular title; they are given
specific properties
The term legatee or devisees
exist only in testamentary
succession, not in legal
succession.
Only succeed by reason of the
will of the testator
We can already identify the

specific property; it can be
determined already with
certainty.

inheritance of the heirs, the

taxes, debts and other charges
will have to be paid first. So
before that, we will never know
yet the quantity or the exact
amount to be given to the heirs.
The heir represents the juridical
personality of the decedent,
acquiring his property, rights
and obligations.
That is why in our discussion,
from the moment of death of
the decedent, the heirs already
step into the shoes of the
decedent, they can already
institute actions for and in
behalf of the estate. They are
already entitled to the estate;
their rights are already vested.
Take note, they acquire the
generality of the properties,
right and obligations (only up to
the value of the inheritance).
The heir succeeds to the
remainder of the state after all
the have been paid.
When it comes to compulsory
heirs, in the distribution, you pay
first the debts, taxes and
charges then the legitime.
If you are a voluntary heir, the
legacies and devisees will also
be paid first before you.
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 his estate, to take effect after his death.
Article 783 defines what a will is; it says it is an act- meaning it is the
manner by which a person disposes his property to take effect upon
his death.
They do not represent the

juridical personality since they
only acquire specific property.
The will may also be defined as the instrument where the disposition of
a property is embodied, because in our jurisdiction, when we say will, it
must be in writing.
So the will can be the act of disposition or the document in which the
disposition is embodied.
The definition of a will shall be discussed along with the essential
elements and characteristics of a will.
So what are the essential elements and characteristics of a will?
Meaning without this elements and characteristics the act cannot be
considered a will. So if the act cannot be considered a will, it does
dispose of a property after death and it does not require the
formalities of a will. So to consider an act as a will these following
characteristics must be present:
They only acquire properties or

rights, they do not acquire
obligations unlike heirs.
Legatees and devisees will be
given their shares after paying
the taxes, debts and the
legitimes.
Essential elements and characteristics of a will:

(Remember: PASS U C FRIDM)
Personal
Will making is a personal act, meaning it has to be done by the
testator himself, the provisions of the will must that of the testator, he
cannot let another person write for him, he cannot let another person
decide whether his will is valid.
Therefore, the order of distribution is as follows:

1.
Taxes, debts and other charges
2.
Legitime of the compulsory heirs
3.
Legacies and devises given to legatees and devisees
4.
Those given to a voluntary heir
Can the testator delegate to a 3rd person the mechanical act of

drafting his will?
We have to make a distinction as there are two kinds of wills: notarial
will and holographic will.
July 4, 2016 (M.Acosta)

Recap:
Why do we need to know the distinction between an heir, a devisee,
and a legatee?
Because there are provisions in the Civil Code relating to succession
which are applicable only to heirs or applicable only to legatees and
devisees wherein the rights of the heirs, devisees, and legatees will be
affected.
For example in article 793 and 781. So the value of your inheritance or
legacy or devise will also differ.
And also in article 854. Pretirition. So basically you say there is
preterition when a compulsory heir in the direct line is omitted in the
will. The effect of preterition is that the institution of heirs in the will shall
be allowed but if youre a legatee or devisee you can still receive your
legacy or devise for as long as it is not inofficious. If you are an heir, an
instituted heir and a voluntary one at that, when there is pretirition, you
get nothing.
Examples:
I give to A, of my cash in Metrobank, what do you call A?

A, is a legatee because the property is specified cash in
Metrobank. Even if only will not affect such legatee.
of my estate? Heir, even if the entire estate consists only of

cash.
My land in Matina, Davao City? Devise, even if you say of

my land in Matina, still its a devise.
Chapter 2: Testamentary Succession
Section 1: Wills
Subsection 1: Wills in General
When it comes to notarial wills, the mechanical act of drafting the will
can be delegated, in fact it is usually practice because notarial wills
are complicated, and you need to be knowledgeable of the
requisites and formalities, so usually it is being referred to a lawyer- the
drafting of the will. But the contents of the will of course must be that
of the testator. He should decide how his property shall be dispose of,
to whom shall these properties be given, what are the conditions
needed.
But when it comes to holographic wills, even the mechanical act of
drafting the will cannot be delegated, because the holographic will
must be entirely written, dated and signed in the hands of the testator.
Another consequence is that the will is confidential, so even if the
notarial will, the law requires that the notarial will be acknowledged
by a notary public.
So in your evidence what are public documents, one example are
those documents acknowledged before a notary public, nut the law
explicitly exempts a will. So even if wills are notarized, acknowledged
they still remain to be private and not public documents. And also
under the NCC the lawyer who notarized the will is not required to
keep a copy of the will or to submit a copy of the will to the clerk of
court. Under the notarial law, lawyers are required to keep two copies
of the document notarized; one for his file and the other to be
submitted to the clerk of court.
So a will, because it is personal it is not readily available to the public,
it is only for the eyes of the testator. Even the witness of a notarial will
does need to know the contents of the will or to have a copy of the
will. Even the lawyer before whom the will is acknowledged is not
required to know the contents of the will as a general rule.
Animus Testandi
Intent to make a will, so meaning the testator should know the nature
of the act, so this is a last will and testament, the purpose of this
document is to dispose of my properties, and this will be effective
Page19of55

upon my death. So the testator should understand that. That is why

one requirement for testamentary capacity is that soundness of mind.
You cannot have animus testandi if you are not of sound mind.
Montinola vs. Herboza
Court of Appeals Case
The testator must make his will voluntarily, intelligently, of his own
volition. In contracts what is the effect if there is vitiated consent
voidable contract. In wills, the present of vitiated consent will
invalidate the will, there is no voidable will. When the testator was just
forced, it is aground for the disallowance of his will. So the will is void.
Revocable, or ambulatory
Montinola filed an action against the heirs of Jose Rizal for recovery
of possession of personal property (Rizal relics) allegedly sold to him
by Trinidad Rizal. The trial court held that neither party is entitled to
the possession, relying on the fact that in Rizals Mi Ultimo Adios,
there is a line where Rizal bequeathed all his property to the Filipino
people.
Wills are essentially revocable even if the heirs have already accepted
the disposition in his favor, the testator can always revoke that.
Nobody can prevent the testator form cancelling or revoking his will.
Are there grounds for revocation of wills? No. even for the most
arbitrary or whimsical reason the testator can revoke his will.
Q. what specific provision of the poem that was allegedly an

evidence of a testamentary intent?
A. to you I give all of my
Is there a situation wherein the testator cannot revoke his will? There is
only one, when the testator becomes of unsound mind. During that
state, he cannot revoke his will because revocation requires animus
revocandi (intent to revoke). When he becomes insane he cannot
possibly have animus revocandi. Thats the only reason, other than
that he can always revoke his will at any time.
Q. is this a will?
A. not a will but merely a poem, as there was no animus testandi,
no intention to make a will
What if his will was probated? What is probate? When a person dies
with a will or if he executes a will, that will is not automatic, it has to be
submitted before the court. So there has to be petition for probate of
a will. The court will determine the genuineness and due execution of
the will. If the court is satisfied that all the requisites are present then
the court decrees that the will is allowed. That can be done by the
testator during his lifetime or by his heirs upon his death. So even if the
testator had already probated his will, he can still revoke his will.
Q. is there any disposition of property in this poem?

A. none
Q. what is the nature of the document? What specific word was
erroneously translated according to the court?
A. should have been leave not give
So it was just a declaration of parting, of his last wishes. There was no
disposition of property. So here Jose Rizal, at the time that he made
the poem he did not in his mind the disposition of property. He
couldve not given his parents and relatives to the Filipino people. So
this is not a will.
Individual
The will must be the act of only one person, we cannot allow joint wills,
primarily because of public policy. You cannot have one will which is
the will of two or more persons.
Statutory
So will-making is actually a creation of law, it is not an inherent right, it
is merely a privilege. Here in the Philippines we have the NCC which
allows the creation of wills. Take note that there are countries wherein
people there are not allowed to make wills, so it is really dependent
upon the law. In fact if you look on the provision a person is
permitted so meaning his just allowed by law to execute a will. That is
why the will must be subordinated to law and public policy. So even if
as we discussed before that testacy is preferred over intestacy as to
give effect to the wishes of the testator, if the wishes of the testator is
also against the law , then his wishes cannot be given effect. So his
right of disposition is not absolute as it is limited by law.
Solemn
Meaning, will-making requires certain formalities and solemnities, if you
fail to follow such solemnities- the will be void and be disallowed. So
failure to comply would be fatal to the will.
Disposition of property
For a document to be considered a will, it should contain a disposition
of property.
2 ways of disposing properties in a will:
1.
Direct disposition-where a property is specified to be given
person. Ex. I hereby give to A my house and lot in Jacinto St
Davao City.
2.
Indirect disposition-when there is no designated heir to
receive a specific property but instead the testator specifies
an heir who is excluded from his estate, so that is a
disinheritance
Seangio vs. Reyes
(GR 149753 | Nov. 27, 2006)
Unilateral
SC ruled that document containing only disinheritance can also be

considered a will because disinheritance is also considered a
disposition of property (indirect).
Meaning, the testator cannot conditioned the making of the will upon
the consent or act of another; he cannot subordinate that to the
decision or approval of another. He cannot make a bilateral condition
wherein he condition testamentary disposition;
Q. Are there heirs instituted in that document?

A. none
Example. I give to A my land if A will give me his house. So in bilateral,

both parties have their own undertakings. A will is not a contract so it
cannot be bilateral. That is why also when we go to legacy and
devise, there is what we call disposition captatoria, a provision
wherein give an heir and the heir also give to him. So this are
prohibited.
Capacity
At the time when the testator makes a will he must possess
testamentary capacity so 2 requirements: of legal age and of sound
mind. Without any of those capacities, the will would be void. Both
must be present at the time when the testator made the will
Freedom from vitiated consent
Q. Is that document valid? Can it be considered as a will?

A. Yes. Although it appears that it is an instrument which disinherits,
it conforms to the formalities of a holographic will. While it does not
make an affirmative disposition of certain property, the
disinheritance nonetheless is an act of disposition. So the
disinheritance is an act of disposition of property in favor of those
who will succeed except Alfredo, who was disinherited.
A document containing only disinheritance can still be considered a
will because disinheritance is also a way of disposing ones property, it
is an indirect disposition.
Being a will, to be effective, it has to comply with the formalities of will
otherwise the disinheritance will not be given effect.
What if the document is entitled last will and testament and then I
Juan de la Cruz of legal age of sound mind leave this document as
Page20of55

my last will and testament, it is my fervent desire that my family would

also love my illegitimate child Pedro. Signed. But he did not comply
with the other formalities; can that document be given effect? The
title is last will and testament providing for the recognition of an
illegitimate child but it is not in the form of a will. Now, Pedro upon the
death of his father files an action seeking to participate in the
settlement of the estate.
Q. So when you say the survivorship agreement is not a will, what

would now be the consequence?
A.it will not form part of the estate of the deceased wife
Q. Did the balance inure to the husband after the death of the
wife?
A. yes, because that is the tenor of the survivorship agreement
Now if that agreement is considered a will, ordinarily it will not go to
the husband yet, he cannot withdraw that after the death of the wife.
What would happen? Without the survivorship agreement, it will be
frozen until liquidation; either extrajudicial settlement among the heirs
or if it can be considered a will, it has to be probated first before any
distribution.
Can he use that document as evidence? Is it a will?

No because it does contain a disposition of property.
For that document to be valid, does it have to be in a form of a will?
No, because it is not a will.
To be considered as an evidence of acknowledgement, what are the
pieces of evidence allowed under the family code?
Birth certificate or a private document subscribedso that is sufficient
as evidence of acknowledgement. Since no disposition of property it
does not have to be in the form of a will to be valid.
But because it is not a will, so no need of a probate of that document.

The balance by the tenor of the survivorship agreement inures to the
husband. Because that is not a will that disposes the separate property
of the wife.
A document appointing an executor or administrator of the estate, is

that a will? Is there a disposition of property?
Article 784. The making of a will is 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.
When you say administrator, he does not dispose the property, but
merely manages and administers the property, he is not given any
property. So again on that premise- that document is a valid
appointment it does not have to be in the form of a last will and
testament to be valid.
Mortis Causa
When a document transfers ownership only upon the death of the
testator or alleged donor-that is a will. Therefore for that document to
effectively transfer ownership upon death, it has to comply with all the
formalities of wills. Now in the same manner, wherein the transfer is
within the lifetime of the donor, then it does not have to be in the form
of a will to be valid. It suffice that it complies with the formalities of
donation. So a will needs death in order to be effective
Vitug vs. CA
(183 S 755)
This case inlvolves the wills of Dolores Vitug who died in NY naming
Corona as executrix. Vitug (petitioner) filed a motion asking for
authority from the probate court to sell certain shares of stock and
real properties belonging to the estate to cover allegedly his
advances to the estate, which he claimed, were personal funds.
Corona opposed on the ground that the same funds withdrawn
from a savings account were conjugal partnership properties and
part of the estate, and hence, there was allegedly no ground for
reimbursement. However, Vitug insists that the said funds are his
exclusive property having acquired the same through survivorship
agreement executed by his late wife and the bank.
Q. what is the tenor of that survivorship agreement?
A.
Ha? I cannot hear.
Q. Upon the death of either spouse what would happen to that
savings account?
Dili ko kadungog. Pwede ka magpaduol.i cannot hear.
Theres a provision in the survivorship agreement as to what would
happen to joint savings account if either of the spouses dies. The
balance shall belong to the one who survives.
Q. what kind of property can be disposed of in the will?
Q. what is a personal property?
You can only dispose of your own or separate property. You
cannot dispose of properties that as in this case a joint holding.
So here the SC said the will .the delivers ones property in favor of
another. Here in the savings account they merely agree in the
survivorship agreement that the balance of the savings account
shall belong to the one who survives. So this is not a will because
the account is their joint holding.
Will is a personal act it cannot be left in whole or in part on the

discretion of a third person or accomplished through the
instrumentality of an agent or attorney. Although as we have
discussed already, when it comes to notarial wills- you can delegate
to another the mechanical act of drafting the will that is discussed in
the case of Castaneda vs Alemany. Again if notarial will, drafting can
be delegated but the contents thereof must be of course dictated by
the testator. But in holographic will, even the mechanical act of
drafting cannot be delegated
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.
So this is another consequence of that characteristic that the will is
personal. So what cannot be delegated under article 785?
First, the duration of the designation of heirs, legatees, or

devisees- I hereby give to A B and C this car and X will
decide the duration of the use of the car by A B and C. This
cannot be delegated.
Second, the efficacy of the designation of heirs, legatees,

and devisees- I hereby instituted A B and C as my heirs
subject to the approval of X. This cannot be allowed
because if you will subject the approval of the institution
then it is as if the person approving is the one who makes
the disposition, it should be the testator.
Third, the determination of the portions which they are to

take when referred to by name, take note that the heirs
here are referred to by name. I hereby give to A B and C my
cash in Metrobank and X will decide how much A B and C
will get. That cannot be done.
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.
Article 786 on the other hand speak of allowable delegations. What
can the testator entrust to a third person under article 786?
First, the distribution of specific property or sums of money
Second, which is left in general to specified classes or

causes
Third, designation of the persons, institutions or

establishments to which such property or sums of money are
to be given or applied
For example, I hereby give 1M to the top 5 of III Manresa and X will
determine how much would be the share of each. Is it valid? Does it
conform with article 786? Distribution of specific property or sum of
money, did that specifies a specific class? Yes it specifies a class and
the designation of the persons institutions or establishments to which
such property or sums of money are to be given or applied.
Page21of55

How do you distinguish this from article 785, the third prohibition?
Article 785.xxx the determination of the portions which they are to
take, when referred to by name.
estate. Such partition had already become valid ruling that the will
may be probated.
Ordinarily one cannot dispose of the conjugal estate in his or her
will because taken as a whole the conjugal estate is not your
separate property but, so it can actually be that will, provision in
the will can actually be interpreted in two ways: it can be
interpreted as void because it compose of the conjugal estate but
it can also be interpreted as valid taking into account the
renunciation of the husband.
I hereby leave my 1M to A B and C and X will determine how much

would be the share of each. So here the persons are specified in
names and the x is the person delegated who will determine the
portions. So thats 785.
Now how to we distinguish 785 and 786?
1.) In 785, the heirs, devisees, or legatees are referred to by
name in the will whereas in 786, they are not named
2.) In 785, there is no class or cause specified whereas in 786,
the class or cause is specified
3.) In 785, what the delegate does is the determination of the
portions only however in 786, the delegate determines the
persons, institutions, or establishment s
Article 785
HLD referred to by name in the
will
No class or cause
It is the 3rd person who
determines the portion to be
given
Q. What is the rule with respect to interpretation?

A. Where there is a doubt in the interpretation of the will, it should
be resolved in favor of the testacy where there will be, or where the
will shows that there is intention on the part of the testator testatrix
to dispose his or her own estate.
In short we follow the interpretation which will give effect to the
wishes of the testator.
Article 786
HLD not named
Q. Now assuming that such provision is really void would it affect

the entire will?
A. No.
There is class or cause specified

What the 3rd person does is to
determine the persons,
institutions or establishment
Q. what is the ruling of the SC with respect to that?

A. Even if some provision of the will is void, it does not follow that
the entire will be void. And if the valid provisions can be separated
from the void provisions then the provisions which are valid can still
be given effect.
Ex. I hereby give such sum of money as X may determine to the top 5
of III Manresa and he will also decide how much would be the share
of each. Is this valid?
No because there is no specific property or sum of money left as
article 786 requires that there should be a specific property or sum of
money.
You do not invalidate the entire will. Assuming that such provision is
void, but again the SC ruled that the same can be interpreted as valid
because again there is already renunciation made by the husband.
Article 787. The testator may not make a testamentary disposition in

such manner that another person has to determine whether or not
it is operative.
Dizon-Rivera vs. Dizon

(33 SCRA 554)
So here, I hereby give to A my land in Calinan Davao City subject to

the approval of X. This is not valid. Again because it should be the
testators decision not of the delegate.
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.
Provision admits of different interpretations; interpretations can be that
the will or provision is valid or not valid. Which interpretation shall be
followed? Under 788, it is the interpretation which will make the
disposition operative.
Balanay vs. Martinez
(64 S 452 | GR L-39247 | June 27, 1975)
Q. what was the ground for the opposition?
A. Balanay Sr contended that he did not denounce his hereditary
rights over the estate of his wife. And further argued that the said
affidavit was void.
Q. With respect to that disposition of the wife of the conjugal land
in the will, what was the opposition to that? Aside from the alleged
invalidity of the renunciation, what was the contention with respect
to that provision?
A. it was alleged that she has devised the land as if it was all
owned by her.
As we have learned before in the case of Vitug Vs CA, in your will
you are supposed to dispose only of your own separate property
.So here she made a partition and disposition of the conjugal lots.
Legally that should not have been done because that is not her
separate property.
Q. so what is the ruling of the Supreme Court with respect to that in
relation to article 788?
A. SC said that there is no doubt that the testatrix intended to
partition the estate in the manner set forth in the will. While it is true
that she can only dispose of by will only half of the estate but since
the husband here had already renounce his conjugal share in the
The testatrix, Agripina Valdez was survived by seven compulsory

heirs (6 children, 1 grandchild). In her will there is a provision which
provides that she devised and bequeathed specific real properties
comprising practically the entire bulk of her estate among her six
children and eight grandchildren. When Marina; the executrix filed
her project of partition adjudicating the estate, it was opposed by
the other heirs who also made their own counter project of
partition stating that the project partition submitted by Marina
reduce their legitime since as provided in the last will they are
considered to be devisees other than heirs.
Issue: WON the document is a will or is it a devise which
bequeathed properties to the heirs?
Q. so what specific phrase in the will was in question?
A. devised and bequeathed
Q. what would be the consequence if we really interpret it as a
devise? When you say I devised- you are giving a devise when you
say I bequeathed you are giving a legacy
A. If interpreted as devise or legacy, it will be taken from the free
portion rather than from the legitime of the heirs. So in effect the
property that will be inherited by the heirs will be much more than
that provided by Marina in the project of partition she submitted.
Ruling: SC ruled that it was in the nature of a will and that the heirs
here are not devisees. In this case the SC ruled that in case of
doubt, the interpretation by which the disposition is to be operative
shall be preferred pursuant to Article 788 and 789. The will must be
interpreted in its entirety in order to give rise to testacy rather than
intestacy. In this case it was clear that the document is a will
wherein it provide that it is my wish and I command that my
property be divided according to the dispositions. With respect to
the counter project partition, it would give rise to intestacy rather
than testacy.
When we talk of legacy and devise that only applies to the free
portion which is usually half of the estate. So when you interpret the
document as a devise or legacy, then limited only to the half but if
we interpret it as inheritance, it will cover the entire estate.
Page22of55

Q. What specific phrase in the will shows that what was really
intended was for them to heairs and devisees or legatees?
A. The use of the phrase my heir in this testament which provides
that Agripina considered the heirs not as devisees or legatees.
Ex. I hereby leave to some of my classmates my house in Jacinto St.

Davao City . So what is wrong in that provision? Some of my
classmates, who are these classsmates , pila ka buok? So here there is
an apparent ambiguity.
In the interpretation of wills, we should look into the intention of the

testator, and by the use of the words my heir in this testament then
that intention to constitute the persons not merely as devisees but as
heirs.
Now based on 789 how will we correct these ambiguities? What kinds
of evidence can be used to correct these ambiguities?
2 kinds of evidence to cure the ambiguities in the will:
1.
Intrinsic Evidence- evidence that is found in the will itself.by
reading the will, you do not have to go beyond the will. If
notarial will, maybe you can find it in the body of the will, in the
attestation clause or even in the acknowledgement, as long as it
is in the will itself it is considered as intrinsic evidence
Vda.de Villanueva vs Juico

(4 SCRA 550)
The issue here is how to interpret the provision in the will of the
testator. He bequeathed in favor of his wife properties for her use
and under the condition that she should not remarry. Intention was
to vest only with usufruct.
Ex. I hereby give my house and lot in Samal to my bestfriend Juan, and
when you start investigating,wala siyay bestfriend na Juan but
mayabe somewhere in the will nay narration si testator na I still
remember when we were in grade 2 xxx . so kinsa mani siya? So that
is a description, so if you can find the person who fits that description
in the will, then that description is actually an intrinsic evidence , you
can use that.
Q. Did the testator leave a will here? What did he leave to his wife?
A. In the will of the testator, he bequeathed in favor of his wife of
her certain properties for her use and possession while alive and
she does not contract a second marriage, otherwise, the properties
shall pass to the testators grandniece.
2.
Q. Did the wife remarry? What would happen if she remarry?

A. usufruct would be terminated
Extrinsic Evidence- evidence which is not found in the will, that is

evidence gathered by looking beyond the will by investigating,
interviewing,
So it was clear here that it was only use and possession with respect to
the property. Remarriage here is just a condition for her not to forfeit
the property. If she remarries, shell forfeit the property. If she did not
remarry and she died, the property will go to her estate because only
the usufruct was given. Take note here that this condition is made to
apply only to the free portion because with respect to the legitime of
the spouse, you cannot impose any condition.
Ex. I hereby give my house and lot in Samal to Juan, nya walay
nakabutang sa will at all, wlaay description of Juan, wala pud kay
nakita sa iayng mga bestfriend na Juan. But one of them nay letter,
given to her by the testator during his lifetime nga promise jud
bestfriend inig mamatay ko ihatag nako s aimo ang akong Samal
property, but that person is not Juan, actually Joan siya. So the letter is
an extrinsic evidence. Wala siya sa will but you can supply.
Remember that this Article 788 would apply only if there is doubt
because if there is no doubt, there is no room for interpretation. So you
apply the provision literally as they are written.
How about testimonies of persons? Can we use that oral evidence?

