SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Title IV. SUCCESSION
CHAPTER 1. GENERAL PROVISIONS
June 18, 2015 (EAE)
Our subject is Wills and Succession. Basically, the subject is
divided into two:
1. Wills or testamentary succession
2. Legal succession or intestate succession.
When you encounter the word succession, what is the first
thing that comes to your mind? You think of someone who
dies. You don’t think of succession in political law, or in beauty
pageants.
Art. 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.
This actually gives us the legal definition of succession. So
from there, you will see the different attributes of succession
which we will discuss later.
BASIS OF SUCCESSION
Why do we have succession?
1. Natural Law – because it is in the nature of man to
provide for those he will leave behind. Although for some
people, they don’t think it’s their obligation; but usually it is
within human nature to really provide.
2. Socioeconomic reason – because what happens if you
have several properties, and after you die your properties will
die with you? So nobody will benefit. For the property not to
remain idle, to benefit from the property, we have the law on
succession, to prevent the property from becoming idle.
3. Attribute of ownership – What are the attributes of
ownership? If you are the owner, what are you rights? To use,
dispose. So disposition—we have what we call disposition inter
vivos or disposition during the lifetime of the owner, and
disposition mortis causa or dispositions which become
effective upon death.
So as owner of the property, your right to dispose should not
be limited to a disposition inter vivos or during your lifetime. It
is part of your ownership, also to control how your properties
will be disposed of after your death. So that is also one
attribute of ownership.
These are the bases of succession.
In constitutional law, have you also encountered the word
succession?
Article XII. Sec. 7. Save in cases of hereditary succession,
no private lands shall be transferred or conveyed except to
individuals xxx
Regarding ownership of lands, what do you remember? So
foreigners cannot own lands in the Philippines. Otherwise, if
they are allowed, sila na siguro tag-iya sa tanang lands in the
Philippines Flower pot nalang siguro mabilin sa atoa.
They are not allowed, but there is an exception. That is
mentioned also in Article XII Section 7.
What is the kind of succession being referred to in the
constitution? Legal or intestate succession.
Ad Majorem Dei Gloriam
We have two kinds of succession:
1. Testate or testamentary. When you say
testate, the testator, who later on dies, he disposes
of his properties by means of a will. So he drafts a
last will and testament, and then he provides in the
last will and testament to whom shall the properties
go after his death.
2. Legal or intestate. Legal succession, generally
when a person dies without a will. So walay
maggovern — it is the law.
Now, if the testator is just allowed to give his property a
foreigner by testamentary succession, then it would also be
very easy to circumvent the prohibition. “I will sell to you this
land, but let’s just make it a will kay di man pwede ang sale.
So inig kamatay nalang nako, imuha na gyud na siya in my
will.” So that is not allowed, as discussed in the case of:
Ramirez vs. Ramirez
Here we have legal succession. Actually, even if there is a will,
there is a part there which goes by operation to the heirs.
That is the portion which we call the legitime. That is also not
by reason of the will of the testator but by operation of law.
So again, let us just make it clear that the succession
mentioned in the constitution refers not to testamentary
succession where you are instituted as an heir, but by
operation or law or legal succession.
Before we discuss Article 774 again which defines succession,
there are actually several kinds of succession. As I mentioned
to you, we have:
1. testamentary/testate succession
2. legal/intestate succession
3. mixed/partly by will, partly by operation of law
Aside from that, we also have the concepts:
1. succession inter vivos
2. succession mortis causa
What do we mean by succession inter vivos and mortis causa?
If you still remember, in your property, we also discussed
donation inter vivos. I don’t think we discussed donation
mortis causa.
Donation inter vivos Donation mortis causa
a gratuitous disposition that also a gratuitous disposition
takes effect during the which takes effect upon the
lifetime of the donor death of the donor
Governed by Article 728 of
the New Civil Code
Governed by the law on Governed by the law on
donation succession
synonymous to succession Synonymous to succession
inter vivos mortis causa
Art. 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.
Why do we have to know if this is donation inter vivos and
this one is succession or donation mortis causa, it will take
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 SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
effect upon death? Why is there a need to know the
distinction?
So when you say formalities, are you saying that the two have
different formalities?
For example it is donation inter vivos, what formalities should
be complied with?
If you still remember, what are the formalities of donations?
You should say that, if it is donation inter vivos, it should
follow the formalities of donations.
 If property to be donated is less than P5K = may be
oral, acceptance + simultaneous delivery
 If the value exceeds P5K
 Personal property = must be in writing
 Real property = must be in a public document
So you have to observe that for donations. What happens if
those formalities are not complied with? The donation is void
because it is one of the formal contracts provided under the
New Civil Code. The observance of the formalities is essential
for the validity of the donation.
Now if it donation mortis causa, it must comply with the
formalities of wills. I don’t expect you yet to know the
formalities of wills. Obviously they are different from the
formalities of donations.
Example, if it is a holographic will, it has to be entirely written,
dated and signed in the hands of the testator. That’s one.
If it is a notarial will, it has to be of course in writing; it has to
be acknowledged before the notary public; it has to have an
attestation clause; it should bear marginal signatures; it
should be numbered, etc. Daghan kayo na silag requirements.
It’s easy to say that if it is a donation inter vivos, then to be
valid it has to be in the form of a donation. If it is mortis
causa, it has to be in the form of a will. That’s very easy to
say. Now the problem here is: how do we know if the
document intends to transfer property inter vivos or mortis
causa?
Because there are several cases wherein usually ang problem
here is there are certain documents denominated as “Deed of
Donation” but when you read the text, it appears that the
intention of the donor is to transfer ownership only upon
death.
So if it is captioned as a “Deed of Donation” and then it is
intended to transfer ownership only upon death, and it is in
the form of a deed of donation, it is not valid. The intended
recipient or transferee cannot assert ownership because the
document is not valid. There is no valid transfer. For it to be
valid, it should have been in the form of a will. But again as I
said, how do we know if this is mortis causa or inter vivos?
It is not the title which governs of course. There are several
cases discussed by the Supreme Court.
Ganuelas vs. Cawed
Provision in the “Deed of Donation” says, “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.”
The Supreme Court here cited the three distinguishing
Ad Majorem Dei Gloriam
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;
What kind of ownership are we talking about here? For
example, I provided in my Deed of Donation, “I am donating
to X this property but I remain to be the title holder; but he
can already use the property, he can benefit, he can harvest
the fruits etc.” Is that donation mortis causa or inter vivos?
What do you call that when I have the title but I don’t have
the right to use the property?
How about if I just reserve the naked ownership?
If the transferor retains ownership, whether full ownership or
naked ownership, as long as he retains ownership. That is
one indication.
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;
Revocability can be implied—how can you imply? Why is it a
distinguishing characteristic of a donation mortis causa,
whether there is a right to revoke?
Because insofar as wills are concerned, they are essentially
revocable or what we call ambulatory. When we say
revocable, there is even no ground provided for revocation.
The testator can just revoke for any ground, for any reason;
or even without a reason. He can just say “Because I don’t
like you anymore; because I thought we were close but I
realized di diay”. So he can revoke any time, unlike a
donation na he can only revoke for specific causes. If that is
the character of your donation, it’s not donation inter vivos
but mortis causa.
3. That the transfer should be void if the transferor
should survive the transferee.
Why is it an indication?What is there in succession that made
the Supreme Court say that this is an indication of a mode of
transferring mortis causa?
In a donation for inter vivos for example, if it is a real
donation inter vivos. A donated his land to B. And then, B
died. What happens to the property, in donation inter vivos?
It becomes the property of the estate of B. So in a real
donation, the property will not revert to the donor. The
property will go to the heirs of the donee.
But if you say na kung mamatay ka una, mabalik sa akoa ang
property, that is not donation inter vivos, that is mortis
causa, because in succession, the heir should survive the
testator. You cannot be an heir of your parents if you die
ahead of your parents. Dapat mauna sila mamatay para ka
magmana. That is the essence in succession. If your parents
already gave to you a certain property in their will, but you
die ahead of them, you will not get the property. Alangan,
giunsa nimo pagkaeredero kung nauna ka namatay. In fact,
sila ang nahimong eredero nimo. So the property will go back
to the estate of your parents. That’s the third indication.
Here it was very clear in the document that it was really a
transfer mortis causa because it said “to become effective
upon the death of the donor” and then it said “should the
donee die before the donor, the donation shall be rescinded
and of no further force and effect”. So this is actually a
feature of a donation mortis causa or succession mortis
causa.
The document was not enough because it was not in the
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
form of the will. Therefore the transfer here was not valid.
We learned in this case, the three distinguishing
characteristics of a donation mortis causa.
Now let’s go to the case of:
Villanueva vs. Spouses Branoco
What would be the relevance if the donation is mortis causa?
There are actually two reasons:
1. If it is a donation mortis causa, the document itself would
not be valid because it is in the form of a donation.
2. If it is mortis causa also, it is essentially revocable; so even
if you already donated but the donation is mortis causa, you
can later on dispose of the very same property because
testamentary provision is essentially revocable as we already
discussed.
This is a donation inter vivos. What were the specific
provisions cited by the Supreme Court that said that this was a
donation inter vivos?
After the donation, who benefited from the property? Did the
donor still enjoy the fruits of the property after the donation?
Yes. So what would be the relevance of this? If you are the
owner of the property, do you need to specify that you have a
right to the fruits of the property? No, because that is part and
parcel of your ownership. But in this case she had to specify,
because if she did not specify, everything would go to the
done. She could not benefit not even from the fruits. So this
had to be mentioned in the Deed of Donation otherwise
everything will be enjoyed by the donee.
Now how about the provision here, “ownership be vested on
her upon my demise”, isn’t this an indication that this should
be mortis causa?
In the case of Ganuelas vs. Cawed, we mentioned that the
three distinguishing characteristics. In this particular case the
Supreme Court also mentioned the same three distinguishing
characteristics, but the Supreme Court ADDED 3 MORE. What
are these 3 other distinguishing characteristics?
[4] [T]he 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 [;]
Why do you say that this is a distinguishing characteristic? If
you need to specify in the deed of donation the reasons for
revocation, then it is not really mortis causa. Because again,
you really do not need to specify a reason in a donation mortis
causa.
[5] That the designation of the dovvnation as 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 is why in this case, even if there is such a statement in
the deed of donation that ownership shall be vested upon the
death of the donor, the Supreme Court did not limit the
evaluation to that statement. It took into account the several
other provisions of the deed of donation.
(6) 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.
So in case of doubt, we resolve the doubt in favor of inter
vivos. Because, if it is a donation inter vivos, the ownership
will now be certain. It is now with the donee. Unlike, in a
Ad Majorem Dei Gloriam
mortis causa disposition, we’re not certain because it may still
be revoked by the donor, testator or he may still give the
property to some other person. So wala pa gyud ma-settle ang
issue of ownership if it is mortis causa.
In case of doubt again, the doubt has to be resolved in favor
of donation inter vivos.
Now how about the fact that Rodriguez, after the deed of
donation was executed, she sold the same property to another
person? Would it not be an indication that her intention was
really just a transfer mortis causa, revocable at any time?
The Supreme Court said that the petitioner cannot even
capitalize on Rodrigo’s post-donation transfer of the
property as proof of her retention of ownership
because if such were 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 titles, which, while founded on
liberality, is a valid mode of passing ownership.
So that should not be used as a barometer. You should not be
tolerated na you already donated the property then you sell
the property to another person even if that was a real
donation. It was frowned upon by the Supreme Court in this
particular case.
So going back to our definition of succession under Article
774, it says it is a mode of acquisition.
Succession is actually a mode of acquisition. Succession is not
a property; it is not the right or the obligation that is
transmitted. It is the mode of acquiring ownership.
Actually we have two modes of acquiring ownership:
Art. 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 estate and intestate
succession, and in consequence of certain contracts, by
tradition.
They may also be acquired by means of prescription.
Ownership is either acquired, or acquired and transmitted.
When you say (1) original mode of acquisition, ownership
is acquired. There is no prior owner of that property. It is
acquired for the first time, original mode, like intellectual
creation. You create something, like a novel. It is a creation;
you created that. You are the original owner of that. That’s
the original mode.
When you say (2) derivative mode, there is already an
owner, but you transfer the ownership. You acquire the
ownership from another owner. For example, succession is
one. There is the original owner; then by succession, that
ownership is transferred to the successor. Succession is a
derivative mode of acquiring ownership.
So let us go to Article 775.
This merely defines what the term decedent is.
Art. 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.
Decedent is the general term used to describe the person who
died, whether he left the will or not. But if he left a will, we
have a technical term for that: testator. If you termed a
person as testator even if he died without a will, that would
not be correct. He is a decedent, not a testator.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Art. 776. The inheritance includes all the property, rights
and obligations of a person which are not extinguished by his
death
This defines what is inheritance. When you say inheritance,
that is the one mentioned. All the property, rights and
obligations of a person—that would be the inheritance.
Succession — it is NOT the same as inheritance. When you
say succession, again under Article 774, it is the mode of
acquisition.
Now let us go to the inheritance. We have the properties,
rights and obligation of a person which are not extinguished
by his death.
So we mentioned properties, rights and obligations. These can
be transmitted by succession. So if a person dies, his
properties, rights and obligations can also be transmitted to
his heirs.
PROPERTY
When you say property that can be transmitted by succession,
what kind of property? Real and personal property. Real
property or immovables; personal or movables.
Now we also have intangible properties. What do you
understand by intangible properties? When you have a
business and it has a good reputation what do you call that?
Good will. When you have an invention and you don’t want
some other people to copy it, what do you do with it? Patent.
That is also intangible. If you have a novel, and of course to
prevent plagiarism what do you do with it? You copyright it. If
you have a business and you want other people to use the
name of your business, what do they do? Franchise. These
are examples of intangibles. They are also properties, and
they can also be subject of succession.
Now for a property to be considered to be a proper subject of
succession, the property must be licit. When we say licit, the
property first, should not be outside the commerce of man.
What do you understand by ‘not outside the commerce of
man’? When do you say that a property is not within the
commerce of man? So the sun, what do you call the sun? Res
nullus, because nobody owns the sun. Even if you claim this is
my sun, my moon, my star, you cannot prevent anybody from
looking at the sun, unless ilubong nalang nimo siya. So, the
sun, the moon, the stars, the fishes that swim in the ocean.
What else? What do you mean by res communes? So owned
by the community, the bridges, municipal buildings. What
else?
How about shabu? Can you pass that on to your heirs? It is
prohibited. Even if you can physically pass on, if you place “I
hereby give my stock of shabu to my son”, that will not be
valid. It will go to the state and be destroyed.
So that is the concept of property.
Now if you still remember, in your Bill of Rights, diba no
person shall be deprived of life, liberty or property without
due process of law — can you say that the concept of
property in the Constitution is the same as the concept of
property in Succession?
For example, your employment; is that considered as property
in the Bill of Rights? Yes, so you cannot just be deprived of
that without due process of law. So in that sense, can you say
that the concept of property in the Bill of Rights is the same
as Succession? Okay, so different ang concept sa property in
the Bill of Rights because mas broad ang coverage. In
Succession we’re just dealing really with properties,
properties in their technical sense, in their physical
sense. Because for example, labor, it is considered as
Ad Majorem Dei Gloriam
property in the Bill of Rights, but in Succession that is not
property. You cannot pass that on to your heirs. If you’re the
manager you cannot execute a will, saying “I hereby institute
my son as my successor” unless it’s your corporation; but you
cannot pass that on, even your position. “I am the mayor, but
if I die my son will succeed”. No, we have a law for that.
How about the human body? Is that property? Can you sell
your hands, your liver for example? As a general rule, the
human body is not property. You cannot pass that on—it is
not capable of appropriation. You cannot sell that as a general
rule. You cannot say “I hereby give my heart to my boyfriend
so that he will remember me as long as he lives”. Dili na siya
valid. But there’s an exception. What would be the basis of
that?
We have a law for that.
The Organ Donation Act of 1991 (R.A. 7170)
Actually there are amendments to the Organ Donation Act —
but as to the provisions wala pa no, there’s just an
amendment on the permeal transplant, but it did not amend
or modify the provisions basically.
That’s the only way under our present laws by which an organ
of the human body can be transmitted by Succession in what
manner. Under the Organ Donation Act, certain organs of the
human body may be given or transferred either by donation
or by a will, a legacy. We will discuss legacy, a will because
we are talking of Succession.
When we say legacy, it is a specific gift of personal property
by means of a will. You have to write that in your will. You
can give something, a part of your body, an organ of your
body to somebody in your will. But there are certain
requisites. Please read:
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;
(b) Any accredited medical or dental school, college or
university - For education, research, advancement of medical
or dental science, or therapy;
(c) Any organ bank storage facility - For medical or
dental education, research, therapy, or transplantation; and
(d) Any specified individual - For therapy or
transplantation needed by him.
Remember the persons or entities who may become legatees
or donees. Not just anybody, but the ones mentioned under
Section 6 of R.A. 7170. And not just for any purpose, but only
for the purposes mentioned in Section 6 again of R.A. 7170.
Now how do we give that part of the human body by will?
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 administrator, heirs, assigns, successors-in-
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
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.
Again, you can give it by a will, by donation or by legacy.
When you say legacy, it is in a will, a last will and testament.
Now we have the basic rule in Succession when we go to
probate that if there is a will, it has to be probated. What do
we understand by probate?
Probate is a proceeding intended to determine the validity of
the will. It doesn’t follow ha once there is a will na nabilin,
okay na to siya, so ihatag na sa iyaha diretso ang property,
NO ha.
You have to file a petition in court for the probate of the will.
And then the court will examine the will. And then the court
will determine if the testator was qualified at the time he
made the will and whether the will is valid as to form, and
whether the will was really executed by him. Only when the
court is satisfied that all those requisites are complied with,
then the will is declared admitted to probate. And then the
properties mentioned in the will can now be distributed in
accordance with the will. Probate proceedings, taking into
account the congestion of our courts, swerte naka na
makahuman kag probate —kana ha kung wala mag-oppose —
one year. Swerte na na siya. Kay kung nay mag-oppose,
swerte naka kung mahuman mog 10 years. Kana siya ang
nature sa probate proceeding.
Now in the case of legacy of an organ, the law says without
waiting for probate of the will. Of course, it is understandable
if you donated for example your kidney, your heart, and then
mag-probate pa ka, wala na. Gilubong na tong imong
gitagaan ug organ. Imoha nalang nang imuhang heart. So,
you don’t have to wait for the probate of the will.
Or, even if the will is declared to be invalid. Halimbawa, wala
na-comply ang requisites — daghan man kayo nag requisites,
halimbawa wala nacomply ang isa — under an ordinary will,
under an ordinary situation, the will would be invalidated. But
here, even if the will is invalidated, and as a consequence
legacies mentioned in the will cannot be given effect under
ordinary situation, but if it is a legacy of an organ or a part of
the human body, the law says it can still be valid and
effective even if the will itself is not valid as long as it
was made in good faith. So mao na na siyaang requisites.
Different ang technicalities insofar as the legacy of an organ
of the human body is concerned.
Ad Majorem Dei Gloriam
Again, any property can be transmitted by Succession as long
as the property is not res nullus, not res communes, not
prohibited by law. They can be transmitted. And of course
also, as a GR, the properties should be owned by the
testator. You cannot just also give by will a property which is
owned by you. Although as I said, it’s a GR, because there are
exceptions when we go to legacies and devises. So that’s for
properties.
RIGHTS
Rights can also be transmitted by Succession. What rights?
The general rule here is patrimonial rights can be
transmitted by Succession. What do we mean by patrimonial
rights? Those rights which relate to properties.
Generally, your rights pertaining to properties are not
extinguished by your death. Those rights will be transmitted
to the heirs.
Examples of these rights:
 Contractual rights
The rights under a contract are transmissible. Basic example,
we have the contract of lease. In a contract of lease, diba the
lessor is the owner of the property, he has the right to receive
the rentals. The lessee, ang nagrenta, has the right to possess
the property peacefully as long as he pays also the rentals.
How about if the lessee dies? Ang mga anak nalang nabilin?
Can the lessor eject the children of the lessees on the ground
na namatay naman ang akong kakontrata, si lessee. No,
because the rights of the lessee are also transmitted to his
heirs. As long as the heirs of course will also pay the rent.
Also if the lessor dies, his children can collect the rents,
because the rights of the lessor are transmitted to his heirs.
So the lease contract as a general rule is not extinguished
upon the death of either the lessor or the lessee.
 Right to insurance
A contract of insurance, it can also be transmitted. We have
the case of:
Great Pacific Life Assurance Corp. vs. CA
Now in relation to our subject, the question here is that may
the spouse of Dr. Leuterio file the suit against GrePaLife?
Because according to GrePaLife, the spouse is not an
interested party. Take note here of the transaction, diba, the
insurance company was GrePaLife and then DBP was the
entity there from which the housing loan mortgagors
borrowed money and mortgaged their properties. The
borrowers, including Dr. Leuterio, borrowed money from DBP
and to secure that loan they mortgaged the house to DBP.
DBP to assure that it will be paid, insured the lives of the
housing loan mortgagors. That is what we call the mortgage
redemption insurance, or MRI. What is the consequence of
that? If the borrower dies, then the insurance company will
settle the outstanding obligation, such that, assuredsi DBP.
So you see in that contract, the spouse of Leuterio is not a
party. So, can she file the suit to collect on the proceeds of
the insurance?
The Supreme Court said a policy of insurance upon life or
health may pass by transfer, will or succession to any person,
whether he has an insurable interest or not, and such person
may recover it whatever the insured might have recovered.
So here, the widow of the insured, Dr. Leuterio, may file the
suit against GrePaLife. The rights under a contract of
insurance or also transmissible. That’s in the case of
GrePaLife.
 Right to file an action for forcible entry or
unlawful detainer
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
If you are the lawful owner of property, and you want to eject
an occupant from the property, but even before you file a
case or while the case is pending you died, your heirs may
continue the case or institute the case. Your right passes on
to them. That right is not extinguished by them.
 Right to compel the execution of a public
document
If you still remember Article 1357 in obligations and contracts,
the law enumerates the following must appear in a public
document, etc. But even if the law says shall or must, the
contracts enumerated are still valid because in that particular
provision the form is just merely required for convenience.
Not for enforceability, not for validity, but merely for
convenience. So the contracts will still be valid even if not in a
public document. But, for you to transfer your right in the
Register of Deeds, you cannot just present a handwritten
document or not notarized document. So manginahanglan
gyud ang Register of Deeds for example atong notarized
document. So you would now request the other party,
“ipanotaryo nato ni be”. Dili naman siya musugot
naipanotaryo. So you can file na action against the other party
to compel the execution of a public document. But if you died
before filing the action or even if you filed the action but you
died while the action is pending, your rights to compel the
other can be passed on to your heirs.
 Right to file an action to recover possession
 Right to enforce civil liability arising from
crime
 Right to recover from tort or negligence
Those are examples ha, daghan pa. Of course we cannot
enumerate all of them.
Again, GR: Patrimonial rights can be transmitted by
Succession. Rights relating to properties. But there are also
certain patrimonial rights that cannot be transmitted by
Succession. You have to remember them because there are
just a few of them. Even if they are considered as patrimonial,
they are considered extinguished upon the death of the
testator or the decedent. They cannot be transmitted by
Succession.
The following are patrimonial rights that are
extinguished by death and therefore are not
transmissible:
 Stipulated in the contract
First, even if a right is generally patrimonial, so they can be
transmitted, but if there is a contrary stipulation. Example, in
a contract of lease. Again, I already mentioned:
Inocencio case
So for example the lessee dies, and there is that provision,
are you saying that because there is that provision, the rights
of the lessee cannot be transmitted to his heirs? (Provision:
This contract is non-transferrable unless prior consent of the
lessor is obtained in writing)
If the lessee dies, diba we have the rule on Succession, that
the rights of the lessee are transmitted to his heirs. But
because of this provision in Section 6 of the lease contract,
are you saying that the rights of the lessee cannot be
transmitted, because it says non-transferrable?
So even if there is such a provision in the lease contract, it
could not prevent transmission of the rights to the heirs of
the lessee. Because that provision can only refer to a transfer
inter vivos. So that the lessee cannot just substitute another
person in his place to the lease contract. But it cannot extend
to mortis causa transfers like if the lessee dies.
But can the lessor prevent the lessees from transmitting the
Ad Majorem Dei Gloriam
rights to the heirs? Is it possible? It is possible. Because, by
stipulation. Even if the rights are patrimonial in nature, but
one exception is there is a contrary stipulation. Unfortunately
in this case, that stipulation in Section 6 is not the kind of
stipulation that we are referring to. This is just a prohibition
to transfer inter vivos. This is not the kind of stipulation. You
can stipulate, you can be clear. In case of death, of either
the lessor or the lessee, this lease contract is extinguished.
So in that case, even if ordinarily rights arising from a
contract are transmissible, but by stipulation, they can be
made intransmissible. So that is one exception. But again as I
said in this case, ang iyahang provision na nakabutang sa
lease contract, does not refer to a mortis causa disposition,
only an inter vivos disposition.
June 22, 2015 (ZM)
 Usufruct
Even if the usufruct relates to a property but under the NCC
either death of the parties in a usufruct the general rule is
that the usufruct is extinguished unless otherwise provided.
 Agency
General rule is that a contract of agency is extinguished by
death either that of the principal or the agent. Even if the
agency relates to a property
Example: A was constituted by B as his agent to sell a land.
That agency relates to property. But there is no transmission
of rights.
Art. 1919. Agency is extinguished: xxx
(3) By the death xxx of the principal or the agent. xxx
If the agent dies he cannot pass his right as an agent to his
heirs and also that of the principal.
EXC to the EXC: However there is an agency that will not be
extinguished and that is when it is coupled with interest. So it
is not extinguished by the death of either party.
Example: A borrowed 5 million from B and to secure his
obligation A mortgaged his land to B and they executed a
deed of mortgage; loan with mortgage. Under the contract B
the creditor is authorized to extra judicially foreclose the
mortgage if the borrower defaults. Usually an extrajudicial
foreclosure can be effected by inserting a special power of
attorney in the contract in favor of the creditor mortgagee so
that if the debtor defaults then the creditor mortgagee does
not have to file an action in court to foreclose the mortgage.
So if the debtor dies and he subsequently defaulted, the
creditor mortgagee can now foreclose the mortgage and the
obligation of the debtor is now transmitted to his heirs. This is
because the agency is coupled with interest.
 RA 3844 agricultural leasehold tenancy
Example: there is an agricultural land, and there is a person
who takes care of the land. He plants coconuts, durian,
rambutan and there he will harvest and share to you his
harvest as payment for allowing him to cultivate the land, that
is an indication of an agricultural leasehold tenancy. When
that happens, you cannot just evict the tenant from the land.
And if the tenant dies, his heirs will succeed to his rights as a
tenant, so you cannot just evict the heirs. So the rights of the
tenant are passed on to his heirs. That is what we call security
of tenure in agricultural leasehold tenancy.
In ordinary ejectment case when the complainant wins the
decision is immediately final and executory unless defendant
will post a bond. But in agricultural leasehold tenancy, you
cannot execute it. You still need to wait for the Supreme
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Court’s final decision. It is better na swelduhan nalang ninyo
siya. ayaw mog sugut ug sharing.
 Purely personal rights
General rule: patrimonial rights can be transmitted to the
heirs. But there are also patrminoial rights that cannot be
transmitted to the heirs. When you say purely personal rights,
these are the ones that cannot be transmitted. So they are
extinguished upon the death of the decedent. Examples:
 Parental authority. Upon the death of the parents
their rights are not inherited by the other heirs. But
we also have the concept of substituted parental
authority but that is not by inheritance. That is an
express provision of the family code.
 Marital rights relating to persons or property.
So you are husband and wife. You have rights
relating to each other’s person and property. If either
spouse dies, the rights of the either spouse are not
transmitted to their heirs. If you have a spouse/ wife
and she dies, even if she has a beautiful sister and
that is her only relative, you cannot insist that she
inherited the right of his wife even if the sister would
also insist. LOL
 Right to file an action for legal separation. That
would also not survive. This is because upon death,
the marriage is dissolved.
 Right to receive support.
 Right to vote
 Right to become a partner in a partnership.
The rights of the partner in a partnership cannot be
transmitted because partnership is based on trust
and confidence. Each partner is the agent of the
other. So if example a partner dies, his kids may not
necessarily enjoy the same trust and confidence
reposed by the partners upon the parent. In fact
death is a ground for the dissolution of the
partnership.
 Guardianship. So if you are a guardian and you
died, there has to be another guardian appointed.
 Right to revoke a donation by reason of
ingratitude. So if the donor dies although there are
other grounds allowed but a ground to revoke based
on ingratitude can only be exercised by the donor
himself.
 Right to annuity under Article 2027. It allows
you to receive a certain amount of money if you
reach a certain age and you still survive. For example
you reach age 65 are you are still alive you will
receive your pension. So you don’t need to die before
proceeds can be realized from your insurance, so an
annuity depends only upon the existence of the
person. If the person who receives the annuity dies,
the annuity stops. So it does not pass on to the heirs.
 Right to hold public office. Public office is a public
trust. it is a privilege and not a right. So it cannot be
transmitted to the heirs.
OBLIGATIONS
Obligations are also transmitted by succession. But when it
comes to obligations, the transmission is only up to the value
or extent of the inheritance. So if the decedent died, he has
lands cash etc amounting to 10 million. But he left payables in
the amount of 15 million. So the heirs will be made to pay the
debt but only up to the extent of the value of the inheritance.
So they can only be compelled to pay 10 million. Forget
Ad Majorem Dei Gloriam
about the 5 million. The heirs cannot be held personally liable
for the debts of the decedent.
GR: Transmissibility of the obligation.
Example: Obligations arising from contracts.
Liu vs. Loy
Contract to sell there is no transfer of ownership until the full
payment of the purchase price while in a contract of sale
there is a transfer of ownership when there is delivery.
When he entered into a contract to sell, frank liu had the
obligation to convey the property to the buyer if the buyer
already fully pays the price. But he died so that obligation was
transmitted to the heirs.
In this case, even if there is more legal weight in a contract of
sale because there is already a transfer of ownership. But the
contract to sell has entered into ahead of the contract of sale
so there was already an obligation, the heirs cannot disregard
that obligation by entering into another contract over the
same property.
Insofar as debts are concerned, there are two views
on its transmissibility.
1. Debts are not transmissible
One view says that debts are not actually transmitted because
prior to the distribution of the estate, the debts have to be
paid first. Before the heirs can take their shares, the estate
must first pay the taxes and debts charges and whatever
expenses. So the net hereditary estate will be distributed to
the heirs.
2. Debts are transmissible
The other view is that debts are actually transmitted because
the burden of the debt is shouldered by the heirs. By the
payment of the debt the shares of the heirs are diminished or
reduced. So it is again ultimately a payment by the heirs
themselves. This is the prevailing view only up to the value or
extent of the inheritance.
Alvarez vs. IAC
A case for the recovery of possession was filed against
Alvarez. During the pendency, Alvarez sold the land to doctor
season. Eventually he dies and the case continued and the
court adjudged Alvarez or his heirs to return the property or
to pay the monetary value of the property In case the
property is no longer in the estate. The heirs complained
because according to them they did not inherit the property
because it was already solved by Alvarez during his lifetime so
when he died the property was not among the properties
inherited by them so they should not be liable to pay for the
monetary value of the property.
The SC held that they are still compelled to pay because even
if Alvarez sold the property during his lifetime and that
property was no longer in his estate but the monetary value
of that property devolved into the mass of his hereditary
estate. When he sold the property he received cash and so his
estate was augmented or increased and when he died that
estate was inherited by the heirs. So the SC said they could
not escape that liability. SC said that their liability should only
be up to the value of the property they inherited from Alvarez
and they could not be held personally liable for his debt.
SC discussed the concept of progressive
depersonalization of patrimonial rights and duties.
From the 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 intuitu personae, in
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
consideration of its performance by a specific person and by
no other.
So meaning, when you own a property you are merely
occupying a representative position. So when you die your
rights over the property are not extinguished because even if
you died you are only just a representative. Whoever will
succeed to the property will also succeed to the rights and
obligations pertaining to that property. So that is a relation
from patrimony to patrimony with the persons occupying only
a representative position. So that is why rights and obligations
relating to property as a general rule are not extinguished by
the death of the owners; they merely pass on to the
successors except when the rights and obligations are purely
personal.
Genato vs. Bayhon
GR No. 171035 august 24 2009
This involves a loan secured by an alleged dation en pago but
the loan was not paid. So the lender filed an action against
the debtor. However the debtor died. The question is whether
or not the obligation was extinguished and of course the
Supreme Court held no. the SC also discussed the case of
Alvarez relating to the concept of progressive
depersonalization of patrimonial rights and duties. So here the
loan was contracted by the respondent, he died while the case
was pending while he may no longer be compelled to pay the
loan, the debt subsists against his debt. No property or
portion of his inheritance may be transferred to his heirs
unless the debt has first been satisfied, here. The Sc
discussed the procedure on how to enforce a claim against
the estate of a deceased person governed by Rule 3 Section
20 of the Rules of Court.
Because the case was still pending and the debtor died, the
remedy of the creditor is to file a claim against the estate of
the debtor. It is not an ordinary action for collection. If there
is already a proceeding for the settlement of his estate, you
have to intervene and file a claim. If you there is no
proceeding, you, as a creditor can initiate the settlement of
his estate.
GR: A party's contractual rights and obligations are
transmissible to the successors.
Exceptions:
1. Obligations can be made intransmissible by
contract or stipulation
Like in the case of inocencio like a contract of lease,
you can provide there that the contract of lease will
be extinguished upon the death of either the lessor
or lessee. That is not prohibited and that is valid.
2. Purely personal obligations
Like marital rights and obligations, or the obligation
to give support. These are extinguished by the death
of the spouse or the one obliged to give support
respectively.
3. Intuitu personae as discussed in the case of
Genato vs. Bayhon.
4. When the obligation is contracted in
consideration of its performance by a specific
persona and no other.
Like a contract for a piece of work. You contracted
with A, a very famous painter and you want him to
paint your portrait. And before A could finish the
painting, he died. So you cannot compel the heirs to
finish the portrait because that obligation is
contracted in consideration of his personal
qualifications.
Ad Majorem Dei Gloriam
Although if for example, you already made a down
payment, his heirs would have to return the down
payment or that portion which corresponds to that
which you did not benefit from. That is their
obligation but definitely not to finish the painting.
5. Criminal liability
That is an obligation which is not transmitted. So if A
was sentenced to imprisonment for 20 years and he
died after 3 years, his children, although they look
like criminals also, they cannot be made to serve the
remaining years.
Art. 777. The rights to the succession are transmitted from
the moment of the death of the decedent.
During the life of the decedent, the rights of the heirs would
only be a mere expectancy or inchoate right. So you cannot
question a disposition that they will do.
What if you will say that it prejudices your right to support?
Still, go back to the GR, your right is merely inchoate. You still
cannot question the alienation because the decedent is still
alive.
1. When you say sale, there is a corresponding monetary
equivalent value for that.
2. Support is not an absolute right. It also depends upon the
capacity of the person obliged to give support. So it
depends upon the capacity of the giver and the needs of
the receiver.
As long as the decedent is still alive, his heirs do not have a
vested right upon his estate. So they cannot question any
alienation made. Even donations, you can only question that
upon their death. When a person donates all his properties,
those are valid. But once he dies, all those donations are
brought back to the estate. In the computation of the estate,
consider the value remaining at the time of death plus the
value of those donations made during the lifetime and that
would made the basis of the computations of the legitime of
the heirs.
Why do we need to return the donated properties to the
estate? In order to preserve the legitime because the law
provides for legitimes to the compulsory heirs so the decedent
cannot just deprive his compulsory heirs their legitimes by just
disposing his properties. And if he donated all his properties
and those donations are not brought back he can effectively
diminish the legitimes.
While the parents are still alive the children cannot
question those donations because their rights are
inchoate. But they can question those donations only
upon the death of their parents.
In Article 777, the word transmission is not the proper word.
The proper word should have been “made effective” because
the decedent had no right to the succession. There is no right
to succession which he could possibly pass on to his heirs.
The proper wording should be “The rights to the
succession are made effective from the moment of the
death of the decedent.”
So the rights that are transmitted by succession are
the rights of the decedent. The rights of the heirs are
not transmitted but made effective.
As a consequence of that, example, the decedent died in year
2000. He did not leave a will. And then he left several
properties but the heirs executed an extrajudicial partition
only in 2001. When did the ownership of the heirs start? It is
upon death. It is not the partition that transferred the
ownership. If there is a will it is not the probate of the will
that transfers ownership and delivery does not transfer
ownership. It is succession that transferred ownership.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
In contracts, there will only be transfer of ownership upon
delivery. But in succession, it is not delivery that
transfers ownership; it is death by operation of law.
Felipe vs. Aldon
The wife sold properties belonging to the conjugal partnership
and the sale was without the consent of the husband. Under
the CC the status of that contract is voidable unlike under the
Family Code, the contract is void. The husband was not able
to question the sale but the husband died and so he was
succeeded by his children. So the children filed for the
annulment of the contract of sale. One of the grounds
advanced by the defendants was that there was already
prescription because more than 30 years have elapsed from
the time of sale.
The issue is whether or not the right of the children to
question the sale has already prescribed. The SC said no
because the right of the children to institute the action
accrued only upon the death of their father. Having only an
inchoate right or a mere expectancy during the lifetime of
their father, they could not have legally questioned the sale.
they did not have personality. SC said the children’s cause of
action accrued from the death of their father 19559 and they
had 30 years to institute it. They filed the action in 1976
which is well within the period.
Locsin vs. CA
The catalina inherited certain properties from her husband.
She also had her own properties. During her lifetime, 4 years
before her death, she made a will affirming the transfer she
had made during her lifetime. So prior to the execution of the
will she already disposed of certain properties to her nephews
and nieces and then she died. Some of the nephews and
nieces who were not given any property questioned the
donations made by catalina during her lifetime on the ground
that those donations and alienations prejudiced their
legitimes.
The issue is whether or not the nephews and nieces may
validly question the transfer or donations made by catalina
during her lifetime. The SC said no because during the lifetime
of decedent the heirs only have an inchoate right, those
donations were made by catalina during her lifetime which are
valid. Because these donations are valid, they are already
removed from her estate. What passed on to the heirs were
only the residual properties.
On the premise that the donations prejudiced their legitimes,
the SC said that catalina did not have children. So she did not
have compulsory heirs. You are only nephews and nieces.
Only compulsory heirs have legitimes which can be prejudiced
by donations made during the lifetime. Nephews and nieces,
although they are legal heirs, are not compulsory heirs; they
do not have legitimes so they could not question those
donations.
Property which Doña Catalina had transferred or conveyed to
other persons during her lifetime no longer formed part of her
estate at the time of her death to which her heirs may lay
claim. Had she died intestate, only the property that remained
in her estate at the time of her death devolved to her legal
heirs; and even if those transfers were, one and all, treated as
donations, the right arising under certain circumstances to
impugn and compel the reduction or revocation of a
decedent's gifts inter vivos does not inure to the respondents
since neither they nor the donees are compulsory (or forced)
heirs.
All that the respondents had was an expectancy that in
nowise restricted her freedom to dispose of even her entire
estate subject only to the limitation set forth in Art. 750, Civil
Code. The limitation is that she remains sufficient property to
Ad Majorem Dei Gloriam
support herself during her lifetime.
1. Actual death
Irreversible cessation of circulatory and respiratory
functions or the irreversible cessation of all functions
of the entire brain, including the brain stem (RA7170
organ donation act)
2. Presumed death
It is discussed in article 390 and 391 of the NCC.
Death is presumed by law.
 Ordinary presumption
Art. 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.
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.
If you have no knowledge about his whereabouts, after the
absence of 10 years he can be presumed dead for the
purpose of opening his succession or for the purpose of
distributing his properties on the premise that he is dead. But
if he disappeared after the age of 75 years old, an absence of
five years shall be sufficient
 Qualified or Extraordinary presumption
Art. 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.
So in this case, four years is sufficient because there is danger
of death. In order for the rights to the succession to be made
effective there has to be death so it is death that opens
succession. It is death that transfers properties rights and
obligations. It is only upon death when the rights of the heirs
to the succession vests. Upon the death of the decedent,
there will be a transfer. No need to probate or partition.
Presumptive death, there is ordinary and extraordinary
presumption. In ordinary presumption we have to wait for 10
years. In extraordinary presumption we have to wait for 4
years. For instance the 4 year and 10 year period already
lapsed. When do we start counting the time of death?
Example: Suppose the decedent disappeared in 2000 and you
waited for 10 years and he never appeared. So in year 2010.
So when is the moment of death?
It depends.
If it is ordinary presumption, we consider him dead in 2010.
So there will be transmission in 2010. The value of his estate
would be the value as of 2010. So you started to become the
owner only in years 2010.
But when the disappearance with danger of death, we invoke
extraordinary presumption. Suppose he participated in the war
or there was a volcanic eruption and after that he was not
found and you waited for 4 years and still he was not found.
So he disappeared in 2000 to 2004. The moment of death is
the time of disappearance, in year 2000. It is when the
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
danger of death happened. We could not possibly think that
for example in year 2000 there was a volcanic eruption so the
last time you saw him he was running away from the lava and
then after that you did not find him and 4 years now he still
did not appear. You cannot think na naghingalo siya didto sa
lava for 4 years. Wala na patay na jud siya. The value of the
estate would be that in 2000. Transmission of ownership
happened in 2000. That is for qualified or extraordinary
presumption.
Eastern vs. Lucero
Lucero here was appointed as master of the vessel. And then
the vessel was expected to arrive in manila on February 18
1980. It was from Hong Kong. While on voyage, captain
Lucero sent 3 messages to the head of office in manila.
First message: REGRET TO INFORM YOU ENCOUNTERED
BOISTEROUS WEATHER WITH STRONG NORTHEASTERLY
WINDS WITH GAIL FORCE CAUSING THE VESSEL ROLLING
AND PITCHING VIOLENTLY
Second message: THAT THE VESSEL WAS LABORING
VIOLENTLY AND THEY HAD TO JETTISON CARGO.
Third message: THEY NEED IMMEDIATE ASSISTANCE AND
SEAWATER WAS ENTERING INSIDE HATCH VESSEL AND
THEY WERE PREPARING TO ABANDON ANYTIME
And no more messages after that. The vessel sunk and then
insurer confirmed the loss of the vessel. Because of that, the
company started paying death benefits to the family of the
crew.
But the wife of captain Lucero refused to receive it because
according to her the contract of her husband was from voyage
to voyage and the contract will be terminated upon the
husband’s arrival in manila. Because the vessel did not yet
arrive in manila, then she still continues to receive monthly
allotment, not the death benefits, even if you follow the
provision in the CC, if we based the disappearance on danger
of death we have to wait for four years before we can
presume that the person died.
SC said that it is undisputed that on February 16, 1980, the
Company received 3 radio messages from Capt. Lucero that
they were facing danger at that time. There is enough
evidence to show the circumstances of the loss and the
disappearance of the vessel’s crew. The foregoing facts are
sufficient to lead to a moral certainty that the vessel has sunk
and that the persons aboard had perished with it
Upon this premise, the rule of presumptive death under article
391 paragraph 1 of the CC must yield to the rule on
preponderance of evidence. Where there are facts known
from which a rational conclusion can be made, the
presumption does not step in and the rule in preponderance
of evidence controls.
Here even if we have the rule on presumption, we have to
wait for 4 years, if there is enough evidence to show with
moral certainty that this person had already died, why should
we wait for 4 years when there is enough evidence. So the
rule on presumption should yield to preponderance of
evidence.
Rights of the heirs after the death of the decedent. The
rights become vested upon the death of the decedent.
Emnace vs. CA
Emnace, Tabanao and Divinagracia were business partners in
a business concern. They decided to dissolve their partnership
and pursuant to that dissolution, they executed an agreement
of partition and distribution of partnership properties among
them. However after they executed the agreement Tabanao
died. Emance, one of the partners, failed to submit any
statement as to the assets and liabilities of the partnership
Ad Majorem Dei Gloriam
and to render an accounting of the partnership finances and
also to turn over to the heirs of Tabanao his share in the
partnership’s assets. The wife of Tabanao filed an action in
court to compel the distribution of the assets of the partner
and to compel the delivery to them the share of Tabano in the
partnership.
It was contended by Emnace that the spouse has no
personality to the action because she was not appointed as
administratix or executrix of the estate.
So the administrator is appointed by the court to take charge
of the estate of the decedent prior to partition. The
administrator has the right to bring actions for and on behalf
of the estate. He can also be the defendant in an action filed
against the estate. The administrator will have to preserve the
properties, pay the debts of the state, etc.
The spouse here was not appointed as aministratix therefore,
she did not have the right to institute the action
SC said pursuant to article 777, the rights are transmitted
from the moment of death, during his lifetime, tabanao
himself had the right to institute the action against emance,
when he died his rights passed on to his heirs by operation of
law. So there is no need for the spouse or any heir to be
appointed as executor or administrator before they can
institute an action for an on behalf of the estate.
If there is yet no appointed executor or administrator any one
of the heirs may institute the action for an on behalf of the
estate.
For example there is already a pending proceeding for the
appointment of an executor or administrator, still any one of
the heirs may institute action for and on behalf of the estate
as held in the case of Rioferio vs CA.
GR: If there is already an appointed executor or administrator
then it should be the executor or administrator that should
bring the action.
Exceptions: The heirs may institute the action on behalf of
the estate although there is already an appointed executor or
administrator.
1. If the executor or administrator is unwilling or
refuses to bring the suit.
2. When the administrator is alleged to have
participated in the act complained of and he is made
a party defendant.
July 2, 2015 (JCP)
See the provisions regarding presumptions of death.
Art. 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.
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. (n)
Art. 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
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
circumstances and his existence has not been known for four
years. (n)
Art. 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.
(194)
The rules on presumption shall yield on preponderance of
evidence.
Now, there is also a presumption under the Rules of Court
relating to death:
Rule 131. Section 3 (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. (5a)
So for the purpose of Succession, we do not have a
presumption of survivorship. It does not mean that when the
father is 80 YO at the time of the shipwreck and the son was
18, then the son survived longer than the father although
both of them died but who died first, there is no presumption
in succession.
So the rule here is, one who alleges the death of one prior to
the other, he shall prove the same, meaning there has to be
evidence presented to prove that the father died ahead of the
son or vice versa. Now, if there is no proof, there is no
sufficient evidence to prove that the father died ahead of the
son or vice versa, then, the presumption here is that they at
the same time. So what is now the consequence, if they died
at the same time? Why do we need to know? Because it
matters in Succession, for example, this is the father, this is
the son and the son is married. This is the wife of the son. So
the father has several properties. Now, if they both perish on
that shipwreck, and the father died ahead of the son, upon
the death of the father, the son inherited from the father,
assuming he inherited 10M, when the son died then the wife
also inherited this (10M) from the son. But, if the son died
ahead of the father, and then the father died subsequently,
this wife will not receive anything because she is not an heir
of her father-in-law. This will go to the legal heirs of the
Father. So it matters.
Also, later on when we go to Art 891, the application of
reserve troncal. It also matters who died ahead. Because if for
example the son died ahead of the other there can be no
reserve troncal. But if the father died and the son inherited it
is possible that there can be reserve troncal. Again, in the
absence of proof they are presumed to have died at the same
time and there is no succession from one to the other. Kung
sabay sila namatay walay succession between the two of
them.
We already discuss that death opens succession and
without death there can be no succession. There is one
exception, the concept of Freak Succession.
Freak Succession because it is unusual. Here, succession
takes place at the lifetime of the supposed decedent. Freak
Succession is a succession which takes place without the
triggering effect of death, this contemplates the delivery of
presumptive legitimes prior to the death of the person who
supposed to be as such on the occasion of the annulment of
marriage and the declaration of nullity of marriage.
If you remember your PFR, when there is a decree of
annulment or declaration of nullity of marriage, one of the
pronouncements to be made by the court is the delivery of
Ad Majorem Dei Gloriam
presumptive legitimes of the children. So here, we compute
the probable value of the presumptive legitime. Why? Because
if the marriage is annulled or declared null and void the
parents could already remarry and when his parents already
his/her properties would now be merged of the new spouse,
so what happens now to the children? The law seeks to
protect the children of the prior marriage. So even before, the
marriage is declared null and void and the spouses is free to
remarry, deliver first the presumptive legitimes of the children.
GR: There can be no succession until the death of the
decedent. Point in time to remember is the point of death.
The transfer happens upon the moment of death of the
decedent.
EXC: The concept of Freak Succession.
Now, can the testator in his will provide that his heirs will not
inherit after 5 yrs of his death? Can he provide for that? No
because the law says the transmission occurs upon the
moment of death but under the New Civil Code:
Art. 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 20 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.
Unless the testator should have expressly forbidden its
partition, in which case the period of indivision shall not
exceed 20 years. But again, they already inherited, they are
already the owners only that they cannot partition yet.
TYPES OF SUCCESSION
So, there are 3 types.
Art. 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed. (n)
What do you mean by testamentary succession? It is defined
in:
Art 779. Testamentary succession is that which results from
the designation of an heir, made in a will executed in the form
prescribed by law. (n)
That is very clear, there is a will.
How about legal succession? Legal succession or intestate
succession takes place when there is no will or where the will
is void. There is no exact definition of legal succession, there
is only an enumeration of what is legal succession.
Art. 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
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
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. (912a)
How about mixed succession?
Art. 780. Mixed succession is that effected partly by will and
partly by operation of law. (n)
There is a will and there are dispositions of properties covered
by it, but those properties not covered by the will, it will be
disposed of by operation of law or intestate succession. Partly
by will and partly by operation of law.
So we go back to Art 779. Number 1, there should be a will.
There can be no testamentary succession without a will.
The law also says, which results from the designation of an
heir. Can there be a will, that does not designate an heir? In
cases of disinheritance. The will which mentions only
disinheritance the person disinherited will disqualified to
inherit and those qualified heirs will inherit thru legal or
intestate succession.
So it is important, that the will, will designate an heir so there
can be testamentary succession. Also, for a will to be valid, a
will must be executed in the form prescribed by law. These
are the requisites for legal succession.
If there is a will, it has to be respected. Although we are more
familiar of the principle of: If there is a will, there is a way.
(olrayt!)
If there is a will, as much as possible, it has to be given effect.
So, testamentary succession I favored over legal or intestate
succession.
Rodriguez v. Borja
In your special proceeding the court which exercises
jurisdiction first excludes the other court.
Ruling: Testate proceeding must prevail since it will give
effect to the will of the testator. The principle is that
testamentary succession is favored over intestacy. When there
is a will, every opportunity must be exercised to know if the
will is valid so that is in the probate proceeding. If the will is
valid then every property of the testator must be disposed in
accordance with the will. But if the will turns out to be void
then the intestate proceedings will commence. So here, it
would be anomalous to proceed with the settlement intestate
when the fact that there is a will. Then again, we should
probate first then we decide. The other reason, the Rules of
Court Rule 76 , 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
3 weeks successively, previous to the time appointed, in a
newspaper of general circulation in the province.
But no newspaper publication shall be made where the
petition for probate has been filed by the testatorhimself.
So, the court can acquire jurisdiction when a will is delivered
and when a petition is filed. Now, How do you relate that to
the facts of the case? So technically speaking the probate
proceeding was instituted ahead because it was delivered on
March 4 and the intestate proceeding was instituted on March
12. Granting for the sake of argument that the intestate
proceeding was filed ahead of the delivery of the will again it
Ad Majorem Dei Gloriam
should be testate proceeding which should prevail over
intestacy.
Actually, I remember this, I have a client and they were
disinherited. The will was defective. Question: they don’t want
to allow the will? Under the Rule 76 Sec 3, we just delivered
to the Clerk of Court the copy of the will. Under the Rules, the
court shall fix a time and place for proving the will.
Balanay v. Martinez
Issue: WON the last will and testament of leodegaria will be
given effect?
Ruling: Even if a portion of the will is alleged to be void it
does not follow that the entire of the will is void. If the valid
provisions can be separated from the void provisions then give
effect to the valid provisions. One principle in wills is that
when there are two interpretations the interpretation that
makes the will valid and the other makes the will void. Which
interpretation must be followed? The interpretation which is
consistent with the validity of the will must be followed. In this
case, the husband assented to the wishes of the testatrix,
hence, somehow the interpretation which gives effect to the
will of the testator must be followed.
Art. 781. The inheritance of a person includes not only the
property and the transmissible rights and obligations existing
at the time of his death, but also those which have accrued
thereto since the opening of the succession. (n)
Meaning, whatever income starting from the time of death
accrues to the heir. The principle of accession applies in this
case. Properties acquired after the death of the testator
belongs to whoever owns these properties.
Art. 782. An heir is a person called to the succession either
by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real and
personal property are respectively given by virtue of a will. (n)
There are two kinds of heirs:
(1) Forced heir and
(2) Voluntary heir.
A forced or compulsory heir, the testator has no choice.
Testator cannot deny legitime to his compulsory heirs.
On the other hand, voluntary heir, is when the testator is
not obliged to give. However, a compulsory heir may also be a
voluntary heir. In what sense, if a compulsory heir is given
something over and above his legitime.
Now if there is no will there is legal succession. We have the
legitimate children and descendants, legitimate parents and
ascendants, surviving spouse and illegitimate children. In legal
succession, they are called legal heirs. So, all compulsory heirs
are legal heirs. Does it follow that, all legal heirs are
compulsory heirs? No. Because legal heirs is much broader
than compulsory heirs. Aside from the 4 groups I mentioned
you have brothers and sisters, nephews and nieces, uncles
and aunts.
As the law says by virtue of a will, there can only be legatees
and devisees in testamentary succession no such term in legal
succession.
So how do we distinguish heirs from legatees and devisees
from the one mentioned in Art 782?
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015

