Yap is the way

Name Load Input done if

done

Jao 265-286 Done

Jappy 286-303 done

(Jimenez Case)

Andrew 304-321 (840)

Yap 321-339 (849)

Erica 339-354 Done

Chelly 355-371(854) Done

Lyca 372 (Nuguid)

-384

STARTS at PAGE 83 of this reviewer

https://drive.google.com/drive/folders/1Uh51EdomI4sTFx
HSnPFSbae2DRsCkRyz?usp=sharing -
^Nandito lahat ng resources, hanapin niyo nalang yung
pertinent

FOR CROSS REFERENCE and ADD:

1. ARROWHEAD
*https://drive.google.com/file/d/1sYVo_H6dyjRrt
VdpzUNk9jMDUL0E9g5-/view?usp=sharing

2. baste’s notes last sem (pa-indicate na “baste

notes”)
*https://drive.google.com/drive/folders/1rK3DTH
nMD0-4X8e1SxVkix_-Nj90f1oi?usp=sharing

3. sebastian reviewers.
*https://drive.google.com/file/d/1BRChxrPhdWjE
F9nlGKwngDO0dqXvtDTJ/view?usp=sharing

4. Baste’s book -
*yung mga important comments/observations niya +
short digest nung mga cases: Facts, Issue Ruling

ALWAYS CROSS REFERENCE WITH BOOK para di na

natin need basahin yung book kasi na cross reference na sa
book of DEATH. Follow the flow and headings of the book.

Try to find a good digest or digest your self yung cases para
pogi/maganda ka
 SUCCESSION BASTE WEEK 1
Art. 774 - 780
Article 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the extent of
the value of the inheritance of a person are transmitted
through his death to another or others either by his will or
by operation of law. (n)
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.
Inheritance- the decedent’s properties, as well as rights and
obligations which are not extinguished by his death and which
are transmitted to his heirs. (It is the object)
Succession- a mode of acquisition by virtue of which the
decedent’s property, rights and obligations are transmitted to
his heirs. (It is a mode of acquisition)
ELEMENTS:
1. A Mode of Acquisition
2. Transmission of an Inheritance
3. Object of Succession is the Inheritance
4. Death Triggers Succession
5. It is Governed by Will or by Law
***
A Mode of Acquisition
Art. 712 enumerated the different modes of acquiring
ownership.
OLDTIPS (Occupation, Law, Donation, Tradition,
Intellectual Creation, Prescription, Succession)
Mode of acquisition may be ORIGINAL (no previous owner)
or DERIVATIVE (has previous owner who transmits title to
transferee)
It is a derivative mode of acquisition subject to estate tax.
Ownership of the PRO is automatically transferred to the
heirs from the moment of decedent’s death.
Acquisition of ownership is one thing; it should not be
confused with the right of possession of the things that
constitute the inheritance.
Transmission of Inheritance
Death extinguishes the juridical capacity of a person; as well
as his title to or dominion over the things he owned. From the
moment of death, the heirs automatically become the
absolute owners of the decedent’s property, rights and
obligations.
Transmission of Property
BUTTE V. MANUEL UY & SONS INC,
4 SCRA 526 (1962)
DOCTRINE: The right of legal redemption under Art 1620
NCC is property. Thus, where a decedent dies without having
exercised a right of redemption (and provided it has not
expired), the said right shall be transmitted to his heirs upon
his death. In this event, the right of redemption is part of the
inheritance. However, where the right of redemption was
acquired after the death of the decedent, the same pertains
to the heirs directly in their individual capacities, and not
derivatively from the decedent. Butte makes a clear distinction
as to when the right of redemption is part of the hereditary
estate, and when it is not. Accordingly, Butte clarifies the
issue as to who may exercise the right of redemption
.
Baste Notes: After the death of Jose Ramirez (1/6 share),
another co-owner (Marie Garnier) sold her 1/6 share to
Manuel Uy. But at the time of Jose’s death, his heirs already
inherited his 1/6 share and thus became co-owners of such
share. Among his heirs was Angela Butte who, therefore,
acquired the right of redemption under 1620. The service of
notice of sale made by the lawyer of Manuel Uy to the
administrator of Jose’s estate (BPI) was defective because the
law requires the co-owner to serve such written notice to the
non-selling co-owners. The 30-day redemption period did not
run until the administrator forwarded such notice to Angela.
FACTS:
1. During his lifetime, Jose Ramirez co-owned a
property in Manila, with 5 other persons.
a. In his last will and testament, Jose
bequeathed his estate, which included his
i. 1/6 undivided portion in the said
property, to his children and
grandchildren,
ii. 1/3 of the free portion to petitioner
Angela Butte.
2. Eight years after the death of Jose Ramirez and while
the intestate proceedings were still pending, one of
the co-owners sold her share to respondent Manuel
Uy & Sons for P500,000.
3. After being informed of the said sale, Butte offered
to redeem the 1/6 share sold to respondent.
a. Having been refused, Butte filed an action
for legal redemption.
4. The trial court dismissed plaintiff’s complaint on the
grounds that she had no right to redeem the property
and that, if ever she had any, she exercised the same
beyond the statutory period for legal redemptions
provided by the Civil Code.
ISSUE: WON plaintiff, having been bequeathed 1/3 of the
free portion of the estate of Jose Ramirez, can exercise the
right of legal redemption over the 1/6 share sold by one of the
co-owners
HELD: Yes. As testamentary heir of the estate of J.V.
Ramirez, she and her co-heirs acquired an interest in the
undivided one-sixth (1/6) share owned by her predecessor
(causante) in the Santa Cruz property, from the moment of the
death of the aforesaid co-owner, J.V. Ramirez.
 1. By law, the rights to the succession of a deceased
persons are transmitted to his heirs from the moment
of his death, and the right of succession includes all
property rights and obligations that survive the
decedent.
2. As a consequence of this fundamental rule of
succession, the heirs of Jose V. Ramirez acquired
his undivided share in the Sta. Cruz property from the
moment of his death, and from that instant, they
became co-owners in the aforesaid property, together
with the original surviving co owners of their
decedent (causante).
a. A co-owner of an undivided share is
necessarily a co-owner of the whole.
3. Wherefore, any one of the Ramirez heirs, as such
co-owner, became entitled to exercise the right of
legal redemption (retracto de comuneros) as soon as
another co-owner had sold her undivided share to a
stranger.
4. The presence of the judicial administrator is of no
moment since the rights of the administrator of
possession and administration of the real and
personal estate not include the right of legal
redemption of the undivided share sold to respondent
because the right to redeem only came into
existence when the sale was perfected 8 years from
the death of Jose Ramirez.
a. [IMPT] The administrator cannot exercise
the right of legal redemption since the land
was sold AFTER the death of Ramirez.
5. [IMPT] The right to redeem therefore pertains to the
heirs and not the estate.
a. [IMPT] The administrator may exercise
the right to redeem only if the right pertains
to the estate, and this can only happen if the
sale of the said portion to Uy was done
BEFORE the death of Ramirez.
6. In this case, notice should not have been sent to BPI,
but to the heirs. Moreover, notice should not have
been sent by Manuel Uy and Sons, Inc since they are
not the “vendors”, but rather they are the vendee
NOTE: If one heir gets 2/3 of the estate and another gets 1/3,
then their respective liabilities for the debt of the deceased is
PRO-RATED. Their liabilities cannot exceed what they
receive.
Transmission of Rights
Inheritance includes the rights that pertain to him which are
not extinguished by his death. 1178 rights acquired by virtue
of an obligation are transmissible except (i) if there is a
stipulation to the contrary, (ii) not transmissible by law, (iii)
purely personal rights. hence they are extinguished by death.
● Example: right to hold public office, right arising
from certain relationships (rights of a usufructuary),
rights arising from civil personality and family
relations.
NATIONAL HOUSING AUTHORITY V. ALMEIDA,
525 SCRA 383 (2007)
FACTS:
1. In 1959, LTA (now NHA) awarded several portions
of land in Laguna to Margarita Herrera.
a. Margarita had 2 children:
i. Beatriz Mercado (mother of private
respondent Ameida)
ii. Francisca Herrera.
b. Beatriz predeceased her mother and left
heirs.
i. Margarita died in 1971.
2. Francisca, the surviving child of the decedent,
executed a deed of Self-Adjudication claiming that
she is the only remaining relative and that she is the
exclusive legal heir of the decedent.
a. The self-adjudication was based on a sworn
statement executed by the decedent
bequeathing the subject property to
Francisca.
b. The said document was signed on both
pages.
3. The surviving heirs of Beatriz filed a case for
annulment of the Deed of Self-Adjudication.
a. The trial court held in favor of the heirs of
Beatriz and declared the deed void.
b. Pending the litigation, Francisca filed an
application with NHA to purchase the same
lots, which was protested by Ameida (heir of
Beatriz).
i. NHA granted the application.
ii. Subsequently, Francisca died.
4. Francisca’s heirs executed an extrajudicial settlement
of her estate which they submitted to NHA.
a. Said transfer of rights was approved by
NHA, who then executed several deeds of
sale in favor of the heirs of Francisca.
5. Almeida (heir of Beatriz) sought the cancellation of
the titles issued in favor of the heirs of Francisca.
a. She invoked 40-year occupation of the
disputed properties and
i. re-raised the fact that Francisca’s
deed of self-adjudication had been
declared void by the trial court.
ISSUE: WON Margarita’s right (contract to sell) is part of the
estate
HELD: Yes. Margarita Herrera had an interest in the
property and that interest should go to her estate upon her
demise so as to be able to properly distribute them later to her
heirs – in accordance with a will or by operation of law.
1. The death of Margarita Herrera does not
extinguish her interest over the property.
2. Margarita Herrera had an existing Contract to Sell
with the NHA as the seller.
a. Upon Margarita Herrera’s demise, this
Contract to Sell was neither nullified nor
revoked.
b. This Contract to Sell was an obligation on
both parties – Margarita Herrera and NHA.
i. Obligations are transmissible.
 3. Margarita Herrera’s obligation to pay became
transmissible at the time of her death either by will or
by operation of law.
a. NHA cannot make another contract to sell to
other parties of a property already initially
paid for by the decedent.
i. Such would be an act contrary to
the law on succession and the law
on sales and obligations.
4. [ITCAB] NHA gave due course to Francisca’s
application without first considering that
Margarita’s death would transfer all her property
rights and obligations to the estate including
whatever interest she has or may have had over the
property, the same should go to her estate
5. When the original buyer died, the NHA should have
considered the estate of the decedent as the next
“person” likely to stand in to fulfill the obligation to
pay the rest of the purchase price.
6. On the issue of the validity of the sworn statement as
a will, The issue is for the probate court to determine,
a. We affirm the Court of Appeals and the
Regional Trial Court which noted that it has
an element of testamentary disposition
where:
i. it devolved and transferred
property;
ii. the effect of which shall transpire
upon the death of the instrument
7. However, CJ Puno also insisted that whatever PRO
which a deceased may leave behind, the same should
go to his or her estate for eventual distribution to the
heirs, either by will or by intestacy.
a. This statement is prone to misinterpretation
because in Art 777, the rights to succession
are transmitted to the heirs from the
moment of the death of the decedent.
b. Therefore, ownership of the inheritance is
automatically and immediately transferred
to the heirs.
c. Any proceeding to settle the estate is in the
nature of an administrative formality in
order to ensure the payment of liabilities,
the proper identification of heirs, and the
correct allocation of shares.
8. The Supreme Court considered the affidavit as a will.
As such, it should comply with the formal requisites
prescribed in Art 804, 805 and 806. With only 2
attesting witnesses and in the absence of an
attestation clause, the affidavit will be denied probate
and he estate of Herrera shall be distributed under the
rules of intestacy.
Verdad v CA
256 SCRA 593 (1996)
Doctrine: Socorro as the daughter-in-law is not an intestate
heir of his husband’s parents. David (husband) survived his
mother’s death. Socorro’s right to the property is not
because she rightfully can claim heirship in Macaria’s
estate, but that she is a legal heir of her husband, part of
whose estate is a share in his mother’s estate.
Baste Notes: A widow who inherited from her deceased
husband a co-owned parcel of land becomes a co-owner of
the said property from the moment of such death. Therefore,
if any other co-owner should dispose his or her share, this
widow has the right of redemption under 1620.
Facts:
1. During Macaria’s life, she contracted 2 marriage:
a. Angel Burdeos - 1st marriage
b. Canuto Rosales - 2nd marriage after Angel’s
Death.
2. Macaria is survived by:
a. First Marriage (With Angel Burdeos):
i. Ramon Burdeos
ii. Her grandchild Estela Lozada (by
her daughter felicidad Burdeos)
b. 2nd marriage with Canuto Rosales:
i. Her children:
1. David Rosales (asawa ni
soccoro)
2. Justo Rosales
3. Romulo Rosales
4. Aurora Rosales
3. Socorro Rosales is the widow of David Rosales who
himself, some time after Macaria’s death, died
intestate without an issue.
4. In an instrument, dated 14 June 1982, the heirs of
Ramon Burdeos, namely, his widow Manuela
Legaspi Burdeos and children Felicidad and Ramon,
Jr., sold to petitioner Zosima Verdad (their interest
on) the disputed lot supposedly for the price of
P55,460.00.
5. In a duly notarized deed of sale, dated 14 November
1982, it would appear, however, that the lot was sold
for only P23,000.00.
a. Petitioner Verdad explained that the
second deed was intended merely to save on
the tax on capital gains.
6. Socorro discovered the sale on 30 March 1987 while
she was at the City Treasurer’s Office.
7. On 31 March 1987, she sought the intervention of the
Lupong Tagapayapa of Barangay 9, Princess Urduja,
for the redemption of the property.
a. She tendered the sum of P23,000.00 to
Zosima.
8. The latter refused to accept the amount for being
much less than the lot’s current value of P80,000.00.
9. RTC -CA: Respondents has rights to redeem
Issue: Can Socorro exercise the right to redeem the property?
Held:
1. Yes. It is true that Socorro, a daughter-in-law (or, for
that matter, a mere relative by affinity), is not an
intestate heir of her parents-in-law;
a. however, Socorro’ s right to the property is
not because she rightfully can claim heirship
in Macaria’s estate but that she is a legal
heir of her husband, David Rosales, part of
 whose estate is a share in his mother’s
inheritance.
2. David Rosales, incontrovertible, survived his
mother’s death.
a. When Macaria died on 08 March 1956 her
estate passed on to her surviving children,
among them David Rosales, who thereupon
became co-owners of the property.
3. When David Rosales himself later died, his own
estate, which included his undivided interest over
the property inherited from Macaria, passed on to his
widow Socorro and her co-heirs pursuant to the law
on succession.
a. Article 995. In the absence of legitimate
descendants and ascendants, and illegitimate
children and their descendants, whether
legitimate or illegitimate, the surviving
spouse shall inherit the entire estate, without
prejudice to the rights of brothers and
sisters, nephews and nieces, should there be
any, under article 1001.
b. Article 1001. Should brothers and sisters or
their children survive with the widow or
widower, the latter shall be entitled to one-
half of the inheritance and the brothers and
sisters or their children to the other half.
4. The right of redemption was timely exercised by the
respondents.
a. No written notice of sales was given by the
Burdeos hers to the co-owners as required
under Art. 1623 of the civil code; hence the
30 day period had yet to commence when
private respondent Rosales sought to
exercise the right of redemption on Mar 31
1987, a days after she discovered the sale
from the treasurer’s office or when the case
was initiated on Oct. 16, 1987 before the
trial court.
Transmission of Obligation
An obligation is a juridical necessity to give, to do or not to
do.
● As a rule, death of the obligor does not extinguish
his contractual obligations.
● Succession transfers to the heirs not only the PR, but
also O;
○ However, the law limits the liability of the
heirs to the value of the inheritance. (bawal
sumobra sa mamanahin)
● Before inheritance could be distributed to the heirs,
certain procedures must be completed such as the
payment of outstanding obligations, etc.
○ During this time, the inheritance should go
to the estate of the decedent
The heirs inherit the obligations of the decedent. The reason is
that whatever payment from the hereditary estate is made to
the creditors of the decedent is ultimately a payment made by
the heirs because the amount of payment diminishes the shares
that the heirs would have otherwise been entitled to.
● The SC interpreted the term obligation to include the
contingent liabilities of the decedent which are not
extinguished by his death.
ESTATE OF HEMADY V. LUZON SURETY,
100 PHIL 388 (1956)
Doctrine: Baste Notes- contingent obligations are included
among the debts that are transferred to the heirs
FACTS:
1. Luzon Surety filed a claim against the estate of the
KH Hemady based on indemnity agreements
(counterbonds) subscribed by distinct principals and
by the deceased as surety (solidary guarantor).
2. As a contingent claim, Luzon Surety prayed for the
allowance of the value of indemnity agreements it
executed.
3. The lower court dismissed respondent’s claim on the
basis that “whatever losses may occur after
Hemady’s death, are not chargeable to his estate,
because upon his death he ceased to be a guarantor.”
ISSUE: What obligations are transmissible upon the death of
the decedent? Are contingent claims chargeable against the
estate?
HELD:
1. Under Art 1311, “Contracts take effect only as
between the parties, their assigns and heirs, except in
the case where the rights and obligations arising from
the contract are not transmissible by their nature, or
stipulation or by provision of law.”
2. While in our successional system the responsibility of
the heirs for the debts of the decedent cannot exceed
the value of the inheritance they receive from him,
the principle remains intact that these heirs succeed
not only to the rights of the deceased but also to
his obligations.
3. Articles 774 and 776 of the new Civil Code expressly
so provide, thereby confirming Art 1311.
a. Article 774. Succession is a mode of
acquisition by virtue of which the property,
rights and obligations to the extent of the
value of the inheritance, of a person are
transmitted through his death to another or
others either by his will or by operation of
law.
b. Article 776. The inheritance includes all the
property, rights and obligations of a person
which are not extinguished by his death.
4. In Mojica v. Hernandez, the SC ruled: "Under the
Civil Code the heirs, by virtue of the rights of
succession are subrogated to all the rights and
obligations of the deceased (Article 661) and cannot
be regarded as third parties with respect to a contract
to which the deceased was a party, touching the estate
of the deceased x x x which comes into their hands by
right of inheritance; they take such property subject
to all the obligations resting thereon in the hands of
him from whom they derive their rights."
5. Art.774 provides that by succession, the PRO of a
deceased person are transmitted through his death to
his heirs either by his will or by operation of law.
6. Hemady holds that the contingent liabilities of the
decedent are part of the obligations transmitted by his
death to his heirs.
7. Accordingly, contingent claims against the estate of
a deceased person arising from the decedent’s
contractual undertakings under various indemnity
agreements executed in favor of various persons and
entities are money claims which may be proved
against his estate and/ or his heirs.
a. These contingent claims may be proved
during settlement proceedings by an
indemnified surety even if in the meantime,
no actual liability of the part of an
indemnified surety has arisen by reason of
actual payment made under suretyship
agreement.
b. Accordingly, Hemady holds that contingent
obligations of a deceased person arising
from his personal guaranty are not
extinguished by his death.
8. Under our law, therefore, the general rule is that a
party’s contractual rights and obligations are
transmissible to the successors. From the Roman
concept of a relation from person to person, the
obligation has evolved into a relation from patrimony
to patrimony, with the persons occupying only a
representative position, barring those rare cases
where the obligation is strictly personal, i.e., is
contracted intuitu personae, in consideration of its
performance by a specific person and by no other.
The transition is marked by the disappearance of the
imprisonment for debt.
9. Of the three exceptions fixed by Article 1311, the
nature of the obligation of the surety or guarantor
does not warrant the conclusion that his peculiar
individual qualities are contemplated as a principal
inducement for the contract.
10. What did the creditor Luzon Surety Co. expect of K.
H. Hemady when it accepted the latter as surety in
the counterbonds?
a. Nothing but the reimbursement of the
moneys that the Luzon Surety Co. might
have to disburse on account of the
obligations of the principal debtors.
b. This reimbursement is a payment of a sum
of money, resulting from an obligation to
give; and to the Luzon Surety Co., it was
indifferent that the reimbursement should be
made by Hemady himself or by some one
else in his behalf, so long as the money was
paid to it.
11. The second exception of Article 1311 is
intransmissibility by stipulation of the parties.
Being exceptional and contrary to the general rule,
this intransmissibility should not be easily implied,
but must be expressly established, or at the very least,
clearly inferable from the provisions of the contract
itself, and the text of the agreements sued upon
nowhere indicate that they are non-transferable.
12. The third exception to the transmissibility of
obligations under Article 1311 exists when they are
"not transmissible by operation of law".
a. The provision makes reference to those
cases where the law expresses that the rights
or obligations are extinguished by death, as
is the case in legal support (Article 300),
parental authority (Article 327), usufruct
(Article 603), contracts for a piece of work
(Article 1726), partnership (Article 1830 and
agency (Article 1919).
b. [Ruling in the case at bar] By contract, the
articles of the Civil Code that regulate
guaranty or suretyship (Articles 2047 to
2084) contain no provision that the guaranty
is extinguished upon the death of the
guarantor or the surety.
Transmission to the heis through the estate
GR: Art. 777 categorically states that the rights to succession
are transmitted from the moment of the death of the decedent.
From the moment of the death of the deceased, his
inheritance is transmitted to his heirs, even though such heirs
may not have been identified yet. However, before the
inheritance could be distributed the heirs, certain procedures
must be completed, such as without limitation, the payment of
outstanding debt of the decedent, the payment of estate tax,
the resolution of issues relating to collation, the final
determination of ownership of contested property.
At no point in time is the inheritance without an owner; at no
point is the estate the owner of the inheritance or any part
thereof.
Nowhere in Art.44 does the law confer juridical capacity on
the estate of a deceased person. Under this provision, the
estate of a deceased is not a juridical entity.
XPN: Under the cases of NHA v. Almeida, Billings and
Limjoco, The estate of a decedent is a juridical person who
possess juridical capacity. (Limjoco vs Intestate Estate of
Fragante)
● Baste notes: NHA v. Almeida ruled that the
transmission of the hereditary estate from the
decedent to the heirs is through the estate – the
inference being that the estate has a separate juridical
personality
Transmissions to the heirs through the Estate
Limjoco v. Intestate Estate of Pedro Fragante
FACTS:
Pedro Fragante, a Filipino citizen at the time of his death,
applied for a certificate of public convenience to install and
maintain an ice plant in San Juan Rizal. His intestate estate is
financially capable of maintaining the proposed service. The
Public Service Commission issued a certificate of public
convenience to Intestate Estate of the deceased, authorizing
said Intestate Estate through its special or Judicial
Administrator, appointed by the proper court of competent
jurisdiction, to maintain and operate the said plant. Petitioner
claims that the granting of certificate applied to the estate is a
contravention of law.
ISSUE: Whether or not the estate of Fragante may be
extended an artificial judicial personality.
RULING:
1. Yes, both the personality and citizenship of Pedro O.
Fragrante must be deemed extended.
2. The term “person” include artificial or juridical
persons, for otherwise these latter would be without
the constitutional guarantee against being deprived
of property without due process of law, or the
immunity from unreasonable searches and seizures.
a. Among these artificial or juridical persons
figure estates of deceased persons.
3. The estate of Pedro O. Fragrante should be
considered an artificial or juridical person for the
purposes of the settlement and distribution of his
estate which, of course, include the exercise during
the judicial administration thereof of those rights and
the fulfillment of those obligations of his which
survived after his death.
a. One of those rights was the one involved in
his pending application before the Public
Service Commission in the instant case,
consisting in the prosecution of said
application to its final conclusion.
Limjoco, Billings and NHA Rulings discussed
1.) Indiana Court recognized two types of persons:
a. Natural
b. Artificial:
1. A collection or succession of natural persons
forming a corporation
2. A collection of property to which the law
attributes the capacity of having rights & duties (only for a
limited extent)
2.) The Indiana court argued that unless the estate of Morgan
was considered a juridical entity, there would be failure of
justice because the forgery was committed after the death of
Morgan hence no one can be prosecuted because there was no
one defrauded by the forgery.
3.) In the case of Billings, the court merely considered the
estate as a juridical person for only a limited purpose.
Art 777 states that the rights to succession are transmitted
from the moment of the death of the decedent.
Art 776 provides that the inheritance includes all the PRO of
a person which are not extinguished by his death.
Therefore, from the moment of the death of the deceased
person, his inheritance is transmitted to his heirs, even though
such heirs may not have been identified yet. At no point in
time is the inheritance without an owner; at no point in time is
the estate, whether as a juridical entity or otherwise, the
owner of the inheritance or any part thereof.
Nowhere in Art. 44 does the law confer juridical capacity on
the estate of a deceased person.
The Object of Succession is the inheritance
(a) Future Property v. Future Inheritance
1. Future property – Anything which a person does
not own at present but which the person may acquire
or proposes to acquire in the future
2. Future Inheritance – cannot be the subject of a
contract. future inheritance is any property or right
not in existence or capable of determination at the
time of the contract, that a person may in the future
acquire by succession.
***
Blas v. Santos
Facts: Simon Blas was married to Marta Cruz which they bore
3 children one of which is Eulalio which left Children one of
which is Maria Gervacio Blas (Plaintiff) and Marta Gervacio
Blas (defendants. Marta Cruz died later, which later on,
Simeon Blas contracted a second marriage with Maxima
santos. No liquidation of the properties of the first marriage
was done.
1 week after, Simeon Blas executed a last will and testament.
In it, Blas gave to Maxima Santos de Blas one half of all her
properties. Maxima santos de blas on the other hand made a
document giving one half of all her inheritance to the Children
of Maximo in the first marriage labelled as Exhibit A. The
lower court held that exhibit A does not give any rights to the
plaintiff and that it is future inheritance
Issue: Whether Document Exhibit A is future inheritance?
-no-
Ruling:
1. The Court held that Exhibit A is not future
inheritance. it is an obligation or promise made by
the maker to transmit one-half of her share in the
conjugal properties acquired with her husband, which
properties are stated or declared to be conjugal
properties in the will of the husband.
2. The conjugal properties were in existence at the
time of the execution of Exhibit “A”. The
properties subject of the contract Exhibit “A” are
well defined properties, existing at the time of the
agreement, which Simeon Blas declares in his
statement as belonging to his wife as her share in
the conjugal partnership.
3. Certainly his wife’s actual share in the conjugal
properties may not be considered as future
inheritance because they were actually in existence at
the time Exhibit “A” was executed.
4. Baste Notes: Future inheritance refers to the PRO
which a person will leave behind when he dies.
a. Future property refers to something yet to
exist, or something yet to be acquired.
b. A widow may cede a portion of her share of
the conjugal estate to her husband’s children
of the first marriage. In this case, the widow
did not enter into a contract over the future
inheritance of the testator.
c. The compromise agreement involves an
existing property already owned by the
widow (her share of the conjugal assets)
over which the widow has title.
De Belen Vda. De Cabalu v. Tabu
Facts: Faustina owns a land, and died without any children.
Left a holographic will assigning and distributing her property
to her newphews and nieces. IT was not probated. Benjamin
Laxamana was one of the heirs who died and had a wife and
son (Domingo Laxamana). Domingo sold to Laureano Cabalu
9k sqm of land inhereited by his father from Faustina
On Aug 1, 1994, the Legitimate heirs of Faustina executed a
Deed of Extrajudicial succession with Partition which
imparted 9K Sqm portion of the land to Domingo.
Thereafter, Domingo sold 4.5k sqm of the 9k sqm of land to
Tabamo. Domingo later died, and he allegedly sold to Tabu
the remaining 4.5k SQM which the latter subdivided into two
lots. Later on, petitioners sought to declare the said
subdivision null and void averring that they are the lawful
owners of the subject property because it was sold to their
father Laureanu Cabalu.
Timeline:
1. 1939 Testatrix Faustina died with a holographic
will (which was not probated) where Benjamin, a
nephew of the testatrix, was entitled to a 9000 sqm
lot
2. 1960 Benjamin died.
3. 1975 Benjamin’s son, Domingo, allegedly
executed a simulated sale of the 9000 sqm lot in
favour of Tabamu
4. 1980 Domingo’s mother (Benjamin’s widow)
died.
5. 1994 Faustina’s heirs executed a deed of
extrajudicial partition where Domingo was awarded
the 9,000 sqm lot.
6. 1996 August – Domingo died.
7. 1996 October – Domingo allegedly sold the same
property to Tabu.
Issue: Whether the contract of sale included future
inheritance? -yes-
Art. 1347, “no contract may be entered into upon future
inheritance except in cases expressly authorized by law.”
1. The SC ruled that the sale made by Domingo to
Laureanu Cabalu is void for this deals with future
inheritance.
2. In this case, at the time the deed was executed,
Faustinas will was not yet probated; the object of the
contract, the 9,000 square meter property, still formed
part of the inheritance of his father from the estate of
Faustina; and Domingo had a mere inchoate
hereditary right therein.
Observations on vda. De Cabalu (not complete)
Erroneous Ruling Baste Notes:
SC referred to Faustina’s nephews and
nieces as her compulsory heirs (887); they
are not.
2 SC affirmed that Domingo inherited 9000
sqm lot, even if the will was not probated
(see 838). The court should have directed the
probate of the will.
3 The testamentary heir to the lot was not
Domingo, but his father Benjamin.
Therefore, the award of the lot to Domingo
is inconsistent with the tenor of the
unprobated will, which the court wished to
give effect to.
4 Benjamin did not predecease Faustina. Thus,
if the court really wanted to give effect to the
unprobated will, the lot should have been
awarded to Benjamin, and after Benjamin’s
death, the same should pass to Domingo and
his mother (1/2 share each) as the sole
compulsory heirs of Benjamin.
5 Court ruled Domingo inherited from
Faustina by representation: classic error
because Benjamin did not predecease
Faustina (970)
6 SC struck down the 1975 sale of the lot by
Domingo to Tabamu, arguing that at the time
of sale, Domingo was not yet the owner of
the lot (see 777). This is wrong because if
indeed Domingo inherited the lot thru the
will of Faustina, he inherited the same in
1939 when Faustina died.
7 SC claimed that Domingo acquired
ownership only in 1994. Wrong again,
because the partition does not confer
ownership of the inheritance to the heirs;
ownership passed on the death of the
decedent (777); the partition only dissolved
the co-ownership among the co-heirs.
8 The 1975 sale is partially valid because if
Benjamin inherited the lot from Faustina in
1939, and Domingo inherited from Benjamin
in 1960, Benjamin acquired ½ of the lot in
1960 which he could very well sell to
Tabamu. Therefore, that sale is not a sale of
future inheritance, as erroneously claimed by
the SC.
19 Court declared 1975 sale was fictitious; but
fictitious means no intention to be bound at
all. The SC based the conclusion that it was
fictitious on its erroneous assertion that
Domingo acquire the property on in 1994.
Elements of Future of Inheritance
1. the succession has not yet been opened; - Upon the
death of the decedent
2. the object of the contract forms part of the
inheritance; and - The property of Faustina ceased to
be future inheritance when Faustina died
3. the promissor has, with respect to the object, an
expectancy of a right which is purely hereditary in
nature.
Baste notes: Governing Law
● as to form - law in force at the of execution of the
will (795)
● as to substantive validity – national law of the
decedent (Bellis vs. Bellis) as of the time of his death
Death triggers succession
Death may be:
1. Actual
2. Presumed
a. Ordinary – Art 390 – Presumed dead
if absent for more than 10 years. If
aged 75 upon the time of absence, then
5 years
b. Extraordinary- Article 391. The
following shall be presumed dead for all
purposes, including the division of the
estate among the heirs:
(1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the
vessel or aeroplane;
(2) A person in the armed forces who has taken part
in war, and has been missing for four years;
(3) A person who has been in danger of death under
other circumstances and his existence has not been
known for four years. (n)
From the moment of death, the heirs automatically become the
absolute owners of the decedent’s property, rights and
obligations
. ● Contractual succession is not founded upon a
However, recognition of ownership of the inheritance by
reason of succession is [in some cases] is not self-executory.
For example, Puno vs Puno Enterprises. In the transfer of
ownership of shares of stock of a corporation, once the
decedent dies, the heirs do not automatically become
stockholders of the corporation and acquire the rights and
privileges of the deceased. The shares of stock must be
transferred to the heirs and such transfer must be recorded to
the stock and transfer books of the corporation
(a) Succession Inter vivos
● is generally understood to mean as an ordinary
donation inter vivos. Succession, strictly speaking,
occurs only after death of the decedent (774).
● However, there is one exception to this rule: the
delivery of the presumptive legitime of the children
in the case of judicial termination of a marriage in the
specific instances provided in the FC (specifically in
the case of a voidable marriage under FC 45, and a
void marriage under FC 40).
● The presumptive legitime is exactly what it is called:
the advance payment of the tentative legitime of the
children of such terminated marriages.
● Legitime is an integral part of the hereditary right of
children and descendants, which in the two instances
referred to above, are paid to the children during the
lifetime of their parents
● Art. 50 of the FC together with Arts 51 and 52
provides a type of succession that is triggered not by
death but by the annulment or declaration of nullity
of marriage.
● Article 50 of the FC mandates the payment of the
[presumptive] legitime of the children following the
annulment or the declaration of nullity of marriage of
their parents.
● The presumptive legitime will answer for the support
of the children who will be prejudiced of the nullity
(b) Contractual Succession
● refers to a donation mortis causa that is imbedded in
an antenuptial contract. Under the Civil Code, an
antenuptial contract containing this stipulation must
comply with the requisites of the Statute of Frauds
(1403[2c]) and must thus be in written form.
● This form was revised by the FC where an
antenuptial contract with such a stipulation must now
conform to the formalities of a will. There are two
possible forms of a will: notarial and holographic.
● We have to rule out the holographic form because it
requires the document to be entirely written, dated
and signed by the hand of the testator.
● The future spouses who will execute the antenuptial
contract cannot possibly comply with this
requirement. In the notarial form, a problem may
arise because the future spouses will have to sign the
antenuptial contract (it is a bilateral agreement, not
unilateral).
○ But 818 explicitly prohibits joint wills
(which the law condemns as void). See Art.
818
Valuable Consideration.
● It is a gratuitous disposition of future property
mortis causa made by one future spouse to the
other in their ante-nuptial contract.
● Art. 84 of FC prohibits future spouses (not absolute
community of property) from donating to each other
in their marriage settlements more than 1/5 of their
present property. Any excess shall be considered
void.
In respect of donations of future property, the second par.
84 of FC provides the following:
1.) Donations mortis causa shall be governed by the law on
testamentary succession
2.) Donor must comply with the formalities of a will.
The necessary inference is that Article 84 of the FC disallowed
contractual succession in that if either or both the future
spouses should wish to give to the other a donation of
future property, the donor must observe the formalities of
a will.
DONATIONS MORTIS CAUSA BETWEEN FUTURE
SPOUSES NOW REQUIRE THE EXECUTION OF
WILLS.

