Based from the lectures of Atty. Jazzie M. Sarona-Lozare, CPA LLM, ESQ.
| 3rd Year- Sanchez Roman | 2020-2021
August 13, 2020 - 1st Part | Paclibar
Last meeting we discussed Art. 809, which is a very important
article because it tells us the rule with regard to substantial
compliance in connection to the formalities of wills.
Remember to apply 809 by:
1. The defects and imperfections must be in the form of
the attestation or in the language used in the
attestation clause
2. There must be no bad faith, forgery or fraud or
undue influence or improper pressure
3. The will was executed and attested in substantial
compliance with all the requirements
4. The fact of the execution of the will, as well as the
attestation is duly proven
Very important case under 809 was the case of Caneda—
wherein we emphasized that to determine whether or not the
rule on substantial compliance is applicable, we have to
determine whether or not we have to resort to extrinsic
evidence or evidence aliunde because if we have to resort to
this kind of evidence, then we cannot apply this rule on
substantial compliance.
In the several cases that we have discussed, this rule on
substantial compliance was applied by the Supreme Court
when there was no more need to go to or to resort to
extrinsic evidence to prove whether or not the purpose for the
said formality or requirement under the law has been
achieved. So, as long as a clear examination of the will would
achieve the purpose for the said formality, then we can apply
this rule on substantial compliance.
In other words, for the rule on substantial compliance to
apply, you need not look beyond the will itself—in other
words, extrinsic evidence.
With that, we emphasized that in connection to notarial wills,
we have Articles 804 to 809. Last meeting, we already started
the provisions that are specifically applicable to holographic
wills with Art. 810.
Remember, under Art. 810, it is required that the holographic
will must be entirely written, dated, and signed by the hand
of the testator himself. As we have mentioned, there is no
other form required by law and in fact, unlike that of a
notarial will, the execution of a holographic will need not be
witnessed.
We also discussed the different advantages
disadvantages of such holographic will.
In the case of Roxas:
General Rule: The will must be dated completely. In other
words, day, month and year must be clearly indicated.
But in this case, the Supreme Court applied the rule on
substantial compliance wherein the date was only February
1961. In other words, walang specific date. But the Supreme
Court upheld the validity thereof because there was no issue
as to the exact date when it was executed. There was no
issue with regard to the testamentary capacity of the testator
in that case. Further, there was no appearance of fraud, bad
faith, undue influence, and pressure in the authenticity of the
will.
Also mentioned was that one of the requirements that it must
be completely dated is because prior to the effectivity of the
New Civil Code, holographic wills were not yet allowed. That is
also one of the reasons why the date is important.
Transcribed by: Ampog | Ballos | Ebuen | Mahusay | Malicay | Paclibar | Penamante | Picot | Sinsuat | Sosoban | Teng
Article 811. In the probate of a holographic will, it shall
be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to. (619a)
Probate – is the allowance of the will by the court after its
due execution has been proved.
Here, we are talking about the probate of a holographic will.
When we talk about probate, we are referring to the
allowance of the will by the court after its due execution has
been proven.
Remember, even if a person dies, wherein he executed a will
during his lifetime, the dispositions provided in that will will
not be given effect until the will is admitted to probate. Even
if nakalagay sa last will and testament that this property
belongs to Juan, Juan’s right over that property will not yet be
given effect unless the will is probated.
However, do not confuse this with what we have discussed
before na meron na ‘yung right of the heirs upon the death of
the decedent. But, essentially, with regard to the will,
kailangan kasi iprove ‘yung due execution and authenticity.
That’s why it has to undergo probate.
The probate is a proceeding instituted to determine the due
execution and authenticity of the will.
 wherein the court will determine whether or not the
will was executed by the testator, or
 whether or not he had testamentary capacity at the
time of its execution
 whether or not it was duly executed
 whether or not it was executed by the testator
voluntarily and without any undue influence, and
 essentially we are talking about and addressing the
issue/s and questions as to identity
o if holographic will, we are referring to
whether or not it is in the handwriting of
the testator
 we deal with the question of the testamentary
capacity of the testator and
and
 the question of due execution
Art. 811, as we can see, refers to the probate of a holographic
will. There is no other specific provision in the Civil Code with
regard to the probate of notarial will, unlike here in
holographic will. But, it is extensively discussed in the Rules
of Court. You will have that when you will discuss Special
Proceedings.
When we talk about holographic will, actually it is substantive
law because you have this provision under the Civil Code.
Under Art. 811, it states “it shall be necessary that at least
one witness who knows the handwriting and signature of the
testator explicitly declare that it is in the handwriting of the
testator”.
By the word “shall”, applying the rules on Statutory
Construction, it is mandatory that at least one witness who
knows the handwriting of the testator explicitly declare that
the will and the signature therein is that of the testator.
1
Based from the lectures of Atty. Jazzie M. Sarona-Lozare, CPA LLM, ESQ. | 3rd Year- Sanchez Roman | 2020-2021
Take Note, the witness being referred to does not necessarily
mean that he has seen the execution of the will because
remember, in holographic wills, hindi natin kailangan ng
witness. So, the witness under art. 811, he does not testify
na nakita niya si testator nag execute ng holographic will.
What he will testify thereto is that he knows the handwriting
and signature of the testator. He expressly declares that yung
will at yung signature na nandoon are in the handwriting of
the testator.
If the will is not contested, only one witness is sufficient who
can explicitly declare that, again, the will and the signature
therein are in the handwriting of the testator.
Also important here is the phrase “explicitly declare”. In other
words, you must be positive, sure, kabalo gyud ka na that
holographic will is indeed in the handwriting of the testator.
Of course, if the will is probated during the lifetime of the
testator, in other words, it is the testator himself who goes to
court and testifies as to the due execution of the will, i think
common sense na hindi na natin kailangan itong one-
witness rule mentioned under Art. 811. In other words,
under that scenario, the testimony of the testator shall be
sufficient to identify na kanya talaga ‘yung handwriting and
signature sa holographic will na yun.
What if it is contested and the will is probated during
the lifetime of the testator? Of course, the testator will
testify that it is in his handwriting. But, let us say there are
other persons that will contest na hindi niya yan handwriting
or handwriting niya yon, but there was vitiated consent or he
did not really execute it. What would be the effect?
Remember, in that scenario, since si testator na ang nagsabi
na siya ang nag-execute, then the burden of proof is upon the
person who contest the validity or the due execution of the
will. In other words, that person who questions the execution
of that holographic will has to show proof that there is indeed
vitiation of consent. That is with regard to the first sentence
under Art. 811.
So, if the will is not contested, only one witness. If the will is
contested, at least 3 of such witnesses shall be required.
Again, the 3 witnesses mentioned here need not be witnesses
upon execution of the holographic will. The witnesses here will
only be required to testify that, again, the handwriting and
signature of the testator in the said holographic will is really
that of the testator.
August 13, 2020 – 2nd Part | Penamante
Now, what if there is no witness who can be presented under
Art. 811? Meaning, there’s no other witness who could
identify and expressly declare that the handwriting and the
signature in the will is that really of the testator. Can the will
be still probated or is the court obligated to dismiss the
petition for probate because of failure to comply with this
requirement?
Do remember that testacy prevails over intestacy. As much as
possible, the intent of the testator must be given effect.
Applying that in Art. 811, in case there’s no more witness who