and legacies shall be valid insofar as they are not inofficious.

HEIRS
Heirs succeed by general
right or universal title to all or
a fraction or aliquot portion
or share of the estate.
Meaning, you are instituted
but not specifying your
property to the universality or
to the fraction. I hereby
institute A as my sole heir
even if all your estate is
consists of land A is not a
devisee.
The term heir exists both in
testamentary succession and
legal succession.
The heir in compulsory
succeeds in inheritance
regardless of the will of the
decedent.
As to heirs, the quantity
cannot be determined until
after the liquidation of the
properties of the estate.
The heir represents the
juridical personality of the
deceased acquiring his
property, rights and
obligations because an
inheritance of an heir is not
specified he succeeds as to
the universality he gets the
properties, rights and
obligations. He constitute the
juridical personality of the
decedent, he can institute
cases in behalf of the
decedent.
Remember, they succeed as
to property, rights and
obligations. On obligations,
only up to the value of the
inheritance.
If you are a compulsory heir, first, debts must be paid then
taxes, legitime is given, after legatees and devisees, then
voluntary heir.
Comparing the three, legatees and devisees is preferred over
voluntary heirs and compulsory heirs are preferred over
legatees and devisees.
Take note, that voluntary heirs can also be forced or
compulsory heirs when they are given properties over above
their legitimes.
LEGATEES and DEVISEES
On the other hand legatees
and devisees succeed to
specific properties. They
succeed to particular or
special title.
The term legatees and
devisees exists only in
testamentary succession.
But legatees and devisees
succeed only by reason of the
testator’s will.
As to the legatees and
devisees the quantity can be
determined because you are
given specific properties.
As to legatees and devisees,
they cannot represent the
juridical personality because
they only succeed the
properties and rights.
So, only properties and
rights, no obligations.
If the omitted compulsory heirs should die before the testator,
the institution shall be effectual, without prejudice to the right
of representation. (814a)
This is the concept of preterition. If you are a voluntary heir
there is preterition, you will not receive anything. In
preterition, if a compulsory heir in the direct line is omitted in
the will and in the inheritance, the consequence of that would
be the institution of heirs in the will shall be annulled. The
property will be distributed in legal succession. Also:
Art. 793. Property acquired after the making of a will shall
only pass thereby, as if the testator had possessed it at the
time of making the will, should it expressly appear by the will
that such was his intention. (n)
This only applies to legatee and devisee. So those are the
reasons why we have to know the distinctions.
For example:
The testator in his will says, I hereby give A one half of my
land in Calinan, Davao City. Is A an heir or devisee? He is a
devisee, because he is given a specific land.
I hereby give to A one half of my estate? Clearly, A is an heir.
I hereby give to A my cash in Metrobank? Legatee. I hereby
institute A as my sole heir and consists only of cash? Heir
because it is not particularly stated.
CHAPTER 2. TESTAMENTARY SUCCESSION
SECTION 1. Wills
Subsection 1. - Wills in General
Art. 783. A will is an act whereby a person is permitted, with
the formalities prescribed by law, to control to a certain
DEGREE the disposition of this estate, to take effect after his
death. (667a)
Although the NCC described the will is an act, we, can also
describe he will as an instrument itself where the
testamentary dispositions of the will are embodied.
Instrument because under our jurisdiction, in order to be
valid, the will must be in writing. We have two kinds of wills:
(1) Holographic wills and
(2) Notarial or Ordinary wills.
The will may be the act or the instrument. It is important that
you should know the essential elements and characteristics of
wills.
ESSENTIAL ELEMENTS OF A WILL & TESTAMENT
Remember the mnemonics: PASS U C FRIDM.

Compulsory heirs can also be legatees and devisees? Yes if

they are given specific properties and then that is already
beyond their legitime. Now, what is the relevance in knowing
the distinctions? There are certain provision in the NCC where
the application or the consequence is different if you are an
heir or a legatee and devisee. One of that is:
P – PERSONAL. Testamentary power cannot be delegated.
When you make a will, that will should embody your last
wishes. There are also certain acts that cannot be delegated
by the testator to another person like the determination of
WON the will shall be effective.

Art. 854. The preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the DEVISES
Ad Majorem Dei Gloriam
How about the mechanical act of drafting the will? Can that be
delegated? It depends. Because it depends on the kind of will,
if it is a notarial will, then the mechanical act of drafting the
will can be delegated. In fact, it is usually delegated to
lawyers because the formalities are complicated.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
When it comes to holographic will, even the mechanical act of
drafting the will cannot be delegated because it should be
entirely handwritten, dated and signed by the testator. So, dili
pwede I-delegate.
Another consequence that the will is personal is that the
content of the will is confidential that is why the lawyer is not
required to retain a copy of the will or to submit the will to the
clerk of court.
A – ANIMUS TESTANDI. There must be an intent to make a
will. So the testator must understand that this is my last will
and testament that the consequence of my disposition of my
property upon my death. This will take effect upon death of
testator. One of the essential qualifications of the testator is
that he must have a sound mind because how can you have
animus testandi if you do not have a sound mind. That is why
also, only natural persons can execute wills because
corporations cannot have animus testandi.
Montinola v. Herbosa
Obviously when Rizal made the poem he is not contemplating
on making a will because there was no animus testandi. It can
be considered a will in a grammatical sense but not in a legal
or juridical sense.
July 9, 2015 (AS)
S – STATUTORY. When you say statutory it means that this
is a creation of a statute. You do not have the inherent right
to execute wills.
In the Philippines, people who are qualified can execute wills
because we have the Civil Code. Without it, you cannot insist
that you dispose of your property mortis causa. There are also
countries where their citizens cannot execute wills simply
because they have withheld the privilege to execute wills.
S – SOLEMN. The execution of wills is attended by several
solemnities or formalities. As a general rule, failure to comply
with these solemnities will invalidate the will.
U – UNILATERAL. A testator cannot condition the making of
the will upon the consent, act or approval of another. It must
be the testator’s own will or volition as opposed to a bilateral
disposition which would only be valid when two persons come
to an agreement. In fact because of this characteristic there
are certain provisions that cannot be inserted in the last will
and testament. Example: In a will the testator provides: “I
hereby give to A my house and lot provided he will also give
to me his jewelry and vehicles” This is not valid because it
amounts to a bilateral disposition or what we call Disposition
Captatoria. This is void because it violates the basic
characteristic of a will that it should be unilateral.
C – CAPACITY. Not every person may execute a will. For a
person to validly execute a will he must possess testamentary
capacity.
Under our jurisdiction, there are 2 requisites for testamentary
capacity:
1. The testator must be at least 18 yrs of age; and
2. He must be of sound mind.
F – FREEDOM FROM VITIATED CONSENT. If there is
mistake, fraud, violence, intimidation, undue influence during
the execution of the will imposed or exercised upon the
testator, it is a ground for the disallowance of the will. The
testator must know exactly what he is doing. In your oblicon
the presence of vitiated consent makes the contract voidable
but in a will the presence of vitiated consent makes it void.
R – REVOCABLE. The will is essentially revocable by the
testator at any time. There is no ground provided – even for
the most absurd and whimsical ground the testator may
revoke his will.
Ad Majorem Dei Gloriam
The only limitation is when the testator loses soundness of
mind. If for example he made a will and subsequently he
becomes insane, the testator cannot anymore revoke his will.
Revocation just like the execution of wills requires
testamentary capacity. Animus revocandi or intent to revoke
the will is also required. One cannot have animus revocandi if
he is not of sound mind.
I – INDIVIDUAL. A will must be the act of one person. You
cannot combine the wills of two or more persons that is why
in our jurisdiction joint wills are not allowed. They violate the
essential requisite that the will should be an individual will.
What is the reason why the law prohibits joint wills? Because
it violates public policy because it induces parricide. If you
have a joint will between spouses and then makita ni spouse
na daghan kaayo ug property ang isa. Sometimes the love for
wealth overpowers the love for the husband or wife so
masayo na hinuon ug kamatay ang isa. So that is the reason
why joint wills are not allowed.
D – DISPOSITION OF PROPERTY. For a document to be
considered a last will and testament it should contain a
disposition of property.
There are 2 kinds of disposition:
1. Direct disposition – It is one where the testator in
his will institutes an heir and specifies what
properties or which portion of the estate goes to that
person instituted as an heir, legatee or devisee
2. Indirect disposition – Where the testator does not
specify who will receive but instead specifies who will
not receive therefore indirectly stating that those
who are not excluded will be the one who will receive
Ex: A document containing disinheritance.
Merza v Porras and
Seangio v Reyes
In these two cases, the SC affirmed that a
document containing only disinheritance can also be
considered a will because a disinheritance is also
considered a disposition of property (although
indirect)
How about a document which only contains an
acknowledgement of an illegitimate child?
In a will the testator provides, “A is my illegitimate child and I
hope that my relatives will treat him as their own” and this
document is denominated as a last will and testament but it
does not conform to the formalities of a will.
But can this document be used as evidence to prove the
illegitimate filiation? YES. In reality this document is not a will
because there is no disposition of property. So there no need
to comply with the formalities to be valid or to be utilized as
evidence in court. In your Family Code you prove filiation
through primary and secondary evidence and a valid last will
and testament is not one of the requisites. It could be a public
record of birth or a private handwritten instrument subscribed
signed by the putative parent.
Example: “I hereby appoint A as administrator to oversee my
properties and to distribute these among my heirs”
Can this document be given effect even if it does not comply
with the will? YES. This document is not a will. When you
appoint an administrator you do not confer a benefit and you
do not dispose of your property. So this document is valid
even if not in the form of a will
Another example: “I hereby give 1000 a month to A” but the
document is not in the form of a will.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015

The question is, is this a will? Yes. It contains a disposition of which such property or sums are to be given or applied.
property. Is it valid? No, because as I’ve said it does not (671a)
follow the formalities.
This is an allowable designation. In here, the testator
Vitug v CA entrusts to a third person:
In this case, the subject of the survivorship agreement was 1) The distribution of specific property or sums of
their conjugal funds of the spouses. In a last will and money
testament you should be disposing of your own separate
property in favor of the other but here they merely agreed 2) He left that in general to specified classes or
how to dispose of their joint account. The SC said that this is causes
not a will. The will must purport give to one’s separate 3) The designation of the persons, institutions or
property in favor of another. establishments to whom such property or
sums of money are to be given or applied
M – MORTIS CAUSA. The transfer of ownership becomes
effective upon the death of the testator. Art 786 Art 785

Article 784. The making of a will is a strictly personal act; it The heirs, legatees or The heirs, legatees or
cannot be left in whole or in part to the discretion of a third devisees are not named devisees are referred to by
person, or accomplished through the instrumentality of an name in the will
agent or attorney. (670a)
There is a class or cause There is no class or cause
Can you delegate to a third person the mechanical act of specified
drafting a will?
It depends kung unsang klase nga will. If it is a notarial will, What the 3rd person does is It is the 3rd person who
yes it can be delegated. But if it is a holographic will it cannot to determine the persons, determines the portion to be
be delegated since it must be entirely dated, written and institutions or establishments given
signed by the testator
Examples:
Castañeda v Alemany 1. “I leave all my properties to the top 5 of 3-Manresa and X
The issue was won the drafting of the will may be delegated. will determine how much will be the share of each.”
Here the notarial will was typewritten in the office of the VALID. This is under Art 786- there is naming and there is a
lawyer. It does not matter. specified class (3-Manresa)
2. “I hereby give my property to Miss Bonfiacio, Mr Abapo, Ms
Bagundang and Mr Villacampa and X will determine how much
the share of each”
Article 785. The duration or efficacy of the designation of
heirs, devisees or legatees, or the determination of the VOID - Art 785. There is naming
portions which they are to take, when referred to by name,
3. “I hereby leave such sum of money as X shall determine to
cannot be left to the discretion of a third person. (670a)
support the top 5 of Manresa class 2015”

This is a consequence of the characteristic of a will that it NOT VALID because there is no specific property. The
should be personal. amount is not specified

What cannot be delegated under Art 785?

1. The duration of the designation of the heirs,
Article 787. The testator may not make a testamentary
legatees or devisees
disposition in such manner that another person has to
I hereby give my house and lot to A, B and C and determine whether or not it is to be operative. (n)
they will use it alternately but the duration of use of
each shall be decided by X.” The decision as to This almost the same as Art 785. Here again a 3rd peson has
duration of the designation cannot be delegated to det won the test disposition is operative. This is not allowed
2. The efficacy of the designation of heirs, because it violate the personal characteristic
legatees or devisees. You cannot say, “I hereby
institute A, B and C as heirs but subject to the
approval of Y” It appears na si Y na karon ang mag-
Article 788. If a testamentary disposition admits of different
buot. It should be within the discretion of the
interpretations, in case of doubt, that interpretation by which
testator.
the disposition is to be operative shall be preferred. (n)
3. The determination of the portions which the
heir, legatee or devisee shall take when to
referred to by name. “I give my money to X, Y and We have to remember the basic principle: Testacy is
Z and P will determine how will each get” This should favored over intestacy.
not be done. If there are 2 interpretations for a testamentary disposition, in
case of doubt, that interpretation by which the disposition is
to operative shall be preferred.
Article 786. The testator may entrust to a third person the In other words the will should be liberally construed in favor
distribution of specific property or sums of money that he may of its validity.
leave in general to specified classes or causes, and also the
designation of the persons, institutions or establishments to

Ad Majorem Dei Gloriam

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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Dizon Rivera v Dizon
The words “I bequeath” gave rise to the confusion. Devisee I
devise Legatee I bequeath When you say “bequest” it means
you are giving your property from the free portion. In here
because the testatrix used the words I bequ then she must
have referred only to the free portion the SC said no.
Vde de Villanueva v Juico
The issue here is how to interpret that provision in the will of
the testator. He bequeathed in favor of his wife properties for
her use and under the condition that he should not marry.
Intention was to vest only with usufruct.
Article 788. If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by which
the disposition is to be operative shall be preferred. (n)
This only applies in case of doubt. So in case of doubt then
we follow that interpretation which is consistent with the
validity of the will.
But if there is no doubt, when the language of the law is clear,
the of course as what you have learned in statutory
construction, you have to apply the provisions of the will
based on its wordings. Literal interpretation. Even if the
disposition seems unfair as long as it is legal then you have to
follow it.
For example: The testator died without compulsory heirs. He
has brothers and sisters but he gave all his property to his
maid. Can the brothers and sister complain? NO, because it is
not illegal to deprive your brothers and sisters since they are
not your compulsory heirs. So we have to give effect to the
will as it is when there is no doubt. But if there is doubt, dira
lang ta mag-interpret.
For example in his will the testator said, “I hereby give to my
beautiful sister ½ of my properties.”And then it turns out nga
si sister by normal standards of ordinary men na rational, dili
siya beautiful. So mu-oppose ka? The property should not be
given to A because according to the testator A is beautiful and
as you can see your Honor, res ipsa loquitor  Pwede ba na
siya? YES. Malay nimo sa testator siya na ang pinakagwapa
diba? So that will must be given effect. Ang beautiful diha it
can be considered as a description pero dili siya condition
because when it is imposed as a condition, pwede na na siya
i-contest.
Like “If A turns out to be beautiful by common standards,
then I would give her my property.” In this case, the
interpretation is that the condition has to be fulfilled first
before A can inherit. But if it is merely description, the
underlying reason in testamentary succession is the
generosity or liberality of the testator. So even if the
description turns out to be false or wrong, you must still give
effect to the testamentary disposition.
Article 789. When there is an imperfect description, or when
no person or property exactly answers the description,
mistakes and omissions must be corrected, if the error
appears from the context of the will or from extrinsic
evidence, excluding the oral declarations of the testator as to
his intention; and when an uncertainty arises upon the face of
the will, as to the application of any of its provisions, the
testator's intention is to be ascertained from the words of the
will, taking into consideration the circumstances under which
it was made, excluding such oral declarations. (n)
Ad Majorem Dei Gloriam
KINDS OF AMBIGUITIES
A. Latent or Intrinsic – It is an ambiguity or defect that
does not appear in the face of the will.
By reading the will, you will not know that it suffers from
a defect or ambiguity. You only discover the ambiguity
when you start looking for the persons mentioned in the
will or the properties disposed of.
Ex: I hereby give to Juan dela Cruz, my bestfriend, ½ of
my estate. Wala may mali diha when you read the will.
Upon the death of the testator you start looking for Juan
but wala kay nakita na bestfriend nga Juan dela Cruz ang
pangalan. So now there is the ambiguity – kinsa man ni si
Juan dela Cruz? No person actually answers the
description.
Four kinds of latent or intrinsic ambiguity:
1) Imperfect description of the heir, legatee or
devisee. Ex: “My beautiful sister” – sa will okay lang
pero pag-tanaw nimo sa tinuod lahi ra diay.
2) Imperfect description of the property given.
Ex: “My 10 hectare land in Calinan” – pero pag-
tanaw nimo 1 hectare ra diay.
3) When two or more persons meet the
description. Ex: “To my best friend Juan dela Cruz”
– Pagpangita nimo karon kay Juan dela Cruz daghan
diay nag-claim. So kinsa man diha sa ilahang tanan?
4) When two or more things meet the description
B. Patent or Extrinsic – This is an ambiguity that is
apparent on the face of the will itself.
Ex: I hereby leave to some of my students my house and
lot in Calinan, Davao City. Here you are not sure kung
pila man ang “some” 2? 3? There is now an apparent
ambiguity.
REMEDIES TO THE AMBIGUITIES
Whether it is extrinsic or intrinsic ambiguity, we can use the
same kind of evidence.
1. Intrinsic evidence – Evidence which is found in the will
itself
Ex: To my best friend Juan dela Cruz
Later on in the other portions of the will, the testator
described the physical attributes of Juan dela Cruz. Unya
naka-state didto na kauban sila from preschool until law
school. So there is sufficient description for you to
determine who Juan dela Cruz is.
2. Extrinsic evidence or evidence aliunde – Evidence
that is not found in the will
Ex: To my best friend Juan dela Crus
Walay anything in the will that would help us determine
who Juan dela Cruz is but during his lifetime the testator
made several letters to Juan dela Cruz himself promising
him that he will give his house and lot to the later when
he dies. Those letters can be used to resolve the
ambiguity. Bisan pa na dili Juan dela Cruz iyang pangalan
pero si testator siya to ang gina-refer. She is actually
Joan dela Cruz but wrong spelling lang diay si testator sa
last will. In this case, the letters are extrinsic evidence.
Can we use oral or parole evidence to cure an extrinsic or
intrinsic ambiguity in the will? YES. We can use oral or parole
evidence. What Art 789 prohibits is oral evidence as to the
declarations of the testator as to his intention.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Ex. You cannot present a person to testify and what would be
the nature of the testimony “Actually according to the testator
ako daw na si Juan dela Cruz. Sa ako daw na niya gina-hatag
ang house and lot in Calinan. He told me that during one of
our conversations” Can we accept that kind of evidence? NO
because how can we confirm whether or not the testator
indeed made such a declaration? We cannot ask him because
he is dead. This is not allowed.
But when you say oral evidence like diba nakabutang sa will
na kauban si testator ug si Juan dela Cruz from preschool until
law school, so naay mag-testify karon nga classmate niya si
testator ug si Joan dela Cruz during preschool. So nag-testify
siya as to that fact and not as to the supposed oral
declarations of the testator as to his intentions. Kani siya is
still oral evidence but it is not prohibited. This is also covered
by the Rules of Court on the Parole Evidence Rule:
Rule 130. Sec. 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 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. (7a)
So GR under the parole evidence rule when there is an
agreement and it is already in writing, you cannot modify the
terms of the written agreement by oral evidence. You cannot
later on present oral evidence to vary the tenor of the written
agreement.
The last paragraph states: “The term "agreement" includes
wills.” This means that you really can use oral evidence as
long as it is not in relation to the supposed intention of the
testator.
In your Obligations and Contracts, there is the remedy of
reformation. If there is a meeting of the minds between the
parties but the agreement is not written so as to reflect their
true intention, you can avail of reformation. For example they
merely agreed on a mortgage but the document is a pacto de
retro sale. So you can have that document reformed to
express the true agreement.
Is reformation also available to cure a defect on the will? No.
Basis: Art 1366.
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.
In reformation, the first step that would happen is you ask the
party like “Hoy A, mali man diay ni atong agreement. Dapat
mortgage pero sale man ni!” Walay problema kung mu-ingon
si A na “Ay tama diay. Usabon nato.” Pero kung mu-ingon si A
Ad Majorem Dei Gloriam
na “Dili uy sale na na siya. Di na ko musugot ug reformation.”
Then this is the time that you file for reformation. How do you
apply this in case of wills? Nag-promise si testator ”I will give
to you 10 hectares of my land in Davao City. “ but in the will 1
hectare lang ang nakabutang. Can you file an action for
reformation against the testator? NO YOU CANNOT. In fact
the testator may even revoke the will. Wala na hinuon kay
madawat. The same rationale applies in case of donations
because these are acts of liberality.
Article 790. The words of a will are to be taken in their
ordinary and grammatical sense, unless a clear intention to
use them in another sense can be gathered, and that other
can be ascertained.
Technical words in a will are to be taken in their technical
sense, unless the context clearly indicates a contrary
intention, or unless it satisfactorily appears that the will was
drawn solely by the testator, and that he was unacquainted
with such technical sense. (675a)
Under Art 790, you have ordinary and technical terms used in
the will.
General rule: Ordinary terms are to be given their
ordinary meaning. Technical terms are to be given
their technical meaning.
Ex: When you say “I give to you a chair” then that is a chair.
When you say “adopted” that is a technical term so you
understand it in the technical sense – one that has undergone
an adoption proceeding.
Exceptions:
a. Ordinary terms are not given their ordinary
meaning when it is clear that there is an intention
to give it another meaning
Ex: The testator bequeathed to A my bed. Pero ang
testator ang ginagamit diay niya as bed is a table na gold.
Wala na siyay lain bed ha katong table ra gyud. In this
case what is the intention of the testator? The testator
wants to give to A his gold table.
b. Technical terms are not given their technical
meaning when:
1. There is a contrary intention
2. The testator prepared the will by himself and it
is clear that he is unacquainted with the
technical meaning of the terms
Just like in the case which we discussed before, the term
used was “I bequeath”. When you say “bequeath” that is
a technical term. You are referring here to a legacy which
is taken from the free portion. But as we already
discussed the intention of the testator in the case was to
give them not only the free portion but his properties. So
here, the technical term is given a different meaning.
Another example is the use of the word “adopted”. Ang
nag-buhat sa last will kay tigulang na. He made an will
and left all his properties to his “adopted son” and kana
siya wala siya naka-law school of course wala siya’y idea
kung unsa ng adoption. Diba sa barrio basta imong gi-
sagop, adopted na na siya. Here, the testator is layman
and is he is unacquainted with the technical meaning of
that word. How do we interpret the word adopted? Use it
in its ordinary sense.
In this case when we have to interpret, we ascertain
what is the intention of the testator. We have to
place ourselves in the circumstances of the testator. At
this point in time, under this kind of scenario, what would
have been the intention of the testator?
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Article 791. The words of a will are to receive an
interpretation which will give to every expression some effect,
rather than one which will render any of the expressions
inoperative; and of two modes of interpreting a will, that is to
be preferred which will prevent intestacy. (n)
We can divide Art 791 into two parts:
1. The will must be interpreted as a whole
2. Testacy is favored over intestacy
You can also relate this to the case of Rodriguez vs. Borja.
Katong case na gi-deliver ang copy sa will March 4 and then
gi-withdraw and then March 12, 8 AM nag-file siya ug petition
for settlement of intestate estate in Bulacan. 12NN on the
same day naay nag-file ug petition for probate in Rizal. So asa
sa duha ang mag-prevail? We already know that it should be
the probate proceeding. Testacy is favored over intestacy.
Yambao v Gonzales
Here the SC was confronted with the question of how to
interpret a disposition whether it was mandatory or merely
discretionary because of the word “pahintulutan”. The SC
interpreted the will as a whole and interpreted the word
“pahintulutan” in conjunction with the preceeding word
“tungkulin o dapat gampanan”.
Finally the SC said that it was not within the discretion of the
heirs whether or not they would allow the tenant to stay.
They have the duty to do so.
Article 792. The invalidity of one of several dispositions
contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator
would not have made such other dispositions if the first
invalid disposition had not been made. (n)
We actually already discussed this in the case of Balanay vs.
Martinez that even if some dispositions are not valid, they
entire will is not invalidated if you can separate the void
provisions from the valid ones.
Article 793. Property acquired after the making of a will shall
only pass thereby, as if the testator had possessed it at the
time of making the will, should it expressly appear by the will
that such was his intention. (n)
If you still remember our discussion under Article 781 about
after-acquired properties, Art 793 speaks of properties
acquired AFTER THE EXECUTION OF THE WILL.
The meaning of Art 793 is that if there is a legacy or devise
given then the legacy or devise covers only the properties
existing at the time of the will. Anything which is added to
that legacy or devise after the execution of the will but before
the death of the testator, those are not included.
Ex: The testator devised to A his 5 hectares of land in Calinan.
He made the will in 2000. In year 2004, nag-flood and then
naay accretion so 6 hectares na karon. If you remember in
your Property, to the owner of the land belongs the accretion.
Pagkamatay ni testator how much ang ma-claim ni A? 5
hectares only.
Art 793 applies only to a legacy or devise. It does not apply to
a inheritance.
July 16, 2015 (RJV)
Ad Majorem Dei Gloriam
As already discussed before, Article 793 is another concept of
after acquired properties. We are speaking here of properties
acquired after the execution of the will but before the death of
the decedent or the testator. The rule is-the property acquired
after the execution of the will shall not be included in the
devise or legacy. I already gave the accretion example. This
article only applies to legacies and devices. Even if the article
itself is cited and you cannot see any references to a legacy or
device, but, this should apply only to a legacy or devise. So, if
you are given a certain property, anything which is added in
that property will not be included in your legacy or devise.
Problem: I hereby give to my cash in HSBC. The will is
executed in 2005 and in that time, the cash is P100K.
Assuming there are additional deposits worth P100K in that
account and the testator died in 2010 having P200K all. At the
time of the death of the testator, how much can the legatee
claim? Can he claim the P200K because the testator says "my
cash in HSBC" which is now P200K?
No. That would only be limited to that which exists at the time
of the execution of the will and anything added will not be
included. This is the general rule.
It cannot apply to an inheritance because if it is an
inheritance, the heir is instituted to an aliquot share, a
fraction, a portion, an ideal share.
Problem: If the testator says, I hereby institute to A, ¼ of my
estate. So A is an heir. For example, the value of the estate at
the time of the will is P1Million and the will is executed in
2005 and ¼ of which is P250K. Assuming the testator died in
2010 and the value of the property at time is already
P2Million, how much will be the share of A? Having instituted
with only ¼ of the estate, is it only P250K (¼ of P1M) or
P500K (¼ of P2Million)?
As an heir, he steps into the shoes of the decedent or
testator. He represents the juridical personality of the testator
acquiring his rights, properties and obligations. So, he cannot
be limited to a certain property. In that case, the value of the
inheritance will be the value or amount at the time of death.
So, he receives P500K (¼ of P2Million). This is the difference
between a legacy/devise or an inheritance. The legacy or
devise is covered by Article 793 and inheritance is not since in
the latter, you are instituted to the universality or the aliquot
share, a fraction, a portion, an ideal share etc and it is not
covered by Article 793.
The following are the EXCEPTIONS to Article 793:
1. From the article itself: When it expressly appears in
the will that the intention of the testator is to give
to such legatee or devisee the addition. If he
provided in the will that I hereby give to A my lot in
Calinan, Davao City and all accretion, addition, etc that
likewise pertain to it. In this case, there is an express
intention appearing in the will.
2. Article 836: The execution of a codicil referring to a
previous will has the effect of republishing the will
as modified by the codicil.
3. Article 930: The legacy or devise of a thing
belonging to another person is void, if the testator
erroneously believed that the thing pertained to
him. But if the thing bequeathed, though not
belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the
disposition shall take effect.
4. Article 935. The legacy of a credit against a third
person or of the remission or release of a debt of
the legatee shall be effective only as regards that
part of the credit or debt existing at the time of
the death of the testator. In the first case, the estate
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
shall comply with the legacy by assigning to the legatee
all rights of action it may have against the debtor. In the
second case, by giving the legatee an acquaintance,
should he request one. In both cases, the legacy shall
comprise all interests on the credit or debt which may be
due the testator at the time of his death.
(Note: The other exceptions will be explained as we go on
with this subject)
We already mentioned about Article 781 which is another
concept of after acquired properties. It provides:
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.
Distinctions of Article 781 and Article 793:
In Article 781, properties which are added to or accrue after
the death of the decedent are included in the inheritance,
device or legacy. It speaks of addition after the death of the
testator. Upon death, ownership is already passed on to the
heir, devisee or legatee. Being the owner, whatever accrues
or added to the property by rights of accession also or those
which are added to or incorporated. On the other hand, in
Article 793, properties, existing or added to after the
execution of the will, are not part of the legatee or devise.
Problem: The testator owns a building which was leased to
third parties. In 2010, the testator executed a will giving or
devising to A the building, so there are rentals (income). In
2012, the testator died. Prior to his death, there are unpaid 1
year rentals. Take note, after his death, the building will be
given to A. From the time of death of the testator, ownership
will be vested to A as devisee.
Since the building was being rented, can A eject those who
are renting? No, due to the transmissibility of obligations, in
which case, he acquires the obligation to respect the lease.
So, he cannot eject except for other compelling reasons.
Problem: He did not eject and there were not-paying renters
for 1 year and after the death of the testator, A owns the
building. Even giving a grace period, still, the renters failed to
pay for another 1 year after the death. But later on, they were
able to pay in cash worth P2 Million, good for 2 years.
Who is entitled to the rentals? Take note that the rentals were
paid 1 year after the death of the testator but those rentals
were due during the lifetime or before the death of the
testator and other were due after the death of the testator.
Will A own it all or he receives nothing?
In this case, we need to make a distinction. With respect to
the rentals which accrued during the lifetime of the testator,
Article 793 is applicable and these are not included in the
devise. These are incomes which accrue after the execution of
the will, during the lifetime or before the death of the testator.
As such, these shall accrue to the estate of the testator since
it is not indicated in the will that the same will be given to his
legal heirs. Now with respect to the rentals which accrued
after the death of the testator, the rentals will pertain to the
devisee because at the time of death, A becomes the owner
of the building and whatever accrues therefrom will be
received by the owner, not only the 1 year but all incomes
starting from the time of death. The latter case is the
application of Article 781.
Article 794. Every devise or legacy shall cover all the interest
which the testator could device or bequeath in the property
disposed of, unless it clearly appears from the will that he
intended to convey a less interest. (n)
Ad Majorem Dei Gloriam
Here, the law presumes that if you give to A the land, you are
giving to him all your interest to the land. If you are the
owner of the land and you will just mention that I hereby give
to A my land, then, you are giving your entire land to A as the
provisions says, all the interest which the testator could device
or bequeath in the property disposed of.
Problem: The testator only owns ½ of the land. In his will, he
states that “I hereby give to A my land in Calinan, Davao
City”. The land consists of 10 hectares but the testator owns
only a half of it. How much can a devisee claim upon the
death of the testator?
General Rule: only that which belongs to the testator so all
the interest which the testator could have over the property
which is only ½.
Here, the law states “every devise or legacy”. Does this also
apply to an inheritance? Yes because when you inherent
something, you inherent everything that the testator had in
the property.
Exceptions:
1. Unless it clearly appears from the will that he
intended to convey a less interest; Even if the
testator owns the entire land, he can just provide in the
will that he is giving, for instance, ¾ to the legatee or
devisee. Here, there is a clear intention to convey a lesser
interest. So he can convey a lesser interest.
2. He can also convey a greater interest (Article 931);
For example, he owned only ½ of the land in Calinan,
Davao City but in his will, he is giving the entire land. Can
he do that? Yes as long as he indicates in his will, for
instances, he put that he only own ½ of the interest in
the land in Calinan, Davao City but he is giving the entire
land to A.
In this case, it is very clear that he is giving the entire
land to A. So how can he give the entire land when he
only owns ½? There is now an implied instruction to the
estate that upon the death of the testator, the estate will
acquire the remaining interest from the other owners and
the balance will be given to the devisee.
What if the remaining owners refuse to sell their shares
or if they are willing to sell, they are demanding for an
excessive price, what is now the obligation of the estate?
The obligation of the estate is to give to the devisee the
just value of the land. Take note, the testator knows that
he does not own the entire property, but despite that, he
still give it. Here, there is an implied instruction.
3. The testator can even convey properties which he
knows, did not belong to him (Article 930 and 931)
by ordering that the property will be purchased
and be given to the legatee our devisee. Even
though he does not own the property, he can convey as
long as during the disposition, he knows that he is not
the owner but despite that, he still give property to the
devisee or legatee. How can it be given when he was not
the owner at the time of making his will and even at the
time of his death? How can that be made effective?
Again, there must be an instruction to the estate to
acquire the properties and give the same to the devisee.
The same thing also if the owners refuse to part the
property or demand excessive price, in which case, you
just give to the devisee the just value of the thing.
Article 795. The validity of a will as to its form depends upon
the observance of the law in force at the time it is made. (n)
When you say validity of the will as to its form, what kind of
validity are we talking about here? Extrinsic validity which
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015

