SUCCESSION

ARTICLE 774-782 - The transmission of property by will and death as the

GENERAL PROVISIONS condition.

Article 774 INHERITANCE v. SUCCESSION

Succession is a mode of acquisition by virtue of which the property, rights and INHERITANCE SUCCESSION
obligations to the extent of the value of the inheritance, of a person are The universality of all the property, Legal mode by which such
transmitted through his death to another or others either by his will or by rights and obligations constituting property, rights and obligations are
operation of law. the patrimony of the decedent, transmitted.
which are not extinguished by his
SUCCESSION – mode of acquisition by virtue of which the property, rights death.
and obligations, to the extent of the value of the inheritance, of a person is
transmitted through his death to another or others, either by will or by EXTENT OF INHERITANCE – all the properties of the decedent at the
operation of law. time of his death. They may be residual or accrued properties.

BASIS OF SUCCESSION NOTE: Corpse of the decedent is not included.

1. RIGHT TO DISPOSE THE PRIVATE PROPERTY – The will is
merely a causal instrument for the conveyance. This is the basis of ARE ALL THE OBLIGATIONS OF THE DECEASED PART OF HIS
testamentary succession. INHERITANCE?

2. FAMILY CO-OWNERSHIP – The testator recognizes that the
family is the heart and soul of the society. The idea of succession
must revolve around it. This is the basis of intestate succession.
3. ECLECTIC THEORY – The purpose of succession is to perpetuate
the testator’s patrimony beyond his existence, giving greater
stability to his family and society. It is a merger of individual and
social principles.
Article 775
In this Title, "decedent" is the general term applied to the person whose
property is transmitted through succession, whether or not he left a will. If he
left a will, he is also called the testator.
DECEDENT – general term applied to the persons whose property is
transmitted through succession, whether or not he left a will. If he left a will
he is called, testator.
Article 776
The inheritance includes all the property, rights and obligations of a person
which are not extinguished by his death.
WHAT DOES INHERITANCE INCLUDE?
1. Property
2. Rights not extinguished by death
3. Obligations not extinguished by death (to the extent of the value of
the inheritance)
DIFFERENCE BETWEEN HEIRS AND DEVISEES/ LEGATEES, AS
TO THE EXTENT OF THE INHERITANCE
An HEIR inherits an aliquot part of the indeterminate portion of the estate,
while, the inheritance of a DEVISEE/ LEGATEE must be specified by the
testator.
NO. The inheritance includes all the property, rights and obligations of a
person which are not extinguished by his death.
Hence, not all obligations shall be part of the decedent’s inheritance.
I.E. Obligations which are purely personal.
EXAMPLES OF RIGHTS WHICH ARE EXTINGUISHED BY DEATH,
AND WHICH, THEREFORE, ARE NOT PART OF THE ESTATE
1. INTRANSMISSIBLE PERSONAL RIGHTS because of their
nature (such as those appertaining to family rights, marital and
parental authority, support, action for legal separation, partnership
agency, life annuity)
2. RIGHT TO HOLD PUBLIC/ PRIVATE OFFICE OR JOB (Hu
Niu vs Collector of Customs, 36 Phil 433)
NOTE: When asked for example about rights and obligations which are
transmissible and non-transmissible, be particular whether it is an obligation
or a right.
A FATHER WAS A DEFENDANT IN A CIVIL CASE. DURING ITS
PENDENCY, HE DIED, AND HIS CHILDREN WERE SUBSTITUTED
AS DEFENDANTS. IF JUDGMENT IS RENDERED AGAINST THE
DEFENDANT, CAN THE CHILSDREN BE HELD PERSONALLY
LIABLE WITH THEIR OWN INDIVIDUAL PROPERTIES?
NO. The children cannot be held personally liable, despite the substitution.
The remedy of the plaintiff-creditor is to proceed against the estate of the
deceased. (Viardo vs Belmonte, 21 August 1962)
NOTE: While the debts of the deceased still remain unpaid, no residue may be
divided among the heirs, legatees and devisees. Instead, the court may order
the sale of sufficient properties for the satisfaction of the debts and the heirs
cannot question this. Such a step is necessary for the eventual partition of the
estate. (Lao vs Dec, 23 January 1952)

ELEMENTS OF SUCCESSION NOTE: A creditor of an heir (who is not a creditor of the deceased), who
1. Subjective Elements intervenes in the estate proceedings, cannot ask the court to sell the properties,
a. Testator which the heir debtor expects to receive. This is because the debts of the
b. Heirs deceased himself, must first be paid. Then and only then, we can determine, if
c. Devisees/ there is a sufficient residue left for the heirs or for the heir’s creditor.
d. Legatees (Lintonjua vs Montilla, 31 January 1952)
X DIED LIVING DEBTS AMOUNTING TO PHP 5M. WILL THE
2. Objective Element HEIRS OF X, BE ANSWERABLE FOR SUCH DEBTS?
- Inheritance
NO. The remedy of the creditors would be to proceed against the estate of X
as a separate juridical person. Monetary obligations are not part of the
3. Causal Element deceased inheritance.
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IS THE BODY OF THE DECEDENT PART OF THE INHERITANCE?
NO. A body is not a property (Jurado and Paras). Refer to special law on the
matter.
IS AN ACTION TO CLAIM ONE’S LEGITIMACY TRANSMISSIBLE?
YES. Art. 173 of the Family Code states that an action to claim legitimacy
may be brought by the child during his or her lifetime and shall be transmitted
to the heirs should the child die during minority or in a state of insanity. In
these cases, the heirs shall have a period of 5 years within which to institute
the action.
IS AN ACTION TO CLAIM ONE’S ILLEGITIMACY
TRANSMISSIBLE?
YES. Art. 175 of the Family Code - Illegitimate children may establish their
illegitimate filiation in the same way and on the same evidence as legitimate
children.
The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172 (An
admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.), in which case the action may
be brought during the lifetime of the alleged parent.
RESTRICTIVE NATURE OF INHERITANCE
1. BEFORE DEATH – mere hope.
2. AFTER DEATH – cannot be distributed unless, all the claims
against the estate of the decedent are liquidated. The purpose of
which is to determine, what assets are left to be transmitted to the
heirs.
NOTE: Under the Rules of Procedures, liquidation is necessary in order to
determine whether or not the decedent has left any liquid assets which maybe
transmitted to the heirs.
NOTE: Estate is a legal exigency created by law, so that the heirs will not be
bothered by the claims of other persons against the decedent. Estate is the
continuation of the decedent’s personality.
Article 777
The rights to the succession are transmitted from the moment of the death of
the decedent.
WHEN IS THE RIGHT TO SUCCESSION TRANSMITTED?
It is transmitted at the moment of death of the decedent.
Note: Death is a condition that effects transmission of the decedent’s assets.
The express will of the decedent’s presumed will as provided by law is the
cause. Before death, the heir only have a mere hope or expectancy. It is not a
vested right, for a will maybe changed, either because of:
1. Causes of disinheritance
2. Acts of incapacity/ unworthiness
3. Revocation of the will
DECISIVE MOMENT – death
WHEN CAN THE HEIRS ACQUIRE A DEFINITE RIGHT TO THE
INHERITANCE?
Upon death of the decedent that the heirs acquire a definite right over the
inheritance, whether such right is pure, conditional or with a term.
DEATH – permanent cessation of all the bodily functions which terminates a
person’s judicial capacity and capacity to act.
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PRESUMED WILL – the will of the decedent to transfer the properties to the
heirs is presumed by law. The rule laid down by law is based on human
experience, as may be gleaned from the order of those who may inherit
intestate succession.
CONDITIONS BEFORE THE RIGHTS OF THE HEIRS ARE
TRANSMITTED
1. Death of the decedent/ testator either actual or presumed.
2. Rights or properties are indeed transmissible
3. Heirs must survive the decedent (no predecease) be willing (no
repudiation); be capacitated to inherit
Note: These are also the requisites for succession mortis causa.
CAN AN HEIR SELL HIS FUTURE INHERITANCE?
NO. An heir has no vested rights over the inheritance yet. Therefore, the
object, which is the inheritance, is not yet determined nor certain.
CASES WHEN THERE IS NO TRANSMISSION OF RIGHT
1. Repudiation made by the heir
2. Heirs predeceased the decedent/ testator
3. Incapacity of the heir to succeed
UPON THE DEATH OF THE TESTATOR, IS IT NECESSARY TO
DELIVER THE PROPERTIES TO THE HEIR IN ORDER TO
ACQUIRE OWNERSHIP?
NO. The right to the inheritance is transmitted from the moment of the death
of the decedent. Tradition or delivery is not essential for the acquisition of
properties of the decedent because succession is an independent mode.
IF A DECEDENT DIES JANUARY 1, 1999 AND THE PROPERTY IS
ACTUALLY DELIVERED ONLY ON MARCH 1, 1999, WHEN DOES
THE HEIR BECOME AN OWNER OF THE PROPERTY?
He became an owner of the property beginning January 1, 1999. This is
because it is not tradition (delivery) that transfer ownership here but
succession. The effects of an acceptance of the inheritance retroacts to the
moment of death.
If on the other hand, there is repudiation, it is as if, the heir never owned the
property. This is because of the retroactive effect of repudiation.
NOTE: No matter when/what time the heir, devisee or legatee enters into the
possession of the inheritance, devise or legacy, acquisition always retroact to
the moment of death, in accordance with Article 1042 (The effects of the
acceptance or repudiation shall always retroact to the moment of death of the
decedent.)
AFTER THE DEATH OF THE DECEDENT, anyone of the heirs may
enter into a contract with respect to his share in the inheritance, even before
the partition has been effected – the right to the inheritance is already in the
nature of a vested right upon the death of the decedent. Thus, the heir may:
1. Sell his undivided share in the inheritance
2. Donate it
BEFORE DEATH, the heirs have only a mere hope of expectancy absolutely
inchoate in character, to their share in the inheritance. Hence, any contract
entered into with respect to the inheritance, would have no object whatsoever,
therefore inexistent from the beginning.
ART. 777 PROVIDES THAT THE RIGHT TO SUCCESSION ARE
TRANSMITTED FROM THE MOMENT OF DEATH OF THE
DECEDENT. DOES THIS PRINCIPLE APPLY ONLY TO ACTUAL
DEATH?
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NO. The principle under this Article applies to both actual death and
presumptive death. This is clear from the provisions of Article 390 and 391.
RULES ON PRESUMPTIVE DEATH AS TO THE OPENING OF
SUCCESSION
1. 10 years absence, it being unknown, whether or not the absentee
still lives.
2. 5 years, if the absentee disappeared after the age of 75.
3. 4 years, if the absentee disappeared under any of the circumstances
enumerated in Art. 391.
WHEN OR WHAT PRECISE MOMENT WILL THERE BE A
TRANSMISSION OF SUCCESSIONAL RIGHTS IN CASE OF
PRESUMPTIVE DEATH?
ORDINARY ABSENCE of 10 or 5 years if the absentee is more than 75 years
old – at the expiration of the period designated by law.
EXTRA-ORDINARY ABSENCE under Art. 391 – at the time of
disappearance, because the absentee disappeared under the danger of death.
NOTE: Although the rule says, that there will be transmission of successional
rights at the time of the disappearance of the absentee, we must still wait for a
period of four (4) years from the time the absentee disappeared. Thereafter, if
the absentee does not appear within four (4) years, there will be transmission
of successional rights and it will retroact from the time the absentee
disappeared. Reason: the absentee disappeared under danger of death.
KINDS OF DEATH IN SUCCESSION
1. Actual death
2. Presumptive death
a. Ordinary
b. Extra-ordinary
RULE USED TO DETERMINE THE PRECISE TIME OF DEATH OF
A DECEDENT IN PRESUMPTIVE DEATH
ORDINARY PRESUMPTIVE DEATH:
1. Rules of Evidence
2. In the absence of evidence, expiration of period provided for by
law.
EXTRA-ORDINARY PRESUMPTIVE DEATH:
1. Rules of Evidence
2. In the absence of evidence, at or about time of disappearance.
EFFECT IN CASE A PERSON PRESUMED TO BE DEAD RETURNS
Recovery of properties, or a return of their value, if they were already
alienated except for the fruits.
NOTE: The exception lies in the case when prescription occurs due to lack of
title.
CAN THERE BE SUCCESSION WITHOUT DEATH?
GR: NONE, there can be no succession without actual death.
ETR: Presumptive death. Here, the death of a person is merely presumed and
conditioned on the fact of death.
X HAD 2 CHILDREN, Y AND Z. X SUFFERED A HEART ATTACK
ON JANUARY 1, 2002 AND WAS PRONOUNCED DEAD ON THE
SAME DAY. ON JANUARY 2, 2002, X REGAINED CONSCIOUSNESS.
Y AND Z CLAIMED TO HAVE SUCCEEDED X IN HIS
PROPERTIES, WHEN HE WAS PRONOUNCED DEAD ON
JANUARY 1, 2002. IS THE CLAIM VALID?
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NO. There is no succession because there was no death. Death must be
permanent because a person can only die once.
Article 778
Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed.
Article 779
Testamentary succession is that which results from the designation of an heir,
made in a will executed in the form prescribed by law.
Article 780
Mixed succession is that effected partly by will and partly by operation of law.
KINDS OF SUCCESSION
1. Testate
2. Legal/ Intestate
3. Mixed
NOTE: Contractual Succession has been omitted by the Family Code.
DIFFERENT MODES OF TESTAMENTARY SUCCESSION
1. Will or codicil
2. Will or codicil maybe:
a. Notarial (ordinary attested)
b. Holographic (handwritten by the testator from the beginning
to the end, complete with date and signature)
NOTE: In case of doubt, testamentary succession is preferred over legal or
intestate succession.
KINDS OF TESTATE AND INTESTATE SUCCESSION
1. Voluntary and compulsory
2. By right and representation
TESTAMENTARY SUCCESSION - it is one, which results from the
designation of an heir, made in a will and executed in the form prescribed by
law.
WHEN DOES INTESTATE SUCCESSION OCCUR?
Intestate succession is effected by operation of law, in default of a will.
Intestate succession occurs when the testator has not made a will or even if he
made one, such will has not been made in accordance with the formalities
prescribed by law. In this case, the presumed will as provided by law, shall
govern the distribution of his hereditary estate after his death.
MIXED SUCCESSION – it is the one that is effected partly by will and
partly by operation of law.
WHEN DOES MIXED SUCCESSION OCCUR?
It occurs when the testator makes a will but fails to dispose all of his
properties by means of such will. The succession partakes of the nature of
both testamentary and legal succession.
CONTRACTUAL SUCCESSION - act of future spouse of giving or
donating to each other, in their marriage settlements, their future property,
which is to take effect, upon the death of the donor and o the extent laid down
by the Civil Code relating to testamentary succession. This succession is not
allowed anymore, for it was not expressly provided for in the Family Code.
KINDS OF HEIRS IN TESTAMENTARY SUCCESSION
1. VOLUNTARY - an heir is called to succeed to the whole or an
aliquot part of the disposable free portion of the hereditary estate
by virtue of the will of the testator.
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MAY A PERSON BE COMPULSORY AND VOLUNTARY HEIR AT

2. COMPULSORY - an heir is called to succeed to a portion of the THE SAME TIME, IN THE SAME WILL? OTHERWISE STATED, IS
testator’s estate, known as legitime. THERE A POSSIBILITY OF A DUAL STATUS OF AN HEIR?

YES. If in a will a compulsory heir is given more than his legitime, he is

Article 781
The inheritance of a person includes not only the property and the
transmissible rights and obligations existing at the time of his death, but also
those which have accrued thereto since the opening of the succession.
INHERITANCE OF A PERSON INCLUDES - not only the property and
the transmissible rights and obligations existing at the time of his death, but
also those which have accrued thereto since the opening of the succession.
assumes a dual status. Insofar as his legitime is concerned, he is a compulsory
heir. Insofar as the excess is concerned, he is a voluntary heir.
NOTE: The aforementioned distinction is important because if a compulsory
heir dies ahead of the testator, his legitime is inherited by his own child (by
right of representation). On the other hand, the child of a voluntary heir who
predeceases or dies ahead the testator gets nothing from the said testator
(Article 856).

SUPPOSE THE ONLY PROPERTIES LEFT BY THE DECEDENT

Article 782 ARE HIS 3 CARS. THE DECEDENT GAVE YOU 1/3 OF HIS ESTATE,
An heir is a person called to the succession either by the provision of a will or WHICH IS, 1 CAR. AS A BENEFICIARY, ARE YOU CONSIDERED
by operation of law. AS AN HEIR?

Devisees and legatees are persons to whom gifts of real and personal YES. An aliquot part (1/3 thereof) of the estate was given to me, not a specific
property are respectively given by virtue of a will. part thereof.

HEIR – a person called to the whole or an aliquot portion of the inheritance,
either by will or by operation of all. An heir succeeds by universal title.
NOTE: Heirs may be compulsory (if entitled to the legitime) or voluntary
(like a friend).
DEVISEE – a person to whom a gift of real property is given, by virtue of a
will.
The answer would have been different if the decedent had given me a specific
car. In this case, I would have been a legatee, having succeeded a personal
property, by a particular title.
X MADE A WILL DESIGNATING A AS HEIR OF HIS ENTIRE
ESTATE. HOWEVER, SINCE X WAS A GAMBLER, THE ONLY
PROPERTY LEFT TO HIM WHEN HE DIED WAS A HONDA CIVIC
CAR. IS A AN HEIR OR A LEGATEE?

LEGATEE – a person to whom a gift of personal property is given, by virtue A is still an heir for the purpose of giving effect to X’s will. The fact that the
of a will. only personal property left by the decedent is a personal property is
immaterial. The designation of A, as an heir, still controls.
DISTINCTION BETWEEN HEIRS, DEVISEES/ LEGATEES

AS TO THE TITLE
HEIRS DEVISEES/ LEGATEES
Always called to succeed to an Always called to succeed to IMPORTANCE OF DISTINCTION BETWEEN VOLUNTARY HEIRS,
indeterminate or aliquot portion of individual items of the property. DEVISEES AND LEGATEES
the decedent’s hereditary estate.
Succeed by universal title. Succeed by a particular title HEIRS DEVISEES/ LEGATEES
One, some, or all of Legacies and devisees shall
PRETERION/ the compulsory heirs be valid insofar as they are
AS TO THE PORTION OF THE ESTATE PERMISSION in the direct line, the not in officious (Art. 854).
HEIRS DEVISEES/ LEGATEES effect is to annul
A distinction must be made The devise or legacy which is given entirely the institution
between heirs in the estate to the devisee or to the legatee by of heirs.
succession (compulsory and means of a will, is, as a rule, a The effect is to annul Devises and legacies shall
voluntary) and heirs in intestate charge against the free portion of IMPERFECT/ the institution of heirs be valid, insofar as they are
succession (legal or intestate heirs). the testator’s property. DEFECTIVE to the extent that the not in officious.
INHERITANCE legitime of the
However, if the testator is not disinherited heir is
survived by compulsory heirs, his prejudiced.
entire property is considered as free Rules provided for Such properties are not as a
property. In such case, the devise PROPERTIES devisees/ legatees rule, included among the
and legacy can be charged against ACQUIRED BY cannot be applied to property disposed of,
the entire property. THE TESTATOR the institution of heirs. unless, it should expressly
AFTER THE appear in the will itself that
AS TO THE MEANS OF SUCCESSION EXECUTION OF such was the testator’s
HEIRS DEVISEES/ LEGATEES THE WILL intention.
Called to succeed, either by means Always called to succeed by means
of a will (voluntary) or by of a will. X DESIGNATED A TO 1/2 OF HIS ESTATE. HE ALSO DESIGNATED
operation of law (compulsory and B HIS CAR WITH PLATE NUMBER GVG 101. WHO IS THE HEIR
legal). OR LEGATEE?

