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From the lectures of Atty.

Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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.

June 20, 2016 (K.J.Du)

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.

Q: When you say succession under the Constitution, based on


that case, what is the kind of succession being referred to?
A: Intestate succession.

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:

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.

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.
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
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.
The SC decided that even though she is a foreigner, the
concept of succession operates not only to notarial wills but
also intestate succession.

In general, there are two kinds of succession (as to origin):


1. Testamentary or testate succession it is made by
virtue of a will
2. 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.
3.

[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.
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.
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.
There are other different kinds (classifications) of succession
(as to effectivity):

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

1.

2.

Succession inter vivos (or even for donation inter


vivos) it refers to a transfer made during the lifetime of
the transferor
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.
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.
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.
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:
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.

Synonymous to succession
inter vivos

Synonymous to succession
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.
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.
Ganuelas vs. Cawed
(401 S 447 | GR 123968 | Apr. 24, 2003)

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..
Issue: Is the donation inter vivos or mortis causa?

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

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

Ruling: The SC elucidated the distinguishing characteristics


of a donation mortis causa
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;
It must not transfer title of ownership to the transferee prior to
the death of the transferor.
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.

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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.
2.

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.
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.
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.

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: 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: 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.

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.
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
Issue: Who holds the better title, the heirs of Gonzalo
Villanueva (who claim they purchased it from Vere) or the

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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.

4.

5.

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?
A: To know whether it passed title to Rodriguez, to ascertain
who has the better title to the land in question
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: 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?

6.

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 can be said that the donation was inter vivos.
Also, there are certain terms used in the deed.
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.
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
In other cases actually, when the donor after the execution of
the Deed of Donation, transfers the property to some other

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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.
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.
Q: What did the SC say here about that sale, that postdonation 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 post-donation 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.
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.
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)

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 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.
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


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:
Article 712. Ownership is acquired by occupation and by
intellectual creation.
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.
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.
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.
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.
Decedent is the general term.

Article 776. The inheritance includes all the property,


rights and obligations of a person which are not
extinguished by his death.

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Article 776 defines what inheritance is.


Inheritance it includes all property, rights and obligations of a
person which are not extinguished by his death
So, the subjects of succession, the ones which are transferred
by death, by succession, are the properties, rights and
obligations.
You should be able to distinguish succession from inheritance:
Succession
Under Article 774
It is the mode of acquisition
of these properties, rights
and obligations

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

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

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.

Q: Is donation the only mode?


A: You can also transfer it by will.

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


personal?
A: We also have intangible properties.

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


thereof cannot be transferred by succession. These are the
exceptions:

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
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.

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


succession.

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 do you mean by res nullus?


A: It is not owned by anyone.

(b) Any accredited medical or dental school, college or


university - For education, research, advancement of medical
or dental science, or therapy;

Q: Can you give an example?


A: The sun, stars, or the air

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


education, research, therapy, or transplantation; and

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.

(d) Any specified individual - For therapy or transplantation


needed by him.

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.

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.
(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

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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.
(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 leave your boyfriend or girlfriend your
heart placed in a jar as your memory.

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?
Therefore, prior probate is not required if the subject is an organ
to be given for these purposes. That is one exception.
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.
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.
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.
Another requirement:
4.

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].

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.

II. Rights

Legacy it is a gift of specific personal or movable property

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.

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 these transmissible rights?

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
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.
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.

A.

Patrimonial rights

GR: Patrimonial rights are transmissible.


These are rights which pertain to properties. They can be
transferred by succession.
Examples of patrimonial rights:
1. Contract of lease
What is there in a contract of lease? The lessor who is the
owner of the property leases the property to the lessee.
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.
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

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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.
2.

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.

The right to insurance


Great Pacific Life vs. CA
(GR 113899 | Oct. 13, 1999)

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.
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.
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.

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.
Dr. Leuterio was the debtor, and when he died his rights under
that insurance were transferred to his heirs.
3.