Yes.
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 provision, the testators 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
Article 789 talks of ambiguities in a will.
Kinds of Ambiguities in a Will
A. Latent or Intrinsic it is an ambiguity that does not appear in the
face of the will. So meaning, even if you read the will, there is no
error, you cannot say that there is wrong here. You will only
discover that there is something wrong or an ambiguity in the will
when you start looking for the properties mentioned in the will or
the persons instituted in the will.
Four kinds of latent or intrinsic ambiguity
1.
Imperfect description of the heir, legatee, or devisee
Ex. I hereby give my land in Samal to my bestfriend Juan. So
walay mali sa will but when you start looking for that bestfriend ,
wala kay nakita nga naa siyay bestfriend na si Juan. So kinsa
man diay ni siya, this person being referred to?
2.
Imperfect description of the property given
Ex. I hereby give my favorite bed to my bestfriend juan and then
wala siaya bed sa iyang estate
3.
When two or more persons meet the description
Ex. I hereby give my land in Samal to Juan, niya duha kabuok
iyang bestfriend na Juan.
4.
When two or more things meet the description
Ex. Duha iyang land so asa man didto
B.
Patent or Extrinsic - This is an ambiguity that is very clear,

apparent upon the face of the will. By just reading the will you will
readily know that there is something wrong in the provisions
Rule 130 Section 9. Evidence of written agreements. When the

terms of an agreement have been reduced to writing, it is
considered as containing all the terms agreed upon and there can
be, between the parties and their successors in interest, no
evidence of such terms other than the contents of the written
agreement.
However, a party may present evidence to modify, explain or add
to the terms of written agreement if he puts in issue in his pleading:
a. An instrinsic ambiguity, mistake or imperfection in the written
agreement;
b. The failure of the written agreement to express the true intent
and agreement of the parties thereto;
c. The validity of the written agreement; or
d. The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written
agreement.
The term agreement includes wills.
General Rule, when you have an agreement and it is reduced into
writing, you cannot introduce oral evidence to vary the terms of the
written agreement. You have to rely on what is written because, it
contained all terms and conditions agreed upon. So that is the parole
evidence rule
Exception; however, a party may present evidence to modify, explain
or add to the terms of written agreement if he puts in issue in his
pleading:
a. An intrinsic ambiguity, mistake or imperfection in the
written agreement
b. The failure of the written agreement to express the true
intent and agreement of the parties thereto
c. The validity of the written agreement; or
d. The existence of other terms agreed to by the parties or
their successors in interest after the execution of the
written agreement.
The term agreement includes wills.
Page23of55

What article 789 prohibits is the oral declaration pertaining to the

testators intention. You cannot call a witness and testify ah kana si
Juan/Joan, ako jud to, nanong kabalo man ka nga ikaw? Mao may
giingon sa akoa sa testator tung buhi pa siya how sure are we na it
was really stated by the testator and of course you cannot ask the
testator as he is already dead. So there is no way of verifying the truth
of that declaration.
So anything that will pertain to the supposed to that oral declaration
of the testator-that cannot be allowed under article 789. Death had
already sealed the lips of the testator. So to place the parties in equal
position, the law likewise seals the lips of the person alive- he cannot
say anything regarding what the testator supposedly said during his
lifetime. Ok lang kung nay gibilin na letter si testator at leat you can
verify pero kung muingon kag giingon jud ni testator kana di jud na
siya maverify.
So again you can correct latent or intrinsic ambiguity as well as patent
or extrinsic ambiguity by either intrinsic evidence or extrinsic evidence.
Extrinsic evidence may include oral evidence but again except those
which pertain to those supposed oral declarations of the testator.
July 7, 2016 (M.Acosta)
Recap:
So again in Article 789, there are two types of ambiguities- extrinsic
ambiguity and intrinsic validity. And they can all be cured by extrinsic
evidence or intrinsic evidence.
When we say intrinsic evidence- evidence which is found in the will
itself; whether in the provisions of the will or in the attestation clause or
in the acknowledgement portion as long as within the four corners of
the will.
Extrinsic evidence may be documents, writings, made by the testator
during his lifetime even oral evidence except the evidence pertaining
to the supposed oral declaration of intent of the testator. So that is
not allowed.
Now, talking again about ambiguity, you remember in your
obligations and contracts that if the contract does not express the
true intention of the parties but there was meeting of the mind, what is
the remedy for that? Reformation. If the other party does not want to
voluntarily execute a new agreement correcting the mistake, then
you have to file an action for reformation.
How about a last will and testament? For example the testator said I
promise kay ikaw man akong favorite na pag-umangkon- I promise
that I will give you 10 ha of my land in Samal, so happy kayo kay naa
tagaan kag 10 ha and then now there is the last will and testamentang nakabutang didto 1.0 unsa mana siya ten? Its one diba. Ana ka
karon nga di mani mao ang giingon, and then giignan nimo imong
uncle, cle 10 ha gud to imong giingon. Can you file an action for
reformation? No.
Article 1366. There shall be no reformation in the ff:
1.) Simple donations inter vivos wherein no condition is imposed;
2.) Wills;
3.) When the real agreement is void.
So it is clear under article 1366. Now take note of the first two, these
acts involved acts of liberality or generosity. So, you cannot ask for
reformation because if the donor or testator will insist na mao na to
then you should only be thankful. At least gani gitagaan ka diba. So
walay remedy of reformation na available. And of course when the
real agreement is void, cause of course useless na magpareform ka to
reflect the true agreement which is void. So that is also in connection
to wills, so wills cannot be reformed. But you can use the different rules
on interpretation to determine the true intention of the testator. But
not to reform the will. Now we also have Rule 130 section 23 in relation
also to oral evidence
Rule 130 Section 23. Disqualification by reason of death or insanity
of adverse party. Parties or assignors of parties to a case, or
persons in whose behalf a case is prosecuted, against an executor
or administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such person
of unsound mind, cannot testify as to any matter of fact occurring

before the death of such deceased person or before such person
became of unsound mind.
Again, this refers to testimonial evidence, meaning oral. For example,
you have a claim against the estate of the deceased or the person
and then he died and your claim is not in writing, and so he died, this
time to whom or against whom shall you file? So against the estate, if
there is executor or administrator so against them.
The law says you cannot testify against or to any matter of fact
occurring before the death of the deceased person, why? Because
he cannot anymore dispute again your testimony. You cannot say the
promise that he will pay within 10 days , unya kuan, again you cannot
dispute that anymore as purely verbal. Ok lang kung naa moy written,
you can prove that. So that is the survivorship disqualification rule.
Again the same reason as that death seal the lips of the deceased
person then to place the parties in equal footing the law will also base
the, the law will also seal the lips of those who survive. Ok so they
cannot testify, as to those facts occurring before the death.
Article 790. The words of the 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 the 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.
Okay, so the rule here is ordinary terms in the will are to be given their
ordinary meaning. Technical terms are also given their technical
meaning. So what are ordinary terms? Those terms which are
understood in laymans term. What is a table, a chair. Technical terms
are word which has their own meaning as defined in the rules or laws
in a certain subject, discipline, science and the like. Example, when
you say adopted, what do you mean by adopted? Its a technical
term. In law, when you say adopted one who undergone the
process of adoption. When you say legacy, it is a gift of personal
property. So these are technical terms. Ordinary terms as a general
rule again are to be given their ordinary meaning. Technical terms are
also to be interpreted in their technical signification.
Now there is exception however, for ordinary terms again general rule
given its ordinary meaning, except:
When it is clear that there is an intention to give it another meaning
Example. My favorite bed, but actually its a table but it has been use
by the testator as his bed, since day 1 until his death, so obviously you
shall that a different meaning because the intention is that the table is
considered as a bed, okay so based on the intention
Technical terms given technical meaning unless
1. there is a contrary intention
2. when the testator prepared his will by himself and it is clear that he
is unacquainted with the technical meaning of the terms
So for example, the word adopted, kung naa ka sa bukid, ang
axdopted sa imoha kanang gisagop, not necessarily having gone the
process of adoption. So if there is a testator who made a will and
provide that I hereby given of my property to my adopted son A.
how do you interpret the word adopted? Should you insist na no
because hes not legally adopted, he cannot receive the inheritance
because the testator said adopted. But in that case the intention is
really is not the use of the technical meaning of the word adopted.
But the intention is to give it to the person described, regardless of
whether or not his legally adopted. Especially iof the person is
unacquainted with the technical meaning. So ikaw lang man
buhat2x sa will, I hereby give a legacy to x, and legacy refers to
personal property and it is to be taken from the free portion. But what
if the intention of the testator was to constitute the person as an heir,
not really as a legacy as what we discussed before so you refer to the
intention of the testator and whether or not he is really acquainted
with the technical meaning.
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
Page24of55

modes of interpreting a will, that is to be preferred which will

prevent intestacy.
So another rule on construction of wills. Actually 791 is divided into 2
parts:
First, 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- in
other words the will must be interpreted as a whole
Second, and of two modes of interpreting a will, that is to be

preferred which will prevent intestacy- or as what we have
already learned before testacy is favored over intestacy.
tungkulin o gampanan. And with that when you reconcile those

provisions, you interpret the will as a whole, it can be deduce that the
intention of the testator is to constitute that as a directive. So the
testator did not give the heirs the discretion even if the word
pahintulutan was used cause again it was preceded by the word
tungkulin o gampanan.
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.
So even if assuming some provisions of the will are void, as long as you
can give effect to the other provisions they can separated. So just
disregard those invalid dispositions. Unless of course the other
provisions are dependent on the invalid provision, in that case you
cannot give effect to the entire will.
So these are the rules under 791. When we discussed the case of
Balanay vs Martinez, the SC there interpreted the will as a whole not
merely piece by piece or in isolation it even included in the
interpretation an act which is outside of the will, the renunciation
made by the husband so as to give effect to that certain provision of
the will distributing the conjugal properties. And also that of testacy
over intestacy is discussed in Balanay vs Martinez.
And also in Rodriguez vs Borja. So even if the intestate proceeding had
already commenced ahead of the testate proceeding but still
because there is a will the court has t0 exhaust all possible remedies to
determine whether or not the will is valid. So the intestate proceeding
cannot commence or even proceed if there is a will. If the will is found
to be valid then there is no more room for the intestate proceeding to
commence because the property will now be distributed according
to the will. If the will is found to be void, then that is the time that
intestate proceeding may continue.
Yambao vs. Gonzales
(1 SCRA 157)
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.
793, I mention this before when we discussed 781. As I said, article 781
is a rule on after acquired property that is one. Another is article 793.
The law says 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 what is the meaning of this? First, this provision applies to
properties acquired by the testator after he made the will but before
his death.
So this provision covers that situation where the testator executes a will
I hereby give to A this parcel of land in Calinan davao City covered
by tct#14344 assuming that title has 10 ha what is that? That is a
devise of a parcel of land. So assuming he made the will in year 2000
so kato nga land has 10 ha and then in year 2005 because of
accretion the land increase in size, you learn before in land
registration that accretion belongs to the owner of the land to which it
is attached. So because of accretion nahimo siyang 11 ha ujpon the
death of the testator in year 2010. Now can the devisee demand the
11 ha property? Can he demand the property including the
accretion?
This case involves the will of one Maria Gonzales - wherein a

pertinent provision thereof provides dapat din naman malaman
ng dalawa kong taga-pagmana na sila Maria Pablo at Angelina
Gonzales na sila ay may dapat tungkulin o gampanan gaya ng
sumusunod:
2) Pahihintulutan nila na si Delfin Yambao ang makapagtrabaho
ng bukid habang panahon, at ang nasabing bukid ay isasailalim sa
pamamahala ng Albasea samantalang ang bukid ay nasa usapin
at may urtang pa.
Pursuant article 783-no. Only that property which exist at the time of
the execution of the will. So unsa man ang existing as of year 2000
10ha lang now you ask what about the principle of accession? Does
the owner of the principal acquired the accession? Actually yes, upon
the owner of the land. So the testator owned that land. That is not
included in the devise. Upon the death of the testator, the devisee
can get the 10ha, how about the 1ha? It goes to the estate, kung
walay nataagan sa will to the legal heirs of the testator.
Relying on the said provision, Yamabo now went to Gonzales to

request that he be placed as tenant of the land, however, the
latter refused.
Q. so what is the issue with respect to that provision in the will?
A. what would be the import of the word pahihintulutan; whether it
be mandatory or merely discretionary
Q. what did they do which gave rise to the controversy? What was
the demand of plaintiff?
A. that he be made tenant pursuant to the provision of the will
How is this different from article 781? Which says that the inheritance
not only includes the property but also those which accrue after the
opening of the succession? Well, 781 apply to those which accrue
after the death of the testator. Had the accretion occurred after the
death then that accretion will belong to the devisee. Assuming the
testator die in the year 2010 wala pa to nag accretion so diba na land
now by the devisee assuming that in 2011 di ha pa nag occur ang
accretion, then it would belong to the devisee. Pursuant to article 781.
Q. so what was the contention why they rejected the plaintiff?

Where did they get the idea that it was merely a suggestion?
A. Pahihintulutan as used in the will only means to permit or to allow
but not to direct to appoint Yambao. So it connotes discretion.
Q. so what was the ruling?
A. The Supreme Court ruled that the will contains a clear directive
to employ Yambao as may be seen from the words preceding the
word pahihhintulutan which say dapat din naman malaman ng
dalawa kong taga-pagmana na sila Maria Pablo at Angelina
Gonzales na sila ay may dapat tungkulin o gampanan gaya ng
mga sumusunod. The words dapat tungkulin o gangpanan mean
to dio or to carry out as mandate or directive and having
reference to the word pahihintulutan, can convey no other
meaning than to impose a duty upon Gonzales and Pablo.
Why? Because from the moment of death, the devisee already

became the owner of the land and as woner of the land he also owns
whatever is added to or incorporated top the land or whatever
accrues form the land. So in 2011 siya na ang tag iya pursuant to the
principle of accession, principal owns the accession. Since he was
already the owner at that time then he owns the accretion.
Ok so here, the word pahintulutan has to be understood in relation to

the words which preceded tungkulin o gampanan. So which
connote to carry out as directive. It does not imply discretion ok. So
you cannot just interpret that certain provision in the will in isolation.
The word pahintulutan should not be interpreted on its own. It has to
be interpreted in relation to the opening sentence which says
Take note 793 apples only to legacies and devisees. Ok so kato kung
tagaan kag specific parcel of land and thre is an accretion that
devise only includes the specific parcel of land not the accretion.
When you say inheritance diba we have to distinguish devise, legacy
and inheritance. Devise or legacy involves a specific personal or real
property. Inheritance you have universality or the aliquot share or
ideal share.
The testator made a will in year 2000 in that will he said I hereby
institute A as heir to of my estate, assuming in year 2000 the value of
Page25of55

the estate was 10M over time kay dugay man namatay si testator
nadugangan iyang estate, pagkamatay niya nahimo ng 20M iyang
estate,. How much can the heir claim? Should it be 10M the value at
the mtime of the execution of the will or 20M the value at the time of
death?
Take note ha ang heir is not limited to a specific property he succeeds
to the universality of the properties, rights, and obligations. So if you
are an heir article 793 cannot apply to you. Because again universal
ang imohang succession. So whatever will be the value of the state at
the time of death- that is the property that you get. Kung niingon si
testator na to all alnagn naman na imong makuha lang kay katong
10M sa will. To all gyud at the time of death. The value at the time of
death. So again this is one of the reason why we need to know the
distinction between inheritance, devise, and legacy.
What are the exceptions to article 793, where even those properties
acquired after the execution of the will are included in the legacy or
devise?
1.
One exception is from the article itself, if it expressly appears
by the will that it was the intention of the testator to also give
the property which is acquired after the execution of the
will.
So if the testator says I hereby give to A my parcel of land
and whatever may be added to that property etc..then,
clearly the devise includes the accession
2.
Articles 930 and 935
Article 794. Every devise or legacy shall cover all the interest which
the testator could devise or bequeath in the property disposed of,
unless it clearly appears from the will that he intended to convey a
less interest.
There are different forms, like, if you are already executing a

holographic will you have to follow the formalities, for example the will
must be entirely written, dated and signed in the hands of the testator.
If it is a notarial will it has to have an attestation clause, it has to be
acknowledged before a notary public, it has to have three witnesses,
paging, so there are several requirements. So these are the
requirements referring to extrinsic validity, the forms, the appearance
of the will.
2. Intrinsic validity- when you say intrinsic we are referring to the
legality of the provisions of the will. It refers to the substance. Extrinsic
refers to the form while the intrinsic refers to the substance.
Whether or not the properties disposed of in the will are

owned by the testator, ownership of the properties.
Whether the heirs to whom the properties are given are

qualified, so that is capacity to succeed.
Whether or not there is impairment of the legitime.
Whether or not there is a valid disinheritance

Those are matters pertaining to the intrinsic validity of the will.
These are the two kinds of validity.
Article 795 talks of extrinsic validity. This is actually the third time that
you have heard of the word extrinsic.
1. Extrinsic ambiguity- an ambiguity that is clear and apparent from
the face of the will.
2. Extrinsic evidence- that is not found in the will but is beyond the will.
3. Extrinsic validity- refers to the forms and solemnity that must be
observed in the execution of wills.
It is the same thing with intrinsic ambiguity, evidence and validity.
Again article 795 talks about extrinsic validity.
Both kinds of validity, Extrinsic and Intrinsic can be viewed from two
points.
1. From the view point of time
2. From the view point of place and country
Ok so rule on devises and legacies, it shall cover all the interest which
the testator has over the property. I hereby devise to A this parcel of
land, so what is the understanding of that devise? Is it limited only to
the usufruct? Limited only to a specific period?
I. FORMAL OR EXTRINSIC VALIDITY
The law says whatever interest the testator may have over the
property that is included in the devise or legacy. If the testator is the
owner of the entire area then all the interest of the testator to that
area shall go to the devise upon the death of the testator. So
everything.
1. View point of time: The time when the will is executed.
Now how about if the testator only owns of that property, and in his
will I hereby give to A the entire parcel of land .so what is the effect
of that? lang iyang ownership but he is giving the entire land. now,
under the rules on legacies and devises actually, if the testator did
not know that he only owned , so he thought that he owned
everything and he give the property to the devise, then in that casethe devise will only be limited to the interest , so lang he cannot give
what he did not own.
So to determine whether or not the will is valid as to form as of the time

when the will is made or executed, we have to look into the provisions
of the law enforced at the time of the execution of the will.
But if he knew that at the time that he made the will that he is not the
owner of the entire land but still he gave- although Im only the owner
of , Im giving everthing. Is that possible? Yes, how? In that case,
there is now an implied order on the estate upon time of death of the
testator to acquire the other portions form their owners so that the
entire property can be given to the legatee or devisee. What if the
owners refuse to give or sell the property to the estate? In that case
the estate will give the devisee or legatee the share of the testator
which is , the remaining kay di man makuha sa tag-ya; then the
estate would have to give the just value of the said portion to the
legatee or devisee. So mao na xa. Unless it clearly appears from the
will that he intended to convey a less interest.
July 11, 2016 (K.Tongo)
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.
Article 795 talks of the validity of a will as to its form. Actually when
you speak of validity of a will there are two kinds.
How do we know whether that will made in the year 2000 is valid as to
form. Or that will made in 1935 is valid as to form. We have Article 795.
The law says It depends upon the observance of the laws enforced
at the time of execution of the will.
If the will was made in 1935, in order to know if it is formally or

extrinsically valid then look at the provisions of the law in 1935. If it is
made in year 2015 then look at the provisions of the law in 2015. So it is
at the time when the will is made. Why? The formalities prescribed by
law in the execution of the will are actually intended to prevent
forgery and vices of consent in the execution of the will. It is to assure
that the will is authentic. That it was really executed by the testator.
Now these risks which are being guarded against by the law in
providing for this provisions are present at the time of execution. The
danger of forgery is present at the time of the execution. Vices of
consent of course should be present at the time of the execution. It
cannot be for example you made a will and then the next day diha
pa ang vitiated consent, it should be the time when the will is made.
It is for this reason that the testator has to observe the laws at the time
of the execution of the will. What If the laws are changed? For
example he made a will in 1935 and then in 1950 diba we had the
New Civil Code? What if there are changes in the law? Should the
testator comply again with those formalities prescribed by the new
law? It is sufficient that the testator at the time when he made the will
complied to the laws enforced. He cannot be expected to know
what laws will govern in the future. That is the rule.
2 kinds of validity:
1. Extrinsic validity- That refers to the forms and solemnities that must
be observed in the execution of a will.
Enriquez vs. Abadia

(GR L-7188 | Aug. 9, 1954)
Page26of55

Q: What formality of the will here is in question?

A: The form of the will itself being a holographic will.
So before August 30 1950 holographic wills were not allowed and
even then the old civil code prescribed formalities which the will in this
case did not comply. Such as the numbering of pages.
Q: So what is the ruling of the Supreme Court here?
A: The Supreme Court held that the holographic wills should not be
allowed to probate because the law in effect during the time of
probate, the New Civil Code which states that 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. So here the Court looked at the time when
Father Abadia executed the will in 1923. Since at that time the Old
Civil Code was in effect disallowing holographic wills therefore the
Father Abadias will should not be allowed for probate.
So here, 1923 is the time when the will was made and the Old Civil
Code was still in effect specifically the Code of Civil Procedure.
Actually even before that holographic wills were allowed, that was in
1907, but during the effectivity of the Code of Civil Procedure until
August 30 1950 holographic wills were not allowed. So during the
effectivity of the New Civil Code that was only when holographic wills
were again recognized.
Principle: The legislature cannot validate a void will.

If it was void at the time when it was made, the subsequent changes
of the law could not render that will effective. So take note again the
extrinsic validity shall be governed by the law enforced at the time of
execution.
for example the testator is in the Philippines what law shall be

followed? What if he is a foreigner in the Philippines? What if he is a
Filipino abroad and he makes a will. What law should he follow, what
country?
For example he is a Filipino is he bound to follow the Filipino law when
he is in Germany? Will he follow the law of Germany so far as the form
is concerned? These are the questions pertaining to the extrinsic
validity of the will from the view point of the place or the country.
There are several situations with respect to what law shall govern. You
should remember all of these situations.
Article 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign country,
the solemnities established by Philippine laws shall be observed in their
execution.
Prohibitive laws concerning persons, their acts or property, and those
which have for their object public order, public policy and good
customs shall not be rendered ineffective by law or judgments
promulgated, or by determination or conventions agreed upon in a
foreign country.
Testator
Filipino
Abada vs. Abaja

(GR 147145 | Jan. 31, 2005)
Q: What will was executed and what form?
A: Last will and testament and in the form of notarial will.
Q: There was a contention here that the will was not acknowledged in
a notary public
Why did it become an issue?
A: Because at the time when the will was effected the law enforced
was the Old Civil Code.
Alien
Place of
Execution
Philippines
Abroad before
the diplomatic
or consular
official of the
Republic of the
Philippines.
Abroad no
longer within
the diplomatic
or consular
office
Abroad
Q: When did he executed the will?

A: June 30 4 1932
Q: What was the law enforced?
A: the Old Civil Code and the law governing the execution of wills is
the Code of Civil Procedure.
Philippines
Q: Is the acknowledgment before a notary public required in the Old

Civil Code?
A: Yes. But the Code of Civil Procedure repealed the provision
requiring the acknowledgement of the notary public and it was
provided in the Code of Civil Procedure that intervention of the
Notary public is not necessary in the execution of the will. Therefore
the will executed by Abada did not require the acknowledgment of
the notary public.
Governing Law
Philippine Laws (Article 17)
Philippine Laws (Article 17)
Lex loci celebrationis. Law of the

place of the execution. (Article 17)
Or the law of the country or the
place where he may be (Article 815)
1. The law of his residence - Where he
resides
2. Law of his country or nationality National law
3. Philippine Law
(Article 816)
4. Law of the place of the execution
(Article 17)
National law (Article 817)
Law of the place of execution
(Article 17)
A. When the testator is a Filipino:

When the place of execution is:
1.
In the Philippines
Follow Philippine laws as provided under Article 17.
Q: What If he died after the effectivity of the New Civil Code?

A: Still the Old Civil Code will apply pursuant to Article 795.
Here, even if subsequent to the execution of the will the New Civil
Code took effect and required the intervention of the notary public in
the execution of wills, even if he died during the effectivity of the New
Civil Code and the will is presented for probate during the effectivity
of the New Civil Code, because his will comply in the laws enforce at
the time it was made then that would be sufficient
Principle: Legislature cannot invalidate a valid will.
Here at the same manner if the will is relevant at the time of execution,
the legislature cannot invalidate a valid will.
The general rule here is the law of the place of the execution. The law
of the place where the will is made. Lex loci celebracionis. Law of the
place of celebration. Law of the place of execution.
If you are a Filipino and you execute the will in the Philippines then
obviously Philippine Law will apply because it is the law of the place
of execution. That is the general rule.
You should remember article 17 because in all other cases this would
also apply. Even if you have already forgotten all the other laws that
would apply at least you can answer article 17.
2.
2. View point of place or country

Now lets go to the view point of place or country in so far as extrinsic
validity of the will is concerned. We are confronted with the question if
Abroad before the diplomatic or consular official of the

Republic of the Philippines.
Follow Philippine laws as provided under Article 17.
Page27of55

Even if the testator is in China but before the diplomatic or consular

official of the Republic of the Philippines in China, he is still considered
in Philippine soil. Because our consular and diplomatic offices are
considered as extension of the Philippine Territory.
3.
Abroad no longer within the diplomatic or consular office
If you noticed when a will is made in the Philippines, the testator has
lesser choices compared to when the will is made abroad. When a will
is made by a Filipino he has lesser choices compared to a will made
by a foreigner. The one who has the least number of choices is the
Filipino who makes his choice in the Philippines. One choice lang ang
Filipino. And the one who has most number of choices is a foreignertestator who executes his will abroad if you noticed the laws
governing the extrinsic validity.
Article 815. When a Filipino is in a foreign country, he is authorized

to make a will in any of the forms established by law of the country
in which he may be. Such will may be probated in the Philippines.
Under Article 815 he can also follow the forms established by the law
of the country or the place where he may be. Kung asa siya.
Which is also the same as Article 17 because the law of the place of
execution is the place where he may be. You cannot separate
yourself in that situation.
Those are the laws which the testator as a Filipino can comply with
when he executes his will abroad.
So if you are in China and you execute the will there you can also
follow the law of China because it is the place where he may be and
the place of execution.
If you notice Article 815 it says he is authorized to make a will.
Meaning, he is allowed to make a will following the formalities of the
place where he may be.
How do we know if the will is intrinsically valid? Kung valid ba ang

provisions sa will, legal ba siya, naa ba siyay preterition, invalid
disinheritance etc. What law governs the intrinsic validity of the will
from the view point of time.
So, those are the laws which the testator as a Filipino can comply with
when he executes his will abroad.
B. When the testator is an alien:
When the place of execution is:
1.
In the Philippines
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 to the laws of the Philippines.
If he is an American and he makes his will in the Philippines, he can
actually follow the law of his nationality- US Laws, insofar as the form of
his will is concerned. They can follow his national law pursuant to
Article 817.
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.
Under Article 816 he can comply with:
1. The law of his residence - Where he resides
2. Law of his country or nationality -- National law
3. Philippine Law
So those are the three choices he may comply with in so far as the
extrinsic validity is concerned.
We are talking of the substance, the legality of the provisions in the

will. Whether it is a holographic will or a notarial will.
1. From the Viewpoint of time:

The law in force at the time of death
Pursuant to Article 815 what is that primary law which that Filipino has
to follow insofar as to the formality of his will is concerned? Philippine
law. Because he is a Filipino.
Abroad
II. INTRINSIC VALIDITY
When you say intrinsic validity as I have said we have to contend with
two viewpoints:
1. View point of time
2. View point from the place or country
The use of the word authorized actually signifies that it is just a

secondary law. It is not a primary law. He has to follow a set of laws
but he has also authorized to follow the law of the place where he
may be.
2.
So he has actually four choices.