A is an heir because she will succeed an indeterminate portion of the estate

(1/2 of X’s estate).
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 SUCCESSION
B is a legatee because she will succeed to a specific property (a car with plate
number GVG 101).
X ECEVUTED A WILL IN 1985. HE DIED IN 1995. IN HIS WILL X
GAVE Y ALL OF HIS CARS. AT THE TIME OF EXECUTION OF
THE WILL, X ONLY HAD 2 CARS. ASSUMING THAT IN 1995, HE
ALREADY HAS 20 CARS. HOW MANY CARS WILL Y INHERIT?
Y will only get 2 cars, because the remaining are after-acquired properties. Y
is merely a legatee because he does not succeed to a portion of the estate.
IF IN THE WILL X STATED TO GIVE 1/2 OF HIS ESTATE TO Y,
WHAT IS THE EFFECT?
Y is now an heir, because he is to succeed to a portion of the estate. Therefore,
in the preceding problem. If the only estate is 20 cars, Y will get 10 cars.
ADVANTAGES AND DISADVANTAGES BETWEEN A DEVISEE,
LEGATEE AND HEIR – See Jurado
Effect of Preterition
Effect of Imperfect Disinheritance
Effect of Self-acquired Properties
HOW DO YOU DETERMINE AN HEIR FROM A LEGATEE OR
DEVISEE?
If the property is a particular item of the estate, the receiver is a devisee or
legatee, as the case may be (whether that particular item is personal or real).
Otherwise, he is an heir.
ARTICLE 783-787
WILLS IN GENERAL
Article 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.
MODES OF TESTAMENTARY SUCCESSION
Will or codicil which may be:
a. Notarial (Ordinary attested)
b. Holographic (Handwritten by the testator from the beginning
to end, complete with date and signature.
NOTE: In case of doubt, testamentary succession is preferred to legal or
intestate succession.
WILL – an act whereby a person is permitted, with the formalities prescribed
by law, to control a certain degree the disposition of his estate, to take care
after his death (Art. 783)
IS THE RIGHT TO MAKE A WILL A NATURAL RIGHT?
NO. The act of making a will is not a natural right because not all persons can
make a will. It is not a statutory right. Simply means, that not all persons are
qualified to make a will.
IF THE WILL DOES NOT DISPOSE OF PROPERTY< SUCH AS
WHEN A PERSON IS MERELY NAMED AS EXECUTOR, OR WHEN
A NATURAL CHILD IS RECOGNIZED, CAN IT STILL BE
CONSIDERED AS A WILL?
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NO. If we follow the strict legal definition of the will, it would seem that it
does not contain a disposition of property, it cannot be considered a will. But
in some jurisdiction and jurisprudence, it may still be called a will.
PARAS: It may still be called a will, although such will need not be probated
for under our law it would seem that the probate is needed only if the property
is to be conveyed by a testamentary succession (see Art. 838). Furthermore, it
has been held that for purposes of recognizing a natural child by virtue of a
will, the will need not be probated, thought it must of course still be a valid
will.
IN X’S WILL, A WAS GIVEN A HOUSE, EFFECTIVE
IMMEDIATELY. IS THE DISPOSITION BY VIRTUE OF A WILL?
NO. Since it is supposed to take effect immediately. There was therefore no
animus testandi insofar as this provision is concerned.
IS HE ENTITLED TO GET THE HOUSE NOW OR IMMEDIATELY?
NO. Unless, he signifies his acceptance in the form prescribed by law for
donations and unless the instrument be notarized as a public instrument (Art.
749).
HOW WILL THE HOUSE BE DISPOSED OF?
In accordance with the rules on legal succession, in case the donation is not
effective (Art. 960).
CHARACTERISTICS OF A WILL
1. Strictly personal act
2. Individual and unilateral act
3. Free and voluntary act
4. Formal and solemn act
5. Disposition of property
6. An act mortis causa
7. Ambulatory
8. Revocable during the lifetime of the testator
WHY A PERSONAL ACT?
Its execution cannot be left to the discretion of third person.
WHY UNILATERAL?
It does not need the approval of any other person.
WHY A FORMAL AND SOLEMN ACT?
It must comply with the formalities prescribed by law.
WHY AN ACT MORTIS CAUSA?
It takes effect only after the death of the testator.
WHY AMBULATORY?
Testator cannot revoke it at any time before his death.
Article 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.
X MADE HIS LAST WILL AND TESTAMENT AND AUTHORIZE
YOU TO EXECUTE IT. IS IT VALID?
NO. The making of a will is strictly a personal act. It cannot be left in whole
or in part to the discretion of a third person or accomplished through the
instrumentality of an agent or attorney.
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CAN A TESTATOR DESIGNATE TO A THIRD PERSON THE
TYPING OF HIS LAST WILL AND TESTAMENT?
YES. The mechanical act of drafting may be entrusted to another, as long as
the disposition itself expresses the testator’s desire and all the formalities of
the law are complied with.
“A STRICT PERSONAL ACT” – means that it cannot be left in whole or in
part to the discretion of a 3rd person or accomplished through the
instrumentality of an agent or attorney.
However, the mere act of drafting/writing a will does not fall within the
purview of the prohibition. Thus, it has been held that he who does the
mechanical work of writing the will, is a matter of indifference.
The fact therefore that the will was typewritten in the office of a lawyer is of
no consequence (Castaneda vs Alemmany, 3 Phil 426; Bagtas vs Paguio 22
Phil 227).
IS IT ADVISABLE TO EMPLOY AN ATTORNEY IN MAKING A
WILL? WHAT ARE ITS ADVANTAGES?
YES. In making a will it is advisable to employ an attorney, for if we employ
an attorney in so many cases involving little money, it should be wiser to
employ one whenever the whole estate is involved (57 Am.Jur., Sec 21).
Moreover, if an attorney drafts a will and is present at the time of its
execution, there is a strong presumption that the will was regularly made.
IS A LAWYER PROHIBITED FROM ASSISTIING A PERSON MAKING
A WILL?
NO. If the lawyer does only a mechanical act of writing the will, then, he is
not prohibited. Otherwise, the will would be invalid.
Article 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.
Article 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.
ACTS IN MAKING A WILL THAT CANNOT BE DESIGNATED TO A
THIRD PERSON
1. Duration or efficacy of the designation of heirs, devisees and
legatees.
2. Determination of the portions of which they are to take, provided
that they are referred to by name.
WHY IS THAT THE ACTS PROVIDED FOR UNDER ART. 785
CANNOT BE DESIGNATED BY TESTATOR TO 3RD PERSONS?
1. Those acts are testamentary in character, and therefore, they cannot
be designated, in whole or in part, to 3rd persons (making of a will
is a strictly personal act).
2. To prevent 3rd person from substituting his own intentions to that
of the testator.
X EXECUTED A SPECIAL POWER OF ATTORNEY (SPA)
AUTHORIZING HIS LAWYER TO MAKE A WILL. IS THE SPA
VALID?
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NO. The making of a will is purely a personal act.
X ORDERED HIS LAWYER TO EXECUTE THE DISTRIBUTION OF
THE PROPERTIES IN HIS WILL IN FAVOR OF THE HEIRS. IS THE
ACT/ WILL VALID?
NO. The determination of the portions to be given lies in the 3rd person. The
properties to be distributed and the receivers must already be specified. The
lawyer must only execute the distribution, without the possibility of
substituting his own intentions over that of the testator.
X STATED IN HIS WILL “I GIVE PHP 1M TO BE DISTRIBUTED TO
CHARITABLE INSTITUTIONS DEVOTED TO UNWED MOTHERS,
AND, I HEREBY DESIGNATE Y TO TAKE CARE OF THE
DISTRIBUTION OF THE SAID AMOUNT.” IS THE ACT VALID?
YES. The testator may entrust to a 3rd person; they may distribution of
specific property or sums of money that he may leave in general to specified
classes or caused and also the designation of the persons, institutions or
establishments to which such property or sums of money are to be given or
applied.
X, TESTATOR SAID TO HIS LAWYER, “YOU MAY TAKE
WHATEVER AMOUNT FROM MY ESTATE TO BE DISTRIBUTED
TO THE STREET CHILDREN OF MANILA”. IS THIS VALID?
NO. Although there is a specified class (the street children of Manila), the
amount to be given is not specified. The amount is termed as “whatever
amount”.
IN THE PRECEDING QUESTION, WHAT IF X SAID TO HIS
LAWYER, “I GIVE PHP10M TO BE GIVEN TO THE STREET
CHILDREN OF MANILA AND I HEREBY DESIGNATE YOU TO
TAKE CARE OF THE DISTRIBUTION OF THE SAID AMOUNT.” IS
THIS VALID?
YES. Art. 786 applies. Street children (specified class); Php 10M (specific
sum of money).
WHAT IF X SAID, “I HEREBY MAKE THE CHILDREN OF
HOSPICIO DE SAN JOSE AS MY LEGAL HEIRS AND DECLARE
MY LAWYER TO DETERMINE THE AMOUNT WHICH THEY ARE
TO RECEIVE”. IS THE WILL VALID?
NO. Art. 785 applies. The heirs were referred to by name: the children of the
Hospicio de San Jose. Furthermore, the amount was not specified by the
testator. It is the lawyer who determines the amount.
IN THE PRECEDING QUESTION, WHAT IF THE TESTATOR SAID,
“I HEREBY MAKE THE 2002 GRADUATING CLASS OF SBC AS MY
LEGAL HEIRS IN THE AMOUNT OF PHP 10M AND DECLARE MY
LAWYER TO DETERMINE THE AMOUNT WHICH THEY ARE TO
RECEIVE.” IS THIS VALID?
YES. The beneficiary was a specified class the graduating class of 2002.
Under Art. 786, the property or the amount of money to given must be
specified by the testator, in addition to the requirement that it must be for a
specified class or cause.
X ORDERED Y TO DISTRIBUTE PHP 50T FROM HIS ESTATE, FOR
WHATEVER GOOD CAUSE HE MAY THINK. IS THE ACT VALID?
NO. The recipient of the act is not a specified group or class. Article 786 does
not apply.
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X BEQUEATHS THE AMOUNT OF PHP 5M FOR METRO MANILA.
HE AUTHORIZED HIS EXECUTOR, Y, TO DISTRIBUTE THE
AMOUNT. IS THE ACT VALID?
YES. The testator may entrust to a 3rd 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 of money are to be given or
applied (Art. 786).
Here, X has already completed the testamentary act of making a will. What he
delegated to Y was merely the details thereof, on order to make the devise or
the legacy more effective.
NOTE: The determination of the amount which the heirs, devisees and
legacies are to take is a testamentary act which cannot be delegated to a 3rd
person, which such heirs, devisees or legatees are referred to by name. This
prohibition is intended to discourage the illegal delegation of testamentary
powers (Art. 785).
Take note however, that the prohibition provided for under Art. 785 is
different from the rule enunciated under Art. 786.
Under Art. 786, it involves beneficiaries, who are not referred to by name, but
are referred to by specific classes or causes.
X STATED IN HIS WILL, “I WILL GIVE THE AMOUNT OF PHP
50M TO ALL THE COLLEGE SCHOOLS IN MANILA AND I LEAVE
THE DISTRIBUTION OF THE AMOUNT THEREOF TO MY
LAWYER”. IS THE PROVISION VALID?
YES. The schools are of a particular class. The 3 rd person can distribute the
amount by himself.
Note: While Art. 785 enumerates in absolute terms, the different things which
the testator cannot do, Art. 786 enumerates by way of exception the different
things which the testator may do.
Thus, the testator is allowed to entrust to a 3rd person:
1. The power to distribute specific property or sums of money, which
he may have left in general to specific classes or causes
2. The power to designated the persons, institutions, to which such
property or sums of money are to be given or applied
What is contemplated under Art. 786 is that, the testator has already
completed the testamentary act of making a will. What is entrusted to a 3rd
person are merely the details thereof, in order to make the devise or legacy
more effective.
I.E. A testator may bequeath Php 1M to a specified class, such as, the different
charitable institutions of Manila, or to a specified cause, such as, the cause of
labor, entrusting the same time, to the executor of his estate, the power to
designate the different institutions or organizations to whom the said amount
shall be given.
Article 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.
Note: The act determining whether a testamentary disposition is to be
operative or not, is not exactly testamentary in character. But the delegation of
such act to a 3rd person would be tantamount to allowing the testator to
substitute the will of a 3rd person, for his own, which precisely, what the law
intends to prevent, when it states that the making of a will cannot be left, in
whole or in part, to the discretion of a 3rd person.
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LYSACLOLO
SUPPOSE IT IS STATED IN MR. X’S WILL “I WILL GIVE MY
HOUSE AND LOT TO F, IF MY WIFE WILL AGREE”. IS THE
PROVISION VALID?
NO. It is subject to the 3rd person’s determination. Under Art. 787, the
testator may not make a testamentary disposition in such a manner that
another person has to determine whether or not it is to be operative.
IN THE PRECEDING, IS THE ENTIRE WILL INVALID?
NO. The only provisions whose effectivity depend upon the determination of
the 3rd person (X’s wife) will be invalidated.
ASPECTS OF A WILL GOVERNED BY THE LAW OF THE
DECEDENT
1. Order of succession
2. Amount of succession
3. Intrinsic validity of testamentary provisions
4. Capacity to succeed (Art. 1039)
NOTE: Art. 1039 of the NCC – Capacity to succeed is governed by the law of
the nation of the decent.
RULE ON THE INTERPRETATION AND CONSTRUCTION WITH
RESOECT TO TESTATE SUCCESSION:
The rule is “to ascertain and give effect to the intention and desires of the
testator, provided, they are not contrary to law”.
Article 788
If a testamentary disposition admits of different interpretations, in case of
doubt, that interpretation by which the disposition is to be operative shall be
preferred.
WHAT IF THE PROVISION OF THE WILL ADMITS OF
DIFFERENT INTERPRETATIONS, WHICH SHALL BE
PREFERRED?
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. The reason is that, testate succession, provided the will is valid, is
preferred to intestacy. If no doubt exists and the disposition is clearly illegal,
the same should not be given effect.
Article 789
When there is an imperfect description, or when no person or property exactly
answers the description, mistakes and omissions must be corrected, if the
error appears from the context of the will or from extrinsic evidence,
excluding the oral declarations of the testator as to his intention; and when an
uncertainty arises upon the face of the will, as to the application of any of its
provisions, the testator's intention is to be ascertained from the words of the
will, taking into consideration the circumstances under which it was made,
excluding such oral declarations.
KINDS OF AMBIGUITIES/ VALIDITIES IN THE FORMALITIES OF
THE WILL
1. Latent or Intrinsic ambiguities
2. Patent or Extrinsic Ambiguities
LATENT/ INTRINSIC AMBIGUITIES – that which does not appear on the
face of the will and is discovered only the extrinsic evidence.
I.E. I institute my brother-in-law.
When it is discovered, that there are 2 brothers-in-law. This ambiguity is not
found in the will itself. The doubt arises only because of the things outside the
will.
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 SUCCESSION
In a will, this kind of ambiguity arises:
1. When there is an imperfect description of the heir, legatee or
devisee.
2. When there is an imperfect description of the gift being given.
3. When only one recipient is designated, but it turns out that there
are 2 or more, who fit in the description.
PATENT/ EXTRINSIC AMBIGUITY – that which appears on the face of the
will itself, in other words, by examining the provision itself, it is evident that it
is not clear.
I.E. I hereby institute some of my 7 brothers.
It is evident here, that we do not know how many of the brothers are being
instituted.
Here, extrinsic evidence, as well as the will itself may be examined (but not
the oral declarations of the testator) to ascertain the testator’s intent, but if
after everything has been done, the doubt still remains, not one of the seven
brothers will inherit as instituted heirs, because then, the heirs will be
considered as unknown persons under Art. 844, 2nd paragraph.
REMEDY IF THERE IS A LATENT/ INTRINSIC AMBIGUITY IN
THE PROVISIONS OF THE WILL
Ascertain the testatorial intention by using either or both:
1. Intrinsic evidence
2. Extrinsic evidence
The oral declarations of the testator as to his intentions must be excluded.
I.E. X owns 2 parcels of land in a certain province, has devised 1 of them to
his cousin, Y. During the estate proceedings, a question arouse as to the
identity of the land devised because of the imperfect description of the
property in the will.
HOW CAN THE IDENTITY OF THE PROPERTY DEVISED BE
DETERMINED?
Under Art. 789, Y may avail himself of either intrinsic or extrinsic evidence or
of both, in order to ascertain the testatorial intention.
CAN Y TESTIFY OR PRESENT WITNESSES< WHO WILL TESTIFY
TO THE EFFECT THAT DURING HIS LIFETIME, THE TESTATOR,
X, VERBALLY DECLARED OR REVEALED THE IDENTITY OF
THE PROPERTY HE INTENDED TO DEVISE?
NO. Such testimony would be a hearsay, and therefore, inadmissible as
evidence.
SUPPOSE THAT THE WILL STATES “I GIVE TO MY 1 COUSIN ST
JOHNNY DEPP MY HOUSE AND LOT IN QUEZON CITY.” BUT 3
FIRST COUSINS ARE NAMED JOHNNY DEPP. WHAT KIND OF
DEFECT IS THIS? WHAT IS THE REMEDY?
Latent. Same as patent.
REMEDY IF THERE IS A PATENT/ EXTRINSIC AMBIGUITY IN
THE PROVISION OF THE WILL
The same as latent/ intrinsic ambiguity. Ascertain the testatorial intention by
using either or both:
1. Intrinsic evidence
2. Extrinsic evidence
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LYSACLOLO
WHY IS ORAL DECLARATION OF THE TESTATOR IN
DETERMINING THE AMBIGUITIES IN THE WILL NOT
ALLOWED?
1. It is merely a hearsay, and therefore, inadmissible as evidence.
2. The testator is already dead by the time the ambiguities of the will
are questioned, and therefore, he can no longer refute the
testimonies of lying witnesses.
TESTATOR WILL GIVE HIS HOUSE AND LOT TO2 OF HIS 5
BROTHERS. WHAT KIND OF AMBIGUITY IS THIS? IS THE
DISPOSITION VALID?
Patent/ Extrinsic. It is evident from the face of the will itself.
IT DEPENDS. YES, if the identity of the two (2) brothers referred to in the
will can be ascertained by extrinsic or intrinsic evidence. NO, if the identity
cannot be determined. In this case, the law on intestate succession shall apply.
PRINCIPAL RULE IN INTERPRETATION OF WILLS
1. Determine the testatorial intention
2. Consider the provisions altogether
3. Avoid provisions which shall render the will ineffective
4. Testacy is always preferred
Article 790
The words of a will are to be taken in their ordinary and grammatical sense,
unless a clear intention to use them in another sense can be gathered, and
that other can be ascertained.
Technical words in a will are to be taken in their technical sense, unless the
context clearly indicates a contrary intention, or unless it satisfactorily
appears that he was unacquainted with such technical sense.
Article 791
The words of a will are to receive an interpretation which will give to every
expression some effect, rather than one which will render any of the
expressions inoperative; and of two modes of interpreting a will, that is to be
preferred which will prevent intestacy.
EFFECT IF THE WILL OF THE TESTATOR IS NOT FOLLOWED
OR IF THE WILL IS VOID
Intestate succession occurs.
NOTE: Intestacy is not preferred because it is merely presumed.
GR: Testate succession is the general rule because it the express will of the
testator.
ETR: If the will not valid or when the will is void.
Article 792
The invalidity of one of several dispositions contained in a will does not result
in the invalidity of the other dispositions, unless it is to be presumed that the
testator would not have made such other dispositions if the first invalid
disposition had not been made.
WILL THE INVALIDITY OF 1 OF SEVERAL DISPOSITIONS
CONTAINED IN A WILL RESULT IN THE INVALIDITY OF THE
OTHER DISPOSITIONS?
NO. It will not result in the invalidity of the other dispositions, which are
otherwise valid, unless, it is to be presumed that the testator would not have
made such dispositions, if the first invalid disposition had not been made.
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 SUCCESSION
NOTE: Even if one disposition or provision is invalid, it does not necessarily
follow that all the others are also invalid. The exception occurs when the
various dispositions are indivisible in intent or nature.
Article 793
Property acquired after the making of a will shall only pass thereby, as if the
testator had possessed it at the time of making the will, should it expressly
appear by the will that such was his intention.
AFTER ACQUIRED PROPERTIES
Under Art. 793, property acquired during the interval between the execution
of the will and the death of the testator, are not as a rule, included among the
properties disposed of, unless, it should expressly appear in the will itself, that
such is the intention of the testator.
I.E. If the testator made a will in 1980, disposing his properties in the form of
gifts or bequests of specific or determinate real and personal properties, and
subsequently, during the period from 1980 to the time of his death in 1990, he
is able to acquire other properties. According to Art. 793, the will shall only
pass to those properties, which he had at the time of its execution in 1980, but
not those, which he had acquired subsequent thereto.
It is clear however, that Art. 793 applies only to devises and legacies and not
to the institution of heirs. This can be inferred from the provisions of Art. 776
and 781 regarding the extent of inheritance.
X EXECUTED A WILL IN 1980 INSTITUTING HIS 3 CHILDREN, A,
B AND C AS HIS UNIVERSAL HEIRS. A SHALL BE ENTITLED TO
½, B TO ¼ AND C THE REMAINDER. X DIED IN 1990, LEAVING
CONSIDERABLE PROPERTIES, MOST OF WHICH WERE
ACQUIRED DURING THE PERIOD BETWEEN 1980 and 1990. HOW
WILL THE ESTATE BE DISTRIBUTED? OR WHAT PART OF THE
ESTATE WILL BE DISTRIBUTED?
The division of the estate as dictated in the will shall be applied not only to
those properties existing at the time of the execution of the will on 1980, but
even to those that were acquired subsequent thereto, because A, B and C are
instituted as legatees/devisees.
WHY DOES THE PROVISION OF AFTER ACQUIRED PROPERTIES
APPLY ONLY TO LEGATEES AND DEVISEES?
It does not apply to heirs, because the heirs inherit everything at the time of
the testator’s death. The extent of the inheritance includes those properties
acquired even after the execution of the will. The time of death is the
determining point of the properties, which the heirs will inherit, not the
making of the will.
The provision applies only to the legatees and devisees because the intention
of the will is a complete act.
NOTE: Do not confuse Art. 793 with Art. 781. Take note of the difference
between “after acquired” property (those acquired between the making of the
will and the testator’s death) and the property “accruing since the opening of
the succession” (or the property added after the death of the decedent, referred
to under Art. 781).
Article 794
Every devise or legacy shall cover all the interest which the testator could
device or bequeath in the property disposed of, unless it clearly appears from
the will that he intended to convey a less interest.
GENERAL RULE AS TO THE INTEREST MAY BE DISPOSED OF
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LYSACLOLO
The entire interest of the testator in the property is given – not more or less.
I.E. The owner of the house who devises the same, transfers ownership over
the entire house. If he (owner) were a mere co-owner or a usufructuary, he
conveys his share in the co-ownership, or his usufructuary rights, no more, no
less.
EXCEPTIONS TO THE SAID RULE
See Paras’ discussion under Article 792.
Article 795
The validity of a will as to its form depends upon the observance of the law in
force at the time it is made.
LAW THAT GOVERNS THE INTRINSIC VALIDITY OF A WILL
The law at the time of the death of the decedent.
KINDS OF VALIDITY WITH RESPECT TO WILLS
EXTRINSIC VALIDITY INTRINSIC VALIDITY
Refers to the forms and solemnities Refers to the legality of the
needed provisions in an instrument,
contract or will
Maybe seen from the viewpoint of May be seen from the viewpoint of
time and place time and place
The formal validity of the will is to be judged not by the law in force at the
time of (a) the testator’s death, or (b) the supposed will is presented in the
court for probate, or (c) when the petition is decided by court, but at the time
the instrument was made.
REASON: The testator’s wishes regarding the disposition of his estate among
his heirs, devisees and legatees are given solemn expression at the time the
will is executed, and thus becomes a complete act (Enriquez vs Abadia, 50
OG 4185; In re: Will of Riosa, 39 Phil 23). Furthermore, a testator cannot be
expected to know the future, hence, it is enough that he follows the law in
force at the time he makes the will.
EFFECT OF A NEW LAW CHANGING THE FORMALITIES OF A
WILL
1. AFTER THE DEATH – the rules have no effect because the heirs
already have a vested right.
2. BEFORE THE DEATH – the rules have no effect
ETR: If a new law expressly provides for a retroactive application
EETR: When the heirs already have a vested right
IN THE PRECEEDING PROBLEM, DOES THE EXCEPTION (WITH
RESPECT TO RETROACTIVE APPLICATION OF THE LAW)
VIOLATE THE CONSTITUTIONAL PROHIBITIO REGARDING
THE DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF
LAW?
NO. It does not violate the constitutional prohibition regarding the deprivation
of property, because:
1. The statute is enacted before the death of the testator, and as a
consequence
2. No rights are yet vested in the persons called to the inheritance
either as heirs, devisees or legatees
Furthermore, the will is still revocable. Thus, if the testator has made a will
and a new law is passed affecting the will, the testator may still change the
will to conform to the new law.
RULE UNDER ART. 795
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 SUCCESSION
A will perfectly valid at the time of its execution cannot be invalidated by a
law enacted after the death of the testator; neither can a will totally void at the
time of its execution be validated by such subsequent legislation.
SUPPOSE X EXECUTED HIS LAST WILL AND TESTAMENT IN
SEPT. 13, 1999. THE LAW AT THE TIME WAS EXECUTED,
REQUIRES 3 WITNESSES. BUT AT THE TIME X EXECUTED HIS
LAST WILL AND TESTAMENT, ONLY 2 WERE PRESENT. A
MONTH THEREAFTER, A NEW LAW WAS PASSED REQUIRING
ONLY 1 WITNESS. SHOULD X’S WILL BE GIVEN EFFECT?
NO. The validity of the will as to its form depends upon the observance of the
law in force at the time it is made. The formal validity of the will is to be
judged, not only by the law in force at the time of the supposed will is
presented in court for probate, or when the petition is decided by court, but
also at the time the instrument was executed. Although the will operates only
after the death of the testator, in reality, his wishes regarding the disposition of
his estate among his heirs, devisees and legacies, are given solemn expression
at the time the will was executed. It is also during that same time, that will
becomes a completed act.
SUPPOSE AT THE TIME OF THE EXECUTION OF THE WILL, THE
LAW REQUIRED 3 WITNESSES. THE WILL WAS EXECUTED BY
X, COMPLYING WITH SUCH REQUIREMENT. THEREAFTER, A
SUSEQUENT LAW REDUCED THE REQUIRED NUMBER OF
WITNESSES, UNTIL THE TIME X DIES. IS THE WILL VALID?
YES. Although, the will did not comply with the formalities prescribed by
law, enacted after the execution of the will, yet, it can still be admitted to
probate because it had complied with all of the formalities in force at the time
of its execution.
IS THE RULE ENUNCIATED IN ART. 795 ABSOLUTE?
NO. The validity of a will as to its form depends upon the observance of the
law in force at the time it is made. Except, if a subsequent law allows or
required retroactivity. A latter law may allow for express retroactivity as
implied from the language used therein.
SUPPOSE X DIED BEFORE EFFECTIVITY IF A NEW LAW, BUT
PROBATE OF THE WILL WAS INITIATED AFTER EFFECTIVITY
OF THE LAW> WILL THE NEW LAW BE GIVEN RETROACTIVE
EFFECT?
NO. The new law must be given retroactive effect, as this will violate the
vested rights of the heirs because the rights are transmitted at the time of the
death of the decedent.
LORENZO v. POSADAS 64 PHIL 353
FACTS: Thomas Hanley died, leaving a will and some personal and real
properties. The will, which was duly admitted to probate, provides among
other things, that all the properties of the testator shall pass to his nephew,
Matthew Hanley. However, it also provides that all the real estate shall be
placed under the management of the executors for a period of 10 years.
After the expiration of which, the properties shall be given to Matthew
Hanley.
Plaintiff contends that the inheritance tax should be based upon the value
of the estate at the expiration of the 10-year period, which according to the
testator’s will, the property could be and is to be delivered to the instituted
heir, and not upon the value thereof, at the time of the death of the testator.
RULING: Whatever may be the time when actual transmission of the
inheritance takes place, succession takes place in any event at the moment
of death of the decedent.
Death is the generating source from the power of the State to impose
inheritance taxes takes it being. Hence, if upon the death of the decedent,
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LYSACLOLO
succession takes place and the right of the State to tax vest instantly, the
tax should be measured by the value of the estate as it stood at the time of
the decedent’s death, regardless of any subsequent contingence affecting
value or any subsequent increase or decrease in value.
ARTICLE 796-800
TESTAMENTARY CAPACITY AND INTENT
TESTAMENTARY CAPACITY – refers to ability, as well as, the power to
make a will.
Article 796
All persons who are not expressly prohibited by law may make a will.
WHO MAY EXECUTE A WILL?
All persons who are not expressly prohibited by law to make a will.
IS THE RIGHT TO MAKE A WILL A NATURAL RIGHT?
NO. Not all persons are qualified to make a will. The law provides some
requirements before a person can execute a will.
It is purely a creature if statute, and as such, is subject matter of legislative
control.
Article 797
Persons of either sex under eighteen years of age cannot make a will.
MINIMUM REQUIREMENTS FOR PERSONS MAKING A WILL
1. 18 years old
2. Of sound mind
3. Not expressly prohibited by law
WHEN DOES A PERSON BECOME 18?
A person is said to have reached the age of eighteen (18) only at the
commencement of the day which is popularly known as his birthday.
NOTE:
18 YEARS OF AGE
Minimum age required
As long as it is made before the decedent reaches the age 18, the will is
void
Good faith is immaterial
The law does not fix a maximum age
X MADE A WILL WHEN HE IS ONLY 17. HE DIED WITHOUT
CHANGING THE WILL. IS THE WILL VALID?
NO. X has no testamentary capacity at the time of the execution of the will.
Supervening capacity or incapacity does not affect the will because its
invalidity is determined at the time of the execution of the will.
IN THE PRECEDING, WHAT IF X BELIEVED IN GOOD FAITH
THAT HE IS ALREADY 18. IS THE WILL VALID?
NO. Good faith is immaterial.
SUPPOSE THAT X IS ALREADY 95 YEARS OLD, CAN HE STILL
MAKE A VALID WILL?
YES. The law does not fix a maximum age of making a will.
WHAT IF X SUFFERS FROM TUBERCULOSIS, DIABETIS, SARS,
AIDS, ETC?
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 SUCCESSION
YES. He may still make a valid will.
WHAT IF X DOES NOT REMEMBER THAT HE HAS A WIFE AND A
CHILDREN?
NO. Because he does not know the proper object of his bounty.
WHAT IF X KNOWS HE HAS A BPI BANK ACCOUNT, BUT DOES
NOT KNOW THE EXACT AMOUNT OR HE KNOWS HE HAS A LOT
IN QC BUT HE DOES NOT KNOW THE EXACT ADDRESS?
YES. He may still make a valid will as long as he knows the nature and extent
of his estate.
POINTERS
1. The law prescribed no limit in point of age by which a person
cannot dispose of his property by will. Hence, mere senility or
infirmity of old age does not necessary imply that a person lacks
testamentary capacity.
2. A person is considered to have reached the age of 18 on the 1 st
hour of his birthday.
3. Neither physical infirmity or disease is inconsistent with
testamentary capacity. The usual test must still be applied.
4. Senile dementia produces a testamentary incapacity. It is defined
as the peculiar decay of the mental faculties, whereby the person
afflicted is reduced to a second childhood.
5. The fact that the testator is under the immediate influence of
intoxicating liquor or drugs at the time he performs the
testamentary act, does not invalidate his will, on the ground of lack
of testamentary capacity, provided he meets the 3 requirements.
6. An insane delusion, which will render one incapable of making a
will, may be defined as a belief in things, which do not exist, and
which, no rational mind would believe to exist.
7. A belief in spiritualism is not itself a sufficient evidence of
testamentary incapacity. However, a will executed by one under
such extraordinary belief in spiritualism, that he follows blindly
and implicitly, the supposed direction of the spirits in constructing
the will, is not admissible to probate.
I.E. Belief in angels/ dwarfs
a. If no angel – Delusion
b. If there is angel – Undue pressure and influence or even
threat
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.
WHEN IS A PERSON OF A SOUND MIND?
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LYSACLOLO
To be of sound mind, it is not necessary that the testator to 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.
WHAT IS THE DEFINITION OF A SOUND MIND AS APPLIED IN
THE MAKING OF THE WILL?
SOUNDNESS OF MIND – ability of the testator mentally to understand in a
general way, the nature and extent of his property, his relation to those who
naturally have a claim, to benefit from his property left by him (proper
bounty), and a general understanding of the practical effect of the will as
executed (must be aware that his act is revocable and must be aware of the
effects of his act of making a will).
SUPPOSE X SUFFERED A STROKE AND PART OF HIS BRAIN WAS
DAMAGED. CAN HE STILL BE CONSIDERED TO BE OF SOUND
MIND FOR PURPOSES OF EXECUTING A WILL?
IT DEPENDS. If the brain damage sustained by X is so severe, that it deprives
him, at the time of making the will, to know the nature of the estate to be
disposed of, the proper object of his bounty, and the character of his
testamentary act, then, X cannot be considered to be of sound mind.
But if the brain damage sustained by X is not so severe, that at the time of
making the will he is able to know the nature of the estate to be disposed of,
the proper object of his bounty and the character of his testamentary act, then
X can still be considered to be of sound mind.
REQUISITES IN ORDER THAT THE TESTATOR BE CONSIDERED
TO BE OF SOUND MIND:
The testator must be able, at the time of the making of the will to know the:
1. Nature of the estate to be disposed of
2. Proper objects of his bounty
3. Character of his testamentary act
NATURE OF ESTATE – character and testator’s ownership of what he is
giving. Testator knows the properties but not necessarily all the details of the
properties.
X DECIDED TO MAKE A WILL. HE KNOWS HE. HAS PROPERTIES
IN MANILA, BUT HE DOES NOT KNOW THE EXACT ADDRESS. IS
THE DISPOSITION VALID?
YES. The law merely requires that the testator knows, in a general way the
nature and the extent of his properties. In this case, X is of sound mind when
he executed the will.
X MADE A WILL IN 1990. HE KNEW HE HAS MONEY IN THE
BANK AND IN HIS HOUSE IN MANILA BUT HE FORGOT THE
SPECIFIC DETAIL CONCERNING HIS PROPERTIES. IS THE WILL
VALID?
YES. X knows the extent of his properties in a general way. He is of sound
mind.
PROPER OBJECTS OF HIS BOUNTY – testator’s relation to those who
would naturally have a claim or to those who would benefit from the property
left by the testator. In short, it refers to the persons who for some reason
expect to inherit something from the testator.
I.E. Testator’s children
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 SUCCESSION
IS IT NECESSARY THAT THE TESTATOR WHOULD KNOW THE
BENEFICIARIES OF THE WILL?
YES. As a general rule, the law requires the testator to be aware of the proper
objects of his bounty, except in Art. 786 which provides that the testator may
designate only a specific class or cause in his will, and that the third person
shall be responsible in allocating the specific portion to its members.
ABLE TO KNOW THE CHARACTER OF THE TESTAMENTARY
ACT – it means that the testator knows that it is really a will, that it is a
disposition mortis causa, that it is essentially revocable. In short, the testator
must have a general understanding of the practical effect of the will as
executed.
CAN A DRUG ADDICT MAKE A VALID WILL?
YES.
GR: A drug addict can make a will as long as he is in his lucid mind and he
complies with the requisites provided for under Art. 799, 2nd paragraph.
ETR: When the effect of drugs are so strong as to render him of unsound
mind.
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.
UNDER ART. 800, THE LAW PRESUMES THAT EVERY PERSON IS
OF SOUND MIND, IN THE ABSENCE OF PROOF TO THE
CONTRARY. WHAT ARE THE INSTANCES WHEN THIS
PRESUMPTION IS INVERTED? OR WHAT ARE THE INSTANCES
WHEN THE TESTATOR IS PRESUMED TO BE MENTALLY
UNSOUND?
There are at least 3 instances:
1. When the testator, 1 month or less, before making his will was
publicly known to be insane.
NOTE: Instead of presumption of mental capacity, there is a
presumption of mental incapacity. The burden of proof is shifted to
the proponents of the will.
2. If the testator made the will after he had been judicially declared to
be insane, and before such judicial order has been set aside. (Torres
vs Lopez, 48 Phil 772)
3. If the testator makes a will at the time he is still under
guardianship.
REASON FOR THE INVERSION OF THE RULE WHEN A PERSON
WHO MADE THE WILL IS UNDER GUARDIANSHIP
A prima facie presumption of mental incapacity, when a person is under
guardianship.
IF DURING THE PROBATE OF THE WILL, THERE IS A QUESTION
AS TO THE SOUNDNESS OF MIND OF THE TESTATOR.
OPPOSITORS TO THE WILL PRESENTED THE ATTENDING
PHYSICIAN. WHOSE TESTIMONY SHALL BE GIVEN WEIGHT,
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LYSACLOLO
THE ATTENDING PHYSICIAN OR THE DOCTOR WHO RENDERS
THE MEDICAL SPECULATION?
The attending physician.
As per Dean Navarro: I suggest you get the following as witnesses to the
execution of a will:
1. Priest or Minister – highly credible
2. Doctor – attending physician
3. Lawyer – Familiar with the law
EFFECT OF INFIRMITY OR DISEASE ON THE TESTATOR’S
TESTAMENTARY CAPACITY:
Physical infirmity or disease of the testator will not affect his testamentary
capacity as long as the tests/ requisites are complied with.
X EXECUTED A WILL. IN ORDER FOR HER TO SIGN THE WILL,
IT IS NECESSARY FOR Y, A MINOR, TO GUIDE HER HANDS.
DOES X STILL HAS TESTAMENTARY CAPACITY?
YES. As long as the 3 requisites/ tests are complied with.
MENTAL INSANITY – any disorder of the mind resulting from disease or
defect of the brain, whereby mental freedom may be perverted, weakened or
destroyed. This is sometimes used as the equivalent of mental incapacity to
make a will. But there may be mental incapacity to make a will without actual
insanity.
Person suffering from:
1. Idiocy
2. Imbecility
3. Senile dementia
IDIOCY – those who are mentally deficient in intellect.
IMBECILITY – those who are mentally deficient as a result of a disease.
NOTE: There are other forms or degrees of mental disease/ weakness which
do not necessarily negate testamentary capacity.
Under our law, 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 (Art.
799).
Hence, mental aberrations, which do not result in such impairment of the
faculties as to render the testator unable to know or understand the nature of
his estate to be disposed of, the proper objects of his bounty and the character
of the testamentary act, will not destroy testamentary capacity.
Article 801
Supervening incapacity does not invalidate an effective will, nor is the will of
an incapable validated by the supervening of capacity.
NOTE: Supervening capacity or incapacity does not affect the will because its
validity is determined at the time of the execution of the will.
DOES THE SUPERVENING INCAPACITY OF THE TESTATOR
INVALIDATE AN EFFECTIVE WILL? OR IS THE WILL OF AN
INCAPABLE VALIDATED BY THE SUPERVENING CAPACITY?
NO. See Art. 801 in relation to Art. 795
X MADE A WILL WHEN HE WAS ONLY 17 YEARS OLD. HE DIED
AT THE AGE OF 27 WITHOUT CHANGING THE WILL. IS THE
WIL VALID?
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 SUCCESSION

WHAT IF THE HUSBAND OBJECTS? CAN SHE STILL MAKE A

NO. X has no testamentary capacity at the execution of the will. Supervening
capacity or incapacity does not affect the will because its validity is
determined at the time of the execution of the will.
SUPPOSE X MADE A WILL IN 1975 WHEN HE WAS 25 YEARS OLD.
IN 1997, HE BECAME INSANE. HE DIED IN 1999. IS THE WILL
VALID?
VALID WILL?
YES. Art. 802 is very clear on this. A married woman may make a will
without the consent of her husband. Aside from the minimum requirement that
she must be: 18 years old and be of sound mind, nothing more is needed for a
married woman to validly make a will.

YES. Subsequent incapacity of the testator does not invalidate a valid will.

HOW MANY TIMES CAN A PERSON MAKE A WILL?

There is no limit as to how many times a person can make a will, as long as,
he has the capacity to do it. Once a person is 18 years old the law presumes
capacity. So even if the testator is already 100 years old the will is still valid,
unless otherwise proven.

DOES THE LAW PRESCRIBE A LIMIT IN POINT OF AGE BY

WHICH A PERSON CAN DISPOSE OF HIS PROPERTY BY WILL?

NO. As long as the testator passes the test of sound mind, provided under
Article 799. That is, that the testator, at the of the making of the will, is able to
know:
1. Nature of the estate to be disposed of
2. Proper object of his bounty
3. Character of the testamentary act

REASON WHY A PERSON BELOW 18 YEARS OF AGE IS

INCAPACITATED TO MAKE A WILL

The law presumes mental incapacity.

WHY IS A PERSON TOO OLD STILL ALLOWED TO MAKE A

VALID WILL?

It has been justly said, that the will of an aged (old) person, should be
regarded with tenderness, provided, that he passes the 3 tests of possessing a
sound mind.

Article 802
A married woman may make a will without the consent of her husband, and
without the authority of the court.

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. ARTICLE 804-814
WHY IS THERE NO PROVISION ABOUT MARRIED MEN ON FORMALITIES OF WILLS
LAWS OF TESTAMENTARY CAPACITY AND INTENT?
Article 804
Because there is no doubt as to the rights of men in succession. Unlike women Every will must be in writing and executed in a language or dialect known to
due to the Old Civil Code. the testator.

CAN A MARRIED WOMAN EXECUTE HER LAST WILL AND
TESTAMENT WITHOUT THE CONSENT OF HER HUSBAND AND
WITHOUT AUTHORITY FROM THE COURT?
YES. A married woman may execute a will without the consent of her
husband and without authority from the court. (Art. 802)
Article 805
Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of one another.

PROPERTIES WHICH A MARRIED WOMAN MAY DISPOSE OF BY
WILL
A married woman may dispose by will all of her separate property, as well as,
her share of the conjugal partnership or absolute community property.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages shall
be numbered correlatively in letters placed on the upper part of each page.

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 SUCCESSION
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction, in
the presence of the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the testator and of
one another
. WRITTEN IN A LANGUAGE KNOWN TO THE TESTATOR?
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.
Article 806
Every will must be acknowledged before a notary public by the testator and
the witnesses. The notary public shall not be required to retain a copy of the
will, or file another with the Office of the Clerk of Court.
CLASSIFICATION OF WILLS:
1. Ordinary/ Notarial
2. Holographic
HOLOGRAPHIC WILL – written will which must be entirely written, dated
and signed by the hand of the testator himself without the necessity of any
witness.
OBJECT OF THE SOLEMNITIES SURROUNDING THE
EXECUTION OF WILL:
1. To close the door against bad faith and fraud
2. To avoid substitution of wills and testaments
3. To guarantee their truth and authenticity
FORMALITIES OF AN ORDINARY/ NOTARIAL WILL – See Art. 804-
809
FORMALITIES IF A HOLOGRAPHIC WILL – See Art. 810-814
CAN THERE BE AN ORAL WILL?
NO. Art. 804 expressly provides that every will must be in writing.
X, KNOWING THAT HE WAS ABOUT TO DIE, DICTATED IN
FRONT OF A VIDEO CAMERA HIS LAST WILL AND TESTAMENT.
IS THE WILL VALID?
NO. The will is invalid. Art. 804 expressly provides that every will must be in
writing
LANGUAGE MUST BE KNOWN (ART. 804) – language of the will must
be personally known to the testator whether he is illiterate or not. That it will
be communicated only to him without changing any intent therein if he is
blind, deaf-mute or deaf.
I.E. If the testator is an illiterate and he speaks tagalong only, the will must be
in tagalog.
DOES THE AFFORMENTIONED RULE APPLY ALSO TO THE
WITNESSES?
NO. The witnesses need not know the language of the will or attestation
clause. This is the reason why the law requires it to be interpreted to them and
not merely communicated.
X SPEAKS AND UNDERSTANDS TAGALOG ONLY. HE DOES NOT
UNDERSTAND A SINGLE ENGLISH WORD. HIS LAWYER, ATTY.
SOBRANG YABANG WANTED TO IMPRESS X. SO HE WROTE X’S
WILL IN ENGLISH. HOWEVER, ATTY. SOBRANG YABANG
TRANSLATED AND EXPLAINED THE WILL “WORD FOR WORD”
TO X. IS THE WILL VALID?
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LYSACLOLO
NO. The law requires that the will shall be written in the language known to
the testator.
NOTE: This rule applies even if the person is blind, deaf, deafmute.
IN THE PRECEDING PROBLEM, WHY IS IT REQUIRED TO BE
Because the will is a personal act concerning a disposition of one’s properties.
WHAT ABOUT IF THE TRANSLATOR IS THE BEST TRANSLATOR
THAT THE WORLD CAN OFFER?
NO. The will is still invalid. No matter how good the translator can be,
something may be lost in the process of translation.
IS IT NECESSARY FOR THE VALIDITY OF THE WILL THAT IT IS
STATED, THAT THE WILL WAS EXECUTED IN A LANGUAGE OR
DIALECT KNOWN TO THE TESTATOR?
NO. It is a matter that may be established by extrinsic evidence.
CAN A WILL BE WRITTEN IN LATIN?
YES. As long as it is known to the testator.
CAN A WILL BE WRITTEN IN SEVERAL LANGUAGES?
YES. As long as the languages used are known to the testator.
WHEN X EXECUTED HIS WILL, IT CONTAINED 10
DISPOSITIONS. EACH OF THE 10 DISPOSITIONS WAS WRITTEN
IN DIFFERENT DIALECTS AND LANGUAGES. X USED FRENCH,
SPANISH, LATIN, ENGLISH, TAGALOG, BIKOL, CEBUANO,
WARAY, ILONGGO AND HILIGAYNON, SO THAT THESE
LANGUAGES AND DIALECT CORRESPOND TO THE
AFFORMENTIONED 10 DISPOSITIONS IN THE WILL. IS THE
WILL VALID?
IT DEPENDS. IF X knows all those languages and dialects, then, the will is
valid. The only requirement as to the language or dialect used in the making of
the will, is that, it must be known to the testator. Otherwise, the will is totally
invalid.
IN THE PRECEDING PROBLEM, WHAT IF X ONLY KNOWS
ENGLISH?
NO. The will is totally invalid.
CAN THE TESTATOR MAKE A VALID WILL USING ANY KIND OF
MATERIAL?
YES.
CAN THERE BE A VALID NOTARIAL WILL ON A MATERIAL
OTHER THAN A PAPER?
YES.
IF THE TESTATPR EXECUTED HIS HOLOGRAPHIC WILL ON A
BLACKBOARD OR A TREE LEAF, IS THE WILL VALID?
YES. As long as it is entirely written, dated and signed by the hand of the
testator. Hence, it can be written on any material.
HOW ABOUT IF THE WILL IS WRITTEN ON A WALL?
NAVARRO
 SUCCESSION

YES. The will may be valid, provided it complies with all the requisites.
The X mark was not allowed by the court because there was no proof that
X EXECUTED HIS HOLOGRAPHIC WILL ON A WATERMELON it was the customary signature of the testator, or one of the ways by which
LEAF. IS THE WILL VALID? he signed his name.