means the formalities in the execution of wills
depending of the kind of will.
What are the two kinds of validity of wills? Extrinsic and
intrinsic validity.
Intrinsic validity refers to the substance of the will or
legality of the provisions in the instrument or will.
Question falls under the intrinsic validity:
 If there are omitted heirs in the will;
 Whether or not certain heirs are qualified to inherit;
 Whether or not there is valid disinheritance;
 Distribution, liquidation, etc of properties
How can you explain Article 795? The formalities or
solemnities of a will depend on the law in force at the time of
the execution of the same and not at the time of the death of
the testator or even of the date of probate. Example is when a
testator made a holographic will during the time that it is not
yet recognized or allowed, since the law at the time of its
execution disallows it, the said will is void.
(A) FORMAL OR EXTRINSIC VALIDITY –
When we talked about extrinsic validity, we have two
viewpoints: as to time and as to place or country. Now, Article
795 refers to the extrinsic validity from the viewpoint of time.
1) FROM THE VIEWPOINT OF TIME
When the will made, how do we know that it is valid as to
form? The law says, it depends upon the law enforced at
the time of the execution of the will.
(old Civil Code) and the same does not require
acknowledgment. Thus, even if his will is not
acknowledged, the will is still valid as the validity of the
will depends upon the law enforced at the time of its
execution (Article 795). Even when he died and the New
Civil Code requiring acknowledgment took effect, it does
not invalidate the will which was already valid. The
principle here is that the legislature cannot invalidate a
valid will.
We have discussed that extrinsic validity can be viewed
on the viewpoint of time. To determine whether or not
the will is valid as to form, the testator must comply with
the law enforced at the time of the execution of the will.
2) FROM THE VIEWPOINT OF PLACE OR
COUNTRY
This view pertains as to where the testator executes the
will because the testator may execute the will here in the
Philippines or abroad. This answers what law will govern
if he makes a will abroad or if the testator is a foreigner
since these are dependent on where he executed the will.
Here, you should consider who is the testator and where
did he make the will. If you are asked, what laws govern
the extrinsic validity of the will? You do not answer Article
795 since it also speaks of extrinsic validity from the
viewpoint of time.
In extrinsic validity from the viewpoint of place or
country, we have several laws that govern:
(i) Article 17 of the New Civil Code: Law of the
Place of Execution

Reasons to Comply with the Formalities: Why is it Article 17. The forms and solemnities of
reckoned based on the law enforced at the time of the contracts, wills, and other public instruments
execution of the will? shall be governed by the laws of the country in
 The testator cannot possibly predict what laws shall which they are executed.
govern the future so it is sufficient that he follows When the acts referred to are executed before
the law enforced at the time of the execution of the the diplomatic or consular officials of the
will; and Republic of the Philippines in a foreign country,
 The formalities are intended to prevent fraud, the solemnities established by Philippine laws
perjury, vitiated consent, etc in the execution of the shall be observed in their execution.
will since these (fraud, perjury, vitiated consent) are Prohibitive laws concerning persons, their acts
present at the time of the execution. or property, and those which have for their
object public order, public policy and good
ENRIQUEZ vs ABADIA customs shall not be rendered ineffective by
In this case, it is noted that before the New Civil laws or judgments promulgated, or by
(effective only in 1950), holographic wills are not determinations or conventions agreed upon in a
allowed. Here, the testator made a holographic will in foreign country. (11a)
1923 at the time where it is not yet recognized. The
testator died (before effectivity of New Civil Code) but Testator Place of Governing Law
his will was probated after the effectivity of the New Execution
Civil Code. Can the will be probated considering that at
the time of probate, holographic wills are already Philippines Philippine Laws
allowed? So the answer is on Article 795. If the testator according to Article
complies with the law enforced at the time of the 17 of NCC, Par 1:
execution of the will as to form, then the will is valid, Law of the place of
otherwise, the will is void as to form. Here, when he execution (Lex
made the will, holographic wills are not yet recognized, Loci
therefore, making it void. It remained to be void Celebrationis)
notwithstanding the fact that when the will is presented
on probate, holographic wills are already recognized. A Abroad Philippine Laws
void will remains to be void and Congress cannot according to Article
validate a void will. By passing a law, Congress cannot (before
17 of NCC, Par 2.
validate a void will (which is void at the time of its diplomatic or
execution). consular Reason: Diplomatic
office of the or consular offices
When Abaja made his will, it is governed by the old law Philippines) are considered as

Ad Majorem Dei Gloriam

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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015

extended territories formalities observed in his country, or in

so by fiction of law, conformity with those which this Code
the will is deemed prescribes. (n)
FIL made in the
Philippines even if If we have a foreigner-testator executing his will
abroad. abroad, the following laws shall govern:
1. Law of the place of execution (A17)
Abroad Philippine Laws
according to Article 2. Law of the place of residence (A816)
(NOT before
17 of NCC, Par 1:
diplomatic or 3. Law of his country or nationality (A816)
Law of the place of
consular
execution (Lex 4. Philippine laws (Civil Code)
office of the
Loci
Philippines Example: You are a resident of Japan but you
Celebrationis)
are a US Citizen making a will in Africa. What
Example: A Filipino laws should you apply? The law of the place of
executing will execution which is Africa, the law of the place of
which is valid in residence which is Japan, the law of his country
US, it is also valid or nationality which is USA and the Philippine
in the Philippines. laws.

Alien Abroad Laws of the place

of execution
according to Article
17 of NCC, Par 1:
(Lex Loci
Celebrationis)
(ii) Article 815 of the New Civil Code: Filipino in
a Foreign Country Executing his Will Abroad
Article 815. When a Filipino is in a foreign
country, he is authorized to make a will in any
of the forms established by the law of the
country in which he may be. Such will may be
probated in the Philippines. (n)
The law says “the law of the place where he
may be”. Essentially, it is the same with Article
17 since the place he may be is the place of
execution. You cannot separate the two like you
are in the US and you are executing the will in
Singapore. It is physically impossible.
Take note that Article 815 uses the word
“authorized”. This implies that there is another
law which he has to follow as a general rule but
he is also authorized to follow the law of the
place which he may be. The law which he has to
follow as a general rule is the Philippine law
since we are talking about a Filipino but he is
also allowed to follow the law of the place which
he may be.
(iv) Article 817: Alien Testator Executing his Will in
the Philippines
Article 817. A will made in the Philippines by a
citizen or subject of another country, which is
executed in accordance with the law of the
country of which he is a citizen or subject, and
which might be proved and allowed by the law
of his own country, shall have the same effect
as if executed according to the laws of the
Philippines. (n)
If a foreigner testator executing his will in the
Philippines, the following laws shall govern:
1. Law of the Place of Execution (A17)
2. Law of his Country of Nationality (A817)
Under this article, in executing a will, he may
comply with the formalities the law of the
country of which he is a citizen and the said will
is valid as to form here in the Philippines.
(B) INTRINSIC VALIDITY –
Like the extrinsic validity, intrinsic validity can be viewed from
the viewpoint of time and place or country.
1. FROM THE VIEWPOINT OF TIME
a) Article 774 of the NCC

If we have a Filipino testator executing his will

Article 774. Succession is a mode of
abroad, the following laws govern as to the
acquisition by virtue of which the property,
extrinsic validity from the viewpoint of place or
rights and obligations to the extent of the value
country:
of the inheritance, of a person are transmitted
1. Law of the place of execution (A17) through his death to another or others either
by his will or by operation of law.
2. Law of the place where he may be (A815)
3. Philippine laws (general rule)
b) Article 2263 of the NCC
(iii) Article 816 of the New Civil Code: Alien
Article 2263. Rights to the inheritance of a
Testator Executing his Will Abroad
person who died, with or without a will, before
the effectivity of this Code, shall be governed
Article 816. The will of an alien who is abroad
by the Civil Code of 1889, by other previous
produces effect in the Philippines if made with
laws, and by the Rules of Court. The
the formalities prescribed by the law of the
inheritance of those who, with or without a will,
place in which he resides, or according to the
die after the beginning of the effectivity of this