So if the testator is an American Citizen but he resides in Japan and he
makes his will in Germany, so what law can be followed insofar as the
extrinsic validity of the will is concerned? Any of those laws.
Article 17. Lex loci celebrationis. Law of the place of the execution.
If he is in China then he can comply with the law of China.
In addition to that is Article 17, the law of the place of execution.

So as Ive said he is a testator who is a foreigner and he executes his
will in the Philippines, the Philippines being the place of execution, he
can also comply with Philippine laws in addition to his National law.
In addition to that is Article 17:

4. Law of the place of the execution.
Article 2263. Rights to the inheritance of a person who dies, with or

without a will, before the effectivity of this Code, shall be governed by
the Civil Code of 1889, by other previous laws, and by the Rules of
Court. The inheritance of those who, with or without a will, die after the
beginning of the effectivity of this Code, shall be adjudicated and
distributed in accordance with this new body of laws and by the Rules
of Court; but the testamentary provisions shall be carried out insofar as
they may be permitted by this Code. Therefore legitimes, betterments,
legacies and bequest shall be respected; however, their amount shall
be reduced if in no other manner can every compulsory heir be given
his full share according to this Code.
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 is will or by operation of law.
Based on these two articles what law shall govern the intrinsic validity
of the will?
2263 says if the person dies before the effectivity of the New Civil
Code, testate or intestate the rights to the inheritance shall be
governed by the Civil Code of 1889 and other previous laws.
If he died during or after the effectivity of the New Civil Code, testate
or intestate, the rights to the inheritance shall be governed by the New
Civil Code.
In short, the Intrinsic validity shall be based on the law enforced at the
time of death of the testator.
For example in 1925 the testator executed a will. In that will he omitted
an illegitimate child. Take note that under the New Civil Code the
illegitimate children have legitimes. They cannot be deprived of their
legitime without a valid ground. If you omit illegitmate children, for
example, you did not mention them in the will, you did not give
anything to them in the will and there are not given some donation
and you have exposed your property in the will, we have that situation
of preterition. We will discuss that under Article 854 but the effect of
Page28of55

preterition is that the institution of heirs in the will shall be annulled. In

short, the will cannot be given effect because the institution of heirs is
annulled.
So when you omit an illegitimate child in the will there is preterition
under the New Civil Code. But before the New Civil Code illegitimate
children were not given successional rights.
What if this testator in 1925 made a will completely omitting his
illegtimate child? Is that will intrinsically valid? Can you say for sure
that it is intrinsically valid? It depends. It depends when will the testator
die. Because the intrinsic validity shall be governed by the laws
enforced at the time of death. Dili pa kaingon na valid siya or void. If
he died before the effectivity of the New Civil Code then that will will
be perfectly valid because there will be no preterition. If that testator
would die after the effectivity or during the effectivity of the New Civil
Code then obviously that will cannot be given effect because of
preterition. Again it is the time of death.
Why is it the time of death? Why is it the law that will determine the
intrinsic validity? Remember when you say intrinsic validity we are
referring to legality of the provisions. The transmission; Whether that
person can validly receive, whether the omission is valid, so intrinsic
validity actually would refer to the transmission, the capacity of the
heirs to succeed, the validity of the provisions of the will. It is the time of
death because as we have already discussed in Article 774
transmission happens upon death. So it is the time when we should
measure whether or not the transfer is valid because again it is when
transmission happens, at the time of death.
So there is only one with respect to the intrinsic validity from the view
point of time- The law enforced at the time of death!
to what they are trying to take.

Q: How about the provisions on his will when he stated that the estate
shall be distributed according to the Filipino laws?
A: According to the SC , the said stipulation in the will cannot be given
effect since it is considered void being contrary to law since Art 16 of
the NCC provides that the National law of the decedent shall govern
with respect to the order of succession, the amount of successional
rights and the intrinsic validity in the testamentary provisions.
So even if in succession the testators wishes constitutes the primary
and principal law of succession. But if those wishes is against the law,
in that case, we cannot give effect to those wishes however
expressed it might be.
Q: With respect to the issue on legitime you have mentioned article
17. We have that provision under Art. 17 wherein if the law involves
public policy considerations, they cannot be rendered nugatory by
conventions, laws promulgated outside the Philippines. How will you
relate that to legitime? Because legitime is admittedly a matter of
policy here in the Philippines.
A: Whatever public policy and good customs may be involved in our
system of legitimes, Congress has not intended to extend the same to
the succession of foreign nationals. It has specifically chosen the
decedents national law to govern, inter alia, the amount of
successional rights. Furthermore it is provided that Article17 is more of
a general type of provision compared to Article 16 which provides
that the National law shall govern the intrinsic validity of the
testamentary provisions.
Specific provisions must prevail over general ones.
It is very clear under Article 16 that when it comes to foreigners the
intrinsic validity of their will shall be governed by their national law.
2. From the viewpoint of place or country

Article 16. Real property as well as personal property is subject to the
law of the country where it is stipulated.
Cayetano vs. Leonidas

(GR L-54919 | May 30, 1984)
However, intestate and testamentary successions, both with respect

to the order of succession and to the amount of successional rights
and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found
The general rule here in Article 16 is lex situs. Real property as well as
personal property is subject to the law of the country where it is
situated.
However, when it comes to succession whether testate or intestate the
law says both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the
person whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found
It has the same ruling as Bellis with respect to the system of legitimes
not being extended to succession insofar as the estate of foreign
nationals are concerned. In this case even if preterition was alleged
you have to look into the national law of the decedent. If his national
law recognizes the system of legitimes thereafter he omitted in his will
the compulsory heirs then his will would not be valid. But if his national
law does not recognized the system of legitimes therefore he can just
omit in his will the compulsory heir. So it depends upon the national
law.
Llorente vs. CA
(GR 124371 | Nov. 23, 2000)
When he died he was already a naturalized citizen of US. In that case,
upon his death with respect to the distribution of his estate which is a
matter pertaining to the intrinsic validity of his will, that should be
governed by his national law.
Q: What if he made a will before he became a US citizen. Would that
affect his will?
A: No maam. Because when he later acquired US citizenship, his
national law will govern.
Whatever may be the nature whether real or personal property and

wherever that property might be situated. It doesnt matter. It is
always the national law of the decedent. So that is the law which
governs the intrinsic validity of his will.
Q: For example when he was still a Filipino and he made a will and
then he omitted certain compulsory heirs in the will. But he was
naturalized then he died. Would the will be valid? (he died when he
was naturalized)
A: Yes Maam because what would govern is his National law.
Bellis vs. Bellis

(GR L-23678 | June 6 1967)
Q: When you talk of distributions of properties and legitimes what
aspect of the wills validity would that be?
A: Legitimes and distributions, these matters pertain to the intrinsic
validity of the will.
If the question is if the will is extrinsically valid, that would depend on

his compliance of the law enforced at the time he made a will.
Q: So what is the ruling of the Supreme Court?

A: The SC said that Texas law should be applicable following the rule
stated under Article 16 of the Civil Code which provides that the
order of succession, the amount of successional rights and the intrinsic
validity in the testamentary provisions shall be governed by the
National law of the decedent. Bellis is a citizen of Texas, the law that
should be followed would be the Texas law. Since the Texas Law does
not recognize the concept of legitimes, the oppositors are not entitled
What were his options? If the will is made in the Philippines then he
should comply with Philippine laws insofar as the extrinsic validity is
concerned. If he made a will abroad he can follow either the
Philippine laws or the law of the place where he may be or the law of
the place of execution.
Insofar as intrinsic validity of the will is concerned wala ta kabalo. That
would be determined at the time of his death.
Page29of55

morals shall be considered as not imposed and shall not

prejudice the heir or legatee in any manner whatsoever, even
should the testator otherwise provide
But because when he died he was already an American so the

intrinsic validity of his will should be governed by his National law.
Whether or not the omission of certain compulsory heirs is valid would
depend on what American laws would provide.
If he did not become naturalized definitely it would not be intrinsically
valid because we recognized system of legitimes under the Philippine
law. That is, if he died during the effectivity of the New Civil Code. If
you are referring for example to a legitimate children, before the
effectivity of the New civil code dili pud tanan compulsory heirs are
entitled to legitimes like illegitimate children.
So you really have to be familiar with the extrinsic validity from the
view point of time and from the view point of place or country. And
intrinsic validity from the view point of time and from the time of place
and country.
So just remember there he was naturalized and it should be his
national law at the time of his death
PCIB vs. Escolin
(56 S 266 | March 29, 1974)
Said condition is contrary to law because it expressly ignores the

testators national law when, according to Article 10 of the Civil Code
above quotes, such national law of the testator is the one to govern
his testamentary dispositions.
However all other provisions in the will not contrary to testators
national laws are perfectly valid and effective.
In short because that provision of the will is void, anyone who opposes
that does not lose inheritance. Because it shall be considered as just
not written.
Q: With respect to the issue on the partition because it was allegedly
against the provisions of Turkish laws, you said that the oppositor was
not able to present what are the laws of turkey on the matter. So what
would be the consequence of that?
A: The approval of the scheme of partition which was submitted by
the judicial administrator of the estate is considered as proper.
Q: So what law shall govern here with respect to the distribution of the
estate?
A: The law of Texas based on Article 16, his national law.
Q: Why would it be considered as proper?

A: Because of the doctrine of processual presumption that in the
absence of evidence that the laws of turkey are not the same with PH
then it would be presumed to be the same as in the PH.
Q: In that case he was a resident in the Philippines but a citizen of U.S.

As you said pursuant to Article 16 the distribution of his estate shall be
governed by his national law. How do we know what are the
provisions of his national law?
Q: How would you apply that to the partition made?

A: Since it is not shown that the partition which was submitted by the
judicial administrator violates the Philippine laws on the matter then
they are admitted.
A:The provisions of his national law must proven and alleged by

presenting authentic copy of their civil code or jurisprudence and
works of experts and authorities.
So here the Supreme Court applied the Doctrine of processual

presumption. Although under the case of PCIB vs ESCOLIN our Courts
do not take judicial notice of foreign laws they have to be alleged
and proved like any other fact. But if there is no evidence presented,
the presumption is that, those foreign laws are the same as Philippine
laws. It is the doctrine of processual presumption.
So we do not take judicial notice of foreign laws. Our courts do not

assume what are the laws of Texas, California, Mexico etc because
we do not study foreign law. Nagkalisud lisod na gani mog study ug
Philippine laws tapos nag expect pa ta na kabalo mog foreign laws.
Grabe napud na siya.
Those laws have to be alleged. It means that in your pleading you
have to allege what are these laws and then prove the existence of
these laws like any other fact. You should introduce evidence as to
what are these laws because again we present there; what would be
there civil code, rules of court, jurisprudence in the matter, expert
testimony. So those are visible pieces of evidence to prove the
existence of these foreign laws.
Our courts do not take judicial notice of foreign laws
Except:
1. When the said laws are already within the actual knowledge of the
Court as when it shall be known
2.They have been actually ruled upon in other cases before the Court
and not the parties concerned claim otherwise
In that case, the same law was already made an issue with the same
court before so obviously the Court has already knowledge with that
particular law. It can take judicial notice.
Miciano vs. Brimo
(GR 22595 | Nov. 1, 1924)
Q: What particular provision he opposed?
A: He opposed the provision that the estate should be disposed in
accordance to the Philippine laws because according to him it should
be based on his nationalitythe Turkish law.
Q: So anyone who would oppose that provision would be excluded,
he opposed so can he be excluded?
A: No Maam . According to the Court he cannot be excluded
because the condition imposed in the will is void being contrary to law
because as provided in
Article 792 of the CC
impossible conditions and those contrary to law or good
So there being no evidence that the partition made in the Philippine

contradict Turkish laws, the presumption is Turkish laws are the same as
Philippine laws. Upon examining the partition made in relation to
Philippine laws there appear no contradiction so, the Court approved
the partition.
So this is a case where even if supposedly the national law of the
decedent should govern the intrinsic validity of his will, like the partition
of his estate, the distribution, in the end, the Court applied the
Philippine law using the doctrine of processual presumption.
Ancheta vs. Guersey-Dalaygon
(GR 139868 | June 8, 2006)
We cannot apply the doctrine of processual presumption here. The
Court said that being a foreigner, the intrinsic validity of his will should
be governed by the law of the State of Maryland and that while
foreign laws do not prove themselves in our jurisdiction and our courts
are not authorized to take judicial notice of them; however, petitioner,
as ancillary administrator of Audreys estate, was duty bound to
introduce in evidence the pertinent law of the State of Maryland.
Atty. Anchetta contended that he had no knowledge of the
Philippine laws and pursuant to the doctrine of processual
presumption if he cannot present evidence as to what are the foreign
laws in issue then it is presumed that these laws are the same as
Philippine laws. But in this case the lawyer cannot just rely on the
doctrine of processual presumption.
1. He actually participated in the probate proceedings in the US. So
they have actual knowledge on the laws apply during the
proceeding.
2. They had a big library. They have a big law firm and they have
access to those foreign laws to search those foreign laws. So it is not
an excuse for him to rely on the presumption that the laws of the US
are the same as the law of Philippine under the doctrine of processual
presumption.
Page30of55

Suntay vs. Suntay

(GR 3087 3088 | July 31, 1954)
Article 16 is our conflicts of law rule.
Q: If for example there is really that will which was probated in China
can that will already probated in China be automatically
implemented in the Philippines, to distribute the properties located in
the Philippines?
A: No Maam. It must be proved that the municipal district court of
Amoy is a probate court and also the law of China in the procedure
or probate of wills must also be proved. And the legal requirements for
execution of a valid will in China.
Q: What do you call that proceeding?
A: Reprobate proceeding.
There is already a probate in China and our courts do not
automatically recognize that probate. The properties in the Philippines
cannot be distributed based solely on the probate abroad. So there
has to be another proceeding in the Philippines and that is reprobate
proceedings.
[That is actually the first question in the bar exam last year, the
reprobate.]
Now pursuant to referring back made by the California law we do not

go back anymore to Article 16. We already refer to or internal law on
succession, in that case our laws on legitime.
The referring back is called the renvoi doctrine.
Actually this is the first case when the renvoi doctrine was discussed by
the Supreme Court. This person Christensen actually live in Davao Del
Sur. I was able to talk to one of the heirs here in one of the case.
She said: are you familiar with the renvoi doctrine? yes Maam
you know in the case, that is actually my father, Lucy
This is another exception to the rule. Supposedly when the decedent is
a foreigner, we follow his national law not the law of the Philippines.
But because of the renvoi doctrine ultimately here we apply the
Philippine law.
So there are two cases: the application of the doctrine of processual
presumption and the application of the renvoi doctrine.
Why is it that in referring back the matter to the Philippines we already
apply our internal law?
It is because if we refer back it to California such action would leave
the issue incapable of determination because the case will then be
like a football, tossed back and forth between the two states,
between the country of which the decedent was a citizen and the
country of his domicile.
So it has to be reprobated here in the Philippines.

Q So what are the matter that must be proved during reprobate?
1. The foreign court is a probate court
2. The law of country and the procedure of the probate Court has
been complied with
3. The legal requirement for the execution of a valid will is complied
with in that Country.
The courts shall take cognizance of the situation and apply its internal
law.
Q: So what If those matters are not proved during reprobate in the

Philippines?
A: The reprobate shall be disallowed.
July 18, 2016 (I.J.Abad)

Recap:
So we already discussed Article 795.
Article 795 merely deals with the extrinsic validity from the
viewpoint of time.
But we also discussed extrinsic validity from the viewpoint of

place and country, as well as intrinsic validity from the viewpoint
of time and from the viewpoint of place and country.
In case of reprobate proceeding we cannot just presume that the

Rules of Court in China are the same as the Rules of Court in the
Philippines that, in the absence of proof the will shall be allowed. No.
Those are technical matters and procedural ones which must be
proved in the Philippine Courts. In the absence of proof then the
reprobate proceeding shall be dismissed and the will shall be
disallowed.
So if youre asked, what laws govern the validity of wills, then your
answer must be Comprehensive. You must discuss both intrinsic and
extrinsic validity from both the viewpoint of time and place or country.
So that is the difference with the reprobate proceedings. We cannot

apply here the doctrine of processual presumption.
Subsection 2: Testamentary Capacity and Intent

In The Matter Of The Testate Of Christensen vs. Garcia
(GR 16749 | Jan. 31, 1963)
Article 796. All persons who are not expressly prohibited by law may
make a will.
Q: What was the citizenship of testator at the time of his death?

A: An American Citizen residing in California.
Testamentary Capacity. General Rule: As long as you are not

prohibited by law, then all persons can execute wills.
Q: What law shall govern the distribution of his estate?

A: National lawCalifornia.
There are two laws here.
The California probate code it states that the testator may may
dispose of his property by will in the form and manner he desires. That
is the internal law.
But there is another law, Article 946 which states that
If there is no law to the contrary, in the place where personal
property is situated, it is deemed to follow the person of its owner,
and is governed by the law of his domicile.
Q: So what will govern?
A: Article 946 because it specifically applies to him.
He was a resident of another country but a citizen of California. The
other one, the California probate code applies only to those who are
citizens and residents of California. So you apply article 946.
The California Probate Code is what you call their internal law and
Article 946 is what you call the conflicts of law rule.
In the Philippines we have also our conflicts of law and internal law.
Now, we are talking here of testamentary capacity. What constitutes

testamentary capacity? How do we know if a person has
testamentary capacity? So when we say Testamentary Capacity,
generally speaking, it refers to the qualifications of a person to
execute wills. What are those qualifications? We will discuss that.
Authorities also mention Testamentary Power. Testamentary capacity is
discussed in the New Civil code, but testamentary power is not
mentioned. Are they the same?
Loosely speaking, they both refer to the same thing which is the
qualifications of a person to execute wills.
But strictly speaking, there is a difference. When we say

testamentary capacity that is the one referring to the
qualifications of a person to execute wills.
When we say testamentary power that is the privilege or the

authority given by the State to the citizens or subjects to execute
wills.
So, a person can have testamentary capacity if he has the
qualifications prescribed, but may not have testamentary power if he
lives in a place or in a country where the citizens or subjects are not
allowed to execute wills. Or a person can have testamentary power
but no testamentary capacity. Like he lives in the Philippines where we
Page31of55

was already 18 yo. Because there are 18 365 days in the

NCC for you to attain the age of majority, technically you
can argue that.
are allowed under the NCC to execute wills. But if the person is insane,
he does not have testamentary capacity, he does not have
soundness of mind which is one of the qualifications prescribed by
law.
So strictly speaking, testamentary capacity is not synonymous

testamentary power. And it doesnt follow that if you have
testamentary capacity, you have testamentary power, or vice versa.
Article 797. Persons of either sex under eighteen years of age cannot
make a will.
Or may be in criminal law, when your client has been

accused of seduction kay 2 days before the 18th birthday,
something happened. So you can say na she was already
18, 2 days or even 4 days before her birthday following the
principle under the NCC. So those would be relevant
situations.
Okay, so 18 means if today is your 18th birthday, you can already

execute a last will and testament. Obviously, all of you here are
qualified in so far as Article 797 is concerned. Let us go to Article 798.
Here, persons of either sex, male or female or those in between, they

can execute wills but should be at least 18 years old.
Q: When we say 18 yo, what are the different theories in the meaning
of 18 yo?
A: Under the Spanish law, the 18th birthday should have passed before
one can make a will.
Q: So if my birthday is today, I cannot yet execute a will and have to
wait for tomorrow?
A: No. On the day of your 18th birthday you can now already make a
will.
Q: What if I was born 1 pm and so today is my 18th birthday, assuming
it is 9 am now, can I already make a will or do I have to wait for 1 pm?
A: Under the Spanish Theory, you can already make a will as long as
the day of your birthday has come.
Okay, so as long as the 18th birthday has already passed or
commenced, you dont have to wait for the exact hour, you can
already make a will.
Q: What is the other theory and explain?
A: The American Law which states that if the day preceding your 18th
birthday has already commenced, then you can already make a will.
If today is today is your birthday, then yesterday, you can already
make a will.
So the day before your 18th birthday you can already make a will.
Q: What is the third one?
A: Under the New Civil Code, which states that 4 days prior to your 18th
birthday, then you are already considered 18 yo, therefore you can
already make a will.
Q: Why are you considered 18 yo already?
A: The NCC took note of the fact that there are leap years. Since
there are a leap year once every 4 years, then they arrived at a
conclusion that 4 days before your birthday you may be considered
18 years old already.
Article 798. In order to make a will it is essential that the testator be of

sound mind at the time of its execution.
Okay, Artilce 798 is another qualification.
Article 797 says at least 18 years old, and Article 798 is soundness of
mind, both at the time of the execution of the will. The qualifications of
age and soundness of mind must be present at the time of the
execution of the will.
What do we mean by Sound Mind?
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.
The first paragraph gives us the negative definition of soundness mind,
it is not necessary that the testator be in full possession of his reasoning
faculties, or that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other causes.
Even if the person is actually suffering of something, he could still be
considered of sound mind in so far as succession is concerned. So
bisag naa kay gamay actually, pwede gihapon as long as the
requisites under the 2nd paragraph are present.
The second paragraph gives us the positive definition. The law says It
shall be sufficient if the testator was able at the time of making the will
to know:
1.
the nature of the estate to be disposed of,
2.
the proper objects of his bounty, and
3.
the character of the testamentary act
These are actually the requisites of a sound mind. You should
memorize this. If you are asked whether in our exam or in the bar
exam, and there is a problem given which calls for the determination
of whether the testator is of sound mind, you should measure it based
on the 3 requisites.
Q: in 18 years, how many leap years are there?

A: 4 leap years
Q: What do you mean by leap year, how many days are there in a
year in the NCC?
A: There are 365 days in a year and if it is leap year, there are 366.
Okay, that is the theory under the NCC. Because there are 4 leap
years, so there are 4 years there containing 366 days. Under the NCC,
there should only be 365 days in a year, therefore you may be
considered 18 four days before your birthday.
Q: What is the theory followed under our jurisdiction?
A: We follow the Spanish law theory. As long as it is already your 18th
birthday, you can execute wills.
Q: Can you think of an example where the NCC theory would be
relevant?
In contracts, for example, you are the lawyer of the other

contracting party and he entered into a contract with a
person who allegedly is not yet 18. He signed the contract 2
days before his 18th birthday, so now he alleges that the
contract is voidable because he was a minor at that time.
So being a lawyer under the defendant, you can allege that
under the NCC, at the time he entered into the contract he
Nature of the estate to be disposed of.