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.
Article 782. An heir is a person called to the succession
either by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real and
personal property are respectively given by virtue of a will.
Heirs, Legatee and Devisee DEFINED
1. Heir -a person called to the succession either by the
provision of a will or by operation of law. He/she is
the person called to succession in the testator’s will,
who will receive either the entire or fractional part of
the inheritance.
a. The testator does not give an heir a specific
property from the mass of the estate.
b. However, the heir may receive a specific
property pursuant to the partition of the
hereditary estate.
2. Legatee - a person called to succession in the
testator’s will who will receive a movable property
specifically identified by the testator.
3. Devisee- a person called to succession in the
testator’s will who will receive an immovable
property specifically identified by the testator.
BASTE: Notice that since the testator gives a specific
property to a legatee or a devisee, the law recognizes a
preference to such property in favour of the legatee and
devisee, which is the legal basis of the effect of preterition and
an invalid disinheritance (i.e., the annulment of institution
heirs, but not legacies and devises).
Additional Notes: IMPORTANCE OF DIFFERENCE – The
difference in treatment lies in the concept of preference
which entitles a person to a superior right over all others with
respect to a specific property. when a testator distributes an
estate by way of legacies and devises, he grants particular
properties to designated beneficiaries. On the other hand,
when a testator merely designates heirs to his estate, the latter
will only divide whatever is left behind after the distribution of
the legacies and devises
Importance of Distinction
1. Preterition annuls the institution of the heirs, but the
legacies and devises not otherwise inofficious remain
valid. (Art. 854)
a. annulment is TOTAL. The legatees and
devisees will get the gifts of movable and
immovable property as long as they do not
impair the legitime.
2. Invalid disinheritance results in annulment of the
institution of heirs insofar as it prejudices the
invalidly disinherited heir, but the devises and
legacies shall be valid to the extent they do not impair
the legitime. (Art. 918)
a. Institution of heirs may be annulled totally
or partially to the extent necessary to make
whole the legitime of the compulsory heir
who was invalidly disinherited.
HEIRS DEVISEES OR
LEGATEES
Succeed to an indeterminate Succeed to Individual items
or aliquot portion of property
Universal title Particular title
Succeed by means of a will Succeed by means of a will
or by operation of law
Article 776. The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death (PRO)
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.
BASTE: The estate of a deceased person is the inheritance, or
PRO that are not extinguished by his death (776) + the
accruals thereto (781)
The Inheritance
The inheritance of a person includes his properties and
transmissible rights and obligations which are not
extinguished by death.
Accruals thereto, while not forming part of the hereditary
estate, are liable for the payment of the claims of the creditors
of the decedent.
The NIRC recognizes that the accruals to the hereditary estate
after the opening of succession are not included in the estate
of the decedent for the purpose of computing the estate tax.
BASTE: Art. 781 appeared to have expanded the definition of
“inheritance” by adding “accruals” thereto. Nonetheless, the
Art. is not in conflict with Art 777. The objective of Art. 781
is to make the accruals to the hereditary estate liable for the
payment of the outstanding obligations of the decedent.
A more proper statement: The inheritance of a person includes
only his properties, rights and obligations (PRO) which are not
extinguished by his death. However, accruals thereto, while
not forming part of the hereditary estate, are liable for the
payment of the claims of the creditors of the decedent.

EXAMPLE:
Condo unit with 20k/ month rental income. It is 9 months
since the death of the decedent.
9 x 20k= 180k+ interest
- The 180k + interest is not subject to estate tax. And
under 440, the accessory follows the principal.
Whoever obtains the condo unit shall likewise
obtain the 180k + interest.
Exclusion to the Inheritance
1. Fideicommissary Substitutions (Art. 863)
In this case, the first heir receives the inheritance, however, he
is burdened with the obligation to preserve and transmit to the
second heir the whole or part of the inheritance. Hence, it does
not form part of the inheritance of the first heir.
2. Reserva Troncal
In this case the reservable property neither comes nor falls
under the absolute dominion of the ascendant (reservor) who
inherits and receives the same from his descendant. It becomes
his own property only in case all of the reserves have died,
repudiated or otherwise incapable of receiving the property.
(Florentino v. Florentino)
A reservor cannot will the reservable property to his or her
heirs of choice (Gonzales v. CFI)
3. Valid Aleatory Contracts
It is permissible for 2 or more persons to pool their resources
and stipulate a survivorship agreement. The remaining balance
of the investment does not form part of the estate of the
deceased party and his or her relatives have no successional
rights thereto.
Baste Notes: In an aleatory contract (2010), one or both
parties bind himself or themselves to give or to do something
in consideration of that the other shall give or do upon the
happening of an event which is uncertain, or which is to occur
at an indeterminate time.
Examples of an aleatory contract are contract of insurance
(2011); gambling contract (2013); contracts with survivorship
clause
Macam vs Gatmaitan and Gatmaitan
G.R No. 42519
FACTS:
1. The parties in these cases executed a survivorship
agreement. They are all co-owners of the properties
since the parties contributed to a common fund.
2. They signed a document which stated the following:
a.“That in consideration of the friendship we
mutually profess, considering ourselves
almost as sisters, we have voluntarily agreed
that whoever of us will die first shall leave
to the survivor, as the latter's property, the
houses and all the furniture therein together
with the Buick automobile above-stated,
excluding the furniture belonging to
Leonarda Macam stated in paragraph 2 of
this document, which may be taken by the
heirs of said Leonarda Macam if she will be
the first to give up her soul to God, as
remembrance to her surviving friend, and
this agreement shall be equivalent to a
transfer of the right of the one who dies first
and shall be kept by the survivor; and none
of our heirs shall claim the property
mentioned in this document left by any us
who dies first.”
ISSUE: W/N it was a valid will - NO.
Held:
1. It is an aleatory contract whereby, according to article
1790 of the Civil Code, one of the parties or both
reciprocally bind themselves to give or do something
as an equivalent for that which the other party is to
give or do in case of the occurrence of an event which
is uncertain or will happen at an indeterminate time.
2. This contract, as any other contract, is binding upon
the parties thereto. Inasmuch as Leonarda had died
before Juana the latter xthereupon acquired the
ownership of the house, in the same manner as
Leonarda would have acquired the ownership of the
automobile and of the furniture if Juana had died
first.
3. Survivorships are valid and binding not only between
the parties, but also against the respective successors,
provided that the operation of such agreement is not
violative of the law, particularly those relating to
wills, donations and property relations between
spouses.
Examples of violative effects of a survivorship agreement:
1. Used to conceal and inofficious donation
2. Used to transfer property in fraud of creditors
3. Used to defeat the legitime of compulsory heirs
NOTE: A person may enter into a survivorship agreement
with his/ her spouse, or with any unrelated person, with
respect to his/ her separate property or any conjugal or
community property.
● If upon death he/ she is survived by compulsory
heirs, the latter cannot assail the validity of such
agreement except insofar as to prejudice their
legitime.
Rivera vs. People’s Bank and Trust Co.
G.R No. 47747
FACTS:
1. Edgar Stephenson and Ana Rivera had a survivorship
agreement with each other wherein they agreed that
 all moneys deposited by either of them shall be
property of both as joint tenants, and that after the
death of one of them, it shall belong to and be the
sole property of the survivor.
2. At the time of Stephenson’s death, Ana Rivera held
the deposit book and there was a balance of P701.43
which Rivera claimed but the bank refused.
3. TC: held that the agreement between them was a
mere power of attorney authorizing Ana Rivera to
withdraw the deposit, which power terminated upon
the death of the principal.
4. That viewed from the death of either of the parties,
the agreement was a donation mortis causa which
was not validly executed.
Issue: W/N the survivorship agreement was valid- YES.
Held:
It is an aleatory contract supported by law a lawful
consideration - the mutual agreement of the joint depositors
permitting either of them to withdraw the whole deposit
during their lifetime, and transferring the balance to the
survivor upon the death of one of them. The trial court said
that the Civil Code "contains no provisions sanctioning such
an agreement" We think it is covered by article 1790 of the
Civil Code
Vitug vs CA
G.R No. 82027
Facts:
1. Romarico Vitug and Dolores entered into a
survivorship agreement with a Bank. The
stipulations contained the following:
a. (1) All money deposited and to be deposited
with the Bank in their joint savings current
account shall be both their property and shall
be payable to and collectible or
withdrawable by either or any of them
during their lifetime; and
b. (2) After the death of one of them, the same
shall belong to and be the sole property of
the surviving spouse and payable to and
collectible or withdrawable by such survivor
2. When Dolores died, Rowena Corona was named
executrix in her wills. Romarico filed a motion
asking authority to sell certain shares of stock and
real property belonging to the estate which he
claimed were his own personal funds. Rowena
opposed on the ground that the same funds were
withdrawn from the savings account were conjugal
partnership properties and part of the estate.
Issue: Whether or not the funds of the savings account subject
of the survivorship agreement were conjugal partnership
properties and part of the estate - NO
Held:
Survivorship agreement is neither a donation mortis causa nor
donation inter vivos. It is an aleatory contract. Survivorship
agreements are not contrary to law as long as it does not
violate the law such as (1) it is used as a mere cloak to hide an
inofficious donation; (2) it is used to transfer property in fraud
of creditors; or (3) it is used to defeat the legitime of a
compulsory heir. In the instant case, none of the foregoing
instances were present. Consequently, the Court upheld the
validity of the survivorship agreement entered into by the
spouses Vitug. As such, Romarico, being the surviving spouse,
acquired a vested right over the amounts under the savings
account, which became his exclusive property upon the death
of his wife pursuant to the survivorship agreement
Article 777. The rights to the succession are transmitted
from the moment of the death of the decedent.
Time of Death of the Decedent
Ownership passes to the heirs at the time of such death. The
physical delivery of the inheritance to the heirs may be
delayed by legal formalities.
In Settlement Proceedings
1. Payment of outstanding debts of the decedent;
2. Preparation of the CPA statement on itemized assets
and deductions from gross estate;
3. Preparation of the estate tax returns and the payment
of estate tax;
4. execution of the deed of partition
5. Completion of the publication requirement
ARE CONDITIONS PRECEDENT TO THE DELIVERY OF
THE INHERITANCE TO THE HEIRS
In Testamentary Proceedings
1. The probate of the will;
2. the appointment of the executor or administrator;
3. the determination of the validity of the provisions of
the will;
4. the resolution of the issues relating to the capacity of
the heirs to succeed;
5. the settlement of issues of collation;
6. Preparation of the approval of the project of partition
CAN DELAY THE DISTRIBUTION OF THE ESTATE TO
THE HEIRS
In Intestate Proceedings
1. the declaration of heirship
2. Completion of the inventory of the assets and the
payment of liabilities of the decedent
3. Appointment of an administrator and approval of his
final accounts
OFTEN RESULTS IN YEARS OF LITIGATION
HOWEVER, the ownership of the inheritance immediately
passes to the heirs from the moment of death of the
decedent
It is the precise time on which the following are determined:
a. Law applicable to the validity of the will
b. Composition of the decedent’s assets and
valuation, liabilities and payment
c. Compulsory heirs and their capacity to succeed.
d. Determination of issues relating to preterition.
e. Testamentary capacity of the testator
 f. Timeliness of acceptance or repudiation of
inheritance.
Consequences of Art. 777
1. Death, the defining moment
2. Distribution subject to the existence of a residual
estate
3. Automatic transmission of the hereditary estate
4. Recognition of ownership by reason of succession
5. Disposal of hereditary share after death of the
decedent
6. Sale of an undivided share of inheritance
7. Court approval for disposition of the hereditary
estate
8. Co-ownership during the period of indivision
1. Death, The Defining Moment- it is when the heirs
acquires a definite right to the inheritance, whether
such right is pure or contingent.
Bonilla vs. Barcena
G.R No. L-41715
FACTS:
1. Fortuna Barcena instituted a civil action to quiet title
over certain parcels of land.
2. The defendants filed 2 motions to dismiss, and one
ground is that Fortunata in the meantime passed away
and lost legal capacity to sue.
3. The counsel of the plaintiff ask for the substitution of
the heirs on behalf of Fortunata. Court dismissed.
ISSUE: W/N the dismissal was valid- NO
HELD:
The SC ruled that while a dead person cannot sue in court, he
can be substituted by his heirs in pursuing the case up to its
competition.
Fortunata Barcena instituted a civil action. Defendant files
motion to dismiss on the ground that in the meantime
Fortunata passed away and lost legal capacity to sue.
The SC ruled that while a dead person cannot sue in court, he
can be substituted by his heirs in pursuing the case up to its
competition.
As per Art. 777 of the Code, “the rights to the succession are
transmitted from the moment of death of the decedent”. From
such a moment of death, the heirs become the absolute owners
of his property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights thereto
except by the methods provided for by law. ‘
When Fortunata died, her claim or right to the parcels of
land in litigation was not extinguished but was transmitted
to her heirs. Her heirs acquired interest in the properties in
litigation and became parties in interest to the case.
2. Distribution Subject to the Existence of a Residual
Estate
The right of heirs to specific distributive shares of the
inheritance does not become finally determinable until all the
debts of the estate are paid. Until then, such rights are merely
inchoate and cannot be enforced.
Salvador vs. Sta. Maria
G.R No. L-25952
FACTS:
1. 7 parcels of titled land and 2 parcels of united land
were owned by Celestino Salvador.
2. He executed a deed of sale over such lands to
Alfonso Salvador and Anatolia Halili.
a. He alleged those sales were void for lack of
consideration.
3. Celestino died and 21 persons, who were his alleged
heirs were substituted as plaintiffs in the action for
reconveyance.
4. IN the reconveyance suit, the court ordered the
defendants (Salvador and Halili) to reconvey the
parcels of land to the estate. CA affirmed.
5. Years later, one of the lots was sold so that with its
proceeds debtors who filed claims may be paid. PNB
bought it at P41,184.
6. a new reconveyance was made in favor of the 21
heirs and the court ordered PNB to release the
proceeds of the sale to the heirs. No release was
made.
ISSUES: W/N the parcels of land and the proceeds of sale of
one of them, properties of the estate
W/N the final judgement of the reconveyance case in favor of
the heirs bar the disposition of the reconveyed properties by
the settlement court
HELD:
1. The petitioners do not question the debts but contend
that the properties involved in litigation be ordered to
be reconveyed to them and not to the estate.
2. However the court ruled that, it is a settled point of
law that the right of heirs to specific distributive
shares of the inheritance does not become finally
determinable until all the debts of the estate are paid.
3. While the rights to succession are transmitted from
the moment of death of the decedent, Salvador holds
that the right of an heir to his distributive share
thereto is not determinable until all the estate
liabilities have been paid.
a. Until then, the right of an heir to his share is
not demandable, and is subject to the
existence of a residue after payment of
debts.
4. The case further holds that the proceeds of the sale of
a property forming part of the estate, likewise for
part of the estate.
5. It must be noted that the reconveyance court had
jurisdiction over the determination of ownership of
the parcels of land subject matter of the case. Issues
of ownership are beyond the jurisdiction of the
probate court.
a. However, the probate court has exclusive
jurisdiction with respect to the disposition
of ay property pertaining to the estate, as
well as the distribution of the shares of the
instituted heirs.
 6. The right of the heirs to specific distributive shares
of the inheritance does not become finally
determinable until all the debts of the estate are paid.
a. The distribution of the estate is subject to
the existence of a residual estate after
payment of the decedent’s debts.
7. The rights to succession are automatically transmitted
to the heirs from the moment of death of the
decedent.
a. The court is duty-bound to protect these
rights from encroachments made or
attempted prior to such judicial declaration.
If the administrator or executor fails or
refuses to act to protect the rights of the
heirs, the later may take action in place of
such administrator or executor
8. Baste Note: Residual PR to be distributed is
determined at that point in time (Salvador vs. Sta.
Maria); heirs will only receive that portion of the
estate after the debts are paid.
3. Automatic Transmission of the Hereditary Estate
The rights to succession are automatically transmitted to the
heirs from the moment of death of the decedent.
Ramirez vs Baltazar
G.R No. L-25049
FACTS:
1. Victoriana Eguaras executed a real estate mortgage
over a parcel of land in favor of the Sps. Baltazar.
2. Eguaras died and the mortgagees filed a petition for
the intestate proceedings of her estate.
3. They also filed a complaint for foreclosure of the
aforesaid mortgage against Artemio Diawan in his
capacity as administrator of the estate. The
foreclosure was granted.
4. Diawan initiated a trial by commissioners which was
allowed by the court without providing notice to the
heirs, heirs in turn was not present since they had no
idea of such proceeding. Diawan was receiving
uncontested evidence from the creditors as
commissioner.
Issue: W/N the heirs have legal standing - YES.
HELD:
1. GR: Heirs have no legal standing in court upon the
commencement of the estate.
2. EXPN: When the administrator fails or refuses to act
for the benefit of the estate, the heirs may commence
such action being the owners of the property. This
case falls under the exception.
3. As a general rule, rights to the succession are
transmitted from the moment of the decedent’s death.
However, the recognition of ownership of the
inheritance by reason of succession is not, in certain
cases, self executory
4. Baste Notes: - Transmission of the inheritance is
automatic upon the death of the decedent. The heirs
acquire the rights of ownership even before the
delivery of the inheritance to them. As such, the heirs
have the right to protect their property ownership
(Ramirez vs. Baltazar) even prior to delivery.
4. Recognition of Ownership by Reason of
Succession
The rights to succession are transmitted from the moment of
the decedent’s death.
XPN: Transfer of ownership of shares of stocks of a
corporation needs to be recorded in the books of the
corporation.
Puno vs. Puno Enterprises
GR No. 177066
Facts:
1) Carlos Puno died in 1963 and was the incorporator of
Puno Enterprises. The Petitioner (Joselito Puno) is
claiming to be the heir of Carlos.
2) Thus he filed a case of specific performance against
the Respondent corporation (i.e. praying to be
allowed to inspect the books of the corporation),
alleging that he is the son of Carlos and he is the
rightful heir because Carlos was his father and his
mother was Amelia Puno (Carlos’ common law
wife).
3) RTC: Pet, CA: Respondent.
Issue: WON the Petitioner has the right to inspect the
corporation’s books by being the owner of the stocks by
reason of succession. NO
Held:
● In the transfer of ownership of shares of stock of a
corporation, once the decedent dies, the heirs do not
automatically become stockholders of the corporation
and acquire the rights and privileges of the deceased.
● The shares of stock must be transferred to the heirs
and such transfer must be recorded to the stock and
transfer books of the corporation.
● Until the settlement and division of the estate is
effected, the stocks are held by the executor or
administrator, who is entitled to exercise the rights of
the deceased as a stockholder.
● Baste Notes: But acquisition of ownership is not
equivalent to the recognition of such ownership by
third persons.
○ In certain cases, the registration of
ownership acquired by succession is a pre-
requisite in order to bind third persons.
○ A case in point are inherited shares of
stocks; the transfer of the shares from the
decedent to the heir must be registered with
the Corporate Secretary of the issuing
corporation before the heir is able to
exercise the rights of a stockholder
Reyes v. RTC
GR No. 165744
Facts:
1) Petitioner and private respondent were siblings
together with two others, namely Pedro and
Anastacia, in a family business established as Zenith
Insurance Corporation (Zenith), from which they
 owned shares of stocks. The Pedro and Anastacia
subsequently died.
2) The former had his estate judicially partitioned
among his heirs, but the latter had not made the same
in her shareholding in Zenith. Zenith and Rodrigo
filed a complaint with the Securities and Exchange
Commission (SEC) against petitioner (1) a derivative
suit to obtain accounting of funds and assets of
Zenith, and (2) to determine the shares of stock of
deceased Pedro and Anastacia that were arbitrarily
and fraudulently appropriated [by Oscar, and were
unaccounted for].
3) In his answer with counterclaim, petitioner denied the
illegality of the acquisition of shares of Anastacia and
questioned the jurisdiction of SEC to entertain the
complaint because it pertains to settlement of
[Anastacia’s] estate. The case was transferred to.
Petitioner filed Motion to Declare Complaint as
Nuisance or Harassment Suit and must be dismissed.
RTC denied the motion. The motion was elevated to
the Court of Appeals by way of petition for certiorari,
prohibition and mandamus, but was again denied.
Issue: WON Rodrigo may be considered a stockholder of
Zenith with respect to the shareholdings originally belonging
to Anastacia. NO (has to be registered in the books of the corp
first)
Held:
1. The SC clarified the relationship between
corporation, on the one hand, and the heirs of a
deceased stockholder, on the other.
2. While the ruling in relation to Sec 63 of the
Corporation Code seems to be correct, the dictum of
the court in relation to the opening of succession
under Art.777 of the NCC, and the consequences
thereof, appear to be debatable.
3. In addition, the ruling of the SC in relation to the
acquisition or vesting of title to the estate of the
deceased person in favor of the latter’s heirs is clearly
in conflict with the statutory definition of the term
“inheritance” in the Art. 776 of the NCC.
4. The statement of the Court to the effect that the
undivided interest of the co-heirs in relation to the
shares forming part of the estate of the deceased
person is “still inchoate and subject to the outcome of
a settlement proceedings” is rather disturbing as it
clearly runs against explicit dictum of Art. 777.
5. The right to inherit is not a mere expectancy pending
payment of the outstanding debts of the decedent.
a. What is uncertain is whether or not the heir
will receive anything after the debts are
paid.
b. The “right to inherit” is not synonymous to
the “right to specific distributive share”.
6. There is no legal bar to a successor (with requisite
contracting capacity) to dispose his hereditary share
immediately after such death, even if the actual
extent of such share is not determined until the
subsequent liquidation of the estate
7. Baste Notes:
a. There is no law that requires succession to
be declared: it takes place from the precise
moment of the death of the decedent.
b. The payment of the debts of the decedent is
not a suspensive condition to succession.
The rights to succession opens from the
moment of death of the decedent; thus the
successional rights of the heirs are not
inchoate until the liquidation of the estate.
i. Liquid assets are defined as cash
assets or assets that are readily
convertible into cash.
ii. For succession to take place, it is
not necessary that the estate should
have cash-on-hand or properties
readily convertible into cash.
8. Disposal of Heriditary Estate Share After Death of
the Decedent
a. There is no legal bar to a successor to
dispose of his hereditary share immediately
after such death, even if the actual extent of
such share is not determined until the
liquidation of the estate.
De Borja v. De Borja G.R. No. L-28040
Facts:
Francisco de Borja filed a petition for probate of the will of
his wife who died, Josefa Tangco, with the CFI of Rizal. He
was appointed executor and administrator, until he died; his
son Jose became the sole administrator. Francisco had taken a
2nd wife Tasiana before he died; she instituted testate
proceedings with the CFI of Nueva Ecija upon his death and
was appointed special administatrix. Jose and Tasiana entered
upon a compromise agreement, but Tasiana opposed the
approval of the compromise agreement. She argues that it was
no valid, because the heirs cannot enter into such kind of
agreement without first probating the will of Francisco, and at
the time the agreement was made, the will was still being
probated with the CFI of Nueva Ecija.
Issue: W/N the compromise agreement is valid, even if the
will of Francisco has not yet been probated. YES
Held:
1. A compromise agreement was issued by an heir over
the inheritance that she will receive, while the
probate case was pending in court.
2. At the time of the decedent’s death, the inheritance
was already transferred to the heirs.
3. The heir can already exercise the attributed of
ownership over such share which include the right to
convey or dispose.
4. Baste Notes: The children of the first marriage may
compromise with the their stepmother over the
latter’s hereditary share in the estate of their father
(her husband) because the compromise is deemed to
be a disposition by the widow of the share in her
deceased husband’s estate which she already
inherited.
a. The compromise agreed upon was not a
contract involving future inheritance
5. Sale of an undivided Share of the Inheritance
Note, an heir can only alienate a specific property after the
final adjudication of the probate court, prior this he/she may
only sell his undivided share.
 Lee v. RTC G.R. No. 146006
Facts:
1. Dr. Juvencio P. Ortañez incorporated the Philippine
International Life Insurance Company, Inc. on 1956.
At the time of the company’s incorporation, Dr.
Ortañez owned ninety percent (90%) of the
subscribed capital stock.
2. On July 21, 1980, Dr. Ortañez died. He left behind a
wife (Juliana Salgado Ortañez), three legitimate
children (Rafael, Jose and Antonio Ortañez) and five
illegitimate children by Ligaya Novicio (herein
private respondent Ma. Divina Ortañez-Enderes and
her siblings Jose, Romeo, Enrico Manuel and Cesar,
all surnamed Ortañez).
3. Special administrators Rafael and Jose Ortañez
submitted an inventory of the estate of their father
which included 2,029 shares of stock in Philippine
International Life Insurance Company, representing
50.725% of the company’s outstanding capital stock
4. Juliana (wife) and Jose (legit child) sold 1,014 and
1,011 shares respectively to FLAG.
5. The legal family entered into an extrajudicial
settlement of the estate of Dr. Juvencio Ortañez,
partitioning the estate among themselves. This
was the basis of the number of shares separately
sold by them.
6. The lower court declared the shares of stock as null
and void. CA affirmed.
7. Meanwhile, the FLAG-controlled board of directors,
increased the authorized capital stock of Philinterlife,
diluting in the process the 50.725% controlling
interest Dr. Juvencio Ortañez, in the insurance
company. Enderes filed an action at the SEC. The
SEC hearing officer dismissed the case
acknowledging the jurisdiction of the civil courts
8. Jose Lee and Alma Aggabao as president and
secretary of Philinterlife ignored the orders
nullifying the sales of the shares of stock.
Issue: WON the extrajudicial partitioning of Juliana and her
three sons were valid. NO
Held:
1. An heir can sell his right, interest, or participation in
the property under administration.
2. Under Art. 533, possession of hereditary property is
deemed transmitted to the heir without interruption
from the moment of the death of the decedent.
However, an heir can only alienate such portion of
the estate that may ultimately be allotted to him in
the division of the estate by the probate or intestate
court after all the debts have been paid or the
devisees or legatees shall have been given their
shares.
3. Baste Notes: Sale of undivided share of the
inheritance – permissible, but subject to the right of
redemption by the other co-heirs (1620).
a. But a sale of specific property forming part
of the hereditary estate is not allowed
pending the judicial settlement proceedings,
unless with court approval (Lee vs. RTC).
b. If the court permits it, the share of an
objecting co-heir has to be respected.
6. Court Approval for Disposition of the Hereditary
Estate
Court approval is required in any disposition of the decedent’s
estate. The requisite judicial approval, however, cannot
adversely affect the substantive rights of heirs to dispose of
their own pro indiviso shares in the co-heirship or co-
ownership.
Heirs of Sandejas v. Lina
G.R. No. 141634
Facts:
1. On February 17, 1981, Eliodoro Sandejas, Sr. filed a
petition, in the lower court praying that letters of
administration be issued in his favor for the
settlement of the estate of his wife, Remedios
Sandejas, who died on April 17, 1955.
2. On July 1, 1981, Letters of Administration were
issued by the lower court appointing Eliodoro
Sandejas, Sr. as administrator of the estate of the late
Remedios Sandejas.
a. Likewise on the same date, Eliodoro
Sandejas, Sr. took his oath as administrator.
3. On November 19, 1981, the 4th floor of Manila City
Hall was burned and among the records burned were
the records of Branch XI of the Court of First
Instance of Manila.
4. As a result, he filed a Motion for Reconstitution of
the records of the case on February 9, 1983.
a. On February 16, 1983, the lower court in its
Order granted the said motion.
5. On April 19, 1983, an Omnibus Pleading for motion
to intervene and petition-in-intervention was filed by
Movant Alex A. Lina alleging among others that on
June 7, 1982, movant and administrator Eliodoro P.
Sandejas, in his capacity as seller, bound and
obligated himself, his heirs, administrators, and
assigns, to sell forever and absolutely and in their
entirety the following parcels of land which formed
part of the estate of the late Remedios R. Sandejas.
a. It showed that there was receipt of money
with promise to sell and to buy with the sum
of P100,000.00
Issue: WON the stipulation requiring court approval affects
the validity and effectivity of the sale. NO
Held:
● Court approval is required in any disposition of the
decedent’s estate. A stipulation requiring court
approval does not affect the validity and the
effectivity of the sale as regards the selling heirs.
7. Co-ownership during the Period of Indivision
While an estate remains undivided, the co-owners each have
full ownership of their respective undivided shares and may
therefore alienate, assign, or mortgage them. However, they
cannot sell specific property yet.