Ad Majorem Dei Gloriam

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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
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 bequests
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.
Based on Article 2263, what law governs the
intrinsic validity of will as to the viewpoint of
time? If a person dies, whether with or without a
will, before the effectivity of the NCC, then,
succession shall be governed by the law before
the NCC. If he died after the effectivity of the
NCC, then, the estate shall be adjudicated and
distributed in accordance with the NCC. Thus,
the law governs is the law exists at the time of
the death.
When we say intrinsic validity, we are dealing with the
substance and legality of the provisions of the will as these
provisions provide for the disposition of properties, who are
the heirs, what properties are to be given, etc or basically, the
transfer of properties to the heirs, legatees or devisees and
the transfer will happen only upon death. That is why it is
the time of death is the reckoning point because that
is only when the transfer happens and the vesting of
rights to the heirs.
Problem: Assuming that the testator made a will in 1940 and
in his will, he omitted his illegitimate child. Under the old Civil
Code, there is no recognition of successional rights of
illegitimate children but under the NCC, illegitimate children
are already recognized. Under the NCC, the omission is
allowed (called Preterition).
Is that will intrinsically valid? Considering that the law applies
is the existing law at the time of the testator’s death, if he
died before the effectivity of NCC, the will is intrinsically valid.
But if he died after the effectivity of the NCC in which the
omission is not allowed, the will is not intrinsically valid. You
have to consider the time of death. Even if the will is made in
1920 before the effectivity of NCC when preterition is not
allowed, it does not matter because we are talking about
intrinsic validity and the reckoning point is 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. (10a)
The first paragraph speaks of the general rule so if
you have real property and personal property, these
are subject to the law of the place where is it’s
situated.
GR: 1st Paragraph of Article 16 (Lex Situs rule)
EXC: 2nd Paragraph of Article 16
Ad Majorem Dei Gloriam
The exception is the intestate and testamentary
succession with respect to:
1. Order of succession;
2. Amount of successional rights; and
3. Intrinsic validity of testamentary provisions.
In which case, the law which regulates or applies is
the national law of the decedent or the testator.
Whether the provisions of the will are valid, we will
examine his national law. It is much easier because
we will only consider his national law.
Cases:
BELLIS vs BELLIS
A Texas resident executed a will in the Philippines disposing
his properties in the Philippines. The question is whether or
not the will is intrinsically valid (will deprives legitimes to
illegitimate children which in Philippine jurisdiction is not
valid). The Court said yes applying the national law of the
testator who is a citizen and resident of Texas. The Texas law
does not observe successional claims of illegitimate children.
What if it is provided in the will of the testator that the
disposition of the properties is subject to Philippine laws? Is it
valid?
Under Philippine laws, the national law of the person whose
succession is under consideration shall apply. So that
provision should not be followed since it will be contrary to
the law which is Article 16 which clearly provides that the
national law of the decedent should be followed.
If you remember Par 3 Article 17 of the NCC, 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. The system of legitimes is a
matter of public policy here in the Philippines so if you
disregard the provision under out laws on legitimes, it is
tantamount to disregarding our public policy and good
customs involved in that provision. How can we reconcile that
in this case? Whatever public policy and good customs
involved in our system of legitimes clearly by providing under
Article 16 that the national law of testator shall apply, the
Congress does not extend such rule to succession as far as
the properties of foreign nationals.
Specific provisions shall prevail over general provisions. Article
17 is a general provision and Article 16 is a specific provision.
LLORENTE vs CA
Here the decedent was a Filipino but became an American
citizen. Again, he made a will and died. At the time of his
death, he is already a foreigner. What law shall govern?
Applying Article 16, the national law of the decedent.
PCIB vs ESCOLIN
The law which should govern is the Texas law which is the
national law of the testator. How do we know the contents of
the foreign law? Does our court take judicial notice of their
laws? No. The court does not take judicial notice and the
court should ask the person invoking the said law to allege
and prove the said foreign law.
What are the exceptions?
1. When our courts have actual knowledge of foreign
laws; and
2. When it was ruled upon in other cases by the court
and none of the parties prove otherwise.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
MICIANO vs BRIMO
In the partition made by the testator in his will, there was an
opposition alleging that the said partition is not in accordance
with the Turkish Laws. Further, it was alleged that the Turkish
law should be applied considering that the testator is a
Turkish citizen at the time of his death. However, the laws of
Turkey were not presented in court. Thus, the doctrine of
processual presumption applies.
In the absence of proof of foreign [Turkish] laws, it is
presumed that it is the same with our [Philippine] laws.
In this case, the applicable law is the Philippine laws in the
absence of proof or even presentation of Turkish laws.
ANCHETA vs GUERSEY-DALAYGON
This is a disciplinary case against Atty. Ancheta. Audrey and
Richard were American citizens and the wife died leaving
substantial properties to her husband. Richard remarried in
the Philippines and left his properties in his wife in the
Philippines upon his death. Audrey’s will is probated in
Maryland and in that procededing, Ancheta is named as
ancillary administrator. When Richard died, the will of Audrey
(bequeathing properties to Richard) needed to be probated in
the Philippines. During the proceeding in the Philippines,
Ancheta made a project of partition and the same was
opposed by Candelaria (2nd Filipina wife) being contrary to US
laws and contravenes certain provisions in Audrey’s will.
According to Ancheta, he made the project according to
Philippine laws having no knowledge of US laws. Using the
doctrine of processual presumption, US and Philippine laws
are deemed the same absence of any proof.
Was Atty. Ancheta justified in saying that he merely presumed
that Philippine laws apply? No. First, his office was also a
participant in the US, being an ancillary administrator. When
Audrey’s will is probated in the US, he already knew US laws.
Second, being a senior partner in a prestigious law firm with a
large staff and legal library, he has all the resources to
determine the competent law. It is incumbent upon him to
exercise his functions as ancillary administrator with
reasonable diligence and to discharge the trust repose against
him faithfully. Unfortunately, he failed to perform his fiduciary
duties.
The Court added that how could Ancheta honestly presume
that Philippinbe laws apply when as early as the reprobate of
Audrey’s will before the trial court in 1982, it was already
brought to fore that Audrey is a US citizen, domiciled in the
State of Maryland.
The Court does not apply presumption due to the
circumstances of the case.
TESTATE ESTATE OF SUNTAY
The probated will in China cannot be reprobated in the
Philippines in the absence of proof of foreign laws [China].
The matters which will be proved are:
1. That the foreign court [in Amoy, China] is a probate
court;
2. That the law of country and the procedure of probate
are complied with; and
3. That legal requirement for execution of a valid will is
complied with in that country.
In the absence of proof, there is no presumption that such
foreign laws are the same with Philippine laws. Thus, the will
should be denied probate.
The doctrine of processual presumption does not apply here
since it was not proven that the Rules of Court of China is the
same with the Philippines. Unlike in Miciano vs Brimo, the
Ad Majorem Dei Gloriam
matter is on substantive law which is on the intrinsic validity
of the will. Here, the procedure and the legal requirements
are considered.
July 20, 2015 (GG)
So last meeting… I think we discussed the case of Suntay. So
we are still in the intrinsic validity of wills from the view point
of place or country. Again, to review what we discussed last
time, when it comes to the intrinsic validity from the view
point of time, we reckon the law in force at the time of death
because it is when the transmission happens.
So when you say intrinsic validity, we are referring to the
legality of the provisions in the will, the contents of the will,
like whether or not the legitime of an heir has been impaired,
or when a person is qualified to inherit from the testator,
whether or not there is preterition, whether or not certain
properties are owned by the testator, questions of filiations,
so these are the matters leading to the intrinsic validity of the
will.
From the viewpoint of place or country, the law that governs
would be the national law of the testator, or the person whose
succession is under consideration. So it does not matter if the
properties are situated in Africa, in the Philippines, China,
what we look at would be the national law of the testator.
Now in the case of Miciano vs. Brimo, we also learned that the
application of the doctrine of processual presumption,
although theoretically it should be the national law of the
testator (here a Turkish national), so it should have been his
national law.
We also discussed in the case of PCIB vs. Escolin, our courts
do not take judicial notice of foreign law, these foreign laws
must be alleged, pleaded, and proved like any other fact,
although there are certain exceptions. Going back to the case
of Miciano, in that case, in the absence of proof, the SC
applied the doctrine of porcessual presumption, that the laws
of Turkey are the same as the laws of the Philippines, so we
apply Philippine law.
Testate Estate of Christensen vs. Garcia
Here under the California Civil Code, the testator may dispose
of his property in any manner he desires.
So in that case, our law said that it should be his national law.
But in his national law, they have two separate provisions, the
California Probate Code and the Article 946 of California Civil
Code. What will govern is Article 946 of the Civil of California,
which says the law of the domicile which is the Philippines.
But again, our law provides (Art. 16 of the NCC) that
California laws will apply, his national law.
So what will govern? When they refer back, we no longer
back to Article 16 since it will point us to the national law of
the testator.
So we go now to the internal law of the Philippines on
succession, the legitimes, the distribution of property. We do
not go back to Article 16 (which is not an internal law being a
conflict of law rule), since in that case, the SC said, the matter
will just be tossed back and forth like international football or
pingpong incapable of final determination.
So what do you call that doctrine? We call that RENVOI
DOCTRINE. Renvoi Doctrine was applied in this case, we apply
the internal law of the forum, the Philippines. So what law
was applied here is not anymore the national law of the
decedent. Even if Article 16 says that the intrinsic validity of
the will shall be governed by the national law of the decedent,
but because of the application of Renvoi Doctrine, ultimately,
it is still Philippine law that is applied.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Specifically we have Articles 887 894 of the New Civil Code,
which was applied here by the SC.
What are these 2 instances when even if Article 16 say that it
is the national law of the decedent that should govern the
intrinsic validity of the testamentary provisions but you still
apply Philippine laws?
1. When the Renvoi Doctrine applies, as held in the case
of Christensen vs. Garcia; and
2. When what applies is the Doctrine of Processual
Presumption as held in the case of Miciano vs. Brimo.
Okay, so that would be for the extrinsic and intrinsic validity of
wills. So now we go to testamentary capacity and intent.
When you say testamentary capacity, we are referring to the
qualifications, in general, of the testator to execute a will. For
a person to be qualified, there are two qualifications, which
we will discuss.
Now what about testamentary power? What does it mean?
We are referring to that grant by the State to the person to
execute the will. There is no particular definition of
testamentary power, actually, these two terms are used
interchangeably under the new Civil Code, but if you are to be
technical about it, there is distinction.
When you are saying testamentary capacity, you are referring
to the qualification of a person. When we speak of
testamentary power, it refers to the grant of the state.
Examples:
WITH TESTAMENTARY POWER BUT NO
TESTAMENTARY CAPACITY – So if you say if a person is of
sound mind but is a minor, he does not have testamentary
capacity. So in that case, how can he have testamentary
power? Under the Civil Code, the privilege is given. So, all
persons here have testamentary power since we are covered
by the Civil Code. But even if he has testamentary power he
may not have testamentary capacity being a minor.
WITH TESTAMENTARY CAPACITY BUT NO
TESTAMENTARY POWER – You be of sound mind or you
may be of age but your country does not give you the
privilege to execute wills, so you don’t have testamentary
power. But again that’s just the technical definition. If you are
asked to distinguish the two, you answer that. It is not an
excuse that they can be used interchangeably. But, when we
discuss testamentary capacity and testamentary power later,
they refer to one and the same thing.
Subsection 2. - Testamentary Capacity and Intent
Art. 796. All persons who are not expressly prohibited by law
may make a will. (662)
It gives us who can execute wills. Based on the definition, the
GR is capacity because it says “all persons who are not
expressly prohibited by law”, so as long as you are not
prohibited by law, you may execute wills.
The law says persons, we have 2 kinds of persons in general,
we have natural persons and juridical persons. Now when
Article 796 speaks of persons, are we referring to both kinds
of persons? No. JURIDICAL persons cannot execute wills
because they are NOT qualified. They cannot have sound
mind because they do not have physical existence. So only
natural persons can execute wills. Juridical persons cannot be
testators, but they can be heirs in testamentary succession
Ad Majorem Dei Gloriam
which we will discuss later on. Although in legal succession, a
state can also be an heir.
Art. 797. Persons of either sex under eighteen years of age
cannot make a will. (n)
It gives us the disqualification. If you are under 18 years of
age, you cannot make a will. So if you are at least 18 years of
age, you can make a will. There is no specific requirement,
like female or male, either sex.
So now let us go to the meaning of 18 years of age. There are
3 theories in the meaning of 18 years of age:
1. Theory under the Spanish Law – the 18th
birthday should have passed or should have
commenced before one can make a will. Like if your
18th birthday is July 20, 2015, if you are born 2PM,
should it mean that in the morning of July 20, you
are still not 18? No, as long as July 20 has arrived
(by 12 midnight), you are already 18 and you may
now execute a will under the Spanish Law.
2. Theory under the American Law – it is sufficient
that the day preceding one’s birthday had already
commenced. Example, now is your debut, yesterday
you may have executed a will.
3. Theory under the New Civil Code – Under this
theory, you are already 18 years old, 4 (four) days
prior to your 18th Birthday, you are already 18 years
old because for the computation of time under the
NCC, 1 year has 365 days. If you say 18 years old,
there should be 18 x 365 days. But there is a leap
year once every 4 years. In a leap year, there is 366
years. In 18 years, there will be 4 leap years. There
are 4 instances where a years has exceeded 366
years. So that is why you are 18 years old, 4 days
prior to your 18th birthday. Now, (for instance) when
a person enters into a contract and later on claim
that he is a minor, you’re not a minor because you
signed the contract 2 days before your birthday, you
are already 18 years old 4 days before your birthday
under NCC. Or if you have been accused of a crime
like seduction and etcetera, you are not a minor, so
you can use that.
In succession, what theory do we follow? We follow the
theory of Spanish Law because our law in succession has its
origin in Spanish law, so we follow it. So you can execute a
will on the day of your birthday as long as you’re 18th birthday
has commenced.
Art. 798. In order to make a will it is essential that the
testator be of sound mind at the time of its execution. (n)
Art. 799. To be of sound mind, it is not necessary that the
testator be in full possession of all his reasoning faculties, or
that his mind be wholly unbroken, unimpaired, or unshattered
by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act. (n)
Remember Article 799. So this gives us the definition of what
is a sound mind. The first paragraph of 799 is the negative
definition of soundness of mind. So it is not necessarily 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. So meaning, bisag naa kay
gamay, okay lang, because you do not need a perfectly
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
balanced mind for you to be considered of sound mind for the
purpose of executing a will. Okay, so that’s the first definition.
So a person suffering from a civil interdiction. Can that person
execute a will? Is he of sound mind? Is he of legal age? So,
mao ra na siya ang tan-awon. What is Civil Interdiction, in the
first place? That’s defined under the RPC:
Art. 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 you cannot manage your property and etcetera, but you
can execute a will, because the law only prohibits conveyance
inter vivos. Last will conveys a property mortis cause. So
that’s the meaning. In fact, in the RPC:
Art. 82. Notification and execution of the sentence
and assistance to the culprit. The court shall designate a
working day for the execution but not the hour thereof; and
such designation shall not be communicated to the offender
before sunrise of said day, and the execution shall not take
place until after the expiration of at least eight hours
following the notification, but before sunset. During the
interval between the notification and the execution, the
culprit shall, in so far as possible, be furnished such
assistance as he may request in order to be attended in his
last moments by priests or ministers of the religion he
professes and to consult lawyers, as well as in order to make
a will and confer with members of his family or persons in
charge of the management of his business, of the
administration of his property, or of the care of his
descendants.
Even a person on death sentence, he can also execute a will,
he is given an opportunity to make his last will and testament.
How about spendthrifts or prodigals under guardianship, can
they execute will? As long as they are of sound mind and of
legal age. So, just remember those qualifications. Now, as we
discussed before it is easy to determine whether a person is
18 years of age. Now, how about whether or not a person is
of sound mind? Because again based on the definition of 799,
bisag naa kay gamay, pwede ka mahimong sound mind, you
don’t need to have a perfectly balanced mind.
It is more important to remember the second paragraph of
Article 799. This is the positive definition of soundness of
mind. So, I suggest if you are confronted of a problem in our
exam, you are asked to determine whether or not the testator
there is of sound mind, you examine or evaluate whether or
not he is qualified based on the guidelines provided under the
second paragraph of article 799. So what are these
guidelines?
1. You must know the nature the estate to be
disposed of. So he must have the sufficient recollection
of his properties and comprehend their kind, character,
and quality in general. So meaning, at least he has ideas
what his properties are. That he has buildings in Claveria,
a lands in Tagum, or cash in several banks. Though he
may not know how many stories his buildings are, how
many hectares his lands, or how much exactly is his cash.
Normal persons are not expected to memorize that like
the title number of lands. At least, you know your
properties. [properties]
2. The testator must know the proper objects of his
bounty. So he must know those persons who would
naturally have a claim upon him. Like your children, you
are morally obliged to provide for your children. If you
forgot you have your children, you did not know. You
Ad Majorem Dei Gloriam
made a will under a state of mind, you are not considered
to be of sound mind because you do not know the proper
objects of his bounty. Had you known or remembered,
you would have provided them with something in your
will. So you have not given your entire property to your
neighbors. [persons]
3. The testator must know the character of the
testamentary act. So this is equivalent to animus
testandi. He must know the legal consequences of this
act, that I am executing a last will and testament and I
intend to transfer properties covered in this last will to
these persons enumerated in the last will and this will
take effect upon my death. So you should know the
character of the testamentary act. [animus testandi]
So all of these requisites must be present. If you answer a
question, you should examine based on each of the requisites
and then you conclude WON the testator is of sound mind,
even if your conclusion is not correct you will be given points
since you know the requisites.
Now we go to cases which illustrate WON the testator has
testamentary capacity.
Neyra vs. Neyra
The issue here is WON a person with Addison’s disease has
sound mind? Does it affect soundness of mind, among others?
When you say Addison’s disease or sleeping sickness. The SC
said that sleeping refreshes the mind, so a person with
Addison’s disease is not necessarily of unsound mind. They
receive the benefit of physical and mental rest.
Bagts vs. Paguio
Even if he was suffering from paralysis, he could not speak,
he could not hear, but still the SC said he was of sound mind,
basing on the first definition of soundness of mind in Article
799.
Torres vs. Lopez
Senile dementia, it’s like Alzheimer’s disease, forgetful. As
long as it is not complete, that he could still comply with the 3
requisites in 799, then there is still soundness of mind. The
fact that a person is under guardianship is not conclusive of
his mental condition. Remember that a person can be placed
under guardianship not only because of insanity, you may be
placed under guardianship because of prodigality, or age. So it
is not conclusive of the mental condition of a person under
guardianship. Remember, senile dementia only when it is
complete.
Baltazar vs. Laxa
Being forgetful or “magulyan” is not equivalent to
unsoundness of mind. When the SC examined the will of the
testatrix, the 3 requisites under 799 are still present. She
requested that the customs of her trade be observed upon her
death, she was well aware of how she acquired her
properties, and she knows to whom who shall give her
properties. In that case, the SC confirmed that the testatrix
was still of sound mind.
Now, there are other defects like, in the case of:
Sancho vs. Abella
Neither senile debility, nor blindness, nor deafness, nor poor
memory, is by itself sufficient to incapacitate a person for
making his will.
The mere fact that in her will Matea Abella disposed of
properties, which she had already donated to other persons at
a prior date, is not an indication of mental insanity. At most it
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
constitutes forgetfulness or a change of mind, due to
ignorance of the irrevocability of certain donations.
Alsua-Betts vs. CA
Mere weakness of mind or partial imbecility from disease of
body or from age-does not render a person incapable of
making a will.
Avelino vs. Dela Cruz
Is a blind person of sound mind? YES. In fact under Article
808 of the Civil Code, a blind person is recognized as having
the capacity to execute a will, although there are additional
requirements for a blind person. But, he can execute a will.
If you have an epilepsy, do you have soundness of mind? Yes.
As long as you comply with the three requisites. Your body
does not have to unshattered by disease, injury, or other
sickness, as long as you did not execute a will during the
attack, otherwise, that is very incredible, it cannot be
executed of sound mind.
In the case of Insomia, TB, Diabetes, Cholera, old age, **,
violent temperament, passions and prejudices, they do not
affect soundness of mind. Unless, passion and prejudice
border on delusion.
Drunkenness and Drug addiction, will these affect soundness
of mind? Drunkenness, he may be considered of sound mind if
sobra sobra iyahang pagka hubog bisag dili siya buang. You
don’t have to have a perfectly balanced mind, but also you
don’t need to be totally insane to be considered of sound
mind. As long as you comply with the 3 requisites, then you
are not of sound mind. How about drug addiction? Siguro
kanang mga naka drugs na ka afford na mang rape og mga
lola, mao siguro na nga state of mind, that is unsound.
How about coma? Dili siya insane but he is in coma. If the will
was found to be executed at the time the testator was in
coma, then it cannot be valid, because that person, at that
time, was not of sound mind. Now, according to IQ? At least,
we can quantify if you are of soundmind base on you IQ.
There are three groups according to IQ:
1. Idiots – IQ average would be 25. There are
described to be congenitally and intellectually
deficient. They cannot take care of their body needs
and they cannot even be trained. They cannot
execute wills as they are not of sound mind.
2. Imbeciles – IQ average 26-50. They are mentally
deficient due to disease. They can be trained to take
care of their bodily needs only. They cannot execute
wills. They are considered to be of unsound mind.
3. Morons – IQ average 51-70. So they can learn
reading, writing, simple math. They can be self-
supporting. They can execute wills, their IQ is
sufficient to comply with the 2nd requisite of 799.
Torres vs. Lopez
The SC said that each case rest on its facts and must be
decided by its own facts.
Therefore, there is really no hard and fast rule on whether this
person is of sound mind or not. But, at least, jurisprudence
would be your guide. Also, the requisites under article 799.
You can easily refer to these.
Art. 800. The law presumes that every person is of sound
mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind
at the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one
Ad Majorem Dei Gloriam
month, or less, before making his will was publicly known to
be insane, the person who maintains the validity of the will
must prove that the testator made it during a lucid interval.
(n)
General Rule: Soundness of mind. Every person is of sound
mind as a presumption, in the absence of proof to the
contrary.
So what is the consequence of this presumption? If you are
the proponent of the will, meaning you presented the will for
probate, you don’t have the obligation to prove that the
testator is of sound mind when he executed the will since it is
presumed.
But if you are the oppositor, and your ground is the
unsoundness of mind of the testator at the time he made the
will, you have to prove that.
The quantum of proof required is clear and convincing
evidence. It is actually one degree lower than proof of guilt
beyond reasonable doubt, one degree higher than
preponderance of evidence. Lowest is substantial evidence.
Exceptions: There is an instance mentioned in Art800 when
the presumption is unsoundness of mind. So the moment you
filed for petition, testator is presumed unsound mind not of
sound mind. So you, being the one who filed the petition,
should prove first that the testator is of sound mind at the
time he made the will. What would be this situation?
1. If the testator was publicly known to be
insane one month, or less before making his
less. If it is more than one month, it is not anymore
covered by the provision. Take note, publicly
otherwise, there is no presumption, although you can
prove that he is insane.
2. When the testator was judicially declared
insane before the execution of the will. Like in
guardianship on the ground of insanity, here, there is
a court declaration that the ward is insane. Although,
as we discussed in Torres vs. Lopez, it is not
conclusive of the fact that the person is under
guardianship he is of unsound mind. Again, unless
the ground was for insanity. Then the presumption
would be unsoundness of mind. So if the
presumption is in reverse. However, you can prove,
as the proponent, that the testator is of sound mind
when he executed a will by clear and convincing
evidence.
3. Presumption under the Rules of Court, an
insanity of a general or permanent nature
which is showed to have existed at one time is
presumed to have continued. Rule 131 Section
3 (ee). If, for example, from the beginning, that is
really your nature. When you were 2 years old you
were an idiot, until you became 5 until 21 years old.
The presumption is you are still an idiot. So the
proponent of the will has the burden of proof that
you are of sound mind when you executed the will.
But this is just a presumption, this could be
overturned.
Now, we go to the evidence required to prove soundness of
mind. What are admissible evidence to prove soundness of
mind? In the case of:
Ramirez vs. Ramirez
In so far as the soundness of mind of the testator is
concerned, we have the testimony of the notary of the public
as one of the admissible evidence. As a general rule, that
testimony is given great weight. However, in this case, the
testimony of the notary public was not given weight. The
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
notary public was evasive, he could not commit himself he
was referring only to the certification to that effect, so that
was not given weight by the SC.
How about the testimony of the attesting witnesses, we are
referring here to a notarial will because there are no witnesses
when it comes to holographic wills. So the witnesses on the
notarial will are also competent witnesses as to the mental
condition of the testator. How about the attending physician?
We have here:
Samson vs. Corrales Tan
As a general rule, the testimony of the physician is given
highest regard if present when the will as executed. But in this
case, the SC did not give much credit to the testimony of the
physician, instead, it gave more credit to the testimony of the
attesting witnesses who positively testified that at the time
the testator executed the will, he is of sound mind. So they
testified to his mental condition.
Here, the physician is not the attending physician, so he can
only give an opinion to the mental condition of the testator as
opposed to the complete testimonies of the witnesses, the SC
here, again gave more credit to the testimonies of the
witnesses. The testimony of other witnesses may also be
admitted, not necessarily the attesting witnesses but also
those persons who are present at the time of the execution of
the will. So they witnessed the behavior of the testator at that
time, the way he talked, he moves, his demeanor. So they
could testify as to the mental condition.
July 23, 2015 (FJB)
Last meeting, we defined soundness of mind. Again, we have
positive and negative definitions of soundness of mind. The
negative definition is found under the first paragraph of Article
789 while the positive definition is found under the second
paragraph of Article 789.
We also learned under Article 800 that the general rule is as
to the soundness of mind. The burden of proof is upon the
party who alleges that the testator is not of sound mind at the
time of the execution of the will.
We likewise mentioned the three exceptions.
We also mentioned the pieces of evidence which are
admissible to prove the mental condition of the testator at the
time of the execution of the will.
We already discussed before under Article 799 the case of
Baltzar v. Laxa. The state of being forgetful or magulyan,
according to the SC, is not equivalent to unsoundness of
mind. In this case, the SC also discussed the general rule
under Article 800 that every person is presumed to be of
sound mind. You need clear and convincing evidence to
overcome the disputable presumption.
Article 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by the
supervening of capacity. (n)
As already discussed, soundness of mind must exist at the
time of the execution of the will. Supervening incapacity, i.e.
the testator become insane afterwards, does not affect the
validity of the will. In the reverse, what if the testator is not of
sound mind at the time of the execution of the will? Meaning,
he was insane.Then, at the state of his insanity, he made a
will. Subsequently, he became sane again and was able to
read his will executed at the time he was insane, and decided
to retain said will because he was impressed with what he did.
Then he died. Is the will valid? No, because Article 801 says
Ad Majorem Dei Gloriam
“nor is the will of an incapable validated by the supervening of
capacity.”
What if he really wanted to use that will? How can he give
effect to that document as his last will and testament? We
have this procedure called republication. He has to follow that.
It is not enough that he saw his will and decided to retain it.
That, however, is only in theory. In practice, it is very difficult
to prove that the testator was insane and that he was cured
and then decided to adopt his will executed when he was still
insane. Again, republication is required for that will to be
given effect.
Article 802. A married woman may make a will without the
consent of her husband, and without the authority of the
court. (n)
Article 803. A married woman may dispose by will of all her
separate property as well as her share of the conjugal
partnership or absolute community property. (n)
Articles 802 and 803 mention the right of a married woman.
So, a married woman may make a will without the consent of
the husband. Also, she may dispose by will all her separate
property as well as her share in the conjugal partnership or
absolute community without the consent of her husband.
As we have noticed, these articles do not mention about the
right of a married man. Can you say that married men can
make wills without the consent of their wives? Can they
dispose of their separate properties or his share in the
conjugal partnership or absolute community without the
consent of her husband? Yes, even if the same was not
mentioned in the two articles. Why? It is because this is just
in recognition of the right of a married woman.
It has always been recognized since time immemorial that
men can decide without the consent of their wives. Before,
decisions of the wives are dependent upon the consent of
their husbands. Now, it was made clear under the law that the
wives may now make their wills and dispose of the
abovementioned properties without the consent of their wives.
In fact, this was also mentioned under Article 97 of the Family
Code.
Art. 97. Either spouse may dispose by will of his or her
interest in the community property. (n)
That would be with respect to the right of a married woman.
Subsection 3. Forms of Wills
[NOTARIAL WILLS]
Article 804. Every will must be in writing and executed in a
language or dialect known to the testator. (n)
In the Philippines, there are two kinds of wills. What are
these? We have notarial wills and holographic wills. Do we
have other kinds of wills like nuncupative wills? Are they
recognized in the Philippines? When we say, nuncupative
wills, they are wills orally made in contemplation of death in
the presence of witnesses. Are they valid? No, because of
Article 804.
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
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
testator and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence
of the testator and of one another.
So, based on Article 804, every will must be in writing.
Whether it is a holographic will or a notarial will, it should be
in writing. As I have said, nuncupative wills are oral wills.
Therefore, they violate the express provision under Article 804
because they are not in writing. So, they are not valid.
I think you have seen in movies, in teleseryes usually, where
it was shown that the deceased, who is at the verge of death,
bestows orally his properties to his children or orally
disinherits one or some of his heirs. Is that valid? In the
movies, it is valid, but we are not in the movies and this is not
a teleserye. Thus, not valid.
There is no NUNCUPATIVE WILLS in the Philippines. We only
have written wills. The law says “in writing.” What kind of
writing? When it comes to notarial wills, they can be
computerized, typewritten, engraved, in ink, red ballpen, pink,
yellow, etc. It does not matter as long as it is in writing. When
it comes to holographic wills, they must be handwritten by the
testator only. It can be cursive, shorthand, etc. as long as it is
written by the testator. What if the testator has no hands but
he can write through his mouth or his feet? Is that valid as a
holographic will? Well, as long as it is the writing of the
testator.
The second requirement is the language requirement. The
law says it must be executed in the language or dialect known
to the testator. When you say language or dialect known to
the testator, the testator must really understand the language
used in the will. It does not have to be interpreted or
explained because the testator himself, when he made the
will, knew the language.
It is not required for the testator to be an expert or proficient
as long as he understand the language and he could express
himself in that language. It is not even required that the
language used should be uniform- that there should only be
one language used in the will. It is possible that in the first
paragraph, the testator used French. In the second
paragraph, Spanish. In the third paragraph, Bisaya. As long as
he understood the language or dialect used in the will.
With respect to this language requirement, we have
presumption under the law. As a general rule, we have a
presumption that the testator must be of sound mind. Now,
the other presumption is that the language used in the will is
known by the testator, meaning the will is in a language or
dialect known to the testator. That is presumed. What is now
the consequence of having that presumption?
First, the testator does not have to state in the will that it is in
a language or dialect known to the testator although in some
wills, just to be safe, especially in notarial wills, it is provided
that “this will, which is written in English, a language known
to the testator.” This, however, is not a requirement.
Second, it is not also required to be stated in the attestation
clause. When we go to Article 805, there are also items
mentioned there that should be stated in the attestation
clause. The language requirement is not one of those required
to be stated in the attestation clause.
Ad Majorem Dei Gloriam
Third, the fact that the will is in a language or dialect known
to the testator can be proved by extrinsic evidence or
evidence alliunde. So, if the will is silent or it is not provided in
the will that it is in a language or dialect known to the testator
and it is being questioned on that ground, you can present
extrinsic evidence such as letters of the testator written in
French, testimony of the testator’s French friends who only
know French, thus proving that indeed the testator
understands French.
Those are the three consequences of the presumption that
the will is in a language or dialect known to the testator. We
have cases which illustrate the language requirement.
Abangan v. Abangan
Was she a resident of Cebu? No.
So, even if she was not a resident of Cebu but a resident of a
neighboring locality, the Supreme Court said the will was in a
language or dialect known to the testatrix. It was sufficient.
This complied with the language requirement.
If you are a resident of a neighbouring town like Digos and
Davao, it would be very farfetched to think that someone who
is in Digos has not yet gone to Davao.The language are the
same, so they can really understand Bisaya. The language is
also the same in Cebu and Bohol. They have the same
language because of the proximity of their localities.
Reyes v. Vidal
Even if there was no testimony, even if there was no
statement in the will itself that the testator knew the Spanish
language, the records of the case showed that she knew.
What were the circumstances aside from the fact that she was
a Spanish mestiza? She was married to a Spaniard. She wrote
several letters in Spanish. She made several trips to Spain.
These circumstances would show that there was a connection
between the language used in the will and the circumstances
of the testatrix. So, the language requirement in this case was
complied with.
Abada v. Abaja
There was evidence to prove that the testator knew the
Spanish language. Again, what do you call this kind of
evidence? Extrinsic evidence or evidence alliunde. So, there
was evidence alliunde. There were evidence introduced
showing that the testator used to gather with Spanish-
speaking people and in their gatherings, they would speak in
Spanish.
Acop v. Piraso
Where did the testator reside? In the City of Baguio.
Here, why was the presumption that the will is not in the
language or dialect known to the testator not applied?
What happened to that presumption?
What kind of presumption is this? A disputable presumption.
Javellana v. Javellana
What was the language used in the will? Spanish.
Where does the testator reside? In San Juan, Manila.
What was his language or dialect? Bisaya.
Here, the SC said that the presumption did not arise because
again you cannot relate the connection between the testator
and the language used. So, even if you have a presumption,
as held in the case of Acop v. Velasco, it could be contradicted
or rebutted by contrary evidence.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Those are the things that you have to remember insofar as
the language requirement is concerned. Again, you have the
presumption. As a consequence of the presumption, there is
no need to state in the will or in the attestation clause that
the will is written in the language or dialect known to the
testator, and you can present extrinsic evidence or evidence
alliunde to prove that the testator knew the language or
dialect.
But as the cases would show, even if you have the
presumption but you cannot find anything in the facts that
would atleast connect to the circumstances of the testator,
then, it is either the presumption did not arise, or even if it did
arise, it was wholly contradicted or destroyed.
The will, if it is a notarial will, contains the dispositions. After
the dispositions, you have the attestation clause and then
you have the acknowledgement. Is it required for the
testator to know the language used in the attestation clause?
There is no requirement. Why? Because, basically, the
attestation clause is the act of the witnesses, so the testator is
not concerned with the recitals in the attestation clause. He
only has to be knowledgeable of the language in the will.
In notarial wills, at least three witnesses are required. Are
the witnesses required to know the language used in the will?
No. They are only concerned with the attestation clause. The
will is the act of the testator. The attestation clause is the act
of the witnesses. The acknowledgement is the act of the
notary public. Given that the attestation clause is the act of
the witnesses, is there a requirement that the witnesses
should know the language used in the attestation clause?
Ideally, they have to know. What if they cannot understand?
What if the attestation clause is in English and it was merely
explained to the witnesses? Well, an explanation of the
language used in the attestation clause to the witnesses
would be sufficient. That would be insofar as the language
requirement.
When we discussed Article 805, it applies to notarial wills
while Article 804 applies to both notarial and holographic wills.
Is there a requirement that the will should be dated? When it
comes to notarial wills, there is no requirement under the NCC
that the notarial will should be dated because the date can
simply be determined. Even if the testator already died, there
are still witness and the notary public who can testify as to
the date of the will. So, it is easy to know the date of the
execution of the notarial will.
But if it is a holographic will, date is a major part of the
formula. There are only three requirements. The will must be
(1) written, (2) dated, and (3) signed all in the hand of
the testator. So, if there is no date in a holographic will, the
will would be void. Remember, when it comes to the date, in
notarial will, it does not matter, but in holographic will, it is
very important.
Article 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed
Ad Majorem Dei Gloriam
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.
Article 805 is a very important provision. It gives us the
formalities of a notarial will. These matters mentioned in
Article 805 refer to the extrinsic validity of the will- the forms
and solemnities of a notarial will. It is very clear under Article
805 which says, “Every will except holographic will,” that this
article does not apply to holographic wills, only to notarial
wills.
You have to know by heart the requirements for the execution
of notarial wills. No need to memorize. Just summarize. There
are several requirements and all of these requirements have
equal importance. The common underlying reason for the
imposition of these requirements is to prevent fraud in the
execution of wills to assure that that testator really executed
the will intelligently and voluntarily. So, we have these
requirements to close the door against fraud and bad faith, to
avoid substitution of wills, and to guarantee the authenticity
of the wills. Failure to comply with any of the requirements
under Article 805, as a general rule, would result to the
inadmissibility of the will. So, the will cannot be admitted to
probate.
What are these requirements?
1st requisite – The will must be subscribed by the
testator himself or the testator's name is written by
some other person at the end, in his presence, and by
his express direction.
Here, we have the requirement of subscription. What do we
mean by subscription? We are talking here of the subscription
by the testator. Meaning, the signing of the will by the
testator. Subscription here means signing. The mechanical act
of the signing the will.
Where should the testator sign the will? The law says “at the
end”. What do we mean by that? The law here means the
logical end, not the physical end. The logical end refers to the
portion after the dispositions but before the attestation clause.
So, it is in the middle. After the last wishes of the testator, his
name follows. It is where he should sign. What is the reason
why it should be the logical end of the will? To prevent
unauthorized insertions. So, even if the dispositions only
reaches the middle portion of the paper signed by the
testator, such is still the logical end being referred to by the
law. It is not the physical end, but it is the logical end of the
will.
What if after reading and signing his notarial will, he realized
that he forgot to include his nephew, and so he made
additional dispositions after his signature, what is the effect of
those additional dispositions in a notarial will? The entire will
is void. Why? Because, there is now a violation of the
requirement that the notarial will must be signed at the logical
end. As I have said, the logical end is that portion after all the
dispositions but before the attestation clause. If you have
provisions after the signature, the signature now ceases to be
located at the logical end. It is now at the middle of the
provisions. Again, in a notarial will, the observance of the
requirements in Article 805 is very important. This merely
refers to the form, not yet to the substance of the will. So, the
will is void in its entirety. Please remember that because this
is not the case in terms of holographic wills.
In holographic wills, you can actually add provisions after the
signature. We will go that later. Just remember that for
notarial wills, the testator should sign at the logical end of the
will. Therefore, he is not allowed to add provisions after his
signature.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
What if the testator really wants to include his nephew in the
will? What should he do? The proper way is to insert or add.
He can either execute a new will or a codicil. That would be
the proper procedure. That is for notarial wills.
Who should sign? Of course the testator. Can another person
sign in behalf of the testator? Yes. The law is very clear-“or by
some other person”-only that there are requirements. It
should be in the presence of the testator and under his
express direction. When you say “in the presence”, it means
the testator really saw. He is within the vicinity. That is the
ideal pursuant to the test of presence. Although there are
other tests of presence. We have four: (1) test of vision, (2)
test of mental apprehension, (3) test of position, and (4) test
of available senses. We will discuss that later.
Ideally, it should be in the presence of the testator (test of
vision). However, it is not actually needed that he really saw
the signing. What is required is that the testator is in a
position to see the signing (test of position). What if the
testator is blind? Is that considered as “in his presence?” Yes,
in accordance with the test of available senses. It is within the
range of his other senses such as the sense of touch, smell,
hear, etc. Again, the signing must be in his presence and
under his express direction.
When we say “express direction”, it means that there is really
a direction from the testator to a certain person to sign in his
behalf. It must be express as opposed to the word implied.
Implied consent is not tantamount to express direction. When
you say express direction, the testator shall by word of mouth
or by action clearly indicate to the proxy his desire to have his
name signed in the instrument. So, the testator’s mere
knowledge or consent that his name is being signed for him,
or his acquiescence in such an act, or a mere implied assent
to the signing by another person is not sufficient to meet the
requirement of express direction. Those are the two
requirements.
What should the testator sign in the will? What should he
subscribe in the will? Of course, his name. What signature? It
can be his customary signature. So, if his name is Piolo
Pascual, he can write his entire name. If he uses PP (initials),
that is also allowed if that is his customary signature. He can
sign in two ways. He can sign in his full name. He can sign
using other marks like, aside from his initials, it can be his
thumb mark, stamp, cross, smile, heart, or any other mark as
long as it is his customary signature, or he intended that mark
to be his signature. That is insofar as notarial wills is
concerned. He can sign by those means.
What if it is the third person who will sign in behalf of the
testator? What will the testator put in the will? Of course, the
testator’s name. The third person, even if he signs for and in
behalf of the testator, should write the name of the testator.
Although he can add his name in the will, he should put the
name of the testator.
Leano v. Leano
The testatrix here was Christina Valdez. How did you know? Is
there anything in the will which would indicate that she was
the testatrix? It was written in the will.
What was the nature of the will? Notarial.
Who wrote the name ‘Christina Valdez’? A third person. It was
not Christina Valdez herself.
So, a third person wrote the name Christina Valdez in the will.
However, Christina Valdez inserted a cross on her name.
Was it her customary signature? Was there an intention to
make the cross as her signature? Yes.
Here, as long as you can prove that the mark was the
customary signature of the testator or there was an intention
Ad Majorem Dei Gloriam
to constitute the mark as her signature, then the mark is valid
as a signature. Here, the will was valid because the will was
considered to be her signature.
Garcia v. Lacuesta
What was the kind of the will here? Notarial.
Who was the testator? Mercado.
Who wrote the name of Mercado in the will? Atty. Florentino.
However, Mercado placed a cross above his name.
Was the cross considered to be the signature of Mercado? No,
because it was not his customary signature.
Will this fact make the will void? No.
When the SC found no evidence showing that the cross was
the customary signature or the intended signature of the
testator, it converted the will into one which is signed by a
third person (Atty. Florentino). Again, even if the cross there is
not the valid signature of the testator, that alone did not
invalidate the will. Even if we disregard the cross (meaning the
will was not signed by the testator himself), a third person can
also sign in behalf of the testator. So, in that case, that will is
considered as signed by a third person in behalf of the
testator.
However, aside from the fact that under Article 805, it should
be signed in the presence and under the express direction of
the testator, it is also required to state in the attestation clause
that it was signed by the third person under his express
direction. This requirement was lacking in this case.
The will was void not because the cross was not the customary
signature of the testator since the will, notwithstanding the
unauthorized mark, can still be valid if the will is signed by a
third person. The will was void in this case because of the
failure to state in the attestation clause that the will is signed
by a third person in the presence and under the express
direction of the testator.
How about electronic signature? Can electronic signature be
affixed in a will? Under the present law, it is still not
acceptable because it is defined as one which is affixed
pursuant to transactions or contracts. An e-signature is
attached to or logically associated with the e-data message or
e-documents or any methodology or procedure employed by
or adopted by a person and executed or adopted by such
person with the intention of authenticating or approving such
e-message or e-document. A will is not an e-message or e-
document. It is not a transaction or a contract, so it is still not
acceptable but the law may be amended. Whatever is allowed
by law will be allowed. But as of now, based on the present
definition, it is still not acceptable.
The second requirement is the testator or the person
requested by him to write his name and the credible witness
shall sign each and every page of the will on the left margin
except the last page.
Note that in the first requirement, we said that the testator or
the person requested by him should sign at the logical end.
Aside from that, pursuant to the second requirement, he
should also sign in the margins. That is what we call as the
marginal signatures. The usual marginal signature is on the
left margin of each and every page except the last. Why?
Because, the last page contains the signature of the testator
at the logical end. This is to avoid duplication.
The purpose of marginal signatures is for identification, so
that the will and all its pages can still be identified by the
witnesses by the presence of the signatures. The signatures
would remind them that it was the same will that was
executed 20 years ago. That is marginal signatures. If the will
consists of only one page, then there is no need for marginal
signature.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
The law says left margin. Why? The only possible explanation
would be that the margin on the left side is wider. This was
not explained by the authorities. What if you signed not on
the left margin but on the right, top, or bottom? Jurisprudence
says that it does not matter. The will would still be valid. As
signatures would appear at the left, right, top, or bottom
margins, it does not matter because it would still serve the
purpose of identification. You can still identify the will based
on the presence of the signature [regardless of position].
The requirement of marginal signatures is not only limited to
the testator. It extends to the credible witnesses. They should
also sign in the margins. What if there is only one sheet of
paper but it is back-to-back? The back portion contains the
signature of the testator. Is there a need for him to sign at
the front page? Yes. A page is different from a sheet. One
sheet of paper consists of two pages-front and back. All pages
should be signed.
What if the will consists of 4 pages? The first three pages
contains all the dispositions of the testator as well as his
signature. The fourth page contains the attestation clause and
acknowledgment? In this case:
Fernandez v. de Dios
The testator failed to sign the fourth page. Is the will valid?
Yes. Based on the basic principle that the will is the act of the
testator; the attestation clause is the act of the witness; and,
the acknowledgement is the act of the notary public.
What the law requires for the testator to sign in the margins is
the will. Thus, when the third page only contains the
attestation clause, strictly speaking, the same is no longer
part of the will. The testator need not sign the page, only the
attestation clause. But the witnesses must sign the pages
containing the will and the attestation clause.
July 27, 2015 (ZM)
2nd requisite – The testator of the person requested by
him to write 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.
Under Article 805 the signing on the margins should be done
by the testator himself or the person requested by him to sign
and by the marginal witnesses or the attesting witnesses, the
instrumental witnesses, the credible witnesses.
If the signing is done by another person in behalf of the
testator it should be in his presence and under his express
direction. We defined presence and what are the different
tests of presence.
The law says the credible witnesses of the will shall sign each
and every page of the will on the left margin except the last.
Who are these credible witnesses? In a notarial will
we require at least 3 witnesses these witnesses are
called:
1. Credible witnesses (Art 805)
2. Marginal witnesses because they sign in the
margins
3. Instrumental witnesses because they witness to
the execution of the instrument
4. Attesting witnesses because they attest to the
execution of the will.
These persons, they are one of the same persons. You
cannot have different persons. They should be the same
persons.
Ad Majorem Dei Gloriam
Gonzales vs. CA
There are two components of being a CREDIBLE witness:
1. They should be competent
Those who have all the qualifications under article 820 and
none of the disqualifications under 821. This is determined by
law or statute
2. Credible
This is the capacity to tell the truth. This is determined by the
appreciation of the court.
Before the witnesses are asked to testify on the facts
surrounding the execution of the will, there is no need to
present prior or independent evidence to prove their credibility
because credibility is presumed.
In naturalization proceedings there is a need to present prior
or independent evidence to prove their credibility. The
witnesses in naturalization proceedings are character
witnesses. If a foreigner for example wants to be naturalized,
he should present evidence that among others he has
embraced the culture of the phil etc. so here the witnesses
who will testify will testify as to the character of the person
seeking naturalization. That is why they have to be proven
credible first. There is a need to present prior or independent
evidence to prove that these witnesses possess credibility,
integrity, probity, that they are of good repute in the
community. So those pieces of evidence are need.
But in probate proceedings the witnesses do not testify as to
the character of the testator. But they merely testify as to the
facts attendant to the execution of the will. So there is no
need to present prior or independent evidence to prove their
credibility.
Whether or not they are credible, that can be determined if
they are competent, if they have all the qualifications under
article 820 and none of the disqualification under article 821
and if based upon the appreciation of the court they are
telling the truth. They testify upon personal knowledge and
not hearsay.
Taboada vs. Rosal
First page contains the entire disposition and the second page
contains only the attestation clause and the
acknowledgement. The second page was signed at the bottom
by the attesting witnesses and the testator on the left margin.
Trail court denied the probate of the will because it is not
enough that only the testatrix signs at the end but all the 3
subscribing witnesses must also sign at the same place or at
the end in the presence of the testatrix.
The presence of the signatures of the witnesses on the
margins is for identification; attested to the genuineness of
the signature of the testator and the due execution of the will
as embodied in the attestation clause.
So there is no need for the witnesses to also sign at the send
because they already signed at the margins and besides the
law did not even mention that each and every page should be
signed by the witnesses at the end. The law merely says that
the will must be signed at the end by the testator himself or
by the person requested by him to sign and also in the
margins. Probably the trial court here was confused as to the
application of the law, there is no need for the witnesses to
sign at the bottom of the first page containing the disposition.
There is another case where the SC said that they have to
sign at the bottom. But it’s not in the page containing the
testamentary dispositions. We refer here to the first page
containing only the testamentary dispositions.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
As to the second page, if it only contains the attestation
clause and signature there is even no need for the testator to
sign. If she signs doesn’t matter even if she did not sign the
will would still be valid because the attestation clause, strictly
speaking is not part of the will.
If the will contains only one page, all the testamentary
dispositions, the attestation clause and
acknowledgement of course in one page, there is no
need for marginal signatures because the purpose of
marginal signature is already served by the presence of
all the signatures.
Here, if later on the witnesses would be asked to testify as to
the will, if this is the will which you attested 20 years ago they
could already identify the will by the presence of the
signatures.
Abangan vs. Abangan
Even if the law says in the left margin, the signatures can
actually appear at the top right bottom of the will or even in
the body of the will. The presence of signature would already
be sufficient for the will to be identified. The main purpose of
marginal signatures is for identification.
If there are several pages then each and every page should
be signed in the margins. At the end of the disposition we
have the signature of the testator. So if there is already a
signature of the testator at that page at the end of the
disposition, ang kinahanglan nalang ninyo ka yang signatures
sa witnesses sa margins.
If we have 3 pages, first and second page contains
disposition, third page, disposition again but only half of the
page was used and the other half contains the attestation
clause and the acknowledgement. So we have 3 pages. The
first and second pages should have all the marginal signatures
of the testator and witnesses. But in the third page where the
testamentary disposition ended, together with the attestation
clause and the acknowledgement, there is no need for
marginal signatures because we already have all the
signatures there. What is important is that each and every
page should have all the signatures.
What is the consequence when a page of the will lacks
marginal signatures?
General rule: The will is void because it is a mandatory
requirement
Icasiano vs. Icasiano
In this case there was simultaneous lifting of the pages. There
were 4 copies of the will. The copy where there was a lacking
signature was the original. So this was due to the inadvertent
lifting of two pages instead of one. In the other copies of the
will the signatures were complete.
In this case even if one page lacked a marginal signature the
SC still allowed the will because we should not penalize the
testator for the acts, mistake or negligence of one witness.
Besides, there were several copies of the will and it had
complete signatures on the margins. It would be a different
story if you have only one copy of the will and one page of
that lacked a marginal signature.
3rd requirement – All the pages shall be numbered
correlatively in letters and such is placed on the upper
part of each page.
Here the pages of the will must be numbered. The purpose of
numbering is:
1. To guard against fraud
Ad Majorem Dei Gloriam
2. To forestall any attempt to suppress or substitute
any of the pages
3. To afford means of detecting the loss of any of its
pages
4. To prevent any increase or decrease in the pages
The law says numbered correlatively in letters: “PAGE ONE” so
you have to spell out.
Unson vs. Abella: Arabic numerals
Aldaba vs Roque: letters (A,B,C)
Nayve vs Mojal: numbers (1,2,3)
In re Pilapil: in letters and partly in figures
These are allowed as long as you can identify which is the first
page and so on and do forth. This is because we need a
means to detect the increase or decrease of the pages, the
loss of the pages, the suppression or substitution of pages.
That is why numbering is required.
The law says “on the upper part of each page”. What if you
placed it at the bottom? It doesn’t matter. The location of the
page number will not affect the validity of the will as long as
you have the page number. In fact it can even appear in the
body of the will.
Fernandez vs. de Dios
The page containing the attestation clause was not numbered.
However it does appear in the text of the attestation clause
the words having reference to the number of sheets of the will
including the page number of the attestation. So obviously the
page containing the attestation clause is the fourth page and
hence the SC held that there is substantial compliance.
Here you can still determine the page number even of there
was no clear page number at the top or bottom but it can be
gathered from the statement in the attestation clause so it
appears at the body of the attestation clause. Here again, the
will is valid.
Lopes vs. Liboro
The first page does not have the page number. there were
several pages here but the first page was not numbered.
Would this invalidate the will? SC said no because it is very
clear that it is the first page. Usually the first page contains
the title “last will and testament”.
Abangan vs. Abangan
The will only had one page and it was not numbered. It will
not affect the invalidity of the will. It is understandable that if
the page is lost everything would be lost. So you can easily
determine the degrees of the pages because there is only one
page. The absence of a page number, if the will has only one
page will not invalidate the will.
4th requirement – The will must be attested and
subscribed by 3 or more credible witnesses in the
presence of the testator and of one another.
Here we are talking of the act of the witnesses. What should
the witnesses do?
1. They attest. Attest means the act of witnessing. It
is the mental act. What will the witnesses attest to?
They witness:
o The signing by the testator
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015