So he must have a sufficient recollection of his properties. He must be
able to comprehend the kind, quality and character in general. So at
the time when the person makes a will, he should know that he still has
properties. He should say, know that he has lands in Calinan, he has
cars, well he might not be able to know exactly tungod sa kadaghan.
Or that he has several cash in his bank accounts, no need to know the
exact amount, as long as he knows in general their kind or character,
that is sufficient.
Proper objects of his bounty. He must be aware of the proper persons
who would naturally be supposed to have a claim upon him. Kabalo
siya at the time that he made a will that he had a spouse, children,
brothers for he affirms when asked. Pero if muiingon siya na wala, pero
naa diay, wala na siya kaila na naa diay siyay mga anak, then in that
case he would not be considered on sound mind.
Must know the character of the testamentary act. We discussed this
before when we mentioned about the essential characteristics and
elements of wills. A testator must have animus testandi. He must have
Page32of55

the intent to make a will. And he can have this when he knows the
character of the testamentary act, primarily. When he makes a
document, he should understand the meaning of such document.
That it disposes his properties to those persons mentioned in that
document after death. He should know that basically. Because if he
did not know at the time of the execution of the will, the
consequences of the act, then he cannot comply with the 3rd
requisite. That is why he cannot have a sound mind, then the will
would not be valid.
that the fact that she had Addisons disease, she even benefitted from
that for it afforded her physical and mental rest.
Bagtas vs. Paguio
Soundness of mind is also the reason why only natural persons can
execute wills. Because, again, a juridical person cannot have a sound
mind. It does not have physical existence. So this is only peculiar to
natural persons having a sound mind.
Based on the requisites under Article 799, can a person suffering under
the penalty of civil interdiction be allowed to execute wills? The
consequence of civil interdiction is actually mentioned in Article 34 of
the RPC:
Article 34. Civil interdiction. Civil interdiction shall deprive the offender
during the time of his sentence of the rights of parental authority, or
guardianship, either as to the person or property of any ward, of
marital authority, of the right to manage his property and of the right
to dispose of such property by any act or any conveyance inter vivos.
So what does this mean? He can execute wills because he is only
prohibited to execute intervivos. When we say wills, the properties here
are disposed mortis causa, hence, he is qualified to execute a will.
Spendthrifts or prodigals also, they are qualified. Again, just go back to
799. If the person is able to require the 3 requisites under the 2nd
paragraph, then he is of sound mind.
Now, the degree of mental capacity to constitute testamentary
capacity or incapacity will be discussed in several cases. What
happened in the case of Torres of Lopez?
Torres vs. Lopez
Q:What was the specific condition of the testator here and what is the
consequence of which?
A: Senile Dementia. When one has senile dementia, there is
degeneration of the mental capacity.
Q: What is the issue here?
A: W/N the testator has a sound mind when he executed the will. The
SC said that senile dementia is not a reason that a person would be
considered of unsound mind. One must have a complete senile
dementia to be of unsound mind. Here, it was not a complete
dementia.
So, the fact that the testator had senile dementia did not
automatically mean that he did not have soundness of mind.
Q: How about the fact that he was placed under guardianship?
As long as he could still comply with the requisites under 799. Being
placed under guardianship is not conclusive as to the unsoundness of
mind. A person can be placed under guardianship, not only for that
reason. There are several reasons why a person may be placed under
guardianship, such as if one is a minor, a spendthrift, a prodigal, under
civil interdiction, advanced age, insane.
The SC said, each case rests on its facts and must be decided by its
own facts. It really is a case to case bases.
Neyra vs. Neyra
Q: How did the testator sign the will?
A: Lying down and assisted as her thumbmark was printed on the will.
Q: So, her hand was guided, will this affect the validity of the will?
A: No.
Even if the body was weak, even if she was lying in bed, she could not
stand, her hands were guided, the only effect there would be on the
body and not on the mind. We are talking here of soundness of mind.
As long as she could comply with the requisites under 799. The SC said
Even if one is suffering from paralysis, his head was tilted to one side
and saliva was dripping from his mouth, still the SC said he was of
sound mind, basing on the first definition of soundness of mind in
Article 799 and he complied with the 3 requisites. His body may be
broken by disease or injury but if he knows the nature, object and the
character of the testamentary act, that would be sufficient.
Baltazar vs. Laxa
Q: What were the specific instances cited by the SC here showing that
she still complied with the 3 requisites?
The SC said that a scrutiny of the case shows that she was aware
of the nature of the document she executed. Because in the will
she expressly requested that the customs of her faith be observed
upon her death. So she knows that those properties in her will will
be disposed of after her death.
She knew that these properties were acquired by her through her
parents, so she knew the nature of the properties to be disposed
of.
And she said, she bequeathed the property to Lorenzo, his wife
and his children. So the testatrix here knew the proper objects of
her bounty.
Being magulyan or forgetful is not equivalent to being of unsound
mind.
Also, in the case of Avelino vs. Dela Cruz, the SC said, blindness is not
equivalent to an unsound mind. Because in fact, under the NCC, we
have this new provision applying to a person who is blind but he wants
to execute a will under Article 808. They are recognized to have
testamentary capacity.
Insomnia, under the case of Caguia vs. Calderon, so that will not
affect the soundness of mind.
a. TB or Tuberculosis, in the case of Yaptu. ,
b. DM in the case of Samson vs. Corrales Tan
c. Old age in the case of Hernaez vs. Hernaez
So again, to be considered on sound mind, a perfectly balanced
mind is not essential. When you made the will you are able to comply
with the requisites mentioned in Artilce 799.
How about unsoundness of mind? What would be those situations
where a person would be considered to be on unsound mind? When
we say that a perfectly balanced mind is not essential for one to
possess a sound mind, actual insanity or unsoundness of mind is also
not necessarily required to constitute testamentary incapacity. So
even if you are not insane, you can still be considered of unsound
mind and therefore disqualified to execute a will.
We discussed before in the case of Torres vs. Lopez that senile
dementia is not equivalent to unsoundness of mind, unless it is
complete. Or you are already in an advanced case of Alzheimers
disease, you are not insane in that case but you are of unsound mind.
State of unconsciousness, for example, at the time when you allegedly
made the will, you were unconscious or you were in a coma, of
course you are not insane when you are in a coma, but how can you
possibly execute a will in that condition, that is equivalent to unsound
mind.
When a person is under excitement or stress in such a way that he
could no longer recall intelligently the extent of his property, etc. Sa
sobrang kalipay kay nakadaog kag lotto and then pataka nalang
kag panghatag, that is equivalent to unsound mind, even if you are
not really insane.
Drunkenness or drug addiction. Dili mana siguro sila buang, pero kung
nagbuhat ka og will sa imong kahubog, or sa imong ka high, will the
will be valid? Of course not. Dili ka of sound mind.
As to the IQ, what would be the threshold for a person to be
considered of sound mind and therefore can make a will? We have 3
groups:
Page33of55

1.
2.
3.
Idiots IQ average of 25. They are congenitally and intellectually

deficient. They cannot take care of their bodily needs and they
cannot be trained. In so far as succession is concerned, they are
of unsound minds and therefore they cannot execute wills.
Imbeciles IQ average of 26-50. They are mentally deficient
because of disease, but they can be trained to take care only of
their bodily needs. Under succession, they are of unsound minds
and therefore they cannot execute wills.
Morons IQ average of 50-70. They can learn reading, writing,
simple math, they can be self-supporting. Under succession, they
can execute wills.
These are the groups where the IQ is made as a threshold as to

whether or not a person can make wills.
What is the effect if a person is proved to be of unsound mind when
he made the will? Of course the will would not be valid, that is a
ground for disallowance of wills. Again, we only have 2 requisites for
testamentary capacity (if you forget that, forget about taking the bar
exam), age and soundness of mind. That is very easy to remember.
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 mindat the time of making his dispositions is
on the person who opposes the probate of the will; but if the testator,
one month, or less, before making his will was publicly known to be
insane, the person who maintains the validity of the will must prove
that the testator made it during a lucid interval.
Another situation when the presumption is on the unsoundness of

mind. In the case also of Torres vs. Lopez, when there is a judicial
declaration of insanity before the execution of a will, then the
presumption is at the time when he made the will, the testator was still
insane. When can there be a judicial declaration?
Example in Guardianship, you file a petition for guardianship on the
ground that the person is insane, of course the court will still make an
investigation on the mental condition and if the court is satisfied na
insane gyud siya, then the court will appoint a guardian. So in that
case you have a judicial declaration.
Under Special Proceedings, petition for the hospitalization of insane
persons, here, for example naa kay nahibal-an na insane and then
the family doesnt want na ipahospital siya and you think that there is
danger to the lives of the people in the community because of this
insane person, you can file for such. After the court makes a
determination of his mental condition, then the court may grant. Even
though not public, even though not 1 month or less basta merong
judicial declaration, the person is presumed to have made that will in
an unsound mind.
3.
(ee) That a thing once proved to exist continues as long as is usual

with things of that nature;
This is on the provision relating to Presumption in evidence.
Under Article 800, the presumption is every person is of sound mind.

General Rule: Soundness of mind or sanity.
Here, insanity of a general or permanent in nature, shown to

have existed in 1 time is presumed to have continued. Like
for example, this person, he was born with a mental defect,
he is an abnormal all throughout his life he had that
condition then suddenly mawala siya sa general public,
wala na ka kabalo kung asa siya, sa States ba etc. and then
nahibal-an nimo na namatay siya and then naa siyay last
will and testament.
What is the consequence of this presumption? The proponent of the

will does not have to prove that the testator was of sound mind at the
time when he made the will. He does not have to present evidence
that the testator was of sound mind because that is already
presumed.
If the oppositor alleges that the testator was of unsound mind at the
time when he made the will, then he has the burden of proof to
present evidence showing that the testator was not of sound mind.
And the burden of proof here is higher which is clear and convincing
evidence. This is the second to proof beyond reasonable doubt.
Under the hierarchy in evidence:
Proof beyond reasonable doubt
Clear and convincing evidence
Preponderance of evidence
Substantial evidence
What is now the presumption? Can we apply the first

situation as publicly known within 1 month or less, pero wala
man kay news sa iyaha since 2 years ago. So you cannot
apply that. He was not also judicially declared insane. But
he was of that mental condition since birth? Can you
presume that he was cured and of sound mind when he
made the will? NO. Once his condition was proved to exist,
the presumption here is it continues because it is usual in so
far as he is concerned.
So, insanity of a general or permanent in nature, shown to have
existed in 1 time is presumed to have continued. The presumption is he
made that will in an unsound mind. Anyone who files a petition when
he made the will has to prove that at the time when he made the will
he was of sound mind. So these are the 3 instances when the
presumption is the reverse, that the testator was not of sound mind.
Other than that, the general rule is on the soundness of mind.
However, on the second paragraph, we also have that reverse

presumption noh. But again, because of the general rule, it would be
safe to answer na at the time he made the will, the testator was of
sound mind. Of course, after citing all the requisites under 799.
But, again, in the second paragraph, the testator was not of sound
mind at the time when he made the will. Under 800, we have the
following situations:
1.
2.
That is Under the Rules of Court. Rule 131, section 3(ee):
The testator is presumed to be of unsound mind.

When the testator is publicly known to be insane, 1 month or
less before making the will.
Take note, publicly known to be insane, dili siya secret. Kabalo

tanan halos sa community na siya insane, it is general
knowledge. From the time he made the will, 1 month or less, 1
month is 30 days or less. Pero pag 2 months before he was
publicly known to be insane upon making the will, that
presumption will no longer apply. Here, the period of time,
because of the proximity, it is presumed that when he made the
will, he was not yet cured.
Here, the presumption is he is not of sound mind. But ofcourse, if
cured na jud diay siya on the time when he made the will, or he
had lucid intervals, the you can present proof of his soundness of
mind when making the will. But again, because of this
presumption, the burden of proof shifts to the proponent of the
will, and again it is by clear and convincing evidence.
Going back to this, what if you will have to prove the mental condition
of the testator, either you are the oppositor or you are the proponent
of the will, what are the pieces of evidence admissible to prove the
mental condition?
Ramirez vs. Ramirez
Q: So, who were presented as witnesses to testify the mental
condition of the testatrix?
A: 2 physicians and the notary public
Q: In so far as the notary public is concerned, what is the nature of
his testimony? First, when a document is acknowledge by a notary
public, what is now the consequence of that? And being such,
what presumption is being accorded to that document?
A: The document becomes a public document, accorded with
great weight. It has the presumption of regularity.
Q: Here, was the testimony of the notary public given great
weight? Why?
A: He was evasive thus not given great weight.
Page34of55

the legislature cannot validate a void will, they cannot also validate a
void will.
So, when he was asked as to whether or not when the will was
acknowledge to you, was he of sound mind, he did not
categorically answered. He just said, yeah because that is what is
stated in the acknowledgement. He could not directly and fully
commit as to the status and mental condition. Here, the testimony
of the notary public, in general ha, during the probate of the will is
entitled to great weight. That is the general rule. However in this
case, it was not applied because the notary public was evasive,
tends to bend the issue, he could not commit as to the mental
condition of the testator.
Article 802. A married woman may make a will without the consent
of her husband, and without the authority of the court.
Here, the law says a married woman. She can make a will even
without the consent of the husband and even without the authority of
the court. Let us discuss this with Article 803.
So as we have mentioned also, the physician can be a witness to

prove the mental condition of the witness, now in the case of Samson
vs. Corales-Tan.
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
Again a married woman may dispose in her will her separate property
and also her share in the conjugal or absolute community property.
How about a married man, can he execute a will without the consent
of his wife? Can you find a specific provision with respect to that? I will
give you 100 if you can find. So are we saying that a married man
cannot kay wala man sa Civil Code? Well, of course you know that
the married man can. This is just written precisely to make it clear that
the married woman does not lose her separate personality to execute
a will just because of marriage.
Samson vs. Corales-Tan

Q: Who testified in so far as to the mental condition? What did the
doctor say? What is the ruling of the SC with respect to the will?
Was the testimony of the doctor given weight? Was he the
attending physician?
So here, the doctor who has given the testimony was not the
attending physician, therefore, the SC said, what he had was
merely a speculation compared to the testimony of the other
witnesses, the SC gave more weight to the other witnesses
testimony. But again, remember, if he is the attending physician,
then his testimony is entitled to great weight.
Just to make it very clear kay with respect to men, there was really no
doubt that they could execute wills or dispose without the consent of
the wife etc. This is just to clarify the rights of a married woman. We
have already discuss before that she or he cannot dispose of the
conjugal partnership, but only his or her share. Because a will should
dispose only of ones separate properties. So ownership must be by the
testator or testatrix.
Aside from that who else can testify?

Take note we have 2 types of wills: Notarial and Holographic. when it
comes to Notarial wills, aside from the acknowledgement by the
notary public, we have also the testimony of at least 3 credible
witnesses.
Subsection 3: Forms of Wills
During the probate of the will, if the notarial will is not contested, the
testimony of 1 subscribing witness is sufficient. But if the will is
contested, then all the witnesses plus the notary public must testify. So
we already mentioned of the acknowledging notary public, the
attending physician, then the attesting witnesses can also testify. The
attending witnesses were present during the execution of the will. They
witnessed the demeanor of the testator when he signed the will based
on their observations, even if they are not doctors.
Article 804. Every will must be in writing and executed in a

language or dialect known to the testator.
We are now in the formalities of will. We have 2 types of wills in the
Philippines.
With respect to 804, this provision applies to both wills, notarial or
ordinary wills and holographic or holograph wills. Every will must be in
writing. Oral wills are not recognized here in the Philippines even if you
have 1 thousand witnesses, that is not valid.
What if it is a holographic will? Wala may attesting witnesses sa

holographic wills? Then again, you can present the doctor who must
be the attending physician, other witnesses like iyang mga kauban sa
balay, so they can testify as to his mental condition.
We have what we call as Non-Cupative wills. These are wills orally

made by the testator in contemplation of death and before
competent witnesses. Are this wills valid? NO. The law says must be in
writing and that is mandatory.
Article 801. Supervening incapacity does not invalidate an

effective will, nor is the will of an incapable validated by the
supervening of capacity.
Kanang mga nasa tv na oral lang, kanag mga sa teleserye na wala

giresearch og tarong, dili na siya valid. We cannot have an oral will.
Even if nakavideo siya, dili manka sure gihapon. What if nakaatubang
diay siya og armalite while ginavideohan? So, only written wills.
So the Principle of Supervening Capacity or Incapacity.

Again, just remember, what is important is the testator must be of
sound mind at the time when he made the will. If he was insane
before, it doesnt matter, or even after 2 hours he made the will, would
it invalidate the will? Still no. As long as when he made the will he was
of sound mind. The supervening incapacity will not invalidate a valid
will.
What if when he made the will he was not of sound mind, later on
naayo na siya,and then nakita niya iyang will (aahh gwapoha diay sa
akong will oi, Im sure if tarong ko og panghuna huna dili ko kabuhat
og ingon ani na will) and he decided to adopt the will kay impress
kaayo siya. Taguan niya hangtud sa namatay siya, is that will valid?
He was able to read that when he was of sound mind, would that now
cure the defect? Supervening capacity also will not validate a void
will. When he was not of sound mind when he made the will,
technically the will is not valid, even afterwards he was already of
sound mind. So unsa iyang buhaton? Because he really wants that will
and he wants to give it effect. We have a procedure for that, that is
what we call as Republication of Wills. He should republish that.
So, supervening capacity will not validate an void will, in the same
way na supervening incapacity will not invalidate a valid will. The
same lang siya sa atong gidiscuss before sa extrinsic validity of wills,
When we say written, how?

There is no specification, pwede siya computerized, encoded,
handwritten, giukit sa bato. How about gipatattoo? Well you can
argue kay written man ang tattoo, ang problema lang mamatay tong
gitatuan, asa ka mangita og proof as to the content of the will. It may
be short hand, long hand, 1 page or more, as long as in writing.
The other requirement under 804 executed in a language or dialect
known to the testator so this requirement again applies both to
notarial wills and holographic will. Because how will we be sure that
the will contains the wishes of the testator if the does not know the
language of the will.
How about interpretation?
The will was in French unya ang testator kay bisaya, giexplain sa iyaha,
would that be sufficient? The law says in a languor or dialect known to
the testator. Explanation or interpretation will not cure the defect that
it should be in a language or dialect known to the testator.
Why is it not sufficient that it was explained?
Page35of55

First, how do we know that the explanation was correct or

even if the explanation was correct, how do we know that it
was understood by the testator?
We cannot ask the testator if he understood it because he is
already dead.
The only guaranty that the will is understood by the testator
is that it should be in a language or dialect known to him.
Now with respect to the language requirement, is it possible that there

are several languages used in the will? Yes for as long as all those
languages are known to the testator. There is no requirement na only
in 1 langauge. What is important in this language requirement is there
is a presumption that the will is in a language or dialect known to the
testator. What then are the consequences of this presumption?
First, it is not required to write in the will that this will is in a

language or dialect known to the testator, it is not required
although it is advisable.
The fact that the will is in a language or dialect known to the

testator can also be proved by extrinsic evidence. You can
prove that, even by parole or oral evidence
Third, no need to state in the attestation clause of a notarial

will that the will is in a language or dialect known to the
testator. Because under 805, there are matters there that
must be stated in the attestation clause. If those matters
there are not stated, generally the will is not valid.
Abangan vs. Abangan
Spaniard, had several trips to Spain and made letters in Spanish, so

definitely she knows the Spanish language.
Acop vs. Piraso
Here, although we have the presumption, the SC said na it did not
arise.
Q: But what if it really did arise, what would be the consequence
given the circumstances in this case?
A: It will be defeated by the facts that controverted the presumption.
Okay, the SC said the presumption would still be wholly contradicted
and destroyed because of the contrary evidence. He primarily knows
the Igorote language with a smackering of Ilocano.
Take note in this case, it is either:
1.
The presumption did not arise because of the contrary
evidence, or
2.
It did arise but it was wholly contradicted and destroyed.
Javellana vs. Javellana
The language of the will here was Spanish. There was nothing in the will
which states that the testator knows the language used in the will.
There is also nothing in the attestation clause stating the same.
Q: How then will we prove that the will is in the language or dialect
known to the testator?
A: Through Extrinsic evidence.
Q: What is extrinsic evidence or evidence alliunde as distinguished
from intrinsic evidence? What is its nature?
A: These are evidence which not found in the will, these are gathered
when you go out of the will. Like the letters in the case of Reyes, they
are not found in the will. But it can still shed light on whether or not the
testatrix knew the Spanish language.
The will was written in a Cebuano dialect. So the testatrix here was
a resident of a neighbouring locality. The presumption here was
that the language was known to the testatrix. In fact, it is the
presumption. You dont have to present evidence for that
presumption. It is also very logical, because for example, bisan pa
og naa ka sa Davao unya nagbuhat ka og will in Cebuano sa
Cebu, pare pareha lang man ag language, specially if
neighbouring, kung sa Bohol ka. The presumption is kabalo nana
sila. In fact, ang mga taga Cebu nakaadto og Bohol and vice
versa. There is a connection.
Q: Aside from Extrinsic evidence, what else? In the first place, does the
proponent of the will have to prove that the will is made in the
language or dialect known to the testator?
A: No, because there is a Presumption. We can rely or invoke the
presumption that it is made in a language or dialect known to the
testator.
July 21, 2016 (I.J.Abad)

Recap:
Last meeting we discussed the language requirements: The will has to
be in a language or dialect known to the testator.
But in this case the presumption was not applied. The testator was a
Bisaya residing in Manila. No relation between the Spanish language
in the will and the testator.
So based on the cases, although again we have the presumption, but
before the presumption can even arise, you have to take note of the
facts of the case. If there is nothing in the circumstances of the
testator which would suggest that he knew the language used in the
will or there was a connection between his circumstances and the
language used in the will, then it is either the presumption did not
arise, or even if the presumption did arise, such was contradicted and
destroyed.
This is a mandatory requirement.

As we have discussed, there is a Presumption that the will is in a
language or dialect known to the testator.
As consequence of this presumption:
1.
No need to state this in the will
2.
There is no need to state it in the attestation clause
3.
The fact that the will is in a language or dialect known can
be proved by extrinsic evidence or evidence alliunde.
So if you are given a problem, if you can see lang based on the facts
that the will was in French, pero ang testator nagpuyo sa Sigaboy sa
tunga-tunga sa island didto, wala gyuy anything na nakaadto siya og
France or nagskwela siya of French, so here, we could not say na
French is the language of Sigaboy. You can say that the presumption
did not arise, or even if the presumption did arise, such was
contradicted and destroyed.
Reyes vs. Vidal

Q: Were there witnesses here who testified that the testatrix knew the
Spanish language?
A: None. However circumstances here provide that she is
knowledgeable about the Spanish language as evidenced by her
letters, her marriage to a Spaniard, she being a mestiza etc.
Just read the case of Abada vs. Abaja, we will discuss that in another
topic.
Q: Was there an application of the presumption?

A: Yes.
NOTARIAL WILLS
Okay, just remember that there is a presumption that the will is in a

language or dialect known to the testator. And it is not the burden of
the proponent of the will to prove, it is the burden of the oppositors to
prove that the language of the will is not known to the testator. So
even if, as you said, there were no witnesses here who testified that
the will was in a language or dialect known to the testatrix, still, the
presumption was not rebutted. Because first, the records of the case
would show that the testatrix was a Spanish mestiza, married to a
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
Page36of55

the pages shall be numbered correlatively in letters placed on the

upper part of each page.
Leano vs. Leano
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.
It says every will other than a holographic will, it means this article
applies only to notarial wills. You have to memorize this article, not
word per word, but all the requirements for notarial wills for absent
compliance with any of these requirements will be a cause for the
disallowance of the will. You have to know everything, you can
summarize the specific requirements.
So the name of Christina Valdez was written by a third person and she
intended the cross to be her signature, so that is acceptable. That is a
valid signature in so far as a notarial will is concerned.
Garcia vs. Lacueste
Q: Who was the testator here? Who signed or who wrote the name of
the testator?
A: Antero Mercado was the testator while a third person, Atty.
Florentino Javier signed I behalf of the testator as alledged.
Q: With respect to the will itself, was the will valid?
A: Not valid.
Q: Was it because of the cross? If the cross was not the usual signature
of the testator or if there was no evidence that it was the intention of
the person to constitute it as his signature, would that already make
the will void?
A: No, that alone could not invalidate the will because a third person
can also sign in behalf of the testator.
The requirements mentioned in Article 805 are of equal importance.

Dili ka makaingon nga you can just do away with the others, they
must be all complied with. Except of course, there are certain
situations when the SC said that the failure to comply could be
excused on the ground of substantial compliance, but we will discuss
that under Article 809.
Q: But would that now make the will valid because it was signed by
the lawyer Atty Javier? What is the requirement? Because here, the SC
said we disregard the cross, and this is as if the will was signed by the
third person in behalf of the testator. What is the requirement in that
case?
A: It should be stated in the attestation clause that Atty. Javier was
caused by Antero Mercado to sign for him.
General Rule: Formalities in the execution of wills are to be strictly

construed. Failure to comply would be a fatal defect.
What are these specific requirements?
1st. The will must be subscribed at the end by the testator himself, or
the testators name is written by some other person, in the presence
and under the express direction of the testator.
Q: Was it written in the attestation clause?

A: No.
2nd. The testator or the person requested by him to sign his name, and
the credible witnesses of the will shall sign each and every page of the
will on the left margin except the last page.
Q: What is now the consequence of that?

