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Art. 774.

Succession is a mode of
acquisition by virtue of which the Succession
property, rights and obligations to the  mode of acquiring ownership
extent of the value of the inheritance of a  Separate and distinct from other modes
person are transmitted through his death of acquisition
to another or others either by his will or  Could survive independently as a mode
by operation of law. of acquisition
 Legal definition of succession
 Pertains to devolution or transfer of Art. 777. The rights to the succession are
property, rights and obligations – so transmitted from the moment of the death
called component of inheritance under of the decedent.
Art. 776  Moment of transmission, how rights are
transmitted
Art. 776. The inheritance includes all the
property, rights and obligations of a  Notarial and holographic will should be
person which are not extinguished by his in writing
death.
 Property rights and obligations should
not be extinguished by death Bases / Justifications of Succession (at
least know 3)
Property 1) Pater familias
 All things that may be the subject of  Roman law concept
appropriation  It means head of a family
 It is the responsibility of the head of the
Dominion family to take care of the family even
 Control over the thing after death
 Support the family even after death
Ownership
Art. 428. The owner has the right to enjoy 2) Act of love
and dispose of a thing, without other
limitations than those established by law. 3) Satisfies the yearning of human beings
to become immortal
The owner has also a right of action against  Even if we die physically there is
the holder and possessor of the thing in something to remember as by
order to recover it. (348a)
4) Promotes economic growth
Art. 712. Ownership is acquired by  Prevents properties from being stagnant
occupation and by intellectual creation.
Ownership and other real rights over 5) Right of the family of co-ownership
property are acquired and transmitted by  Family members have a right to the
law, by donation, by estate and intestate properties of the deceased
succession, and in consequence of certain
contracts, by tradition.
They may also be acquired by means of
prescription.

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Who will transmit?
Art. 775. In this Title, "decedent" is the 2) Devisees
general term applied to the person whose (device)
property is transmitted through succession,  A specific gift of
whether or not he left a will. If he left a will, real property
he is also called the testator.
3) Legatees
Decedent (legacy)
 General term applied to a person whose  Specific gift of
property, rights, and obligations shall be personal property
transmitted
Can be used in both testate and intestate:
Consider what kind of succession  Compulsory heirs
If there is a Testate We call the  Are heirs entitled to legitime?
will succession decedent as
testator Legitime
 a fixed portion of the inheritance or the
If female: estate reserved by law to the so called
testatrix “compulsory heirs”
If there is no Intestate We call the  this cannot be impaired
will succession decedent
 Also intestate
called
succession
by
operation
of law

Who will receive? Even if not stated in the will the ½ of the
 Receipt should always be voluntary estate is reserved to the compulsory heir
 An inheritance can be repudiated
The free portion is the portion that can be
Heir subject to distribution
 General term applied to the person
receiving the inheritance Preterition
 if you did not reserve, the will is
Classification of an heir automatically annulled
Testate Intestate
3 Categories  Simply called an Compulsory heirs
1) Voluntary heir/ “intestate heir” Parents, grand parents
testamentary Children, grand children
heir
 One indicated or  The surviving spouse is considered a
stated in the will compulsory heir

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years, an absence of five years shall be
sufficient in order that his succession may
Subject matter or object of transmission be opened.
Art. 776
 Inheritance Art. 391. The following shall be presumed
 Property, rights, obligations not dead for all purposes, including the
otherwise extinguished by death division of the estate among the heirs:

Operative fact: death (1) A person on board a vessel lost


 Without the decedent’s death, there is no during a sea voyage, or an aeroplane
transmission which is missing, who has not been heard
of for four years since the loss of the
Death vessel or aeroplane;
 Total cessation of life
 Bodily systems are no longer (2) A person in the armed forces who
functioning has taken part in war, and has been
 There is no such thing as temporary missing for four years;
death
(3) A person who has been in danger of
Art. 777 – From the moment of death death under other circumstances and his
property, rights and obligations are existence has not been known for four
transmitted years.

Body – cannot be inherited except if there is Ordinary


a will  10 years of ordinary absence will be
sufficient to declare him as someone
Death – either actual or presumptive death who presumptively died

Actual death – body as the physical proof Special


 If you were absent and you are 75 years
Presumptive death old
 Arts. 390, 391  Ordinary absence of 5 years shall be
 Can either be ordinary or extra-ordinary sufficient to declare him as dead
 There is an element of absence
Art. 391: 3 Circumstances
Art. 390. After an absence of seven years, 1) A person on board a vessel lost – 4 years
it being unknown whether or not the of absence
absentee still lives, he shall be presumed 2) Took part in war – 4 years of absence
dead for all purposes, except for those of 3) In danger of death – 4 years of absence
succession.
When will we consider the person who
The absentee shall not be presumed dead disappeared to have been presumptively
for the purpose of opening his succession dead?
til after an absence of ten years. If he  Consider the end of the period
disappeared after the age of seventy-five