could explicitly identify and declare the handwriting of the
testator, the probate court should undertake measures in
order to determine whether or not the will is valid, whether or
not the handwriting and the signature therein is really of that
the testator. Even if there are no such witnesses, the probate
court may make its own determination.
Transcribed by: Ampog | Ballos | Ebuen | Mahusay | Malicay | Paclibar | Penamante | Picot | Sinsuat | Sosoban | Teng
In other words, even if you have the phrase “shall”, if under
the circumstances, in other words exception na siya kasi
namatay na or wala nang kakilala who could identify his
signature. As long as there’s good faith no witness can be
found, the probate court should not automatically dismiss the
petition for probate. It can make its own determination even
if there’s no witness.
As long as there are other documents that can identify the
handwriting of the testator that can be presented to the court
and the court can make comparisons. The court can also
resort to testimony of an expert witness, the one who could
identify that such is really the handwriting of the testator
comparing it to his other documents.
The probate court should exhaust all possible remedies to
determine whether or not the holographic will is valid. The
fact that there are no more witnesses that would possess all
the qualification under Art. 811, it does not give the probate
court the license to automatically dismiss the petition for
probate.
Aside from witnesses, it is also stated under Art. 811 that in
the absence of any competent witnesses, expert testimony
may be resorted to. However, the court cannot be compelled
to resort to expert testimony. It is only when in the absence
of any competent witness as mentioned in Art. 811 and when
the court give it necessary.
That is with regard to probate of a holographic will.
Now during the probate of the holographic will, take note that
it is required that you should present the copy of the
holographic will in court. Why? Anong iprobate kung hindi yun
ipresent sa court?
Can we not say that it was lost or burnt but there’s one
person who memorized the dispositions of the will, in toto.
Can the testimony of that person be sufficient to admit
probate of the will? Of course not. The will itself must be
presented even if another person has already memorized the
dispositions of the will, word for word.
When we talk about a holographic will, a copy of the will must
be presented in court for it to be admitted to probate.
August 13-Part 3 | Praisah Marjorey Picot
7:01-19:00
It is only required to be written, dated and signed in the
hands of the testator. It is not even specified kung saan
nakalagay iyong date pwede sa taas, pwede sa gilid, pwede
sa baba, pwede sa body ng last will and testament.
And how about the signature, well obviously the signature
must appear after the disposition in the holographic will.
Q. Now what happens if there are additional dispositions after
the signature of the testator?
A. Those additional dispositions can be considered valid if it is
in compliance with Art. 812. And what is the requirement
under Art. 812? That the additional dispositions are signed
and dated in the hands of the testator. So again, signed and
dated ang required under the law.
Q. Now what if the additional dispositions are not signed and
dated by the testator? What is the effect?
2
Based from the lectures of Atty. Jazzie M. Sarona-Lozare, CPA LLM, ESQ. | 3rd Year- Sanchez Roman | 2020-2021
A.The additional dispositions will be disregarded but the
original will, the original dispositions will be upheld. So valid
gihapon ang will but the additional dispositions will be
deemed as if those were not written in the will. In other
words the additional dispositions will not be given effect.
Again this only deals with holographic will. We cannot apply
the same sa notarial will because remember sa notarial will
we have the body of the will, the dispositions and then
followed by the attestation clause and the acknowledgement.
Kung may nakalimutan si testator and then ilagay niya lang
sa baba, maglagay siya ng additional dispositions sa baba.
Take note that the presence of those additional dispositions in
a notarial will, will invalidate the entire will. Why? Because we
have emphasized before that the signature of the testator
must be at the logical end of the will itself meaning after the
disposition. So kung may additional dispositions after
attestation, after acknowledgement then the signature of the
testator does not appear at the logical end.
So again with respect to notarial wills you cannot anymore
add dispositions after the signature what you can do is to
create another will or a codicil so that it would be considered,
those additional dispositions would be considered. But again
sa holographic will in the same will itself we can make
additional dispositions yung requirement lang sa law is that
such additional dispositions must be dated and signed.
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 dispositions preceding it, whatever be the time of prior
dispositions.
So again holographic will ito, additional dispositions as
mentioned in Art. 812 must be signed and dated.
Q. What if the additional disposition is merely signed, walang
date?
A. Hindi yan siya ma consider, unless last disposition is duly
signed and dated by the testator.
Q. And what is the effect when the last disposition has a
signature and a date in the handwriting of the testator?
A. It validates the dispositions preceding it. So all the
dispositions now will be considered valid even if yung mga in
between additional dispositions are merely signed and not
dated. Basta yung last disposition is signed and dated by the
testator. Iyon yung important that is when you apply Article
813.
Only the dispositions obtaining the signature and the date will
be valid. If the additional dispositions are signed without
being dated but there is that last disposition which is signed
and dated, again it would be valid.
Now kung mga additional dispositions including the last
disposition are only signed not dated then those
dispositions are again not considered valid. Again they are not
considered written into the will. But the original will, the
original disposition, original body will still be considered as
valid.
We have here an example,
Scenario (1)
Transcribed by: Ampog | Ballos | Ebuen | Mahusay | Malicay | Paclibar | Penamante | Picot | Sinsuat | Sosoban | Teng
I, Juan dela Cruz, a resident of Davao City, being of sound
mind, hereby declare….
xxxx
xxxx
Signed: Juan dela Cruz (May 1, 2020)
In addition, I hereby declare xxxx
Signed: Juan dela Cruz
I would also like to add that I hereby declare
Signed: Juan dela Cruz (July 31, 2020)
Alright so let us say this is in the handwriting of the testator.
So in the original body of the holographic will nakalagay yan
na duly signed and dated by him. And subsequently merong
additional disposition pero meron lang sign niya walang
date so di yan siya supposedly valid. Pero ma cure in other
words yung defect if the last disposition is in this case, when
the last disposition is signed and dated by the testator itself.
Now another scenario,
Scenario (2)
I, Juan dela Cruz, a resident of Davao City, being of sound
mind, hereby declare….
xxxx
xxxx
Signed: Juan dela Cruz (May 1, 2020)
In addition, I hereby declare xxxx
(June 2, 2020)
I would also like to add that I hereby declare
Signed: Juan dela Cruz (July 31, 2020)
This one, notice the difference. So body is the same, the
original disposition is the same. The additional disposition
is in the handwriting of the testator not signed but dated.
And then the last disposition is signed and dated by the
testator.
Can we say that the last disposition validated that second
disposition? Now take note if the additional disposition is
dated only and the last disposition is signed and dated, only
the last disposition is considered valid of course together with
the original body of the will. That previous additional
disposition yang “ In addition, I hereby declare” that
disposition which is not signed is void not valid kasi unsigned
siya. If it is unsigned although dated its subsequent or its last
disposition which is signed and dated will not validate that
disposition that is unsigned.
Why? Because with this additional dispositions essentially
they are considered independent of each other. And with
regard to this additional disposition na dated pero hindi
signed, it means that it is incomplete kasi importante na na-
sign. Tingnan niyo ulit ang Article 813 very specific yung
scenario niya doon diba. Signed without being dated in other
words we cannot apply it to this scenario wherein it is dated
but not signed. So take note of that.
3
Based from the lectures of Atty. Jazzie M. Sarona-Lozare, CPA LLM, ESQ. | 3rd Year- Sanchez Roman | 2020-2021
Now another scenario,
Scenario (3)
I, Juan dela Cruz, a resident of Davao City, being of sound
mind, hereby declare….
xxxx
xxxx
Signed: Juan dela Cruz (May 1, 2020)