A: It made the will void.
4th. The will must be attested and subscribed by 3 or more credible

witnesses in the presence of the testator and of one another.
Okay, so here the fact alone that the will was signed by means of a
cross and the cross was not the valid signature of the testator, would
not invalidate the will because it could be a will signed by a third
person in behalf of the testator. But there is an additional requirement
for that, it has to be stated in the attestation clause, that is the
problem in this case.
For the 1st requirement:

1st. The will must be subscribed at the end by the testator himself, or
the testators name is written by some other person, in the presence
and under the express direction of the testator.
Here, the attestation clause failed to state that the will was signed by
the testator in behalf of a third person. That omission made the will
void, not because the will was signed by means of a cross which was
not the customary sign of the testator. Again, it would still be valid.
Here, this talks about subscription pirma. Who will subscribe?
The law says the testator will subscribe the will. Or the will
can also be signed or subscribed by another person but
such signing by the other person must be in the presence of
the testator and under his express direction.
Now, with respect to a third person signing in behalf of the testator,

who can be this person? Is there a limitation as to who can be this
person? In a notarial will, there are attesting witnesses.
Question: Can one of the attesting witnesses sign in behalf of the
testator?
In the case of Barut vs. Cabacungan, 21 Phil 61, it was held

that anybody may sign for the testator even one of the
subscribing witnesses.
In the case, however, of In re Will of Tandico 45 Phil 807, the

SC said that okay for one of the witnesses to sign, so long as
there are other witnesses, I mean 4 witnesses na apil didto
ang nagsign. Because the minimum requirement for a
notarial will is at least 3 witnesses. Kung 4 witnesses and isa
didto ang nagsign sa will in behalf of the testator, that would
be sufficient.
Going back to the case of Barut vs. Cabacungan, even in

this case where the SC allowed if there were 4 witnesses. We
can say that, a witness can sign the will in behalf of the
testator so long as there are more than 3 witnesses.
3rd. All the pages shall be numbered correlatively in letters and such is
placed on the upper part of each page.
With respect to the signing, what should be affixed in the will? What
should be signed? Of course, the signature of the testator. How about
if it is done by another person, what should he sign? He should still affix
the name of the testator, not his name because he is not the testator.
He is merely signing for and in behalf of the testator. He should write
the name of the testator.
Now, with respect to the testator as we said, he should affix his sign,
how? If his name is Juan dela Cruz and signs with the same Juan dela
Cruz then that is his full signature. What if he signs JD Cruz?
Meaning, not his full name? That is also allowed if it is his customary
signature. What if he signs with JDC? Pwede gihapon, if it is a
notarial will. So how about if he stamps, thumbmark, cross or a smiling
face?
When it comes to signature in a notarial will, these marks would be
allowed if:
1.
That is his customary signature, or
2.
Even if not his customary signature but he intended that
mark to be his signature.
In those cases, it would be a valid signature in a notarial will.
Signing by a third person, in the presence and under the express

direction of the testator.
Presence. When we say that the signing of a third person is in the
presence of the testator, what do we mean by presence?
Ideally, this third person should be able to see this 3rd person
signing in his behalf. (Test of Vision)
Page37of55

But, jurisprudence would tell us, that even if the testator

would not see the signing, it would be sufficient also. Even if
he did not actually see the signing, but he was in the
position to see. That would be the Test of Position. Katong
isa, test of vision.
How about if the testator is blind? So he cannot see and he would not
be in the position to see because he is blind. We apply here the Test of
Available Senses. Even if he did not see, but the fact that his will was
being signed is within his available his senses, like he heard ang
pagkuris-kuris sa ballpen kay kusog kaayo ang pagsign. Or na smell
niya ang ink sa ballpen. Or touch. As long as within the range of his
available senses. Or the Test of Mental Apprehension. Even if he did
not see, but at the back of his mind he already knew that his will was
being signed. We can apply this also to the signing of the witnesses.
Under his Express Direction. The signing must be expressly authorized
by the testator. When we say expressed, that is different from implied.
Here, the instruction must come from the testator. The testator shall by
word of mouth or action, clearly indicate to the proxy an instruction to
have his name signed to the instrument. So silence here does not
mean yes. There must be a word, instruction or direction that must
precede the act. It is not mere acquiescence.
Again, when it comes to the signature by the testator in a notarial will,
he can sign whether by his full signature, his initials, stamp, smiley, or
cross for as long as it was his customary signature or he intended that
mark to be his signature. Even if the name is misspelled, that would not
be a problem. What if he signed using his alias? Okay lang. pwede
man gani ang smiley face.
How about electronic signature or digital signature under the ECommerce Act?
Pursuant to the present law, these signatures are attached in

pursuance to transactions or contracts. Dili pa recognize na
i-apil sa will, because a will is not a transaction, it is not a
contract. As of now, e-signatures is not valid.
Where should the testator sign in the will? The law says at the end. So
for example, if the wills provisions is only up to half of the sheet of
paper, do you mean to say na the testator should sign sa iwitan jud sa
papel sa pinakaubos? The law only means the Logical end, not the
physical end.
What is the purpose for putting the signature on the logical end?
To prevent unauthorized insertions. The end here means the

logical end, that portion after the testamentary provisions
and before the attestation clause.
What if, after the will, signature, attestation clause, then there are
some insertions or additional provisions. Nakalimot siya, tagaan diay
niya si X, iyang neighbour, so nagbuhat siya og additional provision,
what is the effect of such additions? Are those valid? Or should we just
disregard these additional provisions and give effect to the will? Or
invalidate the whole will?
That would invalidate the whole will, why?
Because if you add some more provisions after the

signature, then the signature would no longer be the
logical end. That is a matter of form but it is important.
That would now invalidate the entire will, because the
form which says the will should be signed at the end is
no longer complied with. This is only for a notarial will.
Unsa may buhaton sa testator kung gusto jud siya naay idugang?
He can make a codicil or a new will, that is the proper

procedure.
2nd requirement under Article 805:
2nd. The testator or the person requested by him to sign his name, and
the credible witnesses of the will shall sign each and every page of the
will on the left margin except the last page.
We are talking here of signing in the marginal signatures located at
the left hand side of the will.
Halimbawa 3 pages iyahang will, and the testamentary provisions
ended in the second page. We have the attestation clause signed by
the witnesses and the acknowledgement signed by the notary public.

The law says, there should be marginal signatures. These should be on
the left side, how about kung nisulat siya sa right? Well, gahi siyag ulo
because the law says left, but it does not invalidate the will.
Jurisprudence would tell us that marginal signatures could be written
on the left hand, right, bottom or the top.
But, ideally sa left margin. Somebody asked me nganong sa left?
Maybe because if magsulat ka mas dako og margin sa left as
compared to the other sides.
The law says, except the last, why?
Because ordinarily, the last page would already contain all
the signatures.
Again, even if the law says: each and every page of the will must be
signed in the left margin by the testator and the witnesses, tan-awon
lang na nimo if the page already has signatures, you dont need to
sign in the margins (i.e., if the end of the will is on the same page sa
attestation clause). The purpose of the marginal signatures is for
identification. So that later on when the will is being presented for
probate, the witnesses could identify that it is the very same will to
which they attested to some 20 years ago. Wherever the signatures
may be located, it doesnt matter because that would also serve the
purpose of identification. Maidentify man gihapon basta naa lang
ang pirma.
Sa exam still valid if, even if there are no signatures in the margins but
there are still signatures in the attestation clause.
How about sa last page with the acknowledgement? You dont even
have to sign the margin here.
Remember, even if attestation clause lang, as long as signed by
witnesses, even if the page containing the attestation clause is not
signed in the margin by the testator, that would still be valid. Because
technically speaking, the attestation clause is not the will. The will is the
act of the testator. The attestation clause is the act of the witnesses.
If you only have a one page will, andun na lahat yung disposition and
attestation clause (the acknowledgement is signed only by the
lawyer) do you still have to put marginal signatures?
No more, because you already have all the signatures in the
page. No need to place marginal signatures. Again, as long
as the pages of the will are already complete in the
signatures, you dont need to put marginal signatures.
But for example the attestation clause continues in the 3rd page where
the acknowledgement is and in the second page the testator has
signed already in the logical end of the will, of course you would still
need marginal signatures of the witnesses in the second page but no
need for the testator to again sign in the margin.
Again, when we talk of marginal signatures, we are referring to the
signatures of the testator and the 3 credible witnesses. Now the law
says credible witnesses. What do we mean by credible witnesses?
What happened in the case of Gonzales vs. CA?
Gonzales vs. CA
We are talking here of the credibility of the witnesses during probate. It
is during probate that the witnesses will testify.
During probate proceedings, the witnesses who attested to the
execution of the will, will be called to testify in court for purposes of the
will. But there was an objection here saying that prior to presenting the
witnesses in the witness stand, there should be separate and
independent evidence to prove that they are competent and
credible. That was the contention.
Q: When we say he must have all the qualifications in Article 820 and
none of the disqualifications in Artilce 821, what do you call that
witness technically?
A: Competent witness.
Q: What did the SC say about being credible?
A: That would depend upon the appreciation of the court on the
testimony of the witness.
Page38of55

So when we say credible witnesses, you must be competent, must

possess all of the qualifications and none of the disqualifications, and
you must testify based on truth and not hearsay.
But again, if it is just the attestation clause, no need for the testator to
also sign in the margin because it is not the will, it is not part of the will,
although it is required for wills.
Q: Why is that there is no need to present prior independent evidence

for credibility? To what proceeding did they likened the probate such
that these prior evidences are needed?
A: Naturalization proceedings.
What is the effect if one signature is omitted in the page of the will,
walay signature? The GR, that defect is fatal, that would invalidate the
will.
Q: What do you call the witnesses in naturalization proceedings?

A: They are called character witnesses, they testify as to the character
of the alien wanting to be naturalized.
But in probate proceedings, the witnesses are not character witnesses.
They do not testify as to the character of the testator, even if the
testator was a rapist, a criminal, he can execute a will. The witnesses in
probate proceedings only testify as to the facts attendant during the
execution of the will. As to credibility, again, we go to Article 820 and
821 competence. There is no need to present prior and independent
evidence.
So, the witnesses in the execution of notarial wills are called:
1.
Credible witnesses.
2.
Attesting witnesses - because they attest the execution of
the will.
3.
Instrumental witnesses - because they are witnesses to the
instrument.
4.
Marginal witnesses- because they sign in the margin.
There were 4 copies of the will, only in the original copy that there was
one omission of signature in a page. In the other copies, all the
signatures were complete. Here, the SC said, the omission of the
marginal signature of 1 witness in the original copy was excused. We
should not blame the testator for the inadvertence or negligence of 1
witness.
Take note in this particular case, there were other copies. But if isa
lang ni siya, only 1 orginal copy and 1 was not signed and there are
no other copies, there would be a different ruling. The will will not be
valid. But in this case daghang copies, the principle of substantial
compliance was actually applied by the SC. Take note of the facts,
dili nagpasabot na kay naay isa ka omission, okay lang. Katong dire
lang kay naay laing copies, which copies are signed.
Let us go to the 3rd requirement of Article 805.
3rd. All the pages shall be numbered correlatively in letters and such is
placed on the upper part of each page.
These witnesses should be the same persons, they should be identical.

Let us go back to the signing of the margins. How about if the will is
contained in 1 sheet of paper pero back to back. Do they still have to
sign in both the front and back pages?
Yes because the law does not say sheet but pages. 1 sheet
may have 2 pages.
As I have mentioned before, if the last page contains only the
attestation clause, the testator need not sign in the margin, that is in
the case of Fernandez vs. De Dios.
Taboada vs. Rosal
The will here contains 2 pages. The first page contains the entire
disposition of the testatrix while the second page contains the
attestation clause and acknowledgement. In the first page, the
testatrix signed at the end of the will while the witnesses signed at the
left margin. Oppositors alleged that the will was not valid saying that it
is not enough that the testatrix sign at the end of the will, the 3
attesting witnesses should also sign at the end of the first page.
Q: Why is it that according to them there is still a need to sign at the
bottom by the 3 witnesses?
A: Because they contend that the witnesses not only attest to the
genuineness of the dispositions but also to the genuineness of the
signature of the testatrix.
What is the purpose of the numbering?

1.
To guard against fraud.
2.
To forestall any attempt to suppress or substitute any of the
pages
3.
To prevent any increase or decrease in the pages
4.
To afford means of detecting the loss of any of its pages
Kay kung walay page number it would be easy to add a page or to
get 1 page. So here, the true wishes might not be really expressed in
the will.
Now, the law says numbered correlatively in letters, PAGE ONE you
have to spell out. How about you just used Roman numerals or letters?
In different cases it is acceptable:
Unson vs. Abella: Arabic numerals
Aldaba vs Roque: Letters (A,B,C)
Nayve vs Mojal: Numbers (1,2,3)
In Re Pilapil: Partly in letters and partly in figures
Okay lang as long as you can identify the first, the second, the third, of
course consecutive.
Q: So what is the ruling of the SC?

A: The 3 witnesses fully complied with the law.
Q: What would be the significance of the signatures of the witnesses in
the margins?
A: For the identification of the signature of the testatrix as well as the
genuineness of the testamentary dispositions.
So the purpose covers not only for the execution of the will itself but
also the genuineness of the signature of the testator. And again, as we
have discussed, the signatures can be placed at any portion, left,
right, top, bottom, for as long as there are signatures that would be
sufficient to constitute as marginal signatures.
So marginal signatures, again, every page must be signed at the
margin by the testator and the 3 witnesses, but if there are already
signatures appearing on that page, there is no more need for that
person whose signature appears in the will to also sign in the margin,
for as long as every page contains signatures.
Icasiano vs. Icasiano
The law says on the upper part, what if sa bottom nimo gibutang ang
page number? Okay lang gihapon it doesnt matter as discussed in
the case of Fernandez vs. de Dios. The paging may be placed on the
top, bottom, left, right or even in the text itself. Please discuss this case
in relation to the paging requirements.
Fernandez vs. de Dios
The will has 4 pages, but the 4th has no number, the first 3 were
numbered. The attestation clause itself, the 4th page, contains a
statement saying that it consists of 3 sheets beside this sheet. The
defect was cured by such statement in the 4th page, though it was not
numbered. It is now evident that such page was the 4th.
Q: What kind of evidence is that?
A: It is an intrinsic evidence.
Although there is an omission because they should have written the
page number, but it was cured, because of the statement in the 4th
page. It supplied the omission that it was actually the 4th page. It is
intrinsic evidence because it is found within the will. You dont have to
go out of the will to know that it is the 4th page and that is allowed.
Page39of55

If for example, there are several pages and the first page is
unnumbered. Walay nakasulat sa page 1. Is it valid?
In the case of Lopez vs. Liboro, Yes. How would you be mistaken that
such was the first page nga naa naman dira ang title. That is not a
fatal defect.
Q: Did he see?
A: He did not actually see the actual signing of the will.
In the case of Abangan vs. Abangan, isa lang jud ka page, if there is
only 1 page, 1 sheet, naa na tanan didto tapos walay nakabutang na
page? Would it be fatal? No. The purpose of paging is to guard
against the loss of the pages. Kung mawala ang isa ka page, wala na
kay will. There is no need to put the page number in the will if it is only
a 1 page will. It is also not necessary to put the page number in the 1st
page because it will be obvious na it is the first page.
So, we already discussed that the notarial will requires at least 3

credible witnesses. What would these witnesses do? Before, we
discussed that they should sign in the margin. That is what we call as
the Subscription the signing in the margins and also the signing in the
attestation clause. Signing means subscription. Aside from that, of
course they Attest. What the witnesses do is to attest and subscribe.
What do we mean by attest? And how do we distinguish that from
subscribe?
When we say attest, meaning they witness the execution of the will,
aside from it is the mental act, they sign which is also a physical act.
Both attestation and subscription must be done by the witness. It is not
enough that the witness only attest, they must also subscribe. It is not
enough that they only subscribe, they must also attest. To distinguish:
To attest a will is to know that it

was published as such
and to certify the fact required
to constitute an actual or legal
publication
Yes, based on the test of position. He could have easily cast his eyes in
the proper direction when he wanted to do so. There was no physical
obstruction. Therefore, the will was considered valid.
Maravilla vs Maravilla
Q: What were the positions of the testator and the witnesses?
A: They sat next to each other in a round table, Maam.
Okay, so according to the Supreme Court, there was no need for
the witness to positively identified the signature.
Okay. So it would also be incredible if that witness who only saw

the signature of the testator once, fourteen years ago, would still
positively identify that yes that would be the signature of the
testator. It is not necessary for him to identify as long as he testify
that he was in a position to see the signing. Again, that satisfies the
in the presence test.
3. Test of Available Senses
Q: How about if the testator is blind? Would he be in a position to see?
A: No, Maam.
So he could not satisfy the test of vision. He could not also satisfy the
test of position.
Q: Unsaon man na siya? Would the will be valid?
A: The will would still be valid through the test of available senses.
Okay. So the would still be valid if the signing was within the gauge of
his other available senses.
Take note, both the acts of attestation and subscription by the

witnesses must be done in the presence of the testator and of each
and every one of them.
Q: What if the witness is blind?

A: The witness should be disqualified, Maam.
July 28, 2016 (J.Mortejo)

When subscribing and attesting the execution of the will, the law says
The attestation and the subscription must be done in the presence of
the testator and of each and every one of the witnesses.
Q: So when he (Isabelo Jena) was about the leave, what was his
position at that time?
A: According to Jena, the last witness (Javellana) was already in a
position ready to sign.
Q: But did he satisfy the test of presence?

A: Yes, Maam.
Q: So that witness, before he testified, how many times did he see

the signature of the testator? When?
A: Only once Maam. During the actual signing of the will.
A mechanical, an act of the

hand
The purpose of subscription is
identification. Thus, indicates
that the will is the very
instrument executed by the
testator and attested to by the
witnesses
To subscribe a paper published
as a will is only to write on the
same paper the names of the
witnesses for the sole purpose of
identification
Jaboneta vs. Gustilo
Q: So what test was used here?

A: Test of presence and position, Maam.
Q: When was the execution of the will here?

A: It was executed 14 years ago, Maam.
Subscription
The signing of the witnesses
names upon the same paper
for the purpose of identification
of such paper as
a will executed by the testator
What do we mean by in the presence? We have four tests:

1. Test of Vision
2. Test of Position
Q: So he had his back turned?

A: Yes, Maam.
Okay, so the issue here was when one of the witnesses was in hurry to
leave and he had his back turned, obviously he was not able to see
when the document was signed.
Let us go to the 4th requirement:

4th. The will must be attested and subscribed by 3 or more credible
witnesses in the presence of the testator and of one another.
Attestation
Consist in witnessing the
testator's execution of the
will in order to see and take
note mentally that those
things are done which the
statute requires for the
execution of the will and that
the signature of the testator
exists as a fact.
A mental act, an act of the
senses
The purpose of attestation is to
render available proof of
authenticity of the will and its
due execution
Q: Why?
A: Because he is in the act of leaving and he turned his back already
when Javellana signed the deed.
Q: Why? What if the blind witness was really there and he was present
during the execution of the will? And he said during probate that I
did not see but I use my other available senses
A: It will not satisfy the requirements of the law, Maam. The Court said
that the test would be not the actually seeing the instrument signed
but whether they might have seen each other signed.
Q: So whats the status of the will?
A: It would be void.
Okay. It would be void because one of the witnesses is disqualified.
Take note that the Test of Available Senses can be (mode a way?)
in so far as the testator is concerned, if he is blind, but not if the witness
is blind. Because under (Article 821? 820 man gud ang nag-mention
about blindness sa witness), the witness who is blind is disqualified.
Page40of55

Nera vs. Rimando
So there is ___ if what is really the total number of pages of the will.
Because if there is no such statement, even if there are page numbers
in each sheet or page of the will, we still dont know how many pages
really composed the will. To prevent increase and decrease in the
pages, again thats another requirement; to state in the attestation
clause the total number of pages in the will.
There was just a discussion by the Supreme Court here that, for
example if there was a curtain separating the testator and some
witnesses from the other witnesses, the test of presence would not
be satisfied. Why? Because if there is a curtain, then there is now a
physical obstruction. So, they cannot see. But here of course, we
are assuming that the curtain was ___, dili gyud na maklaro. But
what if it is only a glass? Can you say that the will is void? Glass
partition? In that case, they can still see if they wanted to see. So in
that case, the will would still be valid. Here, the SC, in so far as the
curtain was concerned, the will is void because again of the
physical obstruction.
Azuela vs. CA
Q: What was the kind of will executed here?
A: A notarial will, Maam.
Is there a requirement that the witnesses should sign ahead of the

testator? Or that the testator should sign ahead of the witnesses?
In the case of Gabriel vs Mateo, the SC said it does not matter. As long
as the signing was sufficiently contemporaneous and made on one
occasion and as part of a single transaction. So if the witnesses signed
first before the testator, its not a problem. As long as on that occasion
itself, they all signed the will, including the margins and the attestation
clause.
Why is there a requirement that the signing and the attestation must
be made in the presence of the testator and of each and every one
of the witnesses?
To prevent false testimony. Because if you are witnesses of one
another, it would be very difficult for you to invent that I was there
but the other witnesses would say I did not see you. So thats the
reason. To make it more difficult the invention of false testimony by the
witnesses since they are made witnesses of one another.
4. Test of Apprehension
ATTESTATION CLAUSE
We have illustrated this before so first; we have the testamentary
dispositions. Below that, the signature of the testator. After that, the
attestation clause and then the signature of the three witnesses. After
that, we have the acknowledgement and the signature of the notary
public.
Q: What was that specific statement in the attestation clause?

A: Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling
dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, xxx So
there was a blank space in the attestation clause Maam.
Q: What was the contention of the proponent of the will?
A: The proponent of the will Maam contends that this requirement
in the attestation clause was merely a directory provision and not
mandatory.
Q: So what kind of requirement is this?
A: Its a mandatory requirement, Maam.
Q: How about their invocation of the rule on substantial
compliance? Because there was an honest intention to comply, in
fact there was a blank, there was a line but it was not filled out.
Could it be excused on the ground of substantial compliance?
A: There was no substantial compliance in this case, Maam.
Because in the other cases that we discussed before where the
attestation clause was deemed to have been substantially
compliant, those attestation clauses contained statements that
referred to the number of pages in the will. However, that cannot
be applied in this case, because as described the attestation
clause here merely had a blank.
Q: How about in the other pages of the will? Did you find anything
that would suggest the number of pages?
A: No, Maam. As the SC said, there was no other reference to the
number of pages.
So aside from the fact that the witnesses attested or witnessed the
execution of the will, that fact of witnessing must itself be produced
into writing. This is what we call the attestation clause.
The attestation clause recites the attendant facts during the execution
of the will. There are matters that must be stated in the attestation
clause. If in reality the will was witnessed and attested but there is no
attestation clause, then the will would not be valid. So the fact of
attesting + the attestation clause, the act and the written document
preserving in written form what happened during the execution of the
will.
So as defined, an Attestation Clause is that clause of an ordinary or
notarial will, wherein the witnesses certify that the instrument has been
executed before them and the manner of the execution of the same.
It is a separate memorandum or record of facts surrounding the
conduct of execution. And once signed by the witnesses, it gives
affirmation to the fact that compliance with the essential formalities
required by the law has been observed. The purpose is to preserve in
a permanent form a record of the facts attending the execution of
the will. So that in case of death, absence or failure of memory of the
subscribing witnesses or other casualties, the due execution of the will
may still be proved. It is the best evidence of the facts attendant
during the execution of the will.
What is important in the attestation clause?
Those matters in Article 805. So memorize what are these matters
which MUST be stated in the attestation clause:
1. The number of pages used upon which the will is written.
Take note that before, we discussed that the will must be numbered or
that it would be in letters. So there must be pages. Aside from the fact
that there is a page number in each page of the will, the total number
of pages used must also be mentioned in the attestation clause.
Ex. This will consist of 5 pages, including this attestation clause.
Q: And then, in the attestation clause?

A: In the attestation clause Maam, there was a blank space where
the number of pages should have been inserted.
Okay, so there is nothing in the attestation clause or anywhere in

the will itself as to the number of pages which comprise the will.
That cannot be excused on the ground of substantial compliance.
There was nothing at all saying whats the total number of pages.
And this is a MANDATORY requirement and not just directory. Here,
the will was declared void.
In the Matter of the Petition for Probate of the Last Will and
Testament of Enrique S. Lopez
There is nothing in the attestation clause in this case which states
the number of pages.
Q: How about in the acknowledgement portion? Was it not
sufficient?
A: It was actually stated in the acknowledgment portion that the
will consist of 7 pages but the will actually has 8 pages.
So it said, this will consist of 7 pages including the page on which
the ratification and acknowledgement are written.
Q: Isnt that sufficient to satisfy the absence in the attestation
clause?
A: No, Maam. The SC said in this case that for substantial
compliance to apply, there must be no need to present evidence
aliunde.
So despite the fact that there was a statement in the
acknowledgment, that statement was wrong. Because in reality,
there are 8 pages including the acknowledgement portion. And
how do you explain the discrepancy? Then you would need to
Page41of55

present extrinsic evidence and that cannot be allowed under the

rule on substantial compliance.
because it was thumbarked by the testator. There is no need for

the attestation clause to state that the will was signed by a 3rd
person under the express direction of the testator because that will
thumbarked by the testator was considered to be signed by the
testator himself.
We will discuss later on what are the limitations insofar as the

application of the principle of substantial compliance is
concerned. NOT ALL DEFECTS CAN BE EXCUSED ON THE GROUND
OF SUBSTANTIAL COMPLIANCE.
I mentioned that there is no need to state the word in presence insofar

as signing by a 3rd person in behalf of the testator is concerned. That
was discussed in the case of Jallore vs Interino (L-42463). So only
signed by Juan dela Cruz, in behalf of the testator, under his express
direction. No need to state the phrase in the presence. That is not
required by law.
So here, the SC did not apply the principle of substantial

compliance because you cannot see anywhere in the will the total
number of pages. There was a statement but it was wrong and you
need an explanation for that from relevant persons or witnesses
why is there a discrepancy and that cannot be allowed anymore.
3. The signing by the testator or by the person requested by him in the

presence of the instrumental witnesses.
Taboada vs. Rosal
4. That the instrumental witnesses witnessed and signed the will and all
the pages thereof in the presence of the testator and of one another.
Q: What was the statement in the acknowledgment?