NOTE:
GR: Heirs are bound by the contracts entered into by their
predecessors in interest. Thus, heroes can’t escape the legal
consequences of a transaction entered into by the decedent.
since they have inherited the rights AS WELL AS the
obligations (Art. 1311)
e.g. If you inherit land, you inherit the mortgage and
the subsequent obligation to pay such mortgage.
Santos v. Lumbao
G.R. No. 169129
Binentahan ng share ng Lupa ta kinupal ng heirs
Facts:
● Petitioners Vergilio et al, all surnamned Santos are
the legitimate heirs of Rita whale the other petitioners
are her daughters-in-law
● Respondent Sps. Lumbao are the alleged owners of
the 107 sqm lot w/c they allegedly bought from Rita
● During her lifetime Rita sold the subject property
w/c was a part of her share in the estate of her
deceased mother Maria who died intestate. This sale
was through a duly executed “Bilihan ng Lupa” docu.
● Sps. Lumbao proceeded to take actual possession of
the property and even built a house there and have
been the exclusive owners till present.
● They continually made verbal demands to Rita, and
later on to the Petitioners to execute the necessary
documents needed to attain a separate title. (Di parin
partitioned yung estate)
● On May 2, 1986 Sps. claimed that petitioners
fraudulently executed a Deed of Extra Judicial
Settlement w/c among others partitioned among
themselves the property now covered by a TCT. It
was later found that a REM over the property was
made in favor of a certain Esplana.
● Sps. failed a case for Reconveyance at the RTC.
RTC denied. CA reversed. Hence this case by
petitioner
● Petitioners allege:
○ that they were in GF in executing the
settlement. (did all reqs)
○ [IMPT] they are not bound by the “Bilihan
Lupa” since it is null and void.
Issue: W/N the sale is valid and the heirs are bound to it.
Held: YES.
● Baste Notes: If a co-owner sells a portion of his
share in an undivided inheritance, his successors-in-
interest are bound by such alienation
● It is noteworthy that at the time of sale, the entire
property owned by Maria, the mother of Rita, was not
yet divided among her and her co-heirs and so the
description of the entire estate is the only description
that can be placed in the document because the exact
metes and bounds of the subject property sold to
respondents Sps Lumbao could not be possibly
determined at that time.
● [insert discussion in #8]
● {DOCTRINE} The mere fact that the deed purports
to transfer a concrete portion does not per se render
the sale void. It is valid, but only with respect to the
aliquot share of the selling co-owner.
○ Furthermore, the sale is subject to the result
of the partition upon the termination of the
co-ownership.
● Here, when the estate left by Maria had been
partitioned by virtue of a Deed of Extrajudicial
Settlement, the 107- square meter lot sold by the
mother of the petitioners to respondents Spouses
Lumbao should be deducted from the total lot,
inherited by them in representation of their deceased
mother..
● The 107-square meter lot already sold to Spouses
Lumbao can no longer be inherited by the petitioners
because the same was no longer part of their
inheritance as it was already sold during the lifetime
of their mother. Hence, the Bilihan Lupa document
being valid and enforceable, the heirs are bound to
comply with its provisions. In short, such documents
are valid between and among the parties thereto.
● {DOCTRINE}Finally, the general rule that heirs are
bound by contracts entered into by their deceased
relative applies in the present case.
○ Article 1311 of the NCC is the basis of this
rule. Being heirs, there is privity of interest
between them and their deceased mother.
○ They only succeed to what rights their
mother had and what is valid and binding
against her is also valid and binding as
against them.
● The death of a party does not excuse nonperformance
of a contract which involves a property right and the
rights and obligations thereunder pass to the personal
representatives of the deceased.
○ Similarly, nonperformance is not excused by
the death of the party when the other party
has a property interest in the subject matter
of the contract.
SUMMARY OF JURISPRUDENCE ON ART 777
1. Hereditary estate passes from the moment of the
decedent’s death. The heirs cannot be deprived of the
rights to the hereditary estate except by methods
provided by law.
2. The rights of the heirs to specific distributive shares
does not become finally determinable until all the
debts of the estate are paid.
3. Each co-heir or co-owner may convey the whole or a
portion of his undivided interest in the inheritance.
Nonetheless, if any o-owner sells his or her
undivided interest in the property co-owned, the
other co-heirs/co-owners are entitled to exercise the
right of redemption under Art. 1088.
4. Pending partition, co-heirs may enter into such
compromise agreements as they may deem
appropriate even if the compromise should alter the
distribution of the estate as prescribed by the will of
the testator.
5. Court approval is required in any disposition of
specific property forming part of the decedent’s
estate. The judicial approval cannot adversely affect
 the substantive rights of heirs to dispose of their pro
indiviso shares in the co-heirship.
6. Upon the death of a shareholder, his heirs do not
automatically become stockholders of the corporation
Art.778
Succession may be (1) testamentary; (2) legal or
intestate; or (3) mixed.
Art. 779
Testamentary succession is that which results from the
designation of an heir, made in a will executed in the
form prescribed by law.
Art.780
Mixed succession is that effected party by will and
partly by operation of law.
Types of Succession
1. Testamentary Succession:
a. takes place when the testator dies with a
valid and operative will. It must be both
extrinsically valid (formal requirements)
and intrinsically valid (substantive validity).
2. Intestate succession:
a. takes place when a person dies without a
valid and operative will. The distribution of
the estate is controlled by law.
3. Mixed Succession:
a. occurs in the ff cases:
i. (1) If he executed a will but failed
to distribute the entirety of his
estate [no provision as how the
residual property will be disposed];
ii. (2) Sole provisions of the will are
not considered as testamentary/
property dispositions.; and
iii. (3) If any of the beneficiaries is
incapable to accept or enter into
inheritance [no substitution,
representation or accretion].
NOTE: Testacy is always preferred over intestacy.
Rodriguez et. al. v. Borja et. al.
G.R. No. L-21993
FACTS:
● Petitioners filed a petition for a writ of certiorari and
prohibition against theCFI of Bulacan for its refusal
to grant their MD in special proceeding No. 1331
which said court is alleged to have taken cognizance
of it without jurisdiction.
● Petitioners contend that the court has no jurisdiction
to try the case due to the pendency of another action
for the settlement of the estate of the deceased Rev.
Fr. Celestino Rodriguez in the CFI of Rizal namely
Special Proceedings no 3907.
● They contend that since the intestate proceedings in
the CFI of Rizal was filed at 8:00 a.m. on March 12,
1963 while the petition for probate was filed in the
CFI of Bulacan at 11:00 a.m. an the same date, the
latter court has no jurisdiction to entertain the petition
for probate, citing as authority in support thereof the
case of Vda. De Borja vs. Jan.
● The respondents, on the other hand, take the stand
that the CFI Bulacan acquired jurisdiction over the
case upon delivery by them of the will to the clerk of
court on March 4, 1963 and that the case in this court
therefore has precedence over the case filed in Rizal
on March 12, 1963.
TIMELINE
- March 4, 1963: Will delivered to CFI Bulacan
- March 12, 1963
- 8am: intestate proceedings filed @ CFI of
Rizal
- 11am: Petition for probate of the will was
filed in CFI Bulacan
ISSUE: W/N the CFI of Bulacan has the jurisdiction to
proceed with the testate proceedings
HELD:
● Jurisdiction of the CFI of Bulacan became vested
upon the delivery thereto of the will of Fr.
Rodriguez, even if no petition for its allowance was
filed until later, because upon the will being
deposited, the court could, motu proprio, have taken
steps to fix the time and place for proving the will as
per the ROC.
● Moreover, aside from the rule that the Court first
taking cognizance of the settlement of the estate of a
decedent shall exercise jurisdiction to the exclusion
of all courts, intestate succession is only
subsidiary/subordinate to the testate, since intestacy
only takes place in the absence of a valid operative
will.
● Only after final decision as to the nullity of testate
succession could an intestate succession be instituted
in the form of pre-established action.
○ The institution of intestacy proceedings in
Rizal may not thus proceed while the
probate of the purported will of Fr.
Rodriguez is still pending.
OTHER CLASSIFICATIONS OF SUCCESSION ( from
FC)
1. Contractual Succession (Art. 84, FC)
a. Marriage settlement, which affianced
persons are authorized to execute before the
celebration of the marriage, stipulating
conditions for the conjugal partnership with
respect to present and future property. in
such ante-nuptial contract, the affianced
persons can donate up to 1/5 of their present
property.
Art 84 FC. If the future spouses agree upon a regime other
than the absolute community of property, they cannot donate
to each other in their marriage settlements more than one-
fifth of their present property. Any excess shall be
 considered void.

Donations of future property shall be governed by the

provisions on testamentary succession and the formalities
of wills.

● The 2nd Par. provides that the donations of

future property between sps is governed by
the provisions of testamentary succession
and the formalities of a will.
○ Thus implies 2 kinds of donations
in an ante-nuptial contracts. [inter
vivos (par. 1) and mortis causa(par.
2]
● BASTE: This is in truth impossible since it
will violate the law on joint wills in Art 818.
Since an ante-nuptial contract reflects the
will of both parties, it violates the law on
joint wills.

2. That from the effect of nullity of Marriage (Art, 50

FC) a.k.a presumptive legitime
a. The effect of nullity of marriage (Art 36
FC), annulment and legal separation in FC
provide for the delivery of presumptive
legitimes by way of cash, properties or
sound securities to the common children

*Provision too long to insert*

● Art 50 FC provides two instances where the

law requires the payment of legitimes prior
to the death of the person who is supposed
to pay such:
○ (a) Annulment of marriage (Art 45
FC)
○ (b) Petition for declaration of
nullity of marriage (Art 40 FC)
● Upon the declaration of nullity or annulment
of the marriage, the spouses must
immediately pay to their children their
respective presumptive legitimes. In this
sense, succession takes place without the
element of death.
1. In de Borja vs. vda. de Borja, the surviving spouse
was, pending probate proceedings, permitted to sell
(by way of a compromise) her hereditary share to her
step children. However, in Lee vs. RTC of Quezon City,
the sale of the shares of stock, pending the judicial
settlement proceedings, by the decedent’s surviving
spouse and legitimate children to a third-party buyer
was disallowed. Explain the difference between the
results in these two cases.
The main difference between the two cases is that in
de Borja v. vda. De Borja, the conveyance involved the
hereditary share of an heir. Meanwhile in Lee v. RTC, it
involved a specific property of the estate (shares of stock)
prior to its judicial settlement.
An heir can sell his right, interest, or participation in
the property under administration under because the Civil
Code provides that possession of hereditary property is
deemed transmitted to the heir without interruption from
the moment of death of the decedent, even if the actual
extent of such share is not determined until the subsequent
liquidation of the estate. An heir may only sell his ideal or
undivided share in the estate, not any specific property
therein.
In the de Borja case, the conveyance involved the
share and interest of the stepmother Tasiana in the estate
of the decedent. In the Lee case, it involved a specific
property (shares of stock). Moreover, under the
Corporation Code, to be considered a shareholder of the
corporation, the shares of stock must first be transferred to
the heirs (after the settlement of the estate) and such
transfer must be recorded to the stock and transfer books
of the corporation.
2. In NHA vs. Almeida, what was the critical error
committed by Francisca which gave the opportunity to
her nephews to challenge her title to the lot which she
purchased from NHA?
● (technically ung error lang talaga is sinabi nya sya
lang talaga ung “sole heir”) The critical mistake is the
fact that she claimed to be the only remaining relative
and and that she was the exclusive legal heir of the
decedent ( Margarita).
3. Explain the misapplication of the Limjoco and
Billings rulings in the case of NHA vs. Almeida. (PAO)
The rulings in the cases of Limjoco and Billings created
an exception to the general rule (i.e. an estate is not a
juridical person). The Courts, in both cases, qualified this
exception as being only applicable in specific
circumstances wherein if an estate is not considered a
juridical person there would be a miscarriage of justice.
These circumstances include considering an estate as a
juridical person to prosecute a forger, which was the case
in Billings, and, by legal fiction, treating an estate as a
juridical person lest his properties and investments will be
prejudiced, which was the case in Limjoco.
On the other hand, in the case of NHA v. Almeida, such
circumstances were not present. Even if the Court did not
consider the estate of Margarita as a juridical person,
Francisca already fulfilled the obligations of Margarita.
Thus, neither NHA nor the estate itself will be prejudiced.
The general rule should apply in this case.
4. In Butte vs. Manuel Uy & Sons, Inc., explain the
critical error committed by (i) Manuel Uy & Sons,
Inc., and (ii) Marie Garnier, which gave Angela Butte
the right to redeem the 1/6 share of the property which
Manuel Uy acquired by purchase from Marie Garnier.
(PATALUD)
The critical error committed by Manuel Uy & Son
was the service of notice of sale made by their lawyer to
the administrator of Jose’s estate (BPI) which was
defective because the law requires the co-owner to serve
such written notice to the non-selling co-owners.
According to Article 1623, Manuel Uy was the vendee
which made the notice to Angela Butte irrelevant and
without basis.
On the part of Marie Garnier, her error was that she
sent it to BPI. When Marie Garnier sold her 1/6 share to
Manuel Uy, it was her duty to serve notices to the
Ramirezes because they had the right to pre-emption.
According to Article 1623, Marie should have sent the
written notice of sale directly to the co-owners of the
property including Angela Butte. Failing to do so, Angela
butte exercised her right of redemption within the
redemption period.
5. Explain the concept of future inheritance using
Blas vs. Santos. Do not copy-paste the decision. (Japy)
In the case of Blas v. Santos, the point of contention here
is “Exhibit A” wherein Simeon Blas gave one half of their
property to Maxima Santos as part of the conjugal
partnership of gains.
Exhibit A was not considered as “future inheritance”
because what Simeon Blas did in his will was merely to
declare that half of the properties belong to her wife as
part of the conjugal partnership. Therefore, when
Maxima entered into a contract with the children in the
first marriage, the subject properties were already in
existence.
 Future inheritance is basically the conveyance of the
successional rights which is prohibited by law.

6. Based on the rulings in Macam vs. Gatmaitan,

Rivera vs. People’s Bank, and Vitug vs. CA., explain
how an aleatory contract affect the inheritance of a
deceased person.

The three cases provide that aleatory contracts are valid and
binding among the parties. With the example of an
survivorship agreement, the property within the said
agreement shall not pass through the estate of the deceased
person but to the surviving person. It is well-settled in the
three cases that the said aleatory contract likewise bind the
respective successors of the deceased.

It affects the inheritance in such a way that the property

subject of an aleotory contract could be excluded from the
estate if it is a genuine and valid aleotory contract. It is neither
a donation mortis causa nor donation inter vivos. The three
cases above mentioned all have survivorship agreements
wherein all have some sort of "survivor takes all" provision.
In the survivorship agreements there was no showing that
properties subject of the agreement belongs to one party, and
is therefore presumed to be part of the co-ownership.