In addition, the testator hereby disposes his property xxx
So body of the will signed, dated by the testator and there is
an additional disposition. However it is not in the handwriting
of the testator but by some other person. Now if it is not
signed by the testator whether typewritten na or handwriting
of a third person.
If it is not signed by the testator it will be disregarded it will
not have any effect to the body of the will or the original will
itself. So the will itself would still be considered as valid. I-
disregard lang iyang additional dispositions which is not
signed by the testator, which is not in the hand of the
testator.
However compare that to this scenario,
Scenario (4)
I, Juan dela Cruz, a resident of Davao City, being of sound
mind, hereby declare….
xxxx
xxxx
Signed: Juan dela Cruz (May 1, 2020)
In addition, the testator hereby disposes property xxxx
Signed: Juan dela Cruz
I would also like to add that I hereby declare
Signed: Juan dela Cruz (July 31, 2020)
Again we have the original body of the will, handwritten
signed and dated by the testator. Then the additional
disposition is not in the handwriting of the testator pero
it was signed by him and then there’s that last disposition
wherein it is in his handwriting and also dated.
Can we say that the last disposition validated the previous
disposition which is not in the handwriting of the testator? In
this case the holographic will is not entirely written in the
hands of the testator. So this time because of that additional
disposition which is not in the handwriting of the testator,
that is signed by the testator then the whole will would not
be considered as valid.
Why the difference? Balik tayo dito (refer to Scenario 3)
now in this case i-disregard lang yung additional disposition
kasi hindi naman signed by the testator. Valid pa rin yung
original will.
Why do we consider the original will still valid? It is still valid
because kay wala naman labot dira ang testator sa additional
na disposition. He did not affix his signature therein, he did
Transcribed by: Ampog | Ballos | Ebuen | Mahusay | Malicay | Paclibar | Penamante | Picot | Sinsuat | Sosoban | Teng
not own it. If we allow such additional disposition which is not
in the handwriting of the testator, affect the original will it
would be unfair to the testator and it would be very easy to
invalidate the will na meron lang makita na iba, hala
dagdagan lang niya sulatan lang niya para ma invalidate yung
will. So to be fair to the testator what would happen in this
scenario is i-disregard lang iyong additional disposition that
was not in his handwriting and that he did not sign.
Dito naman (refer to Scenario 4) pinirmahan niya kasi. So
when he signed it, he owned the said additional disposition.
And that additional disposition however is not in his
handwriting. So this time it will affect the whole will itself. So
the will, will not be considered as valid anymore. So I hope
that is clear ha.
(Refer to Scenario 3)So we should not penalize the testator
for the acts of third persosn over whom he has no control.
And that’s why any additional disposition that is not signed by
him should not affect the original will.
(Refer to Scenario 4)But if the additional disposition that is
not in his handwriting is signed by him.
Aug 13- Part 4| Bea Reyes
If the additional disposition not in his handwriting is signed by
him, it means that the testator is owning or adopting that
additional disposition and it will now form part of the will.
Since it is not in compliance with the requirement that the
holographic will should be entirely handwritten, dated and
signed by the testator, then the will is not considered is not
valid. Take note of that.
I, Juan dela Cryz, a resident of Davao City, being of sound
mind, hereby declare….
xxxx
Xxxx
Signed: Juan dela Cruz (May 1, 2020)
In addition, I hereby declare xxx
Signed: Juan Dela Cruz
I would also like to add that I hereby declare
Signed: Juan dela Cruz (July 31, 2020)
Discussion: Ito siya yung scenario under Article 813. Again
valid yan.
It is signed. There is an additional disposition but not dated.
Then there is that additional disposition or last disposition
which was dated and signed which will validate all the
additional dispositions.
Effects of Additional Dispositions in a
HOLOGRAPHIC WILL
 If the additional disposition written by a third
person is signed by the testator, it means that he
has the intention to own, to incorporate those
provisions into his will. And because of that we
now have a will that is not entirely written in the
hands of the testator. So the entire will is
invalidated.
 But if those additional provisions are not signed
by the testator, then you just disregard those
additional provisions. Because if we all that to
affect the validity of the will, it would be very easy
4
Based from the lectures of Atty. Jazzie M. Sarona-Lozare, CPA LLM, ESQ. | 3rd Year- Sanchez Roman | 2020-2021
to invalidate the will of the testator by the simple
expedient of writing something in the will.
Discussion: Again, remember the effects of additional
disposition in a holographic will.
What if nakito mo yung holographic will tapos nakit mo na
disinherit ka or walang binigay sa iyo, what you would do is
you would put additional dispositions. It should not affect the
entire will if it is not signed by the testator. So that is in
connection to Article 813 – Additional Dispositions in a
Holographic Will.
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)
Discussion: Now here we are talking bout insertion,
cancellation, erasure or alteration in a holographic will.
Sa Art. 813 naman are additional dispositions. So magkaiba
ang application.
Art 813- additional dispositions
Art 814- insertion, cancellation, erasure or alteration
They are not necessarily additions because the additions
under Art 812 and Art 813 are dispositions after the original
dispositions of the will. While when we talk about this
insertion, cancellation, erasure or alteration, these are done
within the body of the will itself.
Insertion – in between two words, you want to insert
some disposition or name
Cancellation – you cancel a certain disposition, a word or
name in the will
Alteration – you erase and you change it with another
Discussion: In erasure, i-erase mol ang. Walang changing it
with another word or name.
The only requirement with regard to this insertion,
cancellation, erasure or alteration is the full signature of the
testator. So kung may madagdag na word, dapat may full
signature ng testator tabi nun.
When we say full signature under Article 814, we are referring
to the full signature we have mentioned under Article 810.
Full customary signature of the testator. Again, initials are not
allowed because it is very easy to forge.
The purpose of authenticating the insertion, cancellation,
erasure or alteration is to prevent unauthorized insertion,
cancellation, erasure or alteration. Essentially to prevent
fraud.
What is the effect if there is insertion, cancellation,
erasure or alteration but such is not authenticated by
the full signature of testator?
The effect is that is as if the will is not cancelled. It is as if
there is no insertion. It is as if there is no erasure or
alteration. In other words, the will would still be valid in its
original form.
Again for the insertion, cancellation, erasure or alteration to
be valid or to be effective, it must be authenticated by the full
customary signature of the testator. If there is no
authentication, the will itself would still be valid in its original
Transcribed by: Ampog | Ballos | Ebuen | Mahusay | Malicay | Paclibar | Penamante | Picot | Sinsuat | Sosoban | Teng
form. In other words, you just disregard the insertion,
cancellation, erasure or alteration which were not
authenticated by the full signature of the testator. So the will
remains valid as if there was no change at all to the said will.
But there is one exception that you have to take note. If it
can be shown that even if the insertion, cancellation, erasure
or alteration is not authenticated but there is an intention to
revoke that will then yung authentication requirement under
Article 814 is not required and the revocation would never be
the less be given effect. We will discuss more on that in our
online class next meeting.
That is what you need to remember as an exception to this
rule regarding insertion, cancellation, erasure or alteration.
So just a quick recall so far of what we have discussed:
 If the testator places additional provisions or dispositions
in a holographic will, under Article 812 it is required that
the same must be dated and signed.
 If it is dated but no signature, such additional disposition
will not be valid. It will be disregarded and cannot be
cured by an additional disposition or the last disposition
being dated ang signed. But the will itself will still be
considered as valid.
 If the additional dispositions are signed but not dated but
the last additional disposition is signed and dated then all
