----------~

Chapter 2

TESTAMENTARY SUCCESSION
SECTION l .~WILLS
SUBSECTION 1.-WlLLS IN GENERAL
ARTICLE 783. A will is an act whereby a person ia
pennitted, with the formalities prescribed by law, to con-
trol to a ce.rtain degree the disposition of bis e·state, to
take effect after his death. (667a)
L The operative words in the definition:
1. Act-The definition of a will as an act is too broad
and should have been more clearly delimited with
a more specific term such as instrument or docu-
ment, in view of the provision of Article 804 that
"every will must be in \vriting." Nuncupative, or
oral, wills are not recognized in our Cod.e.
The codal definition of will as act retains the definition in
Article 667 of the Spanish Code, wh ich provides:
"Art. 667. El acto par el cual uno persona dis-
pone para despues de su muerte de todos sus bienes o
de parte de ellos, se llama testamento. •
But the Spanish codal definition was accurate, because,
under the Spanjsh Code, unlike ours, a will was not always
wriuen, e.g. in certain cases, a military will could be oral:
"Art. 720, 1st par. Durante una batalla, asalto,
c.ombc.W, y generalmenre en todo pellflro pnixi1110 de ac-
<:ion de guerra, podra otorgarse testamento 111il1rar do:
palu.br« ante do,i testigv.s. •

37
I
Art. 783
,JoTTINOS AND J URISPRUDENCi,;
38

Pcrnutted-will· 1nakir1g iB purely slatulory.

2.
Fomialities prescnbed by law-the requirement of
3. form prescribed respectively for attested and
holographic \Vills.
co,111·0/ to a certain degree-The testator's power of
4.
testarnent,uy disposition is limited by the rules
on legiti1ues.
A.fie, /Jis death-Testamentary succession, like all
5.
other kinds of succession i.11 our Code, is m.orl:is
causa.
n. An alternative definition: A will is "a personal, solemn,
revocable, and free act by which a capacitated person
disposes of his property and rights and declares or
complies with duties to take effect after his death."
(Vrtug vs. Court of Appeals, 183 SCRA 755 [1990])

JIJ Characteristics of Wills:

I. purely personal (Articles 784-785; 787)
2. free and intelligent (Article 839)
3. solemn and formal (Articles 804-814; 820-821)
4. revocable or ambulatory (Article 828)
5. mortis causa (Article 783)
6. individual (Article 818)
7. executed with animus testandi (Article 783)
8. executed with testamentary capacity (Articles 796-
803)
9. unilateral (Article 783)
10. dispceitive of property (Article 783)
l l. st,.tutory (Article 783)

Re: Ml-See comments under Articles 784 785 and 7$7.

Re: li'.2-The te1:1Latur's eonsem should not be vitiated by
the {;" Ul'>t11. _,nent1011ed in Artie!" 839, pars, 2-6 (insanity, vio-
1
lence, 11111m1d,.tio11, undue innuenl·e, fraud, mistakej.
Ar1- 7$J TF,STIIMENTIIRV Suc!'ESSION 39

~t:: . #3-The requirements of form depend on whether

the \\'111 ts attes1.cd. or holographic. Articles 805-808; 820-821
govern attested wills. Articles 810-814 govern holngraphi
\,ills. Article 804 applies to both. · c
Re: #4-See comments under Article 828.
Re: #5-A necessary consequence of Articles 774 and 777.
Re: #6---Joint wills are prohibited in this jurisdiction. See
comments under Article 818.
Re: #7- This characteristic is implied iI1 Article 783.