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Result if both simultaneously died?
Situation:  Succession will not take place as far as
A person boarded a plane Aug. 24, 2015 – the parties who died
presumptively dead Aug. 24, 2019
4 Basic elements of Succession
For purposes of opening succession under 1) Subjective element
extraordinary circumstances:  Succession requires that there must be a
 It would start at the start of his decedent and an heir
disappearance
 Very first day of disappearance 2) Objective element
 Pertains to art. 776
Rules on survivorship  There should be an inheritance
If there is doubt regarding 2 persons as who comprising of property, rights and
died first obligations
 Consider: age, sex, and strength of the
person 3) Identity of Objects
 The same rights, properties, and
Disputable presumptions (Rule 131: jj) obligations are transferred from the
1) If the persons are both under 15, the decedent to the heir
older one has deemed to have survived
2) If both persons are over 60 years of age, 4) Change of Subjects
the younger one survived Transfer of property, rights and obligations
3) If one is under 15 and the other is above to another property
60, the former survived
4) If the person is above 15 and the other Can a corporation be considered an heir?
under 60, the other person is male, the 
male is deemed to have survived
5) If both persons same sex, older will
survive Different Kinds of succession
6) If one be under 15 or over 60, and the
other between those ages, the latter is 1) As to the moment of transmission
deemed to have survived.  Succession is either mortis causa or inter
vivos
Do we apply survivorship as far as
succession? Mortis causa
 No, Rule 131 does not apply  Will take place by virtue of the death of
 The fact of death should be proven the decedent
 As far as succession, survivorship does
not apply Inter vivos
 Will happen during the lifetime of the
Rule131 (kk) parties
 Give proof to who died first  This is not succession but donation
 In the absence of proof to who died first,
the presumption is they died at the same
time

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2) As to the extent of the right involved  1/5 of the present and also future
properties will be given to the future
2 Kinds: spouse
a) Universal  This was not carried over to the Family
 Does not specify the particular Code, hence, Art. 130 is no longer
inheritance to be inherited effective
 Remains to be a valid disposition  Thus, there is no such thing as
e.g. contractual succession in the present
the will states to give all properties to my
son DECEDENT
 Can be entire, alequot/ pro indiviso,
partition Testate Intestate

Pro indiviso – no need to specify the share Testator “Intestate”

b) Particular
 Applies to legacies and devices HEIR
 Particularly specifying the personal
property to be inherited Testate Intestate
 Real and personal property should be
particular described to avoid confusion Compulsory Heirs

3) As to Cause a) Voluntary/ Testamentary


a) Compulsory Succession
 Will take place because of the legitimes Intestate/ legal heirs

b) Testamentary b) Devisees
 By reason of a notarial or holographic
will c) Legatees

c) Intestate Art. 854


 Succession by operation of law  Act or omission of one, some or all of
the compulsory heirs
d) Mixed Succession  It will annul the institution of heirs
 Party by will and party by operation of  As if you did not institute a will
law  The will shall remain valid as long as it
 Apply if there are properties not is not inofficious meaning it will not
specified impair the legitime

Is there such a thing as a contractual Art. 886. Legitime is that part of the
succession in the Philippines? testator's property which he cannot dispose
 In the past, we had contractual of because the law has reserved it for certain
succession: collected by reason of pre- heirs who are, therefore, called compulsory
nuptial agreements heirs. (806)
 Art. 130 – element of reservation, future
properties

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Dual Status of an heir
Conspirators of a crime cannot inherit from
How will you distinguish a voluntary heir each other
from devisees and legatees
 It can be found under Art. 854 Dual Status
 An heir can be a compulsory heir as far
Legitime as the legitime is concerned and he is
 Portion of property to be reserved to also considered as a voluntary heir as far
compulsory heirs as the free portion is concerned

Compulsory heirs Intestate or legal heirs


Art. 887. The following are compulsory  They always inherit by way of universal
heirs: succession

(1) Legitimate children and GR: all properties rights and obligations are
descendants, with respect to their transmissible unless they fall under the
legitimate parents and ascendants; recognized exceptions which are:

(2) In default of the foregoing, SIMPLIFIED:


legitimate parents and ascendants, 1) Strictly personal acts
with respect to their legitimate 2) By reason of stipulation
children and descendants; 3) By provision of the law

(3) The widow or widower; Non-transmissible:


1) Strictly personal acts
(4) Acknowledged natural children, Examples:
and natural children by legal fiction; Inheritance of family relations, parental
authority, right to vote, qualifications,
(5) Other illegitimate children criminal responsibility
referred to in Article 287.
Can civil liability be transmitted?
Compulsory heirs mentioned in Nos. 3, 4,  Under Rule 111, it depends on the stage
and 5 are not excluded by those in Nos. 1 of the proceedings
and 2; neither do they exclude one another.
If the accused died before arraignment
In all cases of illegitimate children, their will the civil liability survive?
filiation must be duly proved. Yes, but if the death is after arraignment the
ruling in Pp. vs. Bayotas will apply.
The father or mother of illegitimate children
of the three classes mentioned, shall inherit 2) By reason of stipulation
from them in the manner and to the extent Ex. Partnership agreement is based on
established by this Code. fiduciary trust therefore certain rights cannot
be transmitted by way of succession
 (4) No longer applicable as far as
children, because they are only classified
as legitimate or illegitimate