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
4.

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.
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.
Issue: WON the widow can receive the insurance proceeds
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.
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.
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

A right to file an action for forcible entry or


unlawful detainer

An action by heirs to compel the execution of a


public document under Article 1357 of the Civil Code:

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.
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.
[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.]

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.
5.

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

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stealth, etc. For unlawful detainer, also within 1 year from the
date of last demand.

(2) by their nature; or


(3) by provision of law.

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.

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.

6.

Right to enforce civil liability arising from a crime

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.
7.

Right to recover from tort or negligence

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.
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.
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.
There are also rights which, even if they are patrimonial, they
are extinguished upon the death of the decedent. These are the
exceptions.
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)

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.
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.
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.
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;

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 a general rule, rights under a
contract are transmissible.
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.
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.

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;

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(6) By the expiration of the period for which the agency was
constituted.
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]

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.
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.

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 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.
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.
6.

The right to annuity under Article 2027 of the Civil


Code:

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.
7.

The right to revoke a donation by reason of


ingratitude

(Even if this is a patrimonial right because this relates to a


property)
This right pertains only to the donor, it cannot be exercised by
the heirs.
8.

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.

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
If the parents die, there is substitute parental authority but it is
not by inheritance, it is provided for by law.
2.
3.
4.

Marital rights relating to persons or property


Actions for legal separation
Right to receive support

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5.
6.

Right to vote
Guardianship

Absolute Sale by sending a check covering the amount.


However, his request letters were unheeded.

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.

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 Vano succeeded as administratix of the Jose Vano
Estate.

Right to hold public office

How about the right to hold public office?


Issue: Which of the two contracts should prevail?
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.
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.
III.

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.
Ruling: The Contract to Sell between Teodoro and Frank Liu
should prevail.

Obligations

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.
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.
[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.

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.
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.
It is immaterial if the previous contracts is a mere Contract to
Sell and does not immediately convey ownership.
Q: What is there in a Contract to Sell?
A: There is no transfer of ownership until you pay the
purchase price in full.
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.
Alvarez vs. IAC
(GR 68053 | May 7, 1990)

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.

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.

9 years later, Frank responded that he was willing to pay the


balance of 1,000 and requested the execution of the Deed of

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?

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Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]

From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

A: A civil case for recovery of possession of real property with


damages

consideration of its performance by a specific person and by


no other.

Q: Against whom?
A: Against Siason, Laura, Flora, Alvarez, and the ROD.

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.

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?
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

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

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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.

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.

This is also discussed in the case of Alvarez.


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.
4.

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

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.
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.

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

There is also a concept of inofficious donation wherein you


cannot give away something which will prejudice the legitimes of
your compulsory heirs.
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.
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. 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.
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.
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.

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
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.
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.
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 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: 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.

June 27, 2016 (K.J.Du)

Q: What rights did they have during the lifetime of their


father?
A: They merely have an inchoate right or a mere expectancy.

Recap:
We already discussed the subjects of inheritance: rights,
properties and obligations.

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.

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.

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.

That was also illustrated in the case of:


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

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.

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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: 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.

Q: How about if she did not execute a will, could these legal
heirs question?
A: No, they are only nephews and nieces.

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.

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.

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.

Q: They could question? On what basis?


A: Because if she died intestate, all her properties will
devolve to her legal heirs.

They cannot question because:


a. They only had inchoate rights.
b. They are not compulsory 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.
Q: So are you saying that if she died intestate, those
donations may be annulled? Those sales?
A: Yes, if they are inofficious.
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.

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:

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.
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.

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 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

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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.
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

We have 2 kinds of presumption:


1. Ordinary presumption

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)

Facts: We have Julio Lucero Jr who was appointed by Easter


Shipping as the captain of MV Eastern which plies the HKMNL 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.

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.