YES. As long as it complies with all the requirements for the valid execution
of a holographic will. Art. 810 provides that “a person may execute a
holographic will which must be entirely written, dated and signed by the hand
of the testator himself. It is subject to no other form and may be made in or
out of the Philippines, and need not be witnessed”.
Here, the mark was questioned because the will was executed by a lawyer,
and such fact, that is was under the express direction of the testator was
not stated in the will.
CAN THE TESTATOR SIGN WITH HIS NICKNAME?

The will therefore, remains to be valid although it has been written on a
watermelon leaf.
NOTE: The law does not specify that the testator himself must perform the act
of writing. However, in case of holographic wills, the will must be entirely
written, dated and signed by the hand of the testator himself.
Consequently, it is only in ordinary/ notarial wills that whoever performs the
mechanical act of writing or drafting the will becomes a matter of
indifference.
WHAT CONSTITUTES SUFFICIENT SIGNATURE TO A WILL?
YES.
NOTE: Generally speaking, the use of any signature intended by the testator
to authenticate the instrument renders the will sufficiently signed by the
testator.
Hence, a complete signature is not essential to the validity of a will, provided
that, the part of the name written was affixed to the instrument with intent to
execute it as a will.
CAN THE WITNESSES SIGN THE WILL AND ATTESTATION
CLAUSE WITH A FOOT MARK OR A THUMB MARK?

It depends largely on the custom of the time and place, the habit of the YES. As long as the witnesses intended it to be his signature.
individual, and the circumstances of each particular case. But, it should be
manifest, that whatever is used is actually intended as a signature. SUPPOSE IT IS NOT CUSTOMARY USED BY HIM?

SIGNATURE – a sign, token or emblem and what that shall be, depends Even the law does not provide that he signs with what he customarily uses as
upon the custom of the time and place, and on the habit or whim of the his signature.
individual.
CAN THE TESTATOR SIGN WITH HIS THUMB MARK EVEN IF HE
The material thing is that the testator made the mark to authenticate the KNOWS HOW TO WRITE?
writing as his will and whatever he puts on it for that purpose, will suffice.
YES.
1. SUBSCRIPTION – manual act of the testator and also the
instrumental witnesses of affixing their signatures to the CAN THE TESTATOR SIGN WITH HIS FOOT MARK EVEN IF HE
instrument. KNOWS HOW TO WRITE?

2. The purpose of the signature as applied to the testator are to: YES.
a. Identify the testator
b. Authenticate the document
CAN THE TESTATOR SIGN WITH ANY MARK EVEN IF HE
3. The test of sufficient signature is if the testator intended it as his KNOWS HOW TO WRITE?
signature.
YES.
4. The testator may use as his signature the following:
a. First name NOTE: Any mark or combination of marks placed on a will by the testator as
b. Assumed name his signature is a sufficient compliance with a statute requiring a will to be
c. Name different from the one used to designate him as a subscribed by the testator.
testator in the will
d. Name misspelled or abbreviated It the testator has been in the habit of using a rubber or engraved dye, in
e. Rubber stamp/ Engraved mark making his signature, he may properly use the same in signing his will.
f. Thumb mark
g. Cross against his name THE TESTATOR SIGN AT THE BEGINNING OF THE WILL. IS THE
WILL VALID?
Provided, that any of the aforementioned was intended by the
testator to be his signature. NO. Art. 805 provides “every will, other than a holographic will, must be
subscribed at the end thereof by the testator or by the testator’s name written
5. With respect to the use of a mere cross (X) as a signature: by some other person in his presence, and by his express direction xxx”.
a. It is not sufficient as a signature without any proof that the
testator intended it to be his signature. NOTE: End refers to the logical end of the will, not the will’s physical end.

b. If proof is presented that the testator intended a mere cross LOGICAL END – portion after the last testamentary provision.
(x) to be his signature, then it may be considered as a valid
signature in a will. X DIED WITH A WILL. WHEN THE WILL WAS PRESENTED FOR
PROBATE, IT WAS READILY APPARENT THAT IT WAS SIGNED
GARCIA v. LACUESTA, 90 PHIL 489
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 SUCCESSION
IN EACH AND EVERY PAGE AND IN THE LEFT MARGIN, BUT
NOT THE END. SHOULD THE WILL BE ALLOWED?
NO. The law requires that the will be subscribed at the end of the will.
IS IT A FATAL DEFET?
YES.
WHY REQUIRE THAT THE SIGNATURE MUST BE AT THE END
OF THE WILL?
The purpose of the requirement is not only to show that the testamentary
purpose therein expressed is completed, but also to prevent any opportunity
for fraud or interpolations between the written matter and the signature.
NOTE: Another essential requirement for the validity if an ordinary will is the
attestation clause. Absence of this clause will render the will a nullity.
Therefore, it is mandatory.
DIFFERENCE BETWEEN ATTESTATION AND SUBSCRIPTION
ATTESTATION SUBSCRIPTION
Act of the senses Act of the hand
Mental act Mechanical act
Purpose is to render available proof Purpose is identification or to
during the probate of the will, not identify that it is really the will of
only the authenticity of the will, but the testator.
also its due execution.
SUPPOSE X EXECUTED A NOTARIAL WILL, THE ATTESTATION
CLAUSE OF WHICH IS IN SPANISH. X KNOWS ENGLISH BUT
NOT SPANISH. IS IT A VALID WILL?
YES.
CAN THERE BE A VALID WILL WITHOUT AN ATTESTATION
CLAUSE?
NONE.
WHEN THEN SHOULD AN ATTESTATION CLAUSE IN A
LANGUAGE NOT KNOWN TO THE TESTATOR BE PERMITTED?
The attestation clause is a declaration made by the witnesses, not by the
testator.
PURPOSE IN REQUIRING THE WITNESSES TO ATTEST AND
SUBSCRIBE TO THE WILL:
1. To identify the instrument
2. To protect the testator from fraud and deception
3. To ascertain the testamentary capacity of the testator
ATTESTATION CLAUSE – memorandum or record of facts, wherein, the
witness certify that the instrument has been executed before them and that it
has been executed in accordance with the formalities prescribed by law.
IS THE ATTESTATION CLAUSE PART OF THE WILL?
NO. It is separate and distinct from the testamentary dispositions, which were
executed by the testator. It is a separate memorandum executed by the
witnesses stating that they witnessed the execution of the will and that it is in
accordance with the formalities of the law. But it can be incorporated in the
will.
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LYSACLOLO
PURPOSE OF ATTESTATION – to render available proof during the
probate of the will, not only to the authenticity of the will, but also its due
execution.
WHERE SHOULD THE ATTESTATION CLAUSE BE PLACED?
The attestation clause may be written immediately after the signature of the
testator at the end of the will.
WHAT IF IT IS PLACED AT THE BEGINNING OF THE WILL?
YES. The will would still be valid. The present form is only for convenience.
NOTE: The law does not require the attestation to be contained in a single
clause. Thus, where a will did not contain a separate and independent
attestation clause, but the concluding paragraph of the body of the will was
written in the tenor of an attestation, stating the facts required by law to be set
forth in an attestation clause, and the ultimate paragraph of the will stated the
number of pages use, it was stated that there was a sufficient attestation
clause.
If there is a separate attestation clause, it need not be written on the very same
page where the dispositions of the will ends, even if, there should be sufficient
space in which to begin the said clause.
IS IT NECESSARY THAT THE ATTESTATION CLAUSE BE AFTER
THE TESTAMENTARY DISPOSITION?
NO. The current form is only for convenience.
WHAT MUST BE STATED IN ATTESTATION CLAUSE?
Art. 805, paragraph 3.
EXAMPLE OF AN ATTESTATION CLAUSE
We witnesses, do hereby certify: that the will of Mr. A consists of 5 pages
including (b) the page that Mr. A executed his signature and every page
thereof in our presence, (c) that we witnessed the execution of the will and
signed each and every page thereof, in the presence of Mr. A and each other.
(Signatures must follow)
SUPPOSE THAT THE PHRASE “EACH AND EVERY PAGE
THEREOF” WAS NOT INCLUDED. SHOULD THE WILL BE
ALLOWED?
YES. Compliance with the requirement “each and every page thereof” be
signed, may be proved by the marginal signatures in each and every page of
the will.
SUPPOSE THAT IT IS THE PHRASE “IN OUR PRESENCE” WHICH
WAS DELETED. SHOULD THE WILL BE ALLOWED?
NO. There would be nothing in the will that will prove the compliance thereto.
IS IT TENABLE THAT THE SIGNATURE FOR THE CLAUSE BE
FOUND IN OTHER PARTS OF THE PAGE?
NO. In Cargo vs Cargo, it was held that the signatures must be after the
clause, to show that the clause was indeed executed by the witnesses. Non-
appearance of the signature will negate the declaration that they saw the due
execution of the will.
NOTE: The ruling applies despite the fact that the case was decided under the
old rules of succession.
NAVARRO
 SUCCESSION
IF THE ATTESTTAION CLAUSE FAILED TO STATE THE (A)
NUMBER OF PAGES; (B) THE FACT THAT IT WAS SIGNED BY
THE TESTATOR IN THE PRESENCE OF THE WITNESSES; OR (C)
THE FACT THAT IT WAS SIGNED BY THE TESTATOR. IS THE
WILL VALID?
(A) GR: The will is not valid.
ETR: If the number of pages is stated in the will itself or
acknowledgment (Taboado vs Rosal)
NOTE: *But this exception must be received with caution because
in the case of Taboado, there were only 2 pages in the will,
including the acknowledgment. This rule applies also if the pages
are not correlatively numbered but only in cases when the will does
not exceed 2 pages.
(B) The will is void without any exceptions even if the will contains
the signature of the witnesses. The omission cannot be determined
by the examination of the will itself. Extrinsic evidence is
inadmissible.
(C) The will is void.
Exception: The doctrine of liberal interpretation shall be applied,
if there are indeed signature present.
SUPPOSE THE ATTESTATION CLAUSE DOES NOT STATE THE
NUMNER OF PAGES USED, IS THE WILL VALID?
GR: NO.
ETR: Applying the doctrine of liberal interpretation/ construction, the failure
to state in the attestation clause of the number of pages used, is not fatal.
Hence, the will may still be valid, provided, that it can be established or
deduced from an examination of the will itself, that all the statutory
requirements have been complied with.
NOTE: The doctrine of liberal interpretation cannot be applied if the omission
consists of the failure to state that the witnesses and the testator signed in the
presence of one another.
REASON: This omission cannot be remedied by an examination of the will
itself.
CAN THE TESTATOR ASK A THIRD PERSON TO SIGN FOR HIM
EVEN IF HE IS PGYSICALLY ABLE TO DO SO?
YES.
IF THE THIRD PERSON IS NOT CAPACITATED, WOULD THE
WILL BE ALLOWED?
YES. The will remains to be valid. What is material is the capacity of the
testator, not that of the third person.
WHY SHOULD THE THIRD PERSON SIGN IN THE PRESENCE OF
THE TESTATOR?
Because it is the testator himself who is signing. The third person is merely an
extension of the physical self of the testator.
5 PAGED WILL. ALL PAGES ARE NOT NUMBER. IS THE WILL
VALID?
NO. The law provides that all the pages of the will should be numbered
correlatively in letters.
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LYSACLOLO
SUPPOSE THAT EVEN IF IT IS NOT NUMBERED, THE TOTAL
NUMBER OF PAGES IS STATED IN THE ATTESTATION CLAUSE.
IS THE WILL VALID?
NO. It still remains invalid. The requirement of numbering each and every
page of the will is mandatory.
5 PAGED WILL. ONLY PAGE 1 IS NOT NUMBERED. IS IT A VALID
WILL?
YES. The authenticity of the first page is easy to determine. It can easily be
ascertained from the face of the will itself, that indeed it is the first page. From
the face of the will, it is readily ascertainable that the page, which contains the
header “Last Will and Testament” is the first page.
SUPPOSE THAT PAGE 3 WAS NOT NUMBERED, BUT ALL THE
PAGES WERE NUMBERED. IS THE WILL VALID?
NO. Here, it would be hard to determine the authenticity of the said page.
SUPPOSE X EXECUTED A 5 PAGED WILL, BUT IT WAS
NUMBERED NOT ON THE UPPER PART. INSTEAD, IT WAS
NUMBERED ON THE LOWER PART OF THE PAGE. IS THE WILL
VALID?
YES. Here, there is sufficient compliance with the requirement. The place
where the numbering was made is not fatal to the validity of the will.
CORRELATIVELY NUMBERED IN LETTERS – One, two, three, four
and so on and so forth... The number must be spelled out.
IN THE PRECEDING PROBLEM, WHAT IS THE PURPOSE OF THE
REQUIREMENT?
To forestall any attempt to suppress or substitute any of the pages of the will.
This requirement is mandatory.
NOTE: The requirement in the preceding problem is not necessary when all
the dispositive parts of a will are written on 1 sheet only. Neither is it
necessary that the pages of the will be numbered correlatively in letters such
as “one, two or three”. According to the weight of authority, substantial
compliance with the requirement is sufficient.
CAN WE NUMBER THE PAGES IN OTHER MANNER?
YES. We can use Arabic or Roman Numerals, even letter like a, b, c, etc.
5 PAGED WILL. PAGE 5 CONTAINS ONLY THE ATTESTATION
CLAUSE. ONLY THE ATTESTING WITNESSES SIGNED BELOW
THE ATTESTATION. THE TESTATOR DID NOT SIGN ON LEFT
MARGIN OF PAGE 5. IS THE WILL VALID?
YES. Attestation is the act of the witnesses alone. The law does not require
that the testator should sign on the left margin thereof.
5 PAGED WILL. 3RD PAGE DOES NOT CONTAIN THE SIGNATURE
OF THE TESTATOR ON THE LEFT MARGIN. IS THE WILL
VALID?
NO. The will is invalid. Exception: Icasiano vs Icasiano
SUPPOSE THAT IN A 4-PAGED WILL THE TESTATOR SIGN AT
THE END AND ALSO ON THE LEFT MARGIN OF EACH AND
EVERY PAGE. IN PAGE 1 TO 3, THE 3 WITNESSES SIGNED THE
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 SUCCESSION
LEFT MARGINS AND THE END OF THE WILL, BUT DID NOT
SIGN PAGE 4. SHOULD THE WILL BE ALLOWED?
NO. Attestation clause was left unsigned by the witnesses.
SUPPOSE THAT A 4-PAGED WILL WAS CONTAINED IN 2 SHEETS.
PAGE 2, WHICH WAS AT THE BACK, WAS NOT SIGNED. SHOULD
THE WILL BE ALLOWED?
NO. The law requires that the will must be signed in each and every page
thereof. The law expressly refer to page and not to the sheet or leaf or folio.
NOTE: A sheet HAS 2 pages, the front and the reverse. If both pages of the
sheet or lead are used, it is necessary that both front and reverse sides should
bear the signatures of the testator and each of the witnesses. In other words,
every page used in the will should be signed on the left margin.
SUPPOSE THAT IN A 4-PAGED WILL, THE ATTESTATION
CLAUSE DID NOT STATE ALL THE NUMBER OF PAGES USED.
BUT THE LAST PARAGRAPH STATES THAT THE WILL IS
COMPRISED OF 4 PAGES INCLUDING THE ATTESTATION
CLAUSE. SHOULD THE WILL BE ALLOWED?
YES. Following the doctrine of liberal interpretation, there is substantial
compliance of the requirements. That is, the failure of the instrumental
witnesses to state one or some of the essential facts which, according to the
law, must be stated in the attestation clause would not be fatal, provided, it can
be established or deduced from the examination of the will itself that all of the
statutory requirements have been complied with.
Take note, that in this case, the body of the will states that it is composed of 4
pages.
TABOADA v. ROSAL, 118 SCRA 195
FACTS: The attestation clause of a notarial will failed to state the number
of pages thereof. However, it is discernible from the entire will that it
really consists of 2 pages only: the 1st, containing the provisions; and the
2nd, both the attestation clause and the acknowledgment. Besides, the
acknowledgement itself states that “this Last Will and Testament consists
of 2 pages including this page”.
RULING: Under the circumstances, the will should be allowed probate.
After all, we should approach the matter liberally.
IS THERE A NEED TO INTERPRET THE ATTESTATION CLAUSE
TO THE TESTATOR?
NO. The attestation clause is the act of the witnesses alone.
TEST OF PRESENCE:
1. There is presence if the parties could have seen each other, if they
have simply chosen to do so, by turning their backs to each other.
There must be no physical obstruction of their line of sight.
2. To satisfy the test of presence it is essential that the testator and the
witnesses should be:
a. Conscious
b. Aware of what is happening
3. It the testator is blind, the sense of sight to determine presence is
not to be used. In this case, other senses, such as hearing or touch,
can be used.
TEST OF PRESENCE - The testator and the witnesses need not actually see
each other signing. It is sufficient that they could have seen each other sign if
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LYSACLOLO
they choose to do so, taking into consideration/circumstances, the mental and
physical conditions of the parties and their proximity from each other.
They must be aware that each other are signing a will and their view must be
unimpeded. So that, they will see the will if they choose to see it. (Jaboneta vs
Gustillo; Nera vs Rimando)
DOES THE LAW REQUIRE PGYSICAL PROXIMITY IN ORDER TO
HAVE A VALID PRESENCE?
NOT NECESSARILY. The test of valid presence does not necessarily require
actual seeing but the possibility of seeing without any physical obstruction.
1. When a person merely has his back turned, the signing is done in
his presence, since, he could have cast his eyes to the proper
direction.
2. If there is a curtain separating the testator and some witnesses from
the other witnesses, there would be a physical obstruction, and the
will cannot be valid.
REASONS WHY THE WILL MUST BE EXECUTED IN THE
PRESENCE OF EACH OTHER – THE TESTATOR AND THE
WITNESSES:
1. To prevent false testimonies between the principal and the
executors of the will.
2. To obtain a permanent record of the events that transpired, in case
the memory of the executor fails.
THE TESTATOR SIGNED THE WILL ON JANUARY 1, 2002. THE
WITNESSES SIGNED THE WILL ON THE FOLLOWING DAY. THE
TESTATOR ACKOWLEDGED THAT THE SIGNATURE WAS
VALID, IS THIS VALID?
NO. The law requires that the will be signed in the presence of each other. The
acknowledgement made by the testator did not cure the defect. The purpose of
the requirement is to prevent the substitution of surreptitious will.
WHILE THE TESTATOR WAS SIGNING THE WILL, THE WITNESS
LOOKED OUT THE WINDOW. IS THE WILL VALID?
YES. The witness could have seen the act, had he chose to do so, considering
their mental and physical condition.
X EXECUTED HIS WILL IN ANOTHER ROOM, WHILE THE
WITNESSES A, B AND C PLAYED HIDE AND SEEK IN ANOTHER
ROOM, WHERE X EXECUTED HIS WILL, THEY SAW X SIGNING
THE LAST 2 PAGES OF THE WILL. IS THE WILL VALID?
NO. The will was not signed in the presence of each other.
NOTE: The aforementioned problem is different from the case of Jaboneta vs
Gustillo. Here, the witnesses were in fact leaving the room but they saw their
fellow witnesses signing the will. They knew that the paper being signed is the
will. Hence, the test of presence was satisfied.
SUPPOSE THE TESTATOS IS BLIND, HOW DO YOU SATISFY THE
REQUIREMENT OF PRESENCE?
Test of available senses like touching or hearing.
MUST THE WITNESSES SEE THE TESTAMENTARY
DISPOSITIONS FOR THE VALID EXECUTION OF THE WILL?
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 SUCCESSION
NO. The law merely requires them to attest to the execution of the will,
provided however, that they are aware that they are signing the will.
Otherwise, it is not valid.
X EXECUTED A NOTARIAL WILL WITH A, B AND C AS THE
INSTRUMENTAL WITNESSES. X DID NOT ALLOW A, B AND C TO
READ THE WILL. IS THE WILL VALID?
YES. The law does not require that the instrumental witnesses should read the
will for its validity.
IN THE PRECEDING PROBLEM, SUPPOSE X DID NOT EVEN
ALLOW A, B AND C TO READ THE ATTESTATION CLAUSE. X
SIMPLY ASKED THEM TO SIGN. IS THE WILL VALID?
NO. The instrumental witnesses should read the attestation clause because it is
their act.
X SIGNED THE WILL ON JANUARY 1. THE NEXT DAY, THE
INSTRUMENTAL WITNESSES CAME TO SIGN THE WILL. IS THE
WILL VALID?
NO. There is no unity of act.
THIRD PERSON SIGNING IN FAVOR OF THE TESTATOR
The person signing must be:
1. Under the express direction of the testator
2. Under the testator’s presence.
NOTE: In this case, it refers not only to the physical presence of the testator,
but the testator must also be conscious and aware of what is happening.
IS IT NECESSARY THAT THE PERSON SIGNING IN FAVOR OF
THE TESTATOR MUST HAVE A TESTAMENTARY CAPACITY?
NO. The person’s act is merely an extension of the testator’s act. What is
material is the capacity of the testator, provided however, that the signing
must be under the express direction and presence of the testator.
NOTE: Even a 15 years old person may sign in the presence of the testator.
X EXECUTED A WILL. THE WILL WAS SUBSCRIBED BY
WRITING AT THE END THEREOF THE NAME OF X. BUT X’S
NAME WAS WRITTEN BY Y. IS THE WILL VALID?
YES. As long as, the name of X was written by Y in the presence of X and
under his express direction and is attested and subscribed by 3 or more
credible witnesses in the presence of the testator and of one another and such
fact was mentioned in the attestation clause.
SUPPOSE IN THE PRECEDING PROBLEM, Y OMITTED THE
NAME OF X AND INSTEAD PLACE HIS OWN NAME. IS THE WILL
VALID?
NO. This would no longer be the testator’s (X) act. The law requires that the
name of the testator must be written.
IF 1 OF THE 3 WITNESSES SIGNED THE WILL IN BEHALF OF
THE TESTATOR, IS THE WILL VALID?
NO. The will is not valid because there is a conflict between his duty to the
testator and his duty as an attesting witness. This rule applies to the notary
public who functions as an attesting witness or a third person signing in behalf
of the testator.
X AUTHORIZED HIS LAWYER ATTY. Y TO SIGN HIS WILL.
HOWEVER, WHEN ATTY. Y WAS SIGNING THE WILL, X WAS
SLEEPING BESIDE GIM. IS THE WILL VALID?
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LYSACLOLO
NO. The must be conscious that the lawyer was signing the will for him. In
this case, although the testator was present when his lawyer was signing the
will, he was not aware of it. The test of presence was not satisfied.
The testator need not need to be physically incapacitated to ask the third
person to sign the will for him, provided that, the fact of the signing by the
third person in his presence and under his express direction shall be stated in
the attestation clause (Garcia vs Lacuesta).
SUPPOSE THE TESTATOR WAS ALREADY SICK AND ASKED HIS
LAWYER TO SIGN HIS WILL IN A SEPARATE ROOM. IS THE
WILL VALID?
NO. The signing was not made in the presence of the testator.
IF THE TESTATOR, UPON THE RETURN OF HIS LAWYER WAS
ALREADY UNCONSCIOUS AND THE LAWYER SIGNED IN THE
SAME ROM WHERE THE TESTATOR WAS AND IN THE
PRESENCE OF THE INSTRUMENTAL WITNESSES. IS THE WILL
VALID?
NO. The testator is not aware. It is therefore not considered to be signed in the
presence of the testator.
NOTE: To satisfy the test of presence, the testator must be aware that another
person is signing the will.
IF THE TESTATOR DICTATED THE PROVISIONS OF THE WILL
TO THE LAWYER AND SINCE THE TESTATOR CAN NO LONGER
SIGN, THE LAWYER SUGGESTED THAT HE WILL SIGN IT FOR
THE TESTATOR. IS THE WILL VALID?
NO. The law requires that the third person should sign by the express
direction of the testator.
IN THE PRECEDING PROBLEM, WHAT IF THE TESTATOR
NODDED HIS HEAD. IS THE WILL VALID?
YES. Nodding of the head is considered to be an express direction.
NOTE: Express direction may be made by action or conduct. Such as by
nodding of the head.
THE LAW REQUIRES 3 WITNESSES IN THE EXECUTION OF THE
WILL. IS THE WILL VALID IF THERE ARE ONLY 2 WITNESSES?
NO. The law expressly requires 3 witnesses.
WHAT ABOUT IF THERE ARE MORE THAT 3 WITNESSES IN THE
EXECUTION OF THE WILL? IS THE WILL VALID?
YES. Art. 805 provides that, “ xxx and attested and subscribed by 3 or more
credible witnesses xxx”. The excess shall only be considered as a mere surplus
but it will not affect the validity of the will.
POINTERS
1. Lack of signatures in the left margin is fatal unless, there is a
duplicate copy of the original. (Icasiano vs Icasiano)
2. The ruling in Icasiano vs Icasiano should not be applied in all
cases, when the signature of the witnesses do not appear on the
margin of the will. It can be applied only if there is a duplicate
original copy of the will. In this case, there was no issue on the
validity of the will due to the presence of the copy.
3. The requirement regarding the location (left margin) of the
marginal signatures is not mandatory in character, provided that,
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 SUCCESSION
such signatures are present in every page of the will (except the
last page). So, the marginal signatures may be found on the right
margin and the will is still valid.
IS IT NECESSARY FOR THE VALIDITY OF AN ORDINARY/
NOTARIAL WILL THAT IT IS DATED?
NO. The notarial will is still valid despites the fact there is no date in the will.
The notarial will must be acknowledged. Here, the date of the
acknowledgment can supply the date of the execution of the will itself.
MUST A HOLOGRAPHIC WILL BE DATED?
YES. Unlike a notarial will, a holographic will is not acknowledged or
witnessed. So, if the capacity of the testator is questioned, there is no date in
which we can determine whether the testator was capacitated to execute the
will at the time.
EFFECT IF THE WILL IS NOT ACKNOWLEDGED?
It will not enjoy the presumption of regularity. In short it is void.
A will is not a public instrument that is why the law does not require a notary
public to keep a copy or to transmit a copy to the clerk of court.
NOTE: As a general rule, witnesses in the execution of a will should also
acknowledge the will before a notary public. This is because witnesses are
also principal participants in the execution of the will.
This is different from other ordinary contracts, which requires only the
contracting parties.
Attesting witnesses are different from acknowledging witnesses. Failure of
one witness to acknowledge the will before the notary public renders the will
void.
HOW DO YOU ACKNOWLEDGE BEFORE A NOTARY PUBLIC?
To acknowledge means to avow, to own as genuine the document presented.
SHOULD THE NOTARY PUBLIC BE PRESENT AT THE TIME OF
EXECUTION OF THE WILL?
NO. The law only requires that the will be acknowledged before him.
MAY THE NOTARY PUBLIC BE ONE OF THE SUBSCRIBING
WITNESSES?
NO.
GR: To allow the notary public to act as 1 of the 3 attesting witnesses would
have the effect of having only 2 attesting witnesses to the will.
ETR:
1. If there are more than 3 witnesses.
2. If the will is not acknowledged before him.
IS IT NECESSARY THAT ACKNOELWEDGEMENT OF THE WILL
BE MADE BY THE TESTATOR AND ALL OF THE WITNESSES AT
THE SAME TIME?
NO. The law does not require simultaneous acknowledgment, neither does the
law require that the acknowledgment be made by the testator and the
witnesses in the presence of one another, provided that all of the parties
acknowledge in from of the notary public, and provided further, that all the
parties has the testamentary capacity at the time of the acknowledgment.
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LYSACLOLO
MAY THE TESTATOR AND THE WITNESSES ACKNOWLEDGE
THE WILL IN SEPARATE OCCASIONS?
YES. The law does not require simultaneous acknowledgment neither does the
law require that the acknowledgment be made by the testator and the
witnesses in the presence of one another, provided that all of the parties
acknowledge in front of the notary public and provided further, that all the
parties has the testamentary capacity at the time of acknowledgment.
NOTE: The 2 immediately preceding problems are the same. The questions
were rephrased to as elicit either a negative or positive answer. But the
reasons are the same.
SUPPOSE THE TESTATOR DIED BEFORE THE WILL MAY BE
ACKNOWLEDGED. CAN THE WILL BE ALLOWED?
NO. The will lacks one of the formalities required by law – testamentary
capacity of the testator, since, he is already dead.
Article 807
If the testator be deaf, or a deaf-mute, he must personally read the will, if able
to do so; otherwise, he shall designate two persons to read it and
communicate to him, in some practicable manner, the contents thereof.
Article 808
If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.
CAN AN ILLITERATE PERSON MAKE A NOTARIAL WILL?
YES.
IN THE PRECEDING, WOULD THERE BE AN ADDITIONAL
REQUIREMENT?
YES. The same with a blind testator, double reading requirement.
IF THE TESTATOR IS ILITERATE OR BLIND, IS IT PERMISSIBLE
THAT THE LANGUAGE OF THE WILL IS NOT KNOWN TO HIM
BUT MERELY INTERPRETED TO HIM?
NO.
EVEN IF THE INTERPRETER IS THE BEST INTERPRETER THAT
THE WORLD CAN OFFER?
YES. No matter how good the interpreter is, somehow, something may be lost
in the process of translation.
HOW MANY TIMES HSOULD A WILL READ TO A BLIND
PERSON?
GR: Twice
ETR: If he understands the contents thereof on the first reading (Alvarado vs
Gaviola).
NOTE: This aforementioned rule applies if a person is illiterate because under
the law, he is in the same condition as a blind person. He does not know what
the symbol on the will stands for.
IS IT NECESSARY THAT THE READING OF THE WILL TO THE
BLIND BE SIMULTANEOUS?
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 SUCCESSION

NO. This will just confuse the blind person. The communication of the
contents must be at separate moments as to prevent fraud. This is the purpose
of the communication.
X, A BLIND PERSON, HAD THE WILL READ BY HIS 3 WITNESSES
AT SEPARATE MOMENTS. THE NEXT DAY, HE WENT TO THE
NOTARY PUBLIC, STATING THAT THERE IS NO NEED FOR THE
LATTER TO READ THE WILL FOR HIM. IS THE WAIVER OF THIS
RULE VALID?
NO. The testator cannot waive the rule provided by law because the right to
make a will is merely a statutory right regulated by law. It is a privilege to be
complied with.
NOTE: Substantial Compliance Rule may apply, but it shall apply only if the
circumstances fall under the case of Alvarado vs Gaviola:
1. The will must be read by the person who drafted the will..
2. The will must be read in the presence of the witnesses, while the
notary public is reading it simultaneously in silence.
In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial compliance with all the
requirements of Article 805.
DOCTRINE OF LIBERAL INTERPRETATION – it provides that, in the
absence of bad faith, forgery or fraud or undue influence, defects and
imperfections in the form of the attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the requirements of
Art. 805.
IS THE DOCTRINE OF LIBERAL INTERPRETATION APPLICABLE
TO HOLOGRAPHIC WILLS?
NO. The doctrine does not apply because of the nature of the will, which is
simple and easy to forge.

SUPPOSE THAT THE TESTATOR IS BLIND AND THE WITNESSES

DID NOT READ THE WILL TO HIM BECAUSE THE CONTENTS
AND THE DUE EXECUTION OF THE WILL WAS
ACKNOWLEDGED BY THE TESTATOR AND HE SAID NOT TO
BOTHER WITH THE READING ANYMORE?

NO. Testamentary capacity is a statutory right. The testator has no right to

waive the requirement thereto.

ALVARADO v. GAVIOLA JR., 226 SCRA 347

FACTS: That Art. 808 was not followed strictly is beyond cavil. Instead of
the notary public and an instrumental witness, it was the lawyer who
drafted the 8 – paged will and the 5 – paged codicil, who read the same
aloud to the testator and read them only once, not twice as the law
requires.