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3) By provision of the law  Only completed by death
Ex. A contract of agency and commodatum

Cannot be transferred by way of Elements of Art.777 / Transmission


succession: 1) Death
Contracts of:  Can either be actual or presumptive
1) Usufruct
2) Commodatum 2) The property rights and obligations
3) Mutuum are transmissible
4) Agency  Not otherwise extinguished by death
 Must be within the commerce of men:
Principal and agent is considered as one property should be lawful and licit
person wherein the act of the agent binds the  Must be owned by the decedent
principal
3) The transferee must be alive, willing
Money debts are considered as obligations and capacitated to inherit
but they are not transmissible to the heirs to  No predeceased, no incapacity, no
the heirs; but money debts are chargeable to repudiation
the estate  Repudiation will also retroact from the
moment of death
Gross estate
 Sum of the interest over the estate before Immediate disposition
deductions  The heirs will be automatically entitled
to the inheritance from the moment of
Money debts should be deducted first, after death
deducting the debts we now have the net  Only classification: before immediate
estate which is transmissible to the heirs disposition will happen, there is no debt
existing in the estate
If the decedent’s estate is not sufficient for
the debt, the heirs cannot be held liable as to SITUATION:
their personal capacity XYZ siblings are the heirs of A (father)
leaving a parcel of land with a value of
Death is the operative fact that would put P12M. Before the death of A, can XYZ sell
succession into play the whole or any part of the property?
 No, there was no vested right before the
Art. 777. The rights to the succession are death
transmitted from the moment of the death of
the decedent. How about after the death of A, can X sell
 Nature of transmission is by operation of his share without the consent of Y and Z?
law  From the moment of death, a state of co-
 No need for any act of the heirs that they ownership had began wherein they are
are entitled to succession entitled to their ideal or pro indiviso
share or so called aliquot share
Inchoate right  Yes, X can sell his ideal share but
 Mere right in expectancy because of the state of co-ownership X
 Right in esse cannot sell the whole property

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moment of the death of the decedent, in
Is there a need for a proof of declaration case the inheritance is accepted.
of heirship?
 Article 777 does not require that for one One who validly renounces an inheritance is
to prove his heirship deemed never to have possessed the same.
 However, this is not a prohibition for
anyone to challenge the heirship Art. 781. The inheritance of a person
includes not only the property and the
SITUATION: transmissible rights and obligations
A sells his aliquot share, the buyer then asks existing at the time of his death, but also
what particular portion does he own? those which have accrued thereto since
 If there is an agreement to the share: NO the opening of the succession.
PROBLEM  The heir also owns the fruits
 Leaving a pro indiviso share is valid to
convey the property but it must be The heirs can sue and be sued in relation to
subject to conciliation and division the estate
 If there is no administrator of the estate,
Co-ownership is not favored upon the heirs may administer

Probate  The law in effect at the time of death of


 Act of proving extrinsic validity of a will the decedent should control the
 Not necessary under Art. 777 but subject disposition of the estate
to final conciliation and order of the
probate court Art. 2263. Rights to the inheritance of a
person who died, with or without a will,
Lifeblood doctrine before the effectivity of this Code, shall be
 You need to pay the estate tax first governed by the Civil Code of 1889, by
before you can take real property for other previous laws, and by the Rules of
purposes of determining the value Court.

What period do we consider in paying The inheritance of those who, with or


estate taxes? without a will, die after the beginning of the
 Time of death of decedent, even if the effectivity of this Code, shall be adjudicated
heirs only takes possession later and distributed in accordance with this new
body of laws and by the Rules of Court; but
the testamentary provisions shall be carried
Continuity of possession out insofar as they may be permitted by this
Code.
Tapping of possession
 Possession in good faith and bad faith Therefore, legitimes, betterments, legacies
 10 years good faith; bad faith 30 years and bequests shall be respected; however,
their amount shall be reduced if in no other
Art. 533. The possession of hereditary manner can every compulsory heir be given
property is deemed transmitted to the his full share according to this Code.
heir without interruption and from the

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TESTATE SUCCESSION Formalities – extrinsic validity
 Also called testamentary succession
 Succession by will Extrinsic – genuineness
 There is a will Intrinsic – merit the rules on legitime

2 Kinds of Will What if a will is extrinsically valid but not


1) Notarial will intrinsically valid?
2) Holographic will  Will is void

A will is a mere statutory right as compared What is a will?