o The signing by each and every one of them 1. Test of vision

2. They subscribe. Subscribe means the act of The signing is within the reach of the vision.
signing. When they sign in the margins that is what
2. Test of position
we call “subscribe”.

ATTESTATION
Consist in witnessing the
testator's execution of the
will in order to see and take
note mentally that those
things are done which the
statute requires for the
execution of the will and that
the signature of the testator
exists as a fact. It is the act
of the witnesses, not that of
the testator although it
necessarily involves the act of
the testator in executing the
will and requesting the
witnesses to act as such
The mental act of the senses
The purpose of attestation is
to render available proof of
authenticity of the will and its
due execution
The act of witnesses
SUBSCRIPTION
The signing of the witness
name upon the same paper
for the purpose of
identification of such paper as
a will executed by the
testator
The mechanical 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 and therefore
implies that the due
execution of the will as
embodied in the attestation
has been performed
The act of the testator when
the testator signs the will or
the witnesses if the witnesses
affixed their signature in the
will
Jaboneta vs Gustilo
Before one of the witnesses left, he saw the last witness
beginning to sign but the latter’s signature was not yet
completed when the former turned his back and left the room.
So the SC used the test of position in this case, this is when
you are placed in such a position that if you want to see the
testator you may do so without any physical obstruction.
So in this case he was in the position to see. Even if he had
his back turned he could easily cast his eyes in the proper
direction. There was no obstruction so he was really in the
position to see. So it is not required that you should really see
it as long as you are in the position to see the act of signing.
Nera vs. Rimando
SC discussed that if for example there is a curtain which
separates the testator and some witnesses from the witnesses
the will would not be valid because there is a physical
obstruction and hence they were not in a position to see. Here
SC said that in that case it would not satisfy the test of
presence.
Maravilla vs. Maravilla
The testator, the lawyer and the witnesses sat next to each
other at a round table when the will was signed. The relative
positions would tell us that they were all in the position to see
each other.
The witness was not required to positively identify the
signature of the testator. It would be incredible if he would be
able to identify because he only saw the signature once 14
years ago. It was just reasonable. He was a credible witness
in that case his testimony is capable of belief.
So here there is no requirement for the witness to positively
identify the signature of the testator. The only requirement is
that he was in the presence of the testator and of each and
every one of the witnesses. The test of position will suffice.

To attest a will is to know To subscribe a paper If this is a holographic will the rule would be different because
that it was published as such published as a will is only to in holographic wills a witness is really required to explicitly
and to certify the fact write on the same paper the and positively declare that the signature in the will is that of
required to constitute an names of the witnesses for the testator. This is because witnesses are not required in
actual or legal publication the sole purpose of holographic wills.
identification
3. Test of available senses
The attestation and the subscription should be done in the This test is used if the testator is blind. The blind testator
presence of the testator and of each and every one of them. can use his other senses like the sense of hearing,
smelling or touching. But a blind person cannot be a
What do we mean by “in the presence”? For example we have
witness; the will would be invalid. We cannot apply the
the 3 witnesses and the testator. So the testator signed the
test of availability of senses insofar as blind witnesses are
will and he also signed in the margins. That act of the testator
concerned because one qualification of a witness is that
must be in the presence of the witnesses. Now it is the
he should not be blind. So a blind person is disqualified to
witnesses’ turn to subscribe. When one witness signs the
become a witness. A blind person can be a testator but
margins that signing should be done in the presence of the
he cannot be a witness.
testator and in the presence of each and every one of them.
What of during the time when one witness what signing, the 4. Test of apprehension
other witness was watching the TV. So could we say that the
signing was in his presence? Even if you did not see but at the back of your mind you
already know that the will is being signed.

FOUR TESTS OF PRESENCE – Gabriel vs. Mateo

We already mentioned the 4 tests of presence when we There is no particular requirement as to the order of the
discussed that in connection with the signing of the person signing. As long as the signing is sufficiently contemporaneous
requested by the testator to sign the will. It should be in the and made on one occasion and as part of one single
presence of the testator and under his express direction. transaction.