In one interesting case, the Court of Appeals had occasion

to pass upon whether or not Rizal's valedictory poem possessed
this characteristic and consequently, whether or not it was a
"ill. The crucial words are found in the poem's thirteenth
stanza:
"Ahl te deja todo, mis padres, mis amores."
(To you l leave everything, my parents, my
loves.]
Declared the Court:
"An instrument which merely expresses a last
wish as a thought or advice but does not contai1: a
disposition of property and was not execu ted wi.th
anim.us test.and~ cannot legally be considered a will,
Such instrument, like Rizal's 'Ultimo Adics,' may ~e
considered a will in the grammatical sense, but not 1n
the legal or juridical sense." (Montinola u. Herbosa, 3
CA Rep. 377)
(The Court had, a paragraph ea.rller, observed "Rizal'~
'Ultimo Adios' is a literary piece of work and was so intended:

s:
. t The court should have
A perceptive and accurate commen • .
left well enough alone. The sentence that follows is as
. . d ·n the poem wou ave
enlightening: "I[ it were in ten de as a wi , . Adios • " Pre-
been entitled 'Ulti·ma Voluntad' and not Ulttrn_o · t to
. . . . • ffect of thts statemt>n ,
sc1nd1ng
. from the unintended
. , comic e ·
l d" lOP' poem IS un 1 · •t'tled)
t h 1s author's );:nowled~e, Rizal s va e re ,
., Artit:\es 7<J6-803.
Re: 118 see <.:on1menla unuer
 Art, 783
JornNOII /\NJJ J URISPRUDENCO:
40

· · · · lied in Article 783.

Re: #9 - This charactcnsL1r: is irnpi . ..
. ?Sc! 8 ecrns tu consider the dispoaiticn '
~. # 1 0 - Aruc 1 e
R". · i •
of the tcslalor's cslalc morl s causa a
· s the purpose of will - 'I
making.
Re: # 11-Vide no. 2 of cornIDenls under Article 783.

Q,.1G1erenda:
1 Would a documcnl merely appoinlin~ .an executor,
· not containing any dispositive provision, _ha:e to
coin ply with the formal requiremcn ts of a will m or-
der to be effective? Would such a document have to
be probated?
2. Would a document containing only a disinheriting
clause have to be in the form of a will and be pro-
bated? (Vide Article 916)
In Seanqio 11. Reyes (508 SCRA 177 [2006 ]I the document,
a holographic one, (entitled Kasulaian ng Paq-aalis ng Mana),
contained onlv a clause of disiriheritance (of one of the testa-
tor's sons). Ju" the probate proceedings, one of the grounds of
the motion to dismiss was that the document "does not contain
any disposition of the estate of the deceased and thus does not
meet the definition of a will under Article 783 of the Civil
Code."
The Court held that the document, "although it may ini-
tially come across as a mere disinheritance instrument, con-
forms to the formalities of a holographic will ... An intent to
dispose morris causa can be clearly deduced from the terms of
the instrument, and while it does not make an affirmative dis-
position of the [testator's] property, the disinheritance of [the
son] nonetheless, is an act of disposition in itself. In other
words, the disinheritance results in the disposition of the prop-
erty of I he testator
·• ... ·1n fa · vor o f t h ose who wou Id succeed 1n
·
the absence of [the disinherited heir]."
The dear implicati·on or s· eangm · 1s· h .
.
<contains
.
.
only .i prov·ision
· o f a· . , t al1s. a document
· 1s1nhentance
which
. legal ccntern-
1n
P l auon, a will and .
· must 1 Je admitted lo probate• lo be effective.
 TEs1'A1'1ENT>\KY Succ,:s~•nN 41

ARTICLE 784. The making or a will h• a strictly per-

_, act· it cannot be left in whole o:r In part to the dia-
son"'
cretion of' a third person, or accomplished through the 1n-
-entaUty of an agent or attorney. (670a}
5tf\.h••
I. This provision give!'i the will its purely personal cnarac-

ter.
11. Non-delegability of will-making-
It -is the exercise or the disposing pov,er thal can-
1. not be delegated. Obviously, mechanical aspects,
such as typing, do not fall within the prohibition.
What constitute the exercise of the disposing
~-
')
po\ver? 'fhe following article provides the answer.

ARTICLE 785. The duration or efficacy of the desig-

nation of heirs, devisees or legatees, or the determination
of the portions which they are to take, when re[etred to by
name, cannot be left to the discretion of a third person.

(670a}
The follo\~;ing constitute the essence of will-making or the
eirerase of the disposing povter, and thus are non-delegable:
1. the designation o[ heirs, dev'isees, or legatees;
2. the duration or efficacy of such designation (inchlding
such things as conditions, terms, substitutions);
3. the determination of the portions they are to receh'e.

Class institutions and those falling ·1.1ndcr Article 786 do

no, have to specify the portions going to the several recipients.
[
ARTICLE 786. The testator roaY entrust to • third 01
person the distribution o{ specific propertY or aUJD•
money that he rnaY leave in general to specified cl••••• or
0
)- cause&, and also the de&ignatton of the persons, tnatituf
n tlona or e11tabllshtnent11 to which such propertY or sllllll
money are to be gtven or applied, (671•1
:b
JJ-
-

ArL 787
J OTl'I NC18 /\ND JU ~I SPJ{UPENCE
42

tion to the rule of non-

!. This co11stitute_s an ,e~ce\ this provision, the things
dc\egabilitv of will rnaking, Wit Jod1-1be non.-delegablc.
· , d here \vou
allo,vcd 10 be dclegn,c
' .
IL Under this prov1s1on.
.
. . t be dctermii1ed by the testator:
1\vn 111u1gs ,1111s
1. the property or a1nounl of money to be given;
and
2. the class or the cause to be benefited.
B. 1\,·o things may be delegated by the testator:
1, the designation of persons, institutions, or es-
tablishments within the class or cause;
2. the manner of distribution.

Quaerendunr. Suppose the testator specified the recipients

(by specific designation) but left to the third person the deter-
mination of the sharing, e.q. "I leave PS00,000 for the PNRC,
the SPCA. and the Tala Leprosarium, to be distributed among
these institutions in such proportions as my executor may de-
termine."
Is this valid?
On£ view: The letter of Article 785 seems to prohibit this,
because_ the recipients are referred to by name and therefore
the por:-ions they are to take must be determined by the testa-
tor. Article 786 applies only where the testator merely specifies
the class or the cause but not the specific recipients.
. d Contra: This actually invo
· lves a 1 esser discretion
. for the
thIT ,person than th ·
,ahould be allowed. e instances allowed by Article 786 and

ARTICLE 787 Th
...atary dl.poalt~n In e teatator may not make a teat•-
.... te .. te,mw wheth •uch manner that another person
. •r or not it ta to be operative. (n)
I. Article 2065
Which thi1 &rticle ill·d~~&r.d 1 of ~he German Civil Code, from
· ve , provides:
A• ,s. 788-i89 T'ESTAMEN1'ARY SuCC1:l-9SION 43

"2065. [Keine 13estimn1ung <lurch Dritte] (11

Der Erblasser kann einc letztwillige Ver[iigung nlcht
in der Weise treffen, di\~ cin antler .. r zu bestimrnen
hat, ob sic gcltcn oder rricht gclten soil.
"(2l Der Erb\Rsscr kann die Bcstimmung der
Person, die eine Zuwendurig erhaltcn soil, aowie die
Bestin1mung des Gegenslandes der Zuwendung nicht
einern anderen uberfassen." 1

ll. 1) This rule is consistent with, and reinforces, the

purel:v personal character of a will, laid down in Article 784.
2) 'I_'his article should be interpreted rationally, It is
not to be so interpreted as to make i.t clash with the principle,
e:-qiressed later u1 this Code (Articles 1041-1057) that the heir
is free to accept or reject the testamentary disposition.
What this article prohibits is the delegation to a third per-
son of the po,.ver to decide whether a disposition should take
effect or not; e.g. "I leave 1 / 8 of my estate to A, and I authorize
B to decide whether this disposition should be given effect or
not." This is prohibited. A, however, is free (indeed, cannot be
deprived of the freedom) to accept or renounce the testamen-
tary benefit.
The next seven articles lay down the rules of construction
and interpretation.
ARTICLE 788. If a testamentary disposition admits
of different interpretations, in case of doubt, that inter
pretation by which the disposition is to be operative ■ ha
0
be preferred. (n)
ARTICLE 789. When there is an imperfect descrip- th
tion, or when no peraon or property exactly an••~ d ~
description, mi11take11 and omJsaions must be eerrec e •

· -- , l 111 The testator m~ not

1 "2065. [N<J determination by th'rd person ihat another person hl\S to
mak~" testamentary di11posit1on i,11 su~h }' rnanoe:ffectiv~.
deiermlne whether it wi\1 be rfleet1ve m ,.ill no\ Ile tho designation ofth•
'[2] TI1e testator may not leave to anoine:·,:i~r~ha content ~ the pl\.•
person who is to receive a gift nor the delilgna '
!German Civil Code]
 Arts. 790-791
Jo-rflN(\S AND JURISPRUDENCE

.,t of the will or from ex.

r: the con te,..
the error appe11.rs irom
. Iuding e
th oral declarations of the tea-
i
trinsic evidence, exc . d when an uncerta nty arises
ta.tor as to his iittentl~~• a~o the application of any of Jt1
811
upon the race of the w ; 1.ntention ii! to be ascertained t
.
pro,.,_stons, the
· testator s •
e will, taking into eonaiderat i on the
th
from the words ofd hich it was made, excluding such
circumstances un er w
oral declarations. In)
ARTICLE 790. The words of a will are to be ta~en in
their ordiruu"y a.nd grammatical sense, unless a clear trrten.
.
tioo to use them• 1·n another sense can be gathered, and ft
that other can be ascertained. d
Tech.nical words in a will are to be taken in their tech-
nical sense, unless the context clearly indicates a contrary "1
intention, or unless it satisfactorily appears that the will b
wa1: drawn solely by the testator, and that he was unac-
quainted with such technical sense. (675a)
fc
ARTICLE 791. The words of a will are to receive an
interpretation which will give to every expression some
e~ect,_ rather than one which will render a.ny of the expres-
SIOns
that . mo..., ti ·
tor--ra ve, an °
d f two modes of interpreting a will,
is be prefened which will prevent intestacy. (n)
ARTICLE 792 Th ·
_.._,_ · e invalidity of one of several dispo·
.. uun■ conta.ined l ill d .
or the other di ~ ai w oea not result in the invalidity
■ po11t ona unle it i
the testator would t ~ as .a to be presumed that
1if1the firat lnvaIJd d~o ve made such other dispositions
■ po■ 1 tion had not been made. (n)
ARTICLE 793. Pro ert
• -tlJ •ball only pa■ , tie !
acquired a.fter the making of
ae-■ ed it at the ti- r re Y, a■ If the testator had nn■ -
appea, b ... e o tnaktn th r--
. 'I the •W that aucb I e Will, ahould it expresalY
AR'flC wa, hla Intention, (n)
- l,E 794 E
,UM, :late,eat ,.,btc · ·
tai
very devise O 1 l pr,
p,o..,ty d. - h the teat.tor ceu e1acy shall convey all
1 eff
WW that lae iat.,.•efl of, ,uue .. it ~ devise or bequeath ID
· · •11.4-4 to 0011vay c early appean l'rorn th• in,
11 1
••• Interest. (n) qu
Art. 79~
TESTAMENTARY SUCCl'.SSIOl'I 45

Article 788:

1. Th is is practically a ii teral lranslation of Article 2084 of

the 8GB:
"_~084. [Verschi~dene Au slegungsmogghcb kei-
tcnJ. Lli.15l der !nhalt emer letzwilligen Vcrfugung ver-
sch1edene Auslegungen zu, so ist im Zweifel diejenige
Auslegung vorzuzichen, bci welchcr die Verfugung Er-
folg habben kann.">

11. The underlying principle here is that testacy is pre-

ferred to intestacy, because the former is the express will of the
decedent whereas the latter is only his implied will,
\I
III. In statutory construction, the canon is worded thus:
"Ut res magis valeat quam pereat."-That the thing may rather
be effective than be without effect.
IV. A similar principle in contractual interpretation is
found in Article 1373.3

Article 789:
L Two kinds of ambiguity referred to in this article--
A. Latent-Not obvious on the face of the will:
"When there is an imperfect description, or
when no person or property exactly answers the de-
scnpt1on
• •
... •
"I institute to l / 4 of my es-
1. latent as to person-J · • (and the testator has
tate my first cousin ose )
more than one first cousin named Jose .

""' ,'. "'"', rm ff~ent w•y• of i o '"' «<•• ion I ff <>• con ""' of , ,,.=••
,, , ,.,..; Uoo adm; <o of ,.u, ou • i o ""'" rofioo•, ITT "~ of '°"
of, »• ITT<«-
" anon shall be preferred LJnder which the disposition maJ have operative

effect.".' "Art. 1373. Jf some stipul1t1lon of any contracl sho\tld admit o! aovoral
meanings, it shall b" ., deratood as t,e11r!n& 1hal 1111porl which •• m11at ad~
0
QU.ate LO ren d er 1l
. effectual.•
------
Art. 79q
JO'T'l'li'/0S AND JURISPRUDENCE
46

0
2. latent as to properly-"I devise ,; my cousin
Pacifico my fishpond 1n Roxas City (and the tes-
tator bas more than one fishpond in Roxas City).
In neither case does there appear lo be ambiguity on the
face of the will; the a1nbiguil-y is latent (latere-to be hidden; to
be concealed)
B. Patent- Obvious on the face of the will:
"\Vhen an uncertainty arises upon the face of the will, as
to the application of any of its provisions ... "
1. patent as to person-"l institute to 1/4 of my es-
tate some of my first cousins."
2. patent
if as to property+"I bequeath to my cou sin
·
Pac ico some ofmy cars."

h1 both cases the_ ambiguity is evident from a reading of

the testamentary provisions themselves; the ambiguity is at-
ent (patere----to be exposed). <>. P

n. How to deal with ambiguities:

A. The provisions of this article do not make a dis-
tinction in the solution of the problem of ambigui-
ties-whether latent or patent. Hence, the distinc-
tion between the two kinds of ambiguity is, in the
light of the codal provisions, an all but theoretical
one.
B. 1. The ambiguity should, as far as possible, be
cleared up or resolved, in order to give effect
to. th_e testamentary disposition. (Again the
pnnciple: Testacy is preferred to intestacy).
2. Method of resolving ambiguity, ,vhether
latent or patent: any evidence admissible and
rel~vant, excluding i11 either case oral decla·
ratwns of testator as to his intention,
'l'lie
. rt:abon
· for th
· e s t atutory exclusion
. · s··
.,s obv101.1
can .t dci:µJ rnan refute u Laic?
Art. 794
ToSTAMENTARY SUCCESSION 47

Article 790:

Similar rules are laid down 111 Ruic 130, Sections 10 and
l4 of the Rules of Court:

"Sec. 10. Interpretation oj· a writing according to

its legal 1neaning.-:-The language of a writing is to be
u1teTpreted according to the legal meaning it bears in
the place of its execution, unless the parties intended
othe1-v.1ise."
"Sec. 14. Peculiar signification of terms.-The
terms of a writing are presumed to have been used in
their primary and general application, but evidence is
admissible to show that they have a local, technical,
or otnerwise peculiar signification, and were so used
and understood in the particular instance, in which
case the agreement must be construed accordingly."

In contractual interpretation, a similar principle is ex-

pressed in Article 1370, par. 1:
~Art. 1370. If the terms of a contract are clear
and leave no doubt upon the intention of_ the con-
tracting parties, the literal meaning of its sapulaaons
shall con tro 1. »

Article 791 :
1s found in Rule 130, Section 11 of the
A similar rule
Rules of Court:
SECTION 11. Jnsmiment construed so as to give
effect to all prouisions.-ln the construction of an in-
strument where there are several provisions or par-
ticulars, such a construction is, if possible, to be
adopted as will give effect to all.
do In .co.ntractual intecp«tation, Mtides t373 and 1374 Ja,y
wn similar principles:
• Art. J 373. If sorne !:ltipulatiun of anY contract
should admit of sf'veral n1eanings, It shall be under-
stood as bearing that iinport which ls n1011l adequate
to render it effectual.
 Art. 794
J OT'J"INGS AND J umsPRUPE]'ICE
48

"Art. 1374. The various stipulations of a con-

tract shall be interpreted together, attributing to the
doubtful ones that sense whicl1 may result from all of
them taken jointly,"

Article 792:
, _ , • alces a plicable to wills the severability
Th,.s. a1 ltc'.~ ~ I in ;tatutory construction frequently
I.
or si-parab1hty pnncip e , .
expressly pro1ided in a separability clause, . , .
IL Article 2085 of the BGB is the source of this article.

"2085. l'l'eilweise Unwirksatnkeitj Die Unwirk-

samkeit eincr von mehrer'eri '°: einern _Tesr.ament en-
thalte nen verfi.igungen hat die Unwirksamkc1t der
ubrigcn Verfugungen nur zur .Folge, wenn_ anrun_eh-
men ist, da/5 der Erblasser d1ese ohne_ die unwirk- 0
same Verfugung nicht getro!Ien haben wurde.
1"2085- (Partial invalidity} T:'e invalidity of o~e
of several dispositions contained 1n a will resu Its m
the invalidity of me other dispositions only if it is to
be presumed that the testator would not have made
these if the invalid disposition had not been made."
[German Civil Code])

Anicle 793:

I. This article (an implant from the Code of Civil Proce-

dure and ultimately from American law.] creates problems
which would not have existed had it not been so nonchalantly
incorporated in the Code.
IL The problems spring from the fact that this article
makes.
the will speak as of the time it is made ' rather than at
the ~e of the decedent's death (which is more logical because <
that 1s when the will takes elTect [Art. 777]1.
-
C

Ill Per the terms of this article, therefore: C

C
• Example No. l: X executes a v.~11 in 1980 with a provision:
1 leave to A l /4 of my estate." When he made the will his es-
t.. te was worth Pl00,000. At the time of his death in l 990, X's d
t
Afl 795 TESTJ\MENTARY Succi;;ss,oN 49

estv.te was worth PS00,000. Per Article 793 , A JS

, . entitled
. to
onl~ P25 , 000 ·
Exan1ple. No. 2: X executes <1 will in 1985 , con tam1ng
· · a
1egacy: "1 give to M all. my sh~·cs in BPL" The testator dies in
1990. o,,_ning, _at t_be lune of hi~ deau:i, ten limes as many BPI
shares as he did when he made the will, Under Article 79" th
. d r h '· "• e
shares acquire a tor l e will was executed arc not included in
the legacy.
JV. Article 793 therefore departs from the codal philo-
soph) of Articles 774 and 776 and constitutes an exception to
the concept of succession as linked to death and rendered le-
gally effective by death.
V. As a suggestion for law reform-the rule should be
turned around thus: "Property acquired after Lhe making of a
will passes thereby unless the contrary clearly appears from
the words or the context of the will."
Vl. ln the meantime, it is suggested that this article be
hberallv construed. Can the word "expressly" in this article be
interpreted to mean "clearly" even if it might be stretching a
point?

Article 794:
I. This article should be read together with Article 929.
Tl. General rule: In a legacy or devise the testator gi,,es
exactly the interest he has in the thing (Article 794).
Exceptions: He can give a less interest (Article 794) or a
greater interest (Article 929) than he has.
In the latter case, if the person owning the interest to. be
acquired does not wish to part with it, the soluuon 111 A1":1c1e
93! can be applied; i.e. the !t:gatee or devisee shall be entitled
0nly to the just value of the interest thal should have been ac-
quired,
4RTICLE 795. Tb.e validity of a wW a• to lt•
depend• upon the observance of tb.e law ln force a
tot:.
tlnie It I• made. (n)