HELD: The will is valid. Substantial compliance is acceptable where the

purpose of the law has been satisfied. The reason being that the
solemnities surrounding execution of the wills are intended to protect the
testator from all kinds of fraud and trickery. They are never intended to be
so rigid and inflexible as to destroy the testamentary privilege.

In this case, private respondent read the testator’s will and the codicil
aloud, in the presence of the testator, his 3 instrumental witnesses and the
notary public. Prior and subsequent thereto, the testator affirmed upon
being asked whether the contents read, corresponded with his instruction.
The is no evidence and the petitioner does not contend that the will and the
codicil were not sufficiently made known and communicated to the
testator.

Moreover, the notary public and the 3 instrumental witnesses, likewise,

read the will and the codicil, albeit silently. With 4 persons following the
reading word for word with their own copies, it can be safely concluded
that the testator was reasonably assured that what read to him were the
terms actually appearing on the typewritten documents.

NOTE: Dean Navarro emphasized that the application of the aforesaid ruling
must be limited to cases of similar facts.

If the attestation clause does not state the fact that the will was communicated
to the blind or deaf-mute, the will is still valid because it is not one of the
requisites required by law to be stated in the clause. This fact may be
determined by extrinsic evidence.

Article 809

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 SUCCESSION

IF YOU WERE TO MAKE A WILL, WHAT WOULD YOU MAKE, A

HOLOGRAPGIC WILL OR A NOTARIAL WILL?

ARTICLE 810-814 Personally, I will make a holographic will as it is:

HOLOGRAPHIC WILLS 1. Easier to make
2. Easier to revise
Article 810 3. Easier to keep a secret
A person may execute a holographic will which must be entirely written, 4. No witnesses are required
dated, and signed by the hand of the testator himself. It is subject to no other 5. No marginal signatures on the pages are required
form, and may be made in or out of the Philippines, and need not be 6. No acknowledgement is required
witnessed.
NOTE: You can answer a notarial will and state your own reason. You may
cite the disadvantages of a holographic will.
Article 811
In the probate of a holographic will, it shall be necessary that at least one MAY AN ILLITERATE PERSON EXECUTE A HOLOGRAPHIC
witness who knows the handwriting and signature of the testator explicitly WILL?
declare that the will and the signature are in the handwriting of the testator.
NO. It is required that a holographic will must be entirely written by hand of
If the will is contested, at least three of such witnesses shall be required. the testator himself. An illiterate person is presumed not to be able to read and
write.
In the absence of any competent witness referred to in the preceding
paragraph, and if the court deem it necessary, expert testimony may be WHAT IF AN ILLITERATE PERSON COPIES WHAT HIS FRIEND
resorted to. WROTE, WHOULD THE WILL BE VALID?

NO. It is not the product of his independent thinking.

Article 812
In holographic wills, the dispositions of the testator written below his
signature must be dated and signed by him in order to make them valid as
testamentary dispositions.
Article 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.
WHAT IF THE TESTATOR USES HIS FOOT TO WRITE? IS THE
WILL VALID?
YES. As long as the testator has found an effective substitute for his hands, so
that he can still write, there is no reason why he cannot execute a holographic
will.
WHAT ABOUT A BLIND PERSON, CAN HE EXECUTE A
HOLOGRAPHIC WILL?
YES. A blind testator can execute a holographic will, if he can still write
despite his blindness (Braile System).

Article 814 BRAILE SYSTEM – is a system of touch reading and writing for blind
In case of any insertion, cancellation, erasure or alteration in a holographic persons in which raised dots represent the letters of the alphabet.
will, the testator must authenticate the same by his full signature.
SUPPOSE THE HOLOGRAPHIC WILL WAS SIGNED BY THE
FORMALITIES OF A HOLOGRAPHIC WILL TESTATOR WITH HIS FIRST NAME ONLY, IS THE WILL VALID?
1. The will must be entirely written by the hand of the testator
himself. YES.
2. The will must be entirely dated by the hand of the testator himself.
3. The will must be entirely signed by the hand of the testator CAN THE TESTATOR SIGN WITH HIS NICNNAME?
himself.
4. The will must be executed in a language or dialect known to the YES.
testator.
NOTE: The signature required for holographic will is not the simple
ADVANTAGES OF A HOLOGRAPHIC WILL handwriting of name and surname in a habitual manner. Generally, the
1. Easier to make signature includes a person’s name and surname. But, it is not necessary that
2. Easier to revise the full name be written, if the habitual signature does not include the full first
3. Easier to keep a secret name or surname.
4. No witnesses are required
5. No marginal signatures on the pages are required SUPPOSE IT IS NOT HIS USUAL SIGNATURE?
6. No acknowledgement is required
YES. The will is still valid.
DISADVANTAGES OF A HOLOGRAPHIC WILL
1. Easier to forge by expert falsifiers SUPPOSE IT IS NOT HIS FULL SIGNATURE?
2. Easier to misunderstand, since, the testator may have been faulty in
expressing his last wishes YES. The will is still valid.
3. No guaranty that there was no fraud, force, intimidation, undue
influence
4. No guarantee regarding the testator’s soundness of mind CAN YOU MAKE YOUR HOLOGRAPHIC WILL IN THE FORM OF
A LETTER?

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LYSACLOLO NAVARRO
 SUCCESSION
YES. As long as it is entirely written, dated and signed by the hand of the
testator himself.
CAN A BLIND PERSON MAKE A HOLOGRAPHIC WILL?
YES. If he knows how to write.
X EXECUTED A HOLOGRAPHIC WILL. WHILE WRITING THE
WILL WITH HIS OWN HAND, HE GOT TIRED, THAT HE DECIDED
TO TYPE THE OTHER PART OF THE WILL. IS THE WILL VALID?
NO. The law expressly provides that it must be entirely written by the hand of
the testator himself.
NOTE: The word ENTIRELY modifies not only the word WRITTEN but also
the words DATED and SIGNED. The purpose of the law is obvious. In
addition to insuring and safeguarding the authenticity of the holographic will,
it will also serve to deter or prevent any possible insertion or interpolation by
others or any possible forgery.
WHERE SHOULD THE TESTATOR SIGN THE HOLOGRAPHIC
WILL?
The law does not specifically require the place, where the signature be placed.
However, it is logical to place it at the end thereof.
TOLENTINO: We believe that under the law the signature must be at the end
of the will. This can be inferred from Art. 812 by the reference to dispositions
written below his signature. This phrase implies that the signature is at the end
of the will and any dispositions below it must further be signed and dated.
CAN THE TESTATOR SIGN WITH HIS THUMB MARK?
YES. In the law of succession, signature denotes a sign, token or emblem and
what that shall be depends upon the custom of the time and place, and on the
habit or whim of the individual.
The material thing is that, the testator made the mark to authenticate the
writing as his will and whatever he puts on it for that purpose, will suffice.
SHOULD A HOLOGRAPHIC WILL BE WITNESSED?
NO. The presence of witnesses, however, will not render the will invalid.
Witnesses shall be merely considered as surplus.
RULE ON THE DATE OF A HOLOGRAPHIC WILL
GR: The month, day and year must be stated, to avoid conflict between other
holographic wills.
ETR: The Supreme Court did not follow this rule in Roxas vs De Jesus. There
was no exact date of the day in the will.
The ruling in Roxas vs De Jesus has been criticized because it gives rise to
problems if there are 2 wills. If it happens:
1. It cannot be determined which of the 2 wills should govern;
2. There is no means to determine if the testator has the testamentary
capacity at the time of the execution of the will.
WHERE MUST THE DATE BE PLACED?
The law does not provide for the place where the date must be placed. Hence,
the date may be placed at the end or at the beginning of the will, or in the body
thereof, although its normal location should be after his signature.
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LYSACLOLO
IF A HOLOGRAPHIC WILL HAS NO DATE, IS IT VALID?
NO. The law requires that it must be dated.
IF A NOTARIAL WILL HAS NO DATE, IS IT VALID?
YES.
WHY IS A DATE NECESSARY IN A HOLOGRAPHIC WILL, BUT
NOT IN A NOTARIAL WILL?
In a notarial will, it would still be dated in its notarial acknowledgment while
in a holographic will, the date is necessary because the testator may make
more than one will and it might happen that the testator was incapacitated
during the execution of the first will and capacitated during the execution of
the second will.
MUST THE DATE BE IN MONTH, DAY AND YEAR?
Generally, YES.
ROXAS v. DE JESUS, 134 SCRA 245
RULING: Generally, the date must be in month, day and year. But in this
case, the SC allowed the date (February/61).
NAVARRO: Conflicts may arise if such date is allowed because what if 2
wills are made and dated (February/16), which should prevail.
SUPPOSE THAT THE TESTATOR USED THE OAGE OF HIS DIARY/
PLANNER, WHICH ALREADY HAS A DATE? IS THE WILL
VALID?
NO. The law provides that it must be entirely dated by the hand of the testator
himself.
NOTE: The doctrine of liberal interpretation and substantial compliance as
applied to ordinary or notarial wills cannot be applied to holographic wills.
SUPPOSE THAT THE TESTATOR WROTE, “XMAS ‘99”. IS THE
WILL VALID?
YES. There can be no other date for a Christmas day.
SUPPOSE THE TESTATOR WROTE, “EASTER SUNDAY ‘98”. IS
THE WILL VALID?
YES. Although Easter Sunday is a changeable date, the exact date can still be
determined.
SUPPOSE THE TESTATOR WROTE, “THE DAY WHEN MY
BOYFRIEND AND I BROKE UP”. IS THE WILL VALID?
NO. Here, the exact date cannot be determined. Confusion will follow as to
which boyfriend, and in case of multiple break-ups, in what instance.
SUPPOSE THE WILL IS DATED AS FOLLOWS: RIZAL’S
BIRTHDAY, ’90. IS THE WILL VALID?
YES. So long as the designation of the date leaves no room for doubt as to the
exact date. In this case, the date is December 30, 1990.
CAN AN ILLITERATE PERSON EXECUTE A HOLOGRAPHIC
WILL?
NAVARRO
 SUCCESSION
NO. An illiterate is no read, no write person. This rule applies even if he
orders another person to execute the will or write the will while copying.
TOLENTINO:
1. The law does not require that the will be completely executed on a
single day, at one time, and in the same ink, because unity of act is
not a requisite for holographic wills.
2. The day and month may be indicated by implications, as long as
the designation leaves no room for doubt as to the exact date.
IF THE PROBATE OF A HOLOGRAPHIC WILL IS CONTESTED, IS
IT NECESSARY TO HAVE 3 WITNESSES? OR IS THE 3 WITNESS
RULE UNDER ART. 811 MANDATORY?
YES. In Codoy vs Calugay, the SC says it is mandatory.
NAVARRO: : By reading Art. 811, the 3 witness rule (if probate of
holographic will is contested) should merely be permissive. Dean Navarro
subscribes to Azoala vs Singson, where the court ruled that the said
requirement is merely permissive. But for purposes of our present study, we
adhere to Codoy vs Calugay, since this is the most recent case.
IF A HOLOGRAPHIC WILL IS LOST OR DESTROYED, CAN IT BE
PROBATED?
NO.
GAN V. YAP, 104 PHIL 509
FACTS: The will was not presented for probate, instead, the petitioner
tried to establish its due execution and contents by the testimony of
witnesses, who declared that they had seen the will and had read its
contents.
RULING: In the matter of holographic wills, no guarantees of truth and
veracity are demanded, since, they need no witnesses; provided however,
that they are “entirely written, dated and signed by the hand of the testator
himself.”
The law regards the document itself as a material proof of authenticity and
as its own safeguard, since, it could at any time, be demonstrated to be or
not to be, in the hand of the testator himself.
SUPPOSE THAT A PHOTOCOPY WAS PRESENTED, SHOULD THE
WILL BE ALLOWED?
YES. The will may be allowed for probate because there is a document from
which the hand writing of the testator may ascertained from.
IN THE PROBATE OF A HOLOGRAPHIC WILL, MAY A
PHOTOCOPY OR A MIMEOGRAPH OR A CARBON COPY
SUFFICE FOR THE ORIGINAL COPY THAT WAS LOST OR
DESTROYED?
YES. The requirements under Art. 811 may still be complied with.
The authenticity of the hand writing and the signature of the testator may still
be examined from the photocopy or mimeographed or carbon copy. The xerox
copy, etc., may still be shown as a material proof of the authenticity of the
testator’s hand writing and signature.
NOTE: If the testator asks for the probate of his will, his testimony is more
than sufficient.
As to the SIGNATURES the provisions for NOTARIAL wills, expressly
provide that the signature must be at end of the dispositions. In
HOLOGRAPHIC wills, there is no categorical statement. But it can be
deduced from Art. 812, that the dispositions written below the signature of the
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LYSACLOLO
testator will not be considered a valid testamentary disposition unless it is
dated and signed by him.
As to the DATE. Date is not essential for the validity of NOTARIAL wills,
because the will must acknowledge. In this case, the date of the
acknowledgment will supply the date of the will. Furthermore, there are all of
the witnesses to prove the date of the execution. This is different from
HOLOGRAPHIC wills, where no acknowledgment and witnesses are
required. Hence, a holographic will must be dated.
KALAW v. RELOVA, 132 SCRA 241
FACTS: Gregorio Kalaw, claiming to be the sole heir of sister Natividad,
filed a petition for probate of the latter's holographic will in 1968. The will
contained 2 alterations: a) Rosa's name, designated as the sole heir was
crossed out and instead "Rosario" was written above it. Such was not
initialed, b) Rosa's name was crossed out as sole executrix and Gregorio's
name was written above it. This alteration was initialed by the testator.
Rosa contended that the will as first written should be given effect so that
she would be the sole heir. The lower court denied the probate due to the
unauthenticated alterations and additions.
RULING: The will is voided or revoked since nothing remains in the will
which could remain valid as there was only one disposition in it. Such was
altered by the substitution of the original heir with another. To rule that the
first will should be given effect is to disregard the testatrix' change of
mind. However, this change of mind cannot be given effect either as she
failed to authenticate it in accordance with Art. 814, or by affixing her full
signature.
POINTERS
1. DATED BUT NOT SIGNED – several subsequent disposition
under the signature of the testator in a holographic will which are
not signed but dated are void. The fact that the last disposition was
signed and dated does not cure the defect because the presence of
the date renders the will void on separate dates and not in its
entirety.
Each disposition precludes the other because it is the fact that they
were not executed simultaneously. In this case, the last disposition
is valid.
2. SIGNED BUT NOT DATED – art. 813 applies only for
dispositions that are signed but not dated because the presumption
is that they were executed entirely and not on separate dates.
SUPPOSE AN ADDITIONAL DISPOSITION, IN A HOLOGRAPHIC
WILL, DOES NOT CONTAIN A DATE. IS IT A VALID
DISPOSITION?
NO. The disposition written below the testator’s signature in the will is
considered as independent of the will itself. Hence, it must be signed and
dated by the testator. If one is not dated, even if signed, that particular
disposition is void without affecting the validity of other dispositions or the
will itself. And as an unsigned and undated postscript to a holographic will, it
is invalid as a testamentary disposition (Art. 812).
SUPPOSE THAT AFTER THE LAST DISPOSITION MADE IN THE
WILL, ANOTHER DISPOSITION WAS WRITTEN. WHAT MUST BE
DONE?
It must be dated and signed by the testator in order that it will become a valid
testamentary disposition.
IN A HOLOGRAPHIC WILL, ONLY THE FIRST DISPOSITION WAS
DATED, BUT THE SECOND DISPOSITION WAS BOTH DATED AND
SIGNED BY THE TESTATOR. WHAT IS THE EFFECT?
NAVARRO
 SUCCESSION

AFTER X HAS EXECUTED THE WILL, Y APPROACHED X AND

The first disposition is void.
NOTE: Art. 813 does not apply because Art. 813 refers to preceding
dispositions which are signed but not dated.
SUPPOSE A PRIOR DISPOSITION WAS UNSIGNED AND
UNDATED, AND THE NEXT DISPOSITION WAS SIGNED AND
DATED BY THE TESTATOR. WHAT IS THE EFFECT?
ASKED HIM IF HE CAN MAKE SOME INSERTIONS ON THE WILL.
Y SAID, “OK, BE MY GUEST”. WHAT IS THE EFFECT?
The will remains valid, but the insertions are void. Although X has consented
to the insertion.
IN THE PRECEDING, WHAT IF X HAS AFFIXED HIS SIGNATURE
TO THE INSERTION? WHAT IS THE EFFECT?

The first disposition is validated by the subsequent disposition, which was The insertions become part of the will and thereon, the entire will becomes
dated and signed. Here, there arises a presumption that all the dispositions void. Because of the failure to comply with the requirements that it must be
were made simultaneously. entirely written by the hand of the testators.

NOTE: With respect to the preceding problem, Dean Navarro is of the opinion WHILE X WAS MIDWAY WRITING HIS WILL, Y ARRIVED.
that “the first disposition is validated by the second disposition. The reason is SEEING X GETTING TIRED OF WRITING THE WILL, Y
that, it can be inferred that the testator intended the two (2) dispositions to be VOLUNTEERED TO WRITE IT, WITH DICTATIONS FROM X.
valid, the last being the final disposition”. WHAT IS THE EFFECT?

RULE IN INSERTIONS AND CANCELLATIONS IN A The whole will is void because it is not entirely written by the hand of the
HOLOGRAPHIC WILL testator.
1. If made AFTER THE EXECUTION OF THE WILL, BUT
WTIHOUT THE CONSENT OF THE TESTATOR, such insertion
are not considered as written because the validity of the will cannot SUPPOSE THE WILL WAS ALTERED WITHOUT THE FULL
be defeated by the malice or caprice of a third person; SIGNATURE. IS THE WHOLE WILL VOID?

2. If made AFTER THE EXECUTION OF THE WILL WITH THE NO. Only the alteration is void. However, if what was altered was the dated or
CONSENT OF THE TESTATOR, the will remains valid but the the signature, the alteration without the full signature makes the whole will
insertions are void. void.

3. If made AFTER THE EXECUTION OF THE WILL AND ILLUSTRATION I (HOLOGRAPHIC WILL)
VALIDATED BY THE TESTATORBY HIS SIGNATURE A.
THEREON, it becomes part of the will, and therefore, the entire January 3, 1995
will becomes void, because of the failure to comply with the I give everything to Maria Jose.
requirement that it must be entirely written by the hand of the
testator. Sgd. Manuel Jose

4. If made CONTEMPORANEOUSLY/ SIMULTANEOUSLY with B.

the execution of the will, then the will is void because it is not
entirely written by the hand of the testator. I give everything to Pedro Santos.

January 10, 1996

C.
I give my house and lot in QC to Juan Santos
CAN THE TESTATOR AUTHENTICATE AN ALTERATION WITH
HIS NICKNAME? January 10, 1998
Sgd. Manuel Jose
NO. Full signature of the testator is required. However, full signature does not
mean the testator’s full name (first and last name). IN THE ILLUSTRATED HOLOGRAPHIC WILL, IS THE
DISPOSITION UNDER LETTER A VALID?
NAVARRO: To certain extent, the aforementioned creates absurdity,
considering the fact that the authentication execution of the will is certainly YES. It is entirely written, dated and signed by the hand of the testator
more important than the authentication of a mere insertion, cancellation, himself.
erasure or alteration.
WHAT ABOUT UNDER LETTER B?
WHY IS THERE A NEED FOR AUTHENTICATION?
NO. The disposition is invalid. It was not signed by the testator.
Because with respect to insertions on holographic will, fraud can easily be
committed. NOTE: Several subsequent dispositions under the signature of the testator in a
holographic will, which are not signed but dated are void. The fact that the last
X EXECUTED A HOLOGRAPHIC WILL. THEREAFTER, Y disposition was signed and dated does not cure the defect because of the
SURREPTITIOUSLY MADE AN INSERTION THEREON. WHAT IS presence of the date renders the will void on separate dated and not in its
THE EFFECT? entirety.
The insertion made by Y will not considered written. The will remains valid. WHAT ABOUT LETTER C?

YES. It is valid.
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 SUCCESSION

ILLUSTRATION II (HOLOGRAPHIC WILL)

January 3, 1995
I give everything to Maria.

Sgd. Manuel Jose

IS THE DISPOSITION VALID?

YES.

ILLUSTRATION III (HOLOGRAPHIC WILL)

January 3, 1995
Clara
I give everything to Maria. (Thereafter, the name Maria was altered and ARTICLE 815-819
the name Clara was written, but the testator did not affix his full LAWS WHICH GOVERN THE FORMAL VALIDITY OF WILLS
signature.)
Article 815
Sgd. Manuel Jose 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
IN THE AFOREMENTIONED PROBLEM, WHO WILL INHERIT? will may be probated in the Philippines.

NONE. Neither Clara nor Maria will inherit.

Clara will not inherit because the alteration was not authenticated by Manuel
Jose with his full signature.
Maria will not inherit because it is clear from the alteration that the testator
intended to replace Maria as an heir.
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.

ILLUSTRATION IV (HOLOGRAPHIC WILL) Article 817

A. 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
I will give my car to Pedro Santos. 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
Sgd. Manuel Jose the Philippines.

B.
Article 818
I gave my house and lot to Pedro Santos Two or more persons cannot make a will jointly, or in the same instrument,
January 20, 1998 either for their reciprocal benefit or for the benefit of a third person.
Sgd. Manuel Jose

ARE THE AFOREMENTIONED DISPOSITIONS VALID? Article 819

Wills, prohibited by the preceding article, executed by Filipinos in a foreign
YES. Under Art. 813 when a number of dispositions appearing in a country shall not be valid in the Philippines, even though authorized by the
holographic will are signed without being dated and the last disposition has a laws of the country where they may have been executed.
signature and a date, such date validates the dispositions preceding it,
whatever be the time of prior dispositions. THE ASPECT OF A WILL GOVERNED BY THE NATIONAL LAW
OF THE DECEDENT ARE THE FOLLOWING:
1. Intrinsic validity
2. Capacity to succeed
3. Order of succession
4. Amount of successional rights

NOTE: As a general rule, the formal validity of a will shall be governed by

the law of the country in which it is executed. This rule is expressed in the
first paragraph of Art. 17 which provides that “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”. This rule however, is reiterated or
supplemented by the provisions of Art. 815 to 819 as discussed hereunder.

RULES GOVERNING THE FORMAL VALIDITY OF A WILL

1. If the testator is a Filipino and the will is executed in the
Philippines, its formal validity is governed by the Civil Code of the
Philippines.

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LYSACLOLO NAVARRO
 SUCCESSION

2. If the testator is a Filipino and the will is executed in a foreign NOTE: Even if only a single sheet was used, there is no joint will if the 2 wills
country then its formal validity is governed by either: are identifiable from each other.

a. The law of the place where the will was made.

b. The Civil Code of the Philippines ILLUSTRATION
3. If the testator is foreigner and the will is executed in the Last Will and Testament of Mr. X
Philippines, then its formal validity is governed by either:
a. The Civil Code of the Philippines Provisions and dispositions, etc.
b. The law of his country ………………………………………………………………………………
.……………………………………………………………………………..
4. If the testator is a foreigner and the will is executed in a foreign ….…………………………………………………………………………..
country, then its formal validity is governed by either:
Sgd. Mr. X (Husband)
a. The law of the place where the will was made
b. The law of his own country Last Will and Testament of Mrs. Y
c. The law of the of the country where he resides
d. The Civil Code of the Philippines Provisions and dispositions, etc.
………………………………………………………………………………
NOTE: With respect to the aforementioned Rule no. 2, it must be observed .……………………………………………………………………………..
that Art. 815 does not state that a will made by a Filipino in a foreign country ….…………………………………………………………………………..
may be executed in accordance with the formalities prescribe by the Civil
Code. In spite of the omission, however, it is submitted that such a will may Sgd. Mr. Y (Wife)
still be admitted to probate in the Philippines. Not to grant this concession to
Filipino citizens would be illogical and unfair considering the fact that it is IS THE ABOVE ILLUSTRATED WILL VALID?
even granted to foreigners.
YES. The wills of the husband and the wife are easily identifiable from each
X, A FILIPINO CITIZEN, EXECUTED A WILL WHILE HE WAS ON other. They made separate wills and not a joint one.
A VACATION IN JAPAN. WHAT LAW WILL GOVERN THE
FORMALITIES OF THE WILL? NOTE: The illustration above shows 2 wills which are both complete in
themselves.
Either the place of the execution (Japan) or Philippine laws (Art. 815).
There are really 2 separate instruments, which are independent of each other.
X IS A JAPANESE CITIZEN BUT HE RESIDES IN ENGLAND. HE
EXECUTED A WILL IN INDONESIA. MAY SUCH WILL BE Reciprocal wills between husband and wife are valid as long as they are not
PROBATED IN THE PHILIPPINES AND HIS ESTATE LOCATED IN made jointly. This is true even if the same witnesses are used.
THE PHILIPPINES BE DISTRIBUTED IN ACCORDANCE WITH
THE PROVISIONS OF THE WILL? IN THE PRECEDING, WHAT ABOUT IF THE WILL OF THE WIFE
IS WRITTEN AT THE BACK PAGE, WHILE THAT OF THE
YES. It can be probated and his estate may be distributed in accordance with HUSBAND IS ON THE FRONT PAGE. IS IT VALID?
the provisions of the will, provided, that the said will was executed in
accordance with the formalities prescribe by any of the following laws: YES. There are 2 separate wills.

1. The law of the place where X resides (England) REASON WHY JOINT WILL ARE PROHIBITED
2. The law of his own country (Japan) 1. To allow as much as possible, secrecy. A will being a purely
3. The Philippine laws (Civil Code) personal act.
4. The law of the place where the will was made (Indonesia) 2. To prevent undue influence by the more aggressive testator on the
other.
NOTE: The national law of the decease shall govern the intrinsic validity of 3. In case of death of the testators at different times, probate would be
wills. harder.
4. To protect the right of the testator to revoke his will at any time.
Under Art. 819, whether or not the Filipino testator is in the Philippines, he 5. In case of husband and wife, one may be tempted to hasten the life
cannot execute a joint will even if authorized by the country of execution of the other.
because under Art. 17 of the Civil Code, “prohibited acts of the country of
nationality are not waived by mere agreement, convention or laws of a foreign NOTE: Reciprocal wills between husband and wife, as long as not made
country”. jointly, are valid (Araneta vs Rodriguez). This is true even if the same
witnesses are used.
This rule applies if the testator is also an alien, by reason of public policy.
Except, if such alien is abroad. H AND W ARE ARGENTINIAN CITIZENS. JOINT WILLS ARE
ALLOWED AND VALID IN THEIR COUNTRY. THEY EXECUTED A
JOINT WILL – a single testamentary instrument which contains the wills of WILL IN ARGENTINA. IS THE WILL VALID HERE IN THE
2 or more persons jointly executed by them, either for their reciprocal benefit PHILIPPINES?
or for the benefit of a third person.
YES. The prohibition on joint wills does not apply to foreigners.
NATURE OF A JOINT WILL
IN THE PRECEDING, WHAT IF THEY EXECUTED THE WILL
It is a single will with 2 testators. HERE IN THE PHILIPPINES? SHOULD THE WILL BE ALLOWED
PROBATE IN THE PHILIPPINES?

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 SUCCESSION
TWO VIEWS:
1. It should be allowed because prohibition on joint wills does not
apply to foreigners.
2. The will should not be allowed by reason of public policy.
NOTE: By public policy, it means, if joint wills are prohibited in the
Philippines, then any joint will executed here must not be allowed probate
even if it is executed by foreigners.
Under Art. 819, joint wills 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. This rule is an exception to the rule
stated in Art. 815 which provides “when a Filipino is in a foreign country, he
is authorized to make a will in a forms established by the law of the country in
which he may be. Such will, may be probated in the Philippines. The rule
under Art. 819 is in conformity with provisions of the third paragraph of Art.
17 which states: “Prohibitive laws concerning persons, their acts or property
and those which have for their object public order, public policy and good
custom shall not be rendered ineffective by laws or judgments promulgated or
by the determinations or conventions agreed upon in foreign country”.
H IS MARRIED TO W. H IS FILIPINO WHILE W IS A FOREIGNER.
SUPPOSE THAT WHILE W’S COUNTRY WHICH PERMITS JOINT
WILLS, THE COUPLE EXECUTED A JOINT WILL. WHAT IS THE
STATUS OF THE WILL?
The will as it pertains to H is void but valid as it pertains to W.
PROVISIONS OF THE WILL WHICH ARE GOVERNED BY THE
NATIONAL LAW OF THE TESTATOR
1. Order of succession
2. Amount of successional rights
3. Capacity to succeed
4. Intrinsic validity
NOTE: The intrinsic validity of a will is governed by the national law of the
person whose succession is under consideration. This is the precept or
principle which is enshrined in the second part of Art. 16. According to this
provision: “intestate and testamentary succession, both with respect to the
order of succession and amount of successional rights and to the intrinsic
validity of the testamentary provisions shall be regulated by the national law
of the person whose succession is under consideration whatever may be the
nature of the property and regardless of the country wherein said property may
be found.
Art. 1039: Capacity to succeed is governed by the law of the nation of the
decedent.
MICIANO v. BRIMO, 50 PHIL 867
FACTS: The deceased was a Turkish subject, but disposed that his
property should be distributed according to Philippine laws. He named
legatees, including oppositors Brimo, on condition that they should respect
the testator’s will, as to the manner that his property will be distributed.
RULING: If this condition as it is expressed where legal and valid, any
legatee who fails to comply with it, as herein oppositor has done, who by
his attitude in this proceeding has not respected the will of the testator, as
expressed, is prevented from receiving his legacy. The fact however is
that, the said condition is void, being contrary to law because it ignores the
testator’s national law.
ARTICLE 820-824
WITNESSES TO WILLS
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LYSACLOLO
Article 820
Any person of sound mind and of the age of eighteen years or more, and not
blind, deaf or dumb, and able to read and write, may be a witness to the
execution of a will mentioned in Article 805 of this Code.
Article 821
The following are disqualified from being witnesses to a will: (1) Any person
not domiciled in the Philippines; (2) Those who have been convicted of
falsification of a document, perjury or false testimony.
Article 822
If the witnesses attesting the execution of a will are competent at the time of
attesting, their becoming subsequently incompetent shall not prevent the
allowance of the will.
Article 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.
Article 824
A mere charge on the estate of the testator for the payment of debts due at the
time of the testator's death does not prevent his creditors from being
competent witnesses to his will.
QUALIFICATIONS OF WITNESSES
1. Must be of sound mind
2. Must be 18 years of age or more
3. Must not be blind, deaf or dumb
4. Must be able to read and write
NOTE: The first 2 qualifications are also necessary for the making of a will.
In the case of instrumental witnesses, the law adds 2 additional qualifications.
The reason for this is evident: during the probate of the will, the testimony of
the witnesses is required. Certainly, it will be quite difficult for an illiterate
witness to give an intelligent testimony. The same thing can be said of a deaf-
mute, or a person who is either blind, deaf or dumb.
DUMB PERSON – refers to a mute person, one who cannot speak.
DISQUALIFICATIONS OF WITNESSES
1. Any person not domiciled in the Philippines
2. Those who have been convicted of falsification of a document,
perjury or false testimony
3. Any person who is not of sound mind
4. Any person less than 18 years of age
5. Any person who is blind, deaf or dumb
6. Any person who cannot read and write
IS A PERSON QUALIFIED TO MAKE A WILL, ALSO QUALIFIED
TO WITNESS TO THE WILL OF ANOTHER?
NO. A person who is qualified to make a will is not necessarily qualified to be
a witness to the will of another.
NAVARRO
 SUCCESSION
I.E. A blind person may be qualified to make a will, if he knows how to write,
but he cannot be a witness to a will.
NOTE: The law does not require a testator to be intelligent.
Witnessed must be domiciled in the Philippines, in order to increase the
probability of them to be present during the probate of the will.
Capacity of the witnesses must exist at the time of the execution of the will.
Any supervening incapacity or capacity does not cure any defect or invalidate
the will.
IS IT NECESSARY THAT THE WITNESSES MUST KNOW THE
CONTENTS OF THE WILL?
NO. The law does not require it. All that the law requires is that, they must
attest and subscribe the will in the presence of the testator and of one another.
To attest and subscribe do not mean that they must read the will or
comprehend the contents thereof. Hence, even if the will is written in a dialect
or language unknown to them, the requirements of the law are still complied
with.
REASONS WHY A PERSON NOT DOMICILED IN THE
PHILIPPINES AND A CONVICT ARE DISQUALIFIED AS
WITNESSES OF THE WILL
A person not domiciled in the Philippines will practically be useless during
the probate proceeding. While a person convicted of falsification of a
document, perjury and false testimony is unworthy of credence. The latter are
not considered as credible witnesses.
IF A FILIPINO IN THE US WANTS TO EXECUTE A NOTARIAL
WILL IN ACCORDANCE WITH THE PHILIPPINE LAWS, MUST
HIS WITNESSES BE DOMICILED IN THE PHILIPPINES?
PARAS: NO. After all, the will is to be executed in the US.
NAVARRO: NO. Witnesses must be domiciled in the Philippines because the
law does not provide for an exception. Besides, Art. 810 provides for a
holographic will, which can be executed without witnesses. Therefore, if a
Filipino is abroad, why not chose to execute a holographic will, so that, he
will not be burdened with the requirement of witnesses?
WHY DOES THE LAW REQUIRE THAT THE WITNESSES BE
DOMICILED IN THE PHILIPPINES?
1. The assurance that the witness will be available at the will is
presented for probate.
2. The likeness of personal acquaintance with the testator. Hence,
there is a greater credibility as a witness.
SUPPOSE THAT X EXECUTED A WILL WITH A, B AND C AS HIS
WITNESSES. ALL THE 3 POSSESSED ALL THE QUALIFICATIONS
AND NONE OF THE DISQUALIFICATIONS. 2 YEARS AFTER THE
EXECUTION OF THE WILL, A, B AND C MIGRATED TO CANADA.
CAN THE WILL BE ALLOWED?
YES. The competency of the witness to a will is to be determined as of the
time of the execution of the instrument and not at the time when the will is
presented for probate.
SUPPOSE THAT A, B AND C ARE ALL CHINESE CITIZENS. CAN
THE WULL BE ALLOWED?
YES. No particular citizenship is required by the law, provided, they are
domiciled here in the Philippines.
SUPPOSE THAT AT THE TIME OF THE EXECUTION OF THE
WILL, THERE WERE 3 WITNESSES, 1 OF WHOM IS ALREADY
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LYSACLOLO
ACCUSED OF PERJURY. SUBSEQUENTLY, HE WAS CONVICTED
2 YEARS AFTER THE EXECUTION OF THE WILL. CAN THE WILL
BE ALLOWED?
YES. The conviction happened 2 years after the execution of the will.
Capacity is determined at the time the will is executed.
SUPPOSE THAT AT THE TIME OF THE EXECUTION OF THE
WILL, 1 OF THE WITNESSES WAS ALREADY CONVICTED, BUT
WAS SUBSEQUENTLY ACQUITTED ON APPEAL. CAN THE WILL
BE VALID?
YES. There was no final conviction yet.
NOTE: Conviction must be by final judgment in order to be disqualified as
witness.
Only 3 crimes have been mentioned: falsification of a document, perjury and
false testimony. Conviction of any other crime is not a disqualification.
WHEN X EXECUTED HIS WILL, 1 OF THE 3 WITNESSES WAS A
WHO WAS ONLY 17 YEARS OLD. 2 YEARS AFTER, X’S WILL WAS
PRESENTED FOR PROBATE. SHOULD THE WILL BE ALLOWED?
NO. Because 1 of the witnesses was only 17 years old at the time of the
execution of the will. The supervening capacity of A, when he became 18
years old will not cure the defect or validate the will.
SUPPOSE IN THE PRECEDING, A WAS CONVICTED IN THE RTC
FOR FALSIFICATION OF DOCUMENRS. BUT HIS CASE WAS
STILL PENDING EXECUTION. MAY HE STILL QUALIFY AS A
WITNESS?
YES. Conviction must be by final judgment in order that a person may be
disqualified from being a witness to the will. Hence, considering that A’s case
or conviction is still pending execution, there is yet, no final judgment to
speak of.
SUPPOSE AFTER BECOMING A WITNESS TO THE WILL, A WAS
SUBSEQUENTLY CONVICTED BY FINAL JUDGMENT. WHAT IS
THE EFFECT?
VALID. The subsequent incompetence of A to become a witness to the will
did not affect the validity of the will.
SUPPOSE IN THE PRECEDING, B WAS ACTUALLY CONVICTED
BY FINAL JUDGMENT OF A CRIME OF FALSIFICATION OF
DOCUMENTS, BUT THIS FACT WAS UNKNOWN TO X AT THE
TIME OF THE EXECUTION OF THE WILL. IS THE WILL VALID?
YES. The will is still valid, provided that C exercised all efforts to ascertain
the competence of B.
NOTE: If strict compliance is required, the will should have been void.
WHY IS THE NOTARY PUBLIC BEFORE WHOM THE WILL WAS
ACKNOWLEDGED DISQUALIFIED TO BE A WITNESS OF THE
SAID WILL?
It would be absurd for him as a witness to acknowledge something before
himself as a notary public. The notary public cannot have a split personality.
CREDIBLE WITNESS – In Gonzales vs CA, credible witness refers to
competent witness that possess and have all the qualifications and none of the
NAVARRO
 SUCCESSION