Subsequently, Lloyds of London, the insurer of MV Eastern,


declared that the ship had already sunk and confirmed the
loss of the vessel.

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.

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.

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.
2.

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.

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.
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.
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.
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.

Under the qualified or extraordinary presumption, there is


danger of death.

Q: So here, do we have to wait for 4 years?


A: No, because of the presence of danger of death.

So how many years do we need before he can be presumed


dead?
The law says 4 years.

There are facts, there are pieces of evidence which would


lead to a moral certainty that Captain Lucero already
perished in that calamity.

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?

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.

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[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 properties in 2000, that will be the basis for the
computation of the estate tax.
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.

Insofar as qualified or extraordinary presumption is


concerned:

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.

Time of death is counted


after 10 years or 5 years, as
the case may be, when the
presumption arises

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)

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.
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.
Issue: WON the wife has legal capacity to bring action for
accounting, payment of shares and damages
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.
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 pertaining to the decedent.

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: 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.

Now when do you think the danger of death occur, 1990 or


1994?
In 1990, when he disappeared.

Q: Does this involve succession to become a partner?


A: No, merely the shares of Tabanao in the partnership.

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

Qualified or extraordinary
presumption
Under Article 391

Q: When was the partnership terminated here?


A: In 1986, when they decided to dissolve the partnership.
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.
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.
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

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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.
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.
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 heirs may bring a suit to recover the property
of Alfonsos estate pending the appointment of the
administrator
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.
Q: Was there already an administrator appointed here?
A: None yet, but there was already a proceeding for the
appointment of an administrator.
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.
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.
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.
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.

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.

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Under Rule 131 of the Rules on Evidence, there are also


presumptions there.
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.
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.
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.
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.
Why is it relevant since both of them are dead anyway? Will it
make a difference?
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.
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.
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.
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.
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.

Article 778. Succession may be:


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A: It was in March 4, 1963, almost a month after Fr.


Rodriguez died.

(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed.
Article 778 gives us the different kinds of succession.
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.
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.

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.

Take note, as defined under Article 779, testamentary


succession happens when:
1. There is a will

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.

Of course, if there is no will, then automatically the property will


be distributed by legal succession.

Q: Same day? In what time? In what court?


A: Yes, at around 11am at the CFI of Bulacan.

2.

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 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.
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
Testamentary succession is preferred over legal succession.
Rodriguez vs. Borja
(17 S 41 | GR L-21993 | June 21, 1996)

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?

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.
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.
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.
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:
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,

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previous to the time appointed, in a newspaper of general


circulation in the province.
Q: Meaning? Technically, which was instituted first here if
you follow Rule 76 Section 3?
A: It was actually the testate proceeding.
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
Q: When was the will delivered?
A: It was delivered as early as March 4, 1963.
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.

When can this happen?


a. If the testator did not dispose of all his properties in the
will
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.
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.
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.
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.
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: 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.
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.
[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

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:
I.

As to effectivity
a. Succession inter vivos
b. Succession mortis causa
II. As to origin
a. Testamentary succession
b. Legal or intestate succession
c. Mixed succession
III. 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)

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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. 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.

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.

Voluntary succession

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
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.
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.
Again, forced succession is succession to the legitime while
voluntary succession is succession to the free portion.

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.
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.

We also have contractual succession.

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.

These will be governed not by the law on donation but by the


law on succession, it is governed by the formalities of wills.

Again, when we talk about Article 781, 1990 onwards, as an


incident of ownership.

Donations of future property between spouses by reason of


marriage shall be governed by the provision of testamentary
succession and the formalities of wills.

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.

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.
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.

Article 782. An heir is a person called to the


succession either by the provision of a will or by
operation of law.
Devisees and legatees are persons to whom gifts of
real and personal property are respectively given by
virtue of a will.
An heir can exist whether in testamentary succession or in legal
succession.

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

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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.
Can we also say that all legal heirs are compulsory heirs?
No, because there are more legal heirs than compulsory heirs.
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.