Ad Majorem Dei Gloriam

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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Reason for the requirement that the signing should be done in
the presence of the testator and in each and every of them: to
avoid fraudulent substitution of the will and to make it more
difficult the invention of false testimonies by the witnesses
since they may be the witness of one another. It would be
difficult to introduce false or perjured testimony.
ATTESTATION CLAUSE –
In relation to this, we discussed that the will must be attested
and subscribed by the witnesses in the presence of the
testator and of each and every one of them. We also
discussed and defined the meaning “to attest”.
Aside from the fact that the will should be attested because
attestation is a mental act, we also need the attestation
clause. Even if in reality the witnesses really attested the will
but without the attestation clause, the will is not valid. Aside
from the ACT there should be that WRITTEN STATEMENT and
that is the attestation clause.
An attestation clause is the declaration made by the
witnesses. It is that clause of an ordinary or notarial where
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 records of the 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 law has been observed.
The purpose here is to preserve in a permanent form a record
of the fact attending the execution of the will. So that in case
of death, absence or failure of memory of the subscribing
witnesses or casualties, the due execution of the will may still
be proved.
This is because usually in testifying to the will it is during
probate and it happens long after the execution of the will.
What if at that time all the witnesses forgot about the will or
all of them died or all of them left the Philippines. So who will
testify? So how do we prove the due execution of the will? We
have the attestation clause which preserves in a permanent
form the facts attendant to the execution of the will. So that is
the purpose why aside from the fact of attesting, we need the
attestation clause.
As we discussed, the witnesses attest to the genuineness of
the signature of the testator and they attest to the due
execution of the will as embodied in the attestation clause.
The attestation clause is the act of the witnesses. It is their
declaration regarding the facts attendant to the execution of
the will. That is why the signatures of the witnesses are
required in the attestation clause.
Azuela vs. CA
The page containing the attestation clause was signed in the
margins by the witnesses. But they did not sign at the bottom
of the attestation clause. The signatures on the margins were
not considered as substantial compliance.
Marginal signatures’ purpose is for identification and it does
not matter where they are located. But when we speak of the
attesting signatures, they must be at the bottom to signify
that, those persons who signed, that they own or they avow
the truth of the recitals contained din the attestation clause.
You cannot consider the signatures n the margins as being
directed towards the avowals or recitals contained in the
attestation clause. SC said those marginal signatures are
directed towards a wholly different avowal. They are merely
for identification.
If there were signatures at the bottom of the attestation
clause but no signatures in the margins, the will would still be
valid. So even if the signatures are at the bottom they could
Ad Majorem Dei Gloriam
still serve a double purpose. They can serve tio avow or won
the recitals in the attestation clause and they could also serve
to identify the page.
The case of Azuela is the same as the case of Cagro vs.
Cagro. SC made the same pronouncement that the will was
void because it was not signed at the bottom.
When we say attestation clause it is the act of the witnesses.
They should sign at the end of the attestation clause. SC
pointed out that it would be dangerous if they would just
accept that attestation clause was being signed at the margins
because it would be very easy to just insert an attestation
clause if you just allow signatures in the margins. This is
another safeguard to prevent the future insertion of an
attestation clause in a will that does not otherwise contain an
attestation clause.
SPECIFIC STATEMENTS THAT MUST BE CONTAINED IN
AN ATTESTATION CLAUSE –
1) The number of pages used upon which the will is
written
If you remember there is requirement that each and every
page must be numbered correlatively in letters. Aside from
that you still need to state in the attestation clause the total
number of pages even if you already have the page number
on each and every page.
The purpose is to prevent an increase or decrease in the
number of pages. For example you have a will consisting of 5
pages and we did not know that it really contains 4 pages or
even 6 pages. So there has to be a statement in the
attestation clause to really clarify how many pages are really
contained in the will.
Azuela vs. CA
There was an attempt to indicate the number of pages but it
was just left blank. This is a fatal flaw because the
requirement is mandatory. There is no substantial compliance.
It still remains that there is no statement at all, you cannot
find it anywhere in the will.
In re: Matter of the petition for the probate of the last
will and testament of Enrique Lopez
There is nothing in the attestation clause that states as to the
total number of pages used in the will. Then there is a
statement in the Acknowledgement portion it states that the
will consists of 7 pages. But the will actually consists of 8
pages. That is a fatal defect. It invalidated the will. There is
no substantial compliance because there is a need to present
evidence alliunde.
Taboada vs. Rosal
This is the same case of lopez. The attestation did not
mention the total number of pages. However, in the
acknowledgement portion, although it was stated in Spanish
and the English translation was “this testament consists of
two pages including this page” SC allowed the will on the
ground of substantial compliance because even if it is not
mentioned in the attestation clause, you don’t have to go out
of the will to determine the number of pages. You can just
look at the acknowledgement portion. From that statement,
you can conclude that the will only has two pages the first
page and second page including the acknowledgement. That
defect in the attestation was cured by that statement in the
acknowledgement.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
The difference with the previous case is that the statement of
the number of pages was wrong. It stated 7 but in reality the
will had 8 pages.
July 20, 2015 (JCP)
Art. 805. xxx
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed
and signed the will and all THE PAGES thereof in the presence
of the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (n)
We have discussed the matters that must be embodied in the
attestations clause: First, The number of pages used upon
which the will is written. We discussed the case of Azuela v.
CA and Matter of the Petition for the probate of the last will
and testament of Enrique S. Lopez. Also the case of Taboada
v. Rosal. Let’s go the second
2) The fact the testator signed the will and every
page thereof or cause some other person to write
his name under his express direction
So we are referring here to the signing by the testator. So it is
either you state that the testator is signing the will or another
person signed the will under the express direction of the
testator.
Garcia v. Lacuesta
The name of the testator Antero Mercado was written by his
lawyer and there was a cross affixed by Antero Mercado
however there was no evidence that he intended his cross to
be his signature. It is not his customary signature, therefore,
the SC first disregarded the cross since it was not the
signature of the testator. What we have here is a will which is
signed by the lawyer in behalf of the testator however you
should state that in the attestation clause. That it is signed by
a third person under the express direction of the testator.
That made the vill void because it lacks the statement under
his express direction.
3) That the signing by the testator or the person
requested by him was in the presence of the
instrumental witnesses.
Aside, from the fact that you state that the will was signed by
the testator, you state that the signing was made in the
presence of the 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.
I am referring to the act of the witnesses. Take note, that the
witnesses witnessed and signed the will or attested and
signed the will in the presence of the testator and each one of
them. It is very important that you have to state that in the
attestation clause. To be safe, you better copy the provision in
Art 805 because maling gamay it would be very fatal to the
validity of the will.
Abada v. Abaja
Here it was allaged that the attestation clause fails to state
expressly that the testator signed the will and every page in
the presence of the witnesses. As translated in English, this
was the statement, Subscribed and professed by the testator
Ad Majorem Dei Gloriam
Alipio Abada as his last last will and testament in our
presence, the testator having also signed it in our presence on
the left margin on each of every page of the same.
Issue: WON the statement “in the presence of the witnesses”
is omitted?
Answer: NO. The SC said that this attestation clause clearly
states that the body of the will was signed in the presence of
the witnesses but it was worded differently.
Another allegation was that the attestation clause does not
indicate the number of witnesses. The SC said that the rule on
substantial compliance will apply in determining the number of
witnesses. While the attestation clause does not state the
number of witnesses, a close inspection of will shows that
three witnesses signed it. So it can be clarified by just looking
at the will that there are 3 witnesses and without presentation
of evidence aliunde.
With respect to the attestation clause the SC said that: the
precision of language in the drafting of the clause is desirable
however it is not imperative that a parrot like copy of the
statute is made, it is sufficient if the language employed it can
reasonably be deduced that the attestation clause fulfills what
the law expects of it.
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file
another with the Office of the Clerk of Court. (n)
Acknowledgement is “to avow”. It is a statement where the
notary public declares that the witnesses and testator
personally appear before him and that they voluntarily
executed the will and understood the same. Meaning, it
connotes voluntariness and intelligence.
What is the consequence if the document is acknowledged in
the Notary Public? There is a presumption of regularity. And
what is the consequence, if there is a presumption of
regularity? The burden of proof is higher. You need to have a
clear and convincing evidence to overthrow the presumption.
Acknowledgement is mandatory only to notarial wills.
Acknowledgement is an important part of a notarial will, how
does a will look like? Testamentary Provision, signature of
testator, Attestation Clause and then you have the
acknowledgement. Testamentary provision is signed by the
testator, the attestation clause is signed the three witnesses.
The acknowledgement is also the sign of the Notary Public.
Cruz v. Villasor
Issue: WON the Notary Public can also be the attesting
witnesses?
Ruling: NO. Third witness here cannot split his personality
into two. There is a physical impossibility because when you
acknowledge in the Notary Public, you avow before the Notary
Public. The other reason, is there would arise a conflict of
interest. Because as a notary public your purpose is to guard
against fraud and immoral arrangements and as a witness is
to sustain the validity of your act.
What if there are four witnesses, what happens? Take note,
that the Notary Public would just be disqualified as a witness
and the will would be valid even if he acknowledged the
same.
Azuela v. CA
An acknowledgement coerces the instrumental testator and
the witnesses that they executed the will in their own free act
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
and deed. What is a jurat? It is a statement under oath. There
is nothing in the jurat that complies with Art 806 that the
witnesses should declare that the will is for the testator and
the attestation clause is for the witnesses and was signed by
them voluntarily and intelligently. So, a jurat is not a sufficient
compliance of acknowledgement required under Art 806.
Again, take note, that there has to be a statement where the
Notary Public coerces the testator and the witnesses to
declare before him under pain of perjury that they really
voluntarily and intelligently executed the document. That is
the importance of acknowledgement.
Echavez v. Dozen Construction and Dev’t Corp.
An acknowledgement and attestation clause cannot be
merged into one statement. These provisions are under the
New Civil Code under Art 805 and Art 806 hence it indicates
that the law contemplates two distinct acts that serve for
different purposes. Acknowledgement is made by one
executing the deed declaring before a competent officer of the
court that the deed or act is his own while attestation clause
refers to the act of the instrumental witnesses themselves
who certify to the execution of the instrument. So when you
say, the attestation clause is the act of the witnesses while
acknowledgement is a statement where the Notary Public
coerces the testator and the witnesses to declare before him
under pain of perjury that they really voluntarily and
intelligently executed the document. Thus you cannot merge
the attestation clause and the acknowledgement in the
acknowledgement portion. Even granting the
acknowledgement embodies what the attestation clause
requires still the SC said it is not acceptable that the two can
be merged.
With respect to failure to attach a documentary stamp in the
acknowledgement, is it a ground to invalidate a will?
Gabucan v. Manta
Failure to attach doc stamp is not a fatal defect. You can just
require that the doc stamp be affixed in the will.
Is the Notary Public, require to know the contents of the will?
As a general rule NO, he will just ask the testator that did you
understand the contents of the will? Did you voluntarily signed
the will? Is it your act? That is also the same question to the
witnesses. The Notary does not have to know the contents of
the will. Except where the testator is blind under Art 808, the
will shall be read twice, first by one of the subscribing
witnesses and another by the Notary Public by whom the will
is acknowledged. So, in that case he would really have to
know the contents of the will.
Even if the will is acknowledged, it is not a public document. It
still retains its character as a private document. It is still a
confidential document. And under the Notarial law, when you
notarize a document, you are actually required to retain two
copies of the document, one for you and the other will be
submitted to the clerk of court. But if it is a will, we have
already discussed that the notary public is not required to
retain a copy of the will and is not required to submit a copy
to the Clerk of Court.
Art. 807. If the testator be deaf, or a deaf-mute, he must
personally read the will, if able to do so; otherwise, he shall
designate two persons to read it and communicate to him, in
some practicable manner, the contents thereof. (n)
In respect to Art 821 a deaf, deafmute, blind cannot be a
witness to a will. Take note, that the two persons that can
read the will for the testator need not be the attesting
witnesses. He just have to designate two persons to read and
communicate to him the contents of the will.
Ad Majorem Dei Gloriam
Art. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and again,
by the notary public before whom the will is acknowledged.
(n)
Okay so it is very clear that a blind person can be a testator.
Although there is an additional requirement to read once by
one of the subscribing witnesses and another by the notary
public before whom the will is acknowledged. Now, when do
we consider a person as blind? Does it mean that a blind
person be in total blindness.
Garcia v. Vasquez
Considering the appearance of the will, the acknowledgement
and attestation clause were crammed together into a single
sheet of paper as to save space, then they were typographical
errors. The SC said that it is difficult to understand that so
important a document containing the final disposition of once
worldly possession should be embodied in an informal
instrument. So base on these, the testatrix was not able to
read the will and Art 808 was not complied with. It should
have been complied with because of the condition of her
eyesight, she could only view distant objects but she could not
read print. It is not required that the testator will be totally
blind for you to be considered blind under Art 808.
Again, the reading should be done once by the subscribing
witness and another by the notary public who acknowledged
the same.
Alvarado v. Gaviola
So the will was read allowed by the lawyer who drafted the
will and then the testator had his own copy, he was following
the reading silently, also, the subscribing witness have their
own copies. After the reading, the testator affirmed the
contents of the will. That was the procedure taken in this case
but note that it is not the procedure required under Article
808 because it should have been read once by the subscribing
witness and another by the Notary Public who acknowledged
the same.
In this case, the testator is blind since she cannot read; she
can only see objects at 3 ft. and count fingers but not read. In
here, the law was not followed by letter but in spirit it was. So
here, the SC said as long as the purpose of the law is
complied with which is to ensure the authenticity of the will
then the formal procedure should be brushed aside, also,
when they do not affect its purpose and which taken into
account would only defeat the testator’s will.
Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805. (n)
Article 809 is the Rule on Substantial Compliance.
When there has been an attempt to comply with all the
requirements of the law but the compliance is only substantial
not literal and the purpose ought to be attained by the law is
accomplished though not strictly followed.
The purpose of the Rule on Substantial Compliance is to attain
the main objective of liberalization of the manner of executing
wills. The policy is to require satisfaction of legal requirements
to guard against fraud and bad faith without undue or
unnecessary curtailment of testamentary privilege.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Defects excused under 809 –
(1) Defects and imperfections in the form of attestation
and
(2) Defects and imperfections in the language used in
the attestation.
Requisites for the application of 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 or 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.
Now using these four requisites as guidelines can you now
readily ascertain or determine which defects can be excused
on the ground of substantial compliance and which defects
are not excusable? It is not clear when you follow these
requisites. That was observed by Justice Reyes, that the law
doesn’t seem to distinguish. It appears that these defects can
cover those intrinsic and extrinsic evidence. Reyes said, if the
rule was so broad that the attestation clause can be cured by
evidence aliunde or extrinsic evidence, the attestation would
of no value in protecting against fraud for really defective
execution. This was also discussed in the case of Caneda v.
CA.
So how do we know which defects are excusable and which
are not excusable?
Abada v. Abaja
It allowed the will on the basis of substantial compliance, the
so called liberal rule does not offer any puzzle, 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 with precision, they do not allow evidence aliunde
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
ascertain its meaning or to determine the existence or
absence the requisite formalities of law. This clear sharp
limitation eliminates uncertainty and ought to banish any fear
***. In short if the defect can be cured by intrinsic
evidence or by just looking at the will or any part of
the will, the attestation clause, the acknowledgement
then that defect will be cured on the ground of
substantial compliance but if the defect can only be
cured by resorting to evidence aliunde or extrinsic
evidence then that defects can no longer be cured or
excused on the ground of substantial compliance.
Here a reading of the language of the will as translated would
reveal that there was a statement: “In our presence” coupled
with the signatures appearing on the will itself and after the
attestation clause could only mean that Abada subscribed to
and professed before the 3 witnesses that the document was
his last will and testament and signed the will on the left
margin of each page in the presence of the 3 witnesses by the
phrase In our presence meaning to those witnesses and then
as to the number of witnesses that can be easily be
determined by counting the signatures in the attestation
clause and on the margin. So you do not have to go out of the
will to cure that defect. That can be excused on the ground of
Substantial Compliance.
Cagro v. Cagro
If you remember the attestation clause was signed on the
margins and the bottom was not signed. So the proponents of
the will insists that the will is still valid because the signatures
Ad Majorem Dei Gloriam
still appear although on the margins and they invoke the rule
on substantial compliance.
However, the SC did not allow the will because even the Rule
on Substantial compliance will not cure the defect, the
signatures on the margin avow as to the fact that the
witnesses signed on the margins for the purpose of
identification but they cannot be taken also to avow the
recitals in the attestation clause because the purpose of the
marginal signature is different and lahi pud ang purpose sa
attestation clause.
Now we cannot ask the witnesses, unsa man pirma na ninyo
sa silong og sa kilid? That is not allowed because it is already
introducing extrinsic evidence and it is no longer allowed. You
just limit your examination on the will itself.
Uy Coque v. Sioca
There was failure to state that the will was signed in the
presence of each other. It was not stated in the attestation
clause. But even if in fact the will was really signed by the
witnesses in the presence of each other,
tinuodgyudperowalanka-sulatsa attestation clause. Is that
defect excusable? How do we cure that defect, we would need
the witnesses to testify. That again will be introducing
extrinsic evidence or evidence aliunde. That is not allowed.
The case of Sano
Failure to state that the will was signed on every page thereof
on the left margin in the presence of the testator, you need
again extrinsic evidence.
Taboada v. Rosal
The allegation was that the witnesses did not sign at the
bottom aside from the margins dapatnaa pa dawsa bottom.
According to the SC, aside from the fact that it is not
mentioned under the law, the signatures on the margins
already attests to the genuineness of the will and the due
execution of the will as embodied in the attestation clause. So
there is no need for the witnesses to sign at the bottom of the
page. In that case, the attestation clause did not mention the
number of pages used in the will. The acknowledgement
portion stated that this will consists of two pages including the
page where the disposition is written. So that omission was
supplied by that statement in the acknowledgement, so here
that statement in the acknowledgement can be used to clarify
or cure the defect in the attestation clause. So you don’t have
to go out of the will to supply the omission in the attestation
clause. That statement in the acknowledgement is what we
call intrinsic evidence so that is curable.
Villaflor v. Tobias
Here the attestation clause was written on a separate page
although the first page where the testamentary dispositions
were written still had a big space, so it was alleged that the
attestation clause was belatedly added. But the SC said, if you
allege that the attestation clause was defective you just
examined the attestation clause itself. It is just a defect in the
form. It is not a fatal defect, as long as all the requisites of
the law are complied with, an examination of the will itself has
substantial compliance.
If you need evidence aliunde to cure the defect to supply the
omissions that defect can no longer be excused on the ground
of Substantial Compliance. So actually, even if it is a defect on
form or substance it still boils down whether or not it can be
cured by intrinsic or extrinsic evidence.
Again, if you would need evidence aliunde then that defect
can no longer be excused.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
[HOLOGRAPHIC WILLS]
Art. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.
(678, 688a)
We only have two wills allowed and recognized in our
jurisdiction: (1) Ordinary or Notarial Wills and (2) Holographic
or Holograph wills.
So based on Art 810, it is entirely written, dated and
signed by the hands of the testator.
It is subject to no other form and does not require
acknowledgement, attestation, marginal signatures,
paging, etc., subject also to no other form and may be made
in and out of the Philippines and again need not be
witnessed.
Advantages of executing holographic wills:
 It is easier to make
 It is easier to revise because if you want to add,
cancel or alter some provision you can just do so
however the testator must authenticate the same by
his full signature (Art 814)
 It is easier to keep secret because it is only the
testator himself who drafts his own will
Disadvantages:
 It is easier to forge since there are no witnesses
 It is easier to misunderstand
 There is no guarantee that no fraud, force,
intimidation, undue influence happened during the
execution of the will and
 There is no guarantee that it was made during the
time that the testator was of sound mind.
History of holographic wills in relation to the extrinsic validity
of the will:
 Before 1901 during the Spanish Civil Code,
holographic wills were actually allowed
 And then when the Code of Civil Procedure Act No.
190 was approved and took effect on August 7,
1901, the Code adopted only Notarial Wills so it
repealed the holographic wills
 But we know that during the effectivity of the NCC in
August 30, 1950, holographic wills are already
recognized
So from 1901 to 1950, holographic wills were not allowed but
again during the effectivity of NCC holographic wills are
already allowed.
So, a holographic will must be entirely written, dated and
signed by the hand of the testator. Aside from that we have to
go to Art 804 that it must be in the language or dialect known
to the testator. Aside from the fact that it has to be executed
with Animus Testandi just like a Notarial Will.
Requirements of Holographic Wills:
I. IN WRITING
Cursive or shorthand, does not matter what pen or color.
What if pungkol si testator, baba iya gigamit ,tiil iya gigamit
would it still be valid? Yes, as long as it is the writing of the
testator.
Ad Majorem Dei Gloriam
What is the purpose of this, it is an efficient guaranty
against all falsifications or alterations in the will.
Everything must be written by the testator, dili pwidi ang
ubang i-typewriter and gisuwat ang uban, dapat written
entirely by the testator.
It would be easy to forge the signature of the testator but it
would be more difficult to forge the entire document. Even the
mechanical act of drafting the will cannot be delegated to a
third person unlike Notarial Wills.
August 3, 2015 (EAE)
So we discussed that a holographic will has to be written
entirely by the hands of the testator. Although, if the testator
has no hands, then as long as it is his writing, he can use his
mouth, or foot, as long again as it is written by him.
So, the formalities mentioned under Art 810, written, dated
and signed by the testator are the only requirements for
holographic wills. Witnesses are not required in holographic
wills. An attestation clause is not required in a holographic
will.
What if we have a will which is entirely handwritten by the
testator, signed by him and dated in his hands also, BUT it
has an attestation clause, and the attestation clause is
typewritten. Is the will valid? Because diba there is a portion
which is not in the handwriting of the testator, the attestation
clause. Is the will valid? It is valid as a holographic will. It is
not a notarial will. Because aside from the attestation clause,
we still need an acknowledgment. We disregard the
attestation because it is not a requirement in holographic
wills. We just consider the testamentary dispositions, and the
attestation clause as a mere surplusage. Even if it is not in the
handwriting of the testator, it will not affect the will because it
is not considered to be as part of the will. It is again, a
surplusage.
II. DATE
Based on our discussion on notarial wills, is the date important
in notarial wills? What happens if the notarial will does not
indicate a date? It is not important. Why? Because you can
easily determine the date. We have the witnesses, and then
we also have the notary public. The date is not important in
notarial or ordinary wills.
How about in holographic wills? Well it is one of the
requirements. Dated, in the handwriting of the testator.
So dili pwede nga ang date is typewritten or stamped. It has
to be in the handwriting of the testator.
What is the purpose why we need a date in holographic wills?
1. Because there is a point n time in our history when
holographic wills were not allowed. Whether the will
is valid as to form, diba we have discussed under
Article 795, that you will have to examine the law in
force at the time of the execution of the will. That is
one reason.
So you said that at the time of the execution of the
will, he may be not of sound mind at that time? But
is it not also possible in a notarial will? How do you
know in a holographic will, if at the time of the
execution of the will the testator was of sound mind?
What is there in a notarial will that is absent in a
holographic will that makes it difficult in a
holographic will to determine whether or not at the
time of the execution of the will the testator was of
sound mind? So there are witnesses who can testify
on the status and condition of the mind of the
testator. In a holographic will, no witnesses are
required. And in that case, the only possible evidence
or the starting point to determine whether or not the
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
testator was of sound mind is the date of the
execution of the will. Without a date, we will not
know that. When did he execute the will.
2. Because there might be a person who is at times
normal but at times not. He only has lucid intervals.
Kung naa siyay lucid interval, he can validly execute
a will during a lucid interval. But how do we know
that the will was executed during a lucid interval if it
does not have a date? That is the second reason.
3. If you have two wills which are completely
incompatible with each other, the second will is
deemed to have revoked the first will. But how do we
know which one revoked the other if the dates are
not indicated in the will. That is the third reason why
the holographic will has to be dated.
And again, in notarial wills, there are other persons
who can testify as to the date of the will. In the
holographic will, it is only the testator, and he’s dead
already. We cannot ask him. Those are the reasons
why to indicate the date is important in the
holographic will.
How do we write the date? How do we indicate the date in a
holographic will? Date, month then year. What happened in:
Roxas vs. de Jesus
The date "FEB./6” was considered sufficient. Was there a
question there as to the soundness of the mind of the
testator? No. How many wills were alleged to be executed?
There was only one. And obviously this will was executed
after the effectivity of the New Civil Code, because it was
1961.
Here we could apply the rule on substantial compliance
because the contingencies guarded against by the
requirements of specifying the date are not present here. The
date Feb 1961 was sufficient.
How about if it is Christmas of 2005? So when you say
Christmas, that’s December 25. Valentine’s Day 2011. That
would be February. My birthday, like for example the testator
said my birthday, you could also determine. In those
examples, the dates would be sufficient.
Where should the date appear in a holographic will? Is there a
particular requirement as to the location of the date? There is
none. The date can be written on top, at the side of the
signature, right side, left side, there’s no particular
requirement.
III. SIGNATURE
So it must be signed by the testator in his handwriting.
Unlike in notarial will, the testator can affix it with his
thumbmark, with a stamp, with a smiling face, with a cross,
with any mark intended by him to be his signature or
customary signature. He can also affix his initials in notarial
wills.
In holographic wills, how should the testator sign the will?
What should he affix in the will? He should sign his signature
in the will. Ideally, it should be his full signature. For example
his name is Juan dela Cruz. He can write Juan dela Cruz. But if
he customarily signs J dela Cruz, then that is his full
customary signature, then that would also be allowed.
How about if his customary signature is his initial? All initials,
JDC? Mao na iyang pirma, always? Or maybe he intended to
be his signature? Can you accept that in a holographic will? All
initials if that is his customary signature or maybe he intended
that to be his signature? In holographic wills, all initials are
not allowed because it would be very easy to write the initials.
Take note that the best and only safeguard in holographic
wills would be the handwriting of the testator. So he should
Ad Majorem Dei Gloriam
write his signature. He cannot just indicate his signature by
initials.
Also, unlike notarial wills, you can have a third person write
your name in your presence and under your express direction.
In holographic wills, can you do that? No because everything
has to be entirely written, dated and signed by the testator.
Thumbmark, is that allowed in holographic wills? That is not
his writing, so that is not allowed.
Where should the signature of the testator in a holographic
will appear? As we will discuss in Article 812, it should be at
the end, although there can be additional provisions after the
signature.
Can a blind person execute a holographic will? Well as long as
we can comply with the requisites: written, dated and signed
by the hands of the testator. How he can do that, we don’t
know. Basta kay mao na siya ang requisites.
Now one principle in holographic wills is discussed in the case
of:
Seangio vs. Reyes
In this particular case, the testator executed a document
entitled “Kasulatan ng Pag-alis ng Mana”, and that is the only
provision in his will. We have already discussed before that a
document containing a will of disinheritance can still be
considered a will because disinheritance s considered a
disposition of property although it is indirect.
Here, the question among others presented, was whether or
not this was really intended to be his last will. This document
was written, dated and signed in the hands of the testator. So
if it is a last will, it would be a holographic will.
Now insofar as holographic wills are concerned, the Supreme
Court said, “All rules are designed to ascertain and give effect
to that intention of the testator. It is only when the intention
of the testator is contrary to law, morals or public policy, that
it cannot be given effect. Holographic wills therefore, being
usually prepared by one who is learned in the law, as
illustrated in the present case, should be construed more
liberally than the ones drawn by an expert, taking into
account the circumstances surrounding the execution of the
instrument and the intention of the testator. In this regard,
the Court is convinced that the document, even if captioned
as “Kasulatan ng Pag-aalis ng Mana”, was intended by
Segundo his last testamentary act and was executed by him in
accordance with law in the form of a holographic will.”
And being a will, the Supreme Court said, unless it is
probated, it cannot be—the disinheritance mentioned in the
will—cannot be given effect.
So, Holographic wills are more liberally construed than notarial
wills. Because again, holographic wills are just prepared by
the testators themselves who do not know the intricacies of
the law in drafting wills. Unlike if we talk about Notarial wills.
Art. 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 deems it necessary,
expert testimony may be resorted to. (619a)
So probate of holographic wills. Under Article 811, the
minimum requirement during the probate of the
holographic will, at least one witness who knows the
signature and handwriting of the testator should explicitly
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Ateneo de Davao College of Law | Tres Manresa 2015
declare that the will and the signature are in the handwriting
of the testator.
Take note of the testimony. He should explicitly declare,
meaning he should positively, categorically declare and
identify that this signature is that of the testator.
Maravilla vs. Maravilla
We discussed this before in relation to NOTARIAL WILLS. If
you remember in that case, the witness was asked to identify
the signature of the testator. But the witness could not
declare, could not commit that it is really the signature of the
testator. One reason was that when the will was executed, it