The survivorship agreements were merely contracts which

impose an obligation with a term, the term being death. Such
is valid provided that it is not (1) a means to hide inofficious
donations, (2) transfer property in fraud of creditors (3) defeat
the legitime of forced heirs.
 WEEK 2 - CHAPTER 2
Testamentary Succession
WILLS
WILLS IN GENERAL
Art.783.
A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after
his death.
Characteristics of a will (SUF-PEEF)
1. Statutory right - The making of a will is a right
conferred solely by law. It is not a natural right
a. Baste Notes: The writing of a will is a
privilege conferred by law; it is not a human
or a constitutional right
2. Unilateral Act - The consent of the beneficiaries to
the execution of the will is totally unnecessary.
a. Baste Notes: The participation of the
beneficiaries is limited to the acceptance or
repudiation of the inheritance at the
appropriate time following the death of the
testator that is.
i. the heir is certain of the death of
the testator;
ii. certain of his right to inherit from
the testator (admission of the will
to probate (838) and the substantive
validity of the testamentary
disposition: ie:
1. non-impairment of the
legitime (906),
2. no preterition of
compulsory heirs in the
direct line (854),
3. heir is not disinherited
(915),
4. heir is capacitated to
succeed (1024); and
iii. There is a residual balance in the
hereditary estate which shall be
distributed to the heirs (Salvador
vs. Sta. Maria).
3. Formal Act - Follow the form prescribed in Articles
804 - 806 (Notarial will). Follow Article 810
(Holographic will).
a. Failure to comply with the formalities of a
will as a general rule can result in its nullity
and denial of probate
4. Personal Act - The determination of the
testamentary dispositions must be done by the
testator himself.
a. But the mechanical act of drafting and
finalizing the will is best done by a lawyer.
5. Effective Mortis Causa - The will becomes effective
upon the death of the testator, subject to the condition
that it is admitted to probate.
a. XPN is Succession inter vivos under Aticle
50 of the FC(Annulment of marriage)
6. Essentially Ambulatory - A will is revocable
anytime before death. Any stipulation that such is
irrevocable is void.
a. Testator must possess testamentary
capacity at the time of revocation.
7. Free Act - A notarial will must be acknowledged
before a notary public that the will is his free and
voluntary act.
a. A Holographic will, while need not be
notarized, the testator must still freely give
his consent in the making of the holographic
will.
8. Au: Is Individually made:
a. Connect to the prohibition on joint wills
***
Limitations on the Power of Control
While Article 783 provides that a person has control to a
certain degree in the disposition of his estate, this is subject to
the following limitations (not exhaustive):
1. Legitime - “That part of the testator’s property which
he cannot dispose of because the law has reserved it
for certain heirs who are called compulsory heirs.”
a. The only way to deprive a compulsory heir
of their legitime is through disinheritance
and only for the specific grounds
enumerated by law.
b. An heir can demand that his legitime be
satisfied if the testator left an inheritance
less than the legitime.
c. Baste Notes: it is reserved by law for the
compulsory heirs; but if the testator has
none, 842 allows greater freedom to dispose.
i. Characteristics of a will have been
asked in the bar exams at least 5
times in the pastnote that in the
Vargas case, presumptive legitime
is available only in 2 instances:
voidable marriages and bigamous
under art. 40
2. Reservable Property - Article 891. The ascendant
who inherits from his descendant any property which
the latter (descendant) may have acquired by
gratuitous title from another ascendant, or a brother
or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit
of relatives who are within the third degree and who
belong to the line from which said property came.
 a. The reservable property does not form part
of the estate of the deceased ascendant and
therefore such ascendant may not bequeath
the reservable property by will.
b. Baste Notes: 891 – A reservable property is
not disposable by will by the reservor, it not
being part of his estate (Florentino vs.
Florentino).
3. Mistress - No testamentary benefit for mistress.
a. Baste Notes: A disposition in favour of a
mistress is void (Nepomuceno vs. CA).
4. Fideicommisary Substitution - The substitution
must be that the first and second heirs must be related
to each other within the first degree of
consanguinity, otherwise the substitution is void.
a. Baste Notes: 863 - Property covered by a
fideicommissary substitution cannot be
disposed by the first heir as it is not part of
his estate.
5. Condition not to Marry - Instituting an heir but
subject to the absolute condition not to contract
FIRST marriage is void and deemed not written.
a. But a subsequent marriage is valid if
imposed on the widow or widower by the
deceased spouse or by the deceased spouse’s
ascendants/descendants
b. Baste Notes: 874 – A condition prohibiting
marriage is void.
i. A prohibition on subsequent
marriage is valid only if imposed
by the deceased spouse, or by his
ascendants or descendants.
6. Dispocicion Captatoria - Article 875. Any
disposition made upon the condition that the heir
shall make some provision in his will in favor of the
testator or of any other person shall be void. (794a)
7. Dispositions in favor of Incapacitated persons -
Testamentary dispositions made in favor of persons
disqualified under Articles 1027 and 1028 are void.
a. Baste Notes: 1031 – A disposition in favour
of a disqualified person is void even if
disguised as a contract.
i. Refer to the incapacities in 1027
(undue influence), 1028 (morality),
and 1032 (unworthiness).
ii. Note, however, that incapacity by
reason of unworthiness may be
condoned by the testator (1033).
Necessity of Conveyance of Property
A will must convey property; otherwise it is not a will. If the
only disposition of a will:
1. relates to the recognition of an illegitimate child, it is
not a will because the document does not dispose
property.
a. The document need not be probated.
2. Relates to the disinheritance of a compulsory heir, it
is a will because the exclusion of compulsory heir
from the inheritance results in the increase in the
shares of others.
a. A valid disinheritance is an indirect
adjudication of property to one or some of
the qualified heirs, for which reason probate
is necessary.
3. Baste Notes:
a. Furthermore, 838 provides no will shall
dispose property unless it is probated.
b. Note, however, that a will containing
nothing but a disinheriting clause is a will
and requires probate (Seangio vs. Reyes)
because the legitime deprived of the
disinherited heir is tacked into the legitime
of the other compulsory heirs, unless the
right of representation is available.
Probate is an indispensable requirement in order that a
will may pass property.
Seangio vs Reyes
Facts: Private respondents (PR) filed a petition for the
settlement of the intestate estate of the late Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed
Seangio, opposed the petition. They argue that Segundo left a
holographic will disinheriting Alfredo Seangio, one of the
private respondents. The petitioners filed for probate of the
holographic will. Private respondents moved for dismissal of
the probate proceedings on the grounds that the holographic
will does not contain any disposition since what was in there
was merely disinheritance.
The Holographic will:
Ako si Segundo Seangio ... inaalisan ko ng lahat at anumang
mana ang paganay kong anak na si Alfredo Seangio dahil siya
ay naging lapastangan sa akin ...
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin
pagalan para makapagutang na kuarta ... sa China Bangking
Corporation na millon pesos at hindi ng babayad at hindi ng
babayad ito ay nagdulot sa aking ng malaking kahihiya sa
mga may-ari at stockholders ng China Banking.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo
ng anak ko at hayanan kong inaalisan ng lahat at anoman
mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak
at hindi siya makoha mana.
Issue: Whether the holographic will contain testamentary
dispositions? - yes-
Held: A holographic will as provided by Art. 810 must be
Written, Dated, and SIgned by the testator himself. The
document, although may initially come across as a mere
disinheritance, conforms to the formalities of the holographic
will. The intent to dispose mortis causa can be clearly
deduced from the terms of the instrument. While there is no
affirmative disposition of the property, the disinheritance of
Alfredo is an act of disposition in itself In other words, the
disinheritance results in the disposition of the property of the
testator.
Holographic wills are prepared by persons (usually) who are
not well versed with the law and therefore a liberal
interpretation should be given.
Note: the dispositive portion of the ruling remanded the case
to the probate court with instruction to hear theh proceeding
for the allowance of the will
Lecture Notes: The legitime deprived of a disinherited heir is
added to other compulsory heirs, or otherwise transferred to
the descendants of the disinherited heirs by right of
representation. Hence, there is a property disposition.
Observations on Seangio
The dispositive portion is perplexing. The SC has already
declared the formal validity of the will. SO what else is left
for the probate court to do after the SC has declared the
extrinsic validity of the will? At best, the only remaining
function of the probate court is to liquidate the estate and to
distribute the net proceeds to the intestate heirs of Segundo to
the exclusion of Alfredo.
Art.784
The making of a will is strictly personal act; it cannot be left
in the whole or part to the discretion of a third person, or
accomplished through the instrumentality of an agent
attorney.
Non-Delegability of Testamentary Discretion
The testamentary dispositions in a will must be left entirely to
the discretion of the testator. Only a testator can determine the
proper objects of his bounty.
What can be delegated, at least for a notarial will, is the
mechanical act of preparing the notarial will to an attorney.
Test to determine if what is written is a testamentary
disposition (and therefore must be personally made by the
testator):
PRACTICAL TEST: If it answers the questions:
See 785, 787
1. “Who will inherit”
2. “What or how much will be inherited”
The Seangio case answered the above questions
Who will inherit? - everyone except Alfredo
what or how much will be inherited? - nothing for alfredo, the
rest to the heirs via intestacy
Art.785
*Baste: nakafocus sa tao*
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.
Art.786
*Baste: relate with 1030 & 1080 NCC*
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 of money are to be given or
applied.
Baste Notes:
● General Rule: The duration, efficacy of designation
of heirs, and the determination of the portions which
they are to take, when referred to by name, cannot be
delegated to third person (785).
○ This function is an exercise of testamentary
discretion.
● XPN: However, 786 permits the testator to delegate
to a third person the distribution of specific property
or sums of money that he may leave in general to
specified classes (see 1030 on class institution) or
causes, including the designation of the persons,
institutions, or establishments which the property or
sums of money are to be given or applied.
○ This is not an exercise of testamentary
discretion, but rather, the implementation of
the testamentary discretion which was
exercised by the testator.
● Essentially ambulatory – The revocation of a will
cannot be prohibited nor restricted (828).
● Free Act – Vice of consent in the execution of a will
is a ground to disallow probate.
○ A notarial will must be acknowledged
before a notary public (806).
○ A will procured by undue influence shall be
disallowed (839[4]).
○ A will procured by fraud shall be disallowed
(839[5]).
○ A will procured by mistake (as when the
testator did not intend the document to be
his will) shall likewise be disallowed
(839[6]).
Strictly a Personal Act
The making of a will is a strictly personal act. The testator is
prohibited from delegating to a 3rd person the determination
of:
1. Duration of the designation of heirs, legatees or
devisees
2. Efficacy of their designation
3. Portions of property to be given to such heirs,
legatees and devisees.
NOTE:
1. While the exercise of testamentary discretion is
non-delegable;
a. the implementation of testamentary
disposition is delegable.
2. The testator cannot delegate to third person the
discretion to determine whether or not a testamentary
disposition would be operative.
XPN to the non-delegability - Class Institution
1. The prohibited delegation in Art 785 does not
apply when the testator makes a class institution
which is permitted by Art. 786.
a. The testator may entrust to a 3 rd person the
distribution of the property the he left by
will to such class or cause.
b. For example, in Art. 1030 the determination
of the specific person who are to receive
under the testamentary disposition may be
delegated by the testator to another person;
i. failing which the law delegates
such function to the:
ii. executor appointed by the testator
or if there is not executor,
1. to the 3 municipal officers
appointed by law.
2. Reason for XPN: The testator has already exercised
the testamentary discretion. (ie. leave something to
the poor in general)
a. What is left to the third person is the
mechanical act of distributing that which
the testator had set aside for such class.
b. likewise there is a presumption that:
i. the delegation of function to the
third person is in the honest belief
that the third person so authorized
is in a better position to give
meaning and effect to the
testamentary disposition.
ii. that this type of delegation is
allowed because when a person
makes a class designation, he is
unfamiliar with such matter
Art. 787
*hindi nakaspecify sa tao* compare with 785 NCC*
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.
Prohibited delegation
● Baste Notes: The determination whether or not a
disposition shall take effect or become operational
cannot be delegated to a third person (787).
● A testator is absolutely prohibited from delegating to
a 3rd person the discretion to determine whether a
testamentary disposition would be operative.
● By entrusting to a 3rd person the determination as to
whether the testamentary disposition will be
operative, a testator virtually gives the 3rd person the
power to countermand his testamentary directive.
● Indirectly, by countermanding the testamentary
directive, the third person could effectively push the
inheritance to the substitute heir, if the testator
appointed one, or otherwise to the intestate heirs of
the testator.
Art. 789
When there is an imperfect description, or when no person
or property exactly answers the description, mistakes and
omissions must be corrected, if the error appears from the
context of the will or from extrinsic evidence, excluding the
oral declaration 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
Defective Testamentary Dispositions
A testamentary disposition may suffer from any of the
following defects:
1. Imperfect description of a property to be given to a
particular recipient.
2. Imperfect description of a person who is to receive
the property
3. Uncertainty on the face of the will on the application
of any of its provisions;
a. ie. ambiguity of a testamentary disposition
Classification of Defects
1. Patent Defects
a. These are defects that are apparent from a
reading of the will.
b. Example: “to some of my brothers I
bequeath ½ of my estate”
i. the reader cannot determine who
among the surviving brothers are
entitled to receive the inheritance
ii. The ambiguity is apparent by
merely reading it.
2. Latent Defects
a. These are defects that are non-apparent
from the reading of the will.
b. The ambiguity will only appear when the
disposition is examined in light of extrinsic
facts and circumstances
c. Example of Latent as to the person: Facts-
i. The testator gave 100k worth of
legacy to his friend Joe
 ii. However, the testator has 2 friends
named Joe at the time of his death
d. Example of Latent as to the property: Facts-
i. The testator devised a fishpond in
Roxas City to his Joe
ii. However, upon death of the
testator, he has 2 fishpond in
Roxas city
IMPORTANCE: because as the will, as defined, is an act
whereby a person is permitted, with the formalities prescribed
by law, to control to a certain degree the disposition of his
estate to take effect after his death. (Art. 783)
Resort to interpretation ONLY IF THERE IS AN
AMBIGUITY in the will.
● Where the will is clear, there is no room for
interpretation.
Remedial measures
Remedies in case of imperfections and ambiguities in the will.
(In Dizon-Rivera v. Dizon)
1. 1st. Examine the will in its entirety and from the
other provisions, make an attempt to correct the
mistake, fill the omission, or clarify the ambiguity of
the relevant testamentary disposition, if it is possible.
2. 2nd, if the will does not provide relevant information
use extrinsic evidence, excluding the oral declaration
of the testator, in order to ascertain his true intention.
Note:
● The use of evidence intrinsic to the will is preferred
mode of correcting eros, filling the omissions and
clarifying ambiguities.
○ Should any ambiguity arise in the
interpretation of any provision thereof
resulting from an error or omission, the
same must be rectified by primary reference
to the will.
■ Only upon a failure of the will to
cure the error can extrinsic
evidence be used to correct the
same.
● If after using the 2nd remedy the error, omission, or
ambiguity is not cured, only then shall the
disposition be considered VOID.
● However, insofar as testimonial evidence is
concerned, the oral declarations of the testator are
excluded.
○ Reason to the exclusion: The testator will
have no opportunity to controvert such
testimony since death has excluded the
testator from explaining his intention;
hence, no one is permitted to speculate on
such an intention.
● Such rules find basis on Parol evidence rule and
Deadman’s Statute.
○ REASON: Because human memory is not
reliable.
■ Parol evidence is based upon the
consideration that when the parties
have reduced their agreement on a
particular matter into writing, all
their previous and
contemporaneous agreements on
the matter are merged therein.
■ Deadman’s Statute (Sec 23 Rule
130 ROC)– In an action where a
claim is filed against the estate,
where the plaintiff is the claimant
and the defendant is the executor,
both parties are prohibited to
testify as to something which the
deceased said in his lifetime.
Baste Notes:
● Determine the testamentary intent in order to resolve
the ambiguity; follow the testator’s intention.
● Use the will as the primary source of information
(see the parol evidence rule), failing which, use
extrinsic evidence (exception to parol evidence rule)
but exclude the testator’s oral declaration (see the
dead man’s statute).
● To the extent legally possible, interpret the vague
disposition such that it shall be operative (788).
○ The will of the testator is the supreme law
to be followed, except if the disposition is
void.
Art. 788
If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by which
the disposition is to be operative shall be preferred.
Notes: The testator’s will is the supreme law of succession.
● The true intention of the testator must be ascertained
if a disposition is ambiguous.
● In ascertaining such intent, the rules of interpretation
must be fully utilized if only to ensure that to the
extent legally possible the testamentary directive is
given effect.
● The law empowers the testator to control to a certain
degree the disposition of his estate.
○ hence, the exercise of that control should be
respected
Art 790
The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in
another sense can be gathered, and that other can be
ascertained.
Technical words in a will are to be taken in their technical
sense, unless the context clearly indicates a contrary
intention, or unless it satisfactorily appears that the will was
drawn solely by the testator, and that he was unacquainted
with such technical sense.
Note: Technical words in a will are to be taken in their
technical sense,
● XPN: unless the context clearly indicates a contrary
intention, or unless it satisfactorily appears that the
 will was drawn solely by the testator, and that he was
unacquainted with such technical sense.
● Technical words are interpreted in their technical
sense unless:
○ testamentary intent provides otherwise OR
○ it can be proven that the testator was
unfamiliar with such technical word
■ and he made the will unassisted by
any technical person.
Baste Notes:
● Use the ordinary and grammatical interpretation of
vague words, unless a contrary intention clearly
appears (790).
De Roma v. CA
GR. L-46903
Facts:
1. Candeleria De Roma adopted two daughters, Buhay
and Rosalinda. She died intestate.
a. When administration proceedings were
ongoing, Buhay was appointed
administratrix and filed an inventory of the
estate.
2. Opposed by Rosalinda on the ground that certain
properties donated by their mother to Buhay and
fruits thereof had not been included.
a. The Parcels of Land totaled P10,297.50 and
the value is not disputed.
3. TC: issued an order in favor of Buhay because when
Candelaria donated the properties to Buhay she said
in the Deed of Donation “sa pamamagitanng
pagbibigay na din a mababawing muli” which the
TC interpreted as a prohibition to collate and besides
the legitimes of the two daughters were not
impaired.
4. CA: it was reversed as it merely described the
donation as irrevocable not an express prohibition to
collate.
Issue: Whether or not these lands are subject to collation. -
Yes
Held:
1. The phrase “sa pamamagitan ng pagbibigay na di na
mababawing muli” merely described the donation as
“irrevocable” and should not be construed as an
express prohibition against collation.
a. The fact that the donation is irrevocable
does not necessarily exempt the subject
from the collation required under Art. 1061.
2. The intention to exempt from collation should be
expressly, plainly and unequivocally as an exception
to the general rule announced in Art. 1062.
a. The court surmise from the use of such
terms as "legitime" and "free portion" in the
deed of donation that it was prepared by a
lawyer, and court may also presume he
understood the legal consequences of the
donation being made.
b. It is reasonable to suppose, given the precise
language of the document, that he would
have included therein an express
prohibition to collate if that had been the
donor's intention.
c. Absent such indication of that intention, the
rule not the exemption should be applied
3. Baste Notes:
a. Technical words to be given technical
meaning, except if the will was drafted by a
testator who is not acquainted with the
technical meaning of the word used (de
Roma vs. CA, where the testatrix
inadvertently used the terms sapilitang
tagapagmana (compulsory heirs) and
sapilitang mana (legitime) when referring
to her informally adopted children.
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.
Dizon-Riveravs. Dizon
G.R No. L- 24561 | June 30, 1970
Facts:
1. The testatrix, Agripina J. Valdez, a widow, died and
was survived by 7 compulsory heirs, 6 legitimate
children and 1 legitimate granddaughter.
2. The deceased left a will and named beneficiaries in
her will as those above mentioned heirs. The
property was appraised having the value of
P1,801,960. The will was then admitted to probate
3. The legitime of each of the 7 compulsory heirs
amounted to P129,362.11 (1/7). In her will, the
testatrix commanded that her property be divided in
accordance to her testamentary disposition where she
devised and bequeathed specific real properties to
her 6 children and 8 grandchildren.
a. It was found that Marina (Executrix-
Appellee) and Tomas (appellant) are
admittedly constituted to have received
more in the will.
4. On the other hand, the oppositors submitted their
own computation of the partition and proposed the
following: (a) all the testamentary disposition were
proportionally reduced to the value of ½ of the entire
estate amounting to P905,534.78; (b) that the shares
of the oppositors should consist of their legitime plus
 the devises in their favor proportionally reduced; ©
in payment of the total shares of the appellants in the
entire estate, the properties devised to them plus
other properties left by the testatrix adjudicated to
them; (d) to the grandchildren who are not
compulsory heirs are adjudicated the properties
respectively devised to them. (check book pls para
sa computation)
ISSUE: W/N the computation of the oppositors should be
given merit- NO
HELD:
The SC held that the intention and wishes of the testator,
when clearly expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the trial, relative to
its execution and fulfillment, must be settled in accordance
therewith following the plain and literal meaning of the
testator’s words.
The testator's partition was a valid partition of her estate. Such
partition shall be respected, in so far as it does not prejudice
the legitime of the compulsory heirs. The right of a testator to
partition of his estate is subject only to the right of
compulsory heirs to their legitime.
The testatrix’s intent that her testamentary dispositions were
by way of adjudications to the beneficiaries as heirs and not
as devisees, and that said dispositions were therefore on
account of the respective legitimes of the compulsory heirs
is expressly borne out in the 4th paragraph of her will. (Bale
parang sinasabi ng court na satisfied naman na ung Legitime
(50%) kasi ung testamentary disposition nya sa will in favor
of those “compulsory heirs” already formed part of the
legitime)
IN SHORT: Here the SC applied the holistic approach (791)
instead of making it inoperative, which is the intent of valdes
to favor Marina and Tomas. The court said that we should
not frustrate the last wishes of the decedent. If we will just
follow the rules propounded by the other heirs, then we might
as well follow the rules of intestacy.
in art 906, the impairment of the legitime must be cured by
simply completing the legitime - not by revising the
dispositions of the testator
VDA DE VILLAFLOR V. JUICO, 4 SCRA 550 (1962)
FACTS:
1. On October 9, 1908 Don Nicolas Villaflor, a wealthy
man of Castillejos, Zambales, executed a will in
Spanish in his own handwriting, devising and
bequeathing in favor of his wife, Doña Fausta
Nepomuceno, one half of all his real and personal
properties, giving the other half to his brother Don
Fausto Villaflor.
a. Don Nicolas died in 1922, without begetting
any child with his wifeDoña Fausta.
2. The Doña Fausta, already a widow, thereupon
instituted special proceedings for its settlement of her
husbands’ estate and that proceeding, she was
appointed judicial administratrix.
a. She submitted a project of partition, and the
probate court approved the project of
partition and declared the proceedings
closed.
3. As the project of partition, Exhibit “E” now shows
Doña Fausta received by virtue thereof the ownership
and possession of real and personal properties
mentioned and referred to in clause with the will.
a. The order approving the project partition
(Exhibit C), however, expressly provided
that approval thereof was “ sin perjuico de
los disperesto in al clausala 8.0 del
testamento de Nicolas Villaflor”.
4. In 1956, Doña Fausta died without having begotten
any child with the deceased Don Nicolas.
a. The estate is being settled in a special
proceeding with its defendant Delfin N.
Juico, as the duly appointed and qualified
judicial administrator.
5. The plaintiff Leonor Villaflor Vda. De Villanueva is
admitted to be the same Leonor Villaflor mentioned
by Don Nicolas in his will as his “sobrina nieta
Leonor Villaflor”. (niece)
ISSUE: WON defendant’s position, adopted by the trial court,
is that the title to the properties aforesaid becomes absolutely
vested in the widow upon her death, on account of the fact that
she never remarried, will be sustained. - No, the testament of
Don Nicolas clearly and unmistakably provided that his
widow should have the possession and use (usufruct) of the
legacies while alive and did not remarry
HELD:
1. It necessarily follows that by the express provisions
of the 8th clause of his will, the legacies should pass
to the testators’ “sobrina nieta”, appellant, upon the
widow’s death, even if the widow never remarried in
her life lifetime.
2. The Court agree with Vda Villafor that the plain
desire and intent of the testator, as manifested in
clause 8 of his testament, was to invest his widow
with only a usufruct or life tenure in the properties
described in the seventh clause, subject to the further
condition (admitted by the appellee)
a. that if the widow remarried, her rights
would thereupon cease, even during her own
lifetime.
3. That the widow was meant to have no more than a
life interest in those properties, even if she did not
remarry at all, is evident from the expressions used
 by the deceased "uso y posesion mientras viva" (use
and possession while alive) in which the first half of
the phrase "uso y posesion" instead of "dominio" or
"propiedad") reinforces the second ("mientras viva")
a. The testator plainly did not give his widow
the full ownership of these particular
properties, but only the right to their
possession and use (or enjoyment) during
her lifetime.
b. This is in contrast with the remainder of the
estate in which she was instituted universal
heir together with the testator's brother
4. Consequently, the widow had no right to retain or
dispose of the aforesaid properties, and her estate is
accountable to the reversionary legates for their
retain, unless they had been lost due to fortuitous
event, or for their value should rights of innocent
third parties have intervened.
5. BASTE NOTES:
a. A widow was given “use and possession” of
certain properties for as long as she
remained in the state of widowhood,
otherwise the property shall pass to the
testator’s niece.
b. This disposition was Interpreted to mean
that the widow was merely given a lifetime
usufruct over those properties because she
did not remarry.
c. In short, the disposition did not give the
widow absolute ownership over the
properties; her right thereto was subject to a
resolutory condition.
Observation on vda. de Villafor
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.
The general rule is that each disposition is independent from
another such that if one is invalidated then the other remains
unaffected.
● If it can be shown that the testator made the
dispositions interrelated or interconnected, then the
invalidity of one invalidates the other.
● Test of Baste: A void testamentary disposition will
not result in the nullity of another disposition
UNLESS the valid dispositions depend upon the void
disposition.
BALANAY, JR. V. MARTINEZ, 64 SCRA 454 (1975)
FACTS:
1. Leodegaria Julian died in 1973.
a. She was survived by her husband, Felix
Balanay, Sr., and by their six legitimate
children, namely, Felix Balanay, Jr., Avelina
B. Antonio, Beatriz B. Solamo, Carolina B.
Manguiob, Delia B. Lanaban and Emilia B.
Pabaonon.
2. Felix J. Balanay, Jr. filed in the lower court a
petition for the probate of his mother's notarial will.
a. Paragraph V of the will stated that after her
husband's death, her paraphernal lands
and all the conjugal lands should be
divided and distributed in the manner set
forth in that part of her will.
b. She devised and partitioned the conjugal
lands as if they were all owned by her.
i. She disposed of in the will her
husband's ½ share of the conjugal
assets.
3. Felix Balanay, Sr. and Avelina B. Antonio opposed
the probate of the will on the grounds of lack of
testamentary capacity, undue influence, preterition of
the husband and alleged improper partition of the
conjugal estate.
ISSUE: WON the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or
formal validity, and in declaring the will void
HELD: Yes. The probate court erred in holding that he will
was void and in converting the testate proceeding into an
intestate proceeding despite an earlier Order giving effect to
the surviving husband's conformity to the will and to his
renunciation of his hereditary rights which presumably
included his one-half share of the conjugal estate.
1. The rule is that "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" (Art 792 NCC).
a. "Where some of the provisions of a will are
valid and others invalid, the valid parts will
be upheld if they can be separated from the
invalid without defeating the intention of the
testator or interfering with the general
testamentary scheme, or doing injustice to
the beneficiaries"
2. The statement of the testatrix that she owned the
"southern half" of the conjugal lands is contrary to
law because, although she was a co-owner thereof,
her share was inchoate and pro indiviso (Art. 143,
Civil Code). But that illegal declaration does not
nullify the entire will.
a. The will is intrinsically valid and the
partition therein may be given effect if it
does not prejudice the creditors and impair
the legitimes.
 b. The distribution and partition would
become effective upon the death of Felix, Sr.
c. In the meantime, the net income should be
equitably divided among the children and
the surviving spouse.
3. It should be stressed that by reason of the surviving
husband's conformity to his wife's will and his
renunciation of his hereditary rights, his one-half
conjugal share became a part of his deceased wife's
estate.
a. His conformity had the effect of validating
the partition made in paragraph V of the will
without prejudice, of course, to the rights of
the creditors and the legitimes of the
compulsory heirs.
4. Balanay stresses the jurisdiction of the probate court.
a. Unless the nullity of the will is patent on its
face, the probate court should first pass upon
the extrinsic validity of the will before
passing upon its substantive validity.
b. Hence, the distinction between this case and
Nuguid.
5. BASTE notes:
a. There were several void dispositions in the
will of the testatrix: eg
i. her gratuitous allocation to herself
of a definitive portion of conjugal
assets;
ii. the prohibition to distribute the
legitime of the children during the
lifetime of the surviving spouse;
iii. the surviving spouse was not given
his legitime, etc.
b. But there were a number of valid
dispositions.
i. The void dispositions were set
aside, but the valid ones were
implemented.
6. Upon the other hand, while the court correctly
modified the husband's right to waive his hereditary
right with respect to the estate of the deceased
spouse, and his right to waive his half share in the
conjugal estate, pursuant to the provisions of Art 750
and 752 NCC, the court was silent on the validity of
the husband's conformity to the distribution of the
conjugal estate in accordance with the terms of the
will of the wife.
7. Obviously, the court assumed the validity of the
renunciation of the husband of his share in the
conjugal estate.
8. Such waiver, however, may fall into one of two
possible categories, i.e., inter vivos or mortis causa.
If it was a waiver effective inter vivos, then it would
have amounted to a donation to inter vivos to the
wife.
a. That would have been illegal under existing
laws.
9. On the other hand, if it was a waiver mortis causa,
then the formalities of a will should have been
observed, failing which, the waiver would be void.
a. Furthermore, the waiver mortis causa would
have required the wife to survive the
husband.
10. In either case, the alleged waiver by the husband of
his half share in the conjugal estate resulted in a
transmission of property to the wife.
a. And consequently, a characterization of such
waiver along the parameters mentioned
above is necessary and inescapable.
b. The fundamental question, therefore, that
demands an answer is whether or not a
husband or wife could waive his or her share
in the conjugal estate in favor of the other by
an act inter vivos.
c. We exclude, however, a waiver resulting
from a successful petition for separation of
property, and the liquidation of the conjugal
partnership (or for that matter, the absolute
community of property) resulting from the
issuance of a decree of annulment or a
decree of nullity.
11. It may be surmised that the validity of the waiver had
to be assumed, properly or improperly, otherwise the
case will fall under the provision of Art 784 which
categorically states that the making of a will is strictly
a personal act, and that the exercise of testamentary
discretion cannot be delegated by a person to another.
a. In any case, Balanay leaves many questions
unanswered. Let alone the fact that the
decision did not discuss why the husband
was not preterited within the meaning of Art
854.
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.
Purpose of the Law
● Testator’s balance sheet continuously changes over
time.
● Art. 793 recognizes that a testator may, after the
execution of the will, acquire new assets which he
could have disposed of in his will.
● The objective of Art. 793 is to permit a testator to
dispose of the property which he may acquire after
the making of a will without having to execute a new
will or to amend the existing will.
● This procedure minimizes the occurrence of partial
intestacy.
○ This article therefore permits the testator to
dispose of future property.
● The only required - that the TESTATOR to indicate
in his will an intention to dispose all said property
 acquired after making of the will, and to provide for
their disposition
● Baste Notes:
○ After-acquired Properties – Properties
acquired by the testator after the execution
of the will shall pass thereby as if the
testator had possessed it at the time of
execution of the will, if it expressly appears
in the will that such was his intention.
○ It is a mechanism that will avoid partial
intestacy
781 v. 793
● 781 - refers to the accruals to the inheritance after the
death of the testator that is, after succession has
opened. accruals DOES NOT FORM part of the
estate but shall be answerable to the payment of the
testator’s death. Belongs to the heirs.
● 793 - refers to the assets acquired by the testator after
the execution of the will; hence, these assets FORMS
part of his estate.
General rule and exceptions
GR: A will can only distribute the properties owned by the
testator at the time of the execution of the will.
● This article is an exception to this rule, it gives the
testator the benefit of disposing future property
should he indicate his intention to do so.
○ At best, the testator can make general
provision or umbrella provision for the
disposition of property which may pertain
to him after the execution of the will.
Situation wherein even if no provision for future property is
embodied in the will, future property may nonetheless pass to
the heirs:
1. A republished will relates to the properties of the
testator as of the time of republication
2. A testamentary disposition involving a property
which the testator erroneously thought to be his is
VOID.
a. However, Subsequent acquisition, the
testamentary disposition shall be given
effect.
Sebastian lecture:
2 ways to distribute testate
1. Institution of heirs
a. Give portion/ fractions/ percentages
b. Umbrella provision
2. Legacies/ Devises
a. Name a particular property (real/ personal)
Art 794 *contrast with Art. 929*
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
● Every legacy or devise is presumed to convey to the
beneficiary the entirety of the testator’s interest in
the specific property subject matter thereof.
● If the testator’s interest is limited to an aliquot part,
the legatee/ devisee will acquire the property only to
the extent of the testator’s interest.
Grant of less than full interest
● While the general rule is that a testamentary
disposition confers upon the beneficiary the totality
of the testator’s interest in the property subject
matter, a testator may confer a less interest.
Grant of greater interest
● A testator is permitted to convey to a beneficiary an
interest in the property that exceeds his right thereto.
○ If the testator owns only a part of the thing
bequeathed, the legacy or devise shall be
understood limited to such part thereof,
■ unless the testator declares that he
gives the thing in its entirety.
***The explicit grant is the testator’s directive that the 3 rd
party interest in the thing be acquired [ by the executor] so
that it may be given in its entirety to the designated
beneficiary. *** (as in order to buy/gain ownership of the
thing)
Baste Notes:
● Extent of the Gift – A legacy or devise gives to the
beneficiary all the interest of the testator on the thing
bequeathed, unless it clearly appears that he intended
to give a less interest (794).
○ But in 929, the testator may give a greater
interest, as in when he owns only a part of
the thing and he gave it in its entirety to the
beneficiary.
● This disposition is construed as an implicit order to
acquire the portion not owned by the testate
Art.795.
The validity of a will as to its form depends upon the
observance of the law in force at the time it is made.
 Rules as to Formal Requirements
As to time
Formal validity is governed by the law in effect at the time of
the execution. The form prescribed by law in the execution of
a will is intended to close the door on bad faith and fraud, to
avoid substitution of wills and testaments, and to guarantee
their truth and authenticity. (Lee vs Tambago)
As to place SEE. ART. 17 NCC
A Filipino testator living abroad or temporarily living outside
the Philippines is not required to comply with Philippine
formalities. It may not be easy for the testator to find a
competent person who could assist him in complying with
Philippine formalities.
Law permits a foreign national to execute his will following
the formalities prescribed by Philippine law
NOTE: The NCC took effect on August 30, 1950
Conflicting rules as to Formal Requirements
As to Place of execution
Filipino a. Philippine law
Testator b. Law of the country in which they
are executed (Art. 17, NCC)
c. If he is in a foreign country, he is
authorized to make a will in any
form established by law of the
country in which he may be;
such will may be probated in the
Philippines ( Art. 815, NCC)
R/NR Alien a. Law of the country in which they
Testator are executed (Art.17,NCC)
b. If the alien’s will produces effect
in the Philippines if it conforms
with the formalities prescribed
by the law where he resides (Art.
816, NCC)
Conflicting rules as to Substantive Requirements
Time Law in force at the time of death of the
testator.
● This is inline with Art. 777 saying
that succ is @ moment of death
As to place It shall be regulated by the national law of
the person whose succession is under
consideration, regardless of the country
where the property may be found. (Art 16,
NCC).
Bellis vs Bellis
DOCTRINE: The formal validity of the will depends upon
the observance of the law in force at the time of the execution.
On the other hand, the substantive validity of the dispositions
therein is governed by the laws in force at the time of the
death of the testator.
FACTS:
● Amos Bellis, an American citizen and resident of
Texas, executed a will in the Philippines, in which he
disposed of his estate to his relatives including his
first wife, his 3 illegitimate children, and his
surviving children from his first and second marriage.
● Upon his death, his will was admitted to probate in
Manila.
● The executor complied with the provisions of the will
and filed a project of partition.
● Plaintiffs, 2 of the 3 illegitimate children, opposed the
partition on the ground that they were deprived of
their legitimes as illegitimate children.
ISSUE: Which law should apply—Texas law or Philippine
law
HELD:
● Texas law should apply.
● Art 16 par 2 and Art 1039 NCC state that the national
law of the decedent, in intestate or testamentary
successions, shall govern with regard to the four
items:
○ (a) order of succession;
○ (b) the amount of successional rights;
○ (c) the intrinsic validity of the provisions of
the will; and
○ (d) the capacity to succeed.
● The parties admit that the decedent was a resident of
Texas and under the laws of Texas there are no
forced heirs or legitimes.
● Accordingly, the intrinsic validity of the provision of
the will and the amount of successional rights are to
be determined under Texas law and not the Philippine
law.
● AU:
○ Facts:
■ 1st will - disposition of prop sa us
■ 2nd will - prop sa pinas
■ both wills dinisregard yung
legitime so may nagreklamo
○ SC: since walang legitime sa us, us citizen si
decedent; therefore di applicable for the
decedent by virtue of Art. 16
SUBSECTION 2. Testamentary Capacity and Intent
Article 796.
All persons who are not expressly prohibited by law may
make a will.
Article 797.
Persons of either sex under eighteen years of age cannot
make a will.
Article 798.
In order to make a will it is essential that the testator be of