disqualifications provided by law. The courts have duty to determine the c. Parent of the witness
credibility of the witnesses and they cannot do this unless the witnesses are d. Child of the witness
competent. e. Anyone claiming the right of the said witness, spouse, parent
or child
IS THERE A DIFFERENCE BETWEEN COMPETENCY AND
CREDIBILITY OF WITNESSES? I.E. The creditor of the witness, if said creditor has not been
paid his credit.
The rule is that the instrumental witnesses in order to be COMPETENT must
be shown to have all the qualifications and none of the disqualifications
provided by law and for the testimony to be CREDIBLE, that is worthy of
belief and entitled to credence. It is not mandatory that evidence be first
established on record that the witnesses have a good standing in the
community, or that, they are honest and upright or reputed to be trustworthy
and reliable for a person is presumed to be such unless, the contrary is
established. (Gonzales vs CA, 900 SCRA 183)

SUPPOSE X MADE A NOTARIAL WILL WITH A, B AND C AS

WITNESSES. IN THE WILL, A WAS GIVEN A PIECE OF LAND AS A
DEVISEE. IS THE WILL VALID?

YES. Because there are 3 credible witnesses, A being one of them.

However, while A is capacitated as a witness, he is incapacitated to receive the

devise because it does not comply with the requirement that it should have 3
witnesses.

Here, only B and C stood as witnesses with respect to the devise. Hence, the
provisions regarding said devise should be disregarded, the rest of the will
(other provisions and dispositions) are valid.

IN THE PRECEDING, SUPPOSE THERE WERE 3 OTHER

WITNESSES ASIDE FROM A. MAY A BE ENTITLED TO RECEIVE
THE LAND DEVISED TO HIM?

YES. The other 3 witness can stand as witnesses with respect to the land given
to A.

IN THE PRECEDING, SUPPOSE THAT ALL 4 WITNESSES WERE

DESIGNATED AS DEVISEES. CAN THE WILL BE ALLOWED?

YES.

IN THE PRECEDING, MAY THE WITNESSES BE ABLE TO GET

THE DEVICE?

The answer is still contested:

1. YES. Because the other 3 witnesses may stand as a witness, with
respect to the devise given to each one of them.

2. NAVARRO: NO. Since the purpose of the law is to remove any

pecuniary interest, they should not be allowed to get the devise.

POINTERS
ARTICLE 825-827
CODICIL AND INCORPORATION BY REFERENCE
1. The term, “3 other witnesses” refers to uninterested persons in the
execution of the will. Article 825
A codicil is supplement or addition to a will, made after the execution of a
2. The law speaks only of legatees and devisees. We believe however, will and annexed to be taken as a part thereof, by which disposition made in
that even an instituted heir or his/her spouse, parent or child is the original will is explained, added to, or altered.
disqualified. The disqualification applies to one who succeeds by
will. It is not material in what concept her succeeds.
Article 826
3. The disqualification extends to the: In order that a codicil may be effective, it shall be executed as in the case of a
a. Witness will.
b. Spouse of the witness

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LYSACLOLO NAVARRO
 SUCCESSION
Article 827
If a will, executed as required by this Code, incorporates into itself by
reference any document or paper, such document or paper shall not be
considered a part of the will unless the following requisites are present:
1. The document or paper referred to in the will must be in existence
at the time of the execution of the will;
2. The will must clearly describe and identify the same, stating
among other things the number of pages thereof;
3. It must be identified by clear and satisfactory proof as the
document or paper referred to therein; and
4. It must be signed by the testator and the witnesses on each and
every page, except in case of voluminous books of account or
inventories.
CODICIL – is a supplement or addition to the will made after the execution
of a will and annexed to be taken as a part thereof, by which any disposition
made in the original will is explained, added to or altered.
HOW IS A CODICIL EXECUTED?
It shall be executed as in the case of wills in order that the codicil may be
effective.
NOTE: Art. 825 enunciates the definition of a codicil, while Art. 826 gives the
requisites in order that the codicil may be effective.
The word codicil imports a reference to some prior paper as a will. There may,
however, be a valid codicil to a revoked will. At first codicils were writing
actually attached to the will, but this is no longer necessary; when they are
separate documents, the codicil referring to and ratifying the will may be said
to incorporate the will by reference, or to republish the will. In order to
operate as republication of the will, it is sufficient that the codicil refers to the
will in such way as to leave no doubt as to the identity of that instrument. A
reference to the will in the codicil constitutes a sufficient identification of the
will.
FORMALITIES IN EXECUTING A CODICIL
Same as holographic and notarial wills.
DIFFERENCE BETWEEN A WILL AND A CODICIL
Codicil – adds to or alters the original provisions of a will. It is not
independent to the prior will and it is always executed after a will.
IF THERE IS A CONFLICT BETWEEN A CODICIL AND A WILL,
WHICH ONE WILL PREVAIL?
The CODICIL shall prevail, it being the later expression of the testator’s
wishes.
CAN THERE BE A HOLOGRAPHIC CODICIL?
YES. As long as it is entirely written, dated and signed by the hand of the
testator.
MAY A HOLOGRAPHIC WILL BE AMENDED BY A NOTARIAL
CODICIL?
YES. A notarial will may be revoked by either a notarial or holographic
codicil. A holographic will may be revoked by either a holographic or notarial
codicil.
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LYSACLOLO
X EXECUTED A NOTARIAL WILL IN 1985. SUBSEQUENTLY, X
EXECUTED A HOLOGRAPHIC CODICIL. CAN THE NOTARIAL
WILL BE MODIFIED OR REVOKED BY THE HOLOGRAPHIC
CODICIL?
YES. Any codicil, whether holographic or notarial, may modify a previous
will. Thus, a notarial will may be modified or revoked by a notarial or
holographic will. In the same way that a holographic will may be modified by
a notarial or holographic will.
NOTE: The only requirement is that the codicil must be executed in
accordance with the formalities by law. If a codicil is not executed with the
formalities of will, said codicil is void.
A valid will can never be revoked, expressly or impliedly by an invalid
codicil.
HOW DO YOU IDENTIFY A CODICIL?
A codicil refers to the original will. If there is entirely no reference at all, it is
considered to be a new will.
MAY A CODICIL BE MADE BEFORE THE EXECUTION OF THE
WILL?
NO. Because a codicil refers to a will. It cannot be made before the execution
of a will.
REQUISITES FOR INCORPORATION BY REFERENCE
Art. 827
PURPOSE OF THE AFOREMENTIONED INCORPORATION BY
REFERENCE
To provide for those cases where a testator wishes to incorporate to his will by
reference, voluminous documents. Hence, the testator is able to save time and
energy.
ARE THE WITNESSES REQUIRED TO AGREE WITH THE
TESTATOR FOR THE INCORPORATION BY REFERENCE?
NO. It is an act of the testator alone.
IN THE PRECEDING, SHOULD THE LIST BE ATTESTED BY THE
ATTESTING WITNESSES?
NO. Under Art. 827, said documents or inventories when referred to in a
notarial will do not need an attestation clause because the attestation of the
will itself is sufficient.
IN CASE OF THE VOLUMINOUS BOOKS OF ACCOUNTS OR
INVENTORIES, DOES THE TESTATOR AND THE WITNESS HAVE
TO SIGN EACH AND EVERY PAGE THEREOF?
NO. It need not be signed on each and every page thereof. Take note however
that the exception refers only to the signing of all the pages thereof. Thus,
while not every page has to be signed, there must be signed on at least several
pages thereof, for the purpose of identifying the same as the document really
referred to.
CAN THERE BE AN INCORPORATION BY REFERENCE WITH
RESPECT TO HOLOGRAPHIC WILLS?
GR: NO. Art. 824 (4) provides that, “it must be signed by the testator and the
witnesses on each and every page, except in case of voluminous books of
account or inventories” From this provision it can be deduced that as a rule,
incorporation by reference may be applied only on notarial wills.
NAVARRO
 SUCCESSION

ETR:
1. If a holographic will happens to have at least 3 credible witnesses;
2. Having no witnesses, it refers to a document entirely written, dated
and signed by the hand of the testator, there can also be a proper
incorporation by reference.

AS REGARDS PROOF AS TO THE IDENTITY OF THE DOCUMENT

AS INCORPORATED, CAN EVIDENCE ALIUNDE BE ADMITTED?

YES. Parole or extrinsic evidence (evidence aliunde). Can be admitted. It is

even necessary on this situation.

NOTE: Stated generally, the doctrine is that a will duly executed and
witnessed according to statutory requirements, may incorporate into itself by
an appropriate reference a written paper or document which is in existence at
the time of the execution of the will, irrespective of whether such document is
one executed by the testator or a third person, whether it is in and of itself a
valid instrument, provided that the document referred to is identified by clear
and satisfactory proof. So incorporated, the extrinsic paper takes effect as part
of the will and is admitted as probate of such.

CAN A DOCUMENT WHICH IS INCORPORATED BY A

REFERENCE TO A WILL, REFER TO PAPERS, WHICH MAY BE
MADE ONLY IN THE FUTURE?

NO. The incorporation will be invalid, but the will remains valid. The will
must refer to papers which have been made already. It is not enough to state
that it is already in existence.

SUPPOSE THAT IN 1985, X TYPED A DOCUMENT WHICH HE

INTENDED TO BE USED IN THE FUTURE AS HIS LAST WILL AND
TESTATMENT. IN 1995, X MADE A WILL AND INCORPORATED
THE 1985 DOCUMENT. IS THERE A VALID INCORPORATION?

NO. The 1985 document was testamentary provision. So, it must be made into
a will. Article 827 refers only to references such as inventory.

The purpose of incorporation by reference is merely for convenience. It

cannot be done to incorporate testamentary provisions.

NOTE: Art. 827 refers to non-testamentary dispositions. So, if they are

testamentary, one must use a codicil or a will, not an incorporation of
reference.
CAN A WILL BE A DOCUMENT, WHICH IS INCORPORATED IN ARTICLE 828-834
ANOTHER WILL? REVOCATION OF WILLS

NO. The law allows incorporation only if what is incorporated in a will, is not Article 828
in itself a will (another will so to speak). A will may be revoked by the testator at any time before his death. Any waiver
or restriction of this right is void.

Article 829
A revocation done outside the Philippines, by a person who does not have his
domicile in this country, is valid when it is done according to the law of the
place where the will was made, or according to the law of the place in which
the testator had his domicile at the time; and if the revocation takes place in
this country, when it is in accordance with the provisions of this Code.

Article 830
No will shall be revoked except in the following cases:
1. By implication of law;

2. By some will, codicil, or other writing executed as provided in

case of wills; or

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LYSACLOLO NAVARRO
 SUCCESSION
3. By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other
person in his presence, and by his express direction. If burned,
torn, cancelled, or obliterated by some other person, without the
express direction of the testator, the will may still be established,
and the estate distributed in accordance therewith, if its contents,
and due execution, and the fact of its unauthorized destruction,
cancellation, or obliteration are established according to the Rules
of Court.
Article 831
Subsequent wills which do not revoke the previous ones in an express manner,
annul only such dispositions in the prior wills as are inconsistent with or
contrary to those contained in the latter wills.
Article 832
A revocation made in a subsequent will shall take effect, even if the new will
should become inoperative by reason of the incapacity of the heirs, devisees
or legatees designated therein, or by their renunciation.
Article 833
A revocation of a will based on a false cause or an illegal cause is null and
void.
Article 834
The recognition of an illegitimate child does not lose its legal effect, even
though the will wherein it was made should be revoked.
REVOCATION AS APPLIED TO WILLS – an act of the mind terminating
the potential capacity of the will to operate at the death of the testator,
manifested by some outward or visible act or sign, symbolic thereto.
CAN THE TESTATOR WAIVE THE RIGHT TO REVOKE?
NO. It is a void waiver. The law provides that the right of the testator to
revoke cannot be restricted.
IN 1985, IN PARAGRAPH 10 OF HIS WILL, IT IS STATED, “THIS IS
MY LAST WILL AND TESTAMENT, AND I DO NOT INTEND TO
CHANGE ANY OF THE PROVISIONS IN IT. I THEREFORE WAIVE
MY RIGHT OF REVOCATION.” IN 1995, HE CHANGED HIS MIND.
CAN X STILL REVOKE HIS 1985 WILL?
YES.
EVEN IF HE EXPRESSLY WAIVED HIS RIGHT TO REVOKE THE
WILL?
YES. A will may be revoked by the testator at any time before his death. Any
waiver or restriction of the right is void.
CAN THE OPPOSITOR CONTESTS THE PROBATE OF A WILL, BY
THE MERE FACT THAT THE SAID WILL CONTAINS AN
IRREVOCABLE CLAUSE?
YES. This is an indication that the testator did not understand the character of
the testamentary act at the time of the execution of the will. Furthermore, said
“irrevocability clause” is void under Art. 828.
HOW MAY A WILL BE REVOKED
1. By implication of law.
2. By some will, codicil, or other writing executed as provided in case
of wills.
33
LYSACLOLO
3. By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other
person in his presence, and by his express direction.
WHEN IS THERE A REVOCATION BY IMPLICATION OF LAW?
The revocation is to be implied from certain changes in the family or domestic
relations of the testator, or his property, or one involving the beneficiaries of
the will, from which the law infers or presumes that he intended a change,
either total or partial, in the disposition of the property.
INSTANCES OF REVOCATION BY IMPLICATION OF LAW
1. When there is a decree of legal separation.
2. Where there is preterition or omission of one, some or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator. In such
case, the preterition shall annul the institution of heirs.
3. When in a testator’s will there is a legacy or credit against a third
person or of the remission of a debt of the legatee, and
subsequently, after the execution of the will, the testator brings an
action against the debtor for the payment of his debt. In such case
the legacy is revoked.
4. When the testator transforms the thing bequeathed in such a
manner that it does not retain either the form or denomination it
had, or when he alienates by any title or for any cause the thing
bequeathed, or when the thing bequeathed is totally lost during the
testator’s life or after his death without the heir’s fault. In such
cases, the legacy is revoked.
5. When the heir, devisee or legate commits any of the acts of
unworthiness, which by express provision of law will incapacitate
a person to succeed. In such case, any testamentary disposition in
favor of the devisee or legatee is revoked.
6. Art. 44 of the Family Code. It both spouses of the subsequent
marriage acted in bad faith, said marriage shall be void ad initio
and all donations by reason of marriage and testamentary
dispositions made by one in favor of the other are revoked by
operation of law.
7. Art. 50 of the Family Code. In cases of marriages which are
declared void ab initio or annulled by final judgment.
NOTE: In legal separation, a spouse may still inherit from the other spouse,
unless, found guilty of the legal grounds of legal separation, he/she is
disqualified from.
IF THERE IS A LEGAL SEPARATION, SUPPOSE THE WIFE WAS
INSTITUTED NOT AS AN HEIR, BUT AS A LEGATEE. WILL THE
EFFECT OF REVOCATION BE THE SAME?
YES. In case of legal separations, provisions in favor of the offending spouse
shall be revoked by operation of law. Hence, it is not material in what concept
the provision was made.
SUPPOSE THAT IN A 1985 WILL, X STATED THAT HE IS
BEQUEATHING THE ENTIRE FREE PORTION OF HIS ESTATE TO
HIS WIFE. IN 1990, X AND HIS WIFE WERE GRANTED A LEGAL
SEPARATION ON THE GROUND OF X’S ADULTERY.
THEREAFTER, X DIED. MAY X’S WIFE STILL INHERIT BASED
ON THE 1985 WILL?
YES. It is the provision in favor of the offending spouse and not of the
innocent, which shall be revoked.
NAVARRO
 SUCCESSION
SUPPOSE MR. X MADE A NOTARIAL WILL IN 1985. THERE IS
ONLY 1 COPY OF THE SAID WILL. X DIED IN 1995. THE WILL
WAS STOLEN AFTER X’S DEATH AND WAS DESTROYED.
WOULD IT STILL BE POSSIBLE TO ADMIT THE WILL TO
PROBATE?
YES. If burned, torn, cancelled or obliterated by some other person, without
the express direction of the testator, the will may still be established, and the
estate distributed in accordance therewith, if its contents and due execution
and the fact of its unauthorized destruction, cancellation and obliteration are
established according to the Rules of Court.
IN THE PRECEDING, WHAT IF IT WAS A HOLOGRAPHIC WILL?
NO. Because there would be no document which may be examined to verify
the authenticity of the testators handwriting.
ETR: Existence of a photocopy or mimeo copy
TO REVOKE A WILL BE AN OVERT ACT, WHAT ARE THE
REQUISITES? OR WHAT ARE THE REQUISITES OF
REVOCATION BY PHYSICAL DESTRUCTION?
1. There must be an overt act specified by law either by burning,
tearing, cancelling or obliterating.
2. There must be an animus revocandi or intent to revoke.
3. There must be a completion of at least subjective phase of the overt
act.
4. The testator at the time of revoking the will must have capacity to
make a will.
5. The testator must do the act of revocation himself, or by some
other persons in his presence and by his express direction
(ratification of an unauthorized destruction is, however,
permissible, provided that, sufficient proof of this is presented).
NOTE: The intention to revoke must concur with an overt act, manifesting the
intention. Neither destruction without intention nor intention without
destruction would revoke the will.
SUPPOSE X MADE 5 COPIES OF HIS WILL AND HE GAVE 4 OF
THEM TO HIS FRIENDS FOR SAFE KEEPING. IN 1985, HE
REVOKED HIS WILL BY BURNING IT. IS IT NECESSARY THAT
FOR THE VALIDITY OF THE REVOCATION, THAT X RETRIEVE
ALL THE COPIES OF THE WILL?
NO.
X MADE A WILL IN 1998. IN 2001, WITH AN INTENT TO REVOKE
THE WILL, X THREW THE WILL OUT OF THE WINDOW. IS
THERE A VALID REVOCATION OF THE WILL?
NO. There was no actual and physical destruction of the will.
X MADE A WILL IN 1998. THEREAFTER, HE PLACED THE WILL
INSIDE THE DRAWER. IN 2001, THE HOUSE OF X WAS RAZED BY
FIRE. THE DRAWER WHERE THE WILL WAS PLACED WAS
ALSO CONSUMED BY FIRE. OBVIOUSLY, THE WILL PERISHED
WITH IT. IS THE WILL REVOKED?
NO. Despite the actual and physical destruction of the will, there was no valid
revocation. Because, there was no intent to revoke the will. Intention and
destruction must go hand in hand.
NOTE: If the will is contained in an envelope and the latter was burned
without the contents included, the will is not revoked.
34
LYSACLOLO
X EXECUTED A WILL AND PLACED IT INSIDE AN ENVELOPE.
WITH THE WILL INSIDE THE ENVELOPE, HE THREW THE SAME
INTO A FIRE. HOWEVER, THE ONLY THING BURNED WAS THE
ENVELOPE, WHILE THE WILL WAS KEPT ITACT. LATER, X
DIED AND THE WILL WAS DISCOVERED. IS THE WILL
REVOKED?
NO. To constitute a revocation by burning, there must be at least a burned part
of the paper on which the will is written, otherwise, there is no revocation
A very slight burn on the paper on which the will was written will suffice. In
this case, since the will was intact and was recovered, there is no revocation.
X THREW HIS WILL INTO THE FIRE WITH INTENT TO REVOKE.
THE WILL WAS SLIGHTLY BURNED WITHOUT AFFECTING A
SINGLE WORD. IS THERE A VALID REVOCATION?
YES. A very slight burn on the paper on which the will was written will
suffice.
X WANTED TO REVOKE HIS WILL SO HE THREW THE SAME
INTO THE STOVE, WHERE IT WOULD BE BURNED LATER IF A
FIRE WOULD BE LIGHTED ON THE STOVE. HOWEVER, A THE
SON OF X, REMOVED THE WILL FROM THE STOVE BEFORE
THE STOVE WAS LIGHTED. IS THERE A REVOCATION?
NO. While there was an intent to revoke, there never was an overt act of
burning.
IN THE PRECEDING, WILL A BE ABLE TO INHERIT BEING THE
SON OF THE TESTATOR HIMSELF, AND THEREFORE, ENTITLED
TO HIS LEGITIME?
NO. It is submitted, that by preventing the revocation of the will, A would not
be able to inherit not because of the revocation by means of an overt act (for
there was no overt act), but because of revocation by implication of law. A is
considered incapacitated to inherit by reason of act of unworthiness.
HOW MANY TIMES SHOULD A TESTATOR TEAR HIS WILL IN
ORDER THAT THERE MAY BE A VALID REVOCATION?
There is no number required by law.
IS A SLIGHT TEAR SUFFICIENT?
YES. If the subject phase of the act has been completed.
SUPPOSE THAT MR. X HAD VIOLENT ALTERCATION WITH HIS
INSTITUTED HEIR. IN FRONT OF THE HEIR, HE TORE THE WILL
3 TIMES WITH INTENT TO REVOKE THE WILL. HE WAS ON THE
ACT OF TEARING THE WILL FOR THE FOURTH TIME WHEN
HIS HEIR PLEADED HIM NOT TO TEAR THE WILL. HE STOPPED
AND PLACED THE PIECES TOGETHER. IS THERE A VALID
REVOCATION?
NONE.
IN THE PRECEDING, SUPPOSE THAT MR. X TORE THE WILL
JUST ONCE AND THREW IT IN THE WASTE BASKET. IS THERE A
VALID REVOCATION?
YES.
WHAT IS THE DIFFERENCE BETWEEN THE 2 IMMEDIATELY
PRECEDING PROBLEMS?
NAVARRO
 SUCCESSION
FIRST INSTANCE – the will is still valid because the subjective phase of the
overt act was not yet completed. It is evident in the first instance that the
testator still has the intention to tear the will for the fourth time so as to revoke
it.
SECOND INSTANCE – there was already a completion of the subjective
phase of the overt act.
NAVARRO: The question asked must be: Was the act subjectively complete?
If yes, then even if there is a subsequent desistance, there arises a valid
revocation.
SUPPOSE THAT MR. X WITH AN INTENT TO REVOKE THE WILL,
TORE THE WILL JUST ONCE AND THREW IT IN THE WASTE
BASKET. THEREAFTER, HE CHANGED HIS MIND AND PASTED
BACK THE WILL. IS THE WILL VALID?
NO. There was already a completion of the subjective phase of the overt act.
Therefore, the will was already revoked. The subsequent pasting it back did
not restore the validity of the will.
WHEN IS THE ACT DEEMED TO BE STILL IN ITS SUBJECTIVE
PHASE?
If the testator still intends to do a further act.
WHAT IF INSTEAD OF TEARING IT HIMSELF, MR. X USED
SHREDDING MACHINE. IS THERE A VALID REVOCATION?
YES.
POINTERS:
1. Tearing includes cutting. A clause may be revoked by cutting the
same from the will.
2. The mere act of crumpling or the removal of the fastener binding
the pages of a will does not constitute a revocation, even though
there be animo revocandi.
GR: Crumpling is not one of the overt acts provided by law.
ETR: In Roxas vs Roxas, 48 OG 2177, the court impliedly allowed
crumpling as one of the overt acts, provided, there is animo
revocandi.
3. Tearing of even the signature alone constitute revocation,
provided, the other requisites are present. This is because the
signature goes to the very heart of the will.
4. HUMPTY DUMPTY RULE – once a will has been torn and
revoked, it can no longer be revived by putting the pieces together.
SUPPOSE X DUG A PLACE IN HIS YARD AND BURIED THE WILL
THERE. IS THERE A VALID REVOCATION?
NO. There was no physical destruction.
X MADE A 1 PAGE NOTARIAL WILL AND TOOK PICTURES OF
THE SAID WILL. THEREFORE, X HAD THE PICTURES
DEVELOPED AND DISTRIBUTED COPIES OF IT TO HIS FRIENDS
WHILE RETAINING SOME COPIES TO HIMSELF. AFTER 1 YEAR,
X BURNED 1 OF THE PICTURES WITH THE INTENT TO REVOKE.
IS THERE A VALID REVOCATION?
FIRST VIEW: YES. There was a valid revocation because the testator need
not burn all the pictures of the will in order to constitute a complete
revocation.
35
LYSACLOLO
SECOND VIEW: NO. There was no valid revocation, since what was burned
was the mere reproduction.
JURADO: Citing American jurisprudence, to constitute a revocation by
burning there must be at least a burning part of the paper on which the will
was written. Although a slight burn will suffice. Hence, this would imply the
exclusion of mere burning of the reproduced copy.
X EXECUTED HIS LAST WILL AND TESTAMENT. HE MADE 5
COPIES OF HIS NOTARIAL WILL, 1 ORIGINAL, AND THE OTHER
4 AS DUPLICATE COPIES. THE ORIGINAL PLUS THE 3
DUPLICATE COPIES WERE GIVEN BY X TO HIS FRIEND, F. X
RETAINED 1 DUPLICATE COPY. THEREAFTER, X REVOKED HIS
WILL BY TEARING THE SAID DUPLICATE COPY. IS THERE A
VALID REVOCATION?
YES. Since all the requisites for a valid revocation by an overt act were
present. There is a valid revocation of the will, even if other copies of the said
will are still existing.
Furthermore, a duplicate original, a carbon copy or a duplicate executed at the
same time as the original is a as good as the original and produces the same
effect, as though the original has been revoked.
NOTE: A duplicate original is a reproduction, but it is considered as the same
as the original itself. That is why, its destruction, cancellation of obliteration
will suffice as a revocation of the will itself.
With respect to the pictures, although it is also a reproduction of the will, it
cannot be considered the same as the original itself, that is why its destruction
may not be considered as sufficient revocation of the will.
NOTE: The aforementioned comparison refers to the 2 immediately preceding
problems is the transcriber’s opinion. Dean Navarro did not say anything on
the matter.
IS IT SUFFICIENT UNDER ART. 830 TO DESTROY A
REPRODUCTION (REPRODUCED COPY) OF A WILL FOR ITS
VALID REVOCATION?
A symbolic destruction, cancellation, obliteration will not suffice. However,
since a duplicate original has a genuine signature, it is deemed that its
destruction is a sufficient revocation.
X HAD 4 COPIES OF HIS WILL. HE BURNED THE FIRST COPY
WITH AN INTENT TO REVOKE. CAN THE EHIRS HAVE THE
REMAINNG 3 COPIES PROBATED?
NO. It is evident that X has decided to revoke the will. There was a complete
act of actual and physical destruction of the will, notwithstanding that there
were other 3 copies. Further, there is an intention on the part of the testator to
revoke the will. What is controlling here, is the intent of revocation. In the
main, destruction of a copy of the will is a sufficient revocation, despite the
presence of other copies, if there is an intention on the part of the testator to
revoke the will.
SUPPOSE THE TESTATOR SIMPLY CRUMPLED HIS WILL AND IN
THE PRESENCE OF HIS BENEFICIARY, ORALLY DECLARED HIS
INTENTIONS TO REVOKE THE WILL. IS IT A VALID
REVOCATION?
NO. The mere act of crumpling or the removal of the ring or fastener, binding
the pages of a will does not constitute a revocation, even though there be
animo revocandi. Crumpling is not one of the overt acts provided for by the
law. Inclusio Unius et Exlusio Alrerisus. The overt acts specified are
exclusive, notwithstanding the ruling in the case of Roxas vs Roxas, where the
court impliedly allowed crumpling as one of the overt acts. The intention to
revoke must concur with the overt acts expressly specified.
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 SUCCESSION
SUPPOSE THE TESTATOR MERELY SPAT ON THE WILL. IS
THERE A VALID REVOCATION?
NO. The revocation of the will is a matter of mental process demonstrated by
some outward and visible sign. A mere symbolic destruction will neither
suffice. There must be a physical act (neither symbolic, nor verbal), as well as
an intention.
SUPPOSE THE TESTATOR BURRIED THE WILL?
NO. Mere burying is construed as a mere symbolic act of destruction, hence,
there is no valid revocation. Take note, in burning, even a slight burn is
deemed sufficient.
SUPPSOE X THREW HIS WILL FROM THE WINDOW OF HIS
OFFICE BUILDING WITH INTENT TO REVOKE IT. IT WAS
PICKED UP BY A METRO AIDE WHO THREW IT IN A FIRE. IS
THERE A VALID REVOCATION?
NONE. Since in cases where the physical destruction is made by a third
person, it must be performed in the presence of the testator and under his
express direction.
SUPPOSE THAT THE TESTATOR COULD NO LONGER STAND
AND SO HE ASKED HIS HOUSEMAID TO GET HIS WILL AND
BURN IT FOR HIM. THE HOUSEMAID BURNED THE WILL IN
THE KITCHEN AND RETURNED WITH THE ASHES. IS THERE A
VALID REVOCATION?
NONE. It was not done in the presence of the testator.
WHAT ABOUT THE FACT THAT HE SAW THE ASHES?
IMMATERIAL. Since there is no guarantee that the said ashes are those of
the will.
REVOCATION BY OBLITERATION – it is one effected by erasing or
scrapping off any record or disposition which the testator intends to revoke. In
this case, the words are rendered ineligible.
REVOCATION BY CANCELLATION – it is one effected by diagonal or
horizontal lines, or crisscrosses written upon the face of the will or upon any
part thereof. In this case, the words are still legible.
POINTERS:
1. Either of the 2 obliteration or cancellation revokes a will totally or
partially.
2. If all parts are cancelled or obliterated, or if the signature is
cancelled or obliterated, the whole will is revoked, the reason in
the case of the signature being that the act strikes at the existence
of the whole instrument.
3. Cancellation or obliteration of non-vital parts leaves the other parts
in force.
4. If a will is mutilated by error, there being no animo revocandi,
there is no revocation.
X EXECUTED A HOLOGRAPHIC WILL WITH A, B AND C AS
WITNESSES. THEREAFTER, X CANCELLED THE SIGNATURE OF
THE 3 WITNESSES. IS THE WILL REVOKED?
NO. Cancellation of the signature of witnesses to a holographic will leaves the
will valid, since no witnesses are after all required.
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SUPPOSE THAT THE TESTATOR WROTE CANCELLED ON THE
LEFT MARGIN OF THE WILL. IS THERE A VALID REVOCATION?
NO. Even if there is an intent to revoke since the testator must have caused
some physical defacement of the will to give expression to that purpose.
IN THE PRECEDING, SUPPOSE THAT THE TESTATOR WROTE
THE WORD CANCELLED, SIGNED AND DATED IT. IS THERE A
VALID REVOCATION?
YES. Since having been executed in accordance with all the formalities
prescribed by law for the execution of wills, there would be a revocation, not
by cancellation but by a non-testamentary writing executed as provided in
case of wills.
REVOCATION BY WILL OR BY CODICIL OR OTHER NON-
TESTAMENTARY WRITING:
1. It is EXPRESS when in a subsequent will or codicil or other non-
testamentary writing executed as provided in the case of wills,
there is a revocatory clause expressly revoking the will or a part
thereof.
2. It is IMPLIED when the provisions of the subsequent will or
codicil are partially or absolutely inconsistent with those of the
previous will.
CAN THERE BE A REVOCATION WHICH IS DONE IMPLIEDLY?
YES. Implied revocation consists in complete inconsistency between 2 wills.
NOTE: As long as a possibility for a reconciliation between the 2 conflicting
dispositions can be made, then, there is no implied revocation.
HOW IS AN IMPLIED REVOCATION EFFECTED?
It is effected only by a subsequent will or a codicil. It is evident that it cannot
be effected by a non-testamentary writing executed as provided in the case of
wills, since such non-testamentary writing does not contain any affirmative
disposition of property which can be said to be inconsistent with the
disposition contained in the previous will.
HOW IS AN EXPRESS REVOCATION EFFECTED?
It is effected through a subsequent will, a codicil or a non-testamentary
writing executed as provided in the case of wills.
NOTE: In order to be an express revocation, there must be a revocatory clause
in a subsequent will, codicil, or other writing. The intention of the testator to
revoke the previous will must be clearly and unmistakably manifested.
As regards revocation by a non-testamentary writing executed, as provided in
the case of wills, it is not essential that the writing should contain any
affirmative disposition of property. Neither is it essential that a writing which
is not in fact a will, be erroneously characterized a will, in order to be
effective as a revoking instrument. Thus, a will may be revoked by express
words of revocation contained in a deed of trust or in a letter, signed by the
testator and executed in accordance with the formalities prescribed by law for
the making of the wills. The exact wording of a revocatory writing is not so
important, if the intent to revoke the will is clear from the language used, and
the formalities of execution are observed.
Only a valid will can revoke a valid will.
DOCTRINE OF INDEPENDENT REVOCATION – the established rule is
that, if the testator revokes a will with a present intention of making a new one
immediately as a substitute, and the new will is not made or if made, fails of
effect for any reason, it will be presumed that the testator preferred the old
will instead of intestacy, and the old one will be admitted for probate in the
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absence of evidence overcoming the presumption, provided its contents can THAT A WAS ALREADY DEAD. AFTER X’S DEATH, A
be ascertained. DISCOVERED THAT THE REVOCATION WAS DUE TO X’S FALSE
BELIEF THAT HE WAS ALREADU DEAD. CAN THE REVOCATION
VDA. DE MOLO v. MOLO, 90 PHIL 37 BE QUESTIONED?