to a natural right  Defined under article 783
 A right provided by law
Art. 783. A will is an act whereby a
The making of a will must be exercised by person is permitted, with the formalities
the requirements provided for by law prescribed by law, to control to a certain
 Should be strictly complied with degree the disposition of this estate, to
 However, the notion that the formalities take effect after his death.
should be strictly complied with is
tempered by a more liberal view known 4 Important phrases under 783
as the MODERN TENDENCY IN
INTERPRETING WILLS 1) Formalities prescribed by law
 Rights are only made available only if
Modern Tendency in Interpreting Wills formalities are complied with
 Under the principle that testacy is  Testator should comply with formalities
preferred over intestacy but the liberal method of interpreting
 Substantial compliance is enough wills or the modern tendency is now
 Apply in a case to case basis being applied

If the making of a will is a statutory right, it 2) To control to a certain degree


must also respect the law regarding wills  The making of a will as a statutory right
 Legitimes must be respected is not absolute because of the rules on
 Making of a will is not absolute legitime

Preterition 3) Disposition of estate


 The omission by a testator of some one
of his heirs who is entitled to a legitime A will basically disposes the estate of the
testator. Is this rule absolute?
Testacy is preferred over intestacy  GR: Yes
 It is better to have a will than to have no Exception: Case of Sanjo vs. Reyes
will at all
The decedent executed a kasulatan ng pag-
If there are doubts, the doubt should be aalis mana wherein there is only 1 provision
resolved in favor of the validity of the will in the document
because the law favors the desires of the  Aking inaalisang mana ang aking anak
decedent dahil siya ay lapastangan sa akin

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 SC held that a document or instrument  Not valid under Article 785 but under
which disinherits a compulsory heir will 786 specific property may be entrusted
be regarded as a will to a third person.
 Maltreatment of a testator is a ground for
disinheritance Art. 785. The duration or efficacy of the
designation of heirs, devisees or legatees, or
4) A will should take effect after the the determination of the portions which they
death (Art. 777) are to take, when referred to by name,
 Before the death of the testator, any right cannot be left to the discretion of a third
is a mere inchoate right or a right in person
mere expectancy
Art. 786. The testator may entrust to a third
There is no law stating that a will should be person the distribution of specific property
put on paper or sums of money that he may leave in
general to specified classes or causes, and
CHARACTERISTICS OF A WILL (784 also the designation of the persons,
– 787) institutions or establishments to which such
property or sums are to be given or applied.
1) The making of a will is strictly a  Causes referred to are charities and
personal act institutions
 Refers to non-delegability of the
execution of the will Art. 787. The testator may not make a
testamentary disposition in such manner that
Under Art.783, A will is an act whereby a another person has to determine whether or
person is permitted, with the formalities not it is to be operative.
prescribed by law, to control to a certain
degree the disposition of this estate, to take 2) Must be free and intelligent, it should
effect after his death. be free from vices of consent

Is the rule absolute that you cannot delegate Vices: FUMVI (Article 839 par. 3-6)
the making of a will? a) Violence
 No, because you need to distinguish act b) Intimidation
of disposition form mechanical acts c) Fraud
d) Undue influence
Acts of disposition e) Mistake
 Has something to do with the extrinsic
merit of disposition 3) A will disposes a property
 Exception: Sanjo vs. Reyes – Act of
Mechanical act disinheritance
 Can be the single act of typing a will
 Valid if mere mechanical act 4) Before the death of a testator, a will is
revocable
If a third person decides on how the  Before the death of the testator, he
properties are distributed remains to be the owner of the
properties, rights and obligations and he

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can still change his mind, he can revoke 9) Making of a will is an act mortis causa
his will  Takes effect upon the death of the
 If the will is titled as irrevocable – not testator
allowed
 Art. 777 – operative act is death, without How do we construe or interpret a will?
death; no succession READ Articles 788-794
 Different rules on how to interpret a will
5) Formal or solemn act
 A will whether notarial or holographic Art.788
shall comply with the formalities  Explains the concept of primacy of a
required by law in order to be valid will
 Closely related to Art.791
6) Executed by a testator who possesses
testamentary capacity Primacy of a will
 Testacy is preferred over intestacy
7) There should be animus testandi  If there is a will, there is an instruction
 There is an intention to make a will on how to distribute the properties of the
testator
According to a CA case wherein:
 Relatives of Jose Rizal say they are In intestate succession where there is no
entitled to some part of his properties will, there is only a presumption on how to
 The parents say they are the only one distribute the properties
entitled they claim that there was a part  This leads to unfairness in the
in me ultimo adios which states that: to distribution of properties
you I leave everything my parents my
love In case of doubt, an interpretation that the
 CA held that the artistic work cannot be will is valid shall be preferred than having
considered a will, it is a mere artistic no will at all
work, in that point there is no indication
that Jose Rizal had animus testandi Art. 789. When there is an imperfect
 Therefore it should only be considered description, or when no person or property
as an artistic work exactly answers the description, mistakes
and omissions must be corrected, if the error
8) Making of a will is a unilateral or an appears from the context of the will or from
individual act extrinsic evidence, excluding the oral
 Joint will under Philippine jurisdiction – declarations of the testator as to his
not allowed under Article 818 intention; and when an uncertainty arises
 In a will there should only be 1 testator upon the face of the will, as to the
application of any of its provisions, the
Art. 818. Two or more persons cannot make testator's intention is to be ascertained from
a will jointly, or in the same instrument, the words of the will, taking into
either for their reciprocal benefit or for the consideration the circumstances under which
benefit of a third person. it was made, excluding such oral
declarations.