sound mind at the time of its execution.
Elements of Testamentary Capacity
1. The testator is a natural person
a. Baste Notes:
i. Natural person not prohibited by
law to make a will (but there is no
such law that prohibits anyone from
making a will);
1. The testator is at least 18
years of age at the time of
execution of the will
2. The testator must be of sound mind at the time of the
execution of the will
a. Baste Notes:
i. Unimpaired mental health not a
requisite; it is sufficient that the
testator knows the nature of his
estate, the character of the
testamentary act, and proper object
of his bounty (Alsua-Betts vs. CA).
ii. Forgetfulness if not synonymous to
unsound mind (Baltazar vs. Laxa).
iii. Sanity is presumed; insanity must
be proved by the person alleging it.
iv. A person publicly known to be
insane one month or less before the
execution of the will is presumed
insane; lucid interval must be
proved.
v. Supervening incapacity does not
invalidate a will; nor can
supervening capacity validate a
void one.
3. The testator is not expressly prohibited by law from
making a will.
a. Generally: wala ng pinagbabawalan; Baste:
i. A married woman was explicitly
authorized to write a will even
without husband’s consent and
even without court authorization
(802).
ii. A married woman may dispose not
only of her paraphernal, but also
her share of the CPG or ACP (803).
1. The inescapable
conclusion is that a
married woman is at full
liberty to dispose of her
paraphernal property as
well as her half-share of
the CPG or ACP.
Age Requirement
● To ensure that the testator possesses sufficient
discretion, as well as emotional and intellectual
maturity that would enable him to exercise the
testamentary power intelligently.
Capacity to act
● Is the power of a person to perform an act with legal
effect.
○ AU: Is conferred by law to a person upon
reaching the age of majority,
■ unless there are circumstances
which would otherwise restrict
such capacity or would modify or
limit the exercise the same.
○ Capacity to act is not included in elements
of testamentary capacity.
● Restriction on Capacity to Act: (Art. 38 – minority,
insanity, or imbecility, the state of being deaf-mute,
prodigality, and civil interdiction)
○ Modify or limit the Capacity to Act: (Art.
39 – age, insanity, imbecility, the state of
being deaf-mute, penalty, prodigality, family
relations, alienage, absence, insolvency, and
trusteeship.
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.
Soundness of Mind
1. The testator should know the nature of the estate to
be disposed of.
2. Composition of his Property, Transferable rights
Obligations (PRO)
3. The testator should know the proper objects of his
bounty.
a. Appreciation of his personal relationships:
1. Persons who have legitimate
expectation to receive a part of his
inheritance
2. Person who is expected to give
portions of his estate.
Note: this is betrayed when a testator
makes his dog or his cat the principal
beneficiary of his estate. EXCEPT by way
of LEGACY, modal institution (valid; Art.
786: entrust to 3rd person for specified
cause)
 4. The testator is conscious of the nature of the
testamentary act.
- testator’s awareness: he realizes that he
makes provisions for the distribution of his
estate, and take effect upon his demise.
Note: when the testamentary capacity of a person is
challenged on the ground of unsound mind, medical evidence
must be presented.
Alsua-Betts v. CA
● Mere weakness of mind, or partial imbecility from
disease of body, or from age, will NOT render a
person incapable of making a will.
● It is sufficient that one has understanding and
memory sufficient to enable him to know what he is
about to do and how or whom he is disposing of this
property.
● Testamentary incapacity does not necessarily require
that a person shall actually be insane or of unsound
mind.
“What is the effect of the repeated confinement in a mental
institution on the testamentary capacity of a testator?”
DE GUZMAN v. INSTESTATE ESTATE OF
FRANCISCO BENITEZ
Facts: (repeated confinement; prior to the execution of the
will)
1. Francisco died single without descendants,
ascendants, brothers or sisters.
2. Daughters of the brother of Francisco’s mother are:
Dionisia and Melquiades Valenzuela, they are the
first cousins of the deceased Francisco Benitez.
3. They filed a petition for administration of his
intestate estate and for the issuance of letters of
administration to Dionisia.
4. The petition was opposed by Emiterio de Guzman on
the ground that Francisco left a will bequeathing his
entire estate to him and that a petition to probate was
pending in the same court. (cases were consolidated)
5. De Guzman died, and he was substituted by his heirs
(Fidel, Cresencia, and Rosalia)
6. Dionisia and Melquiades opposed on the petition for
probate on the ground of insanity of Francisco.
7. Lower Courts: disallowed the will, and appointed
Dionisia as the administrator of the estate of
Francisco.
8. From Jan. 18, 1929 up to March 12, 1941, Francisco
was confined at the National Mental Hospital for
varying periods as follows:
Date of admission Date of Discharge
January 18, 1929 March 12, 1929
March 7, 1931 June 6, 1931
November 12, 1936 November 29, 1937
February 16, 1939 August 16, 1939
July 9, 1940 March 12, 1941
Issue: w/n Francisco was of sound and disposing mind at the
time of the execution of the will (August 18, 1945)? NO.
Ruling:
Petition raised before the SC was purely factual, the Court is
of no position to rule on the same.
In any event, the decision of the CA reveals that it carefully
weighed the evidence in question (date of admission and date
of discharge) of the testamentary capacity, or lack of it, thus
the findings of the lower courts should not be disturbed.
BALTAZAR v. LAXA
Facts:
Petitioners claim that the testatrix, Paciencia was “magulyan”
or forgetful, and likewise suffering from paranoia, so much so
that it effectively stripped her of testamentary capacity.
Issue:
w/n the state of being forgetful necessarily makes a person
mentally unsound so as to render him unfit to execute a will –
NO.
Ruling:
Forgetfulness is not equivalent to being of unsound mind.
● Here, there was no substantial evidence, medical, or
otherwise, that would show that Paciencia was of
unsound mind at the time of the execution of the will.
● The SC found the testimony of Dra. Limpin as to the
soundness of mind of Paciencia.
● A testator is presumed to be of sound mind at the
time of the execution of the will and the burden to
prove otherwise lies on the oppositor. (Art. 800:
Presumption of Sound mind; burden of proof –
oppositor).
● However, Art. 800 also provides that the burden (to
prove that the will was executed during the lucid
interval), shifts to the person who maintains the
validity of the will when the testator was publicly
known to be insane 1 month prior to the execution of
the will.
● Here, there was no showing that Paciencia was
publicly known to be insane one month or less before
 the making of the will. The oppositors failed to
overcome the burden of proof.
● Importantly, Paciencia was aware of the nature of her
estate to be disposed of, the proper objects of her
bounty, and the character of the testamentary act.
It is sufficient that at the time of the execution of the will, the
testator knew:
1. the nature of his estate,
2. the character of the testamentary act
3. the proper object of his bounty

Petition DENIED.
Subsequently gaining, or regaining of capacity at some future
time will NOT VALIDATE a VOID will.
Article 800.
The law presumes that every person is of sound mind, in the
absence of proof to the contrary. Article 802.
A married woman may make a will without the consent of
The burden of proof that the testator was not of sound mind her husband, and without the authority of the court.
at the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one Article 803.
month, or less, before making his will was publicly known A married woman may dispose by will of all her separate
to be insane, the person who maintains the validity of the property as well as her share of the conjugal partnership or
will must prove that the testator made it during a lucid absolute community property.
interval. ● A married woman retains the power to dispose by
will both her paraphernal properties, and her share of
Presumption of Sanity the absolute community or conjugal property.

History as per Baste:

GR: testator is of sound mind at the time of the execution of
1. Roman law - parental authority; kapag ang babae
the will.
nag-asawa, yung pag kaemancipate binubura kasi
● The burden of proving that the testator was not of
under the parental authority of the husband. so
sound mind at the time of the execution of the will ginawa daw siyang batang musmos
lies with the person opposing its probate. 2. supreme authority kay husband, so if gusto ni babae
XPN: idispose need pa daw ng court authority
1. when the testator is publicly known to be insane 1 ●
month or less prior to the execution of the will.
2. Prior judicial declaration of the testator’s insanity,
unless it has been set aside PRIOR to the execution
of the will.
3. Prior judicial appointment of a guardian over the
person and/or property of a person by reason of
having been found to be insane.

The burden shifts to the party who maintains the validity of

the will in proving that the testator, at the time of the
execution of the will was either:
1. In a lucid interval
2. Has regained sanity.

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

Determination of Testamentary Capacity

It is determined at the time of the execution of the will.
1. At least 18 years of age
2. Be of sound mind.

Supervening incapacity will NOT invalidate the will.


Article 804.
Every will must be in writing and executed in a language or
dialect known to the testator. (n)
Article 805.
*only applies to Notarial Will*
Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Article 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.
Remember: Formal requisites of a notarial will
1. It must be in writing
2. Written in a language or dialect known to the testator
3. Testator must sign at the end of the will
4. A will must be attested and subscribed by three
credible witnesses
5. Testator and witnesses must sign in the presence of
one another
6. Testator and witnesses must sign on the left margin
of each page
7. Each page of the will must be numbered
correlatively
8. The will must contain an attestation clause.
9. The will must be acknowledged before a notary
public.
Forms of wills
In a notarial will, the formalities are governed by Art.
804,805,806.
● Additional formalities are required of testators
suffering from certain disabilities. Art. 807 (deaf or
deaf-mute), Art. 808 (blind).
The form of a holographic will is prescribed in Art. 810. Note
that such a type of will must also conform with the
requirements under Art. 804.
Purpose of the Formalities
The object of solemnities surrounding the execution of the
wills is to close the door on bad faith and fraud, to avoid
substitution of wills and testaments, and to guarantee their
truth and authenticity. (Lee vs Tambago)
● In a probate court, the examination is limited to the
determination of the genuineness and authenticity
of a will.
● The formalities required for the execution of the will
must be strictly complied (expn. Few minor lapses
which can be corrected from an examination of the
will itself)
GR: That the strict observance with the prescribed formalities
for the execution of the will is required.
XPN: for a few minor lapses which can be corrected from an
examination of the will itself, and which per se do not
compromise the genuineness and authenticity of the
document.
Baste Notes:
1. Purpose of Formalities – to close the door on bad
faith and fraud, to avoid substitution of wills, and to
guaranty their truth and authenticity; (Lee vs.
Tambago). In general, formalities are deterrent to
fraud.
2. In sum, Purposes:
a. to prove compliance with the prescribed
formalities; and
b. to serve as proof of its contents, thereby
avoiding reliance on memory.
3. Probate is, therefore, conducted:
a. for a visual inspection of the written
document in order to determine compliance
with formalities; and
b. to determine substantive validity of
dispositions
Parts of a will
1. Testamentary Disposition
a. The testamentary disposition should be in
the language of the testator.
2. Attestation clause
a. The attestation clause must indicate the:
i. number of pages
ii. that the signing was made in the
presence of the witnesses and the
testator; and
iii. signed by 3 witnesses.
3. Notary Public
a. The notary public confirms that the testator
made the document freely and voluntarily.

Question: if blackboard, or sinulat sa pader or bungahin,
compliant na ba siya sa 804?
● BASTA ISULAT MO
Formal Requisites of a Notarial Will
1. It must be in Writing - the law does not require any
specific format or medium of writing
a. Can be: Handwritten, typewritten or printed
b. Objective:
i. As evidence of compliance with the
formalities prescribed by law
ii. to serve as exclusive proof of its
contents, thereby avoiding a
reliance on the frail memory of
man
c. Reason why the written instrument must be
presented to the court during probate:
i. For visual presentation of the will
to determine WoN there is
compliance with the required
formalities
ii. after verifying compliance, PC
could have an opportunity to
examine the testamentary
disposition to determine
compliance w/ substantive law.
d. Baste Notes: Does not require the testator to
be literate (note different rule in holographic
will)
2. A will must be written in a dialect or language
known to the testator - this is important in cases
where the quill is drafted by a person other than the
testator.
a. Objective: To ensure that the testator is
able to understand the contents of the will
without being assisted by another person.
i. A testator is not permitted to rely
on translation of a will that is
written in a dialect or language that
is foreign to him.
ii. This requirement is formidable
protection against FRAUD
b. Writing a will is a personal act.
i. The testator may be defrauded in
case he merely relies on the
interpretation of a third person.
c. It is not necessary to include a statement in
the will confirming that it is written in a
language or dialect known to the testator.
i. This fact may be established by
extrinsic evidence. (Lopez vs
Liboro)
d. Baste Notes: Testator’s knowledge of the
language used in the will is presumed
(Abangan vs. Abangan); but if contested, it
must be proved.
Circumstances indicating lack of knowledge of the language
SUROZA v. HONRADO
FACTS:
1. Marcelina Suroza supposedly executed a notarial will
in July 1973 when she was 73 years old.
a. The will, which as in English, was
thumbmarked by Marcelina, who was
illiterate.
2. Upon her death, the will which bequeathed all her
estate to a supposed granddaughter was presented for
probate.
3. Opposite to the probate was made by Nenita Suroza,
the wife of the alleged adopted son of Marcelina on
the ground of preterition of said son, Agapito, and on
the ground that the will was void because Marcelina
did not appear before any notary public and because
it is written in English which is not known to
Marcelina.
4. The presiding judge Honrado denied the opposition
of Nenita and admitted the will to probate.
ISSUE: WON there was sufficient evidence on record to show
that the will was on its face void
HELD:Yes. Upon perusing the will and noting the it was
written in English and was thumbmarked by an obviously
illiterate testatrix, respondent judge could have easily
perceived that the will is void.
● In the opening paragraph of the will, it was stated that
English was a language “understood and known “to
the testatrix.
○ But in its concluding paragraph, it was
stated that the will was read to the testatrix
and “translated into Filipino language.”
● This could only mean that the will was written in a
language not known to the illiterate testatrix, and
therefore, the will is void because of the mandatory
provision of Art 804 NCC that every will must be
executed in a language or dialect known to the
testator.
○ Thus, a will written in English, which was
not known to the testator, is void.
● The hasty preparation of the will is shown in the
attestation clause and notarial acknowledgment where
Marcelina Salvador Suroza is repeatedly referred to
as the "testator" instead of "testatrix".
● If Judge Honrado had been careful and observant, he
could have noted not only the anomaly as to the
language of the will but also that there was
something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at
all to her supposed father who was still alive.
○ Furthermore, the respondent judge could
have noticed that the notary was not
presented as a witness.
● Every will must be in writing and executed in a
language or dialect known to the testator.
○ In this case, the testatrix was proved to be
illiterate.
 ○ However, her alleged notarial will was
written in English, which in the opening
paragraph of the will, was supposedly a
language known to her.
○ The contradiction in the concluding
paragraph of the will clearly indicated the
nullity of the purported will.
● Baste notes:
○ Knowledge of English language is not
presumed if the Filipino testatrix is
apparently illiterate
Circumstances indicating knowledge of the language
REYES V. VDA. DE VIDAL
FACTS:
1. The case concerns the admission to probate of a
document purported to be the last will and testament
of Maria Zuñiga Vda. De Pando, who died on
October 29, 1945.
2. A petition for the probate of the will of Maria Zuñiga
Vda. De Pando was filed in the CFI of Manila.
a. Dolores Zuñiga vda. De Vidal, sister of the
deceased, filed an opposition.
3. To prove that the will was signed by the testatrix in
accordance with the law, petitioner presented the
three witnesses who attested to the execution of the
will.
4. On the other hand, the oppositor presented one
expert witness, Jose G. Villanueva, who made a
comparative analysis of the signatures appearing in
the will in relation to some genuine signatures of the
deceased
a. He reached the conclusion that the hand that
wrote the signatures of the deceased
appearing in the will is not the same hand
that wrote the genuine signatures he had
examined.
5. TC: disallowed the will on the ground that the
signatures of the deceased appearing therein are
not genuine, that it was not proven that the deceased
knew Spanish language in which it was written and
that the deceased was not of sound mind when she
signed the will.
ISSUE: WoN there is evidence to show that the testatrix knew
the language in which the will was written - YES.
1. Indeed nothing in the testimony of the witness
presented by the petitioner would indicate that the
testatrix knew and spoke the Spanish language used
in the will.
a. But this failure alone does not in itself
suffice to conclude that the requirement of
law has not been complied with.
2. There is enough evidence on record which supplies
the technical omission.
a. It is an undisputed fact that the deceased was
a meztiza española, was married to a
Spaniard and made several trip to Spain.
3. Also, the very letters submitted as evidence by the
oppositor were written in Spanish by the deceased in
her own handwriting, having proven by her very own
evidence that the deceased possessed the Spanish
language, the oppositor cannot be allowed to allege
the contrary.
a. The presumption that the testator knew the
language in which the testament has been
written, stands unless the contrary is proved.
4. Lastly, the attestation clause of the will states that
the testatrix knew and possessed the Spanish
language, though not required to be stated therein
only proves that the instrumental witnesses clearly
wanted to make it on record that the deceased knew
the language in which the will was written.
5. Every will must be executed in a language known to
the testator.
a. While this requirement is mandatory and, as
a rule, must be proved during probate
proceedings, a failure to introduce
evidence in this respect does not necessarily
justify the denial of probate.
i. Under certain conditions,
knowledge of the language in
which the will was written may be
presumed.
6. In this case, the probative value of the testimony of
the instrumental witnesses must be noted,
particularly when such testimony is sought to be
controverted by the testimony of an expert witness.
7. Baste Notes:
a. Testator’s knowledge of the Spanish
language may be established by
circumstantial evidence
Baste’s Q
Presumption of Knowledge of the language
In Lopez v. Liboro, the court ruled that it is not necessary to
include a statement in the will confirming that it is written in a
language or dialect known to the testator.
● This fact may be established by extrinsic evidence.
○ And where it is proved that a testator
resides in a particular locality, a
presumption arises that he knows the
language or dialect spoken
3. The testator must sign at the end of the will
a) Purpose
● The testator is required to affix his signature at the
end of the will in order to indicate the logical end
thereof;
 ○ in order to prevent the insertion of
unauthorized dispositions.
● Instances wherein the will will result in absolute
nullity:
○ If the testator signed at any place other
than at the end of the will; or
○ if the testator inserted additional
testamentary dispositions after his
signature, or otherwise acquiesced in the
insertion of additional testamentary
dispositions by another person.
■ Note: Such additional disposition
invalidates the entire will and
probate should be denied.
● If a forger or unauthorized person without the
knowledge, consent or acquiescence of the testator
should insert additional dispositions, the
unauthorized insertions should be disregarded BUT
○ the validity of the will is not impaired.
○ Reason: the testator should not be
disenfranchised for the wrongdoing of an
unauthorized person.
○ If it is discovered, the contrary conclusion
should be applicable and should validate or
authenticate the same with his signature
● If the insertion after the testator’s end-signature is
not a testamentary disposition, the same should not
result in the invalidation of the will.
● Baste notes:
○ A breach of this requirement results in the
nullity of the will;
■ additional dispositions after the
testator’s end-signature, even if
handwritten and authenticated by
the testator, nullifies the will
because of the danger it poses.
■ If the testator wants to add
dispositions, the solution is for the
testator to execute a codicil.
■ (Note a different rule in
holographic wills (particularly
812) which permits the testator to
add testamentary dispositions.)
○ “End” means the end of the last
testamentary disposition.
● Testator need not affix his full signature.
○ Customary signature is sufficient.
■ Baste Notes: The customary
signature of the testator is
sufficient; the law did not
specifically require the testator’s
full signature.
■ The customary signature represents
the testator’s consent to the
execution of the will.
○ A thumb mark is sufficient
■ Baste Notes: The testator’s thumb
mark is acceptable, especially if
the testator is debilitated and
unable to manually sign (Lopez vs.
Liboro), or if the testator is
illiterate.
○ A cross allegedly affixed by the testator
on the execution page of the will was
insufficient compliance with the
requirement, absent a showing that the cross
represented his usual signature. (Garcia vs
Lacuesta)
○ Facsimile signature is an exact copy or
reproduction of an original signature.
■ Because of the unmitigated risk of
an unauthorized stamping of a
facsimile signature, a court is not
likely to give its stamp of approval.
● The law permits a testator to designate a third
person to sign the will on his behalf. 3 requisites:
○ The testator makes an express directive to
the third person
○ The third person should write the name of
the testator and not his own name.
■ If the third person manually wrote
his own name in the will, the
requirement is not complied with,
the will is void and probate should
be denied. (Balonan vs. Abellana)
○ The third person writes the testator’s name
in the will in the presence of the testator and
of each of the instrumental witnesses.
○ Baste Notes: If the Conditions are not met,
the will is void
■ The authority to affix the testator’s
name is a form of agency;
● no directive expressly
given, no authority.
■ The writing of the testator’s name
in the presence of the witnesses
will enable the witnesses to testify
on this particular matter during the
probate of the will.
b) bottom signature does not apply to the witness
The requirement that it must be signed at the logical end
of the will does not apply to the instrumental witnesses who
may affix their subscribing signatures elsewhere in the will,
provided that such signatures were in fact affixed on each
page of the will.
● The reason is that the signatures of the witnesses
are meant to identify the pages of the will and to
prevent the fraudulent substitution thereof.
TABOADA V. ROSAL, 118 SCRA 195 (1982)
FACTS:
1. A petition for probate was filed with respondent
court, the petitioner attached the alleged last will and
testament of the late Dorotea Perez.
a. The will consists of two pages.
b. The first page contains the entire
testamentary dispositions and is signed at
the end or bottom of the page by the testatrix
 alone and at the left hand margin by 3
instrumental witnesses.
c. The second page which contains the
attestation clause and the acknowledgment is
signed at the end of the attestation clause by
the 3 attesting witnesses and at the left hand
by the testatrix.
2. Since no opposition was filed after the petitioner’s
compliance with the requirement of publication.
3. TC: denied the probate of the will for want of a
formality in its execution.
ISSUE: ISSUE: WoN the Subscribing witness should sign at
the end of the will – no.
HELD:
● Under Art 805 NCC, the will must be subscribed or
signed at the end by the testator himself or by the
testator’s name written by another person in his
presence, and by his express direction, and attested
and subscribed by 3 or more credible witnesses in the
presence of the testator and of another.
● Attestation consists in witnessing the testator’s
execution of the will in order to see and take note
mentally that those things are done which the statute
requires for the execution of a will and that the
signature of the testator exists as a fact.
○ Where the attestation clause is not signed by
the witnesses at the time of the execution of
the will, it would invalidate the will as it
would be easy to add the clause on a
subsequent occasion in the absence of the
testator and the witnesses. (Caneda vs CA)
● Subscription is the signing of the witnesses’ name
upon the same paper for the purpose of identification
of such paper as the will which was executed by the
testator.
● The signatures of the instrumental witnesses on the
left margin of the first page of the will attested not
only to the genuineness of the signature of the
testatrix but also the due execution of the will as
embodied in the attestation clause.
● Art. 805 required that the testator should sign at the
end of the will.
○ [DOCTRINE] This requirement does not
apply to the subscribing witnesses, who may
sign in any other part of each page of the
will.
○ The duty of the witnesses to subscribe is
substantially complied with by any such
signature.
○ The failure of the attestation clause to
indicate the number of pages upon which the
will is written, as a rule, a fatal defect.
○ However, where the notarial
acknowledgment does indicate the number
of pages of the will, the same conforms to an
actual account of the pages, deficiency is
cured.
■ A reference to Art. 809 in this
regard is appropriate.
● The objective of the attestation and of subscription
were fully met and satisfied when witnesses signed at
the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will
was properly identified by the subscribing witnesses
to be the same will executed by the testratrix.
○ There was no question of fraud or
substitution behind the questioned order.
● Baste Notes:
○ The requisite end-signature does not apply
to the witnesses who may affix their
subscribing signature on the left margin (as
prescribed in 805), or, anywhere else
according to the ruling in Taboada vs. Rosal,
because the purpose of the subscribing
signatures of the witnesses is merely to
identify the authentic pages of the will.
(c) Sufficiency of the customary signature of the testator
When the testator personally affixes his signature to the will,
he need not affix his full signature (in article 814 full
signature).
Most authorities in Civil law are of the opinion that a
customary signature of the testator is sufficient.
A thumb mark is sufficient to execute a will (Lopez v. Liboro)
- In this case the testator was suffering partial
paralysis.
In Garcia v. Lacuesta - the court ruled that a cross allegedly
affixed by the testator was insufficient compliance with the
requirement, absent the showing that the cross is customarily
used as his signature.
(d) Facsimile signature is not acceptable
Facsimile signature - defined as an exact copy or
reproduction of an original signature.’
No jurisprudence yet as of this matter.
(e) Requisites for third person signing on behalf of the
testator
The law permits the testator to designate a third person to sign
the will on the testator’s behalf
Elements:
1. The testator makes an express directive to the third
person
2. The third person should write the name of the testator
and NOT his own name
3. The Third person writes the testator’s name in the
will in the PRESENCE of the testator and each of the
instrumental witnesses.
 Balonan v. Abellana, et al.
FACTS: The last Will and Testament sought to be probated is
written in the Spanish language. Said instrument was signed
by Juan Bello and under his name appears typewritten 'Por la
testadora Anacleta Abellana, residence Certificate A-1167629,
Enero 20, 1951, Ciudad de Zamboanga', and on the second
page appears the signature of the three (3) instrumental
witnesses. THe doctor signed his own name instead of the
testator
ISSUE: Whether the signature of Dr. Juan A. Abello above
the typewritten statement "Por la Testadora Anacleta Abellana
* * *, Ciudad de Zamboanga," comply with the requirements
of the law.
RULING: NO. Art. 805 prescribes the manner in which the
will must be signed by the testator, i.e., “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. This case confirms that this requirement is
mandatory, and failure to comply therewith is a fatal defect. It
is not important that the person to whom the function of
writing the testator’s name indicates or writes his own name.
But it is imperative that this individual should write the name
of the testator. The case gives 2 alternate ways of complying
with the statutory requirement
4. A will must be attested and subscribed by three
credible witnesses
In Taboada v. Rosal the court there distinguished between the
two specific functions of the witnesses.
Two functions of witnesses:
1. Attesting the due execution of the will
2. Subscribing thereto.
Attestation consists in witnessing the testator’s execution of
the will in order to see and take note mentally that those things
are done which the statute requires for the execution of a will
and that the signature of the testator exists as a fact. It
confirms the compliance with certain procedural requirements.
- The attestation clause provides written evidence of
certain procedures that were taken in the process of
the execution of the will.
Subscription is the signing of the witness’ names upon the
same paper for the purpose of identification of such paper. It
identifies the authentic pages of the will.
(a) Effect of a missing signature
Art. 805 requires the witnesses to sign on every page on the
left margin, except the last page.
Icasiano v. Icasiano
FACTS: Witness Natividad who testified on his failure to sign
page three (3) of the original, admits that he may have lifted
two pages instead of one when he signed the same, but
affirmed that page three (3) was signed in his presence. THe
lower court judge denied probate of the will because Art. 805
must be strictly complied with, that is, all the pages must be
signed by 3 witnesses.
ISSUE: Whether or not a will can be probated if one of the
witness inadvertently failed to sign one of the pages thereof.
RULING YES. The inadvertent failure of one witness to
affix his signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is
not per se sufficient to justify denial of probate.
The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single
witness over whose conduct she had no control, where the
purpose of the law to guarantee the identity of the testament
and its component pages is sufficiently attained, no intentional
or deliberate deviation existed, and the evidence on record
attests to the full observance of the statutory requisites.
Baste: - THE SC still allowed because Natividad failed by
PURE oversight. The ruling by the judge is based on a
pure technicality. Sobra naman daw yung ruling ng judge
(b) Credible witness
Credible - worthy of belief. Credibility of the witness can
only be determined by their (1) Personal circumstances and (2)
Background.
(c) Competent witness
Competence on the other hand is a matter determined by law.
Art. 820 enumerates the qualifications. The combined
application of Art. 820 and Art. 821 determines the
competence of a witness to a notarial will
(5) The Testator and witnesses must sign in the presence of
one another
The testator and the witnesses must sign the WILL in the
presence of one another.
Baste notes:
1. Breach of this requirement renders the will void
2. Objective is to have at least 3 witnesses who can
confirm the authenticity of the signature of each of
them
Nera v. Rimando
FACTS: At the time the will was executed, in a large room
connecting with a smaller room by a doorway where a curtain
hangs across, one of the witnesses was in the outside room
when the other witnesses were attaching their signatures to the
instrument.
The trial court did not consider the determination of the issue
as to the position of the witness as of vital importance in
determining the case. It agreed with the ruling in the case of Some SC rulings:
Jaboneta v. Gustillo that the alleged fact being that one of the
subscribing witnesses was in the outer room while the signing 1. Location of the page number is not material as long
occurred in the inner room, would not be sufficient to as there is pagination
invalidate the execution of the will. 2. Pagination need not be in letters and may be in arabic
numerals
ISSUE: What is the true test of the testator’s or the witness’ 3. If the first page is not numbered, the omission shall
presence in the signing of a will? not necessarily invalidate the will

HELD: The Supreme Court emphasized that the true test of Baste notes:
presence of the testator and the witnesses in the execution of a
will is not whether they actually saw each other sign, but 1. A breach of this requirement generally renders the
whether they might have seen each other sign, had they will void.
chosen to do so, considering their mental and physical
condition and position with relation to each other at the
moment of inscription of each signature.