FACTS: : After the death of Mariano Molo, his widow filed a second
petition for the probate of a copy of another will executed by the deceased
on June 20, 1939. This will was denied probate on the ground that it was
not executed in accordance with the formalities prescribed by law.
In view of the disallowance, the widow filed a second petition for the
probate of another will executed by the deceased on August 17, 1918. This
will was admitted to probate in spite of the opposition of the oppositor
appellants. The widow is the instituted heiress in both wills.
The oppositprs contend among others, that the will of 1918 cannot be
given effect because there is a presumption that the testator, after
executing the will in 1939, and with full knowledge of the revocatory
clause contained in the said will, deliberately destroyed and revoked the
original will of 1918.
RULING: Granting for the sake of argument that the earlier will was
voluntarily destroyed by the testator after the execution of the will, which
revoked the first, could there be any doubt that said earlier will was
destroyed by the testator, in the honest belief, that is was no longer
necessary because he had expressly revoked said will in 1939. In other
words, can we not say that the destruction of the earlier will was but the
necessary consequence of the testator’s belief, that the revocatory clause
contained in the subsequent will was valid and the latter would be given
effect?
If such is the case, then it is our opinion that the earlier will can still be
admitted to probate, under the doctrine. *False cause or illegal cause must
be stated in the subsequent will that the revocation was due to such cause.
The purpose is for contesting the will.
NO. The revocation of a will based on a false cause or an illegal cause shall
be rendered null and void only when the said cause is expressly stated in the
codicil or a later will.
Here, X did not state in the later will that the revocation was due to his false
belief that A was already dead.
IN THE PRECEDING, WHAT IF X STATED IN THE LATER WILL,
THAT “I AM REVOKING THE INSTITUTION OF A AS HEIR
BECAUSE HE IS ALREADY DEAD”. CAN A CONTEST THE
REVOCATION?
YES.
NOTE: Under Art. 834, the revocation of the will where an illegitimate child
is acknowledge by the testator as his natural child, will not affect the validity
of the recognition or acknowledgment. This rule is logical, considering the
fact, that even if the will is revoked, the instrument still constitutes an
authentic instrument within the meaning of Art. 278 of the Civil Code, which
states that recognition of natural children shall be made in the record of birth
or in a will or in a statement before a court of record or in authentic writing.
X EXECUTED A WILL IN 1985. IN THE SAID WILL, HE ALSO
ACKNOWLEDGED A AS HIS ILLEGITIMATE CHILD. IN 1995, X
REVOKED HIS 1985 WILL. WHAT IS THE EFFECT ON THE
RECOGNITION OF A AS AN ILLEGITIMATE CHILD IN 1985 WILL,
CONSIDERING THAT THE SAME WAS REVOKED?
The recognition of an illegitimate child does not lose its legal effect even
though the will where it was made should be revoked.

X INSTITUTED F AS HEIR FOR HALF OF THE FREE PORTION OF REASON: Because the recognition is not a testamentary disposition. It takes
HER ESTATE. X SUBSEQUENTLY REVOKED THE WILL: effect upon the execution of the will and not upon the death of the testator.
Hence, the child’s right is already vested upon the execution of the will.
A. “I REVOKE THE WILL FOR F.”
B. “I REVOKE THE WILL FOR F, BECAUSE HE IS DEAD.” Furthermore, even if the will has been revoked, the instrument still constitute
C. “I REVOKE THE WILL FOR F, BECAUSE I HAVE A an authentic instrument within the meaning of Art. 278 of the Civil Code,
CRUSH ON HIM, BUT HE WOULDN’T COUNT ME.” which states that “recognition of natural child shall be made in a record of
D. “I REVOKE THE WILL FOR MARTIN BECAUSE HE IS A birth, or in a will, or in a statement before a court of record, or in an authentic
BICOLANO AND I HATE BICOLANOS.” writing.

CAN F CONTEST THE REVOCATION?

Except for revocation under (B), F cannot contest the revocation because the
will is essentially revocable, regardless, whether the revocation is whimsical
or not. Under (B) it may turn out that F is alive and the cause of revocation is
untrue. In this case the revocation is null and void, and will not take effect.

NOTE: The rule under Art. 833 is also known as a revocation by mistake.
Thus, where a testator, by codicil or a latter will, revokes a devise or legacy in
his will, expressly grounding such revocation on the assumption of a fact,
which turn out to be false, as where it is stated that the legatees or devisees
named in the will are dead, when in fact, they are living, the revocation does
not take effect.

The revocation which is based on a false cause or an illegal cause, must be

stated in the codicil or a later will, so that it may be contested. If the same is
not stated, it cannot be assailed.

SUPPOSE THAT X IN HIS 1985 WILL, INSTITUTED A AS HEIR. IN

1995, BELIEVING THAT A WAS ALREADY DEAD, X REVOKED A’S
INSTITUTION. BUT A DID NOT STATE IN THE WILL/
REVOCATION THAT THE REASON WAS DUE TO HIS BELIEF
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 SUCCESSION
ARTICLE 835-837
REPUBLICATION AND REVIVAL OF WILLS
Article 835
The testator cannot republish, without reproducing in a subsequent will, the
dispositions contained in a previous one which is void as to its form.
Article 836
The execution of a codicil referring to a previous will has the effect of
republishing the will as modified by the codicil.
Article 837
If after making a will, the testator makes a second will expressly revoking the
first, the revocation of the second will does not revive the first will, which can
be revived only by another will or codicil.
REPUBLICATION AS APPLIED TO WILLS – an act of the testator
whereby he reproduces in a subsequent will the dispositions contained in a
previous will, which is void as to its form or executed a codicil to his will.
KINDS OF REPUBLICATION
1. EXPRESS REPUBLICATION – if the testator reproduces in a
subsequent will, the dispositions contained in a previous will,
which is void as to its form. (Art. 835)
2. CONSTRUCTIVE REPUBLICATION – if the testator for some
reason or another executes a codicil to his will. (Art. 836)
3. REVIVAL – restoration to validity of a previously revoked will by
operation of law.
REPUBLICATION REVIVAL
Takes place by an act of the Takes place by operation of law.
testator.
Corrects extrinsic and intrinsic Restores a revoked will.
defects.
SUPPOSE THAT X HAD MADE A NOTARIAL WILL IN 1985. HE
MADE IT WHEN HE WAS 16 YEARS OLD. X EXECUTED A
CODICIL IN 1995 MODIFYING THE WILL OF 1985. WOULD THE
CODICIL ACT AS REPUBLICATION OF THE 1985 WILL?
YES. Because a referral was made modifying the 1995 will. Hence, the
intrinsic defect has been cured. Art. 836 applies.
IF HE DIES, SHOULD THE WILL BE ALLOWED?
YES. Because there was proof that the codicil intends to cure the intrinsic
defect, for he referred to the 1985 will using the codicil.
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NOTE: Under Art. 836, intrinsic defects of the will are cured by mere referral
to the codicil.
SUPPOSE THAT X MADE A NOTARIAL WILL IN 1985, BUT ONLY 2
WITNESSES WERE PRESENT. IN 1995, HE MODIFIED HIS WILL
BY CODICIL. IF HE DIES, SHOULD THE WILL BE ALLOWED?
NO. There is no proof that the whole will was reproduced correcting the void
provisions. The latter was merely as codicils.
The 1985 will as void as to its form because it has only 2 witnesses and
therefore Art. 235 should apply. The testator must reproduce in a subsequent
will the dispositions contained in the 1985 will. He cannot merely use a
codicil.
SUPPOSE THAT WHEN X MADE HIS WILL IN 1985 HE WAS 20
YEARS OLD. THE WILL DID NOT CONTAIN AN ATTESTATION
CLAUSE. IN 1995, HE MAKES A CODICIL. IS THERE A VALID
REPUBLICATION?
NO. Because the first will was not valid to its form. X must copy the contents
of the 1985 will as provided for under Art. 835.
NOTE:
1. If the defect of the will is as to its FORM, apply Art. 835.
2. If the defect is NOT with respect to its form, a codicil may be
made with effect of republishing the will. This is under Art. 836.
3. A will which is republished in a codicil speaks as it were from the
new and later date.
I.E. Date of the codicil.
X MADE A NOTARIAL WILL IN 1999, WITH ONLY 2 ATTESTING
WITNESSES. IT IS CLEAR THAT THE WILL IS VOID AS TO ITS
FORM, AND IS THEREFORE, USELESS. IF HE SO DESIRES TO
GIVE LIFE TO THE WILL, SAY IN 2000. (A) WHAT SHOULD HE
DO? (B) HOW? (C) WHAT IS THE EFFECT?
A. He must republish the 1999 will.
B. By executing a new will in 2000, copying all the provisions in the
1999 will, but this time, he must use 3 attesting witnesses.
C. The effect is as if he made the will not in 1999 but in 2000.
In other words, the will becomes a re-established act, and therefore, the will
governs property he had acquired up to 2000.
IF IN 1999, X GAVE ALL OF HER CARS TO F, AND AT THE TIME
(1999), X HAD 2 CARS, BUT IN 2000 HE HAD REPUBLISHED THE
WILL, AND BY THAT TIME (2000), X HAD ALREADY 5 CARS.
HOW MANY CARS WILL F GET?
F will get all the cars.
NOTE: Observe that under Art. 793, had the original will been valid, and no
republication was made, F could get 2 cars, even if by the time of X’s death,
the latter already had 5 cars, unless, there was an express contrary provision in
the will.
WHEN X MADE A NOTARIAL WILL IN 1999, THERE WERE ONLY
2 WITNESSES (IT IS CLEAR THAT THE WILL IS VALID OR
INVALID). IN 2001, SHE MODIFIED THE 1999 WILL BY A
CODICIL. SHE DIED IN 2002. CAN THE WILL BE ALLOWED?
NO. There was no proof that the whole will was reproduced, correcting the
void provision of the 1999 will. The latter instrument was merely a codicil.
Art. 835 applies, not Article 836.
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 SUCCESSION
Republication (implied) by mere reference to a previous will, as contemplated
by Art. 836, is not sufficient because the will was void as to its form.
Therefore, republication by reproduction or re-execution (Art. 835) of the
dispositions contained in the previous will must be made.
X MADE A NOTARIAL WILL IN 1995. HE MADE IT WHEN HE WAS
16 YEARS OLD (IT IS CLEAR THAT THE WILL IS INVALID). IN
2001, HE EXECUTED A CODICIL MODIFYING HIS WILL WHICH
HE MADE IN 1995. SHE DIED IN 2002. MAY THE WILL BE
ALLOWED?
YES. There was proof that the codicil intends to cure the intrinsic defect. The
reason is that, the codicil was used to refer to the 1995 will. The intrinsic
defect in the 1995 will was the fact that X was only 16 when he made the will.
Art. 836 applies.
NOTE: Do not confuse the 2 immediately preceding problems with each
other. The former problem contemplates a situation where the will is void as
to its form because there were only 2 attesting witnesses and therefore, Art.
835 applies.
The latter problem contemplates a situation where the will is invalid because
the testator (only 16) lacks testamentary capacity, thus, Art. 836 applies. It is
void because the defect (lack of testamentary capacity) is not a defect in form.
Take note that a will not void as to its form can be cured by executing a
codicil referring to a previous will. Art. 836 applies.
The query therefore is, “how will we know if the will is void as to its form
(and therefore Art. 835 applies); or the will is void as to its form (and
therefore Art. 836 applies)?
PARAS: Art. 835 refers to such things or defects covered by Art. 805 like
defects in the number of witnesses, lack of or fatal defects in the attestation,
lack of acknowledgement, etc. Therefore, if these defects are present, Art. 835
applies.
On the other hand, it is submitted that Art. 836 will apply if the will was
invalid due to:
a. Fraud or force
b. Undue influence
c. Testator was under 18 years old
d. Testator was insane
In this case, the will may be republished by mere reference in a codicil.
X REVOKED HIS WILL BY CUTTING OUT HIS SIGNATURE IN
THE WILL, WITH ANIMO REVOCANDI. LATER, HE CHANGED HIS
MIND AND PASTED BACK HIS SIGNATURE IN ITS PREVIOUS
POSITION. DOES THE REVOCAATION REMAIN OR HAS THERE
BEEN A REPUBLICATION?
The will remains REVOKED. The attempted republication has not complied
with the legal requirements for republication.
EFFECTS OF REPUBLICATION BY VIRTUE OF A CODICIL
1. The will revives the previous will.
2. The old will is republished as of the date of the codicil, and makes
it speak, as it were, from the new and the later date.
3. A will republished by a codicil is governed by a statue and enacted
subsequent to the execution of the will, but which was operative
when the codicil was executed.
NOTE: A duly executed codicil operates as a republication of the original and
makes it speak from the new date, in so far as, it is not altered or revoked by
the codicil, although, such codicil is not physically annexed to the will, and
although the will is not in the presence of the testator at the time executing the
codicil to which such codicil refers. If a codicil revokes some portions of the
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will, it republishes the will as of the date of the codicil, with respect to all the
parts not revoked.
PRINCIPLE OF INSTANTER – revocatory clause of the second will takes
effect immediately.
NOTE:
1. EXPRESS REVOCATION
Where the second will expressly revokes the first will; the first will
is not revived by the revocation of the second will, unless, such
revival is provided in another will or codicil.
BASIS: This is based on the theory that the revoking clause in the
second will is not testamentary in character, but operates to revoke
the first will instant upon the execution of the second will
containing the revocatory clause.
Hence, the revocation of the second will does not revive the first
will, which has already become a nullity.
2. IMPLIED REVOCATION
Where there is merely an inconsistency between the 2 wills, but
there is no revoking clause; it has been held in common law, that
upon the destruction of the second will, the first was automatically
revived, regardless of the intention of the testator, provided, the
first will has been preserved undestroyed and uncancelled.
BASIS: It is based on the ground that while the inconsistent
provisions of the second will, clearly manifest an intention on the
part of the testator to revoke the prior will, yet this intent, purely
testamentary in character, can have no effect until the death of the
testator, and, if the instrument containing it is destroyed before the
testator’s death, this recovery intent is, for legal purposes, as
though it had never been and the first will, being cancelled, takes
effect.
EXAMPLES OF REVIVAL
1. While omission of a compulsory heir in the institution of heirs
annuls the institution, still if he omitted heir dies ahead of the
testator, the institution is revived, without prejudiced to the right of
representation
2. If after the making of the will, the testator makes a will impliedly
revoking the first, the revocation of the second will revives the first
will (Implication from Art. 837).
X MADE 3 WILLS. WILL NO. 2 EXPRESSLY REVOKED WILL 1.
WILL NO. 3 REVOKED WILL NO. 2. IS WILL NO. 1 REVIVED?
NO. By express provision of Art. 837. The rule is based on the principle that
the revocatory clause of the second will takes effect immediately or at the
instant the revoking will is made.
This is the principle of instanter. Thus, we say, the clause revoked the first
will that contains said clause, In other words, the theory is that death does not
have to come before giving effect to a revocatory clause. Stated otherwise,
while a will is a disposition mortis causa, an express revocation takes effect
inter vivos.
X MADE A WILL IN 1990 AND IN 1995 WITH INCONSISTENT
PROVISIONS, AND THEREFORE, THE 1995 WILL IMPLIEDLY
REVOKED THE 1990 WILL. IN 2000, X MADE A WILL REVOKING
THE 1995 WILL. IS THE 1990 WILL REVIVED?
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 SUCCESSION
YES. This is clear from Art. 837. Since the Article uses the word “expressly”,
it follows, that in case of an implied revocation by the second will, an
automatic revival of the first occurs.
NOTE: Apparently, the reason is the fact that an implied revocation is
ambulatory (these provisions do not revoke the other provisions instantly.
They take effect only after death), the inconsistency being truly and actually
apparent only mortis causa, when the properties are distributed.
DOES IMPLIED REVOCATION TAKE EFFECT DURING THE
LIFETIME OF THE TESTATOR?
NO. The revoking clause are testamentary in character. They merely provide
inconsistency between the two wills, but they do not expressly revoke the
prior will.
SUPPOSE THAT X MADE A WILL IN 1985 AND IN 1990, WITH
INCONSISTENT PROVISIONS. IN 1995, X MADE A WILL
REVOKING THE 1990 WILL. WHAT IS THE EFFECT OF THE
REVOCATION?
The 1985 will is revived. The principle of instanter does not apply because the
1990 will only impliedly revoked the 1985 will.
NOTE: In an implied revocations, the first will is not revoked by the second
will because the testamentary dispositions of the latter do not take effect
immediately. They only take effect after the death of the testator. So, if the
second will was expressly revoked by the third will, the first will governs, for
there is no more inconsistency.
X MADE WILL NO. 1, THEN HE EXECUTED WILL NO. 2
EXPRESSLY REVOKING WILL NO. 1. THEREAFTER, MARTIN
DESTROYED WILL NO. 2 AND ORALLY EXPRESSED HIS DESIRE
THAT THE FIRST WILL BE FOLLOWED. SHOULD THIS BE
ALLOWED?
NO. . The oral expression of the desire to revive cannot be given effect. He
should have made a new will or codicil (Art. 837).
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ARTICLE 838-839
ALLOWANCE AND DISALOWWANCE OF WILLS
Article 838
No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance of wills after the testator's a
death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be
necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the
lifetime of the testator or after his death, shall be conclusive as to its due
execution.
CONCEPT OF PROBATE OF WILLS – special proceeding for
establishing the validity of a will.
NOTE: Probate may also be identifies as a special proceeding for the purpose
of proving that the instrument offered to probate is:
1. The last will and testament of the testator
2. That it has been executed in accordance with the formalities
prescribed by law
3. That the testator had the necessary capacity at the time of the
execution of the will
WHEN MAY THE PROBATE OF THE WILL BE COMMENCED?
The probate of a will may be commenced either during the lifetime of the
testator or after his death. In the first, it is the testator himself who files the
petition for the probate of the will. In the second, it is any person interested in
the estate. Thus, they may be classified as, probate ante mortem and probate
post mortem.
NATURE OF A PROBATE PROCEEDING
It is an action in rem. Thus, the decree of probate is held binding on all
persons in interest, whether they appear to consent the probate or not.
SUPPOSE THE TESTATOR INSTITUTED ONLY HEIR FOR HIS
WHOLE ESRARE. SHOULD THE WILL STILL BE PROBATED?
YES. There must still be a judicial order of adjudication
SUPPOSE THAT IN HIS LAST WILL, X DECLARED” “I WILL GIVE
MY HOUSE AND LOT IN MAKATI TO A, AND MY HOUSE AND
LOT IN QC TO B” AND AFTER X’S DEATH, A AND B AGREED TO
FOLLOW HIS WILL TO THE LETTER. SHOULD THE WILL BE
PROBATED?
YES. No judicial approval can be given to an extrajudicial partition based on a
will, unless, the will is first probated,
NOTE: Under our legal system, the probate of a will is mandatory.
IS THE PROBATE MANDATORY?
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 SUCCESSION
YES.
WHY?
1. The law expressly requires it (Art. 838)
2. Probate is a proceeding in rem and therefore, it cannot be
dispensed with or substituted by any other proceeding, judicial or
extra-judicial without offending public policy.
3. The right of a person to dispose of his property by virtue of a will
may be rendered nugatory.
4. The absent legatees and devisees or such of them, as may have no
knowledge of the will could be cheated of their inheritance,
through the collusion of some of the heirs, who might agree to the
partition of the estate among themselves to the exclusion of others.
PERIOD TO FILE A PETITION FOR PROBATE
20 days under the Rules of Court.
NOTE:
1. RULE 75 SEC. 2 – If the will has been placed in custody of
another person, the latter must, within 20 days, after he knows of
the death of the testator, deliver the will to the court having
jurisdiction, or to the executor named in the will.
2. RULE 75 SEC. 3 – A person named as executor in a will shall,
within twenty (20) days after he knows of the death of the testator,
or within twenty (20) days after knows that he is named executor if
he obtained such knowledge after the death of the testator, present
such will to the court having jurisdiction, unless the will has
reached the court in any other manner, and shall, within such
period, signify to the court in writing his acceptance of the trust or
his refusal to accept it.
AFTER THE AFOREMENTIONED PERIOD, CAN THE WILL NO
LONGER BE PROBATED?
YES. The will may still be probated, as probate proceedings are
imprescriptible.
GUEVARRA v. GUEVARRA, 98 PHIL 259
The applicability of the statute of limitations to probate proceedings must
be rejected on the ground, that such proceedings are not established in the
interest of the surviving heirs, but, primarily for the protection of the
testator’s expressed wished. That is, it seeks to uphold the intent of the
testator and his right of ownership.
EFFECT OF ALLOWANCE OF THE WILL
A judgment or decree, which admits the will to probate, is conclusive upon the
validity of the will. It is not subject to collateral attack, but stands as final, it is
not modified, set aside, or revoked by a direct proceedings or reversed on
appeal to a higher court.
MERCADO v. SANTOS, 66 PHIL 215
FACTS: The petitioner filed a petition for the probate of the will of his
deceased wife. The will was duly probated. 16 months after the probate of
the will, the petitioner was prosecuted for falsification or forgery of the
will, which was probated.
ISSUE: May a crime of forgery lie against a person based on will which
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LYSACLOLO
has been duly probated?
HELD: NO. The probate of the will is considered as conclusive as to its
due execution and validity, and is also conclusive that the testator was of
sound mind and disposing mind at the time when he executed the will and
was not acting under duress, menace, fraud or undue influence, and that
the will is genuine and not a forgery.
The will in question having been probated by a competent court, the law
will not admit any proof to overthrow the legal presumption, that it is
genuine and not a forgery. Criminal action will not lie against a forger of a
will, which has been duly authorized to probate.
WHEM MAY THE ALLOWANCE OF A WILL BE SET ASIDE
Since a proceeding for the probate of a will is essentially one in rem, a
judgment allowing a will shall be conclusive as to its due execution.
Consequently, no question as to the validity of the will could thereafter be
raised, except:
1. By means of an appeal.
2. By means of a petition for relief from the judgment by reason of
fraud, accident, mistake or excusable negligence.
3. By means of a petition to set aside the judgment by reason of lack
of jurisdiction or lack of procedural process.
4. By means of an action to annul judgment by reason of extrinsic or
collateral fraud.
ANY PETITION MUST BE DONE IN REGLEMENTARY PERIOD
1. Within 60 days after the petitioner learns the judgment or order to
be set aside.
2. Within 6 months after such order or judgment was entered.
IS THE PROBATE OF THE WILL BY FINAL JUDGMENT PRIOR TO
THAT OF THE CODICIL THEREOF, A BAR TO PROBATE THE
CODICIL?
NO. This question was resolved in the negative by the Supreme Court in the
case of Macam vs Gatmaitan.
IS IT NECESSARY THAT THE WILL AND THE CODICIL BE
PROBATED SIMULTANEOUSLY?
NO. The codicil may be concealed by an interested party and it may not be
discovered until after the will has already been allowed.
They may be presented and probated one after the other, since the purpose of
the probate proceedings is merely to determine whether or not the will and the
codicil meet all the statutory requirements for their validity, leaving the
validity of their provisions for further consideration.
Failure to oppose the will does not prevent one from opposing the codicil.
QUESTIONS DETERMINABLE BY THE PROBATE COURT
DURING THE PROBATE PROPER
1. IDENTITY – whether or not the instrument, which is offered for
probate, is the last will and testament of the decedent.
2. DUE EXECUTION – whether or not the will has been executed in
accordance with the formalities prescribed by law.
3. CAPACITY – whether the testator had testamentary capacity at the
time of the execution of the will.
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NOTE: The aforementioned refer to the intrinsic validity of the will. THE COURT PASS UPON THE VALIDITY OF THE
Consequently, the probate court cannot inquire into the intrinsic validity of the APPOINTMENT?
testamentary dispositions.
NO. For this does not concern the extrinsic validity of the will.
CAN THE PROBATE COURT, DURING THE PROBATE PROPERLY
INQUIRE INTO THE INTRINSIC VALIDITY OF THE WILL? X MADE A WILL INSTITUTING A AS UNIVERSAL HEIR. HE GAVE
B 1OOO. HE GAVE C 1 HECTARE LOT. BUT HE DID NOT GIVE
GR: The aforementioned refer to the intrinsic validity of the will. ANYTHING TO HIS SON S. CAN THE COURT INQUIRE INTO THE
Consequently, the probate court cannot inquire into the intrinsic validity of the INTRINSIC VALIDITY OF TESTAMENTARY PROVISIONS OF X’S
testamentary dispositions. WILL?

ETR: If it is to prevent multiplicity of suits. NO. The court cannot inquire into the intrinsic validity of the testamentary
provisions. Mere moderate entreaties on the part of the testator, or the fact that
NUGUID v. NUGUID, 17 SCRA 449 the heirs are omitted does not result into an undue influence that the will
justify an inquiry into the intrinsic validity of the will.
When practical considerations demand that the intrinsic validity of the will
be passed upon, before it is probate, the Court should meet that issue. REVOCATION DISALLOWANCE
Voluntary act of the testator Given by judicial order
In the case at bar, if the case were to be remanded for probate of the will, With or without cause Must always be for a legal cause
nothing will be gained. On the contrary, this litigation would be protracted. Maybe partial or total GR: Always total
And for aught that appears in the record, in the event of probate or if the
court rejects the will, probability exists that the case will come up once ETR: When the ground of fraud or
before us on the same issue of the intrinsic validity or nullity of the will. undue influence for example,
Result: waste of time, effort, expense, plus added anxiety. affects only certain portions of the
will
DO YOU THINK THE COURT WOULD HAVE RULED OTHERWISE,
IF BESIDES THE INSTITUTION OF AN HEIR, THERE WAS ALSO A HOLOGRAPHIC WILL WAS DESTROYED WITHOUT
LEGATEES AND DEVISEES? AUTHORITY. CAN IT BE PROBATED UNDER ART. 839?

YES. If such is the case, then it will not be a futile exercise to remand the case GR: NO
for probate of the will, since, there would be more than one provision, which
shall be decided upon by the court. ETR:
1. If there is a photocopy/ xerox of the will.
NEPOMUCENO v. CA, 139 SCRA 207 2. Testimony of the testator.

The court ruled that, “the court can inquire as to the intrinsic validity of the WHAT IF THE WILL IS NOTARIAL WILL? CAN IT BE PROBATED
will” because there was an express statement that the beneficiary was a UNDER ART. 839, IF IT WAS DESTROYED OR LOST?
mistress.
YES. There are solemnities designed to prove the will, whenever it is lost or
Under the law it is illegal to give anything to a mistress, for that is a cause destroyed, such as, witnesses, notary public and parole evidence.
for disqualification in donations.
REQUISITES BEFORE A WILL CAN BE ALLOWED IF IT WAS
The court held that the institution of the mistress is void. However, the will DESTROYED OR LOST
remains valid.
1. Contents must be proven
TWO KINDS OF PROBATE PROCEEDINGS 2. Due execution must be proven
1. ANTE MORTEM – that which is had during the lifetime of the 3. Unauthorized destruction must be proven
testator.