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Art.789 Wills are executed in a state of secrecy
 Pertains to ambiguities in the will
 Ambiguity: It is equivocal or something Art. 792. The invalidity of one of several
not clear dispositions contained in a will does not
result in the invalidity of the other
2 Kinds of ambiguities dispositions, unless it is to be presumed
1) Latent that the testator would not have made
 Kind of ambiguity that does not appear such other dispositions if the first invalid
on the face of the will disposition had not been made.
 Something where there is nothing wrong  Rule on Severability
in the phrases of the will because it is  In the event that one provision of the
hidden will is void, the remainder shall remain
valid unless one provision is dependent
2) Patent on the other as intended by the testator
 Ambiguity which appears on the face of
the will itself Art. 793. Property acquired after the
 There is something wrong just by making of a will shall only pass thereby,
looking at the words and phrases of the as if the testator had possessed it at the
will time of making the will, should it
expressly appear by the will that such was
How will we resolve these ambiguities? his intention.
Rules of Construction:  POTENTIAL BAR QUESTION
1) For both latent and patent, you can  Art.793 talks about after acquired
always consider extrinsic or extraneous properties
evidence in order to determine the intent  Somehow contrary to Art.777
of the testator  Because under Art.793, the after
acquired properties are not included in
2) Consider the words of the will or the the will
circumstances under which the will was
made According to Balane:
 To reconcile Art.777 and 793, we need
3) You cannot use as evidence the oral to apply 793 to legacies and devisees
declarations of the testator only
 Refers to oral declarations during the  The other properties not indicated in the
testator’s lifetime will shall be subject to intestate
 Ex. Calling of a witness succession
 Not allowed by law since it is unfair  Art.793 therefore only applies to
because a dead person cannot devisees and legacies
confirm or deny the statement of the
witness, this is mere hearsay Art. 794. Every devise or legacy shall
cover all the interest which the testator
4) The words used in a will under Art.790 could device or bequeath in the property
should be taken in its ordinary or disposed of, unless it clearly appears from
grammatical sense and not its legal or the will that he intended to convey a less
technical sense interest.

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Problem: Elements of Testamentary Capacity
What if the testator says I will give my land
to my friend, Maria. Upon examination of 1) The person is not prohibited by law to
the land, there is a 50-storeys condo make a will

Does it include the condo? Persons under civil interdiction can execute
 Yes, because it includes all interest of a will
the testator unless it clearly appears
A person who is above legal age but under
Testamentary Capacity guardianship can also execute a will not
otherwise prohibited by law provided the
Do our laws on succession give a definition ward has sufficient mental capabilities to
on testamentary capacity? execute a will
 No definition as far as our own law is
concerned Can a corporation or other juridical
entity execute a will?
In other jurisdiction, they limit it to the  No, because only a natural being is
mental faculties/ capabilities sufficient to a endowed with metal capabilities, it does
person making a will not have a mind of its own
 Purely mental act/ process of making a
will 2) The person is at least 18 years of age
 Even a child may execute a will as long of either sex
as the child has mental faculties
Art. 797. Persons of either sex under
In the Philippines, testamentary capacity is eighteen years of age cannot make a will.
not a mental process because we have  What we follow is the sex at birth
certain elements
Articles 802 and 803 are mere surplusage
In the Philippine if we say testamentary
capacity it involves 2 kinds which are active If a person is a minor, he can still transfer
or passive his property by way of succession although
it is only by way of intestate succession
Active  Minors are disqualified to make a will
 Simply refers to the capacity to make a
will 3) Soundness of mind
Passive  Simple description: Pertains to the
 Capacity to receive property under the normal condition of the human mind
will  It is that state where the mental state or
faculties of perception and judgment are
Active testamentary capacity is sufficiently ordinarily developed and are not
explained by the Civil Code impaired by insanity or other mental
disorder
Mental faculties refer to soundness of mind
Insanity can cause unsoundness of mind