the preceding dispositions will be considered as valid. It
is as if all the additional dispositions which are not dated
but signed will be considered dated as of the last
disposition which is dated and signed by the testator.
 Also we have mentioned that if the additional disposition
were written by a third person, so not in the handwriting
of the testator, if the testator signed the said disposition,
the will is void. But if that additional disposition which is
not in the handwriting of the testator is not signed by
him, then we just disregard that additional disposition
and the original will will still be considered valid. So that
additional disposition not in the handwriting of the
testator without his signature would simply be
disregarded.
 Article 814 is different because we are talking about
insertion, cancellation, erasure or alteration. So the
authentication requirement here is the full signature of
the testator under Article 814.
 What is now the effect if it not authenticated? The
general rule is that the insertion, cancellation, erasure or
alteration would be disregarded. It is as if there is no
insertion, cancellation, erasure or alteration and the will
is valid in its original form. The exception is if it shows
intention to revoke on the part of the testator. So even if
not authenticated but there is intention to revoke, such
will could not be considered anymore.
Effects of the insertion, cancellation, erasure or
alteration in a holographic will:
1. If such were made by the hand of the testator
himself and he has authenticated the same, it
alters the will accordingly without affecting the
will’s validity.
2. If such were made by the hand of the testator
himself but was not authenticated by him, then
they would be deemed as if not written at all and
the will remains valid as before.
3. If such were made by the testator but not
handwritten by him, whether or not authenticated
by him, the entire will is nullified because it is no
longer entirely in the hand of the testator himself.
4. If such were made by a stranger and the testator
5
Based from the lectures of Atty. Jazzie M. Sarona-Lozare, CPA LLM, ESQ. | 3rd Year- Sanchez Roman | 2020-2021
has authenticated the same, then the entire will is
also nullified because it is no longer entirely
written by the hand of the testator himself.
5. If such were made by the stranger but was not
authenticated by the testator, such changes would
be deemed as if not written at all and the will
remains valid.
Discussion: This is a summary of the effects with regard to
insertion, cancellation, erasure or alteration in a holographic
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)
Discussion: This is not new. This is just a quick review
because we have discussed this extensively under Article 795.
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)
Discussion: We have also discussed this last time under
Article 795.
August 13- Part 5 | Bai Johara Sinsuat
Article 816. The will of an alien who is abroad produces
effect in the Philippines if made with the formalities prescribed
by the law of the place in which he resides, or according to
the formalities observed in his country, or in conformity with
those which this Code prescribes.
Article 817. A will made in the Philippines by a citizen or
subject of another country, which is executed in accordance
with the law of the country of which he is a citizen or subject,
and which might be proved and allowed by the law of his own
country, shall have the same effect as if executed according
to the laws of the Philippines.
So, as mentioned, we have already discussed these Articles,
under Article 795.
Again, we reiterate that, when it comes to extrinsic validity:
1. If the testator is a Filipino who executed his will
here in the Philippines, apply Philippine law.
2. If he is a Filipino residing abroad, and he
executed the same in the embassy of the
Philippines, then, you can apply the Philippine law,
because it is deemed executed within the territorial
jurisdiction of the Philippines.
3. if he is a Filipino who executed his will abroad
but not in the embassy of the Philippines, you
can apply the Philippine law or the law where he
executed the said will.
4. if he is a foreigner who executed the said will
here in the Philippines, then, we apply either
Philippine law or his national law.
5. if he is a foreigner who executed his will abroad,
we can apply the Philippine law, his national law or
the law of his domicile, or the law where he executed
the said will.
Transcribed by: Ampog | Ballos | Ebuen | Mahusay | Malicay | Paclibar | Penamante | Picot | Sinsuat | Sosoban | Teng
Just recall what we have learned regarding extrinsic validity of
wills from the viewpoint of place or country. So, wala tayong
problema kung saan niya iexecute, we just need to determine
what law will be applied. We can apply the Philippine law or
the law where he executed it. We can apply his national law
or the law of his domicile.
In connection to that, also recall yung discussion natin, yung
renvoi doctrine, as well as the doctrine of processual
presumption, wherein in the absence of evidence as to what
is the foreign law, it can be presumed to be the same as that
of the Philippine law.
Let us now continue with the next Article.
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 refers to what we call a joint will.
Joint will is one where the same testamentary
instrument is made the will of 2 or more persons and
is jointly executed and signed by them.
Reasons why a joint will is not allowed
1. It destroys the character of the will as strictly a
personal act.
2. It tends to convert the will into a contract.
3. It runs counter to the idea that wills are
essentially revocable.
4. It will be subject to influence.
5. It makes probate more difficult in case of death of
testators at different times.
What is the reason why a joint will is not allowed?
1. It destroys the character of the will as strictly a
personal act.
First, it destroys the character of the execution of the
will being strictly personal in nature. Diba, we have
mentioned this yung PASS-U-C-FRIDM before, that a will is a
personal act. It is the act of a testator himself, and, supposed
to be, the contents are confidential. If 2 or more persons
execute the will, then, it cannot anymore be considered the
personal act of a testator; rather, by 2 or more persons.
2. It tends to convert the will into a contract.
Now, the second reason is that such joint will tends
to convert the will into contract. What happens here, you
have atleast 2 persons who execute the will. So, if 2 persons
execute such kind of will, the will will now be converted into a
bilateral act, instead of being unilateral.
3. It runs counter to the idea that wills are
essentially revocable.
Third, a joint will runs counter to the idea that wills
are essentially revocable. Remember, as long as the testator
is alive, he can revoke his will. Even if it has been admitted to
probate during his lifetime, after that he changed his mind, he
can still revoke it during his lifetime. Pwede gihapon nya to
marevoke. But, in a joint will, how will you go about such
revocable nature of the will? Kung irevoke sa isa, ni Juan,
paano yung kay Pedro? That will hinder this characteristic.
4. It will be subject to influence.
Now, fourth reason is it will be subject to influence.
There are authors who say that one of the reasons why we
6
Based from the lectures of Atty. Jazzie M. Sarona-Lozare, CPA LLM, ESQ. | 3rd Year- Sanchez Roman | 2020-2021
have 818 is if we do not have this provision, yung joint wills
will result to parricide.
Let us say Juan and Pedro executed a joint will, and
they leave properties to each other, meaning it is a reciprocal
benefit. Kabalo si Pedro na naa syay makuha if mamatay si
Juan. So, pwede niyang patayin, or ipray niya na mamatay
para makuha niya yung property. For reasons of public policy,
joint wills are not allowed.
5. It makes probate more difficult in case of death
of testators at different times.
Fifth, it makes probate much more difficult, in case
of death of testators which is at different times. Namatay si
Juan, probate. Namatay si Pedro, probate na sad. It will be
very inconvenient. In addition, it is expensive, in the sense
that isa lang man unta ang will pero twice nimo sya iagi sa
probate proceeding because we have 2 or more persons who
jointly executed and signed the will.
Those are the reasons why joint wills are not allowed.
Assuming that you have a will wherein may first portion,
nandoon yung disposition ni Juan, and then, sa next portion,
disposition ni Pedro, nakastapler, nakalagay page 1 of 2. Page
1 kay Juan, kay Pedro ang page 2. Pero, holographic ang will,
both in their handwriting. Is that valid? Is that considered as
a joint will?
NO (it is not a joint will). In that case, you can
separate the first portion from the second portion. Essentially,
when we are saying joint will, para syang joint affidavit that
“we, Juan and Pedro, hereby execute this will and dispose our