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.

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.

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
July 4, 2016 (M.Acosta)

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
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.

Legatees and devisees


They succeed by special or
particular title; they are given
specific properties

Recap:
Why do we need to know the distinction between an heir, a
devisee, and a legatee?

The term legatee or devisees


exist only in testamentary
succession, not in legal
succession.
Only succeed by reason of
the will of the testator

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.

We can already identify the


specific property; it can be
determined already with
certainty.

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.

They do not represent the


juridical personality since
they only acquire specific
property.

For example in article 793 and 781. So the value of your


inheritance or legacy or devise will also differ.

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


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

Section 1: Wills
Subsection 1: Wills in General
Page 23 of 69
Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]

From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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.
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:
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.
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.
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 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

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.
Q. what specific provision of the poem that was allegedly an
evidence of a testamentary intent?
A. to you I give all of my
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
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.
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

Page 24 of 69
Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]

From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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.

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.
Disposition of property

Unilateral
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;
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.

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)

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
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
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.
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.
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.
Individual

SC ruled that document containing only disinheritance can


also be considered a will because disinheritance is also
considered a disposition of property (indirect).
Q. Are there heirs instituted in that document?
A. none
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 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.
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.

Page 25 of 69
Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]

From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

A document appointing an executor or administrator of the


estate, is that a will? Is there a disposition of property?
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.
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.
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.

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.
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

Page 26 of 69
Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]

From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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.
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.
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

Article 786
HLD not named
There is class or cause
specified
What the 3rd person does is
to determine the persons,
institutions or establishment

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.

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.
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 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.
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.
Q. Now assuming that such provision is really void would it
affect the entire will?
A. No.
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.
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.
Dizon-Rivera vs. Dizon

Page 27 of 69
Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]

(33 SCRA 554)

From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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.
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.
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.
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.
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.
Q. Did the wife remarry? What would happen if she remarry?
A. usufruct would be terminated
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.
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.

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

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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.
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
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.
2.

Extrinsic Evidence- evidence which is not found in the will,


that is evidence gathered by looking beyond the will by
investigating, interviewing,

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.
How about testimonies of persons? Can we use that oral
evidence? Yes.
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.
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 ambiguitiesextrinsic 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-umangkonI 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 testament- ang nakabutang didto 1.0 unsa mana
siya ten? Its one diba. Ana ka karon nga di mani mao ang

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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 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.
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

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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)

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.
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
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.
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 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.

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?
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.
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.

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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.
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 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.
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?
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.
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 case- the devise will only be limited to
the interest , so lang he cannot give what he did not own.
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.
2 kinds of validity:
1. Extrinsic validity- That refers to the forms and solemnities
that must be observed in the execution of a will.
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.

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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
I. FORMAL OR EXTRINSIC VALIDITY
1. View point of time: The time when the will is executed.
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.
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.

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.
Abada vs. Abaja
(GR 147145 | Jan. 31, 2005)

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.

Q: What will was executed and what form?


A: Last will and testament and in the form of notarial will.

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.

Q: When did he executed the will?


A: June 30 4 1932

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.

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.

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.
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.
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.

Enriquez vs. Abadia


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

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

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.
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 for example the testator is in the Philippines what

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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

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

Philippines

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.

Abroad before the diplomatic or consular official of the


Republic of the Philippines.

Follow Philippine laws as provided under Article 17.


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

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.

Governing Law
Philippine Laws (Article 17)
Philippine Laws (Article 17)

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.

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:

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.
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.
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.
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.
So, those are the laws which the testator as a Filipino can
comply with when he executes his will abroad.

When the place of execution is:


1. In the Philippines

B. When the testator is an alien:

Follow Philippine laws as provided under Article 17.


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

When the place of execution is:


1. In the Philippines

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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.
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.
2.

Abroad

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.
In addition to that is Article 17:
4. Law of the place of the execution.