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2 ways wherein soundness of mind can be
defined (Art.799): Art. 800. The law presumes that every
person is of sound mind, in the absence of
1) Negative definition proof to the contrary.
 Art. 799. To be of sound mind, it is not
necessary that the testator be in full The burden of proof that the testator was not
possession of all his reasoning of sound mind at the time of making his
faculties, or that his mind be wholly dispositions is on the person who opposes
unbroken, unimpaired, or unshattered the probate of the will;
by disease, injury or other cause.
but if the testator, one month, or less, before
Mere old age is not sufficient to conclude making his will was publicly known to be
that a person is not of sound mind insane, the person who maintains the
validity of the will must prove that the
Cases where it is not sufficient to conclude testator made it during a lucid interval.
unsoundness of mind
a) Paralysis As far as testamentary capacity and
b) Physical infirmities formalities of the execution of a will
c) Feeblemindedness  We consider the law at the time of the
d) Weakness of memory making of the will
e) Ordinary sickness
Subsequent capacity will not validate a will
2) Positive definition (Art.799 2nd which was made when the testator was not
paragraph) capable
 It shall be sufficient if the testator was
able at the time of making the will to Supervening incapacity does not invalidate
know: an effective will
a) The nature of the estate to be disposed
of  Art. 801. Supervening incapacity does
b) The proper objects of his bounty, and not invalidate an effective will, nor is
c) The character of the testamentary act. the will of an incapable validated by
the supervening of capacity.
POSITIVE DEFINITION SIMPLIFIED:
a) He knows the properties he is disposing If you do not comply with the requirements
 There is no requirement that he of testamentary capacity at the time of the
remembers every property to be execution of the will, it is invalid
disposed of
 No need for the testator to itemize
everything

b) The natural object of affections

c) The testator knows that he is disposing


his properties, transferring it to another
person upon his death

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CRAZY QUESTIONS in testamentary
capacity: Formalities which are applicable to both
kinds of wills:
1) Testator is on the influence of liquor 1) A will should be in writing
during the execution of the will, is the  No such thing as oral will
will valid?  Used in its generic sense
 It depends on the state of intoxication
As far as notarial wills it could be
2) What if the person who executed a handwritten, computerized or typewritten
holographic will, committed suicide
after 1 minute from signing the will As far as holographic wills, it should be
 Use the negative and positive definition written by the testator in his own hand
to argue if the will is valid or not writing, dated and signed by the testator
himself
3) A is insane, can he execute his will
during his lucid interval? 2) It should be written in a dialect or
 Yes, because during a lucid interval you language known to the testator
regained your mental faculties or
capabilities It is an automatic presumption that the
testator knows the dialect wherein his will
was written
TESTATE SUCCESSION
 Succession by reason of a will As far as wills are concerned there is no
official dialect or language
2 kinds of wills under Philippine
jurisdiction: Any dialect may be used in wills as long as
a) Notarial will the testator knows it
 Ordinary will/ attested will
It is also presumed that the testator knows
b) Holographic will the language or dialect in his habitual place
 Handwritten will of residence

For both wills there are certain formalities The fact that the will is in writing and the
that should be complied with language is known to the testator, there is no
need to state that these formalities were
 It has something to do with extrinsic followed. The requirement on language
validity should be connected with another formality
which pertains to witnesses
Extrinsic validity – Genuineness, due
formalities in a will Is there a need for the 3 attesting and
subscribing witnesses to know the
Why are the formalities of a will language of the will?
important?  No because their responsibility is to
1) To avoid fraud witness and attest to the fact that the
2) To avoid alterations testator signed the will in their presence
3) To prove genuineness of a will

15
3) It should be signed by the testator at witnessed and signed the will and all the
the end pages thereof in the presence of the testator
 “At the end” means the logical end of and of one another.
the document which is after all the
testamentary dispositions in a will If the attestation clause is in a language not
 Purpose is to ensure there will be no known to the witnesses, it shall be
further additions in the will interpreted to them.

4) It should be with an attestation clause What if the testator cannot sign the will?
 Attestation clause should be interpreted  If not possible, the remedy is for the
to the witnesses if they don’t know the other person to write the name of the
language or dialect of the will testator in his presence and by his
express directions
Formalities of a notarial will  Testator should be present
1) Must be in writing  Name should be written in full

2) Executed in a language known to the Signature


testator  Distinctive mark identifying a person
 Unique to a person
3) Must be signed by the testator  Cannot be delegated to another person
 certain qualifications under Art.805
What if the testator directed the signing
Art. 805. Every will, other than a through skype?
holographic will, must be subscribed at the  Atty. Bonifacio’s view: Allowed by
end thereof by the testator himself or by the electric testimony which also allowed by
testator's name written by some other person court
in his presence, and by his express direction,  But the communication should be
and attested and subscribed by three or more recorded
credible witnesses in the presence of the
testator and of one another. Why is it valid for the testator to direct
other persons to write his name?
The testator or the person requested by him 1) Practical reasons
to write his name and the instrumental 2) Through the contract of agency
witnesses of the will, shall also sign, as Act of an agent is the act of the principal
aforesaid, each and every page thereof,
except the last, on the left margin, and all What if the 3rd person is also an attesting
the pages shall be numbered correlatively in and subscribing witness?
letters placed on the upper part of each page.  Not allowed by law unless there are
more than 3 witnesses in a notarial will
The attestation shall state the number of  There is no maximum but there is a
pages used upon which the will is written, minimum which is 3 witnesses
and the fact that the testator signed the will
and every page thereof, or caused some Connect with another formality which is it
other person to write his name, under his should be notarized by a notary public
express direction, in the presence of the which should be a lawyer
instrumental witnesses, and that the latter