The position of the parties with relation to each other at the

moment of the subscription of each signature, must be such
that they may see each other sign if they choose to do so.

Baste comments:
- What is needed is that you looked at the right
direction and that there was no physical object.
- YOU (the witness) MUST KNOW WHAT IS
BEING signed. Being just able to look and see is
not enough. You must know what was being
signed.

6. The testator and witnesses must sign on the left margin

of each page

Art. 805 requires that the testator and witnesses to sign on the
left margin. These are subscribing signatures meant to
identify each page of the will as forming parts of the will
itself.

The location of the subscribing signature of the witnesses is

not material, for as long as the subscribing signatures are
complete, for this would constitute substantial compliance
with the requirement that the witnesses should subscribe the
will. (Taboada vs Rosal)

The purpose of the marginal signature is to prevent the

substitution of pages. In this sense, the culprit must falsify at
least 4 signatures on each and every substituted page

7. Each page of the will must be numbered correlatively

Purpose: To safeguard against possible insertion or

suppression of one or some of its pages.

Pagination - facilitates the discovery of both missing pages

and extra pages inserted in the will.

- Serves to confirm the accuracy of the attestation

clause insofar as it states the number of pages used
upon which the will was written
- A person reading the will can promptly raise a red
flag if he discovers a discrepancy between the actual
page count and the number of pages indicated in the
attestation clause.
PART NI ANDREW REQUIRED to sign the attestation clause.
Lopez vs. Liboro ● The witnesses must be qualified to make such
G.R No. L- 1787 confirmation as per Art. 820 and 821.
FACTS:
1. The will has 2 pages, each of which is written on one
BASTE NOTES: Essentially, a Notarial Will contains 3
side of a separate sheet.
separate documents:
a. The first page is not paged either in letter or
1. Will Itself - Signed by the testator himself
in Arabic numerals, thus the appellant
2. Attestation Clause- signed by the witnesses below
believes this is a fatal defect
the signature of the testator (Cagro v. Cagro)
ISSUE: W/N the first page, being unpaged in letter or arabic
3. Notarial Acknowledgement- Notary must sign
numerals makes the will fatally defective- NO

(a) Attestation Clause fails to state the number of

HELD:
● The purpose of the law in prescribing the paging of
the wills is to guard against fraud, and to afford
means of preventing the substitution or of detecting
the loss of any of its pages
● In this case, the omission to put a page number on the
first sheet is supplied by other form of identification
more trustworthy than the conventional numerical
words or characters.
○ The unnumbered pages contains the caption
“TESTAMENTO”, the invocation of the
Almighty, and a recital that the testator was
in fll use of his testamentary faculty- all of
which, in the logical order of sequence,
precede the direction for the disposition of
the maker’s property
● The second page contains only 2 lines, the attestation
clause, the mark of the testator and the signature of
the witnesses, the other sheet cannot possibly be
taken for other than page 1.
8. The Will must contain an Attestation Clause
Attestation Clause- that part of the will whereby the witness
certify 3 things:
1. The number of pages used upon which he will was
written
2. That the testator signed the will or caused another to
write his name
3. That the testator (or in appropriate cases, the person
requested by him to write his name) and the witness
signed the will in the presence of one another.
PURPOSE- The witnesses execute the attestation clause for
the purpose of preserving in written form a record of certain
actions taken during execution of a will, so that in case of
failure of memory or other casualty, such facts may still be
proved
pages
The failure of attestation clause to state the number of pages
used upon which the will is written is not necessarily a fatal
defect. The will may yet be admitted to probate if the actual
number of pages of the will is readily discernible from the
will and one need not adduce extrinsic evidence to establish
that fact.
Taboada vs. Rosal
G.R No. L-36033
FACTS:
● Court examined the will in question and noticed that
the attestation clause failed to state the number of
pages used in writing of the will.
ISSUE: W/N the will is Fatally Defective- NO
HELD:
● It is discernible from the ENTIRE WILL that it
really and is actually composed of only 2 pages, duly
signed by the testatrix and her instrumental
witnesses.
● The 1st page which contains the testamentary
dispositions is signed by the testatrix at the end,
while the instrumental witnesses signed at the left
margin.
● The other page, which is marked as “Pagina Dos”
comprises the attestation clause and the
acknowledgement.
○ The acknowledgement itself states that
“This Last will and Testament consists of
TWO PAGES including this page.

● The Attestation clause is a SEPARATE

memorandum of record of certain facts pertaining to
the will and the manner of execution thereof.
○ It being so, the testator IS NOT

(b) Error in indicating the actual number of pages
Samaniego-Celada vs. Abena
G.R No. 145545
FACTS:
1. Petitioner was the 1st cousin of the decedent
Margarita, while respondent Abena was the
decedent’s lifelong companion
2. Margarita then died single without any ascending or
descending heirs. She was survived by her First
Cousins which included the petitioner.
3. Margarita executed a will before she died where she
bequeathed ½ of her undivided share of the property
to the respondent Pahingalo and Abena in equal
shares of ⅓ each.
a. She also bequeathed ½ of her undivided
share from a property located at Makati to
Isabelo Abena and Amanda Abena in equal
shares of ⅓ portion each.
4. The will was probated and the petitioner appealed to
the CA. Ca affirmed the RTC
ISSUE: W/N the will is fatally defective for the reason that its
attestation clause states that the will is composed of 3 pages,
while the truth was it consists of 2 pages only. - NO
HELD:
While the attestation clause if not a part of the will, the court,
after examining the totality of the will, is of the opinion that
the error in the number of pages of the will as stated in the
attestation clause is not material to invalidate the subject will.
The error must have been brought about by the honest belief
that the will is the whole instrument consisting of 3 pages
inclusive of the attestation clause and the acknowledgement.
The SC applied the doctrine of liberal interpretation.
Lopez vs. Lopez
G.R No. 189984
(COMPARE THIS WITH THE PREVIOUS CASE)
FACTS:
1. Enrique Lopez died leaving his wife and their 4
legitimate children as compulsory heirs. Before he
died, he executed a last will.
2. Richard, one of his children, filed a petition for the
probate of his father’s will. Marybeth opposed and
stated that the will was not executed and attested as
required by law.
3. While the acknowledgement portion stated that the
will consists of 7 pages, including the page on which
the ratification and acknowledgement are written, the
RTC observed that it had 8 pages including the
acknowledgement portion
ISSUE: W/N the will is fatally defective- YES
HELD:
The law is clear that the - The attestation must state
the number of pages used upon which the will is written. The
purpose of the law is to safeguard against possible
interpolation or omission of one or some of its pages and
prevent any increase or decrease in the pages.
While Art. 890 allows substantial compliance for defects in
the form of the attestation clause, Richard likewise failed in
this respect. the statement in the Acknowledgement portion of
the subject last will that it contains only 7 pages including the
page on which the ratification and acknowledgement are
written cannot be deemed as substantial compliance.
The will actually consists of 8 pages, including its
acknowledgement, which discrepancy cannot be explained by
mere examination of the will itself., but through the
presentation of evidence aliunde.
Comment of Justice Reyes: The rule must be limited to
disregarding those defects that can ab supplied by an
examination of the will itself; whether all pages are
consecutively numbered; whether the signature appears in
each and every page; whether the subscribing witnesses are
three or the will was notarized… The total number of pages
and whether all the persons required to sign did so in the
presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the
probate proceedings.
(c) Attestation Clause fails to state the number of witnesses
The failure of the attestation clause to state the number of
attesting witnesses is not a fatal error.
Estate of Abada vs. Abaja
G.R No. 147145
FACTS:
1. Abada and his wife died without legitimate children.
Alipio Abaja then filed with the CFI a petition for the
probate of the last will of Abada.
a. Abada was allegedly named as his
testamentary heirs his natural children
Eulogio Abaja and Rosario Cordova. Alipio
is the son of Eulogio.
2. Caponong opposed the petition on the ground that
Abada left no will when he died in 1940.
ISSUE: W/N the will of Abada has an attestation clause and if
so, does it comply with the requirements of the applicable
laws- YES
HELD: While it was found that the attestation clause does not
indicate the number of witnesses,the Court stated that the rule
on Substantial Compliance applies in determining the number
of witnesses. While the attestation clause does not state the
number of witnesses, a close inspection of the will shows that
3 witnesses signed it.
Failure of the attestation clause to state the number of
attesting witnesses is not a fatal error.
Abada’s will clearly shows 4 signatures: that of Adaba and 3
other persons. It is reasonable to conclude that there are 3
witnesses to the will.
(d) Attestation Clause fails to state the testator’s name was
written by a third person
Garcia vs. Lacuesta
G.R No. L-4067
FACTS:
1. The will involved in this case was signed by Atty.
Florentino Javier who wrote the name of Antero
Mercado (Decedent), followed below by “A ruego
del testador” and the name of Florentino Javier.
Antero Mercado is alleged to have written a cross
immediately after his name
2. the CA noted that the attestation clause failed to:
a. Certify that the will was signed on all
margins of the 3 pages and at the end of the
will by Atty. Florentino Javier at the
express request of the testator in the
presence of the testator and each and
everyone of the witnesses;
b. Certify that after signing of the name of the
testator by Atty Javier at the former’s
request , said testator has written a cross at
the end thereof
c. To certify that the 3 witness signed the will
in all the pages thereon in the presence of
the testator and of each other.
ISSUE: W/N the attestation clause is fatally defective- YES
HELD:
The attestation clause gave a different account of the
surrounding circumstances in the execution of the will, in that
the attesting witnesses stated that the testator signed the will.
The resulting conflict between the signature page of the will
and the attestation clause resulted in the denial of probate
because the attestation clause failed to state that the testator’s
name was written by another person at the express direction
of the testator and the attesting witnesses.
Also, it is not here pretended that the cross appearing on the
will is the usual signature of Antero Mercado or even one of
the ways by which he signed his name.
(e) Attesting witness did not sign at the bottom of the
attestation clause
- A sharply divided court ruled that the attesting
signatures of the witnesses must be affixed at the
bottom of the attestation clause. If signes elsewhere,
the attestation clause is void (and by extension, so is
the will)
Cargo v. Cargo
92 Phil 1032
DOCTRINE: The attestation clause must be signed by the
witnesses at the bottom thereof. If the signatures of the
attesting witnesses are affixed on the left margin, or in any
other place, the attestation clause would be fatally defective,
resulting in the nullity of the will.
FACTS:
1. The case is an appeal interposed by the oppositors
from a decision of the CFI of Samar which admitted
to probate a will allegedly executed by Vicente
Cagro who died in Pambujan, Samar on Feb. 14,
1949.
2. The appellants insisted that the will is defective
because the attestation was not signed by the
witnesses at the bottom although the page containing
the same was signed by the witnesses on the left
hand margin.
3. Petitioner contended that the signatures of the 3
witnesses on the left hand margin conform
substantially to law and may be deemed as their
signatures to the attestation clause.
ISSUE: W/N the will is fatally defective
HELD:
● Yes, the will is void. The attestation clause is “a
memorandum of the facts attending the execution of
the will” required by law to be made by the attesting
witnesses, must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as
an act of the witnesses, since the omission of their
signatures at the bottom thereof negates their
participation.
● The contention of the petitioner-appellee that the
signatures of the 3 witnesses on the left-hand margin
conform to the requirements of the law and may be
deemed as their signatures to the attestation clause is
untenable.
● This is because the said signatures are in compliance
with the mandate that the will is to be signed on the
left-hand margin of all its pages.
● If an attestation clause is not signed by the 3
witnesses at the bottom thereof, it would be easy to
add such clause to a will on a subsequent occasion
and in the absence of the testator and any or all of the
witnesses.
***BASTE: The opinion of the majority of the Court in this
case is diametrically opposed to its opinion in the case of
Abangan v Abangan. The technical difference between the
factual bases of the two cases should be examined. In any
event, Cagro is not a unanimous decision.
HOWEVER The witnesses signs in two capacities: as to attest
and to subscribe. Cagro is still controlling.
(e) Fatally defective attestation clause
Azuela v.CA
487 SCRA 119
FACTS:
1. Petitioner Azuela, cousin of the decedent, is seeking
to admit to probate the notarial will of Eugenia
Igsolo. The will consisted of 2 pages and written in
Filipino.
2. In the will, the 3 attesting witnesses (Agrava, Leano
and Estrera) affixed their signature on the left-hand
margin of both pages of the will but not at the bottom
of the attestation clause. The will made reference
only to 2 heirs, legatees and devises of the decedent:
Petitioner Azuela and Irene Igsolo (residing abroad)
3. Private respondent Castillo opposed the probate
because:
a. The will is a forgery since there were 12
legitimate heirs of the decedent and that the
true purpose of the will was to be used as a
defense in several ejectment cases filed
against petitioner Azuela
b. The will was not executed and attested to in
accordance with the law i.e., the decedent’s
signature does not appear on the second
page and the will was not properly
acknowledged
4. RTC Manila admitted the will to probate, taking into
account the testimonies of the attesting witnesses.
RTC held that:
a. The subtitle at the end of the will (Patunay
ng mga saksi) suffices as an
acknowledgment and attestation clause
b. The signing of the attesting witnesses on the
left-margin of the second page containing
the attestation clause substantially satisfied
the purpose and attestation of the will
5. RTC also noted that the modern tendency in respect
to the formalities in the execution of a will, i.e., the
liberalization of the interpretation of the law on the
formal requirements of a will with the end in view of
giving the testator more freedom.
ISSUE: WON the will was defective in form
RULING: Yes, the will i did not comply with the formal
requisites. It is void.
● The attestation clause was not signed by the
instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand
margin of the will, they do not appear at the bottom
of the attestation clause which after all consists of
their averments before the notary public.
○ The signatures on the left-hand corner of
every page signify, among others, that the
witnesses are aware that the page they are
signing forms part of the will.
○ On the other hand, the signatures to the
attestation clause establish that the
witnesses are referring to the statements
contained in the attestation clause itself.
● Indeed, the attestation clause is separate and apart
from the disposition of the will. An unsigned
attestation clause results in an unattested will.
● It must be noted that the will contained more critical
defects that should necessarily lead to its rejection:
○ The attestation clause fails to state the
number of pages of the will. There was an
incomplete attempt to comply with this
requisite.
■ The purpose of pagination: the
document might easily be so
prepared that the removal of a
sheet would completely change the
testamentary dispositions of the
will
○ The requirement under Article 806 that
“every will must be acknowledged before a
notary public by the testator and the
witnesses has also not been complied with.
■ Instead of an acknowledgment, the
notary public, Petronio Y. Bautista,
wrote “Nilagdaan ko at ninotario
ko ngayon 10 ng Hunyo 10 (sic),
1981 dito sa Lungsod ng Maynila.”
These words be cannot construed
as an acknowledgment.
■ The same might be considered a
jurat, even though it does not
resemble the usual language
thereof. A jurat is that part of an
affidavit where the notary certifies
that before him/her, the document
was subscribed and sworn to by the
executor.
Erica (163-175; g. Conflicting Testimonies of the witnesses)
(g) Conflicting testimonies of the witnesses
Witnesses who have signed the attestation clause are NOT
BARRED from subsequently contradicting the tenor of the
attestation clause, or from disowning attestation clause.
Instrumental witnesses are expected/required to:
1. Take mental note of the proceedings during the
execution of the will.
 2. Include in the attestation clause certain 2. Evidenced by his associate, Atty. Barcenas,
formalities that were supposedly observed. whom the deeds were also acknowledged.
It was not shown that these lawyers had been remiss in their

**Vda. De Ramos v. CA sworn duty.

(will elaborate since sir said this case is important)

Facts: CA failed to consider the presumption of regularity in the
1. Petitioners argued that the attestation clause of execution of the questioned documents.
the will and codicil which were signed by the There was no evidence presented to prove the occurrence of
fraud and undue influence.
instrumental witnesses are admissions of due
execution of the deeds, thus, preventing the said
The will and the codicil:
witnesses from prevaricating later on by
1. Each and every page of the will and codicil
testifying against due execution.
carry the authentic signatures of the testatrix and
A. CA erred in giving credence to the
3 attesting witnesses.
testimony of the biased witnesses, as
2. Attestation clauses were properly signed by the
against their own attestation to the fact of
attesting witnesses
due execution and over the testimonial
3. Witnesses took turns in signing the will and
account of the Notary Public who was also
codicil in the presence of each other and the
present during the execution.
testatrix
2. Respondents countered, stating that the
4. Both instruments (will and codicil) were duly
declaration of the 2 surviving witnesses (Odon
acknowledged before a notary public who was
Sarmiento, and Rosendo Paz), that the will was
all the time present during the execution
NOT signed by the testatrix before their
presence (supported by photographic evidence;
Presumption of regularity cannot easily be overcome by the
only witnesses were shown)
mere expediency of the negative testimony of the witnesses
3. CA concluded that the absence of the picture of
that they did not see the testatrix sign the will.
the testatrix, it cannot be said that the will and
the codicil were signed in the presence of each
other. (did not allow the will to probate) Attestation clause is a separate memorandum or record of
the facts surrounding the conduct of execution. Once signed
by the attesting witnesses, it affirms that compliance with
ISSUE: w/n the will and codicil were executed in
the indispensable legal formalities had been observed.
accordance with the formalities of the law, considering that
- The witnesses do not merely attest to the
the 2 attesting witnesses testified against their due execution
signatures of the testatrix but also to the
while the other non-subscribing witnesses testified the
proper execution of the will.
contrary – YES.
- Certify the facts which admit to probate,

RULING: sufficiency of execution, capacity of the

There was ample and satisfactory evidence to convince the SC
that the will and codicil were executed in accordance with the
formalities prescribed by law.
1. The documents were prepared by Atty. Alvero.
testatrix, absence of undue influence, etc.
RULE: if any or all of the subscribing witnesses testify
against the due execution of the will, or do not remember
having attested to it, or are otherwise of doubtful credibility,
the will may still be allowed if the court is satisfied from the l The probate of the will is a special proceeding not
testimony of the other witnesses, and evidence presented. imbued with adversary character, wherein courts
should relax the rules on evidence.
Where was the disparity?
Answer: In the testimonies of the attesting witnesses:
Here, the failure to capture all the stages in the execution of
Sarmiento and Paz, vs. Notary Public: Atty. Barcenas.
the will does not serve any persuasive effect, nor have any
evidentiary value to prove that the formal requisites were not
1. Sarmiento’s testimony was contradicted by his
complied with.
own admission
- In his extrajudicial admission, he said that the
CA decision reversed in disallowing the will to probate.
will was signed, he and the other 2 attesting
witnesses were present. But he contradicted
Book:
himself during the trial.
2 functions of the witnesses who affix their signatures in the
2. Paz’s testimony was refuted by Atty. Barcenas’
attestation clause:
declaration
1. Attest to the signatures of the
- Paz did not know what he has signed for. Thus,
testator/testatrix, also the proper execution
the SC believes that he was “half-hearted”, and
of the will, genuineness of the testator’s
his participation was passive than that of
signature
Sarmiento.
2. Attest to the due execution of the will as
3. Atty. Barcena, has overseen the
embodied in the attestation clause.
accomplishment of the will and the codicil.
- Is entitled to greater weight than the testimony
Liability of the attesting witnesses who participate in
of a person casually called to participate in the
execution of a spurious will (Azuela v. CA)
act. (Attys. Are expected to retain the incidents
- To declare before an officer of the law that
better than others)
they had executed and subscribed to the will as
their own free act or deed.
- This is done under oath, and under pain of
perjury.

Function of the Notary Public

- To guard against any illegal or immoral
arrangements in the execution of the will.
In the absence of any showing of self-interest that might
possibly have warped his judgment and twisted his
declaration, the intervention of a Notary Public, in his
professional capacity in the execution of the will
deserves grave consideration.
l Pictures are worthy only of what they show and
prove and not of what they did not speak of,
9. The will must be acknowledged before a notary public
including the events they failed to capture.
Two possible scenarios in the case of Vda. De Ramos v. CA:
1. If indeed they did not see the testatrix sign
the will, they committed perjury when they
freely and voluntarily signed the attestation
clause, or
2. If the testatrix in fact signed the will their
presence, then they committed perjury when
they testified falsely on the witness stand.

a) Definition of Acknowledgement
Acknowledgement
- Is the act of one who has executed a deed in
going before some competent officer and
declaring it to be his act or deed.
Notarial will
Competent officer = notary public
● (Art. 806) the law does not require that the testator
and the witnesses acknowledge the will before the
notary public at the same time.
● If any of the testator and the witnesses failed to
acknowledege the will before a Notary Public, the
will is VOID.
b) Acknowledgement must be made by testator
and witnesses
3 components to a notarial will:
1. Testamentary dispositions of the testator,
2. The attestation clause of the witnesses
3. The notarial acknowledgment
Testamentary disposition of the testator
- Is a personal act of the testator which he must
declare before the notary public as his free and
voluntary act and deed.
The attestation clause of the witnesses
- Is a certification of the attesting witnesses
confirming the ff acts:
1. The actual number of pages used upon
which the will was written
2. The testator signed the will and every page
thereof, or caused some other person to
write his name, under his express direction
and in the presence of the instrumental
witnesses
3. That the instrumental witnesses witnessed
and signed the will and all the pages thereof
in the presence of the testator and one
another
Notarial acknowledgement
- The witnsses must declare before the same
notary public that this certification is their free
and voluntary act and deed.
- Failure to do this will nullify the notarial will.
Garcia v. Gatchalian
Facts:
1. Gregorio Gatchalian, a widower of 71 years of
age, died in the Municipality of Pasig, Province
of Rizal, leaving no forced heirs.
2. Appellant filed a petition for the probate of will
wherein he was instituted as sole heir.
3. Appellees (Felipe Gatchalian, Talanays,
Camins, Cosca, Tubog) opposed the petition on
the ground that:
A. the will was procured by fraud,
B. deceased did not intend the instrument
signed by him to be as his will
C. he was mentally, and physically
incapable of making a will at the time of
the execution.
Issue: w/n the will should be allowed to probate? – NO.
Ruling:
The will was authentic but for failure to comply with the
mandatory requirement of Art. 806 that the will must be
acknowledged before a notary public by the testator and the
witnesses, the will was not allowed to probate.
Here, the will was not acknowledged by the instrumental
witnesses.
c) Role of the notary public
Under Art. 805 and 806
- Not stated that the notary public to be
presented in person to witness the execution of
the will.
Under Art. 808
- Presence of the Notary public is mandatory
during the execution. NOT to witness the
 execution, but to READ the will to the blind A notarial will that is not acknowledged before a notary public
testator. by the testator and the instrumental witnesses is void and
cannot be accepted to probate.
Acknowledgement can only be made before a competent
d) Disqualifications of a Notary Public
officer, that is a lawyer duly commissioned as notary public.
(Sec. 240 of the Notarial Law)
1. Notary public must be duly commissioned
- In the city or municipality where the will is
A notary public is authorized to perform notarial acts,
acknowledged.
including the taking of acknowledgment, within that territorial
- NP has no authority to perform the notarial jurisdiction only.
function, if outside of his territorial jurisdiction Outside the place of his commission, he is bereft of power to
perform any notarial act. He is not a NP.
● Any act outside the limits of his jurisdiction has no
Guerrero v. Bihis
force and effect.
(acknowledgement made outside of the jurisdiction of the
NP)
Facts: Here, since Atty. Directo Was not commissioned notary public
1. Felisa Buenaventura, mother of petitioner Bella for Quezon city he lacked authority to take acknowledgement
Guerrero and respondent Bihis, died. of the testatrix and the instrumental witnesses. Thus, all the
acts of the parties in the acknowledgement of the will are
2. Petitioner filed a petition foe the probate of the
VOID.
last will and testament of the decedent.
3. Respondent opposed her elder sister’s petition
on the ground that:
2. Notary Public must not be an instrumental
A. The will was not executed and attested as
witness
required by law
An instrumental witness is disqualified from being the NP
B. Its attestation clause and
before whom the notarial will is to be acknowledged.
acknowledgement did not comply with the
● Breach of this prohibition renders the will VOID.
requirements of the law
C. The signature of the testatrix was
Cruz v. Villasor
procured by fraud
Facts:
D. Petitioner and her children procured the
1. Of the 3 instrumental witnesses (Jamoas, Dr.
will through undue and improper pressure
Panares, and Atty. Teves) Atty. Teves was at the
and influence.
same time the NP before him whom the will was
4. RTC denied the probate of the will ruling that
supposed to have been acknowledged.
Art. 806 was not complied with because the will
2. Petitioner argues that the result is that only 2
was acknowledged by the testatrix and witnesses
witnesses appeared before the NP to
at the testatrix’s residence in QC, while Atty.
acknowledge the will.
Directo was a commissioned NP in Caloocan
3. Respondent (executor of the will) maintains that
city.
there is substantial compliance with the legal
ISSUE: w/n the acknowledgement before a NP outside the
requirement of having at least 3 attesting
palce of his commission satisfy the requirement under Art.
witnesses even if the notary public acted as one
806? – NO
of them.