1. From the Viewpoint of time:


The law in force at the time of death
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.
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.

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.
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 foreigner-testator who
executes his will abroad if you noticed the laws governing the
extrinsic validity.
Those are the laws which the testator as a Filipino can comply
with when he executes his will abroad.

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 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.

II. INTRINSIC VALIDITY


We are talking of the substance, the legality of the provisions in
the will. Whether it is a holographic will or a notarial will.
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

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

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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!
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.
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
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.
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.
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 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.
Cayetano vs. Leonidas
(GR L-54919 | May 30, 1984)

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.
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)

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A: Yes Maam because what would govern is his National


law.
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.
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.

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

Insofar as intrinsic validity of the will is concerned wala ta


kabalo. That would be determined at the time of his death.
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

(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 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
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.

(56 S 266 | March 29, 1974)

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: 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?
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 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.

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: 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: 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.
So here the Supreme Court applied the Doctrine of
processual presumption. Although under the case of PCIB vs

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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.

[That is actually the first question in the bar exam last year,
the reprobate.]
So it has to be reprobated here in the Philippines.

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.

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.

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.

Q: So what If those matters are not proved during reprobate


in the Philippines?
A: The reprobate shall be disallowed.

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.

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 that is the difference with the reprobate proceedings. We
cannot apply here the doctrine of processual presumption.
In The Matter Of The Testate Of Christensen vs. Garcia
(GR 16749 | Jan. 31, 1963)

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.

Q: What was the citizenship of testator at the time of his


death?
A: An American Citizen residing in California.

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.

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.

Suntay vs. Suntay

Q: What law shall govern the distribution of his estate?


A: National lawCalifornia.

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.

(GR 3087 3088 | July 31, 1954)

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.

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. Article 16 is our conflicts of law rule.

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.

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.

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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.
The courts shall take cognizance of the situation and apply its
internal law.
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.
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.
Subsection 2: Testamentary Capacity and Intent

Article 796. All persons who are not expressly


prohibited by law may make a will.
Testamentary Capacity. General Rule: As long as you are not
prohibited by law, then all persons can execute wills.
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 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.
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.

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Q: in 18 years, how many leap years are there?


A: 4 leap years

disposed of, the proper objects of his bounty, and the


character of the testamentary act.

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.

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.

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.

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.

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 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.
-

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.

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

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.
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 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.
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

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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.

the requisites under 799. The SC said that the fact that she
had Addisons disease, she even benefitted from that for it
afforded her physical and mental rest.
Bagtas vs. Paguio
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

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: 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.

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.

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

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.

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.

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

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.

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

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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:
1. 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.
2. 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.
3. 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.
Under Article 800, the presumption is every person is of sound
mind.
General Rule: Soundness of mind or sanity.
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

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.

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.
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.

That is Under the Rules of Court. Rule 131, section


3(ee):

(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.

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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 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.
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.
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.

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.
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.
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.
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.
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.

Article 801. Supervening incapacity does not


invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity.
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.

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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, the legislature cannot validate a void
will, they cannot also validate a void will.

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.

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.
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.

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?
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.

Subsection 3: Forms of Wills


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.
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.
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.
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

Abangan vs. Abangan


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.
July 21, 2016 (I.J.Abad)

Recap:

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Last meeting we discussed the language requirements: The will


has to be in a language or dialect known to the testator.

Q: How then will we prove that the will is in the language or


dialect known to the testator?
A: Through Extrinsic evidence.

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.
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.
Q: Was there an application of the presumption?
A: Yes.
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 Spaniard, had several trips to Spain
and made letters in Spanish, so definitely she knows the
Spanish language.

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.
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.
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.
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.
Just read the case of Abada vs. Abaja, we will discuss that in
another topic.

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.