A: "This Last Will and Testament consists of two pages including this
page".
What is the effect if any of these matters are not mentioned in the
attestation clause?
General Rule: The will would not be valid because the attestation
clause is defective.
So based on that statement, it is clear that there were two pages in

the will and that page is the second page. Whatever omission was
there in the attestation clause; the omission was cured because of
that statement in the acknowledgement portion.
With respect to the signing in the attestation clause, we have:
So that is the difference between the case of Taboada vs Rosal and of

Lopez. In Lopez, there was no statement in the attestation clause as to
the total number of pages. But there was a statement in the
acknowledgement portion. The problem is the statement is wrong
because it stated 7 pages but the will actually has 8 pages.
In the case of Taboada, the attestation clause also did not state the
number of pages but there was a statement in the acknowledgement
portion too. The statement was correct and so the omission in the
attestation clause was cured by that statement in the
acknowledgement portion.
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.
Q: What was the appearance of the attestation clause? Assuming

this is the attestation clause *Maam drew something on the
board*, where did the witnesses signed? So there was nothing? No
signature at all in the page where the attestation clause was
written? Who signed in the acknowledgement portion?
A: There were signatures on the left-hand margin of both pages of
the will, Maam.
So instead in the attestation clause, the witnesses signed in the lefthand margin.
Q: Is that valid?
A: No, Maam.
These MUST be stated in the attestation clause.

Ex. This will was signed by Juan dela Cruz, in behalf of the testator,
under his express direction.
When we discussed before the signing by a third person in behalf of
the testator, the requirement is that the signing should be in the
presence of the testator and under his express direction. But take
note, as to the statement in the attestation clause, the law does not
mention about the word presence. It only mentions direction. So
even if the statement as to the signing of a 3rd person did not mention
about the presence but mentions under the express direction of the
testator, that would be sufficient.
Garcia vs. Lacuesta
Azuela vs. CA
Q: Why? Diba we discussed before the signatures could appear in

the left side, right side, top or bottom, it doesnt matter. Why cant
we allow that in this particular case?
A: The SC said that the signatures on the left-hand margin signify
that the witnesses are aware that the document signed forms part
of the will. On the other hand, the signatures after the attestation
clause mean that the witnesses are adhering to the statement of
facts in the attestation clause.
The witnesses do not sign the will. They sign in the left-hand margin
of the will. But insofar as the attestation clause is concerned, what is
the portion where they sign? The will is the act of the testator, while
the attestation clause is the act of the witnesses.
The testator here was Antero Mercado. The name Antero Mercado
was written in the will by his lawyer. Above the name of Antero
Mercado, he himself wrote a cross. The question here is that Would
that cross be a valid signature of the testator?
So as you said, the presence of the signatures of the witnesses at

the bottom of the attestation clause signify that they avow, they
own the statements mentioned in the attestation clause which
preceded their signatures.
There was no proof in this case that the cross was his customary
signature or that he intended that cross to be his signature.
Therefore, the cross was disregarded as a signature.
Q: Why cant we not consider the signatures on the margin as

having the same effect as the signatures at the bottom of the
attestation clause?
Q: What is the purpose of the marginal signatures?
A: For identification.
The ____ now became a will, signed by a 3rd person in behalf of the
testator. That would be valid if the attestation clause would state
the fact that this will was signed by the lawyer, Atty.Blah blah, in
behalf of Antero Mercado, under his express direction. But there
was no such statement in this case so that is the reason why the will
was disallowed. It did not comply with the requirement of the
statement in the attestation clause.
Tayag vs. Tolentino
Here, the will was thumbarked by the testator. The SC said there is
no need for the attestation clause to state that the will was signed
by a third person. Even if the name was written by a 3rd person
Okay, so that is the purpose. It doesnt matter where these

marginal signatures be located. They would still serve the same
purpose of identifying the will. But insofar as the signatures of the
witnesses in the attestation clause are concerned, their purpose is
to avow the statements in the attestation clause. And that cannot
be done when the signatures are in the margins.
So here, the SC said the marginal signatures are directed on the
wholly different avowal. Only for identification. But when you own,
you avow the statements in the attestation clause, you must sign at
the bottom.
Page42of55

So, it is very important that the notary public should get a statement
that the testator and the witnesses really acknowledge that the
document was freely and voluntarily executed by the them.
Q: What was the other reason given by the SC aside from that?
A: To prevent the belated insertion of an attestation clause.
Q: What is the difference between the acknowledgement and this

statement? What is the nature of the statement in the will? This
statement: Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10,
1981 dito sa Lungsod ng Maynila. What is this?
A: It only stated a jurat, Maam.
It would be difficult to insert a belated attestation clause if the

signatures would be at the bottom of the attestation clause.
According to the SC, it would be easy to add such clause to the
will on subsequent occasion and in the absence of the testator
and any or all of the witnesses. Because when you have an
attestation clause, the signing of the same should be made in the
presence of the testator and of the witnesses.
Q: What is a jurat?
A: A jurat is that part of an affidavit where the notary certifies that
before him/her, the document was subscribed and sworn to by the
executor.
Q: What if there are no signatures in the margins but there are

signatures at the bottom, would the will be valid?
A; Yes, Maam.
A jurat is actually a statement under the oath. So if theres a jurat,

meaning it is under oath subscribed and sworn to before a notary
public.
Q: Why?
A: Even if the signatures are only at the bottom of the attestation
clause, they could still serve a double purpose.
But again acknowledgment is not only the taking or swearing an oath

before a person authorized to administer oaths. It takes an extra step
on the part of the notary public in (coercing?) from the testator and
the witnesses a statement that they voluntarily and freely executed
the document.
So, they can serve to avow or own the recitals in the attestation
clause and they could also serve to identify the page. In fact, the
SC said The Court may be more charitably disposed had the
witnesses in this case signed the attestation clause itself, but not the
left-hand margin of the page containing such clause. Because
again, these signatures at the bottom could already serve as
marginal signatures. But the marginal signatures could not serve the
same purpose as the attesting signatures.
Q: Whats the effect of an invalid acknowledgement?

A: The will is invalidated.
Take note that everything in the will is VERY important. If the lawyer
commits a mistake, without error on the part of the testator, the will
would still be void.
Remember this case, this was also a reiteration of the case of Cagro
vc Cagro, same facts.
I remember a case Ive handled before; it is about probate of a will.

We the oppositors and of course, there was an acknowledgment. I
discovered that the person who notarized the will at the time when he
notarized the will, he did not have a license. He had no notarial
commission.
With respect to the attestation clause, what should be the language

used in the attestation clause?
Preferably, in a language or dialect known to the witnesses.
Does the testator have to know the language in the attestation
clause?
No because again the attestation clause is the act of the witnesses.
What if the attestation clause is in the language or dialect not known
to the witnesses but was explained to them, would it be valid?
Yes, under Article 805. But the language used should be explained or
interpreted to the witnesses. Unlike in the will, it really has to be in the
language/dialect known to the testator. No amount of explanation or
interpretation could cure the defect if in the first place the will is not in
the language or dialect known to the testator.
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.
Kana gud magpa-notaryo mo diha sa City Hall, diha sa kilid2, okay

lang siguro na kung affidavit. But if it is a will, ayaw jud mog
kumpyansa kay mahal baya nang will tapos wala diay toy
commission na nagbutang sa last will and testament. So it is still void. In
effect, the will is not acknowledged before a notary public.
Now, Article 806 says every will must be acknowledged before a
notary public. However, this should apply only to notarial wills.
Holographic wills are not acknowledged before a notary public. There
is no requirement under the law.
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.
Again, we discussed this before. Wills are supposed to be personal
and confidential and under the Rules of Courts, even if a ____
document is defined as one which was being acknowledged before
a notary public. But the Rules of Courts is also very explicit in
exempting a will. So even if wills are acknowledged before the notary
public, wills do not come ____ documents. Under the Notarial Law,
when you notarize a document, youre supposed to retain 2 copies of
a document: 1 copy for your file and the other to be submitted to the
Clerk of Court. As a consequence of any person who goes to the
Clerk of Court can get a copy of the document because it is a public
document.
Q: What do you mean by acknowledgment?

A: It means to avow; to attest to the truthfulness of the statements
therein. It is also to state that all the witnesses voluntarily signed and
that the testator voluntarily executed the will.
Q: In this case of Azuela vs CA, what was the phrase in the will which
was supposed to be in lieu of the acknowledgement?
A: Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito
sa Lungsod ng Maynila.
Q; Can that be considered as a valid acknowledgement?
A: The SC said here Maam that it cannot be considered as a valid
acknowledgment.
Can the notary public be one of the attesting witnesses to the will?
The statement in the acknowledgment, it says before me, a notary

public in the City of Davao, has personally appeared to Juan dela
Cruz and he acknowledged to me that the deed of sale xxxx. So that
is the statement in the acknowledgment.
If you are a witness, you will face the notary public and say that I
avow that I sign the document freely and voluntarily. And then the
notary public will say, Are you sure?. So you cannot say that to
yourself. And also, the reason why theres a notary public is to
ensure really that there was no coercion. If you are a witness and
at the same time the notary public, there would be a conflict of
interest. Youre a witness, youd be interested in sustaining your act.
If youre a notary public, you have to make sure that he really was
not coerced. So it would be a conflict in that case.
Q: So why this cannot be considered as a valid acknowledgment?

A: Nowhere in the acknowledgement was it stated that the will was
really executed by the testator.
Cruz vs. Villasor
Q: What would be the effect here if the notary public is one of the
Page43of55

attesting witnesses? How many witnesses were there in that will?

A: Three (3) Maam.
Again, first you cannot merge the attestation clause and the
acknowledgment. Assuming that you can merge, there was no
complete statement as to the requirement of the law insofar as the
attestation clause is concerned, those matters which are required
by Article 805.
Q: How about if there are 4 witnesses, one of them is the notary

public before whom the will was acknowledged?
A: I think there will be substantial compliance.
Q: Why?
A: Because what is required is at least 3 witnesses.
August 1, 2016 (K.Tongo)

Article 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.
Q: Is the person who is the notary public and at the same time, the
witness, is he disqualified to be a witness or to act as a notary
public?
Remember he is disqualified as a witness so that if there are 3
witnesses and one of them is a notary public, the notary public
would be disqualified to become a witness, in effect there will only
be 2 witnesses left. And therefore, the will would not be valid.
Article 807 mentions of requirements if the testator is deaf or deaf

mute. Here, there is a requirement that he should read the will if he
cannot hear. But if he is not able to do so because of his disability, he
shall designate another two persons to read the will to him and the
contents. So here the two persons designated by him need not be the
attesting witnesses. It can be another person.
But if you have 4 witnesses, one of them is the Notary public, even if
you disqualify the witness who is the notary public, as a witness,
there would still be remaining 3 witnesses. Remember, he is not
disqualified as a notary public. Hes just disqualified as a witness.
How do we know that indeed the requirements mentioned in Art. 807

was complied with? This can be proved during the probate. They can
present intrinsic evidence or extrinsic evidence.
Gabucan vs. Manta
Intrinsic evidence like you will write in the will itself that because the
testator was deaf or deaf mute xxx..etc. or testimony of witnesses that
[the two witnesses] was really complied with
The issue here is the failure to affix the documentary stamp tax in
the acknowledgement. It is required that documents
acknowledged before a notary public should be affixed with a
doc stamp. Would it affect the will? No. Just affix the Doc stamp.
The will would still be valid.
Article 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.
Javellana vs. Ledesma
Here we are talking of a blind testator. As we have discussed before, a

blind person can be a testator. In so far the test of presence is
concerned then we can follow the test of available senses. Diba
there was a requirement that the will was attested and subscribed by
the witnesses in the presence of the testator. So if the testator is blind
how you can say that the witnesses attested and subscribed in his
presence. It is by means of his other available senses.
Is it required that the acknowledgement should be done in one

occasion? Should the testator and all the witness go to the notary
public together and swear before him that the testator executed
the will freely and voluntarily and the attestation clause was also
executed by the witnesses freely and voluntarily?
The SC said no. The testator and the witnesses can separately go
before the notary public on different occasions. Take note that
what is only required is that the signing of the will and the
attestation clause and the margins should be done in a single
occasion. Although there is no requirement that the testator should
sign first before the witnesses. As long as in the presence of each
and every one of them. In the acknowledgment, the only
requirement under the notarial law is that the person who
acknowledges must appear before the notary public; so personally
appears.
Now, what are the additional requirements if the testator is blind?

1. Two readings under Article 808.
a. One of the subscribing witnesses- so it was really specified that it
should be one of the subscribing witnesses
b. Notary public- before whom the will was acknowledged.
So these are the persons required by law to read the contents of the
will.
What is the notary public is related to the testator? Would the will be
valid?
In the case of _____ (11 CA 945), it would still be valid.
How about under the present notarial law?
The notary public cannot be related within the 4th degree of affinity or
consanguinity to the parties in the document. But as to question of the
validity of the will, it is still valid. But the notary public may be subject to
certain sanctions. Because the New Civil Code does not disqualify
him. Sanctions only.
Echavez vs. Dozen Construction and Devt Corp
First, the law itself has separate provisions on attestation clause
which Article 805 and the acknowledgment under Article 806. That
alone would tell us that the purpose of the law is to separate them.
They have different purposes. You cannot merge them in a single
paragraph or statement.
Q: Aside from that, were the statements required by the attestation
clause present in this case?
A: No.
In short, the statements required by Article 805, paragraph 3 to be
stated in the attestation clause are also not present there.
Definitely, that cannot be considered as compliance with the legal
requirement for notarial wills.
Actually, going back to the acknowledgment by notary public, there

is no requirement that the notary public should know the contents of
the will. As long as in the acknowledgment he made sure that the
testator voluntarily signed the will and the witnesses voluntarily signed
the attestation clause.
But in so far as the blind testators are concerned, of course the notary
public before whom the will was acknowledged has to know the
contents because the law says he should read to the testator the
contents of a will. That is the exception.
Before we can apply Article 808 we have to know whether or not the
testator is blind. There are cases when even if the testator could still
see, the Supreme Court considered the testator as blind therefore he
should comply with Article 808.
Garcia vs. Vasquez
(GR L-26884 | April 30, 1970)
She was able to see. She could even see distant objects but she could
not read prints.
Q So is she blind under the contemplation of Article 808?
A. Yes Maam. The Supreme Court said that there was a requirement
that the provisions of Article 808 should be complied with.
Q. Were this requirement complied with?
A. The Supreme Court said that Article 808 was not complied with
Page44of55

since it was proved that the will was read silently by the testatrix before
signing it. She could not have objected the provisions.
Q. How did the Supreme Court described the appearance of the will?
A. The testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of the
paper, so much so that the words had to be written very close to the
top, bottom and two sides of the paper, leaving no margin
whatsoever; the word and had to be written by the symbol &,
apparently to save on space. Plainly, the testament was not prepared
with any regard for the defective vision of Dona Gliceria.
There were typographical errors. The will itself was untidy and informal.
Had the testatrix been able to read that, she would have made some
corrections made in the will. The Supreme Court said that it would be
very impossible that a person would make his last wishes in that kind of
document.
Imagine, you will be disposing all of your worldly possessions unya ingana lang ka hugaw na papel imong gamiton. So it was not
believable. So being that, there was really no compliance with the
reading requirements. The circumstances proved indeed that the
testatrix was not able to read the will. The will should have been read
to her and Article 808 should have been complied with because even
if she could see, in legal contemplation she is actually blind.
So how do we know whether or not the defect can be excused on

the ground of substantial compliance?
Now we have Article 809.
Requisites in Article 809:
1. There are defects and imperfection in the form of the attestation
clause or in the language used therein;
2. There is absence of bad faith, perjury or fraud or undue improper
pressure and influence;
3. The will was executed and attested in substantial compliance with
the requirements; and
4. The fact of such execution and attestation is proved.
What is not clear here is number 3. Again we go back to the question
When do we consider the will as having deemed executed and
attested in substantial compliance? What kinds of defects are
excusable?
Here even if you read Article 809, actually the law doesnt seem to
distinguish. It just says in substantial compliance. So how do we
know?
Actually it was discussed in the case of which weve already
discussed. So what did the Supreme Court say about the rule on
substantial compliance or the rule on liberal construction?
Alvarado vs. Gaviola

(GR 74695 | Sept. 14, 1993)
Q.What happened after the lawyer read the will?
A. Prior and subsequent thereto, the testator affirmed, upon being
asked, that the contents read corresponded with his instructions. Only
did the signing and acknowledgement take place.
Q. Was the testator blind? Is article applicable to her?
A. He is not blind but Article 808 is applicable to him.
It is clear from the foregoing is that Art. 808 applies not only to blind
testators but also to those who, for one reason or another, are
incapable of reading the (ir) will(s). Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his poor, defective,
or blurred vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope of the term
;blind as used in Art. 808 Unless the contents were read to him, he
had no way of ascertaining whether or not the lawyer who drafted
the will and codicil did so conformable with his instructions.
Abada vs. Abaja

The Supreme Court said The so called liberal rule does not offer any
puzzle or difficulty nor does it open the door for serious consequences.
The later decisions do tell us when and where to stop. They draw the
dividing line precision. They do not allow evidence alliunde or extrinsic
evidence to feel a void in any part of the document or supply missing
details that should appear in the will itself. They only permit a probe
into the will, an exploration within its confines to ascertaining its
meaning or to determine the existence or absence the requisites
formalities of law. This clear sharp limitation eliminates uncertainty and
ought to banish any fear of dire result.
In short we apply the rule on substantial compliance if the defect can
be cured by intrinsic evidence. What do we mean by intrinsic
evidence? Evidence which are found in the will itself.
Q. Was there compliance under Article 808?

A. Only substantial compliance. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, the notary public and one of the three instrumental
witnesses and the testators physician asked the testator whether the
contents of the documents were of his own free will. Brigido answered
in the affirmative.
Q. Strictly speaking was the letter of the law followed?
A. No Maam. But according to the Supreme Court, the Spirit behind
the letter was followed although the letter was not.
Here even if technically speaking the will was not read twice, but it
was as if the requirements were complied with because the witnesses
as well as the lawyer before whom the will was acknowledged had
their own copies of the will and they also read the will following the
reading made by the lawyer who drafted the will.
Take note here there was a substantial compliance so the will was not
disallowed.
Article 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.
This is the direct provision of law regarding substantial compliance.
You have encountered this before when you studied different cases.
In some cases the Supreme Court applied the principle of substantial

compliance and in some cases the Supreme Court said there cannot
be substantial compliance.
Example in this case, insofar as this issue is concerned, it was alleged

that the attestation clause was defective because it failed to state the
number of witnesses who attested and subscribed the will. The
Supreme Court said that he can easily determine the number of
witnesses by just counting the number of signatures or persons who
attested and signed in the will that is found in the will itself. That is an
example of intrinsic evidence. The fact that there were three witnesses
that can be easily be verified from the will itself.
But if you failed to state that the witnesses signed in the presence of
the testator, for example, the witnesses attested and subscribed the
will in the attestation clause. There is nothing here that states in the
presence of testator and each and of each and everyone of them.
So how can we prove then that indeed the witnesses attested and
subscribed in the presence of the testator and of each and everyone
of them if there is nothing in the will to that effect. You would need the
testimony of the witnesses saying that I was really present. I saw and I
was in the position to see when the testator signed the will, attested
and subscribed the will. But that is not allowed anymore because
that would be introduction of evidence alliunde or extrinsic evidence.
In the case of Cagro vs. Cagro and later on Azuela, remember that
case when the witnesses signed in the margins of the attestation
clause but not in the bottom? How can we explain that the witnesses
did not sign at the bottom and that they really intended their
signatures in the left margins to be their signature also in the
attestation clause? We have to ask the witnesses and that would be
again extrinsic evidence or evidence alliunde. So that cannot be
allowed under the rule on substantial compliance or liberal
construction.
Page45of55

Taboada vs Rosal diba it is required to state the total number of pages

used in the will. In that case the attestation clause failed to state the
number of pages. But in the acknowledgment portion it says that This
will contain two pages including this acknowledgment. That is an
intrinsic evidence. That is something in the will itself that would shed
light as to the total number of pages. You dont have to go outside of
the will. You dont have to ask witnesses. You need only to read the
acknowledgement and determine that the will really has two pages
and the acknowledgement page is the second page.
In the other case which we discussed also, the attestation clause
failed to state the number of pages. In the acknowledgement portion
there was a statement that the will includes 7 pages including the
page where the acknowledgment was written. But in counting the
total number of pages, the will has actually a total of 8 pages. So the
Supreme Court did not allow the will in that case. Why? Because there
is nothing in the will which would explain why is there a discrepancy. It
could have been cured had the acknowledgment stated the number
of pages as stated in the case of Taboada vs Rosal. But in that case,
even if there was a statement in the acknowledgment portion it was
also wrong and you would need extrinsic evidence to explain why
there is a discrepancy and that could no longer be allowed.
Again in those cases which we have discussed you will notice that
those defects curable by intrinsic evidence are excused on the
ground of substantial compliance. Those defects which would need
the introduction of extrinsic evidence or evidence allunde, the
Supreme Court said that the defect is not excusable.
If you remember in one case, it was alleged that the will was defective
because the attestation clause states this will is consist of __ pages
ang blank wala na fill out. It was contended na directory lang daw.
But there is nothing at all in the will or in the attestation clause or
acknowledgment that would state the total number of pages. So the
Supreme Court said that could not be excused even in the ground of
substantial compliance.
If the defect can be cured by intrinsic evidence it can be allowed on
the ground of substantial compliance.
HOLOGRAPHIC WILLS
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.
Article 810 talks of holographic wills. Based on the article, a
holographic will is entirely written, dated and signed by the hand of
the testator himself. So no other form. It is not required that there
should be an attestation clause. An acknowledgment is not also
required. Witnesses are not also required. The requirement is only that
it is entirely written, dated and signed in the hands of testator.
History of Holographic wills

So lets go to the history of the holographic wills. It is important to know
the history because sometimes it would matter in determining whether
or not the will is extrinsically valid.
The Spanish Code permitted the execution of holographic will. So
katong una pang panahon puwede ang holographic wills. But under
the Code of Civil Procedure Act. 190, which was approved August 7
1901, holographic wills were repealed. So at that time starting August 7
1901 di na puwede ang holographic wills, only notarial wills. When the
New Civil Code took effect on August 30 1950 holographic wills were
revived along of course with the notarial will.
So if we have a holographic will which is dated January 1, 1930 is that
will extrinsically valid? No, because we learned in Article 795 from the
view point of time the will would be valid if it complies with the laws
enforced at the time of its execution. At the time of its execution in
1935 (1930 iya giingon) were holographic will allowed? No. Remember
from August 7 1901 and before August 30 1950 holographic will were
not allowed. Any holographic will executed at that time would not be
extrinsically valid.
Requisites for the execution of Holographic wills:
1. The will must be written in a language or dialect known to the
testator.
2. It must be written entirely by the testator.
3. It must be dated by the testator
4. It must be signed by the testator.
5. It must be made with Animus Testandi (intent to make a will)
In dealing with the language written it must be entirely written by the
testator.
When you say entirely written by the testator it should be the hand
written. It may be cursive, short hand. If the testator has no hands, or
has mastered writing using his foot or mouth, as long as it is the writing
of the testator it is valid.
What are the advantages of executing a holographic will? Even now

you can execute a holographic will. It is very easy to execute and it is
easier to revise. Why? Because if you have corrections or if there are
admission that you would like to include you can just do that.
Unlike in a notarial will that if the testator would like to add some more
provisions after he signed the will, he cannot just type additional
provisions after his signature after his signature. What he can do is to
execute another will or a codicil
In holographic will kung naa kay idugang puwede nimo isulat after
the signature. You just put the date and the signature again. That
would be easier to revise and easier to keep secret because there are
no witnesses. Unlike in a notarial will, although we say na wills are
confidential pero imong witness chismoso diyud siya, wala diyuy maka
pugong sa iya kung basa basahon niya ang will while naga prima
siya sa sides because diba she is required to sign in each and every
page in the margins. So it is really easy to know that content of the
Notarial will. But in a holographic will there are no witnesses are
required. Only the testator knows the contents of the will.
What are the disadvantages?
1. It is easier to forge because there are no witnesses. There is no

notary public who would ensure that the will was freely and voluntarily
executed by the testator.
2. It is easier to misunderstand because the testator might have been
faulty in expressing his last wishes because Notarial wills are usually
drafted by lawyers but ang holographic will ofcourse, ang testator
lang gyud na because it is his own handwriting. So kung dili lawyer
ang testator niya magpataka taka ra siyag storya didto and mali diay
to naay mga technical terms basi mamali ang interpretation.
3. There is no guaranty that there is no fraud, intimidation, force,
violence or vices of consent intervened in the execution of the will.
4. There is also no guarantee as to the soundness of mind of the
testator. Again siya lang isa nagbuhat buhat sa will so you dont have
witnesses.
The mechanical act of drafting the holographic will cannot be

entrusted by the testator to another. The holographic will has to be in
his hand writing that is why he cannot delegate to another person the
mechanical act of drafting the will. In a notarial will the mechanical
act of drafting may be entrusted to a third person.
If you, for example, seek an advice to your lawyer in drafting a will, he
drafted one and you copied it is still valid. What is important is that the
contents of the will must be the wishes of the testator.
If for example the first paragraph is typewritten and the second
paragraph is hand written all by the testator, the whole will would be
invalid because the holographic will must be entirely written by the
hands of the testator.
Another situation is when a testator drafted the holographic will in his
hand writing but he typed the attestation clause. Here, even if the
attestation clause is typewritten it will not affect the validity of the will.
Because strictly speaking, in a holographic will attestation clause is not
needed nor acknowledgment. That would be merely a surplusage.
That would be disregarded.
Insofar as the date of the will is considered, is the date important in a
will? We have to distinguish. If it is a notarial will even if the date is not
written it will not invalidate the will. But in a holographic will, date is a
Page46of55

major part of the will. Without the date indicated in a holographic will
the will would be void.
Civil Code. So here applying the principle of liberal construction or

substantial compliance, the will was allowed.
The date is very important in a holographic will. What are the purposes
of the date?
Again, in a notarial will even if the date is not written it will not affect
the will because the will can still be determined. There are witnesses
and we also have the notary public. They could easily identify the
date of the execution of the notarial will.
Q. where should the date be written in a holographic will?