Ruling:
Issue: W/N a notary public can be an instrumental witness,
acknowledge the notarial will? – NO.
Ruling:
The will was not executed in accordance with law.
The NP before whom the will was acknowledged cannot be
rd
considered as the 3 instrumental witness since he cannot
acknowledge before himself his having signed the will.
If the third witness were the NP himself, he would have to
avow, assent, or admit as his having signed the will in front of
himself.
● This cannot be done because he cannot split his
personality into 2 so that one will appear before the
other to acknowledge his participation in the making
of the will.
Function of the NP
- To guard against any illegal or immoral
arrangements.
This function would be defeated if the NP were one of the
attesting or instrumental witnesses.
“American Jurisprudence does NOT Apply to this case”
- because the Notaries public and witnesses in
AM cases merely acted as instrumental,
subscribing, or attesting witnesses, and NOT as
acknowledging witnesses. (meaning the NP was
not the one who acknowledged in AM cases)
rd
To allow a NP to act as 3 witnesses, or one of the attesting
and acknowledging witnesses, would have the effect of having
only 2 attesting witnesses to the will which would be in
contravention of Art. 805 requiring at least 3 credible
witnesses.
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.
NOTE: ONLY APPLICABLE TO NOTARIAL WILL
If the testator suffers from some disability which impairs his
ability to independently verify the contents of his will, the law
requires compliance with additional formalities in order to
protect the testator from the commission f fraud.
Deaf-mutism
- disability identified by law that must be covered by
additional protection.
1. Illiterate, deaf-mute
- Additional requirements (Art. 807)
- Law requires the testator to designate a person
of his choice to read the will and to
communicate to him the contents thereof in a
practicable manner.
2. Literate, deaf-mute
- Simply to read the will.
- Reading of the will need not be confirmed by
the witnesses in the attestation clause.
Two questions need to be answered:
1. Must the reading of the will by the deaf or
deaf-mute testator be proved as a fact?
2. Can the testator waive the benefit of the law
which is intended for his protection?
● Testator has to rely on the honesty and integrity of
the person whom he shall select to perform the
functions prescribed in Art. 807.
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.
Rationale for the additional formality is to make the
provisions of the will known to the testator, so that he may
be able to object if they are not in accordance with his wishes.
If the testator is blind or is illiterate, who is not deaf or deaf-
mute, it shall be read to him TWICE - first by one of the
subscribing witnesses and again, by the notary public before
whom the will shall be acknowledged.
Note: This is the ONLY instance that the notary public is
required to participate in the actual execution of the will.
GARCIA V. VASQUEZ No. L-26884, April 30, 1970
FACTS: Gliceria Avelino del Rosario died unmarried on 2
September 1965, leaving no descendents, ascendants, brother
or sister. At the time of her death, she was said to be 90 years
old more or less, and possessed of an estate consisting mostly
of real properties. During her lifetime she executed two will;
June 9 1965 will and December 29 1965 will.
On17 September 1965, Consuelo S. Gonzales Vda. de Precilla,
a niece of the deceased, petitioned the CFI for probate of the
alleged last will and testament of Gliceria A. del Rosario,
executed on 29 December 1960, and for her appointment as
special administratrix of the latter’s estate, said to be valued at
about P100,000.00, pending the appointment of a regular
administrator thereof. The petition was approved by the court.
Oppositor now question the probate and the validity of the
Dec. 29 1960 will alleging that the eye sight of Gliceria was so
poor and defective that she could not have read the provisions
of the will.
● Testimony of witnesses: Gliceria was of clear and
sound mind, she was also able to read “silently” by
the testaric herself before she signed it.”
● Testimony of her ophthalmologist: Gliceria as of
August 23, 1960 underwent an operation on the left
of her eye for cataract and possible glaucoma.
However, despite the operation and the aid of
eyeglasses, she still suffered farsightedness. She is
only able to see from a distance of 5ft and not for
reading print, as testified by her ophthalmologist.
ISSUE: Whether the 1960 will is valid and the order allowing
the probate is correct - No.
HELD: The will is not valid for the reason that Gliceria was
considered blind at the execution of the will thus Article 808
must apply which is reading of the will twice to a blind
testator or incapable of reading the will herself
● The conclusion is that with the condition of her
eyesight in August 1960, there is no evidence that it
had improved by December 26, 1960 at the time she
signed the will. She was incapable of reading, and
could not have read the provisions of the will
supposedly executed on the said date.
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself is
to make the provisions thereof known to him, so that he may
be able to object if they are not in accordance with his wishes.
Failure to comply with this requirement shall render the will
void. The order of the court in admitting the will for probate is
reversed.
Substantial Compliance
Interpretation of Article 808 is plain and unequivocal.
However, the case of Alvarado is as unconventional as it is
controversial.
ALVARADO V. GAVIOLA, Jr., GR No. 74695,
September 14, 1993
*Lengthy but facts are important, Atty. Baste does not agree
and has observations
FACTS: This case involves a notarial will then a holographic
codicil.
79-year old Brigido Alvarado executed a notarial will entitled
“Huling Habilin” wherein he disinherited an illegitimate son,
petitioner Cesar Alvarado, and expressly revoked a previously
executed holographic will at the time awaiting probate before
the RTC of Laguna.
According to Atty. Bayani Ma. Rino, the one that drafted his
will and the private respondent, he was present when the said
notarial will was executed, together with three instrumental
witnesses and the notary public, where the testator did not read
the will himself, suffering as he did from glaucoma.
Rino, the lawyer, drafted the eight-page document and read
the same aloud before the testator ONCE, the three
instrumental witnesses and the notary public, the latter four
following the reading with their own respective copies
previously furnished them (they were silently reading).
Thereafter, a holographic codicil was executed changing some
dispositions in the notarial will to generate cash for the
testator’s eye operation since he was suffering glaucoma.
Said codicil was likewise not read by Brigido Alvarado and
was read in the same manner as with the previously executed
will. Note, it was only read to the testator ONCE.
When the notarial will was submitted to the court for probate,
Cesar Alvarado filed his opposition as he said that the will was
not executed and attested as required by law; that the testator
was insane or mentally incapacitated due to senility and old
age; that the will was executed under duress, or influence of
fear or threats; that it was procured by undue pressure and
influence on the part of the beneficiary; and that the signature
of the testator was procured by fraud or trick.
ISSUE: Whether Brigio is blind for purposes of Article 808 at
the time of the notarial will and codicil were executed? And if
so, was the double-reading requirement complied with? Yes
(however, Baste does not agree)
HELD:
1. Yes, he is blind. Not totally blind BUT his vision on both
eyes was only for “counting fingers at three feet” by reason of
glaucoma and thus, he is incapable of reading the will. The SC
concluded that Brigido comes within the scope of the term
“blind” and must comply with the additional formality in
Article 808.
2. Yes, there is substantial compliance. Although there should
be strict compliance with the substantial requirements of law
in order to insure the authenticity of the will, the formal
imperfections should be brushed aside when they do not affect
its purpose and which, when taken into account, may only
defeat the testator’s will.
However, in the case at bar, there was substantial compliance
where the purpose of the law has been satisfied: that of
making the provisions known to the testator who is blind or
incapable of reading the will himself (as when he is illiterate)
and enabling him to object if they do not accord with his
wishes.
Instead of the requirement in Article 808 that the will shall be
read to him twice; once by one of the the instrumental
witnesses and again by the notary public before whom the will
was acknowledged, Rino read the testator’s will and codicil
aloud in the presence of the testator, his three instrumental
witnesses, and the notary public only once.
With four persons, mostly known to the testator, following the
reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what
was read to him were the terms actually appearing on the
typewritten documents.
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will to
himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if they
are not in accordance with his wishes.
Although there should be strict compliance with the
substantial requirements of law in order to insure the
authenticity of the will, the formal imperfections should be
brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator’s will.
Observation on Alvarado
Elements of substantial performance by Dr. Tolentino:
1. An attempt in good faith to perform, without any
willful or intentional departure therefrom;
2. The deviation from the obligation must be slight;
3. the omission or defect must be technical and
unimportant; and
4. Omission must not pervade the whole or be so
material that the object which the parties intended to
accomplish in a particular manner is not attained.
Article 808 imposes two requirements in execution of a blind
or illiterate testator:
1. The will must be read to the testator twice
2. Once by the one of the witnesses, and again by the
notary before whom the will is to be acknowledged.
In Alvarado, the will was read to the testator only once, by
Atty. Rino who is the one that drafted the will. Neither of the
two requirements was complied with.
Atty. Sebastian does not believe there is substantial
compliance:
1. There was no attempt in good faith to comply with
the statutory requirements. The process was
deliberately chosen by Atty. Rino, being a lawyer he
should have known the requirements of the law and
yet he did not comply with it.
2. There was a willful and intentional departure
from the statutory requirement. The execution of
the will fully complied with the solemnities
prescribed by law, it proves that Atty. Rino willfully
and intentionally departed from the mandatory
requirements of Article 808. It is unthinkable to
suggest that he knew of Article 804-806 but
inadvertently missed by oversight of Article 808.
3. The deviation from the procedure prescribed in
Article 808 is radical. The law specifically identified
the persons who shall separately read the will: Once
by one of the subscribing witnesses chosen by the
blind because of the trust and confidence he
responses to the witness, and second by the notary
public before whom the will is to be acknowledged
because of his presumed integrity as a member of the
bar and as a person totally disinterested in the
contents of the will.
There is no showing that Atty. Rino is a dishonest
person or has no interest nonetheless, he has no
authority to perform the task of making known to the
testator the contents of the will. Where no authority is
conferred by law, none can be inferred.
4. The omission was neither slight nor insignificant.
The importance of the double-reading of the will to a
blind testator cannot be underestimated. The
solemnities surrounding the execution of wills are
intended to protect the testator from all kinds of fraud
and trickery. It is the reason why Article 808
prescribes a procedure for blind testators.
If an altogether different procedure were to be
construed as a sufficient substitute for the prescribed
procedure, the provisions of Article 804-806 will lose
their value.
5. Was the omission so pervasive and material that
the purpose of the statutory requirement was not
attained? The writer answers this with the
appreciation of the facts of the case.
The writer is of the view that the procedure adopted
in Alvarado is not in substantial compliance with the
procedure required by law.
From among the requirements of Article 808, only
the mechanical reading of the will was observed. It
begs the question whether or not a court can authorize
an alternative or substitute procedure to the one
prescribed by law.
The law recognizes the fact that by reason of
blindness and inability to read the will, the testator is
 exposed to greater risk of fraud hence Article 808
must be given strict compliance. In the event that it is
outdated, it is the congress that can amend the law.
In all the other cases wherein the Court viewed with
leniency certain lapses committed in the execution of
a will. There were imperfections in the execution of
the will either because of error or inadvertent
omission which did not in any manner compromise
the authenticity of the will. None was there a
deliberate radical departure from the prescribed
procedure. Alvardo is unique and unprecedented.
Article 809.
*only applicable to ATTESTATION CLAUSE*
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.
Rationale
Disenfranchisement of the testator would be unjust if the same
resulted from causes which are not attributable to his fault of
negligence, but to circumstances beyond his control.
Baste’s Take: lapses committed by witnesses in good faith
shall not invalidate will.
Objective is to give some protection to the testator whose will
may be disallowed for reasons not attributable to him or are
otherwise beyond his control.
Requisites of doctrine of liberal interpretation
Applies solely to defects and imperfections in the form or
language of the attestation clause.
As the attestation clause is an act of the instrumental witness,
the lapses attributable to the witnesses should not work to the
prejudice of the testator
Bad faith, forgery, fraud, undue and improper pressure and
influence must be ruled out insofar as the execution of the
attestation clause is concerned.
The defects and imperfections in the form or language of the
attestation clause shall be ignored and will not cause the
nullity of the will, if it is proved that the will was in fact
executed and attested in substantial compliance with Article
805.
Cannot be invoked in a holographic will because this will does
not have an attestation clause.
Vda. De Gil v. Vda. De Murciano, 88 Phil 260
Facts:
Nosotros los que suscribimos, todos, mayores de edad,
certificamos que el testatmento que precede escrito en la
lengua castelana que canoce la testadora, compuesto de dos
paginas utiles con la clausula de atestiguanmento paginadas
correlativamente en letras y numeros en la parte superios de la
casilla, asi como todas las hojas de mismo en nuestra
precensia, y que cada una de nosotros hemos atestiguando y
firmado dicho documento y todas las hojas del mismo en
presencia del testador y en law de cada uno de nostoros
Translation: We who subscribe, all of legal age, certify that the
preceding will written in the Castilian language that the
testator does, composed of two useful pages with the witness
clause paginated in letters and numbers in the upper part of the
box, as well as all the pages of the same in our presence, and
that each of us has witnessed and signed said document and all
the pages of the same in the presence of the testator and in law
of each one of us
Counsel appellee contend that the phrase “han sido firmadas
por el testator” ("Have been signed by the testator") or
equivalent expression between the words “del mismo”(of the
same) and the words “en nuestra presencia” (in our presence)
should be inserted if the attestation clause is to be complete
and have sense. With this insertion the attestation clause
would read “asi coma todas las hojas del mismo han sido
firmadas por el testador en nuestra presencia”(all the pages of
the same have been signed by the testator in our
presence")
Also there seemed to be an absence of the testator’s signature
on the first page of the COPY.
The appearance of “la testadora” in the copy instead of “el
testador” is another indication of haste and careless
transcription.
In this case, the will was prepared by Atty. Osmena, hence it
was presumed that the testator knew the law.
The Court held that there is no legitimate, practical reason for
objecting to the testator instead of the witnesses certifying that
he signed the will in the presence of the latter. If the
formalities are only a means to end and not the end
themselves. and that end is achieved by another method
slightly different from the prescribed manner. what has been
done by the testator and the witnesses in the execution should
satisfy both law and conscience.
In adopting liberal construction of a will, evidence aliunde is
not allowed to fill the void or supply missing details. What is
permitted is a probe into the will, an exploration within its
confines, to ascertain its meaning and to determine the
existence of absence of the requisite formalities of the law.
Baste’s Take: 809 does not apply because this case involves
omission.
Caneda v. Court of Appeals, 222 SCRA 781
Attestation clause refers to that part of an ordinary will
whereby the attesting witnesses certify that the instrument has
been executed before them and to the manner of the execution
of the same.

Attestation clause shall include

- The number of pages used upon which the will is
written.
- That the testator signed, or expressly caused one
another to sign the will and every page thereof in the
presence of the attesting witnesses
- That the attesting witnesses witnessed the signing by
the testator of the will and all its pages, and that said
witnesses also signed the will and every page thereof
in the presence of the testator and of one another.

What is apparent is that the attestation clause herein

assailed is the fact that while it recites that the testator
indeed signed the will and all its pages in the presence of
the attesting witnesses and states as well the number of
pages that were used, the same does not expressly state
therein the circumstances that said witnesses subscribed
their respective signatures to the will in the presence of the
testator and of each other.

The phrase “and he has signed the same and every page
thereof, on the spaces provided for his signature and on the left
hand margin,” obviously refers to the testator’ and not the
instrumental witnesses as it is immediately preceded by the
words “as his last will and testament.”

Baste’s Take: SC ignored the fact that it was the testator who
initiated the probate proceedings during his lifetime, indicating
that in fact there was a valid will.

Baste’s Take: 809 does not apply because this case involves
omission.

Sir’s Observation on vda. de Gil vs. vda. de Murciano, and

Caneda vs. CA
In general, a defective attestation clause renders a will void,
subject to the substantial compliance rule in 809. Thus, a
defect of the language or form of the attestation clause may be
ignored if it is proven that the will was in fact executed in
accordance with the prescribed formalities, there being no bad
faith, forgery, fraud or undue influence and improper pressure.
The objective of the substantial compliance rule is to avoid
penalizing the testator for the non-material errors committed
by the witnesses.
1. Must the proponent of a will, during probate, prove that
the testator possessed a sound mind at the time of the
execution of the will?
No. Under Art. 800, a testator is presumed to be of sound
mind at the time of the execution of the will, and the burden to
prove otherwise lies on the oppositor.
However, the proponent or the party assailing the validity of
the will should prove that the will was executed during the
lucid interval, when the testator was publicly known to be
insane 1 month prior to the execution of the will.
(if the testator was publicly known to be insane 1 month
prior…)
2. Explain why the supervening incapacity of the testator
“does not invalidate an effective will.”
As per Art. 801 of the NCC, the supervening incapacity does
not invalidate an effective will, nor is the will of an incapable
validated by the supervening capacity of the will. As per law
and jurisprudence, it is sufficient that at the time of the
execution of the will, the testator knew the following: (a) the
nature of the estate; (b) the character of the testamentary act
and; (c) the proper object of his bounty.
3. May the will of a testator who had a history of mental
illness be admitted to probate? Explain.
It depends. According to Article 799 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.
According to Article 800, the general rule is that
sanity is presumed. Exception is when the testator is publicly
known to be insane 1 month or less prior to the execution of
the will, or prior judicial declaration of the testator’s insanity,
unless it has been set aside PRIOR to the execution of the will
or that prior judicial appointment of a guardian over the person
and/or property of a person by reason of having been found to
be insane.
More so, when the testamentary capacity of a person
is challenged on the ground of unsound mind, medical
evidence must be presented.
In the case of De Guzman v. Intestate Estate of
Benitez, the Court ruled that the will is void because the
testator was not of sound and disposing mind at the time of the
execution of the will as evidenced by medical records. If at the
time of the making of the will of the testator, he is in a lucid
interval or has regained sanity then the will may be admitted
to probate. However, if it can be proved that the testator at the
time of making of the will is not of sound mind based on his
history then the will may not be admitted to probate.
4. What level of language proficiency is a testator required
to meet in order to execute his will in a foreign language?
● The only language requirement given by the Civil
Code is that under Art. 805, that being that the will be
written and executed in a dialect known to him i.e.
that he can understand it on his own without need for
it to be translated to him.
1. Objective: To ensure that the testator is
able to understand the contents of the
will without being assisted by another
person.
5. During the execution of the testator’s notarial will, the
following facts were established by competent evidence: (i)
there was an ante-room adjoining the main room where
the execution of the will was taking place; (ii) a thick
curtain separated the ante-room from the main room; (iii)
when the first witness was about to sign the will, the third
witness went to the ante-room to answer a phone call; (iv)
when the third witness returned to the main room, it was
the second witness who was signing the will. Given these
facts, should the will be admitted to probate?
No, the will should not be admitted to probate. One of the
formal requirements for the execution of a notarial will is that
the testator and the witnesses must be sign the will in the
presence of one another.
Here, in this case, when the first witness was about to sign the
will, the third witness went to the ante-room which was
separated by a thick curtain.
The test enunciated in Nera v. Rimando dictates that “presence
of the testator and the witnesses in the execution of a will is
not whether they actually saw each other sign, but whether
they might have seen each other sign, had they chosen to do
so…”
However, in this case, there is no possibility for the third
witness to see the signing of the will done by the first witness
if he chooses to do so by turning his head because there was a
thick curtain which makes the vision towards the signing
opaque or completely not visible.
6. Explain why the rule on substantial compliance should
or should not apply to the notarial acknowledgment.

The code specifically provides that the doctrine or rule on

substantial compliance will only apply to from or language of
the attestation clause. Hence, by necessary implication, the
notarial acknowledgment was deemed excluded in the
application of the law.

(aside the necessary implication, may other reason paba?)

Additionally, it is also impossible that the
 Week 3
Art. 810
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be
witnessed.
HOLOGRAPHIC WILL NOTARIAL WILL
The only guaranty of authenticity The testimony of the subscribing
is the handwriting itself witnesses and the notary is the
guaranty of authenticity
If lost, photostatic copy may be If lost, the subscribing witnesses
used to prove the existence of the are available to authenticate
original
If oral evidence were admissible, Difficult to convince 3 witnesses
only one man could engineer the and notary to deliberately lie
fraud
In case of loss, the witnesses In case of loss, the 3 subscribing
would testify as to their opinion witnesses would be testifying to
of the handwriting they allegedly fact which they saw, namely the
saw, on opinion which cannot be act of the testator of subscribing
tested in court by oppositors the will
because the handwriting itself is
not at hand
*nakita ko lang sa reviewer pero nice read
Purpose of writing a will, in general
● The objective of the testator is to take control of or
otherwise determine the distribution in accordance
with his distribution plan.
● If the intention is to merely divide his estate equally
among other heirs, there would be no need to execute
a will.
○ This will be achieved by the law on
intestacy.
● By executing a will he accomplished 2 things:
○ Designate voluntary heirs, legatees and
devisees
○ Able to distribute his estate among his
designated heirs in uneven shares.
Objective of a holographic will (HW)
● The distribution of the hereditary estate can be a
sensitive matter.
● And for this reason, the contents of the will must be
kept secret during the testator’s lifetime to avoid
bickering among the heirs and/ or ill-feeling towards
the testator by the heirs who are less-favored in the
will.
● The Holographic format allows the testator to
execute a will with utmost secrecy and to keep
strictly confidential the contents thereof.
Advantages and Disadvantages of a Holographic will
Advantages
● It is a simple document that can be executed without
the assistance of a lawyer.
● The testator is able to keep secret its execution and
keep confidential its contents.
Disadvantages
● Simplicity makes it susceptible to forgery, it has no
other safety feature aside from the handwriting.
● The secrecy in its execution does not give any
assurance that the testator executed the will freely.
○ The lack of witnesses and the participation
of notary public in effect cast doubt to the
due execution of the will such as it may be
procured through force, intimidation, undue
influence or pressure.
Requisites of a Holographic Will
1. The will must be entirely handwritten by testator
2. Dated by the testator. and
3. Signed by the testator.
4. *Must be written in the language known to the
testator
a. (baste added this as per his book p. 198, his
basis was Roxas v. de Jesus, Jr., 134, SCRA
245, 251)
b. What if in the original english siya, tapos
pinatranslate sa french embassy tapos
nirewrite ko in french.. valid ba?
i. answer: no, dapat kasi walang
assistance from a third person
5. *The testator must possess testamentary capacity.
a. It is a condition sine qua non to the
execution of a will.
b. (baste also added this as a requisite as per
his book p. 198)
Baste Notes:
● Must be handwritten by the testator; no other form is
allowed.
○ The handwriting of the testator is the only
proof of authenticity.
● The requirement refers to the date, the testamentary
dispositions, and the signature of testator.
● Breach of the requirement renders the holographic
will void.
Book Notes:
● The HW cannot be executed in any other way.
○ Facsimile or electronic signature is not
sufficient.
● On the requirement that the HW must be written in
the language known to the testator, sir said that it is
essential to the execution of a holographic will that
the testator is able to understand the contents of
the will without having to rely on the intervention
of a third person.
○ HOWEVER, there is a presumption, unless
contested, that the testator has knowledge of
the language in which the will is written
since the testator was required to write the
holographic will entirely by his hand.
● Hence, there is a doubt that a blind person can
execute a HC, save in cases if it could be proven:
 ○ that the testator was not congenitally blind
and
○ prior to becoming blind, he could write and
continued to be able to write even after
becoming blind
a) Entirely Handwritten
● A holographic will consists of 3 parts:
○ Handwritten date
○ Handwritten testamentary dispositions and
○ Testator’s signature.
● All these should be in the handwriting of the testator.
○ If any of the essential parts is not in the
handwriting of the testator, the same is void.
● Reason to such requirement:
○ these are the only proof of authenticity of
the will
● If a certain portion of the will is not in handwriting of
the testator, an examination of such portion should be
made.
○ If such portion is not an essential part of the
holographic will, the holographic will
should not be invalidated
■ Example: admission of financial
obligation so dapat bayaran mo pa
din yung creditors
● Baste Notes: The authenticity of the will is assured
only by the handwriting of the testator, for which
reason,
○ it is arguable that the requirement may be
relaxed if the portion that is not handwritten
by the testator is not the date, his signature,
or a testamentary disposition.
● Baste:
○ ‘Entirely’ means testamentary disposition
ONLY
■ Acknowledgement of a natural
child - no effect
■ disinheritance - testamentary
disposition so dapat entirely
written.
○ Pwede thumbmark for signing (Lopez v.
Liboro)
b) Date of a HW
● The date of a holographic will is presumably the true
date of execution.
○ The presumption is disputable.
■ But it is extremely hard to
challenge since there are
supposedly no witnesses to its
execution
● The date of a holographic will determines 2
things:
○ The testamentary capacity of the testator at
or about the time of the execution of the
will; and
■ this may establish:
● Age of the testator
● Statement of mind of the
testator when he executed
the will
● Provisions of the NCC
which are applicable
○ The law applicable to the formal validity of
the holographic will.
● The date is also helpful in determining which of the
several wills represent the true will of the testator.
○ If the testator executed several wills, and if
there are inconsistencies in the dispositions
of these various wills,
■ the dispositions of the most recent
will shall prevail over the
dispositions of the prior ones.
a) Incomplete date
● Jurisprudence confirms that the date of a holographic
will need not be a complete calendar date.
○ However, incomplete date should
nonetheless be a sufficient reference date to
establish the testamentary capacity of the
testator at the time of the execution of the
will.
○ It is sufficient that “date” can determine:
■ the testator’s age;
■ testamentary capacity; and
■ law established
○ Ante-dating or post- dating not necessarily
makes the will void, provided it was not
done fraudulently.
● The reference to an event which occurred on a
definite date (typhoon ondoy) or an event which is
celebrated or commemorated on particular date
(christmas day 2010)would be sufficient for the
execution of a valid HW
● Date can be written anywhere sa will (Labrador
case)
ROXAS V. DE JESUS JR., 134 SCRA 245 (1985)
FACTS:
1. After the death of spouses Andres de Jesus and
Bibiano Roxas de Jesus, a special proceeding for the
spouses’ intestate estate was filed by Simeon Roxas,
the brother of Bibiana.
a. Subsequently, he delivered to the lower
court a document purporting to be the
holographic will of the deceased Bibiana.
2. At the hearing for the holographic will’s probate, the
brother testified that after being appointed
administrator, he found a notebook of Bibiana which
bore her will in the form of a letter to her children.
a. It was entirely written and signed in the
handwriting of Bibiana and dated “Feb./61”.
3. The brother’s testimony was corroborated by
Bibiana’s two sons that the letter dated as such is the
holographic will of their deceased mother.
a. Both sons recognized the handwriting of
their mother and positively identified her
signature.
b. They further testified that the language of
the will (English) was understood by their
 mother; and that the date was the said date
when the will was executed by their mother.
4. Luz Roxas de Jesus, another compulsory heir, filed
her opposition to the will.
a. She contends that the alleged will was not
dated as required under Article 810.
b. She says that the day, month, and year
should be indicated.
ISSUE: WON the date “Feb./61 is in compliance with Article
810
HELD: Yes. The prevailing policy is to require satisfaction of
the legal requirement in order to guard against fraud and bad
faith but without undue or unnecessary curtailment of
testamentary privilege.
1. If a will has been executed in substantial compliance
with the formalities of the law, and the possibility of
bad faith and fraud in the exercise thereof is obviated,
said will should be admitted to probate.
a. If the testator, in executing his will, attempts
to comply with all the requisites, although
compliance is not literal, it is sufficient if the
objective or purpose sought to be
accomplished by such requisite is actually
attained by the form followed by the
testator.
2. The objective of the solemnities surrounding
execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and
testament and to guaranty their truth and authenticity.
3. A complete date is required to provide against such
contingencies as that of two competing wills
executed on the same day, or if a testator becoming
insane on the day in which a will was executed.
a. There is no such contingency in this case.
4. In the case at bar, no evidence of bad faith and fraud
in its execution nor was there any substitution of
wills and testament.
a. There is no question that the holographic
will of the deceased Bibiana Roxas de Jesus
was entirely written, dated and signed by the
testatrix herself and in a language known to
her, and there is no question as to its
genuineness and du execution
5. Baste Lecture: Art 810 NCC requires, among others,
that a holographic will be dated.
a. While a complete date is generally required,
an incomplete date which sets forth only the
month and the year of execution, is not a
fatal defect if it can be shown that there was
no bad faith, fraud, and undue and improper
influence and pressure.
b. Probate is further justified if the genuineness
of the handwriting of the testator is proved,
or otherwise admitted by the parties, and the
only ground or opposing probate is the
technicality resulting from an incomplete
date.
6. Baste Notes:
a. The date need not be a complete date (Roxas
vs. de Jesus).
b. But the incomplete date must make possible
the determination of the state of the mind of
the testator and the law applicable to the
required formalities.
c. Thus the date “Feb.’61” is sufficient to be
used as reference for determining the state of
the mind of the testator at or about February
1961.
i. It also indicates that the provisions
of the New Civil Code apply to the
formal requisites of the holographic
will of the testator.
b) where the date is embodied in the will
Art. 810 does not specify where the date of the holographic
will should be written.
● The SC allowed a holographic will where the date of
execution was embodied in the testamentary
disposition.
LABRADOR V. CA, 184 SCRA 170 (1990)
FACTS:
1. On June 10, 1972, Melecio Labrador (Melecio) died
in Zambales, where he was residing leaving behind
pieces of property (fishpond and land) and naming
all his children (by two mothers) in a holographic will
as heirs.
a. Two of his children, namely Jesus and
Gaudencio, claimed that Melecio sold the
portion of the fishpond property to them for
P6,000 in 1971 and that Jesus sold such
property to Navat for P5,000.00.
2. The other brother, Sagrado, filed a complaint for the
annulment of the purported “Deed of Absolute Sale”
since he already acquired such property from his
father under the holographic will which was executed
on March 17, 1968.
3. The will states that a portion of the fishpond, about
one ha. was given to Sagrado Labrador, with
specifications as to its boundary.
a. On the second page of the will was stated:
“And this is the day in which we agreed that
we are making the partitioning and assigning
the respective assignment of the said
fishpond, and this being in the month of
March 17th day in the year 1968 and this
decision and or instruction of mine is to be
followed. And the one who made this
writing is no other than Melecio Labrador,
their father.”
b. The date was not written in the usual
place but on page 2 of the will.
4. Respondents claim that the date of 17 March 1968 in
the will was when the testator and his beneficiaries
entered into an agreement among themselves about
 “the partitioning and assigning of the respective
assignments of the said fishpond and was not the date
of the execution of the holographic will;
a. hence the will is more of an “agreement”
between the testator and the beneficiaries to
the prejudice of the other compulsory heirs
like the res`pondents.
ISSUE: WON the alleged holographic will of Melecio
Labrador is dated, as provided for in Art 810
HELD: Yes, the will is considered dated.
1. The Court approved the probate of the holographic
will of Melecio. The law does not specific a
particular location where the date should be placed in
the will.
a. The only requirements are that the date be in
the will itself and executed in the hands of
the testator, which were met in this case.
2. The intention to show 17 March 1968 as the date of
the execution of the will is plain from the tenor of the
succeeding words of the paragraph.
a. The will was not an agreement but a
unilateral act of Melecio who knew that he
was executing a will.
b. The act of partitioning and the declaration
that such partitioning as the testator’s
instruction or decision to be followed reveal
that Melecio was fully aware of:
i. the nature of the estate property to
be disposed of and
ii. the character of the testamentary
act as a means to control the
disposition of his estate.
3. The required date which must be indicated in a
holographic will is substantially complied with if the
date were incorporated as part of the body of the will.
Art.811
On the probate of a holographic will, it shall be necessary
that at least one witness who know the handwriting and
signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. If the
will contested, at least three of such witnesses shall be
required.
Proving the Authenticity of a Holographic will
● The genuineness and authenticity of a holographic
will is totally dependent on the genuineness of the
testator’s handwriting.
○ In holographic wills, the participation of
witnesses and the notary public is not
required.
● The quantum of evidence required to establish such
fact depends upon whether or not the probate is
contested
● If the probate is uncontested, it shall be sufficient
that one witness who knows the handwriting and
signature of the testator declares that the entirety of
the will is in the handwriting of the testator.
○ It is not enough that the witness should
testify that he or she is “familiar” with the
handwriting and signature of the testator.
○ The law requires knowledge not only of
the signature, but also of the handwriting of
the testator.
● If the probate is contested, Art. 811 provides that at
least 3 such witnesses shall make the required
declaration.
○ However, in the case of Azaola v Singson
(1960),the 3 witness rule is directory and
not mandatory.
○ This ruling was subsequently overturned by
Justice Pardo which ruled that the 3 witness
rule is mandatory (Codoy vs Calugay).
● Whether one witness is enough or three witnesses are
required, the probate court must be satisfied that the
testimony of the witness/es is/are sufficient to
establish the genuineness of the handwriting and
signature of the testator.
○ The Probate court is not precluded from
requiring the presentation of expert
testimony if it is not convinced that
required quantum of evidence has been met.
AZAOLA V. SINGSON
(Not controlling anymore)
FACTS:
1. On September 9, 1957, Fortunata S. vda. de Yance
died.
2. Francico Azaola (Francisco) submitted for probate
the holographic will of Fortunata S. vda. de Yance,
whereby Maria Milagros Azaola was made the sole
heir as against the nephew of the deceased Cesario
Singson.
a. Francisco testified that he recognized all the
signatures appearing in the holographic will
as the handwriting of the testatrix.
3. The probate was denied on the ground that under Art
811 NCC, the proponent must present three witnesses
who could declare that the will and the signature are
in the writing of the testatrix, the probate being
contested;
a. and because the lone witness presented by
the proponent “did not prove sufficiently
that the body of the will was written in the
handwriting of the testatrix.
4. The proponent appealed, urging that he was not
bound to produce more than one witness because the
will’s authenticity was not questioned and that Art
811 does not mandatorily require the production of
three witnesses to identify the handwriting and
signature of a holographic will, even if its
authenticity should be denied by the adverse party.
ISSUE: WON the proponent is required to present three-
witnesses required under the first paragraph of Art 811 Codoy v. Calugay
HELD: No. Since the authenticity of the will was not Facts:
contested, he was not required to produce more than one
witness. Evangeline Calugay, Josephine Salcedo and Eufemia Patigas
(Respondents), devisees and legatees of the holographic will
● But even if the genuineness of the holographic will of the deceased Matilde Seño Vda. de Ramonal, filed a
were contested, the Court is of the opinion that petition for probate of the holographic will of the deceased.
Article 811 cannot be interpreted as to require the
compulsory presentation of three witnesses to In the petition, respondents claimed that the deceased was of
identify the handwriting of the testator, under sound and disposing mind when she executed the will, that
penalty of having the probate denied. there was no fraud, undue influence, and duress employed in
○ Since no witness may have been present at the person of the testator, and will was written voluntarily.
the execution of a holographic will, none
being required by law (Art. 810, NCC), it Eugenia Ramonal Codoy and Manuel Ramonal (Petitioner)
becomes obvious that the existence of filed an opposition to the petition for probate, alleging that the
witness possessing the requisite holographic will was a forgery and that the same is even
qualifications is a matter beyond the control illegible. This gives an impression that a “third hand” of an
of the proponent. interested party other than the “true hand” of Matilde Seño
● For it is not merely a question of finding and Vda. de Ramonal executed the holographic will.
producing any three witnesses, they must be witness
“who know the handwriting and signature of the Petitioners argued that the repeated dates incorporated or
testator” and who can declare truthfully that the will appearing on will after every disposition is out of the ordinary.
and the signature are in the handwriting of the If the deceased was the one who executed the will, and was
testator”. not forced, the dates and the signature should appear at the
○ There may be no available witness of the bottom after the dispositions, as regularly done and not after
testator’s hand; or even if so familiarized, every disposition. And assuming that the holographic will is in
the witnesses may be unwilling to give a the handwriting of the deceased, it was procured by undue and
positive opinion. improper pressure and influence on the part of the
○ Compliance with the rule of paragraph 1 of beneficiaries, or through fraud and trickery
Art. 811 may thus become an impossibility.
● The law foresees the possibility that no qualified THe Respondents presented 6 witnesses
witness may be found (or what amounts to the same
thing, that no competent witness may be willing to
testify to the authenticity of the will), and provides Witness Testimony
for resort to expert evidence to supply the deficiency.
● The rule of this article requiring that three witnesses Augusto Neri (Clerk of He merely produced and
be presented if the will is contested and only one if Court where probate is filed) identified the records of the
no contest is had, was derived from the rule case. The documents
established for ordinary testaments. presented bear the signature
○ But it cannot be ignored that the requirement of the deceased, Matilde.
can be considered mandatory only in the
Generosa Senon (election Presented to produce and
case of ordinary testaments, precisely
registrar of Cagayan de Oro) identify the voter’s affidavit
because the presence of at least three
of the decedent. However,
witnesses at the execution of ordinary wills the voter’s affidavit was not
is made by law essential to their validity produced for the same
(Art. 805). cannot be found
○ Where the will is holographic, no witness
need be present (Art. 810), and the rule Matilde Ramonal Binanay Testified that Matilde was
requiring production of three witnesses must her aunt. That she lived
be deemed merely permissive if absurd with Matilde for 11 years.
results are to be avoided. During those 11 years with
● Under the Art. 811, the resort to expert evidence is the deceased, she acquired
conditioned by the word’s “if the Court deem it familiarity with her
necessary”, which reveal that what the law deems signature and handwriting
essential is that the Court should be convinced of the
will’s authenticity. Fiscal Rodolfo Waga handled all the pleadings
and documents signed by the