2. POST MORTEM – that which is had after the death of the testator.
Article 839
The will shall be disallowed in any of the following cases:
IF YOU ARE THE TESTATOR, WHICH WOULD YOU PREFER?
ANTE MORTEM OR POST MORTEM? 1. If the formalities required by law have not been complied with;

Ante Mortem 2. If the testator was insane, or otherwise mentally incapable of

making a will, at the time of its execution;
WHY?
1. It is easier for the courts to determine the mental condition of a 3. If it was executed through force or under duress, or the influence
testator during his lifetime, than after his death. of fear, or threats;

2. Fraud, intimidation and undue influence are minimized. 4. If it was procured by undue and improper pressure and influence,
on the part of the beneficiary or of some other person;
3. If a will does not comply with the requirements provided by law, it
may be corrected at once. 5. If the signature of the testator was procured by fraud;

IN A WILL, HUSBAND APPOINTED HIS WIFE AS GUARDIAN OF

HIS CHILDREN’S PROPERTIES. IN THE PROBATE ORDER, MAY
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 SUCCESSION
6. If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto.
GROUNDS FOR DISALLOWANCE OF A WILL
Art. 839
NOTE: The grounds given in Art. 839 are exclusive. Thus, no other grounds
can serve as to disallow a will.
IF AT THE TIME OF THE EXECUTION OF THE WILL, THE
SIGNATURE WAS PROCURED BY FRAUD AND SUCH FRAUD
CAME NOT FROM THE HEIR, BUT FROM A THIRD PERSON,
SHOULD THE WILL BE ALLOWED?
NO. The law does not make a distinction as to the who the author of the fraud
is.
UNDUE INFLUENCE – there is undue influence when a person takes
advantage of his power over the will of another, depriving the latter of a
reasonable freedom of choice.
NOTE: In Pascual vs CA, the court held that undue influence must:
1. Destroy the free agency of the testator
2. It must be substantial based on evidence
3. It must not be a mere conjecture
4. The burden is on the person asserting the existence of undue
influence
5. Not merely a moderate solicitations to the testator
INTIMIDATION – there is intimidation when the testator is compelled by a
reasonable and well-grounded fear of an imminent and grave evil upon his
person or property, upon the person or property of his spouse, descendants or
ascendants to execute the will.
FRAUD – it is present to invalidate a will, if by misrepresentation and
deception, the testator is lead into making a will, different from what he would
have made, but for misrepresentation and deception.
VIOLENCE – it is present when in order to compel the testator to make a
will, serious and irresistible force is employed.
NOTE: There is no undue influence just because a testator made his mistress,
or his illegitimate child by her, the heir to the entire free portion. Mere
affection, even if illegitimate, is not undue influence, as long as the giving was
voluntary. (Coso vs Fernandez Deza, 42 Phil 596).
Remember however, that although such will may be admitted to probate
because of the absence of undue influence, still under our law, a mistress is
incapacitated to inherit. (See Article 1029 in relation to Art. 739)
BUGNAO v. UBAG, 14 PHIL 163
FACTS: X made a will giving all his property to his widow and leaving
nothing to his brothers and sisters. X had no parents or children. The
brothers and sisters opposed the will on the ground of lack of testamentary
intent as well as undue influence, for it was inherently improbable that a
man would make so unnatural and unreasonable will. It was proved
however, that they had a bitter religious quarrel with the testator, so bitter
that they did not even attend the funeral of the deceased, despite the fact
they were full grown men and women.
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LYSACLOLO
ISSUE: Is there an undue influence?
RULING: NO. As a matter of fact, the quarrel gives the reason for their
being excluded from the inheritance.
CAN A FRAUD AND UNDUE INFLUENCE CO-EXIST?
GR: NO. As a general rule, they cannot co-exist because they are repugnant to
each other. Fraud in the sense of deceit is a ground of contest separate and
distinct from undue influence.
ETR: In the case of Revilla vs CA, 217 SCRA 583), undue influence and
fraud were found to have existed together because they are used on different
parties concurrently.
REVILLA v. CA, 217 SCRA 583
The employment of undue influence by Heracio was not mutually
repugnant to fraud as the petitioner insists, for it was the means employed
by Heracio to defraud his brothers and sisters of their rightful shares.
There was fraud because Don Cayetano was not appraised that the
document he was signing was a second will, revoking the disposition of
property that he made in the first will.
NOTES:
1. To make a case of undue influence, the free agency of the testator
must be shown to have been destroyed; but to establish a ground of
contest based on fraud, the free agency of the testator need not be
shown to have been destroyed.
2. It has been observed that fraud and undue influence are usually the
very opposites of each other.
UNDUE INFLUENCE compels the testator to yield through fear
and make a will, which he would instantly repudiate if free and
unconstrained, while FRAUD although it may poison the mind of
the testator, leads him to use his testamentary power not only
willingly, but often with pleasure and satisfaction, to disinherit
persons who have the strongest natural claims upon his affections.
3. Concisely stated, FRAUD willfully deceived free agency, while
UNDUE INFLUENCE overmasters it.
4. The intent to deceive the decedent is an essential element of fraud,
avoiding a will, in the absence of any element of undue influence.
Moreover, to invalidate a will, it must have affected the testator in
the very act of making his will and at the time the will was
executed.
SUPPOSE THAT MR. X HAD 4 LEGITIMATE CHILDREN. IN HIS
WILL, HE STATED THAT 1, B AND C SHALL BE ENTITLED TO
THEIR LEGITIME AND D, HIS YOUNGEST SON, WILL GET THE
REST OF HIS ESTATE. IT WAS LATER ON PROVED THAT D,
WITH WHOM MR. X HAD BEEN LIVING HAD OFTEN PLEADED
WITH MR. X THAT HE SHOULD BE GIVEN MORE THAN HIS
SIBLINGS. CAN THE WILL BE DISALLOWED ON THE GROUND
OF UNDUE INFLUENCE?
NO. There was only moderate solicitation or persuasion, which the testator
could have simply refused.
IN THE PRECEDING, WHAT ABOUT THE FACT THAT D WOULD
ALWAYS PLEAD TO BE GIVEN MORE?
It is immaterial, for mere inequality in the distribution of the estate does not
by itself prove that there is undue influence.
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NOTE: In fact, diversity of apportionment is the very reason for making a
testament, otherwise, the decedent might as well die intestate.
X EXECUTED A WILL IN FAVOR OF HIS FRIEND F, MAINLY
BECAUSE THE LATTER ASKED THE FORMER TO EXECUTE THE
WILL, THRU A FRIENDLY PERSUASION. LATER, X REPENTED
HAVING EXECUTED SAID WILL, BUT DID NOTHING ABOUT IT.
IS THERE AN UNDUE INFLUENCE?
NO. Apparently, the will can be admitted to probate there being no undue
influence before or after the making of the will. Subsequent repentance is not
one of the grounds given by the law.
X MADE A WILL GIVING EVERYTHING TO HIS YOUNGER
BROTHER A. THEREAFTER, IT WAS ESTABLISHED THAT IT
WAS A HIMSELF, WHO MADE THE WILL. IS THIS FACT, TO
DISALLOW THE WILL FOR UNDUE INFLUENCE?
NO. Refer to the rules.
WHEN IS THERE A MISTAKE?
There is a mistake if the testator did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.
ARTICLE 840-856
INSTITUTION OF HEIRS
Article 840
Institution of heir is an act by virtue of which a testator designates in his will
the person or persons who are to succeed him in his property and
transmissible rights and obligations.
INSITUTION OF HEIRS – It is an act by virtue of which, a testator
designates in his will the person or persons who are to succeed him in his
property and transmissible rights and obligations.
FUNDAMENTAL BASIS OF THE LAW ON TESTAMENTARY
SUCCESSION
The fundamental basis is the doctrine, that the will of the testator, freely
expresses in his last will and testament, is as a general rule, the supreme law
which governs the succession.
REQUISITES FOR A VALID INSTITUTION
1. The will must be extrinsically valid.
2. The institution must be valid intrinsically
I.E. The legitime of the heir must not be impaired; the heir must be
certain or ascertainable; there should be no preterition.
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LYSACLOLO
3. The institution must be effective.
I.E. No predecease, no repudiation by the heir. No incapacity of the
heir.
SOME PRINCIPLES RESPECTING INSTITUTION OF HEIRS:
1. Institution being a voluntary act cannot be allowed to affect the
legitime.
2. In general, the provisions on institution are applicable to devises
and legacies.
3. There can be an instituted heir only in testamentary succession (for
the heir in intestate succession is called legal or intestate heir).
4. A conceived child may be instituted, if the conditions in Art. 40
and 41 are present (Art. 1025).
Article 841
A will shall be valid even though it should not contain an institution of an
heir, or such institution should not comprise the entire estate, and even
though the person so instituted should not accept the inheritance or should be
incapacitated to succeed.
In such cases the testamentary dispositions made in accordance with law
shall be complied with and the remainder of the estate shall pass to the legal
heirs.
EFFECT IF THE WILL DOES NOT CONTAIN AN INSTITUTION OF
HEIR
The rule under Art. 841 is that, the will is still valid although it may not
contain an institution of heir.
NOTE: Refer this to the immediately preceding problem.
The same is true in case of a partial institution or in case of a vacancy in the
inheritance due to repudiation or incapacity. The effect in all of these cases is
that the testamentary dispositions, which are made in accordance with the law,
shall be complied, while the remainder shall pass to the legal heirs in
accordance with the law of intestate succession.
A will, unless otherwise defective is valid even if:
a. There is no institution of heirs.
b. The instituted heir is given only a portion of the estate.
REASON: Mixed succession is allowed. (See Escuinv. Escuin, 11
Phil 839)
c. The heir instituted should repudiate or be incapacitated to inherit.
WOULD IT BE ADVANTAGEOUS IF THERE IS AN INSTITUTION
OF AN HEIR?
YES. It lessens and prevents the effects of intestacy by giving to those persons
who are close to the testator, but cannot inherit legally.
NOTE: The concept of an heir as the continuation of the personality of the
testator has disappeared. An heir is now in the same position as the legatee or
devisee, in the succession. As such, the institution of heirs should be
understood as applicable to the designation of legatees and devisees.
Article 842
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 SUCCESSION
One who has no compulsory heirs may dispose by will of all his estate or any
part of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said
heirs.
IS THE TESTATOR’S FREEDOM OF DISPOSITION ABSOLUTE IN
CHARACTER?
It depends upon whether or not he has compulsory heirs.
WHEN IS THE FREEDOM OF DISPOSITION ABSOLUTE AND
WHEN IS IT NOT?
It is absolute when the testator has no compulsory heirs. Thus, the whole
estate is disposable. He can therefore, dispose of his whole estate or any part
of it in favor of any person, provided that such person has the capacity to
succeed (Pecson vs Coronoel, 45 Phil 216).
The testator’s freedom of disposition is not absolute in character, if he has
compulsory heirs. This is so, because there is always a portion of the testator’s
estate known as the legitime which is reserved by operation of law for the
benefit of certain heirs, who are therefore called compulsory heirs and over
which the testator, as a general rule, can have no testamentary control. Thus,
the testator’s freedom of disposition extends only to the disposable free
portion of his estate.
IS THERE A NECESSITY FOR A JUDICIAL ORDER OF
ADJUDICATION EVEN IF ONLY ONE HEIR IS INSTITUTED?
YES. The order of adjudication is the judicial recognition that in instituting
the heir, the deceased did not contravene the law and that the heir was in no
way disqualified to inherit.
Article 843
The testator shall designate the heir by his name and surname, and when
there are two persons having the same names, he shall indicate some
circumstance by which the instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he
designate him in such manner that there can be no doubt as to who has been
instituted, the institution shall be valid.
Article 844
An error in the name, surname, or circumstances of the heir shall not vitiate
the institution when it is possible, in any other manner, to know with certainty
the person instituted.
If among persons having the same names and surnames, there is a similarity
of circumstances in such a way that, even with the use of the other proof, the
person instituted cannot be identified, none of them shall be an heir.
NOTE: Art. 843 is not mandatory. The designation may be made in any form,
so as long as, there will be no doubt as to the identity of the heir or heirs
instituted.
IS THE FIRST NAME AND THE LAST NAME NEEDED IN THE
INSTITUTION OF THE HEIR?
Generally speaking, YES. However, the first name or the last name may be
omitted as long as they are determinable by other circumstances.
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LYSACLOLO
SUPPOSE X STATED IN HIS WILL, “I HEREBY INSTITUTE AS
HEIR TO THE FREE PORTION OF MY ESTATE THE INCUMBENT
RECTOR OF SBC AT THE TIME OF MY DEATH.” IS THE
INSTITUTION VALID?
YES. The heir can be determined with certainty.
TESTATOR SAID, “I HEREBY GIVE PHP 3M TO SOME ARTISTS”.
IS THE INSITUTION VALID?
It depends.
YES. If intrinsic and extrinsic evidence can prove which artists the testator
were referring to.
NO. If intrinsic and extrinsic evidence cannot prove which artists the testator
were referring to. In this case, no one will inherit and intestate succession shall
apply.
EFFECT IF THERE IS DOUBT AS TO THE INSTITUTION OF THE
HEIR
Nobody will inherit and intestate succession shall apply.
X EXECUTED A WILL STATING, “TO MY FRIEND, RONALD,
WHO IS TAKING UP LAW IN SBC”. IT TURNED OUT THAT
THERE ARE 2 RONALDS TAKING UP LAW STUDIES IN SBC AND
BOTH FRIENDS OF X. WHO WILL INHERIT?
The one which the intrinsic or extrinsic evidence will refer.
IN THE PRECEDING, WHY NOT GIVE EACH OTHER ½ OF THE
INHERITANCE?
This is not possible because only one was intended by the testator to inherit.
To divide the inheritance would be to frustrate to the testator’s intention.
Moreover, we would be giving something to a person which the testator
intended to give nothing.
NOTE: The provisions of Art. 843 and 844 should be applied in relation to
provision of Art. 789. From these provisions, it is clear that the proper test in
order to determine the validity of an institution of her is the possibility of
finally ascertaining the identity of the instituted heir, either by extrinsic or
intrinsic evidence. This test is specially applicable on the following cases:
1. If the name and surname of the instituted heir has been omitted by
the testator.
2. If there has been an error with respect to the name, surname or
circumstances of the instituted heir.
3. If the name, surname and circumstances of the instituted heir are
the same as those of other persons.
4. If an unknown or uncertain person has been instituted.
Article 845
Every disposition in favor of an unknown person shall be void, unless by some
event or circumstance his identity becomes certain. However, a disposition in
favor of a definite class or group of persons shall be valid.
PERSON ONCIERA (UNKNOWN PERSON) – ) is one who is not
determined or individualized and therefore, cannot be identified.
NOTE: Under Art. 845 a disposition in favor of such person shall be void
unless by some event or circumstance his identity becomes certain.
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X STATED IN HIS WILL, “I WILL GIVE PHP 100 TO THE PERSON Therefore, the legitime must be first removed and what remains will be
WHO WILL GRADUATE VALEDICTORIAN OF SBC LAW, AFTER divided equally.
MY DEATH.” IS THE PROVISION VALID?
Hence, the distribution will be as follows:
YES. It refers to an unknown person who can be determined by an event or
circumstance. In this case, the person is already existing but not yet A = Php 60,000 as compulsory heir
determined. = Php 20,000 as voluntary heir
B = Php 20,000 as voluntary heir
BUT 3 MONTHS BEFORE THE DEATH OF X, SBC WAS TOTALLY C = Php 20,000 as voluntary heir
DESTROYED BY AN EARTHQUAKE. IS THE PROVISION STILL _______________
VALID? Php 120,000

NO. The unknown person can no longer be determined.
NOTE: It is clear that before the disposition can be considered valid, it is
indispensable that the identity of the beneficiary can be ascertained, either by
a past, present or future event or circumstance. It must, however, be noted that
this requisite is predicated on the fact that the beneficiary must be in existence
at the time of the testator’s death. Otherwise, even if it would be possible to
determine his identity by some event or circumstance, the disposition would
still be ineffective on the ground of absolute incapacity.
Dispositions in favor of a definite class or group of persons are of course
valid, although the particular persons comprising the specified class or group
may be unknown. The second sentence of Art. 845, which recognizes the
validity of such dispositions, is contemplated by provisions of Art. 786 and
Art. 1030 of the Civil Code.
NOTE: Must be understood as referring to heirs who are of the same class or
juridical condition and, to the portion of the inheritance of which the testator
can freely dispose.
Article 847
When the testator institutes some heirs individually and others collectively as
when he says, "I designate as my heirs A and B, and the children of C," those
collectively designated shall be considered as individually instituted, unless it
clearly appears that the intention of the testator was otherwise.
TESTATOR SAID IN HIS WILL, “I HEREBY GIVE MY ENTIRE
ESTATE TO A AND B AND THE CHILDREN OF C (D AND E). THE
NET VALUE OF THE ESTATE IS PHP 120,000. HOW MUCH IS
EACH ENTITLED?

CASES THAT WILL INVALIDATE A PROVISION IN FAVOR OF AN A = Php 30,000

UNKNOWN PERSON, BUT DETERMINABLE BY AN EVENT OR B = Php 30,000
CICUMSTANCES D = Php 30,000
E = Php 30,000
1. Designation by a third person _______________
2. Non-existing beneficiary Php 120, 000
3. Incapacity or inherit in the part of the beneficiary

Article 846
Heirs instituted without designation of shares shall inherit in equal parts.
EFFECT IF SEVERAL HEIRS A RE INSTITUTED AS HEIRS
WITHOUT DESIGNATION OF SHARES
They shall inherit equal parts.
NOTE: The rule under Art. 846 should not be interpreted in an absolute
manner. It should be limited only in cases where all of the heirs are of the
same class or juridical condition. Where there are compulsory heirs among the
heirs instituted, the rule should be applied only to the disposable free portion.
SUPPOSE THAT IT IS STATED IN X’S WILL, “I GIVE A AND B AND
C MY ENTIRE ESTATE AS MY HEIRS”. THE NET VALUE OF
SUCH ESTATE IS PHP 120,000. HOW MUCH IS EACH ENTITLED?
A = Php 40,000
B = Php 40,000
C = Php 40,000
_______________
Php 120, 000
IN THE PRECEDING, WOULD IT MAKE ANY DIFFERENCE IF A IS
THE LEGITIMATE SON OF X, WHILE B AND C ARE MERELY HIS
FRIENDS?
YES. Even if the law does not say so it is believed that the rule in Art. 846
cannot be applied absolutely in case one of those instituted is a compulsory
heir, inasmuch as institution in general refers merely to the free portion.
Article 848
If the testator should institute his brothers and sisters, and he has some of full
blood and others of half-blood, the inheritance shall be distributed equally
unless a different intention appears.
Article 849
When the testator calls to the succession a person and his children they are
all deemed to have been instituted simultaneously and not successively.
NOTES:
1. Art. 847 deals on individual and collective institutions. The rule is
in the absence of a more specific designation, the law presumes
that those who are collectively designated shall be considered as
individually instituted in accordance with the presumed will of the
testator.
2. Art. 849, whenever the testator institutes as his heir a certain
person and his children, such institution must be interpreted to
mean, that they are called to succession simultaneously and not
successively. Thus, of the testator institutes A and his 5 children as
his heirs with respect to the disposable free portion of the
inheritance, it is clear that such disposable free portion shall be
divided equally among A and the 5 children. Take note that the
disposition refers to the disposable free portion.
TESTATOR SAID IN HIS WILL, “I HEREBY GIVE MY ENTIRE
ESTATE TO C AND HIS CHILDREN D AND E”. NET ESTATE IS
PHP 120,000. HOW MUCH IS EACH ENTITLED?
C = Php 40,000
D = Php 40,000

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 SUCCESSION

E = Php 40,000 TESTATOR SAID, “I INSTITUTE MY BESTFRIEND, MS. F, AS HEIR

_______________
Php 120,000
RULE: If the shares of some heirs are designated, while those of others are not
those parts designated shall be given to their owners and the balance shall be
divided equally among those whose shares are not designed.
TESTATOR SAID IN HIS WILL, “I HEREBY INSTITUTE A, B, C
AND D AS MY HEIRS. I HEREBY ORDER THAT ½ OF MY ESTATE
WOULD BE GIVEN TO A AND ¼ OF MY ESTATE TO B.” THE NET
VALUE OF THE ESTATE IS PHP 120,000. HOW MUCH IS EACH
ENTITLED?
OF THE ½ FREE PORTION OF MY ESTATE BECAUSE SHE IS A
BRILLIANT SURGEON.” IT TURNED OUT THAT SHE WAS NOT
REALLY A SURGEON BUT AN EMBALMER. IS THE PROVISION
VALID?
YES. From the fact of the case, it is stated that Ms. F is the testator’s best
friend. So, it can be presumed that the testator knows that Ms. F is not a
surgeon but an embalmer. In short, the testator knows the falsity of the cause
when he instituted Ms. F as an heir, yet he instituted Ms. F as an heir (Art.
850).

A = (1/2 of Php 120,000) Php 60,000

B = (1/4 of Php 120,000) Php 30,000
C = Php 15,000
D = Php 15,000 TESTATOR SAID, “I HEREBY INSTITUTE DR. A TO ½ OF MY
_______________ ENTIRE FREE PORTION BECAUSE HE SAVED BY LIFE BY
Php 120,000 OPERATING ON ME.” IT TURNED OUT THAT IT WAS NOT DR. A
WHO OPERATED HIM. IS THIS VALID?
RULE: : If the shares of those whose portions are designated should consume
the entire estate, those whose shares are not designated will inherit nothing. NO. Because it is the fact of saving the testator’s life that the testator instituted
Dr A as an heir. There was a false cause that appeared in the face of the will
TESTATOR SAID IN HIS WILL “I HEREBY INSTITUTE A, B, C AND itself.
D AS MY HEIR. A WOULD RECEIVE ½ OF MY ESTATE, B ¼ AND C
¼. THE VALUE OF MY ESTATE IS PHP 120,000. HOW MUCH EACH TESTATOR SAID, “I GIVE ½ OF MY ESTATE TO DR. A.” HE
IS ENTITLED TO? THOUGHT IT WAS DR. A WHO SAVED HIS LIFE BUT HE DID NOT
STATE THIS IN THE WILL. IS THIS VALID?
A = (1/2 of Php 120,000) Php 60,000
B = (1/4 of Php 120,000) Php 30,000 YES. Because there was no proof of false cause. The reason for the institution
C = (1/4 of Php 120,000) Php 30,000 was not mentioned in the will.
D = Gets nothing -
_______________ NOTE: Before the institution of heirs may be annulled under Art. 850, the
Php 120,000 following requisites must concur:

RULE: Where there is no designation of shares but the testator has provided
that specific things be given to each heir and such things from only a portion
of the estate, the institution must be considered as without the designation of
shares and the heirs will divide the estate equally, but the value of the specific
things assigned to each must be included in the amount that should pertain to
each.
NOTE: Art. 848 provides “if the testator should institute his brothers and
sisters and he has some full blood and others of half-blood, the inheritance
shall be distributed equally unless a different intention appears.”
In case of intestate succession, however, should brothers and sisters of the full
blood survive together with brothers and sisters of the half blood, the former
shall be entitled to a share double than that of the latter (Art. 1006).
Article 850
The statement of a false cause for the institution of an heir shall be considered
as not written, unless it appears from the will that the testator would not have
made such institution if he had known the falsity of such cause.
NOTE: Art. 850 provides, “the statement of a false cause for the institution of
an heir shall be considered as not written, unless it appears from the will that
the testator would not have made such institution if he had known the falsity
of such cause”.
Consequently, if the validity of an institution of heir is attacked on the ground
that it is based on a false cause, it is clear that the test which must be applied
in order to resolve the question, is to determine from the will itself whether or
not the testator would not have made the institution he had known the falsity
of such cause.
1. The cause for the institution of the heir must be stated in the will
2. The cause must be shown to be false
3. It must appear from the face of the will that the testator would not
have made such institution if he had known of the falsity of the
cause
Consequently, where the testator’s will does not state in a specific or
unequivocal manner the case of such institution, the annulment of such
institution cannot be availed of.
Article 851
If the testator has instituted only one heir, and the institution is limited to an
aliquot part of the inheritance, legal succession takes place with respect to the
remainder of the estate.
The same rule applies if the testator has instituted several heirs, each being
limited to an aliquot part, and all the parts do not cover the whole
inheritance.
Article 852
If it was the intention of the testator that the instituted heirs should become
sole heirs to the whole estate, or the whole free portion, as the case may be,
and each of them has been instituted to an aliquot part of the inheritance and
their aliquot parts together do not cover the whole inheritance, or the whole
free portion, each part shall be increased proportionally.

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TESTATOR SAID IN HIS WILL, “I INSTITUTE A AND B AS MY I. A (1/3 of Php 120,000) = Php 40,000
HEIR. A TO ½ OF MY ESTATE AND B ¼ OF MY ESTATE.” WHAT B (1/4 of Php 120,000) = Php 30,000
IS THE EFFECT OF SUCH DISPOSITION? C (1/4 of Php 120,000) = Php 30,000
______________
A will get ½ of the testator’s estate and B will get ¼ of the testator’s estate. Aggregate share of the heirs Php 100,000
Legal succession would operate on the remaining ¼.
II. Net Estate = Php 120,000
IN THE PRECEDING, WOULD IT MAKE ANY DIFFERENCE IF A (minus)
AND B WERE DESIGNATED AS SOLE HEIRS? Aggregate share of the heirs Php 100,000
______________
YES. Here, each of their shares will be increased proportionally as to the Remaining free portion = Php 20,000
remaining free portion.
SECOND STEP
Formula:
Net estate x Share of the heirs
_______________________________
IN THE PRECEDING, SUPPOSE THAT THE NET VALUE OF THE Aggregate share of all the heirs
ESTATE IS PHP 120,000. HOW WOULD YOU DISTRIBUTE THE A = Php 120,000 x Php 40,000
ESTATE? ___________________________
Php 100,000
FIRST STEP
I. Estate A = Php 48,000
A (1/2 of Php 120, 000) = Php 60,000
B (1/4 of Php 120,000) = Php 30,000 B = Php 120,000 x Php 30,000
_______________ ___________________________
Aggregate share of all the heirs Php 90,000 Php 100,000

II. Net Estate = Php 120,000 B = Php 36,000

(minus)
Aggregate share of all the heirs Php 90,000 C = Php 120,000 x Php 30,000
_______________ ___________________________
Remaining free portion = Php 30,000 Php 100,000

NOTE: The remaining free portion of Php 30,000 shall be C = Php 36,000
distributed proportionally to the share of each heirs.
Hence, the final distribution is:
SECOND STEP A = Php 48,000
Formula: B = Php 36,000
Net estate x Share of the heirs C = Php 36,000
_______________________________ ________________
Aggregate share of all the heirs Php 120,000

A = Php 120,000 x Php 60,000 Article 853

___________________________ If each of the instituted heirs has been given an aliquot part of the
Php 90,000 inheritance, and the parts together exceed the whole inheritance, or the whole
free portion, as the case may be, each part shall be reduced proportionally.
A = Php 80,000
TESTATOR STATED IN HIS WILL, “I WILL GIVE A ½ OF MY
B = Php 120,000 x Php 30,000 ESTATE, B ½ AND C ¼”. SUPPOSE THAT THE NET ESTATE IS
___________________________ WORTH PHP 120,000. DISTRIBUTE THE ESTATE.
Php 90,000
FIRST STEP
B = Php 40,000 I. A (1/2 of Php 120,000) = Php 60,000
B (1/2 of Php 120,000) = Php 60,000
Hence, the final distribution is: C (1/4 of Php 120,000) = Php 30,000
______________
A = Php 80,000 Aggregate share of all heirs Php 150,000
B = Php 40,000
________________ II. Net Estate = Php 120,000
Php 120,000 (minus)
Aggregate share of all heirs Php 150,000
X INSTITUTES A TO 1/3, B TO ¼ AND C ¼ WITH THE INTENTION ______________
THAT ALL OF THEM SHALL BECOME SOLE HEIRS OF THE Excess = - Php 30,000
WHOLE ESTATE. THE NET VALUE OF THE ESTATE IS PHP
120,000. HOW WILL YOU DISTRIBUTE?
NOTE: The excess of Php 30,000 shall be deducted
FIRST STEP proportionally from the shares of each heir.

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SECOND STEP 1. Legitimate children and descendants with respect to legitimate

Formula: parents and ascendants.
Net estate x Share of the heirs
_______________________________ 2. Legitimate parents and ascendants with respect to their legitimate
Aggregate share of all the heirs children and descendants.

3. The father or mother of an illegitimate children.

A = Php 120,000 x Php 60,000
Php 150,000

A = Php 48,000 CHARACTER OF OMISSION IN ORDER THAT THERE WILL BE

PRETERITION
B = Php 120,000 x Php 60,000
Php 150,000 The omission of the compulsory heir must be complete and total in character,
so that, he receives nothing from the testator at all. Consequently, if the
B = Php 48,000 testator leaves any property to the heir who is alleged to have been omitted, by
C = Php 120,000 x Php 30,000 any title whatsoever, there can be no preterition. This is true even when he
Php 150,000 leaves to such compulsory heir a share which is less than his legitime. In this
case, Article 906 of the Code applies, the heir can ask for the completion of
C = Php 24,000 his legitime (Amar vs Duncan, 17 SCRA 590).

Hence, the final distribution is: EFFECT IF PRETERITION OCCURS

A = Php 48,000
B = Php 48,000 According to Art. 854, the preterition of a compulsory heir in the direct line,
C = Php 24,000 shall have the effect of annulling the institution of heir but the devises and
_______________ legacies shall be valid, insofar as they are not in officious.
Php 120,000
IN OFFICIOUS – that amount which can be contained within the free
CHART: portion.

Amount received as instituted – Deduction = Amount Actually Received
A: Php 60,000 – Php 12,000 = Php 48,000
B: Php 60,000 – Php 12,000 = Php 48,000
C: Php 30,000 – Php 6,000 = Php 24,000
_______________________________________
Php 150,000 – Php 30,000 = Php 120,000
PRETERITION – it is the omission in testator’s will of one, some or all of
the compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator.
REQUISITES OF PRETERITION
1. The heir omitted must be compulsory heir in the direct line.

2. The omission must be complete and total in character in such a

Article 854
The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of heir; but the devises and
legacies shall be valid insofar as they are not in officious.
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation.
NOTE: Pretirition must not be confused with disinheritance. The latter refers
to the deprivation of a compulsory heir of his legitime, for cause expressly
stated by law. The essential difference between the two, consists in the fact,
that in pretirition, the deprivation of a compulsory heir of his legitime is tacit
or implied while in the disinheritance the deprivation is express.
WHAT MUST BE THE CHARACTER OF THE OMITTED HEIR IN
ORDER THAT THERE WILL BE PRETERITION?
The heir omitted must be a compulsory heir in the direct line.
way that the omitted heir does not and has not received anything at
all from the testator by any title whatsoever.
3. The compulsory heir omitted should survive the testator.
IS THERE PRETERITION WHEN THE OMITTED HEIR IS AN
ADOPTED CHILD?
YES. The adopted child is by legal fiction considered as a compulsory heir in
the direct
Moreover, under the law, the adopted child has the same right as that of a
legitimate child (Family Code and the 1998 Domestic Act).
IS THERE PRETERITION WHEN THE OMITTED HEIR IS THE
SURVIVING SPOUSE?
NO. A spouse although considered a compulsory heir, is not compulsory heir
in the direct line (ascendant/ descendant).

NOTE: Art. 854 does not make any qualification or distinction whatever. WHAT ABOUT A PARENT OF TESTATOR IS HE A MEMBER OF
Thus, it is immaterial whether the heir omitted in the testator’s will is THE DIRECT LINE?
legitimate or illegitimate. Consequently, the preterition of an acknowledged
natural child shall result in the total annulment of the institution of the heir. YES. An ascendant.
(Lajom vs Leuterio, 107 Phil 651)
SUPPOSE THAT AN HEIR OF THE DIRECT LINE DIES AHEAD OF
WHO ARE THOSE CONSIDERED AS COMPULSORY HEIRS IN THE TESTATOR, IS THERE PRETERITION?
THE DIRECT LINE?
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JURADO: NO. There is no preterition. The institution shall be effectual, but it ESTATE, A, B AND HIS FRIEND, F. HE ALSO GAVE A LEGACY OF
is without prejudice to the right of representation when it properly takes place. PHP 30,000. THE VALUE OF THE NET ESTATE IS PHP 120,000.
A. IS THERE PRETERITION?
TOLENTINO: If the compulsory heir who has been preterited dies before the
testator, it is the same as if there had been no preterition. YES. Because C was not mentioned in the will nor was
he given anything.
However, the right of representation should not be lost sight of. Thus, if the
preterited heir has legitimate children and descendants entitled to represent B. WHAT IS THE EFFECT OF PRETERITION ON
him and they have also been left out in the will, the institution of heirs shall be THE INSTITUTION OF HEIRS?
annulled just the same, even if the preterited heir died before the testator.
(Aptly stated, there is preterition in the right of representation because the The institution of F will be annulled.
preterition is determined at the time of death of the testator.)
C. WHAT ABOUT THE LEGACY GIVEN TO G?
This means that preterition must always be determined in relation to the
persons, who are compulsory heirs at the time of the death of the testator and The legacy given to G is effective because it can be
not in relation to those who never became such. contained within the free portion.

NOTE: Jurado and Tolentino’s view may be reconciled. Here, the free portion (1/2 of Php 120,000) Php 60,000.
Hence, the legacy given to G in the amount of Php
There will be no preterition if the omitted compulsory heir, is not survived by 30,000 can be contained therein. (Php 60,000 – Php
his compulsory heirs in the direct line. 30,000 = P30,000 free portion).

But, there will be preterition in the right of representation if the omitted D. HOW WILL YOU DISTRIBUTE THE ESTATE?
compulsory heir is survived by his compulsory heirs in the direct line.
LEGITIME VOLUNTARY SHARE
SUPPOSE THE TESTATOR IN HIS LAST WILL SAID, “I HAVE 2 AMOUNT RECEIVED
CHILDREN, A AND B. I GIVE A ½ OF MY ESTATE.” THERE IS
NOTHING IN THE WILL WHICH EXPRESSLY PRETERITED B. IS A: Php 20,000 + Php 10,000 = Php 30,000
THERE PRETERITION? B: Php 20,000 + Php 10,000 = Php 30,000
C: Php 20,000 + Php 10,000 =Php 30,000
NO. Since, there is still ½ of the estate that is left and such remaining portion G: Php 30,000 = Php 30,000
can be applied to B’s legitime/share. F: Instituted is annulled.
________________________________________________
The omission must be complete and total in character, so that, the omitted Php 60,000 Php 60,000 =Php 120,000
receives nothing from the testator.