properties in the following manner.” Wala ring problema kung
notarial will, disposition, attestation, acknowledgment kay
Juan, followed by disposition, attestation, acknowledgment by
Pedro. Pwede mo naman sya iseparate. Pero, kung notarial
will sya, nakalagay nga noh na “we, Juan and Pedro,” joint
will yan sya, and again, that is prohibited under our law.
What about mutual/reciprocal/twin wills?
Mutual (reciprocal/twin) wills are separate wills
of 2 persons which are reciprocal in their provisions,
giving the separate property of each testator to the
other.
Sa will ni Juan nakalagay, “I hereby give this house
and lot to Pedro.” Kay Pedro, “I hereby give this parcel of
land to Juan.” Yan yung mutual/reciprocal, also known as twin
will.
Are mutual wills prohibited under our law?
General Rule Mutual/reciprocal/twin wills are not
prohibited.
Exceptions UNLESS
1. They are made in the form of a
joint will, OR
2. Even if they made these wills in
separate documents but they are
in the form of DISPOSITION
CAPTATORIA
What do we mean by DISPOSITION CAPTATORIA?
In DISPOSITION CAPTATORIA, the testator
gives/disposes something in favor of another person
under the condition that the said person will give
something to the testator or some other person.
Transcribed by: Ampog | Ballos | Ebuen | Mahusay | Malicay | Paclibar | Penamante | Picot | Sinsuat | Sosoban | Teng
Sabi ni Juan sa will nya, “I will give to you, Pedro,
my house and lot in Mintal, Davao City, provided that he will
give to me his agricultural land in Davao del Sur.” Yan yung
disposition captatoria. Take note, that is not valid, not
because it is a mutual/reciprocal will, but, because of the
nature of the provision, that it is subject to a condition.
As we have mentioned, mutual wills are not prohibited
UNLESS
1. They are made in the form of a joint will, OR
2. Even if they made these wills in separate documents
but they are in the form of DISPOSITION
CAPTATORIA.
That is in connection to Article 818.
Let us continue with the next Article, which is Article 819.
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.
Wills, prohibited by the preceding article - meaning,
yung joint wills under Article 818. So, joint wills executed by
Filipinos, whether here in the Philippines or abroad, are not
considered valid.
We have mentioned earlier that Filipinos abroad, if they
executed a will therein, it is valid with regard to the
formalities, provided that it is in accordance with the
Philippine law or the law of the place where it is celebrated or
executed. Example, Filipino si Juan atsaka si Pedro...
August 13 – Part 6 | Sarah Sosoban
Art. 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.
Example, Filipino, si Juan and si Pedro nag execute sila ng
last will and testament not in the Philippines but let’s say in
Spain. Let’s assume that in Spain joint wills is allowed. Sabi
natin kanina, “the law where the will was executed can be
applied with regard with regard of the formalities of the will” –
meron tayong exception dito, yung Article 819 because, it
shall not be valid in the Philippines even though authorized by
the law of the countries where they have been executed.
You have to take note of that even if he executes the will in
the place where it is valid, it shall not be recognized in the
Philippines. Again, we are referring to Filipinos in a foreign
country. What about if the one who executed the will is a
foreigner? Foreigners, John and Peter, executed a will in
Spain and it is allowed – joint will is allowed in Spain, for
example. Can we apply Article 819? No. Because, again, this
is only applicable to Filipinos in a foreign country. But of
course, if John and Peter executed the will here in the
Philippines, the joint will, it would not be valid because we will
apply the Philippine laws. So, it cannot be admitted to probate
here in the Philippines.
Now, what if, the joint will is executed by a Filipino and a
foreigner and they executed a joint will abroad? Is the will
valid? Or is it void? We have to distinguish. With respect to
the Filipino, let’s say they are a married couple, so with
respect to the Filipino spouse sure jud iyan na under Article
7
Based from the lectures of Atty. Jazzie M. Sarona-Lozare, CPA LLM, ESQ. | 3rd Year- Sanchez Roman | 2020-2021
819. Article 819 is very clear that the will is void with respect
to the Filipino spouse. As to the foreign spouse, it may be
considered as valid because Article 819 only applies to
Filipinos in a foreign country.
Again, with regard to a Filipino spouse and a foreigner
executing a joint will, although embodied in the same
document, we treat them separately. As to the Filipino
spouse, the will is void but as to the foreigner husband, it can
be probated here in the Philippines if the joint will is
recognized in the place where the will is executed.
I mentioned earlier, what if a foreigner executes a joint will
here in the Philippines. Is the will valid? What if under his
national law joint wills are allowed? Recall that if we are
talking about foreigners who executed a will here in the
Philippines, the rule is he can follow the Philippine law or the
law of his country or nationality. So, assuming he is an
Australian citizen and his national law allows joint wills. Is the
will valid? So, I have mentioned earlier that the will cannot be
considered valid and I think the better appliction under that
circumstances under Article 17. Third paragraph of Article 17
stated that:
Art. 17. xxx Prohibitive laws concerning person, 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
determination or convention agreed upon in a foreign country.
So, in other words, the prohibition against joint wills under
Philippine law is a matter of public policy here in the
Philippines. So, even if we say that if his national law
recognizes joint wills. Our laws should not be made
subordinate to his national law, especially when he executes
the will here in the Philippines. It’s different if he executes the
will here in the Philippines and when he executes the will
abroad even if that will executed abroad will be probated here
in the Philippines. Kasi diba I recognize na man natin yung
law of the place where it is executed.
But if the foreigner executes a joint will here in the
Philippines, and then it is submitted for probate here in the
Philippines, based on Article 17, it should not be allowed.
Although, again, there are two (2) views there because of
Article 817 – that his national law should be applied or can be
applied, but between Article 817 and Article 17, Article 17 is
the better law in this case in the sense that by reason of
public policy, it is void. Our laws here should not be
subrogated by the laws of other countries, especially that the
will here is to be probated under Philippine jurisdiction. So,
again, two (2) views but the better view is the applicability of
Article 17 wherein if the joint will is made in the Philippines by
a foreigner then it should not be admitted to probate here in
the Philippines. If the will is executed by a foreigner abroad,
we do not aplly this Article 17. Apply what we have learned
under Article 817.
I think that’s it for forms of will, the next topic is Article 820
to Article 824.
So we’re already done with forms of wills. That’s Article 804
to Article 819. We now proceed to subsection 4, referring to
Witnesses to Wills. So under this, we have Article 820 to
Article 824.
Transcribed by: Ampog | Ballos | Ebuen | Mahusay | Malicay | Paclibar | Penamante | Picot | Sinsuat | Sosoban | Teng
Art. 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.
So, remember, we are talking about a notarial will here.
Remember Article 805 refers to a notarial will and as we have
emphsized before, hindi kailangan ng witnesses sa execution
of holographic will. So the witnesses referred to under Article
820 are the witnesses required – the three credible witnesses
required in the execution of a notarial will.
Article 820 gives us the qualifications for such witnesses.
First, we must be of sound mind. We will apply the same
criteria in determining whether or not the testator was of
sound mind at the time the will was executed. He may be
suffering from some illness, but if he is still of sound mind at
the time the will was executed, he can still be a witness.
Second requisite is he must be eighteen years or more. Of
course, that is self-explanatory. Second, he must not be
blind. With that, we say that you can have a blind testator but
not a blind witness. A blind person can be a testator but he
cannot be a witness to the execution of a will. Why? Because
there are other persons who are available, who can act as a
witness to the execution of a will; and second, there is a
difficulty on the part of the blind person to testify regarding
the due execution of the will.
Another qualification is that he must not be deaf or dumb.
Although, the deaf person can see, his hearing is impaired.
Now, why is it that such deaf person cannot be a witness?