NOTARIAL WILLS

Article 805. Every will, other than a holographic will,


must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other
person in his presence, and by his express direction,
and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental

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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.
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.
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.
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.
3rd. All the pages shall be numbered correlatively in letters
and such is placed on the upper part of each page.
4th. The will must be attested and subscribed by 3 or more
credible witnesses in the presence of the testator and of
one another.
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.

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.
Leano vs. Leano
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.
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.
Q: Was it written in the attestation clause?
A: No.
Q: What is now the consequence of that?
A: It made the will void.

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.

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.

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.

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.

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

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.

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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.
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 3 rd


person signing in his behalf. (Test of Vision)

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

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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.

disqualifications, and you must testify based on truth and not


hearsay.
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.
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.
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.
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 when we say credible witnesses, you must be competent,


must possess all of the qualifications and none of the
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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.
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.
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.
Icasiano vs. Icasiano
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.
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)

Okay lang as long as you can identify the first, the second, the
third, of course consecutive.
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 4 th 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.
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.
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.
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.
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:
Attestation

In Re Pilapil: Partly in letters and partly in figures


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Subscription

From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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

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

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

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.

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

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.
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.
What do we mean by in the presence? We have four tests:
1. Test of Vision
2. Test of Position
Jaboneta vs. Gustilo
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.

Okay, so according to the Supreme Court, there was no need


for the witness to positively identified the signature.
Q: When was the execution of the will here?
A: It was executed 14 years ago, 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.
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.
Q: What if the witness is blind?
A: The witness should be disqualified, Maam.

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 he had his back turned?


A: Yes, Maam.

Q: So whats the status of the will?


A: It would be void.

Q: So what test was used here?


A: Test of presence and position, Maam.

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.

Q: Did he see?
A: He did not actually see the actual signing of the will.

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.
Q: But did he satisfy the test of presence?
A: Yes, Maam.

Nera vs. Rimando


There was just a discussion by the Supreme Court here that,
for example if there was a curtain separating the testator and

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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.
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.
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.
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.
Azuela vs. CA
Q: What was the kind of will executed here?
A: A notarial will, Maam.
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.
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.
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

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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 present extrinsic evidence and that cannot be
allowed under the rule on substantial compliance.
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.
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.
Taboada vs. Rosal
Q: What was the statement in the acknowledgment?
A: "This Last Will and Testament consists of two pages
including this page".
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.
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.
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
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?
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.
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 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.
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.
3. The signing by the testator or by the person requested
by him in the presence of the instrumental witnesses.
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.

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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.
With respect to the signing in the attestation clause, we have:

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.

Azuela vs. CA
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 left-hand margin.
Q: Is that valid?
A: No, Maam.
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.
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.
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.
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.
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 if there are no signatures in the margins but there


are signatures at the bottom, would the will be valid?
A; Yes, Maam.
Q: Why?
A: Even if the signatures are only at the bottom of the
attestation clause, they could still serve a double purpose.
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.
Remember this case, this was also a reiteration of the case of
Cagro vc Cagro, same facts.
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.
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?

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A: The SC said here Maam that it cannot be considered as a


valid acknowledgment.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
Can the notary public be one of the attesting witnesses to the
will?
Cruz vs. Villasor
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: What would be the effect here if the notary public is one of
the attesting witnesses? How many witnesses were there in
that will?
A: Three (3) Maam.
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.
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.
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.
Gabucan vs. Manta
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.
Javellana vs. Ledesma
Is it required that the acknowledgement should be done in
one occasion? Should the testator and all the witness go to

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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.
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 4 th 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.
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.

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.
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

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.
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.
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.
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)

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.
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.

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 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?

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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 ing-ana 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.
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.
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.
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?
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.
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

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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.

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.

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.

HOLOGRAPHIC WILLS

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.
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

If the defect can be cured by intrinsic evidence it can be allowed


on the ground of substantial compliance.

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.
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.
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.