A. So anywhere in the will. It can be at the top of the will, bottom of
the will or even at the signature of the testator.
But holographic wills have no witnesses as a general rule. So nobody

can actually testify as to the date of the execution of the will other
than what is written in the will itself. So without a date written in the will
we cannot be assured that this will was really executed on a certain
date.
The will must be signed by the testator. Can he sign using his
thumbmark in a holographic will? NO. Thumbmark cannot be affixed
as a signature because it is not the writing of the testator. But it can be
allowed in the notarial wills. It is because in Notarial wills there are
witnesses diba? They can testify that the testator was still alive when
he affixed his thumb mark. Kung holographic will wala ka kabalo
patay na diay to tapos gi ana ana lang. (gipilit sa papel ang thumb)
So thumb marks, stamp, crosses are not allowed.
So why is the date very important in a holographic will? There are

three reasons:
1. To provide against contingencies as that of two competing wills
executed on a same day on different places.
The signature in the holographic will must be the signature of the

testator. If his name is Juan Dela Cruz then Juan Dela Cruz. What if
he signs as J.D Cruz? Yes it is allowed as long as it is full and customary
signature.
There are two wills, the testator left two holographic will.
One will says I hereby leave all my properties to A. The other will says I
hereby leave all my properties to B. Now how do we know which will
to follow? Kay A nako I hatag? O kay b? patay na sa testator you
cannot ask him. So, under the law on revocation actually, the later will
is the latest expression of the wishes of the testator. So it will be
followed. The later will which is totally inconsistent with an earlier will is
deemed to have revoked the earlier will because they cannot be
reconciled. You cannot say na bahinun nalang nato kay A ug kay B
because the intention here of the testator is to give only to one. To A
or to B. So we should know which is the first will and which is the
second will and we will know that by looking at the date.
What if he customarily signs in his initials? J.D.C. mao na iyang full

customary signature? No. That is the exception to the general rule. It is
not allowed. Initials are not allowed. Why? Because the initials are
easy to forge. Even if it is the full customary signature.
If there is no date in both will we will not know which will revoke the
other. That is one reason the date is very important in a holographic
will.
But can the testator add some more provisions after his signature in a
holographic will? Yes. There is a specific provision allowing that. There
are only requirements but that is allowed under Article 812.
2. To determine the mental condition of the testator at the time of the

execution of the will.
How about a blind person? Can a blind person execute a holographic

will? It depends if he can write his will. If he can make a will in his
handwriting, handwriting ha. Handwriting! If he can do that and
comply with all other requisites then the will would be valid.
Remember it is required under the law that the testator must be of

sound mind at the time of the execution of the will.
What if we have a testator who is at times insane and at times has
lucid intervals? So puwede siya mag execute ug will at the time when
he is in a lucid interval puwede siya. So we have to know kanus a siya
naay lucid interval. Kanus a siya dili sane. And if he made a will and
the will is not dated we will not know if that will is executed during a
lucid interval. We cannot say ay gwapo man kayo ang will. It must
have been made during lucid interval. Wala ka kabalo naay uban
baya kung musu on sila mas hawod sila. We dont know that. So a
date is important.
3. To determine if the will is extrinsically valid because there was a
point in time that holographic will are not allowed.
Again from August 1 1907 to August 30 1950.
So if we have an old person, ibutang nato 200 years old na siya then
he has a will, niya iyang will lukot lukot na kaayo. Puwede to niya gi
execute in 1935, 1953, so wala may date, so how do we know when
he made a will? How do we know if the will is extrinsically valid. That is
another of reason why the date is important in a holographic wills.
That is not an issue in notarial wills because notarial wills have always
been recognized by our laws.
The law provides that it should be written with the date, the month
and the year. Like August 1 2016.It can also be by implication. For
example, the testator can say My birthday in 2005 or the testator say
Valentines day of 2014 because there is only one valentines day in
2014. Unless everyday is valentines day. So kana di na na siya
succession. It can also be Christmas of 2006, it can be by implication.
Roxas vs. De Jesus
(GR 38338 | Jan. 28 1985)
So Feb/61. There was only one will. No question of revocation and in
1961when the will was m it as already during the effectivity of the New
Again anything which is not the hand writing of the signature cannot
be allowed. It must be his full signature or full customary signature.
Cross, smiley face, thumb mark, stamp and all those other kinds of
signatures are not allowed.
Location of the signature,w here should the signature be located? At
the end of the testamanentary dispositions.
Seangio vs. Reyes

(GR 140371-72 | Nov. 27, 2006)
Here a holographic will was executed. It was a document.
Kasulatang Pag aalis ng Mana. And then there was only one
provision that can be called as a disposition. That is the disinheritance
of an heir here. It was questioned here whether or not this is a will.
Whether or not it is an act of disposition. Whether or not there was
intent here to constitute the document as a will.
So we already discussed before that a document containing
disinheritance can be considered a will because disinheritance is also
a kind of disposition although indirect.
With respect to the intent of the testator as expressed in the will, the
Supreme Court said that as much as possible if there is a document
purporting to be the testamentary disposition of a person, it must be
given effect. Because that document constitutes the last wishes of a
person.
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.
With respect to holographic wills the Supreme Court said that because
it is usually prepared by one who is not learned in the law, holographic
wills are more liberally construed than notarial wills.
Here taking to account the circumstances surrounding the execution
of the instrument and the intention of the testator. Compared to
notarial will mas relax ang rules of construction sa holographic wills.
That is the ruling in this particular case with respect to interpretation or
construction of holographic wills.
Here, the Supreme Court says Clearly under the circumstances this
document was really intended to be the last testamentary act of the
Page47of55

testator and it was also executed by him in the form prescribed by

law for holographic will.
their father, was sufficient.
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.
Here it talks about probate of holographic wills. There is no specific
provision in the New Civil Code in the probate of notarial wills. But you
will encounter that in your special proceedings in second semester.
So the rule in the probate of holographic wills is actually substantive
law because it is provided in the New Civil Code.
What do you mean by probate? Again when you say probate it is the
proceeding intended to determine the genuiness and due execution
of the will.
So if a person dies leaving a will whether notarial will or holographic
will, that will has to pass probate before the contents of the will can be
given effect. So there is a petition filed in court for the probate of the
will. And then the court will determine if this will was validly executed
by the testator. And only when the will is allowed to probate can the
provisions of the will be now given effect.
Even if the will you have been given a house and lot, you cannot
demand from the house of that occupant to vacate based only on
the will without probate. You have that will probated first. Kung
muingon si court okay allowed ang will then you have the decree of
the probate court. That is when you can say na hawa na dira I am
the owner.
But of course that insofar as the ownership of the house is concerned,
that becomes vested not at the time of probate but at the time of
death because again, the rights of the succession are transmitted
from the moment of death of the decedent.
So his opposition, since he had no direct interest, he had no

personality, did not make the will contested in legal effect. Even there
was an opposition but in reality by legal contemplation the will was
not contested.
So there is no requirement to present three witnesses. That would be
required if the will was contested. So here there was an opposition,
contest, but legally that contest was not the kind of contest that
would require three witnesses because in the first place he was a
stranger to the case.
That is the meaning of contested. The one who contested must have
personality otherwise that contest would not have the legal effect of
requiring three witnesses. The probate would still be considered as
uncontested.
Let us go to the case where the will was really contested. So it is really
mandatory to present three witnesses? We have two conflicting cases.
Azaola vs. Singson
(GR L-14003 | Aug. 5, 1960)
Q. What is the reason why the presentation of three witnesses in this
case is not mandatory?
A. The court even said that if the genuiness of the holographic will
were contested, we are of the opinion that Article 811 of our present
Civil Code can not be interpreted as to require the compulsory
presentation of thee witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no
witness may have been present at the execution of a holographic will,
none being required by law (Art. 810, new civil code), it becomes
obvious that the existence of witnesses possessing the requisite
qualification is a matter beyond control of the proponent.
Take note again in a holographic will there are no witnesses and the
law requires not just witnesses but witnesses who will explicitively
declare that the will and signature are those of the testator then it
would be very difficult to produce those kind of witnesses.
You are not just to produce any witnesses but witnesses with those
requisite qualifications.
There are two scenarios here.

1. If the probate is uncontested
2. If the probate is contested
1. Uncontested
At least one witness who knows the handwriting and signature of the
testator. And that witness should explicitly declare that this
handwriting and the signature are those of the testator.
So when you say explicitly he must categorically declare and
unequivocally, positively declare that the will, the handwriting and the
signature are those of the testator.
2. Contested
The law says at least three of such witnesses. Meaning, witnesses who
will explicitly declare that the will and the signature are that of the
handwriting of the testator.
What if there are no witnesses? Because in the execution of the
holographic wills witnesses are not required. So there might be a
possibility that there are no such witnesses. The law says in the
absence of any competent witnesses and the court deems it
necessary expert testimony may be resorted to. So handwriting of
experts may be used. Even the Court on its own determination can
rule whether or not the will is in the handwriting of the testator.
So here it says that it is not the object of the law to restrain and curtail
the exercise of the right to make a will.
In that case the Supreme Court says it is not mandatory.
Codoy vs. Calugay
(GR 123486 | Aug. 12, 1999)
Here the Supreme Court said that the presentation of the three
witnesses is mandatory (aside from the reason that the provision use
the word shall) because if you are not going to require the
presentation of the three witnesses there is a possibility that the
document not being presented is not the true last will and testament
of the testator, that it was just forged. In that case you are actually
defeating the last wishes of the testator.
Why is this case different from Azaola vs Singson?
So as we have discussed in the case of Azaola the grounds for
opposition is 1.The execution of the will was procured by undue and
improper influence on the part of the petitioner and his wife. 2. The
testatrix did not seriously intend the instrument to be her last will. In
Codoy vs Calugay the opposition was that the holographic will was a
forgery and that the same is illegible.
Rivera vs. IAC

(GR 75005-06 | Feb. 15, 1990)
Here the oppositor was considered to be not an interested party.
Therefore he had no personality to oppose.
Q. What is the consequence of that?
A. Being a mere stranger, he had no personality to contest the wills
and his opposition thereto did not have the legal effect of requiring
the three witnesses. The testimony of Zenaida and Venacio Rivera, Jr.,
who authenticated the wills a shaving been written and signed by
In the case of Codoy the authenticity of the will was really in question.
Although the Supreme Court also discussed in the case of Azaola na
even if the genuiness of the will were in issue but it was just a
theoretical discussion. It was not really the issue that was confronted
there. In the case of Codoy mao jud na siya ang issue-- Forgery. The
court even noticed that there were differences in the handwritings in
the other documents and in the last will. It is as if the third hand
intervened in the execution of the will. In that case the Supreme Court
deemed it proper to apply in its strict sense the provisions of 811 the
word shall that it should be mandatory.
Page48of55

So again what case would prevail? If we follow the latter case then it
would be Codoy vs Calugay because it is more recent than the case
of Azaola. But if you are asked in the exam na ang facts gyud
identitcal sa Azaola vs Singson obviously ang examiner ana naga tan
aw sa case ni Azaola vs Singson. You can answer the ruling there but
you can add but in the recent case of Codoy vs Calugay it is
mandatory. Kung lahi jud ang facts sa duha you follow the case of
codoy because it is the latter one.
So take note, a photocopy of the will can be allowed. It is the

exception to the best evidence rule. But if no copy at all is presented
and even if there is testimony presented, that cannot be allowed
because in holographic wills, the will itself is its best safeguard.
So in holographic wills, we have to know whether of not the will is
genuine. And how do we know? By comparing the strokes of the
handwriting of the testator in the will and with other documents. So
how can we compare if testimony lang. Your Honor ang iyahang agi
kay pakilid-kilid gamay. You cannot do that. You cannot prove the
authenticity of the will if its just a bare testimony. So if no copy of the
will is presented at all, then the probate shall be denied. Even if it is
proved that there was really a will, it will be disallowed probate. So
that is in case of a holographic will.
August 8, 2016 (K.Gumboc)

Recap:
We are still in the probate of holographic wills.
Rodelas vs. Aranza
(GR L-58509 | Dec. 7, 1982)
Facts: Ricardo Bonilla executed a holographic will. Marcela
Rodelas filed for the probate of the will.
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.
Amparo Aranza opposed alleging that the alleged holographic

will itself, and not an alleged copy thereof, must be produced in
the probate proceedings. A lost or destroyed holographic wills
cannot be proved by secondary evidence unlike ordinary wills.
Q: Can the testator add some more provisions after his signature in a
holographic will?
A: Yes. It is actually a codal provision.
Issue: W/N a holographic will which was lost or cannot be found

can be proven by means of a photo static copy.
Requisite for additional dispositions to be valid:
Ruling: Yes. If the holographic will has been lost or destroyed and
no other copy is available, the will cannot be probated because
the best and only evidence is the handwriting of the testator in
said will. It is necessary that there be a comparison between
sample handwritten statements of the testator and the
handwritten will. But, a photo static copy or xerox copy of the
holographic will may be allowed because comparison can be
made with the standard writings of the testator.
1.
He should sign them and place a date
In notarial wills, as we have already discussed, what is the effect if the

testator places additional provisions after his signature in a notarial
will?
The entire is invalidated. It is not just the additional disposition but the
entire will because the law requires under Article 805 that he must sign
at the logical end of the will. So if he adds provisions after his signature
in a notarial will, the form prescribed by the law is no longer observed.
As to the testimony of a witness:

In the case of Gan vs. Yap, the Court ruled that "the execution
and the contents of a lost or destroyed holographic will may not
be proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented; otherwise, it
shall produce no effect. The law regards the document itself as
material proof of authenticity." But, in Footnote 8 of said decision, it
says that "Perhaps it may be proved by a photographic or photo
static copy. Even a mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity of the handwriting
of the deceased may be exhibited and tested before the probate
court," Evidently, the photo static or xerox copy of the lost or
destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be
determined by the probate court.
So in a holographic will, it is actually allowed. So I also want to give to

A my house and lot in Calinan, Davao City. Signed by the testator and
his signature. So that is how you add additional provisions.
Now what if dated lang, walay signature. Or walay date pero may
signature?
GR: The additional disposition is not valid. It is to be disregarded. Okay,
disregard the additional disposition. However, we qualify that with
Article 813.
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.
Q: What does the best evidence rule provide?

A: The best evidence rule provides that:
GR: When the contents of a document are the subject of inquiry, no
evidence shall be admissible other than the original document itself.
So as a general rule, we have to present the original.
As an exception, a photocopy or a photo static copy can be
presented because the court can still determine the authenticity of
the will by comparing the strokes, the signature, the handwriting of the
testator in the photocopy of the will or other copies of the will.
Q: How about if there is no copy at all? Not even a photocopy?
A: The alleged will cannot be admitted to probate because there is
no way of validating the authenticity of the will as to the handwriting
of the testator.
Q: How about if another person saw the will and he memorized the
contents of the will and he is willing to testify that this is really the
content of the holographic will of the testator? Can that be allowed?
A: No, such cannot be allowed. The best way to determine the validity
of the will is to compare the handwriting of the testator.
Q: The SC cited here the case of Gan vs. Yap. What did the SC say?
A: The SC said that the contents of the holographic will cannot be

proved by mere testimony of witnesses who may have seen or read
such will. Under Article 838, the SC hesitated to accept that the
testimony of the witness is sufficient to prove the validity of the will.
So under Article 810, the will must be dated and signed by the
testator. Then under Article 812, additional provisions must also be
signed and also dated by the testator.
Now, under Article 813, if he has other dispositions which are not
dated but of course signed, and the last one is signed and has a date,
what is the effect of this?
All the preceeding dispositions are also valid. Pero kung ang last wala,
then walay labot na ang tanan. But when the last is complete, naay
date og signature, then valid.
So what is the effect of this last provision?
It is as if all the provisions, which are dated but not signed, are
executed as of the date of the last disposition. So this is the effect
under Article 812.
So as long as signed, even if not dated but the last one has a
signature and a date.
Now, the testator made a will, he signed it and then after his signature,
there are additional provisions not written by him but written by a third
person, what is the effect of those additional provisions written by a
Page49of55

third person? Do we just disregard those additional provisions? Is the

entire will invalidated because diba under Article 810, the holographic
will must be entirely written, dated and signed by the hands of the
testator? But the additional disposition was written by a third person
and not by the testator. How will this affect the holographic will of the
testator?
Let us qualify. Let us make a distinction:
1.
2.
If the additional disposition written by a third person is signed by

the testator, it means that he has the intention to own, to
incorporate those provisions into his will. And because of that we
now have a will that is not entirely written in the hands of the
testator. So the entire will is invalidated.
But if those additional provisions are not signed by the testator,
then you just disregard those additional provisions. Because if we
allow that to affect the validity of the will, it would be very easy to
invalidate the will of the testator by the simple expedient of
writing something in the will. Ah, wala diay ni apil. Sige,
butangan nako na diri. And then invalid na sya kay di man sya
handwriting sa testator. So if it is not signed. Because signing the
additional disposition is a manifestation of the testator that he
intends it to incorporate in his will those additional disposition.
So again, remember:
1.
If signed the entire will is void.
2.
If not signed by the testator, just disregard those additional
provisions which are not written by him.
So we are talking here of insertions, cancellations, erasures, or

alteration in a holographic will.
Ruling: Yes. As a general rule, when a number of erasures,

corrections, and interlineations made by the testator in a
holographic will litem not been noted under his signature, the will is
not thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or interlined.
However, when 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. To state that the will as first written should be given
efficacy is to disregard the seeming change of mind of the testatrix.
But that change of mind can neither be given effect because she
failed to authenticate it in the manner required by law by affixing
her full signature.
Q: How many heirs were instituted?

A: Only one. Initially it was Rosa then later on it was changed to
Gregorio.
Can you do these things?

Yes because it is stated under Article 814.
Like, I hereby give to A and B my house and lot in Calinan, Davao
City. And then giusab nimo. Gi erase nimo ang Calinan, gibutangan
nimo Matina so thats cancellation. The cancellation of the word
Calinan plus the insertion of the word Matina. So you have to
authenticate them with your signature.
Now the law says signature, full signature. So if your name is Juan Dela
Cruz, does it have to be Juan Dela Cruz? How about if you just sign
J.D. Cruz? Well, as long as it is your full customary signature. But then
again, all initials are not allowed in holographic wills.
What is the effect if the insertion, cancellation, erasure or alteration is
not authenticated?
GR: Just disregard the insertion, cancellation, erasure or alteration in
the holographic will. It is as if the will has not been inserted, cancelled,
erased or altered.
So we read the will prior to the cancellation as it was originally written
if the insertion, cancellation, erasure or alteration is not authenticated.
That is the general rule.
The reason is to prevent fraud because it would be easy to cancel
and replace like instead of X kay gibutang nimo imong pangalan. So
to make sure it is really done by the testator, he has to authenticate
that.
Now we have certain exceptions to this general rule. What happened
in the case of Kalaw vs. Relova?
Facts: Natividad Kalaw executed a holographic will. Gregorio

Kalaw, claiming to be the sole heir of the testatrix, filed for the
probate of the will.
Issue: W/N the holographic will should be admitted to probate

although the alterations and/or insertions or additions were not
authenticated by the full signature of the testatrix pursuant to
Article 814.
The general rule must be held confined to such insertions,

cancellations, erasures or alterations in a holographic will, which
affect only the efficacy of the altered words themselves but not the
essence and validity of the will itself. As it is, with the erasures,
cancellations and alterations made by the testatrix herein, her real
intention cannot be determined with certitude.
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.
Kalaw vs. Relova

(GR L-40207 | Sept. 28, 1984)
the holographic will contained alterations, corrections, and

insertions without the proper authentication by the full signature of
the testatrix as required by Article 814 of the CC. She contended
that the holographic will, as first written, should be given effect and
probated.
Q: What is the effect of this unauthenticated cancellation and

insertion?
A: The will is invalidated.
In this case, the name of Rosa was cancelled. But the cancellation
was not authenticated. So can we not give the property to Rosa
because the cancellation of her name was not authenticated?
The mere fact that Rosas name was cancelled, it shows the intention
of the testator to remove her from being her sole heir. Hence, we
should lean towards the intention of the testator which is not to give
the properties to Rosa. However, since it was not fully authenticated
we cannot also give the properties to Gregorio.
So here, this is an exception to the general rule. Usually without
authentication, we just disregard the insertion, cancellation, erasure or
alteration. But here, theres only one provision. And we cannot give
the property to Rosa also because there was really a change in the
mind on the part of the testator.
So actually, even it was not mentioned in this case, but if you analyze
the case, when the testator cancel the name of Rosa with the intent
to remove her as an heir, that actually amounts to a revocation to the
institution of Rosa an heir.
When we go to revocation, there are different modes of revocation.
One of them is by overt act. What are the overt acts of revocation?
We have burning, tearing, cancelling, obliterating. And for revocation
to be effective, the overt act plus the intent to revoke must concur. So
if you revoke by cancelling, as long as you made the overt act of
cancelling with the intent to revoke, that is sufficient. There is no need
of signing the cancellation.
So actually the act here of the testatrix amounted to a revocation.
And there is no need for authentication. So it still revoked the institution
of Rosa.
Rosa Kalaw opposed alleging that in the holographic will, she was
named first as the sole heir of the testatrix. She further alleged that
Ajero vs. CA
Page50of55

(GR 106720 | Sept. 15, 1994)
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.
Facts: Annie Sand executed a holographic will. Ajero filed for the
probate of the will. Clemente opposed alleging that the testatrix
did not comply with Articles 813 and 814 of NCC because certain
dispositions in the will were either unsigned and undated, or signed
but not dated, and that the erasures, alterations and cancellations
made on the will was not authenticated by the testatrix.
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.
Issue: W/N the failure of the testatrix to authenticate the erasures,

alterations and cancellations made on the will renders the will void.
Ruling: No. A reading of Article 813 of NCC shows that its
requirement affects the validity of the dispositions contained in the
holographic will, but not its probate. If the testator fails to sign and
date some of the dispositions, the result is that these dispositions
cannot be effectuated. Such failure, however, does not render the
whole testament void.
We already discussed Articles 815 to 817 before when we discussed

extrinsic validity of a will.
[From 2015 TSN:]
In Re: In the Matter of the Petition to Approve
the Will of Ruperta Palaganas
(G.R. No. 169144 | Jan. 26, 2011)
Likewise, a holographic will can still be admitted to probate,

notwithstanding non-compliance with the provisions of Article 814.
Facts: Ruperta Palaganas was a Filipino citizen who later became a

naturalized US citizen. She executed a last will and testament in the
US. Ernesto Palaganas filed for the probate of the will.
Thus, unless the unauthenticated alterations, cancellations or

insertions were made on the date of the holographic will or on
testator's signature, their presence does not invalidate the will itself.
The lack of authentication will only result in disallowance of such
changes.
So the SC discussed here the GR. But it mentioned about insertion,
cancellation, erasure or alteration done in the signature or in the date.
So what is the effect?
If there is insertion, cancellation, erasure or alteration it will invalidate
the whole will because the signature goes into the essence of the will.
If the insertion, cancellation, erasure or alteration are done in the
signature and the date even if not authenticated, they will produce
the revocation or the disallowance of the will because again, they go
to the very heart of the will.
SUMMARY:
The testator places
additional provisions in
the holographic will
Dated only but no
signature
Additional dispositions
not dated but signed
but the last additional
disposition is signed and
dated
Additional provisions
were written by a third
person
Insertion, cancellation,
erasure or alteration
Insertion, cancellation,
erasure or alteration is
not authenticated
Must be dated and signed under Article

812
Additional disposition is not valid. It is to
be disregarded under Article 812
All the preceding dispositions are also
valid. It is as if all the provisions which
are dated but not signed are executed
as of the date of the last disposition
under Article 813
1.
If signed, the entire will is void
2.
If not signed by the testator, just
disregard those additional
provisions which are not written by
him
Testator must authenticate by his full
signature under Article 814
Just disregard the insertion,
cancellation, erasure or alteration in the
holographic will. It is as if the will has not
been inserted, cancelled, erased or
altered.
Exceptions:
1.
The insertion, cancellation, erasure
or alteration refers to a substantial
provision (Kalaw vs. Relova)
2.
The insertion, cancellation, erasure
or alteration are done in the
signature and the date even if not
authenticated (Ajero vs. CA)
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.
Manuel and Benamin Palaganas opposed alleging that Rupertas

will should not be probated in the Philippines but in the US where
she executed it. He contended that an unprobated will executed
by an American citizen in the US cannot be probated for the first
time in the Philippines. They insist that local courts can only allow
probate of such wills if the proponent proves that:
(a) The testator has been admitted for probate in such
foreign country;
(b)
The will has been admitted to probate there under its
laws;
(c) The probate court has jurisdiction over the proceedings;
(d) The law on probate procedure in that foreign country
and proof of compliance with the same; and
(e) The legal requirements for the valid execution of a will.
Issue: W/N a will executed by a foreigner abroad may be probated
in the Philippines although it has not been previously probated and
allowed in the country where it was executed.
Ruling: Yes. Our laws do not prohibit the probate of wills executed
by foreigners abroad although such will has not been probated
and allowed in the countries of their execution. A foreign will can
be given legal effects in our jurisdiction pursuant to Article 816.
Our rules require merely that the petition for the allowance of a will
must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, legatees,
and devisees of the testator or decedent;
(c) The probable value and character of the property of the
estate;
(d) The name of the person for whom letters are prayed; and
(e) If the will has not been delivered to the court, the name of
the person having custody of it.
Jurisdictional facts refer to the fact of death of the decedent, his
residence at the time of his death in the province where the
probate court is sitting, or if he is an inhabitant of a foreign country,
the estate he left in such province. The rules do not require proof
that the foreign will has already been allowed and probated in the
country of its execution.
On reprobate:
Reprobate or re-authentication of a will already probated and
allowed in a foreign country is different from that probate where
the will is presented for the first time before a competent court.
Reprobate is specifically governed by Rule 77 of the Rules of Court.
Contrary to Manuels stance, since this rule applies only to
reprobate of a will, it cannot be made to apply to the present
case. In reprobate, the local court acknowledges as binding the
findings of the foreign probate court provided its jurisdiction over
the matter can be established.
Page51of55

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.
This is because there are two or more persons, so pwede ten persons
in a joint will. So dili na sya personal kay daghan na nakabalo sa
content sa will.
Article 818 talks about joint wills.
2.
What is a joint will?