Because he will have difficulty in testifying before the probate
court – testifying with regard to the due execution of the will.
As much as possible, the witness must not be deaf. Same
with a dumb person. He can see and hear and even testify in
court but he cannot intelligently give his testimony. So, that is
the reason why he is not qualified to be a witness as well.
Notice, however, that Article 820 uses the term “may”, “may
be a witness to the execution of a will”, in other words, this is
a permissive requirement. If it so happens that you have a
dumb person as a witness but the execution can nevertheless
be proven in court, I think it should not be the main reason
why a will cannot be probated in court.
Another qualification is that he must be able to read and
write. So, he must be literate. Not very intelligent, but
intelligent enough to be able to testify, again, regarding the
due execution of the will.
Art. 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.
Article 821 refers to the disqualifications. So, we have there,
two disqualifications. Based on Article 820 and Article 821, we
can say what are the qualifications of the witnesses to the
execution of a notarial will. We can summarize it.
Qualifications of Witnesses to Wills:
(1) Of sound mind;
(2) At least eighteen (18) years of age;
(3) Not blind, deaf or dumb;
8
Based from the lectures of Atty. Jazzie M. Sarona-Lozare, CPA LLM, ESQ. | 3rd Year- Sanchez Roman | 2020-2021
(4) Able to read and write;
(5) Domiciled in the Philippines;
(6) Not convicted of falsification of documents, perjury
or false testimony
Now, with regard to these qualifications that we must be
domiciled in the Philippines, how do you know that such
person is domiciled in the Philippines? You could apply Article
50 of the Civil Code for the exercise of civil rights and
fulfillment of civil obligations, the domicile of natural persons
is the place of their habitual residence. So, you would recall
that when we talk about domicile, it does not necessarily
require the physical residence. So, the place of habitual
residence in the Philippines although it is possible that he is
often out of the country. In connection to domicile, the
essential elements are as follows:
Essential Elements of Domicile:
1. The fact of residing, or the physical presence in a
fixed place;
2. The intention of remaining there permanently or the
animus manendi even if for the time being he was
not there but he has the intention to return.
So, at some point in time, he was physically present in
another country; although, he has the intention of returning
or going back to his place of residence here in the Philippines.
Why do we have this requirement? Because remember, the
notarial will has to undergo probate and the witnesses may be
called upon to testify regarding the due execution of the will.
If the witness is not domiciled in the Philippines, it would be
very difficult to get these witnesses to come to the Philippines
and testify before the court during the probate proceedings.
So, they may be foreigners or even Filipinos but not domiciled
anymore in the Philippines. What if the testator is dying? The
will will now undergo probate proceedings. So, they will have
to be required to go here to the Philippines to testify.
Remember that you could not also summon them abroad, in
connection with our rules on civil procedure. In other words, it
will be very difficult for these witnesses not domiciled in the
Philippines to testify regarding the due execution of the said
will. That is the reason. Do remember that this requirement –
that the witness must be domiciled here in the Philippines,
applies only if the will is executed here in the Philippines.
If the will is executed in another country, let us say in Spain,
even if you are a Filipino and even if we say that it is your
intention that your will will be probated here in the
Philippines, it would also be very difficult for you to get the
witnesses in Spain who are considered as domiciled in the
Philippines. So, this requirement regarding the domicile of the
witness in the Philippines only applies if the will is executed
here in the Philippines.
The other requisite is regard to the fact that the witness
should not have been convicted of falsification of a document,
perjury or false testimony. In connection to that, when we
say conviction, it means that there must be a final judgment.
If found guilty by the lower court, but still subject to an
appeal, there is yet not final conviction and the person can
still be a witness to the execution of a will.
The crimes mentioned under Article 821 are only limited to
falsification of a document, perjury or false testimony. Why
these specific cases? Because in these cases, there is a
Transcribed by: Ampog | Ballos | Ebuen | Mahusay | Malicay | Paclibar | Penamante | Picot | Sinsuat | Sosoban | Teng
question with regard to the integrity of such person. His
capacity to tell the truth is questionable because of his
conviction.
August 13- 3rd Video 2nd Part | Nikki Tan
Because in these cases there is a question on the integrity of
a person. His capacity to tell the truth is questionable because
of his conviction. So if he is already convicted, so the
possibility that he will lie on the stand is very strong.
EFFECT OF PARDON
Now, what if convicted na siya and naa nay final judgement
what if such person was pardoned by the government. Now
you have take note that pardon has the effect of restoring the
capacity of such person to become a witness, but you have to
take note ano yung reason bakit gi pardon siya.
(1) If the pardon is by reason of executive clemency or
was forgiven by the state or
He is still disqualified to act as a witness to the execution of a
will. Why? Because it is deemed that the act or crime was
deemed committed. Gipatawad lang siya he is only forgiven
by the state.
(2) Deemed actually innocent
Even if he is convicted, but because he was pardoned due to
the finding that he was actually innocent. Then, he may be a
witness to the execution of the will.
Should there be a different proceeding to determine the
qualification of these witnesses to the execution of the
will?
Meaning before he is presented to the witness stand is it
required that there be a prior determination that he really is
qualified that he has all these qualifications and none of the
disqualifications and that he is really competent as a witness?
Now, remember that as a general for a person to be qualified
as a witness to the execution of a will he MUST NO BE:
Art. 821
(2) convicted of falsification of a document, perjury or false
testimony.
Why does he enjoys the presumption of good reputation, and
then of course it must also be determined that he is
competent and credible.
NATURALIZATION PROCEEDING
However, it would be different if the person is a witness to the
naturalization proceeding. In a natural proceeding, there is a
separate proceeding in determining whether the witness is
qualified. Before magtestify yung witness sa naturalization
proceeding i-determine beforehand if he has the qualification.
PROBATE PROCEEDINGS
But, with regard to probate proceedings there is no need to
determine the qualifications, competencies, credibility of the
witnesses separate from his testimony during the probate
proceedings.
Why? What’s the difference?
Essentially kasi sa naturalization proceeding
witnesses are considered as character witnesses they testify
9
Based from the lectures of Atty. Jazzie M. Sarona-Lozare, CPA LLM, ESQ. | 3rd Year- Sanchez Roman | 2020-2021
as to the character of the applicant (the one who applies for
naturalization), but in probate proceedings the witnessed
merely testify that they were present when the will was
executed they will only testify as to the due execution of the
will, character of the testator (meaning that he had
testamentary capacity at the time). So that means that as
long as such witness has the qualification and none of the
disqualifications under Art. 821 then you can be presented to
testify during the probate proceedings. So there is no need
for a separate determination or proceeding to determine the
qualifications of said witness.
Now what if the testator had no previous knowledge
that the witness was previously convicted of these
crimes of falsification of a document, perjury or false
testimony because the witness concealed such fact to
the testator?
I think, it is my submission that the will should still
be considered despite such existence of disqualifications of
witness. Why? Because it is not fair to the testator. As long as
he is in good faith, the fact was concealed from him, he had
no knowledge of such disqualifications. I think the will should
be admitted to probate.
If one of these qualifications are not present or one of
the disqualifications are present. Can the will still be
probated? Can we say that the probate court should
immediately dismiss the probate proceedings?
If you look at the law hindi naman siya nakalagay na
ground for the disallowance of the will. As we have mentioned