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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.
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 major part of the will. Without the
date indicated in a holographic will the will would be void.
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.
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.
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.
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.
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.
2. To determine the mental condition of the testator at the
time of the execution of the will.
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

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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 Civil Code. So here applying
the principle of liberal construction or substantial compliance,
the will was allowed.
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.
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.
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.
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.
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.
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.
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.
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 testator and it was also executed by him in the form
prescribed by law for holographic will.

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.

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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.
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.
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 their father, was
sufficient.
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

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.
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.
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.
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

(GR L-14003 | Aug. 5, 1960)


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facts sa duha you follow the case of codoy because it is the


latter one.
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.
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.
Issue: W/N a holographic will which was lost or cannot be
found can be proven by means of a photo static copy.
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.
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.

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 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.

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.
Q: Can the testator add some more provisions after his
signature in a holographic will?
A: Yes. It is actually a codal provision.
Requisite for additional dispositions to be valid:
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?

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.

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.

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.

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.

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.

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.

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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.
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 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.

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.
So we are talking here of insertions, cancellations, erasures, or
alteration in a holographic will.

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?
Kalaw vs. Relova
(GR L-40207 | Sept. 28, 1984)

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.
Rosa Kalaw opposed alleging that in the holographic will, she
was named first as the sole heir of the testatrix. She further
alleged that 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.
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.
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

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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.
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.
Q: How many heirs were instituted?
A: Only one. Initially it was Rosa then later on it was changed to
Gregorio.
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.
Ajero vs. CA
(GR 106720 | Sept. 15, 1994)

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.

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.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article
814.
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

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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.
2.

If signed, the entire will is void


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)

From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

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.
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.
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.
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)

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.
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.

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.
Article 818 talks about joint wills.
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.
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
August 14, 2016
Last Will and Testament
I hereby give to D my land in Matina, Davao City.
Signed, B

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.

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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.
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.
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.
Are mutual or reciprocal wills prohibited?
Generally, mutual or reciprocal or twin wills are not prohibited.
Unless:
1. 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

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.

and if he burns his will, he will also be burning the will of B. So


its very difficult for him to revoke.
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.
4.

It may subject one to undue influence and may


induce parricide if reciprocal.

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.
5.

It makes probate more difficult in case of death of


testators in different times.

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 gipresent 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.
So these are the reasons given why joint wills are prohibited.
Lets go to the case of Dela Cerna vs. Potot.
Dela Cerna vs. Potot

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.
What are the reasons for prohibiting joint wills?
1.

It destroys the character of the will as strictly as a


personal act

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.
2.

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.

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

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

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the heirs and successors of the late Bernabe, are concluded


by the 1939 decree admitting his will to probate.
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.
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.
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.
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.
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 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?

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
So thats the general rule. The exception is the law on joint wills.
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.
So remember ha, Filipino citizens, absolutely prohibited from
executing joint wills. Void gyud na sya. Walay question ana.
Void as to Filipinos.
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

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.

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.

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.

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.

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.

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.

Article 819 talks of joint wills referring to Article 818.

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.

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?
There are two views on the matter:

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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.
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 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.
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?
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.
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.

Subsection 4: Witnesses to Wills


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.
Merging the two articles, these are now the qualifications of
witnesses:
1.

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.
2.

18 years old

The same also insofar as the testator is concerned.


3.

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 maglisod-lisod pa ka. The law disqualifies a blind
person. He cannot witness. But a blind person again can be a
testator.
4.

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.
5.

Dumb and illiterate

He cannot read and write. They can see and they can hear but
cannot give intelligent testimonies during probate proceedings.
Thats the reason.
6.

Domiciled in the Philippines

What do we mean by domiciled in the Philippines? We follow


the rule under Article 50 of the NCC.
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.

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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.
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.
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.
7.

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:
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 i-overturn 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
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.

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 822 talks about the effect of subsequent incompetency of
the witnesses.
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.
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

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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?

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.

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.
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 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.
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?
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.
Page 69 of 69
Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]