was the first time that he saw the signature of the testator,
and the execution of the will happened around 14 years ago
from the time when he was called to testify. So the SC said
that it is enough that he testifies that at the time when the
will was executed, he was in a position to see. So the test of
position was used. But again, that is a notarial will.
Now we’re talking of HOLOGRAPHIC WILLS. We have to be
sure that the will presented before the court is really the same
will executed by the testator how many years ago. And the
only way to know, to be sure that it is really the same will, is
to be sure about the signature, the handwriting of the
testator. Because again in holographic wills there are no
witnesses, no notary public, even the testator most of the
time is no longer around. So the only way to know if this is
genuine is to positively and explicitly declare that this is in the
handwriting of the testator. That is the requirement in
holographic wills.
How does the witness explicitly and positively declare that it is
the handwriting of the testator? In your Evidence, you can
identify – maybe you saw that it was signed by the testator,
or you can testify that you are familiar with the signature of
the testator. Maybe secretary ka sa testator, so every day you
are confronted with documents bearing his signature, etc. You
are really familiar. That will be the tenor of the testimony of
the witness.
Now the law says probate of holographic wills. What do we
understand by probate?
Probate is the allowance of the will by the court after its due
execution has been proved. Although we will discuss probate
more exhaustively when we go to Article 838. But if there is a
will left by the testator, whether it is a notarial will or a
holographic will, once the testator dies it is not automatic that
the will is given effect, na you are given one hectare under
the will so ipakita na nimo siya sa RoD, okay, mao ni ang will,
gihatag asa akoa ang one hectare, itransfer na sa akoa ng
pangalan. No. The will has to be probated first.
When you say probate, you file a petition in court. The court
will determine whether or not it is the will executed by the
testator. We have here question of identity, WON this is
the same will executed by the testator in his lifetime.
Question of testamentary capacity, WON at the time
when the will was executed, the testator was of sound mind
and he was at least 18 years old. And third, question of due
execution, WON this will was executed by the testator
intelligently, voluntarily without mistake, undue influence,
fraud, violence etc. Those are the matters taken up by the
court during a probate proceeding.
Again, this is how the probate of a holographic will is done.
At least one witness if the will is not contested.
If the will is contested, the law says at least 3 of such
witnesses. Meaning, witnesses who will explicitly declare that
the signature and handwriting are that of the testator.
In the absence of any competent witnesses — because again,
holographic wills need not be witnessed, so there might be
Ad Majorem Dei Gloriam
times nawala gyud makawitness. So how can you prove the
authenticity of this holographic will? Will the courts dismiss
the case because no such witnesses are presented? The law
says in the absence of any competent witnesses, and
the court deems it necessary, expert testimony may be
resorted to.
Actually, the court can make its own comparison and
judgment, WON the will is in the handwriting of the testator.
So we have here the will, and the court is also given other
documents written by the testator during his lifetime. So the
court can make its own visual comparison with the will and
the other handwriting. Or again, the court may also require
expert testimony.
Now the first issue here: how do we know that the will is
contested? Is it so difficult to know whether or not a will is
contested? An example would be the case of:
Rivera vs. Yap
Here, there was really an opposition by Jose, but still the
Supreme Court did not consider the proceeding or the probate
as contested, why? Because it turned out that Jose was not a
son or a relative of the testator. He was considered a mere
stranger.
Now in probate proceeding it is required that persons who
intervene or participate should have direct interest. One who
would be directly benefitted or injured by the outcome of the
case. So here, even if he was contesting, but the Supreme
Court did not consider his contest as the contest in legal
contemplation, because again, wala man kayl abot, stranger
man ka. So in the first place wala kay right magapil-apil diri.
Here, the will was deemed not contested. There was no
requirement to present the 3 witnesses.
If the will is contested, the law says at least 3 of such
witnesses shall be required. Now we have the case of:.
Azaola vs. Singson
So is the provision requiring 3 witnesses mandatory?
Merely permissive. Why? Okay, so because during the
execution of the holographic will, no witnesses are present.
And it is not just a matter of presenting 3 witnesses, but 3
witnesses who have the requisite qualification that they must
be able to explicitly declare that the will and the signature are
those of the testator.
So if we cannot present 3 witnesses and the will is contested,
what should the court do? So, expert testimony may be
resorted to if the 3 witnesses cannot be presented. What is
important is that the court is convinced of the authenticity of
the will.
What happened in the case of:
Codoy vs.Calugay
So in this particular case, it is mandatory to present the 3
witnesses. Which is which? Is it mandatory or permissive?
Now if you note, in the case of Azaola vs. Singson, the
Supreme Court also mentioned that “even if the genuineness
of the holographic will were contested, we are of the opinion
that Article 811 of our present Civil Code cannot be
interpreted as to require the compulsory presentation of 3
witnesses to identify the handwriting of the testator under
penalty of having the probate denied.”
So it was also discussed by the Supreme Court, that if the
genuineness of the will is also contested, still, not mandatory.
But in that case, that is just hypothetical, because there was
no question as to the genuineness of the handwriting of the
testator.
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Ateneo de Davao College of Law | Tres Manresa 2015
But in the case of Codoy vs. Calugay, it was really the issue.
The genuineness of the handwriting of the testatrix. The
Supreme Court even said that there were really discrepancies
in the handwriting of the testator in the other documents
compared with the will. There were erasures, the strokes were
different, that was really the major issue that confronted the
Supreme Court. So here the Supreme Court said that it is
mandatory to present the 3 witnesses.
How do we reconcile?
If the issue really, if you are confronted with a case where the
issue is similar to the case of Codoy, na naa gyud didto sa
authenticity and genuineness of the will ang question whether
or not it is the handwriting of the testator, then you answer in
accordance with the ruling of the Supreme Court in the case
of Codoy vs. Calugay. And this is also the later ruling of the
Supreme Court.
But if for example you are given a problem na similar gyud
kayo sa facts sa Azaola case, then most probably the
examiner is referring to the case of Azaola vs. Singson.
But if you really want to top the bar the exam, if the facts are
similar to the case in Azaola, you answer the ruling in Azaola
vs. Singson but you can add, however in the case of Codoy
vs. Calugay, etc. etc.
Again, kung kalimot namo, then the later ruling. (Which is the
Codoy case)
Is there a need to present a copy of the will in court? Of
course it is required. How about if the copy is just a
photocopy or carbon copy, scanned, photostatic copy, picture
sa holographic will? Would that be allowed? Diba you have
already discussed the Best Evidence Rule? Under Rule 130,
Section 3 of the Rules of Court, diba it should be the original
that should be presented. Mao na siya ang general rule, that
the original should be presented. But if the original has been
lost, destroyed, cannot be found, you can present the
photocopy. But of course, if for example you are alleging that
the original is destroyed, you should also prove na it was
destroyed not because it was revoked by the testator,
because if it was destroyed by the testator him with the intent
to revoke, then that will cannot be admitted to probate
because it is already revoked.
Rodelas vs. Aransa
The only question here is whether a holographic will which
was lost or cannot be found can be proved by means of a
photostatic copy.
SC: A photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the
standard writings of the testator
What if wala na gyud copy na nabilin sa holographic will? It
was destroyed, it was burned completely, but without intent
to revoke on the part of the testator. Wala gyuy nabilin at all.
But one person was able to read the will and he memorized
the contents of the will. Well, there’s only one disposition in
the will, so he memorized. All of the properties to A. And he’s
willing to testify. Could that be possible? Would that testimony
be admitted to prove the execution of the holographic will?
As discussed in the case of:
Gam vs. Yap, 104 Phil 509
This was also discussed in the case of Rodelas vs. Aransa.
The holographic will cannot be admitted into probate. Why?
Because in a holographic will, the best and the only safeguard
as to its authenticity would be the will itself.
How do you determine whether the will is really in the
Ad Majorem Dei Gloriam
handwriting of the testator? First you should be able to see
the will. And you cannot see the will by a mere testimony of
witnesses. And, you must be able to compare the will with
other handwritings, other documents bearing the handwriting
of the testator. How can you make a comparison if you don’t
even have a copy of the will?
So, if the holographic will is lost or destroyed, and there’s no
copy available at all, the will cannot be admitted into probate.
So that is insofar as holographic wills are concerned.
We can admit a photocopy, picture, carbon copy, because we
can still make a comparison. The court can still make a visual
examination of the will and assess whether or not it is really in
the handwriting of the testator. But again, without the copy of
the will that would be impossible.
How about a Notarial will?
If a copy of the will is lost or destroyed and there’s no other
copy available, can we still prove the Notarial will? Can it still
be admitted to probate? Yes. That will be in your Special
Proceedings. If there is no copy of the notarial will left, its
contents can still be proved by the recital of at least 2
witnesses. That will be in Notarial wills.
Also in Notarial wills, when there is no contest or opposition,
the testimony of 1 subscribing witness is sufficient to prove
the will. But if the will is contested, all of the subscribing
witnesses and the notary public should testify. That is the rule
in your Special Proceedings.
Now probate can be done by the testator himself during his
lifetime. It can also be done after his death by his heirs,
executor, administrator etc.
Probate made during the lifetime is what we call ante-mortem
probate. Probate made after death is post mortem probate.
Now if it is the testator himself who probates his will, his
testimony will be sufficient. That would be if the probate
made, or the petition for probate of the will is filed by the
testator himself.
Art. 812. In holographic wills, the dispositions of the testator
written below his signature must be dated and signed by him
in order to make them valid as testamentary dispositions. (n)
So based on Article 812, it is very clear that the testator in a
holographic will may add some more provisions after his
signature. So nagbuhat siyag will, he dated and signed the
will, and then he remembered that he forgot to include some
other persons na gusto niya tagaan ug property. So he can
add.
How do we make the additional dispositions valid? The law
says, must be dated and signed by him. So those additional
provisions or testamentary provisions should also be dated
and signed by the testator. So kung walay date, walay
signature, then those will not be considered.
Is it required that each and every additional provision should
be dated and signed pursuant to Article 812? Actually, we also
have Article 813 in conjunction with Article 812. What is the
purpose of requiring that the additional provision should be
dated and signed by the testator?
Of course the purpose here is to forestall fraud, insertion of
dispositions by another person. Because without the signature
and the date, it is not clear whether or not those are really
made by the testator and if made by the testator there was
really testamentary intent in the insertion of those additional
dispositions.
Art. 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
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Ateneo de Davao College of Law | Tres Manresa 2015
dispositions preceding it, whatever be the time of prior
dispositions. (n)
Is it really required that every additional provision should be
dated and signed? According to Article 813, pwede na, you
add, “I also give my land to A”, signed, walay date; then later
on nakalimot pud siya, “I also give my car to X”, signed
napud, walay date. And then ang ika-third, “I also want to
give my jewelry to M”, dated na and signed. So okay lang
nakadtong uban sa ibabaw, after the testamentary
dispositions, walay date basta nay signature, as long as the
last addition is dated and signed. What is the consequence of
that kind of disposition? All those preceding dispositions which
are not dated are considered to have been executed as of the
date of the last disposition. That is the interpretation.
Pero kung date lang walay signature, then dili siya valid.
Disregard those provisions which are not signed although
dated. Again ha minimum requirement, signed, although not
dated. Basta ang last is dated and signed. That is under
Article 813.
Additional dispositions signed A813. Validated
but not dated, but the last
disposition is signed and
dated
Additional dispositions dated Only the LAST disposition is
only, but last disposition is valid.
signed and dated
All previous additional
dispositions are void, but
only those unsigned
additional dispositions are
invalid.
Another situation: What happens if after the signature of the
testator, so nagbuhat siyag will, last will and testament, etc.,
then signed and dated, and then after that naa na puy mga
additional provisions after his will, holographic will. The
problem is those additional provisions are not written by
the testator, not in the handwriting of the testator.
What is the effect of those additional dispositions to the will of
the testator? Will these additional dispositions invalidate the
entire will, or should we just disregard these dispositions
which are not written by the testator himself?
We have to make a distinction:
 If these additional dispositions are not signed by the
testator himself, that means he is not owning those
provisions. He is not avowing that these provisions
are his. So the consequence is those are just
unauthorized insertions or additions. We just
disregard these additional provisions. Why? Because
if we readily invalidate the will because of these
additional dispositions, then it would be very easy to
invalidate the will of the testator by just the simple
act of writing on his will. “Ah wala diay ko nimo giapil
diha, sige sulatsulat anna ko ni siya. I hereby give to
my most beautiful niece my jewelry, etc.” niya
because of that wala na ang will, invalidated na. So
that should not be the case. If not signed by the
testator.
 The other is, if those additional dispositions are
signed by the testator, what is the consequence? By
signing those additional dispositions, wants them to
be part of his will. So the effect here is that we have
a holographic will which is not entirely written in the
hands of the testator. So this now violates the
provision under Article 810. This will invalidate the
entire will. That will be if these additional provisions
are signed by the testator.
Ad Majorem Dei Gloriam
Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will, the testator must authenticate
the same by his full signature. (n)
So insertions, cancellations, erasures or alterations. These are
not allowed in notarial wills. You have to execute a codicil if
you want to do that. If in a holographic will, allowed. What’s
the difference between 812 and 813 with 814.
Ang 814 within the will, the body of the will. Ang kadtong 812,
813, additional after the signature. So you can insert, “I
hereby give to A my lot in Calinan, Davao City. Insert nimo,
and D. I hereby give to A and D.” That has to be
authenticated with the signature of the testator.
When we say full signature, we still follow the rule in the
signature which we discussed before. It should be his full
signature, or full customary signature, but not initials. Not
thumb mark, stamp, etc. It should be authenticated.
Cancellation, like, “I hereby give to A, B and C my house and
lot in Calinan, Davao City.”Niya nanlagot siya kay B, gicancel
niya ang pangalan ni B. So that’s cancellation. You write over,
or blot out nimo. Erasure, ierasenimo, or kadtong white, kuris
kurisan. Erasure and alteration. You alter, you change. These
matters should be authenticated with the full signature of the
testator.
Situation: What is the effect if there is no authentication? Like
“I hereby give to A, B and C my house and lot in Calinan,
Davao City.” Niya gierase niya ang pangalan ni B, niya wala
na authenticate –
GR: The insertion, cancellation, erasure or alteration is
not deemed effective. As if wala gierase, cancel, etc. So it
is still the original tenor of the will without the insertion,
cancellation etc. that will prevail. It is as if naa gihapon si B
didto. That is the general rule.
Exceptions:
1) In the case of:
Kalaw vs. Relova
Was it authenticated, the cancellation of the name of
Rosa? No. So the original provision named Rosa, and
then it was cancelled, substituted by Gregorio. So
here, it was argued by Rosa na because the
cancellation of her name was not authenticated,
therefore it was not effective as a cancellation and
the original tenor of the will naming her as the sole
heir should still prevail. Is Rosa still entitled? No.
Even if the cancellation of her name was not
authenticated? Why?
So in that particular case, the Supreme Court did not
use the general rule. Diba the general rule is if the
cancellation and insertion are not authenticated, then
the original tenor of the will shall prevail. It is as if
there’s no cancellation, there is no insertion. The
cancellation of the name of Rosa was considered as a
cancellation of a substantial provision of a will. And
because it was cancelled, nothing of the original
tenor of the will remains. But, because also the
cancellation was not authenticated, the insertion of
the name of Gregorio because it was also not
authenticated, Gregorio is also not entitled. That’s an
exception to the general rule.
Actually, if you analyze that, we have not yet
reached the law on revocation of wills. In revocation
of wills, a will can be revoked among others by overt
acts. What are the overt acts of revocation?
Canceling, tearing, burning, obliterating. So
cancelling is an overt act of revocation. You cancel a
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Ateneo de Davao College of Law | Tres Manresa 2015
will, you cancel a provision. In that kind of revocation
what the law requires would be:
1. The overt act
2. Intent to revoke or animus revocandi
There is no need for the testator to sign the
cancellation, as long as he cancels with intent to
revoke there is already revocation. So in this case of
Kalaw vs. Relova, the cancellation of the name of
Rosa, diba the Supreme Court said it evinces a
change of mind on the part of the testator so
meaning, there was animus revocandi. And he
cancelled that, so that was an overt act. It was
immediately effective. There is no need for an
authentication for that change of mind to be
effective, because it was actually in the nature of a
revocation. When you revoke, you don’t need to
authenticate that with a signature. That is in the case
of Kalaw.
2) In the second exception, the case of:
Ajero vs. CA
The Supreme Court just mentioned here that if the
cancellation is made in the signature or in the date,
then even if not authenticated, what will happen to
the will? Do we just disregard the cancellation? If the
cancellation is made in the date or the signature of
the testator of the holographic will, it will also cancel
the entire will. Why? Because the signature and the
date in a holographic will go into the very heart of
the will. So if you cancel them you are cancelling a
major provision of the will.
Art. 815. When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established by
the law of the country in which he may be. Such will may be
probated in the Philippines. (n)
Art. 816. The will of an alien who is abroad produces effect
in the Philippines if made with the formalities prescribed by
the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those
which this Code prescribes. (n)
Art. 817. A will made in the Philippines by a citizen or subject
of another country, which is executed in accordance with the
law of the country of which he is a citizen or subject, and
which might be proved and allowed by the law of his own
country, shall have the same effect as if executed according to
the laws of the Philippines. (n)
We already discussed Articles 815 when we discussed the
extrinsic validity of wills. 815, 816, 817.
Diba as we discussed before in 815, 816, 817, when we
discussed the extrinsic validity of wills, from the viewpoint of
place or country diba we may have a situation where the
testator is abroad, so he may comply with the law of the place
of execution or law of the place of his nationality if he’s a
Filipino. There might be a situation when that will is to be
probated, and it is to be probated here in the Philippines, so
our courts will have to look into the laws of the foreign
country. For example the Filipino who executed the will in the
US, he did not follow the law of the Philippines but he
followed the law of the US, and it’s valid. So if that will is to
be probated in the Philippines, then our courts will have to
know what are the laws of the US insofar as the execution of
that will is concerned. And as we discussed before, our courts
Ad Majorem Dei Gloriam
do not take judicial notice of foreign laws. These laws must be
alleged and proved like any other fact, although there are
exceptions.
We also have the doctrine of Processual Presumption, when in
the absence of evidence as to what are these foreign laws,
they can be presumed to be the same as Philippine laws.
Now we may also have a situation where a person leaves
properties abroad and in the Philippines. His will may cover all
his proeprties all over the world. When you discuss your
Special Proceedings, in that particular case, the will, for
example he left properties in the US and in the Philippines,
has to be probated twice. In the places where he left
properties.
For example the executor or the administrator would now
want to dispose of the properties abroad in accordance with
the will. That will has to be probated abroad, in the place
where there are properties to be disposed of in the will. Once
that will is already probated abroad, is it automatic that our
courts will admit the will? Na okay naprobate naman na siya
sa US, diretso nalang nas a Register of Deeds para
makatransfer sa properties na naa sa Philippines. NO. That
same will probated abroad should also be probated in the
Philippines. That is what we call a reprobate proceeding.
If you still remember the case of Suntay vs. Suntay, the will
probated in China? So in the reprobate in the Philippines, the
proponent has to prove among others that the court abroad is
a probate court, what are the procedures of the court abroad
insofar as probate is concerned, etc. So that is in reprobate.
In Re: The Matter of the Petition to Approve
the will of Ruperta Palaganas
G.R. No. 169144 January 26, 2011
Here, the testator left properties abroad and also in the
Philippines. What they did was they directly filed a petition for
probate in the Philippines. It was contested because according
to the oppositors, there should be a prior probate abroad. And
once the will is probated abroad, there will be a reprobate
here in the Philippines, and these matters must be proved:
1. the testator has been admitted for probate in such
foreign country
2. the will has been admitted to probate there under its
laws
3. the probate court has jurisdiction over the
proceedings
4. the law on probate procedure in that foreign country,
and proof of compliance with the same
5. the legal requirements for the valid execution of the
will because the will was executed not in accordance
also with the laws of the Philippines but in
accordance with the laws also of the foreign country
So these are the matters which must be proved before the
Philippine court in a reprobate proceeding. And these cannot
be done if you directly probate the will in the Philippines,
according to the oppositors.
Was the procedure undertaken by the proponents correct?
The Supreme Court said, “Our laws do not prohibit the
probate of wills executed by foreigners abroad, although the
same have not as yet been probated and allowed in the
countries of their execution. A foreign will can be given legal
effects in our jurisdiction. Article 816 of the Civil Code states
that the will of an alien who is abroad produces effect in the
Philippines if made in accordance with the formalities
prescribed by law by the law of the place where he resides or
according to the formalities observed in his country.”
The Supreme Court said that there is no prohibition for a
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
direct probate in the Philippines of that kind of will. Dili
kinahanglan na naa gyud probate abroad and then reprobate
in the Philippines. What is important is that the petition for the
allowance of the will must show the jurisdictional facts, the
names, ages and residences of the heirs, legatees and
devisees of the testator or decedent, the probable value and
character of the property of the estate, the name of the
person from whom letters were prayed, and if the will has not
been delivered to the court, the name of the person having
custody of it. So the jurisdictional facts also. This will be
discussed in your Special Proceedings.
Just take note that the will can be probated directly in the
Philippines without having to undergo prior probate before a
foreign court.
“Reprobate or re-aunthetication of a will allowed in a
foreign country is different from that probate where the will is
presented for the first time before a competent court.” That is
the ruling in the case of Palaganas.
August 6, 2015 (RJV)
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? It is a
will executed by two or more person and jointly signed by
them.
The testamentary provisions of at least two testators are
within one document and in the end, they sign. Under Article
818, joint wills are prohibited. When we say joint wills, we are
referring to the extrinsic validity of will, referring to the form.
You cannot have the form of a joint will in the Philippines and
whether their individual or reciprocal benefit does not matter.
Joint will. As defined, a joint will is one wherein the same
testamentary instrument is made as a will by two or more
persons jointly executed and signed by them.
Mutual Wills or Reciprocal Wills. A will of two persons
wherein the disposition of one is made in favour of the other
and the other also makes dispositions in favour of the other.
It is not necessarily void. It is only void when:
(1) They are embodies in the same will; and
(2) They are in the nature of disposition captatoria.
Example: A (testator) gives all his properties to B; and B also
gives all his properties to A, so they executed for mutual or
twin will. They are giving to each other but as long as their
will is not embodied in a joint will, it is valid. What is wrong is
when they execute a will containing their testamentary
dispositions and jointly signed by them. Then that becomes
void, not because it is a mutual will but because it is a joint
will.
Another example: In a will, A gives all his properties to B with
the condition that B will also give his properties to A. Is that
will valid? NO. Even if they are separately made, they are void
because it contains disposition captatoria (in relation to the
individuality characteristic of wills). This is prohibited as it
makes the will a bilateral act regardless it is make in a joint or
separate will.
Reasons for Prohibition:
1. It destroys the character of a will as a strictly
personal act; If they have a joint will, it will now be a
will of two or more testator. The will has to be by one
testator only. If will is made by two or more persons, it
will not become confidential.
Ad Majorem Dei Gloriam
2. It tends to convert will into a contract; Because the
usual reasons of persons executing joint wills is that they
want mutual or reciprocal propositions in the will
dependent by the grant of another. In which case, the
will becomes a bilateral act, a contact.
3. It runs contrary to the idea that wills are
essentially revocable. The testator can always revoke
his will for any reason. Among others, the testator can
burn, tear, cancel, etc. If it is a joint will and you want to
revoke your will, you have to think not only of your will
but the will of other person.
4. It may subject one to undue influence and induce
parricide. Usually, husband and wife execute a joint will
and each knowing the contents, the dispositions, extent
of properties, etc. This would tend to lead for a spouse
receiving less to kill the other. It is the number one
reason since it is against public policy as it induces
parricide.
5. It makes probate much difficult especially if the
testators die at different times. If you only have one
will and testator dies, the will is admitted to probate and
submitted to the court. In the course of the proceedings,
there are a lot of considerations especially in instances
where the other testator dies 10 years after.
DELA CERNA vs POTOT
Sps dela Cerna executed a joint will and when the husband
died, the said joint will was admitted for probate and
attained finality. When the wife died and the same joint will
was presented but denied probate.
The Supreme Court said although the court recognizes the
previous allowance of the will for probate, the said initial
grant of probate does not constitute res judicata since it
involves will of two different persons. The will of the husband
is distinct from that of his wife although embodied in the
same document. What is deemed final and executory in the
first probate was the admission for probate of the will of the
husband and it willnot bar other proceeding to determine
whether the will of the wife is 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.
Article 819 also refers to joint wills and it states that wills
prohibited under Article 818.
Take note, it talks about wills executed by Filipinos in a
foreign country shall not be valid in the Philippines.
Remember the rule in Article 17, if the will is extrinsically valid
in the place of execution, the will is valid in the Philippines –
Lex Loci Celebrationis rule. However, the place of execution of
joint will is the exception to that rule. Since the law says even
if the will is valid in the place of execution, such joint will shall
not be recognized in the Philippines.
As to Filipino citizens, joint wills are not allowed. Even if it is
executed in a place which allows or disallows execution of
joint will. Absolutely, for Filipinos, joint wills are prohibited.
As to Foreigners, if he executes a will abroad and the laws
abroad recognizes joint will, thus, the will is valid as to the
foreigner. If a joint will is executed by him in the Philippines,
he can follow:
1. Law of his residents
2. Law of the place where he may be
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
3. Law of his nationality
Thus, if his national law recognizes joint wills, in one view, it is
valid in the Philippines and there is also second view saying,
the will is not valid as it is prohibited in the Philippines and
applying Par 3 of Article 17, the said joint will is not valid.
(Note: There is no prevailing view)
Article 17. 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. (11a)
As to Filipino and Foreigners, if a joint will is executed by
them in a place where joint wills are allowed, the said will is
not valid as to the Filipina and valid as to the Foreigner.
Subsection 4. - Witnesses to Wills
Article 820. Any person of sound mind and of the age of
eighteen years or more, and not blind, deaf or dumb, and
able to read and write, may be a witness to the execution of
a will mentioned in article 805 of this Code. (n)
Article 820 refers to Article 805 on notarial will as we do not
need witnesses for holographic wills. The provision refers to
the marginal witness, instrumental witnesses, etc for notarial
wills.
The provision says:
1. Any person of sound mind. Just refer to our previous
discussion regarding soundness of mind;
2. Age of eighteen years or more.
Just refer to our topic on age of testator and apply it to
witnesses.
3. Not blind, deaf or dumb. Although a blind person can
be a testator, he cannot be a witness. He should not be
deaf because it will be very difficult to present his
testimony in court as it needs a sign language “instructor”
in the probate proceedings. A witness is also not dumb
because even if he can see, talk or hear, but he cannot
give an intelligent testimony.
4. Able to read and write. Those illiterate are not allowed
to be a witness.
The following qualifications should be present at the time of
execution of the will. If the witness becomes insane after the
execution of the will, the will is still valid.
Article 821. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a
document, perjury or false testimony. (n)
These are the disqualifications:
1. Any person not domiciled in the Philippines. This
disqualification applies only if the will is executed in the
Philippines. The reason is that these persons will be later
on called to testify in the probate proceedings. If they are
absent, they cannot be reached by our court processes.
Thus, they must be domiciled in the Philippines so that
they will be available to testify during probate
Ad Majorem Dei Gloriam
proceedings. This does not apply to wills executed abroad
since the law enforced at the place of execution applies.
And when in abroad, it is difficult to find someone
domiciled in the Philippines to be a witness.
2. Those who have been convicted of falsification of a
document, perjury or false testimony. The conviction
contemplated here is final because if it is still in appeal,
there is a possibility that the conviction will be reversed.
Equally important for you to know are the crimes
mentioned falsification of a document, perjury or false
testimony. These crimes go to the very integrity of the
person and his capacity to tell the truth. If you are
convicted with falsification or perjury, there is a stigma
that you have no integrity. If you are convicted of murder
or drug use, you can be a witness because even if you
are a murderer, you are not a liar.
Effect of pardon: When a person has been convicted with
falsification of a document, perjury or false testimony by
final judgment, but he was pardoned, can he be a
witness? It depends upon the reason of the pardon.
If the reason of pardon is executive clemency, it does not
erase the fact that you are a liar. Still, you are not
qualified.
If the reason of pardon is your innocence, you can be
qualified as a witness because you did not commit the
crime in the first place.
3. (not in the provision) Notary Public as Witness. A
notary public is disqualified to act as a witness (Cruz vs.
Villasor case). In all cases, if a notary public is also a
witness, he is disqualified as a witness but not as a notary
public. If there are only 3 witnesses and one of them is a
notary public, the will is void because it falls short from
the minimum requirement as to the number of witnesses.
If there are 4 witnesses and one of them is notary public,
the will is still be valid.
Article 822. If the witnesses attesting the execution of a will
are competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the allowance of
the will. (n)
As we mentioned, the qualifications of a witness should be
present at time of the execution of the will. It does not matter
if before they were not be able to read or write but at the
time of the execution of the will, they can now read and write.
However, this will affect their qualification as they testify
during probate if the qualifications were lost. If they
eventually become insane, they cannot testify in the probate
proceeding. Take note, the qualifications of witnesses during
the execution of the will are different from the qualification of
witnesses during trial. The qualification during trial is provided
in the Rules of Court:
Rule 130. Section 20. All persons who can perceive or
perceiving, can make known their perception to others, may
be witnesses.
In addition, if it is a holographic will, we are not talking about
witnesses qualified under Article 820. But there are witnesses
needed for probate of holographic wills. The qualification is
that they can explicitly and positively declare that the
handwriting and signatures in the will are those of the
testator.
As already discussed, what if all the witnesses during the
execution of the notarial will are dead, insane or does not
reside anymore in the Philippines? Under the Rules of Court,
other witnesses will be allowed.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015

But if the creditor, aside from the payment, is also given a

Article 823. If a person attests the execution of a will, to legacy or devise, then if he is a witness, he forfeits whatever
whom or to whose spouse, or parent, or child, a devise or grant he may received from the will.
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 COMPLETE COVERAGE FOR THE FIRST EXAM.
spouse, or parent, or child, be void, unless there are three GOD BLESS US.  KJ
other competent witnesses to such will. However, such person
so attesting shall be admitted as a witness as if such devise or
legacy had not been made or given. (n)

In cases where a witness in a will is also a devise or a legacy

or an heir, is the will valid? The law says the witness is still
qualified but he forfeits his device, legacy or inheritance
(Personal experience story)
Remember that we are talking here of inheritance as to the
free portion. If you are a compulsory heir and also a witness,
you can still claim your legitime because the legitime is
provided for by law. You only forfeit those portions over and
above your legitime.
Take note also, if he is a witness and the person who can
claim is his spouse, or parent, or child, such claim is also
forfeited but he can still be a witness.
The reason why a person who witnessed forfeits his device,
legacy or inheritance is the exposure to conflict of interest. If
you are a witness, you are supposed to testify the due
execution of the will. If you know that you will receive
something from the will, then, you will really testify on its due
execution.
If there are more than 3 witnesses, the person sough to
witness or his spouse, or parent, or child does not forfeit his
or their device, legacy or inheritance as the law says, “unless
there are 3 other competent witnesses in the will”. If there are
4 witnesses and one of those is a legatee, devisee or heir, he
can receive the device, legacy or inheritance because even if
he joins as a witness, the will is still as there are at least 3
witnesses.

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. (n)

The creditors can be witnesses of a notarial will. For example

in a will, there is a provision as to the payment of the debt of
the testator to the creditor and the creditor is also a witness
to the will. What are the effects of this? Will the creditor be
qualified to what is allocated to him? Is the will still valid?
The creditor is qualified to what is allocated to him and the
will is valid. The creditor, even if not stated in the will that the
will be paid, can still go after the estate of the deceased
because prior to the payment of legatees, devisees, etc, there
is a need to pay the obligations.
Please read the case of:

Caluya vs. Domingo

SC said: “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.”

Ad Majorem Dei Gloriam

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