16
What if the 3rd person is the same lawyer  Witnesses must see the testator signing
that will notarize? the notarial will
 Not allowed because a notary public
cannot acknowledge his own acts which Subscription
is not allowed in the rules of notarial  Act of the hand
practice  Actual signing of the will by the
 This is the same reason why the lawyer witnesses
cannot be a witness to the will  Process of identification – importance of
signing

Should the 3rd person write the name of the In case proof of identification is required
testator, that fact should be stated and in court
described in the attestation clause which is 1) You must identify your signature as a
also another formality witness
2) Identify the signature of your co-
Can a testator put his thumb mark as his witnesses
signature? 3) Also identify the signature of the testator
 A thumb mark can be qualified as a if there is opposition in the probate
signature as long as it is used as a proceeding
customary signature of the person
Qualified witness
What if the signature is a + or X mark, is  Someone who possesses certain
it valid? requirement to become a witness in the
 Discussed under Garcia vs. Lacuesta execution of a will
 SC held an X or + mark cannot be
considered a valid signature because it Credible witness
has no distinctive feature  Credibility is the state of being
 It’s very easy to imitate and not believable or worthy of credibility
trustworthy  Credibility is subject to the discretion of
the judge but the qualifications are not
No need for an agent to put his name in the
notarial will Qualifications of a qualified witness (Arts.
820 and 821)
Should another person write, it must be Witness should be:
attested in the attestation clause 1) Of sound mind
2) 18 years of age or more
4th Formality 3) Witness should not be blind deaf or
4) Must be attested and subscribed by dumb – they cannot attest
three or more credible witnesses in the 4) Able to read and write
presence of the testator and of one  No formal education requirement to
another. become a witness only requirement
is literacy
Attestation 5) Domiciled in the Philippines
 Act of the senses  No requirement that a witness should
 Actual act of witnessing the testator be a Filipino citizen, it only requires
signing the notarial will

17
habitual place of residence with the BAR QUESTION:
intent to return The testator executed a notarial will in
6) Of good moral character and not which he invited 3 witnesses. The witnesses
convicted of falsification, perjury or did not see each other sign the will. Are the
offering a false testimony formalities in signing a will complied with?
 No, because there was no face 2 face
Art. 820. Any person of sound mind and of interaction during the signing of the
the age of eighteen years or more, and not will
blind, deaf or dumb, and able to read and  There is a defect in the formality
write, may be a witness to the execution of a when the signing was not seen
will mentioned in Article 805 of this Code.  Hence, the signing is defective or
void if the possibility of signing the
Art. 821. The following are disqualified will in the presence of one another
from being witnesses to a will: was restricted

(1) Any person not domiciled in the However, in another case the court held that
Philippines; mere possibility of seeing is enough to
conclude that the testator signed in the
(2) Those who have been convicted of presence of one another
falsification of a document, perjury or false  If there is physical obstruction then there
testimony. is a defect

The witness need not know the contents and 5th Formality
language of the will but if the language of 5) Testator and the witnesses must sign
the will is not known to the 3 witnesses, the each and every page of the notarial
attestation clause should be interpreted will in the left margin except the last
 Concept of marginal signatures
If you are one of the 3 instrumental  To prevent unauthorized additions in
witnesses and you are also a beneficiary to pages
the will, you are disqualified as a witness in
order to prevent the possibility of undue What if the signature is not in the left
influence margin?
 Solution: invite more than 3  The provision should be liberally
witnesses, then one can become a construed according to various cases of
beneficiary and a witness the SC
 The signatures could be at the top,
The 3 witnesses should be neutral or have no bottom as long as the marginal
interest in the will signatures exists as a fact

More than 3 witnesses are also needed when 6) All pages of the will must be
one witness is directed to sign the will in correlatively numbered in letters
behalf of the testator placed on the upper part of each page
 To prevent fraud, substitution or detect
any pages missing in the will

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 can be liberally construed as long as the  The signing of the testator of the
manner of indicating the pages is attestation clause, however, is not
uniform, sequential and logical required