nga kanina sa Art. 820 “may.” But you need to show proof
that these witnesses have the qualifications and NONE of the
disqualifications it would be more difficult. It will just make
the allowance of the will more difficult yun yung maging effect
with regard to that.
Art. 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)
Remember, we have already discussed before the capacity of
testator as well as the supervening capacity. It does not
matter that after will he was incapacitated or even before he
executed the will incapacitated siya. What is important he was
capacitated at the time he executed the will. So same goes
for the witnesses during the execution of the will. As long as
they are competent at the execution of the will, it does not
matter if they subsequently become incompetent.
If he can see and hear during the execution of the will, but
thereafter he cannot see anymore. The will is still valid you
cannot say na dili valid ang will because of the supervening
incapacity of the witness. The only issue is of course is when
he is called to testify on the probate proceedings. So mahirap,
pero it should not be the ground for the disallowance of the
will.
The supervening incapacity of the witness should not
affect the will. But it will affect their qualifications to testify.
If they become subsequently insane, they cannot testify
during the probate proceedings.
Transcribed by: Ampog | Ballos | Ebuen | Mahusay | Malicay | Paclibar | Penamante | Picot | Sinsuat | Sosoban | Teng
So you have to consider the qualifications mentioned in Art.
820 refers to the qualifications of a witness at the execution
of the will.
RULES ON EVIDENCE
Do not confuse these in connection with witnesses on the
Rules on Evidence Rule 130, Section 20 where “all persons
who can perceive and perceiving, can make their known
perception to others, may be witnesses.” So yan yun
qualification under the Rules of Court.
Rule 130, Section 20. Witnesses; their qualifications. —
Except as provided in the next succeeding section, all persons
who can perceive, and perceiving, can make their known
perception to others, may be witnesses.
Now, you have encountered the terms “incompetent” and
“credible.” Strictly speaking, meron silang difference
especially sa rules of court.
COMPETENCE
When we talk about competence it is determined by law
under the Rules of Court. When he can perceive and make his
communication known to another. (Rule 130, Section 20)
CREDIBILITY
Credibility on the other hand is determined by the Court.
Whether or not the statements and the witnesses are
credible? So this is dependent on the sound discretion of the
court.
August 13- Part 8| Mary Teng
However, when we talk about the law on succession, when we
say competent and credible witnesses same lang, they are
used synonymously. Sa 805 diba credible, 820, 822,
competent, same lang sila. It is only under our law on
evidence wherein we have a different meaning.
Q: What will happen if after the execution of the will, during
the probate proceedings, let us say, that the witnesses cannot
testify anymore because they became incapacitated or some
of them are already dead, or not residing anymore in the
Philippines? Does that mean that the will is automatically
disallowed?
A: Do TAKE NOTE that other witnesses may be presented to
testify as to the due execution. So, that is under the Rules of
Court.
Art. 823. If a person attests the execution of a will, to whom
or to whose spouse, or parent, or child, a devise or legacy is
given by such will, such devise or legacy shall, so far only as
concerns such person, or spouse, or parent, or child of such
person, or any one claiming under such person or spouse, or
parent, or child, be void, unless there are three other
competent witnesses to such will. However, such person so
attesting shall be admitted as a witness as if such devise or
legacy had not been made or given. (n)
So, we are referring to the attesting witnesses to the
execution of a notarial will and at the same time such
attesting witness is a devisee or legatee.
10
Based from the lectures of Atty. Jazzie M. Sarona-Lozare, CPA LLM, ESQ. | 3rd Year- Sanchez Roman | 2020-2021
EXAMPLE:
In the last will and testament Juan is one of the witnesses, let
us say the testator also leave a parcel of land in his favor.
Q: Will that affect the validity of the will?
A: No. The will is still valid. However, Juan is disqualified
from receiving the said land. So, witness gihapon siya but he
cannot anymore receive the devise or the legacy.
Now, also, even if the devisee or legatee is not the witness
himself but it is his spouse, his parent, or his child still you
apply the Rule in the effect that the will is still valid, but such
devisee or legatee, the spouse, the parent, or the child of the
witness cannot receive the devise or legacy. So, the will is
valid, qualify to be a witness but any person claiming under
such witness is not anymore entitled to receive the devise or
legacy. This includes anyone claiming under such person or
spouse. That will also include the creditor of the witness.
EXAMPLE:
Juan is a witness to a will and may utang siya kay Pedro. In
the last will and testament the testator gave P100k to Pedro.
Q: What is the effect?
A: The will is still valid, but the creditor cannot receive the
said money mentioned in the will.
Q: What is the reason behind this?
A: To prevent conflict of interest
Q: Why?
A: Kasi kung ikaw ang witness, kung para sayo ung devise or
legacy, or para sa spouse, parents, or child mo, or para
pambayad sa utang mo sa creditor mo then, diba you would
sustain or attest to the validity of the execution of the will,
this will cause your personal bias. You would be tempted to
give a false testimony in order to uphold the validity of the
will, so that you would be entitled to receive the devise or
legacy.
So, to ensure impartiality, we have this rule under article 823.
Do TAKE NOTE however, that if there are more than 3
witnesses, the witness can receive, including his spouse,
parent, child, or any person claiming under him.
EXAMPLE:
If there are 4 witnesses, Juan is one of them. Binigyan siya
ng lupa or ung kanyang anak, asawa, parent or creditor.
EFFECT: The will is valid. You have 3 other witnesses to
testify to the due execution of the will, and valid din ung
devise or legacy.
This is the same doon sa notary republic. Diba doon sa notary
republic, we’ve mentioned that the notary republic who
acknowledge the will cannot be a witness at the same time.
However, if there are more than 3 witnesses, 3 witnesses plus
the notary public, just disregard the notary public,
nakacomply ka na doon sa 3 witnesses requirement, as a
formality in the execution of a notarial will. So, valid ang will
unless meron pang other defects.
Transcribed by: Ampog | Ballos | Ebuen | Mahusay | Malicay | Paclibar | Penamante | Picot | Sinsuat | Sosoban | Teng
Ganyan din sa article 823. Kung merong 4 witnesses, Juan is
a devisee, he would still be entitled to such devise, or his
spouse, parent, child or any person claiming under him.
Now, article 823 says devise or legacy, is it applicable to an
inheritance? TAKE NOTE, when we talk about inheritance, we
have 2 kinds of heirs, voluntary and compulsory.
1. Voluntary heirs
These are heirs instituted by virtue of the will of the
testator, but the testator has no obligation under the
law to give anything to this voluntary heir.
EXAMPLE:
The testator gave ½ of his estate to his best friend
and the other half to his compulsory heirs.
Q: What is the effect if such best friend, such
voluntary heirs is also a witness to the will?
A: Same, such voluntary heir cannot receive his
inheritance. In other words he will be placed the
same as that of a devisee or legatee under article
823, but again if there are more than 3 witnesses, si
best friend entitled doon sa ½ ng inheritance as
provided or disposed of under the last will and
testament of the testator
However, it is different when it comes to compulsory heirs.
2. Compulsory heirs
These are heirs who cannot be deprived of their
legitimes unless for causes provided by law.
EXAMPLE:
A child, compulsory heir is also a witness to the
execution of the will.
Q: What will happen? Does that mean that the child
who acted as a witness is disqualified from receiving
his legitime?
A: Of course not. He is still entitled to his legitime,
because even if walang last will and testament, the
child would still be entitled to his legitime.
EXAMPLE:
A child is a witness to a last will and testament
where he is given more than his legitime.
A: Apply 823, wherein, he would not be entitled to
the excess. The child in this case will be entitled to
his legitime but he would forfeit those in excess of
his legitime, because he acted as a witness to such
execution, again walang problema if there are more
than 3 witnesses.
That is all for article 823.
Art. 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)
11
Based from the lectures of Atty. Jazzie M. Sarona-Lozare, CPA LLM, ESQ. | 3rd Year- Sanchez Roman | 2020-2021