A joint will is one where the same testamentary instrument is made the
will of two or more persons and jointly executed and signed by them.
So for example if there is a last will and testament signed by A and B,
all their testamentary dispositions are merged in one instrument. So
that is a joint will and such is not allowed for reasons of public policy.
It tends to convert a will into a contract.
Usually kung joint, there is an agreement between them and again as

we have discussed before, one essential element of a will is that it is
unilateral. So when you have dispositions tending to convert that into
a contract, it becomes bilateral. And that is not allowed. And that is
the tendency when you executed a joint will.
3.
It runs counter to the idea that will are essentially revocable.
How about if we have a document:

August 14, 2016
Last Will and Testament
I hereby give to C my land in Calinan, Davao City.
Signed, A
This is because if we have the joint wills of A and B, and A changed his
mind, I hate my heirs now, I want to burn my will and if he burns his
will, he will also be burning the will of B. So its very difficult for him to
revoke.
August 14, 2016

Last Will and Testament
I hereby give to D my land in Matina, Davao City.
Signed, B
But usually when you say revocation, its also an absolute right on the
part of the testator. But it is a joint will. Mag duha-duha pa sya sunog
kay mahal baya kaayo magpa notary. Maayo unta kung imuha ra na
pero ato baya na duha.
Is this a joint will?

It is not a joint will. Although they made it in one paper but this is not
jointly executed by them. When you say joint wills, these are wills which
are attributing the dispositions of two testators.
But here, they just used one paper. Siguro wala silay paper that time
because na stranded sila in one island. They can easily cut that. So it is
not a joint will.
4.
This is the most commonly given reason. Diba husband and wife, joint
will. Wife, I hereby give to my husband my favorite blanket. I hereby
give to my wife my 10M estate. And then of course kakitanga ang isa
na ay akoa na diay tanan kung mamatay ang akong husband. So
ma excited na sya mamatay ang iyang husband. So that is inducing
parricide.
Now a joint will has to be distinguished from a mutual or reciprocal will.

A mutual or reciprocal will or twin will is the separate wills of two
persons which are reciprocal in their provisions giving the separate
property of each testator to the other. They are executed with the
common intention on the part of the testators, irrespective of whether
there is a contract between them although the contractual element is
often involved.
It may subject one to undue influence and may induce

parricide if reciprocal.
5.
It makes probate more difficult in case of death of testators

in different times.
Are mutual or reciprocal wills prohibited?

Generally, mutual or reciprocal or twin wills are not prohibited.
Halimbawa there are five testators in a joint will. Obviously, dili na sila
mamatay og dungan. So namatay ang isa, gi probate ang will. Dapat
original and i-present. And then namatay napud ang isa then same
will gikuha napud ang original then gi-present then another napud. So
the same will has to be presented for probate and subject the same
to stress kanang kumot2 na ang will, nahugaw na ang will so hangtud
mura nag scratch paper ang will sa pagkapatay sa ika fifth na
testator. So difficult and probate sa will. And then halimbawa naa pa
sa isa ka court wa pa nahuman ang proceeding hiramin napud sa
pikas na court so mag motion2 pa didto para makuha ang original na
copy. So its difficult.
Unless:
1.
So these are the reasons given why joint wills are prohibited. Lets go
to the case of Dela Cerna vs. Potot.
So A, he made a will, I hereby give all my properties to B. B also made

a will, I hereby give all my properties to A. So theres a reciprocal
benefit given to each other.
They are made in the form of a joint will.
Gi isa ra nila ang ang provisions. Ang first paragraph, I, A give all my
properties to B then sa second paragraph, I, B give all my properties
to A then jointly signed by them. That now becomes a joint will. So this
is prohibited.
2.
Even if they made these wills in separate documents but

they are in the form of or they constitute disposition
captatoria
Dela Cerna vs. Potot

(GR L-20234 | Dec. 23, 1964)
Facts: The spouses Bernabe and Gervasia Dela Cerna executed a
joint last will and testament in the local dialect. They willed that the
two parcels of land they acquired shall be given to their niece
Manuela.
The husband Bernabe died. On October 1939, Manuela and
Gervasia filed for the probate of the joint will. The probate was
granted. Later on, Gervasa (wife) also died. On November 1952,
another petition for the probate of the same joint will, insofar as
Gervasia was concerned, was filed.
Disposition captatoria is also not allowed under the New Civil Code.
When you say disposition captatoria, the testator is giving something
to another in condition of that other persons act of giving something
to the testator or another person.
Example: I will give to B my land in Calinan, Davao City provided that
B will also give to his house and lot in Calinan. That is now a disposition
captatoria. That is void not because it is a mutual or reciprocal will but
because of the nature of the provision. So per se again, mutual wills
are not prohibited. Only if they become joint will or they constitute
disposition captatoria.
The CA ruled that the will was void being a joint will. However, the
decree of probate in 1939 was issued by a court of probate
jurisdiction and conclusive on the due execution of the testament.
What are the reasons for prohibiting joint wills?
Ruling: No. The final decree of probate, entered in 1939 by the CFI
of Cebu has conclusive effect as to Bernabes last will and
testament despite the fact that joint will are invalid under the CC.
The error committed by the probate court was an error of law, that
1.
It destroys the character of the will as strictly as a personal

act
Issue: W/N the previous allowance of the will for probate bars
another petition for probate of the same will.
Page52of55

So thats the general rule. The exception is the law on joint wills.
should have been corrected by appeal, but which did not affect
the jurisdiction of the probate court, nor the conclusive effect of its
final decision, however erroneous. A final judgment rendered on a
petition for the probate of a will is binding upon the whole world.
Being such, the heirs and successors of the late Bernabe, are
concluded by the 1939 decree admitting his will to probate.
When we say joint wills, we are referring to the extrinsic validity of the
will because we are only referring to the form of the will. How it looks.
So even if the testator executes his will, like for example, abroad in
Argentina where joint wills are allowed, diba under Article 17,
supposedly if the will is recognized in the place where it is made,
katong formal validity, then the will is also valid here in the Philippines.
But if it is a joint will, it is void even if it is executed in a country where
joint wills are allowed. So wherever the joint will may have been
executed by a Filipino it is not valid. Bisag sa moon pa sya, di gihapon
na valid.
Nevertheless, the probate decree in 1939 could only affect the

share of the deceased husband, Bernabe. It could not include the
disposition of the share of the wife, Gervasia Rebaca, who was
then still alive, and over whose interest in the conjugal properties
the probate court acquired no jurisdiction, precisely because her
estate could not then be in issue. Be it remembered that prior to
the NCC, a will could not be probated during the testator's lifetime.
So remember ha, Filipino citizens, absolutely prohibited from executing

joint wills. Void gyud na sya. Walay question ana. Void as to Filipinos.
The validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated
de novo, since a joint will is considered a separate will of each
testator. Thus regarded, the holding of the CFI of Cebu that the
joint will is one prohibited by law was correct as to the participation
of the deceased Gervasia Rebaca in the properties in question.
How about if the will is made by a foreigner? Is the will valid?

Well, Article 819 talks only of Filipinos. So when we talk of foreigners we
apply what we have discussed before.
If a foreigner executes his will abroad, what laws can he comply with?
1.
National law
2.
Law of his domicile
3.
Law of the place where he executed the will
4.
Philippine law
Therefore, the undivided interest of Gervasia Rebaca should pass

upon her death to her heirs intestate, and not exclusively to the
testamentary heir, unless some other valid will in her favor is shown
to exist, or unless she be the only heir intestate of said Gervasia.
Now if he made the will in Argentina and the will is valid there, then
the will is valid here also in the Philippines. It is recognized.
In this case, the first petition filed was for the probate of the will of the
husband in 1939 while the probate of the will of the wife was filed in
1952. At the time the probate of the husbands will, the wife was still
alive
Q: Diba that very same will was allowed probate in 1939 and that
decree became final and executory. So is it not already conclusive as
to the validity of the will?
A: It will only be conclusive as to the husband.
Even if he did not make the joint will in a place where it is recognized
but his national law allows him to execute a joint will, it is also one of
the laws which he may comply with diba. So the will would be valid.
So kung abroad, basta valid based on the place of the execution, or
according to his national law if he is a foreigner, the will would be
valid.
Now, when two or more persons execute a joint will, even if in the
document they are joint, but essentially and in reality, they are really
the separate wills of two or more persons only executed in one
document.
So if he made a joint will and he disposes certain properties located in

the Philippines so if that will should be presented for probate in the
Philippines, that will is extrinsically valid.
So what was probated in 1939 was the will of the husband jointly
executed with the wife. So when the wife died, what will happen
now?
Now what if the foreigner himself executed the joint will in the
Philippines, diri sya nagbuhat og joint wills is that will valid? Can it be
recognized here in the Philippines?
Upon the death of the wife, there is no impediment for the court to
take cognizance whether or not that will is valid because there should
be a new trial, trial de novo, insofar as the will of the wife is
concerned. So in that trial, you can actually assail that the will is not
valid because it is a joint will. Because again the will of the wife is
different from the will of the husband although again it is executed in
one document.
There are two views on the matter:

1.
Under Article 817 what laws may the foreigner comply with if
he made the will in the Philippines with respect to the
extrinsic validity of his will?
He can comply with Philippine laws, the law of his country or the law
of his nationality. If the law of his country or his national law allows
joints wills, then the will is valid.
So thats the nature of a joint will. Even if two or more persons but
actually these are separate wills of the persons involve in a joint will.
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.
Article 819 talks of joint wills referring to Article 818.
Article 819 provides that joint wills are not valid in the Philippines
although authorized in the law of the country where they may have
been executed if executed by Filipinos.
Now, remember when we discussed before the laws governing the
extrinsic validity of the wills from the viewpoint of place or country?
Diba, under Article 17, the law on lex locci celebrations, if the will is
valid in the place of execution then the will is also valid in the
Philippines.
Article 17, first paragraph. The forms and solemnities of contracts,
wills, and other public instruments shall be governed by the laws of
the country in which they are executed. xxx
2.
The other view, the will is not valid. Because even if his
country or his nationality may allow joint wills but under the
third paragraph of Article 17.
Article 17, third paragraph. xxx Prohibitive laws concerning persons,

their acts or property, and those which have, for their object, public
order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.
Meaning, the prohibition against joint wills is a matter of public policy
here in the Philippines. So even if his national law recognizes joint wills,
our laws should not be made subordinate to his national law
especially when he executes the will here in the Philippines.
Its different ha if he executes the will here in the Philippines and when
he executes the will abroad even if that will executed abroad will be
probated here in the Philippines.
So these are the tow views. One view valid sya pursuant to Article 817.
The other view void sya pursuant to the third paragraph of Article 17 of
the NCC, that is if the will is made in the Philippines by a foreigner. If
the will is executed by a foreigner abroad, isa lang ka view. Wala nay
Page53of55

two views ha? Kung valid according to the law of his country or his
national law or in the place where he executed the will, the valid.
5.
He cannot read and write. They can see and they can hear but
cannot give intelligent testimonies during probate proceedings. Thats
the reason.
What if the will is jointly executed by a Filipino and a foreigner? Is the

will valid?
SITUATION: A and B are husband and wife. A is Filipina while B is from
Brazil. They went to Brazil where joint wills are allowed. They made a
will jointly and then they own properties in the Philippines and they
dispose of their properties in the Philippines in the joint will. They died.
The will was presented for probate in the Philippines. Is the will valid?
6.
In so far as the wife is concerned because she is a Filipina, the will is

void even if in Brazil joint wills are allowed. It is void pursuant to Article
819. With respect to the husband because he is a Brazilian citizen and
Brazil allows joint wills, then the will is extrinsically valid as to him. Okay,
so depende sa law sa husband and sa wife. So there can be two
applicable laws in that single joint will.
Article 820. Any person of sound mind and of the age of eighteen
years or more, and not bind, 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.
We are talking of notarial wills because no witnesses are required for
holographic wills. These are the qualifications. Take note, a witness has
more required qualifications than the testator. The testator duha lang
dba? Sound mind and 18 years old. This is because if we require more
qualifications, basig gamay nalang na tao ang maka execute og will.
So duha lang ka qualifications. While as to witnesses daghan and you
can choose your witnesses.
Now let us discussed first the disqualifications under Article 821.
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.
Sound mind
We can still follow the standard used insofar as soundness of mind of

the testator is concerned. He may be suffering from forgetfulness or
other injury but he can still be considered of sound mind under Article
799. So the same standard.
18 years old
The same also insofar as the testator is concerned.
Not deaf
A deaf person can see diba? So why cant he be a witness to a will?

Yes, he can see but it would be very difficult to get his testimony
during probate proceedings. Did you see in January 1? Wa sya
kadungog. Musyagit nalang ka. Nasuko ka? So difficult sya.
Pabasahon nimo sya sa imong question. So ayaw nalang. Again,
daghang tao na pwede nimo kuhaon na witness. Ayaw na nang
bungol.
Why is there a need that the witnesses should be domiciled in the

Philippines?
Because after the execution of the will, after the death of the testator,
the witnesses can be called to testify. So if they are not domiciled in
the Philippines, it would be very difficult to reach them. There are court
processes which are only effective within the Philippines. So para dali
lang sila ma reach during probate proceeding for them to testify, they
should be domiciled in the Philippines.
Take note also that this requirement is applicable only if the will is
executed in the Philippines. Because if you execute abroad,
halimbawa naa ka sa Argentina, magita ka pag domiciled in the
Philippines didto para mag witness sa imong will so very difficult. So
only if the will is made in the Philippines. Besides if you are in Argentina
you can follow the law of Argentina insofar as the execution of the will
is concerned.
Not convicted of falsification of a document, perjury or false
testimony
It has to be by final judgment. The conviction to disqualify the witness

is that he must be convicted by final judgment. And take note also
the case to which he is convicted. These are:
1.
Falsification of a document;
2.
Perjury or false testimony.
What is common among all these crimes? Liar sya. Diba, he cannot be
trusted. He is not trustworthy. If he has that reputation, how sure are we
that tinood jud to iyang ginaingon when in some point in time he was
already convicted of lying. So dili pwede. But if your witness is a
murderer, rapist, a drug addict, okay lang na sya. At least dili sila
bakakon. They can be witnesses because they are not disqualified.
What is the effect of pardon?
There are two situations:
Not blind
A blind person cant be a witness to a will because he cannot see.

Diba attestation is an act of witnessing. How about if we use the test of
position? Well, how many persons are there in the earth noh? Why
would you choose a blind person to witness your will? So maglisodlisod pa ka. The law disqualifies a blind person. He cannot witness. But
a blind person again can be a testator.
4.
What are the requisites or the elements?

1.
The fact of residing or physical presence in a fixed place;
and
2.
The intention of remaining there permanently or the animus
manendi even if for the time being he was not there but he
has the intention to return.
7.
Merging the two articles, these are now the qualifications of witnesses:
3.
Article 50. For the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is the place of their
habitual residence.
Domicile can exist without actually living in the place as long as the
residence is established in one place and there is intention to stay
there permanently.
Subsection 4: Witnesses to Wills
2.
Domiciled in the Philippines
What do we mean by domiciled in the Philippines? We follow the rule

under Article 50 of the NCC.
Again you have to remember the basic rule. Even if it is a joint will, it is
the will of two or more separate persons. So we have to tackle that
issue separately, from the viewpoint of the Filipina wife and the
viewpoint of the husband foreigner.
1.
Dumb and illiterate
1.
2.
For example the pardon is an executive clemency, it

doesnt change the fact that he lied and that he was
dishonest. He is still disqualified.
If the pardon is because he was really innocent.
There are cases that are like that noh. He has already served his
sentence and then naay bag-ong evidence lisod na jud na sya ioverturn so i-pardon nalang at least act nalang na sya sa executive.
In that case, pwede pa na sya mahimong witness because innocent
man diay sya in the first place.
So when you draft will for your clients noh, be sure also kung kinsa na
ilahang witnesses kay basig mga convicted diay to sila.
NOTARY PUBLIC
Page54of55

Q: A notary public before whom the will is acknowledged, can he be

a witness to a will?
A: No, he cannot be a witness because it is a physical impossibility and
there would be a conflict of interest on his part. Witness then swearing
on his part cannot be done.
Q: What is the effect if the notary public is one of the witnesses?
A: If there are three witnesses only, the will is void because he is
disqualified as a witness and there are only two left. But if there are
four witnesses, one of them is a notary public before whom the will is
acknowledged, the will is valid because even if he is excluded as a
witness, naay pay tulo left.
But if the compulsory heir is given over and above his legitime like 10M
lang iyang legitime pero sa will gitagaan sya 20M and he is also a
witness. By virtue of Article 823 na forfeit niya atong sa free portion
atong excess inheritance but he will still receive his legitime.
Another important provision is unless there are three other competent
witnesses, so kung there are four witnesses and one of them is a
legatee or devisee then qualified sya to receive the legacy or device
because his presence as a witness is no longer material to the validity
of the will. Hence, he can receive his legacy.
Even if the law mentions only legacy or device it also includes
inheritance as a voluntary heir. Forfeited gihapon sya.
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.
Article 824. A mere charge on the estate of the testator for the
payment of debts due at the time of the testator's death does not
prevent his creditors from being competent witnesses to his will.
Article 822 talks about the effect of subsequent incompetency of the

witnesses.
What about of the witnesses are creditors? For example in the will the
testator said, I hereby allocate 10M in payment of my debt to A and A
is also a witness to the will. Does A forfeit the allocation?
Q: What if the witness has all the qualifications when the will was made
but later on the witness became insane, is the will valid?
A: Yes. What is important is the witnesses are qualified at the time of
the execution of the will. The same thing as the testator diba. As long
as qualified at the time of the execution of the will even if he was not
qualified before or if he becomes disqualified subsequently he does
not lose his qualification so long as at the time of the execution.
Q: What happens now if one of the witnesses became insane after the
execution of the will?
A: Valid gihapon ang will but he cannot be called upon to testify
during the probate. So other witnesses may be called upon to testify.
Take note also that these are not the qualifications of witnesses in a
holographic will. In holographic wills, we do not need witnesses during
the execution of the will. We need witnesses during the probate of the
will. Diba if the will is uncontested, one witness. The qualification is that
he must be able to explicitly declare that the signature in the will are
those in the handwriting of the testator. Mao na sya ang qualification.
If the will is contested, at least three witnesses having requisite
classification.
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.
Here, the witness to a will is also a legatee, devisee or a voluntary heir.
Is the will valid? What if one of the witnesses is also an heir, for example
he has been given a 10M estate and he is also a witness? The law says
the will is still valid but the witness forfeits his legacy, device or
inheritance.
The law says no because even if the testator did not provide for it the
creditor is entitled to collect from the testator. In fact prior to the
distribution of the estate, the debts and obligations must have been
paid first.
Pero kung ang gihatag sa creditor kay over and above the credit like
ang utang is 10M and then sa will kay nag allocate and testator og
14M and the creditor is also a witness. In that case mawala tong 4M
and makuha lang sa creditor and 10M.
[From 2015 TSN:]
Caluya vs. Domingo
(GR L-7647 | March 27, 1914)
Facts: The validity of the will was questioned on the ground that the
will mentioned and confirmed a sale of land to the other witness,
Segundino Asis, by the testator, and being thereby an interested
party, his testimony could not be believed.
Issue: W/N the will void since the will mentioned and confirmed a
sale of land to one of the attesting witnesses.
Ruling: No. Nothing in the will relative to the sale of land to
Segundino Asis creates an interest that may fall within the provision
of Article 824. Indeed, no interest of any kind was created by the
will in favor of Segundino Asis, nor did it convey or transfer of any
interest to him. It simply mentioned a fact already consummated, a
sale already made. Even if, however, the will had conveyed an
interest to Segundino Asis, it would not have been for that reason
void. Only that clause of the will conveying an interest to him would
have been void; the remainder could have stood and would have
stood as a valid testament.
What is the reason? Obviously because if you are a witness, and if you
know that you will receive 10M of course you will attest na valid gyud
ang will. So conflict of interest. To prevent that, disqualified siya from
receiving legatee, device or inheritance.
The same thing applies even if the legacy is not given to the witness
but to the wife, the spouse, parent, or child of the witness or anyone
claiming under such witness. Dili nila madawat and legacy, device or
inheritance. But valid gihapon ang will.
What if the child is also a witness? The child is an heir of the testator,
what is the effect? Will he forfeit his inheritance because of Article
823?
Insofar as the legitime of the child is concerned, dili na siya mawala
because that is provided for by law. Even if the testator does not want
to give their legitimes, the law mandates na ihatag ang legitime so
there will be no conflict of interest.
Page55of55

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WILLS & SUCCESSION TRANSCRIPT 2016

Legal or intestate succession the distribution of the

Although there are different ways by which there can be intestate

This is Wills and Succession. Practically, this is a very morbid subject

Why do we have the laws on succession?

[There is also mixed succession]

Q: Why is it that in our Constitution, the succession referred to is limited

Ramirez vs. Ramirez

There are other different kinds (classifications) of succession (as to

The SC decided that even though she is a foreigner, the concept of

Donation, as you have learned in Property, is a formal contract so you

WILLS & SUCCESSION TRANSCRIPT 2016

The 3 distinguishing characteristics of a donation mortis causa:

It must not transfer title of ownership to the transferee prior to the

Donation mortis causa

Q: What kind of ownership is being referred to here?

Ganuelas vs. Cawed

Facts: Celestina Ganuelas executed a Deed of Donation in favor of

Ruling: The SC elucidated the distinguishing characteristics of a

That before his death, the transfer should be revocable by

Q: Why should it be considered as mortis causa if the donation is

Issue: Is the donation inter vivos or mortis causa?

That the transfer should be void if the transferor should

The transfer should be void if the transferee dies ahead of the

WILLS & SUCCESSION TRANSCRIPT 2016

A: To know whether it passed title to Rodriguez, to ascertain who has

Q: What was the ruling of the SC?

Q: Was there an issue here as to the nature of that donation, whether

Facts: Gonzalo Villanueva, represented by his heirs, filed a case

Basically, the other party was insinuating that they bought it to

The specification in a deed of the causes whereby the act

Q: So applying that to the case?

WILLS & SUCCESSION TRANSCRIPT 2016

Q: How about the phrase that ownership be vested on her upon my

In the cases of Ganuelas and Villanueva, the SC explained the

Q: So what could that phrase mean?

Article 774. Succession is a mode of acquisition by virtue of which the

Article 712. Ownership is acquired by occupation and by intellectual

Q: Was this applied in this case?

These are the different modes of acquiring ownership:

So, succession is a derivative mode of acquiring ownership.

Q: In case of doubt what is the rule? Why?

Decedent is the general term.

WILLS & SUCCESSION TRANSCRIPT 2016

Inheritance it includes all property, rights and obligations of a person

case the organs may be considered as property to be transferred to

So, the subjects of succession, the ones which are transferred by

Q: Is donation the only mode?

You should be able to distinguish succession from inheritance:

So it is not only limited by donation but also by will or succession.

Again, as a general rule, the organs of the human body or parts

We have these subjects of succession:

R.A. No. 7170 or the Organ Donation Act of 1991

Q: What are the different kinds of properties that may be transferred

Q: What else? Aside from the classification of real and personal?

(c) Any organ bank storage facility - For medical or dental

Q: Can the human body be considered as property?

(b) A legacy of all or part of the human body under Section 3

Q: Can you give an example?

(c) The legacy may be made to a specified legatee or without

WILLS & SUCCESSION TRANSCRIPT 2016

GR: Patrimonial rights are transmissible.

leave your boyfriend or girlfriend your heart placed in a jar as your

Examples of patrimonial rights: