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)

Definition of will:

A will has been defined as species of conveyance whereby a person is permitted,

with the formalities prescribed by law, to control to a certain degree the disposition
of his estate after his death. (Caneda v. CA, 41 SCAD 968 [1993]).

1. "Person."-- refers only to natural persons.

2. "Permitted to control to a certain degree."-- why certain degree? Because

compulsory heirs cannot be deprived of their legitimes. If there are no compulsory
heirs, the power of the decedent to dispose of his estate is absolute. If there are
compulsory heirs, he only has a limited degree to dispose.

That is why the will can only cover the disposable portion of the estate (free
portion.)

FUN FACT: Difference Between a ‘Last Will’ and a ‘Testament’

While today, common usage notes no difference between the two, still under Anglo-
American law, a “testament” disposes of personal property; while a “will” disposes
of real property. (See Costigan, On Wills, p. 11)

Characteristics of a Will:

1. It is strictly a personal act (Art.784)

It cannot be delegated to a third person. The disposition of the will should be
the disposition of the person. Since it is personal, will-making shall not be made in
public. Even if a will is acknowledged before a notary public, a will is not a public
document. Even a notary public is not required to keep a copy of the will.

Rabadilla v. CA
GR 113725, June 29, 2000

A will is a personal, solemn, revocable, and free act by which a person disposes
of his property, to take effect after his death. (Art. 783).
Since the will expresses the manner in which a person intends how his
properties be disposed, the wishes and desires of the testator must be strictly
followed. Thus, a will cannot be the subject of a compromise agreement which
would thereby defeat the very purpose of making a will.
2. There must be animus testandi (intent to make a will)
One should know that the effect of such document is to transfer one’s properties to
a particular person mentioned in the document.

3. The making of a will is a statutory right, not a natural right (Art. 783 - “…with the
formalities prescribed by law”)
This is evident from the clause “permitted . . . to control to a certain degree.” The
consequence of this is that the making of a will should be considered subordinated
to both the law and public policy. (Herreros v. Gil, L-3362, Mar. 1, 1951).

4. It
is Reyes v. CA a
88 SCAD 630
(1997)

A will is the testator speaking after death. Its provisions have substantially the same
force and effect in the probate court as if the testator stood before the court in full life
like making the declarations by word of mouth as they appear in the will. That was the
special purpose of the law in the creation of the instrument known as the last will and
testament. Men wished to speak after they were dead and the law, by the creation of that
instrument, permitted them to do so. All doubts must be resolved in favor of the
testator’s having meant just what he said.

solemn or formal act (Art. 783 - “…with the formalities prescribed by law”)
For the will to be valid, each form shall comply with the rules prescribed by the New
Civil Code.

5. It is a unilateral act
The testator cannot condition the validity of his will upon the consent of another.
(This means that no acceptance by the transferees is needed while the testator is still
alive; any acceptance made prematurely is useless.)

6. The testator must be capacitated to make a will (Art. 796 - 798)

7. It is free from vitiated consent

Vitiated Consent - Consent given out of fear or misapprehension of the identity of
the person who induced such misapprehension. It (the will) must have been
executed freely, knowingly, and voluntarily, otherwise it will be disallowed.

8. It is essentially revocable and ambulatory (Art. 828)

Art. 828. A will may be revoked by the testator at any time before his death. Any
waiver or restriction of this right is void.

9. It is an individual act, as distinguished from a joint act

The will must contain the act of only one person. Joint wills are prohibited.

10. It disposes of the testator’s estate in accordance to his wishes

11. It is effective mortis causa (Art. 777)

it produces effects only after the death of the testator — hence, the will is termed
“ambulatory”

Oral Conveyances

It is not uncommon practice of country folks in the Philippines to convey their

properties to their heirs without executing any private or public document to that
effect. The consistent jurisprudence in this country, despite express codal provisions,
has recognized oral contracts as valid and efficacious to bring about partition of a
decedent’s estate among his heirs provided such partition does not affect the interest
of third persons. (Lasam v. Lasam, CA, L-18184-R, Mar. 29, 1962, 58 O.G. 7232).

Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in
part of the discretion of a third person, or accomplished through the instrumentality
of an agent or attorney. (670a)

KINDS OF WILLS

1. Notarial – an ordinary or attested will, which must comply with the requirements
of the law [Arts. 804-808, CC]

“As to notarial wills, the mechanical act of

drafting the will can be delegated to a third person.
But the content of the will must be the disposition
of the testator himself”

What are the formalities in the execution of a notarial will?

1. In Writing;
2. Executed in a language or dialect known to the testator;
3. Subscribed by the testator himself or by the testator’s name written by some
other person in his presence and under his express direction at the end thereof, at
the presence of witnesses;
4. Attested to and subscribed by at least 3 credible witnesses in the presence of the
testator and of one another;
5. Each and every Page must be signed by the testator or by the person requested by
him to write his name, and by instrumental witnesses in the presence of each other,
on the left margin;
6. Each and every page of the will must be Numbered correlatively in letters placed
on the upper part of each page;
7. Must contain an Attestation clause, stating the following:
a. The number of pages of the will,
b. Fact that the testator signed the will and every page in the presence of witnesses,
or caused some other person to write his name under his express direction,
c. All witnesses signed the will and every page thereof in the presence of the testator
and of one another;
8. Must be acknowledged before a Notary public.
2. Holographic – a will entirely written, dated and signed by the hand of the testator
[Art. 810, CC]

“Holographic wills are supposed to be entirely

written, dated and signed in the hands of the
testator. Even the mechanical act of drafting the
will cannot be delegated to a third person.”

What are the formalities required in the execution of holographic will?

1. Signed by testator himself
2. Executed in a language or dialect known to him (Art. 804)
3. Entirely written
4. Dated;

Note: In case of any insertion, cancellation, erasure or alteration in a holographic

will, the testator must authenticate the same by his full signature.

General Rule: Will-Making Is a Strictly Personal Act

Exception:

The mechanical act of drafting may be entrusted to another, as long as the

disposition itself expresses the testator’s desires, and all the formalities of the law
are complied with, such as the signing by the testator and the witnesses (in the case
of a notarial will), or the copying by the testator in his own handwriting (in the case
of the holographic will). (See Castañeda v. Alemany, 3 Phil. 426; Bagtas v. Paguio, 22
Phil. 227).

Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or
the determination of the portions which they are to take, when referred to by name,
cannot be left to the discretion of a third person. (670a)

COMMENT: Discretion of a Third Person

This provision reinforces the rule that the making of a will is strictly a personal
act.
If, for example, the testator says “I give my land to X for as long as my friend Y
allows,’’ this would be a clear case of illegal delegation of testamentary power.

Art. 786. The testator may entrust to a third person the distribution of specific
property or sums of money that he may leave in general to specified classes or
causes, and also the designation of the persons, institutions or establishments to
which such property or sums are to be given or applied. (671a)

What cannot be delegated to 3rd persons

(1) designation of heirs, devisees and legatees
(2) duration/efficacy of designation
(3) determination of portions, when referred to by name [Art. 785, CC]

What may be entrusted to 3rd persons

(1) designation of person/institution falling under a class specified by testator

(2) manner of distribution of property specified by testator [Art. 786, CC]
Note: testator must first specify the class and the amount of property for proper
delegation.

Comment: Will is “non-delegable”

• making of a will cannot be left in whole or in part of the discretion of a third
person, or accomplished through the instrumentality of an agent or attorney [Art.
784, CC]
• testator may not make a testamentary disposition in such manner that another
person has to determine whether or not it is to be operative [Art. 787, CC]

On Article 786
• What is entrusted to a third person is the distribution of specific property or sums
of money

Requisites of Article 786:

1. The testator entrusts to a third person
2. The distribution of specific property or sums of money
3. These specific property or sums of money are left in general to specific classes or
causes
4. There is the designation of the persons, institutions or establishments to whom
such property or sums of money are to be given or applied.

Art. 787. The testator may not make a testamentary disposition in such manner that
another person has to determine whether or not it is to be operative. (n)

COMMENT:

This refers more on the designation or disposition of the properties. This is not valid
because the disposition is subject to the will of a 3rd person. Whether or not a
disposition shall be valid cannot be left to the will of a 3rd person.

Art. 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)

COMMENT: Possible Different Interpretations

1. This rule is similar to the rule in the interpretation of laws or contracts.

2. The reason is that testate succession, provided the will is valid, is preferred to
intestacy. (See Allen v. Almy, 87 Conn. 517; see also Art. 791).
3. The provision applies only in case of DOUBT. If no doubt exists, and the disposition
is clearly illegal, same should not be given effect. (See Cottman v. Grace, 19 N.E.
839).

The Fixed Law of Interpretation

The intention and desires of the testator if clearly expressed in the will, constitute
the fixed law of its interpretation. (Vda. de Villanueva v. Juico, L-16737, Feb. 28,
1962).

Art. 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)

2 KINDS OF AMBIGUITY

1. PATENT OR EXTRINSIC AMBIGUITY – appears on the face of the will itself.

2. LATENT OR INTRINSIC AMBIGUITY – does not appear on the face of the will.
Ambiguity is discovered by examination outside the will.

4 kinds of Latent or intrinsic ambiguity

1. Imperfect description of the heirs, legatees or devisees

2. Imperfect description of the property to be given
3. When 2 or more persons meet the description
4. When 2 or more things/properties meets the description

How to resolve the ambiguities?

1. Intrinsic Evidence – You cure the ambiguity by examining the will. You examine
the words used in the will.
2. Extrinsic Evidence/Evidence Aliunde –Evidence that is not found in the will but
found outside of the will, such as letters, documents, persons or investigation

Oral evidence
• Supposed oral declarations of the testator cannot be used because the testator is
already dead
• Oral testimonies of other persons can be used for as long as they are not testifying
on the supposed oral declarations of the testator.
Dead Man’s Statute
• In an action where a claim is filed against the estate, where the plaintiff is the
claimant and the defendant is the executor of the deceased person, both parties are
prohibited to testify as to something which the deceased said in his lifetime.

Art. 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 he was
unacquainted with such technical sense. (675a)

Ordinary Terms
GENERAL RULE: Give it an ordinary or literal meaning
EXCEPTION: If there is an intention to give it another meaning (Reason for
exception: The supreme law for interpretation is INTENTION)

Technical Terms
• These are used by persons engaged in specialized activities in certain fields or
profession
GENERAL RULE: Give it a technical meaning
EXCEPTIONS:
1) If the testator himself made the will and it is very clear that he is unacquainted or
unfamiliar with the term
2) If it is really the intention of the testator to give the technical word an ordinary
meaning

Art. 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)

2 parts of Article 791:

1. The will must be interpreted as a whole

2. Testacy favored over intestacy

Art. 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)

GENERAL RULE: The invalid dispositions will not affect the valid ones. The will
remains valid.
EXCEPTION: Entire will is invalidated or the valid dispositions are invalidated is if it is
the intention of the testator that both the valid and invalid dispositions are to be
indivisible, such that the other dispositions cannot be given effect if the other
dispositions turn out to be invalid.

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)

• Article 793 covers those after-acquired properties after the execution of the will up
to the time of the death
• Article 793 only applies to devices and legacies and not to inheritance because
inheritance comprises the universality or an aliquot portion of the estate

GENERAL RULE: Only those properties owned by the testator at the time of the
execution of the will are included. Those acquired after the execution of the will are
excluded.

EXCEPTIONS:
1. If the testator expressly provides in his will that properties acquired AFTER the
execution of the will are included.
2. Article 836 – the effect of the execution of a codicil
3. Article 930 – legacy or device belonging to another person is void as a general rule
because the testator cannot give what he does not own. But if the testator later
acquires the ownership, the legacy or devise can be given effect
4. Article 935 – legacy of credit or remission of debt

What is a “Codicil”?
A document that is executed by a person who had previously made his or her will, to
modify, delete, qualify, or revoke provisions contained in it. A codicil effectuates a
change in an existing will without requiring that the will be reexecuted. The maker of
the codicil identifies the will that is to be changed by the date of its execution.

Art. 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)

GENERAL RULE: All of the testator’s rights in a property are transmitted because it is
presumed that the testator intended to dispose his whole interest in the property.

EXCEPTIONS:
1. If it clearly appears in the will that the testator merely intend to convey a less
interest
2. If the testator clearly provided that he conveys a greater interest
3. The testator can also give property which he knows is not owned by him
Art. 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)

Kinds of validity of wills:

1. FORMAL or EXTRINSIC VALIDITY – refers to the forms and solemnities and the
formalities that have to be conformed and complied with in the execution of the will.
2. INTRINSIC VALIDITY – refers to the legalities of the provisions of wills.

Extrinsic Validity can be viewed from 2 points:

a. Viewpoint of TIME – the extrinsic validity of a will depends upon the observance
of the law enforced at the time the will is made, not at the time of death and not at
the time of probate. Testator cannot possibly and is not expected to know what laws
will govern in the future.
b. Viewpoint of PLACE/COUNTRY
i. Testator is a Filipino who executes a will in the Philippines – Philippine laws shall be
applied

ii. Testator is a Filipino who executes a will abroad before the diplomatic or consular
officials of the Philippines – Philippine laws shall be applied

iii. Testator is a Filipino who executes a will abroad not before a diplomatic or
consular officials of the Philippines:

A. Law of the place where he may be – Article 815

B. Law of the place where he executes the will – Article 17
C. Philippine law – Article 815

iv. Testator is an alien who executes a will abroad:

A. Law of the place where the will is executed – Article 17

B. Law of the place of his residence or domicile – Article 816
C. Law of his own country or nationality – Article 816
D. Philippine law – Article 816

v. Testator is an alien who executes a will in the Philippines

A. Law of the place where the will is executed (Philippines) –Article 17

B. Law of his own country or nationality – Article 817

References:
ARTICLE 17 NEW CIVIL CODE. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are executed. When the
acts referred to are executed before the diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities established by Philippine laws shall be observed
in their execution.

Prohibitive laws concerning persons, their acts or property, and those which have for their object
public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
(11a)

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)

ARTICLE 816. The will of an alien who is abroad produces effect in the Philippines if made with
the formalities prescribed by the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those which this Code prescribes. (n)

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)

KEEP IN MIND:
• The legislature cannot validate a void will

Intrinsic Validity can be viewed from 2 points:

a. Viewpoint of TIME – law enforced at the time of the death of the decedent

Example:

A will was executed in 1910 without giving anything to his illegitimate child.
If he died under the Old Civil Code, the illegitimate child does not have a
successional right. If he died under the New Civil Code, illegitimate children have
successional rights. Since the testator died during the effectivity of the New Civil
Code, the will is intrinsically void.

b. Viewpoint of PLACE/COUNTRY – law enforced is the national law of the decedent

2 Proceedings if a person dies with a will:

1. Probate proper – proceeding instituted to determine the genuineness and
authenticity of a will. It is concerned only with the extrinsic validity of the will.
2. Distribution proceedings – intrinsic validity of the will is considered

GENERAL RULE: Foreign laws may not be taken judicial notice of and has to be
proven like any other fact in dispute between the parties in any proceeding

EXCEPTIONS:
1. If the foreign laws are within the actual knowledge of the court; or
2. When these laws have been considered before by the court in a previous case and
the parties do not oppose as to the consideration of the court as to the existence of
the foreign law. (Stare Decisis)

Instances when the intrinsic validity of wills of foreigners is governed by Philippine

laws:
1. DOCTRINE OF PROCESSUAL PRESUMPTION

In the absence of evidence of foreign laws, it is presumed that it is the same as

Philippine law.

2. RENVOI DOCTRINE (referring back)

The testator is a Philippine resident and a national of another country. The national
law of the decedent says that the intrinsic validity of a will should be governed by
the domiciliary law or the law of his residence or domicile. Hence, Philippine law will
be applied.

SUBSECTION 2
Testamentary Capacity and Intent

Testamentary power refers to the right or privilege given by the state to the
individual to execute wills.

Testamentary capacity refers to the qualification of a person to execute a will.

1. A person may have testamentary power but no testamentary capacity

2. There are persons who have testamentary capacity but they do not have
testamentary power, like in some other countries
3. But they may be used interchangeably

KINDS OF TESTAMENTARY CAPACITY

1. Active Testamentary Capacity – refers to the qualifications of persons to execute

wills
2. Passive Testamentary Capacity – refers to the qualifications of persons to receive
by virtue of a will. This would be discussed more exhaustively under the chapter on
the capacity to succeed.

ARTICLE 796. All persons who are not expressly prohibited by law may make a will.

• Testamentary capacity is the general rule

ARTICLE 797. Persons of either sex under eighteen years of age cannot make a will.
(n)

How do you compute 18 years?

1. Theory under the Spanish Law

Under the Spanish law, the 18th birthday should have passed or commenced before
the person can execute a will. We follow Spanish Law
2. Theory under the American Law
It is sufficient that the day preceding one’s birthday has already commenced.
3. Theory under the Civil Code
You are already 18 years old 4 days before your birthday because under the Civil
Code, 1 year is 365 days. And in 18 years, there are 4 leap years. So, 4 days prior to
your birthday, under the Civil Code, you are already 18 years of age.

ARTICLE 798. In order to make a will it is essential that the testator be of sound mind
at the time of its execution.

ARTICLE 799. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if
the testator was able at the time of making the will to know the nature of the estate
to be disposed of, the proper objects of his bounty, and the character of the
testamentary act. (n)

3 Requisites of a sound mind:

1. The testator must know the nature of the estate to be disposed of
2. He must know the proper objects of his bounty
3. He must know the character of the testamentary act

How Unsoundness of Mind is Manifested

(a) religious delusion resulting in the unsettling of judgment.

(57 Am. Jur. Wills, Sec. 85).

(b) blind extraordinary belief in spirits while executing a will.

(57 Am. Jur. Wills, Sec. 86).

(c) monomania (insanity on a single subject) — if this happens to be on the subject of

wills or succession. (57 Am. Jur. Wills, Sec. 81).

(d) insane delusions — belief in things which no rational mind would believe to exist.
(57 Am. Jur. Wills, Sec. 80).

(e) drunkenness if this results in failure to know the nature of the testamentary act.
(57 Am. Jur. Wills, Sec. 74).

(f) idiocy — congenital intellectual defi ciency. (I Page, Wills,

Sec. 136, p. 283).

(g) a comatose stage, resulting from hypertension and cerebral thrombosis, and
preventing the testator from talking
or understanding. (Gonzales v. Carungcong, L-3272-73,
Nov. 29, 1951).

(h) state of delirium. (Albornoz v. Albornoz, 71 Phil. 414).

Degrees of Mental Incapacity or Incapacity
1. Idiots – IQ average of 25; congenitally and intellectually deficient; considered as of
unsound mind in succession
2. Imbecile – IQ average of 26 to 50; mentally deficient; considered as of unsound
mind in succession
3. Moron – IQ average of 51 to 70; they can do reading and writing; they can be self-
supporting; considered as of sound mind in succession

GENERAL RULE: Testamentary incapacity invalidates the whole will

EXCEPTION: If the incapacity proceeds from a delusion on a particular subject and

the product of such delusion might be declared invalid without affecting other
portions of the will

ARTICLE 800. The law presumes that every person is of sound mind, in the absence
of proof to the contrary. The burden of proof that the testator was not of sound
mind at the time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains the validity of the will must
prove that the testator made it during a lucid interval. (n)

When testator is presumed of unsound mind:

(1) When the testator, one month, or less, before making his will was publicly known
to be insane;
(2) When the testator was judicially declared insane before making his will;
(3) When the testator has Insanity of a general or permanent nature shown to have
existed at one time.

How to establish evidence of soundness of mind?

1. You may use the testimony of the notary public
2. The testimony of the attesting witnesses
3. The testimony of the attending physician
4. The testimony of other witnesses

ARTICLE 801. Supervening incapacity does not invalidate an effective will, nor is the
will of an incapable validated by the supervening of capacity. (n)

• Testator must be of unsound mind AT THE TIME of the execution of the will
• This is the PRINCIPLE OF SUPERVENING CAPACITY

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)

What can the married woman or man disposed of in a will?

1. He/she may dispose of his/her separate property; or
2. He/she may dispose of his/her share in the conjugal/community property.

• If the spouse disposes of the entire community property, the disposition is only
valid with respect to the portion pertaining to the share of the spouse who is the
testator. The remaining portion becomes invalid. But if the spouse knows that he or
she has no right to dispose of the share or his or her spouse but still he or she
provides in the will that such portion or the entire portion be given to a certain
person, in that case, you will learn later on that it is valid. What is to be done is for
the estate to acquire the other portion.