What you have here? The creditor is a witness of the testator

who is a debtor. Do not confuse this with 823, because in
823, we are referring to the creditor of the witness while 824
refers to the creditor of the testator.

EXAMPLE:

In a last will and testament, nilagay doon ni testator, I hereby

allocate P1M in favour of Pedro, wherein said P1M will be
applied to my obligation to him.

Q: What if Pedro is also a witness to the will? Is he entitled to

that P1M?

A: Yes.

Q: Why?

A: Well he is not a heir, he cannot be considered as a devisee

or legatee with regard to that P1M.

Q: Why?

A: Because he is a creditor, In other words, kahit hindi iyon

nilagay sa last will and testament, the creditor is entitled to
such payment from the estate of the testator. He is a creditor
whether or not he is instituted in the will, being entitled to be
paid for his credit.

So, the will is valid, he is considered qualify as a witness, and

he is still entitled to such charge on the estate of the testator
being again, a creditor of the testator. But also, you have to
consider the amount.

EXAMPLE:

Assuming, 700k lang ang utang kay Pedro pero sa last will
and testament P1M ung nakalagay na amount that will be
given to him as payment for the obligation.

Q: What is the effect?

A: With respect to the excess, the 300K, wherein Pedro is

also a witness to the execution of the will, he is not entitled to
that 300K, because in so far as that 300K is concern that is
already considered as a legacy, so you apply 823.

Pero dun sa 700K na utang ng testator kay Pedro, of

course he is still entitled

“Think left and think right and think low and think high. Oh
the thinks you can think up, if you only try” – Dr. Seuss

12
Transcribed by: Ampog | Ballos | Ebuen | Mahusay | Malicay | Paclibar | Penamante | Picot | Sinsuat | Sosoban | Teng