7) Attestation clause The signing of the attestation clause by the


 Principally an act of the attesting testator will not render the will as void but it
witnesses will be treated as a mere surplusage
 A certification coming from the 3  It will not affect the validity of the will
witnesses certifying that the notarial will and the attestation clause
was executed in accordance with the law
and all formalities was followed by the The witnesses need to sign the notarial
testator and all witnesses will 3 times:
 Gives affirmation that all requirements 1) After the testamentary disposition
were complied with 2) Marginal signatures
 Even if witnesses are more than 3, they 3) Attestation clause
should still sign the attestation clause  Immediately after or bottom
 Actual documentary evidence proving
that all formalities of the will were SC case:
complied with Where the bottom of attestation clause was
 After the attestation clause the witnesses not signed, however, at the margin there was
need to sign, mere marginal signatures a signature
shall not suffice  Not sufficient because there should be
specific signatures as far as the
Contents – 4 Important Parts of the attestation clause is concerned
Attestation Clause
1) The attestation clause should state the Is it required that the language used in
number of pages used upon which the the attestation clause is known to the
notarial will was written testator?
2) The fact that the testator signed the  No, there is no need for the testator to
notarial will and every page thereof or know the language also with the
caused some other person to write his witnesses
name under his express instruction  However, as far as the witnesses are
3) The fact that the testator signed in the concerned the attestation clause should
presence of the 3 witnesses be interpreted to them if written in a
4) The fact that the 3 witnessed and signed language not known to them
the will in all pages the pages thereof
No attestation clause renders the will void
The pages must be stated to safeguard the
notarial will from substitution of pages What if 1 of the contents of the attestation
 To prevent increase or decrease in the clause is omitted, will the will be
pages invalidated?
 It depends on the kind of omission
The act of the testator signing the attestation
clause is principally intended to authenticate
the notarial will

19
According to the case of Cañada vs. CA  If it will not affect the substance of the
 If the omission can be supplied by the will, such defect will not render the will
examination of the will itself without as invalid
resorting to extrinsic evidence, then the
omission can be forgiven What if the notarial will is only 2 pages,
 Ex. does it need compliance with the law with
1) It failed to say the number of pages regards to pagination?
of the will  No, the court explained it under the case
2) The fact that it was signed by the of Macapinlac
testator and the 3 witnesses
8th formality:
What if what was omitted is the statement Art. 806. Every will must be
that states the witnesses witnessed and acknowledged before a notary public by
signed the will and all the pages thereof in the testator and the witnesses. The notary
the presence of the testator and of one public shall not be required to retain a
another? copy of the will, or file another with the
 Cannot be determined by merely Office of the Clerk of Court.
examining and reading the will
 It is an actual issue 8) Must be acknowledged by a notary
public (Art.806)
If extrinsic evidence must be used in which  Requires that the will must be
it cannot be supplied by the will itself acknowledged by a notary public before
 The will is void the testator and witnesses

The 3 witnesses shall appear if there are Who is a notary public?


oppositions regarding the will  Considered a public official and a
witness
Art. 809. In the absence of bad faith,  Is an official who witnessed and
forgery, or fraud, or undue and improper subscribed to the truthfulness and
pressure and influence, defects and voluntariness of an act
imperfections in the form of attestation or
in the language used therein shall not Qualifications of a notary public under
render the will invalid if it is proved that the New Rules on notarial practice:
the will was in fact executed and attested 1) Must be over 21
in substantial compliance with all the 2) Resident of the Philippines for at least 1
requirements of Article 805 year in the city or place where he is
commissioned
Art.805 3) Filipino citizen
 Talks about substantial compliance but 4) Member of the Philippine bar in good
it does not talk about substantial standing – meaning not suspended or
compliance of the whole will disbarred
 It only refers to substantial compliance 5) Must not be convicted of a crime
in the attestation clause involving moral turpitude

Defects as to language, dialect, and form

20
Jurat  Date, place of execution need not be
 Called the subscribed and sworn part stated in the will
 Swearing under oath that all statements  No need for the notary public to read to
are truthful to a public officer the witnesses the will
 Not required for purposes of a notarial
will
Art. 807. If the testator be deaf, or a deaf-
Acknowledgment clause mute, he must personally read the will, if
 All contracts particularly conveyance able to do so; otherwise, he shall designate
need the acknowledgment clause two persons to read it and communicate
 Purpose is to see to it that a particular to him, in some practicable manner, the
document is free from vices of consent contents thereof.
and that is free and intelligent
Art. 808. If the testator is blind, the will
Is there a requirement that the notary shall be read to him twice; once, by one of
public to see to it that the testator signs in the subscribing witnesses, and again, by
the presence of the witnesses? the notary public before whom the will is
 No need for the notary public to be acknowledged.
present during actual execution  If the testator is blind, there is a need to
 Because the acknowledgment can be read the contents of the will
done during a different date from the
signing of a will but it should be within a No need for the notary public to sign the
reasonable time attestation clause but if he signs it is a mere
surplusage
Should the will be acknowledged at a
different date, is there a requirement that Even if there are more than 3 witnesses, the
the testator and witnesses appear before notary public cannot act as a witness
the notary public at the same time? because he still cannot witness his own act
 No need for them to appear at the same
time but they must really appear before Any form of improper notarization will
the notary public render any document void and ineffective
and any person who acts as a notary public
An acknowledgment makes a private who is not qualified, a criminal case
document public usurpation and estafa may be filed

All documents should be submitted to the


Clerk of Court except a notarial will, the
purpose is to preserve the confidentiality of
a will

A notarial will retains its characteristic as a


private document but if it becomes evidence,
it becomes a public document

Art.806

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