IN THE PRECEDING, HOW WILL THE ESTATE BE DISTRIBUTED?
B can ask for the completion of his legitime (Art. 906).
SUPPOSE THAT A WAS DESIGNATED AS THE SOLE HEIR. B WAS
NOT MENTIONED. DURING THE LIFETIME OF THE TESTATOR
HE DONATED TO BA A LAND WORTH PHP 10,000. IS THERE
PRETERITION?
NO. Because B has received something from the testator (the land worth
P10,000.00).
Moreover, a donation inter vivos actually given to a compulsory heir is
considered as an advance on his inheritance.
SUPPOSE THAT T SAID IN HIS WILL, “I HEREBY GIVE MY SON A
1/10 OF MY ESTATE.” NOTHING WAS MENTIONED ABOUT THE
REST OF THE 9/10. IS THERE PRETERITION?
NO. Since, there is still the remaining 9/10 of the T’s estate for the share of
his other compulsory heirs.
SUPPOSE THAT T IN HIS 1985 WILL SAID, “I GIVE MY ENTIRE
ESTATE TO MY SONS A AND B”. T DIED IN 1995, 4 MONTHS
LATER, T’S WIFE GAVE BIRTH TO C. IS THERE A
PRETERITION?
YES. Compulsory heir in the direct line may be living at the time of the
execution of the will or born after the death of the testator.
X HAS 3 LEGITIMATE CHILDREN, A, B AND C. WHEN HE
EXECUTED HIS WILL, X INSTITUTED AS HEIRS TO HIS ENTIRE
EXPLANATION: As per computation, due to the preterition of C, F’s
institution is annulled. Hence, a will get his legitime of Php 20,000 plus his
voluntary share of Php 10,000; B and C will get the same amount as A. G will
get his legacy of Php 30,000.
TESTATOR HAS 3 LEGITIMATE CHILDREN A, B AND C. IN HIS
WILL HE SAID, “I HEREBY GIVE ¼ OF MY ESTATE TO A, 1/10 TO
B AND ½ OF MY ESTATE TO MY FRIEND, F.” SUPPOSE THAT
THE NET ESTATE IS PHP120,000, IS THERE A PRETERITION?
NONE. Since there is still a portion (1/10) of the estate from which the share
of C may be taken from.
Article 855
The share of a child or descendant omitted in a will must first be taken from
the part of the estate not disposed of by the will, if any; if that is not sufficient,
so much as may be necessary must be taken proportionally from the shares of
the other compulsory heirs.
IN THE PRECEDING, HOW SHOULD THE ESTATE BE
DISTRIBUTED?
Under Art. 855, the share of a child or descendant omitted in a will must first
be taken from the part of the estate not disposed of by the will, if any; if that is
not sufficient, so much as may be necessary must be taken proportionally from
the shares of the other compulsory heirs.
TOLENTINO: The law should have stated “the share of the compulsory heir
omitted in a will must be first taken from the part of the estate not disposed of
by the will if any; if that is not sufficient, so much as may be necessary must

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be taken proportionally from the shares of the other heirs given to them by
will. YES. In this case, ownership has been vested upon F at the time of X’s death.
INSTITUTION REDUCTION/ TO BE RECEIVED
INCREASE SUPPOSE S DIES AHEAD. ARE THE HEIRS OF S ENTITLED TO
A Php 30,000 -Php 1,428.57 Php 20,000 (Legitime) + Php ANYTHING?
(-Php 10,000) 8,571.43 (DFP) = Php
28,571.43 YES.
B Php 12,000 +Php 8,000 Php 20,000 (Legitimate)
C - +Php 20,000 Php 20,000 (Legitimate) The rule is different in case of a compulsory heir. In this case, there is a right
F Php 60,000 -Php8,571.43 Php 51,428.57 of representation. However, what is transmitted to the representatives of the
compulsory heir, is his right to the legitime, and not upon the free portion, if
NOTE: Proportional decrease on A’s share is only Php 10,000 because of his he has also been instituted by the testator to the whole or aliquot part of such
legitime. free portion.

PROCEDURE AS TO THE REDUCTION OF THE HEIR’S SHARE NOTES:

1. Thus, the general rule is, an heir who dies before the testator, shall
LEGITIME VOLUNTARY SHARE AMOUNT TO BE transmit no right to his own heirs. A distinction, however, must be
REDUCED made between the case of a voluntary heir and the case of a
compulsory heir.
A: Php 20,000 Php 10,000 / (1/7) 10 = Php 1,428.57
B: Php 20,000 2. The rule is absolute with respect to a voluntary heir.
C: Php 20,000
F: Php 60,000 / (6/7) 10 = Php 8,571.43 REASON: Since the right of representation does not apply to the
––––––––––––––––––––––––––––––––––––––––––––––––––––– heirs of a voluntary heir, it necessarily follow, that when a
Php 60,000 + Php 70,000 = Php 130,000 voluntary heir predeceases the testator or incapacitated, or
(Aggregate Amount) renounces the inheritance he cannot transmit any right to the heirs.
The same is true when a person is designated as a devisee or
- Php 120,000 legatee, with respect to a determinate property. Since, a devise or
(Net Estate) legacy is a charge upon the free portion of the inheritance, it
______________________ necessarily follows, that when the designated devisee or legatee
Php 10,000 dies before the testator, no right whatsoever is transmitted to the
(Amount to be Reduced) heirs of such devisee or legatee.

Formula: 3. It is different in the case of a compulsory heir. It is evident from

Voluntary Share x Amount to be Reduced the provision of the 2nd paragraph of Art. 856. The exception
Aggregate Amount of Voluntary Share referred to is of course the right of representation. It must be noted,
however, that what is transmitted to the representatives of the
compulsory heir is his right to the legitime and not to the free
portion in case he has also been instituted by the testator, to the
A = Php 10,000 x Php 10,000
whole or to an aliquot part of such free portion.
Php 70,000
This is so, because of the principle that in testamentary succession,
A = Php 1,428.57
the right of representation pertains only to the legitime and not to
the free portion.
F = Php60,000 x Php10,000
Php 70,000
EFFECT OF INCAPACITY
F = Php 8,751.43
Incapacity has the same effect as predecease. A voluntary heir, who is
incapacitated to succeed from the testator shall transmit no right whatsoever to
A + F = Php 1,428.57 + Php 8,571.43 = Php 10,000
his own heirs.

A compulsory heir on the other hand may be represented but only with respect
Article 856
to his legitime (Art. 1035). The same is true in case of disinheritance.
A voluntary heir who dies before the testator transmits nothing to his heirs.
EFFECT OF REPUDIATION
A compulsory heir who dies before the testator, a person incapacitated to
The heir who repudiates his inheritance whether he is voluntary or a
succeed, and one who renounces the inheritance, shall transmit no right to his
compulsory heir cannot transmit any aright to his own heirs. As enunciate
own heirs except in cases expressly provided for in this Code.
under Art. 977, heirs who repudiate cannot be represented.
X SAID IN HIS WILL, “I GIVE TO S MY LEGITIMATE SON, HIS
LEGITIME AND I GIVE THE ENTIRE FREE PORTION TO MY
FRIEND, F”. F HAS LEGITIMATE SON, B. F DIED A DAY BEFORE ARTICLE 857-870
X. CAN HE GET ½ OF THE ESTATE? SUBSTITUTION OF HEIRS

NO. A voluntary heir does not transmit any right, if he predecease the testator. Article 857
Substitution is the appointment of another heir so that he may enter into the
IN THE PRECEDING, SUPPOSE THAT F DIED A DAY AFTER X. IS inheritance in default of the heir originally instituted.
B NOW ENTITLED TO ½ OF THE ESTATE?
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1. Fideicommissary substitutions which are not made in an express

Article 858 manner, either by giving them this name, or imposing upon the
Substitution of heirs may be: fiduciary the absolute obligation to deliver the property to a
1. Simple or common; second heir;
2. Brief or compendious;
3. Reciprocal; or 2. Provisions which contain a perpetual prohibition to alienate, and
4. Fideicommissary even a temporary one, beyond the limit fixed in article 863;

Article 859
The testator may designate one or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die before him, or should not wish,
or should be incapacitated to accept the inheritance. A simple substitution,
without a statement of the cases to which it refers, shall comprise the three
mentioned in the preceding paragraph, unless the testator has otherwise
provided.
3. Those which impose upon the heir the charge of paying to various
persons successively, beyond the limit prescribed in article 863, a
certain income or pension;
4. Those which leave to a person the whole part of the hereditary
property in order that he may apply or invest the same according
to secret instructions communicated to him by the testator.

Article 868
Article 860 The nullity of the fideicommissary substitution does not prejudice the validity
Two or more persons may be substituted for one; and one person for two or of the institution of the heirs first designated; the fideicommissary clause shall
more heirs. simply be considered as not written.

Article 861 Article 869

If heirs instituted in unequal shares should be reciprocally substituted, the
substitute shall acquire the share of the heir who dies, renounces, or is
incapacitated, unless it clearly appears that the intention of the testator was
otherwise. If there are more than one substitute, they shall have the same
share in the substitution as in the institution.
A provision whereby the testator leaves to a person the whole or part of the
inheritance, and to another the usufruct, shall be valid. If he gives the
usufruct to various persons, not simultaneously, but successively, the
provisions of Article 863 shall apply.

Article 862
The substitute shall be subject to the same charges and conditions imposed
upon the instituted heir, unless and testator has expressly provided the
contrary, or the charges or conditions are personally applicable only to the
heir instituted.
Article 863
A fideicommissary substitution by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to preserve and to transmit to a
second heir the whole or part of the inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one degree from the heir
originally instituted,
and provided further, that the fiduciary or first heir and the second heir are
living at the time of the death of the testator.
Article 870
The dispositions of the testator declaring all or part of the estate inalienable
for more than twenty years are void.
GENERAL LIMITATION –If the heir for whom a substitute is appointed is
a compulsory heir, the rule is that, the substitution cannot effect the legitimate
of such heir. Since the right to appoint a substitute for the heir instituted is
based on the testator’s freedom of disposition, the same limitation which is
imposed upon such freedom of disposition must also be imposed upon such
freedom to appoint a substitute. This is clear from the provisions of Art. 842,
864, 872 and 904.
IS IT ADVISABLE TO INCLUDE A SUBSTITUTION IN A WILL?
YES.
1. It prevents the effect of the preterition.

Article 864 2. Prevents the falling of property into the wrong hands
A fideicommissary substitution can never burden the legitime.
3. Awards those who are good to the testator, but are not compulsory
heirs.
Article 865
Every fideicommissary substitution must be expressly made in order that it KINDS OF SUBSTITUTION
may be valid.
1. Simple or common (vulgar)
The fiduciary shall be obliged to deliver the inheritance to the second heir, 2. Brief or compendious
without other deductions than those which arise from legitimate expenses, 3. Reciprocal
credits and improvements, save in the case where the testator has provided 4. Fideicomissary (Art. 858)
otherwise.
Article 866 SIMPLE or COMMON – that which takes place when the testator designates
The second heir shall acquire a right to the succession from the time of the one or more persons to substitute the heir or heirs instituted, in case such heir
testator's death, even though he should die before the fiduciary. The right of should:
the second heir shall pass to his heirs.
a. Die before him, or
b. Should not wish to accept the inheritance, or
Article 867 c. Should be incapacitated to accept the inheritance
The following shall not take effect:

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BRIEF – when the testator designates 2 or more persons to substitute for only
1 heir. (NE) (Instituted Amount) (Amount to be Shared)

COMPENDIOUS – when there is only 1 person designated by the testator to

substitute for 2 or more persons. Php 600,000 – Php 450,000 = Php 150,000

RECIPROCAL – when 2 or more persons are not only instituted as heirs, but Formula:
there are also designated mutually as substitutes for each other. Share of Heir x Amount to be Shared
Aggregate Amount of Institution

FIDEICOMISSARY – that which takes place, when the fiduciary or first

heir instituted is entrusted with the obligation to preserve and to transmit to a A = Php 300,000 x Php 150,000
second heir, the whole or part of the inheritance, provided that such Php 450,000
substitution:
A = Php 100,000
a. Does not go beyond 1 degree from the heir originally instituted
B = Php 150,000 x Php 150,000
b. The fiduciary or first heir, and the second heir are living at the time Php 450,000
of the death of the testator.
B = Php 50,000
X SAID IN HIS WILL, “I HEREBY INSTITUTE MY FRIEND A AS
HEIR AND B AS SUBSTITUTE IN CASE A PREDECEASE ME”. A EFFECTS OF SUBSTITUTION
DID NOT DIE, BUT WAS INCAPACITATED. CAN B INHERIT?
The effects once the substitution has taken place are:
NO. It was expressly stated that the substitution shall take place only in case a
predeceases X. 1. The substitute shall take over the share that would have passed to
the instituted heir.
Here, A did not predecease X. He was instead incapacitated.
2. The substitute shall be subject to the same charges or conditions
X SAID IN HIS WILL, “I HEREBY INSTITUTE A AS HEIR AND B AS imposed upon such instituted heir.
SUBSTITUTE.” A REPUDIATED. CAN B INHERIT?
NOTE: The rule provided under number 2 that “the substitute shall be subject
YES. Where the simple substitution is without any statement of the cases to to the same charges or conditions imposed upon such instituted heir” as
which it refers, it shall comprise the three: aforementioned, is subject to the following exceptions:

1. Death of the heir 1. When the testator has expressly provided the contrary.
2. Incapacity 2. When the chargers or conditions are personally applicable only to
3. Repudiation the heir instituted.

Thus, any of the 3 instances may be a cause for substitution.
JURADO: With respect to reciprocal substitutions, the following rules as to
the shares of the substitute:
1. If there are only 2 instituted heirs and they are designated mutually
as substitutes for each other, the substitute shall acquire the entire
share of the heir who dies, renounces or is incapacitated, even if
the shares of both are unequal. Thus, if A is instituted to 2/3 of the
entire inheritance and B is instituted to 1/3, and A dies before the
testator, or is incapacitated to inherit, B will acquire the 2/3 portion
which is rendered vacant as a substitute and the remaining 1/3 as
an instituted heir.
2. If there are 3 or more instituted heirs and they are designated
mutually as substitute for each other, the substitutes shall have the
same share in the substitution as in the institution.
X SAID IN HIS WILL, “I INSTITUTE A TO ½ OF MY ESTATE, B TO
¼ AND C TO ¼. I HEREBY DESIGNATE ALL OF THEM AS
RECIPROCAL SUBSTITUTE OF EACH OTHER.” B PREDECEASED
X. THE VALUE OF THE NET ESTATE IS PHP 600,000. DISTRIBUTE.
Thus, if the testator has imposed upon his nephew, whom he had instituted as
his heir to the entire free portion of his estate, the condition is that he shall get
married to a certain girl and a niece of the testator is substituted for the
nephew, it is evident that the condition is personally applicable only to such
nephew.
WHEN IS THE FIDEICOMISSARY SUBSTITUTION?
It takes place whenever the testator institutes a person as heir, entrusting him
with the obligation to preserve and to transmit to a second heir, the whole or
part of the inheritance.
It exists with the concurrence of the 3 persons:
1. FIDEICOMITENTE – the testator who orders the substitution.
2. FIDUCIARY – the first heir charged with the preservation and the
transmission of the inheritance (heredero fiduciaro).
3. FIDEICOMISSARY – the second heir to whom the inheritance is
transmitted (heredero fideicomissario)

Instituted Amount + Share from Substitution = Amount Received NOTE: A fideicomissary substitution can never burden the legitime. Thus, it
must be taken from the free portion of the estate.
A: Php 300,000 + Php 100,000 = Php 400,000
B: Php 150,000 + Php. 50,000 = Php 200,000 REQUISITES OF A FIDEICOMISSARY SUBSTITUTION
_________________________________________________
Php 400,000 + Php 150,000 = Php 600,000 1. There must be a fiduciary and fideicommissary

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2. Obligation to preserve and transmit on the part of the fiduciary
3. They must be 1 degree apart in relationship
4. Both must be living at the time of the death of the testator
LIMITATION TO A FIDEICOMISSARY SUBSTITUTION
1. The substitution must not go beyond 1 degree from the heir
originally instituted.
2. The fiduciary and the fideicommissary must be living at the time of
the death of the testator.
3. The substitution must not burden the legitimate of compulsory
heirs.
4. The substitution must be made expressly.
WHY MUST BOTH HEIR BE LIVING?
Because of the duality of the inheritance. The rule that both the fiduciary and
the fideicomissary must be living at the time of the death of the testator, is in
conformity with the requirement that there must be a duality of heirs or double
institution of heirs in the substitution.
Since, both the fiduciary and the fideicomissary are true heirs of the testator, it
is essential that in order to be capacitated to inherit, that both of them must be
living at the moment the succession opens.
FROM WHOM DOES THE FIDEICOMISSARY INHERIT? IS IT
FROM THE TESTATOR (FIDEICOMITENTE) OR FROM THE
FIDUCIARY?
It is evident from the provision of Art. 866 that the fideicomissary acquires a
right over the inheritance from the moment of death of the testator. Thus, the
fideicomissary inherits from the testator (fideicominente) and not from the
fiduciary.
HOW MAY A FIDEICOMISSARY SUBSTITUTION BE MADE
EXPRESSLY?
1. By giving it the name of fideicommissary substitution; or
2. By imposing upon the fiduciary the absolute obligation to preserve
and to deliver the property to second heir.
T SAID IN HIS WILL, “I INSTITUTE MY FRIEND F AS FIDUCIARY
HEIR AND S AS FIDEICOMISSARY.” IS THERE A
FIDEICOMMISARY SUBSTITUTION?
YES. As they are designated as such by name.
IN THE PRECEDING, UPON THE DEATH OF T, F WILL GET THE
PROPERTY. WHEN IS F SUPPOSED TO TRANSMIT THE
PROPERTY TO S?
1. If T designates a day for the transmission or delivery by limiting
the period, in which the fiduciary heir may enjoy the property or
inheritance, such designation shall be respected.
2. If he does not fix a period for the transmission or delivery, it is
presumed that he leaves the matter to the discretion of the
fiduciary.
3. If there is a doubt or litigation regarding the time for such
transmission or delivery, it is presumed that it would be made after
the death of such fiduciary.
RIGHTS OF THE FIDUCIARY
He acquires upon the death of the fideicomitente all of the rights of a
usufructuary, until the moment of delivery to the fideicomissary.
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LYSACLOLO
Pending the transmission or delivery, he possesses the beneficial ownership of
the property although the naked ownership is vested in the fideicomissary.
CAN A FIDUCIARY ALIENATE THE PROPERTY?
NO. He has no power of alienation but he may alienate his rights of
usufructuary over the property.
SUPPOSE THE FIDUCIARY HAS CREDITORS, CAN THEY RUN
AFTER THE PROPERTIES SUBJECT TO FIDEICOMISSARY
SUBSTITUTION?
NO. However, the creditors may recover the fruits of the property while the
same is still in the hands of the fiduciary.
T SAID IN HIS WILL, “I DESIGNATE AS MY HEIR MR. RICALDE
AND MR. HORIA AS FIDEICOMISSARY.: IS THERE A
FIDEICOMISSARY RELATIONSHIP?
NO. Mr. Ricalde and Mr. Horia are not related by 1 degree.
ONE DEGREE – There are two (2) views with respect to the meaning of one
degree, but the court construed it as referring generation.
FIRST VIEW: It is limited only to degrees in relationship or it refers to
generation. So, it is only between parents and children.
SECOND VIEW: It refers to transmission of property.
NOTE: In the case Ramirez vs Ramirez, the Supreme Court adopted the 1st
view. The court held, degree must be construed as generation. Hence, the
Code should be construed as that, the second heir must be related to and be
one generation from the first heir.
In the case of Arenas vs Arenas, the substitution would have been void
because the fideicomissary was not 1 degree apart from fiduciary. However,
the Supreme Court deferred to rule on such matter. The court allowed Vicente
to administer the property and left the question as to “one degree” issue for
further consideration.
SUPPOSE THAT A CONDITION WAS IMPOSED THAT
FIDEICOMISSARY CAN DISPOSE OF THE PROPERTY ONLY
AFTER 21 YEARS. IS THE CONDITION VALID?
NO. It is void. Art. 870 provides, “the dispositions of the testator declaring all
or part of the estate inalienable for more than 20 years are void.
IN THE PRECEDING, WHY IS THERE SUCH AN IMPOSITION?
1. To give more impetus to the socialization of the ownership of
property.
2. To prevent the perpetuation of large holdings which give rise to
agrarian trouble.
PROVISIONS WHICH SHALL NOT EFFECT – Art. 867
IF THERE ARE PROVISIONS IN THE WILL WHICH
PERPETUALLY PROHIBITS ALIENATION, IS IT VALID?
Under Art. 867 (2), if the prohibition is perpetual or even if temporary beyond
the limit set forth in Art. 863 (the limit here refers to 1 degree, the same shall
not take effect.
NAVARRO
 SUCCESSION

Moreover, following Art. 870, if the testator prohibits alienation for a definite
period of time, it cannot exceed 20 years.
IN THE PRECEDING, WHY THE PROHIBITION?
To prevent the entail of property or its withdrawal from circulation.
X INSTITUTED HIS FRIEND F TO THE FREE PORTION OF HIS
ESTATE, WITH A PERPETUAL PROHIBITION TO ALIENATE. IS
THE PROHIBITION VALID?
NAVARRO: Refer to “one degree limitation”.
ART. 867 (3)
X SAID, I GIVE THE FREE PORTION OF MY ESTATE TO MY
FRIEND A, BUT HE SHALL PAY THE 10% OF ITS FRUITS FOR 5
YEARS, TO F’S SON, B FOR 5 YEARS, TO B’S SON C FOR 5 YEARS
AND TO C’S SON D FOR ANOTHER 5 YEARS.
ILLUSTRATION:

NO. Art. 870. X A F 5 years

WILL F INHERIT? B 5years

YES.

IN RELATION TO ARTICLE 876 (2), IS IT POSSIBLE TO VIOLATE C 5 years

ART. 863?
D 5 years
YES. The limitation as to the “1 degree” limitation.
IS IT VALID?
Art. 863 (2) provision which contain:
The obligation to pay is valid only from F to B. When it comes to C, D and A,
1. A perpetual prohibition to alienate it is no longer obliged to pay, considering that C is already 2degrees away
2. Even a temporary one, beyond the limit fixed in Art. 863 from F, while D is 3 degrees away.

X INSTITUTED F TO THE FREE PORTION OF HIS ESTATE. X ART. 869

ALSO PROVIDED THAT THE LAND SHALL BE ALIENABLE FOR A
PERIOD OF 20 YEARS AFTER HIS DEATH. C DIED IN 1980, 10 X SAID, “I GIVE MY PROPERTY IN MANILA TO MY FRIEND A,
YEARS AFTER F DIED LEAVING THE PROPERTY TO HIS SON. BUT F WILL HAVE THE USUFRUCT FOR 10 YEARS, F’S SON B
AFTER 2 YEARS, A DIED LEAVING THE PROPERTY TO HIS SON FOR 2 YEARS.
B. 3 YEARS AFTER, B DIED LEAVING THE PROPERTY TO C.
ILLUSTRATION:
ILLUSTRATION:
X A F 10 years
X F 10 years
B 2 years
A 2 years

C 3 years
B 3 years

C 2 years
CAN F ALIENATE THE PROPERTY? IS THE AFOREMENTIONED VALID?

NO. The usufruct is valid only from F to B. When it comes to C, the usufruct is no
longer valid considering that C is already two (2) degrees away from F.
WHAT ABOUT A?
Therefore, after B’s death, the ownership of the property will now be
NO. A cannot alienate because only 12 years have passed from the death of X. consolidated to A. C will no longer enjoy the usufruct.

WHAT ABOUT B, CAN HE ALIENATE THE PROPERTY?
YES. B can now alienate the property. While it is true that only 12 years have
passed since the death of X (the prohibition to alienate is 20 years), B can now
alienate the property, otherwise the “one degree” limitation (Art. 867 (2) in
relation to Art. 863) will be violated.
Here, B is already two (2) degrees away from the heir (F) originally instituted.
NOTE: Art. 867 (2) in relation to Art. 863, “Provisions which contain a
perpetual prohibition to alienate and even a temporary one, beyond the limit
fixed in Art. 863”. No author has fully explained as to what does the phrase,
“and even a temporary one, beyond the limit fixed in Art. 863” or if it they
have ever explained it, the accuracy of their explanation is doubtful.
NOTE: Art. 869, “A provision whereby the testator leaves to a person the
whole or part of the inheritance and to another the usufruct, shall be valid. If
he gives the usufruct to various persons simultaneously, the provisions of Art.
863 shall apply.”
Hence, in the preceding problem, the “one degree” limitation shall also be
applied
PCI BANK v. ESCOLIN
The provision in question is a simple case of simultaneous institution of
heirs, whereby the institution of Hodges is subject to a partial resolutory
condition, the operative contingency of which is coincidental with that of
the suspensive condition of the institution of his brothers and sisters-in-
law, which manner of institution is not prohibited by law.

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 SUCCESSION
CRISOLOGO v. SINGSON
The testamentary clause under consideration does not call the institution of
fideicomissary substitution nor does it contain a clear statement that
Consolacion enjoys only a usufructuary right, the naked ownership being
vested in the brother of the testatrix.
The will, therefore, establishes a simple or common substitution, the
necessary result of which is that, upon the death of the testatrix,
Consolacion became the owner of an undivided half of the property. She
can therefore, demand partition.
CAN THERE BE SEVERAL TRANSFERS?
YES. It is possible to establish fideicomissary substitution in favor of an
unlimited number of persons, provided that, all of them are one generation
from the first heir and are living at the time of the death of the testator.
Hence, the testator may institute X and provide that the property shall be
preserved and upon X’s death shall be transmitted to P (father of X); and after
2 years, to M (mother of X); after 5 years, to A (son of X); and after another 5
years, to B (daughter of X).
Take note that all of them is one degree removed from X, the first heir.
NOTE: There are as many substitute in fideicomissary substitution, as long as
they are one degree apart in relationship (I.E. father to son, father to daughter
and vice-versa, or mother to son, mother to daughter or vice versa).
X INSTITUTED HIS FRIEND A AS A FIDUCIARY AND B AS
FIDEICOMISSARY. F HAS 2 CHILDREN, B AND C. B ON THE
OTHER HAND, HAS 2 CHILDREN. D AND E. X DIED IN 1985, B
DIED IN 1988, WHILE A DIED IN 1999. D AND E AS AGAINST C
ARE NOW CLAIMING THAT THEY HAVE A SOLE RIGHT TO THE
PROPERTY SUBJECT OF THE FIDEICOMISSARY SUBSITUTION.
WHO WILL INHERIT?
ILLUSTRATION:
X A (Fiduciary)
(Fideicomissary
)B C degree.
D E
D and E. B as fideicomissary substitute, or a second heir, acquired a
right to the subject property upon the death of X in 1985. When B
died in 1988, his right over the subject property passed to his
children D and E. Therefore, D and E are now entitled to the subject
property, to the exclusion of all others.
Art. 866 provides, “The second heir shall acquire a right to the
succession from the time of the testator's death, even though he
should die before the fiduciary. The right of the second heir shall
pass to his heirs.”
IN THE PRECEDING, WHAT ABOUT IF C CLAIMS THAT
THE SUBJECT PROPERTY IS PART OF A’S (HIS FATHER)
ESTATE, THEREFORE HE IS ENTITLED TO HIS
LEGITIME. IS C’S CLAIM TENABLE?
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LYSACLOLO
NO. C cannot claim his right of legitime because the subject property
is not part of A’s estate. A has only a beneficial ownership
(usufructuary) over the property. It is B who has the naked ownership
(legal title). Therefore, only D and E are entitled to it.
SUPPOSE B DIED AHEAD X. WILL D AND E STILL
INHERIT?
NO. In order that the transmission of the rights of the fideicomissary
to his own heirs may take place, it is necessary that he should survive
testator. If he dies before the testator, the substitution is extinguished.
SUPPOSE A PREDECEASED X. CAN B INHERIT FROM X?
Strictly speaking: NO
Liberally speaking: YES. Because ultimately, the project subject of
fideicomissary substitution will go to the fideicomissary.
The fiduciary has only a temporary possession.
Furthermore, the same may now be considered as simple substitution.
T SAID IN HIS WILL, “I WILL GIVE MY PROPERTY, A FARM IN
BULACAN, TO MY FRIEND A AND ITS USUFRUCTUARY TO B
FOR 5 YEARS. AFTER WHICH, C, B’S SON WILL HAVE THE
USUFRUCT FOR 5 YEARS AND ON TO D FOR ANOTHER 5 YEARS.
WHO HOLDS THE NAKED OWNERSHIP OF THE PROPERTY?
A holds the naked ownership of the property.
Under Art. 869, “A provision whereby the testator leaves to a person the
whole or part of the inheritance, and to another the usufruct, shall be valid. If
he gives the usufruct to various persons, not simultaneously, but successively,
the provisions of Article 863 shall apply.”
TOLENTINO: When the testator leaves his property in naked ownership to
one person and in usufruct to another, upon the expiration of the latter’s right
the former acquires such usufruct, thereby consolidating the absolute
ownership himself. But he should be considered as a mere substitute or second
heir of the usufructuary, inasmuch as high right springs from an independent
institution and not merely in subrogation of the usufructuary. There would be
a real substitution however, when the testator calls a third person to succeed
the usufructuary. If more than one person is called successively all of them
must be living at time of the testator’s death and they must not be beyond one
Since the heir instituted to the naked ownership, upon consolidating absolute
title at the expiration of the usufructuary, does not succeed the latter as
substitute, it is clear that he is a first heir. Being so, the testator, may also
provide that after the consolidation of ownership in such heir, he may still be
substituted by others within the limits of Art. 863 (one degree limitation).
CAN D ENJOY THE USUFRUCT?
NO. D is not one degree in relationship from B.
T SAID IN HIS WILL, “I GIVE MY ESTATE TO G WITH HIS
CHILDREN AS SUBSITUTE PROVIDED THAT THEY CANNOT
ALIENATE THE PROPERTY FOR 20 YEARS.” T DIED. AFTER 5
YEARS G DIED. D’S CHILDREN HELD THE PROPERTY FOR 10
YEARS. CAN THEY NOW ALIENATE THE PROPERTY?
NO. Because the prohibition is 20 years from death. They only possessed the
property for 15 years.
The prohibition is valid. Under Art. 870, the prohibition must not exceed 20
years.
NAVARRO
 SUCCESSION

The prohibition against permanent or temporary alienation under Art. 867 (2) Liberally speaking: YES. Ultimately, the proper subject of fideicomissary will
(1 degree limitation) applies only to fideicomissary substitution. go to the fideicomissary. The fiduciary has only a temporary possession.

In the aforementioned case, the applicable provision is Art. 870, which

provides, that the prohibition, must not exceed 20 years. The substitution in
this case is not fideicomissary.

The answer would have been different if G was obliged to preserve and
transmit the property to his children.

VDA. DE ARENAS v. ARENAS

The substitution would have been void because the fideicomissary was not
within one degree away from fiduciary. However, the court deferred the
rule on such matter, because the issue considered was, whether or not the
prohibition to alienate was void. In this case, it was not because there was
no permanent prohibition. It was subject to the nephew’s death or
renunciation.

X INSTITUTED HIS FATHER A AS FIDUCIARY AND B AS

SUBSTITUTE. A HAS 2 SONS, B AND C. B HAS A SON, D. B DIED IN
1989, WHILE X DIED IN 1990. IS THERE A VALID
FIDEICOMISSARY?

ILLUSTRATION:

X (+1990) A (Fiduciary)

(Fideicomissary+ 1989) B C

NO. Because the fideicomissary or the second heir died ahead of the testator.
The law requires that both the fiduciary and the fideicomissary must be living
at the time of the testator’s death.

IN THE PRECEDING, WILL A INHERIT?

YES. Art. 868 provides, “the nullity of the fideicommissary substitution does
not prejudice the validity of the institution of the heirs first designated; the
fideicommissary clause shall simply be considered as not written”.

Furthermore, the same may now be considered as a simple substitution.

NAVARRO ON ARENA’S CASE: Does not the special administration of

Vicente of the property (3 rd group of properties) violate the prohibition of Art.
870?

The SC said NO because:

1. It is subject to Vicente’s death or refusal; and

2. Vicente has a right to alienate the fruits of the properties; while, the
children of Carmelo, who has the naked ownership over the
property, can alienate them.

Distinguish this case with the case of Ramirez with respect to the “one
degree” issue dahil sabi ng court hayaan na muna si Vicente na
magadminister, after that, saka na lang pag-usapan.

WHAT IF IT WAS A WHO DIED AHEAD OF X, WILL B (THE

FIDEICOMISSARY INHERIT? OR IS THERE A VALID
FIDEICOMISSARY SUBSTITUTION?

Strictly speaking: NO.

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