deceased in connection with
the intestate proceedings of
the deceased’s husband, and
therefore testified that he is
familiar with the
handwriting of the deceased.
However, he also testified
that he was unsure with the
signature in the holographic
will but it was somewhat
similar
Mrs. Teresita Vedad Testified that she processed
(employee in DENR) the application of the
deceased for pasture permit
and was familiar with her
signature
Evangeline Calugay (one of Testified that she had lived
the respondents) with the deceased since
birth, and was in fact
adopted by her. Therefore
after a long period of time
she became familiar with the
signature of the deceased.
Issue: Whether Article 811
Ruling:
We are convinced, based on the language used, that Article
811 1of the CC is mandatory. The word “shall”(Art 811
“...at least three of such witnesses shall be required”) connotes
a mandatory order.
We have ruled that “shall” in a statute commonly connotes an
imperative obligation and is inconsistent with the idea of
discretion.
Not all the witnesses presented by the respondents testified
explicitly that they were familiar with the handwriting of the
testator
It was evident that Mrs. Binanay kept the fact about the will
from petitioners. Such action put in issue her motive of
keeping the will a secret to petitioners and revealing it only
after the death of Matilde.
Evangeline Calugay declared that the will was written, dated,
and signed in the handwriting of the testator. She reasoned
was that she lived with the deceased for a long time. but she
never declared that she saw the deceased write a note or sign a
document.
We cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the
holographic will is contested, that law requires three witnesses
to declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the
deceased but with one of the respondents, who kept it even
before the death of the deceased.
There was no opportunity for an expert to compare the
signature and the handwriting of the deceased with other
documents signed and executed by her during her lifetime.
holographic will.
A visual examination of the holographic will convince us
that the strokes are different when compared with other
documents written by the testator. The signature of the testator
in some of the disposition is not readable. There were uneven
strokes, retracing and erasures on the will.
we cannot be certain that the holographic will was in the
handwriting by the deceased
***The records are remanded to the RTC to allow petitioners
to adduce evidence in support of their opposition to the
probate of the holographic will***
Azoala and Codoy Discussed
In codoy, the probate court denied probate despite the
presentaiton of 6 witnesses. Evidently the probate court was
not satisfied that the witnesses were able to establish the
authenticity of the holographic will based on Art 811

Augosto Neri merely identified the record of special
proceedings before the court.
Generosa E. Senon was produced to identify the signature of
the deceased in the voter’s affidavit, which was not even
produced as it was no longer available.
Mrs. Binanay saw were prepared receipts and letts of the
deceased, which she either mailed or gave to her tenants. She
did not declare that she saw the deceased sign a document or
write a note.
The counsel for petitioner during cross examination
elicited the fact that the will was not found in the personal
belongings of the deceased but was in the possession of Mrs.
Binanay
The witnesses failed to:
1. to prove that they knew the handwriting and signature
of the testatrix
2. or to expressly declare that the signature and
handwriting in the will were those of the testatrix.
However, the CA allowed the will on the basis of the
testimonies of Evangeline Calugay and Matilde Ramonal
Binanay. Notice that the CA relied on 2 witnesses.
In the SC, it said that the 3 witnesses rule is mandatory. They
reasoned their doubt in the authenticity of the will by citing
the following:
1. the possibility of forgery because the will was
admittedly in the possession of one of the
beneficiaries (Mrs. Binanay)
 2. The hand writing in the holographic will had different
strokes when compared to other documents. There
Notarial will Holographic will
were also retracing and erasures in the will.

With regard to the 2 witnesses from which the CA relied upon

Any additional testamentary May add new Testamentary
in allowing the probate, the SC considered the testimonies of
Evangeline Calugay and Matilde Ramonal Binanay disposition appearing after dispositions after his last
insufficient to establish the authenticity of the holographic the signature of the testator signature provided that the
will. makes the entire will void. same is entirely written,
dated, and signed by the
Notice the following comments by the SC: The only way to add new testator. Otherwise the
dispositions is by a codicil additional dispositions shall
“Mrs. Binanay saw prepared receipts and letters of the deceased,
which she either mailed or gave to her tenants. She did not declare be disregarded but the prior
that she saw the deceased sign a document or write a note.” disposition shall not be
affected.
“Evangeline Calugay declared that the will was written, dated, and
signed in the handwriting of the testator. She reasoned that she lived
with the deceased for a long time. but she never declared that she
Holographic will is
saw the deceased write a note or sign a document.”
presented as a work in
Remember that the CA was satisfied merely on 2 witnesses. progress in that the testator,
What is the value of a 3rd witness when the CA was already from time to time until his
satisfied with just 2? death may add new
provisions.
The perplexing implication of Codoy is that regardless of the
number of witnesses presented by the proponent, the probate
court must satisfy itself with at least 3 witnesses that are able
to positively identify the handwriting and signature of the
testator in the will.
Art 813.
This conclusion of this case is perplexing. There was no need
When a number of dispositions appearing in a
for the SC to reject the interpretation of the 3 witness rule in
holographic will are signed without being dated, and the
Azaola. The SC could have just taken a less aggressive
last disposition has a signature and a date, such date
stance by a simple statement that the evidence of the
validates the dispositions preceding it, whatever be the
proponents did not warrant the admission of the will of the
time of prior dispositions.
probate.

Azaola is still controlling because it was decided by the SC En Validating Date

banc while this case is a mere division.
Art 812.
In holographic wills, the dispositions of the testator
written below his signature must be dated and signed by
him in order to make them valid as testamentary
dispositions.
Signature at the end of the holographic will
As an indicator of the logical end, the testator must affix his
signature at the end of the last testamentary disposition. If an
additional disposition is found after, a presumption arises that
the same is unauthorized.
It shall not be considered a testamentary disposition unless it is
entirely written, dated and signed by the hand of the testator.
Under Art. 813, the testator wrote and signed various
testamentary dispositions but omitted to put a date on some or
all of the intermediate dispositions. The various testamentary
dispositions shall be construed as a single holographic will and
the date appearing on the last disposition validates all prior
dispositions. Example:
My share at Cogon, Raminal Street, for Evangeline Caugay
(sgd.) Matilde vda. De Ramonal
Josefina Salcedo must be given 1.5k sqm at Pinikitan Street
(sgd.) Matilde vda de Ramonal, 29 Aug 1978
My jewelry shall be divided among Eufemia Patigas,
Josefina Salcedo, and Evangeline Calugay
(sgd.) Matilde vda. de Ramonal
I bequeath my one hectare land at Mandumol, INdahag to
Evangeline R. Calugay
(Sgd.) Matilde vda. de Ramonal

Give the 2.5k sqm at Sta. Cruz Ramonal Village in favor of
Evangeline R. Calugay. Helen must continue with the Sta.
Cruz, once I am no longer around
(sgd.) Matilde vda. de Ramnola, 20 Aug 1980
The last testamentary disposition which is both dated and
signed by the testatrix validates all prior dispositions which
are not dated.
Art 814.
In case of any insertion, cancellation, erasure or
alteration in a holographic will, the testator must
authenticate the same by his full signature
Customary signature sufficient
The testator’s authentication of insertions, cancellations,
erasures or alterations of testamentary dispositions indicates
his conformity thereto and authenticity of the same. The law
requires a full signature, but customary signature should be
sufficient.
If the customary signature of the testator is sufficient to
execute the will, then the same should be sufficient to validate
an insertion, cancellation, erasure or alteration.
Unauthenticated Alteration
● The effect of an unauthenticated alteration is
demonstrated in the case of Kalaw vs Relova
Kalaw vs. Relova
G.R No. L-40207
FACTS:
1. Respondent Kalaw, claiming to be the sole heir of his
deceased sister, Natividad Kalaw, filed a petition in
the CFI for the probate of her holographic will.
2. The holographic will, as written, is named Rosa K.
Kalaw, a sister of the testatrix, as her sole heir.
a. Due to such, Rosa opposed the probate
alleging that the holographic will contain
alterations, corrections and insertions
without proper authentication by the full
signature of the testatrix as required
under Art. 814
3. Rosa’s position was that the holographic will, as first
written, should be given effect and probated so that
she could be the sole heir.
4. RESPONDENT JUDGE DENIED PROBATE. It
found the insertion, alteration and additions to
“Exhibit C” not authenticated by the full signature
of the testatrix Natividad Kalaw.
5. Gregorio Moved for MR arguing that the denial of
probate of her holographic will would be contrary to
her right to testamentary dispositions. MR DENIED
ISSUE: W/N the original unaltered text after subsequent
alterations and insertions which were voided by the TC for
lack of authentication by the full signature of the Testatrix,
should be probated - NO
HELD:
GR: Ordinarily, when a number of erasures, corrections and
interlineations made by the testator in a holographic will have
not been noted under his signature, the will is not thereby
invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined
XPN: BUT in this case, the holographic will in dispute had
only 1 substantial provision, which was altered by substituting
the original heir with another, but which alteration did not
carry the requisite full authentication by the full signature of
the testator, the effect must be that the entire will is voided
or revoked for the simple reason that nothing remains in
the will after that which could remain valid.
BASTE NOTES: Kalaw upheld the propositions that the
alterations, erasures or cancellations in a holographic will
must be authenticated by the full signature of the testator.
However, the decision failed to consider another important
aspect of the cancelation of Rosa’s name as the instituted
universal heiress of the testatrix. By cancelling Rosa’s name,
the testatrix revoked Rosa’s institution.
The revocation of an institution by means of the overt act of
cancellation does not require the signature of the testatrix.
Hence, with or without such signature, the institution of Rosa
as the universal heiress of the testatrix became ineffective. The
ineffective institution of Gregorio, as the universal heir in lieu
of Rosa, does not reinstate Rosa’s prior institution.
In sum, the testatrix died without a valid and effective will and
her estate should have been divided in the rules on Intestacy.
Art. 813 and 814 does not form part of the Formal
Requisites of a valid will.
● During probate proceedings the courts area of inquiry
is limited to:
a. The testamentary capacity of the testator;
b. The formal Validity of the will
c. Identification of the will as that of the
testator;
d. That the testator freely executed the will.
● A breach of these articles does not nullify the will; it
only voids a particular testamentary disposition.
Ajero vs. CA
G.R No. 106720
FACTS:
1. In the will, the decedent named as devisees the
petitioners and their children.
2. Petitioners then instituted a Spec. Pro. for the
allowance of decedent’s holographic will.
a. Private Respondents opposed the petition on
the ground that neither the testament’s body
nor the signature therein was in decedent’s
handwriting.
3. Still, the will was admitted to probate. But on appeal,
it was reversed and the CA “the holographic will
failed to meet the requirements for its validity” by
not complying with Art. 813 and 814.
4. The court enumerated the grounds of disallowing the
will under Sec. 9 Rule 76 of the ROC and under Art.
839 of the NCC.
a. Section 9, Rule 76 of the Rules of Court
provides that will shall be disallowed in any
of the following cases:
i. If not executed and attested as
required by law;
ii. If the testator was insane, or
otherwise mentally incapable to
make a will, at the time of its
execution;
iii. If it was executed under duress, or
the influence of fear, or threats;
iv. If it was procured by undue and
improper pressure and influence, on
the part of the beneficiary, or of
some other person for his benefit;
v. If the signature of the testator was
procured by fraud or trick, and he
did not intend that the instrument
should be his will at the time of
fixing his signature thereto.
b. Art. 839: The will shall be disallowed in any
of the following cases;
i. If the formalities required by law
have not been complied with;
ii. If the testator was insane, or
otherwise mentally incapable of
making a will, at the time of its
execution;
iii. If it was executed through force or
under duress, or the influence of
fear, or threats;
iv. If it was procured by undue and
improper pressure and influence, on
the part of the beneficiary or of
some other person;
v. If the signature of the testator was
procured by fraud;
vi. 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.
c. THE LISTS ARE EXCLUSIVE.
d. Thus, in a petition to admit a Holographic
Will to probate, the only issues to be
resolved are: (1) whether the instrument
submitted is, indeed, the decedent's last will
and testament; (2) whether said will was
executed in accordance with the formalities
prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at
the time the will was executed; and, (4)
whether the execution of the will and its
signing were the voluntary acts of the
decedent
e. THE lower court ERRED when it held that
Art. 813 and 814 were not complied with,
hence it disallowed probate.
i. In cases of probating:
ii. Notarial Wills- Subscription,
Attestation and
Acknowledgement under Art 805
and 806 are required.
iii. Holographic Wills- Requirement
that they be totally autographic or
handwritten by the testator himself.
Failure to strictly observe other
formalities will not result in the
disallowance of a holographic
will that is unquestionably
handwritten by the testator.
f. A holographic will can still be admitted to
probate, notwithstanding non-compliance
with Art.814.
i. The will is not invalidated as a
whole, but at most only as respect
to the particular words erased,
corrected or interlined.
g. Thus, unless the unauthenticated alterations,
cancellations or insertions were made on the
date of the holographic will or on testator’s
signature, their presence does not invalidate
the will itself. The lack of authentication
will only result in disallowance of such
changes.
Art. 815 When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established by
the law of the country in which he may be. Such will may
be probated in the Philippines.
Art. 816 The will of an alien who is abroad produces
effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in
conformity with those which this Code prescribes
Art. 817 A will made in the Philippines by a citizen or
subject of another country, which is executed in
accordance with the law of the country of which he is a
citizen or subject, and which might be proved and allowed
by the law of his own country, shall have the same effect as
if executed according to the laws of the Philippines.
Evidence Required for the Reprobate of Wills Admitted by
Foreign Court
 Vda. De Perez vs. Tolete
G.R No. 76714
(NO FACTS PRESENTED IN THIS CASE)
RULING:
1. The respective wills of the Sps. Cunanan, who were
American Citizens, will only be effective in this
country upon compliance with Art. 816 of the Code.
2. Thus, proof that both wills conform with the
formalities prescribed by New York laws or by PH
Laws is imperative.
3. [IMPORTANT] Evidence necessary for the reprobate
of the wills which have been probated outside of the
PH Laws are:
a. Due execution of the will in accordance with
the foreign laws
b. The testator has his domicile in the foreign
country and not in the Philippines
c. The will has been admitted to probate in
such country
d. The fact that the foreign tribunal is a probate
court and;
e. The laws of the foreign country on
procedure and allowance of wills.
4. The necessity of presenting evidence on the foreign
laws upon which the probate in the foreign country is
based is impelled by the fact that our courts cannot
take judicial notice of them. (wow evid)
Article 818. Two or more persons cannot make a will
jointly, or in the same instrument, either for their reciprocal
benefit or for the benefit of a third person
Nature of Joint Wills
Joint wills relate to testamentary dispositions contained in a
single instrument made jointly by two or more testators. They
may refer to properties owned in common by the joint
testators, or to properties separately owned by them.
Where it is physically possible to segregate the dispositions of
each testator into separate instruments, each being complete in
form, the wills cannot be considered joint.
Policy Statement
Joint wills are prohibited by law because one of the joint
testators might influence the other. The law recognizes the risk
that the dominant testator could exert undue influence on the
other.
Joint wills (assuming they are permitted) require submission to
probate. As probate would be conclusive with respect to the
testamentary capacity of one of the testator and the due
execution of the will, the probate of joint will cannot be
conclusive to the testamentary capacity of the other.
Erroneous order of the probate court in admitting the probate
of a joint will, will attain finality. Such erroneous final order
admitting a joint will to probate can no longer be reopened.
De La Cerna vs. Rebeca-Potot
G.R No. L- 20234
FACTS:
1. On may 9, 1939, Bernabe de la Cerna and Gervasia
Rebeca executed a last will wherein they willed that
a. “our 2 parcels of land acquired during our
marriage together with all the improvements
thereon shall be given to Manuel Rebecca,
our niece,....”
b. that while “each of the testators is yet
living, he or she will continue to enjoy the
fruits of the 2 lands aforementioned.
c. Bernabe de la Cerna died on Aug 30, 1939
and the will was probated in the CFI.
2. The CFI ruled that the testament is null and void.
The CA reversed on the ground that the decree of
probate in 1939 was issued by a court of probate
jurisdiction and conclusive on the due execution of
the testament.
ISSUE: W/N the will should be admitted to probate:- NO
HELD:
The CA should have taken into account the probate decree of
1939 could only affect the share of the deceased husband,
Bernabe.
IT could not include the disposition of the share of the wife,
Gervasia Rebeca who was then still alive, and over whose
interest in the conjugal properties the probate court acquired
no jurisdiction, precisely because her estate could not be the
issue.
It follows that the validity of the joint will, in so far as the
estate of the wife was concerned, must be, on her death, re-
examined and adjudicated de novo, since a joint will is
considered a separate will of each testator.
Therefore, the undivided interest of Gervasia Rabaca should
pass upon her death to her heirs intestate, and not exclusively
to the testamentary heirs, unless some other valid will in her
favor was shown to exist, or unless she be the only heir
intestate of said Gervasia.
Art. 819 Wills, prohibited by the preceding article,
executed by Filipinos in a foreign country shall not be valid
in the Philippines, even though authorized by the laws of
the country where they may have been executed.
Nationality Rule
Art 819 emphasizes the nationality rule. It creates an exception
to Art 17 which permits a Filipino to execute a will in a
foreign jurisdiction by complying with the formalities
prescribed in such jurisdiction.
The doctrine of lex loci celebrationis is made explicitly
inapplicable to Filipinos. Joint wills executed by Filipinos in
any jurisdiction where they are allowed cannot and will not be
admitted to probate in the Philippines.
Foreign nationals are not covered by the prohibition, provided
that their own national laws permit them to execute joint
wills.
WITNESSES TO WILLS
*Not applicable to HC (820-824)
Art 820.
Any person of sound mind and of the age of eighteen years
or more, and not blind, deaf or dumb, and able to read
and write, may be a witness to the execution of a will
mentioned in article 805 of this Code.
REQUIREMENTS OF WITNESSES TO NOTARIAL
WILLS (more on qualification so more on factual)
1. Of sound mind
2. At least 18 years of age
3. Not blind, deaf or dumb,
4. able to read and write
under 805 - the witnesses must be credible
Application of the Law
The qualifications of a witness in Art 820 apply only to a
witness to a notarial will. The intervention of witnesses is not
required in a holographic will. Even if a holographic will is in
fact witnessed, the qualifications referred in Art 820 and the
disqualifications in Art 821 do not apply to the witnesses who
are deemed dispensable.
Reason for the prescribed qualifications
When one is called to be a witness to a will, the law is more
stringent because during the probate proceedings, a witness
will have to testify on matters material to the admission or
denial of the will
A sound mind is necessary to enable an attesting witness to
fully appreciate and understand the formalities that he is
supposed to witness.
An insane person can neither appreciate the significance of
these formalities nor understand the nature of the document
that it is to be executed.
● Age requirement- to assure maturity of the witness
● Not be blind- must be present and see the testator
and other witnesses sign the will
● Not be dumb- the need for his testimony in court to
give account of the formalities during the execution
● Not be deaf- difficulty of communicating with deaf
witness when presented in court
● Literacy requirement- to ensure the intellectual
fitness to appreciate the formalities and their legal
significance.
A witness is also required to possess a certain level of
education, intelligence and training so that there is some level
of assurance that the witness will be credible and reliable and
that his account of what went on is both accurate and true.
Gonzales vs CA
90 SCRA187
DOCTRINE: Credibility of a witness need not be proved by
the proponent of the will; it is left to the court’s appreciation
of their testimonies during probate.
FACTS:
1. Gabriel died a widow.
2. Santos, a niece of the deceased who lived with her
prior to the time of her death, filed for a petition for
the probate of her will.
3. The three instrumental witnesses of the will included
a family driver, a housekeeper, and a piano teacher.
4. The petition was opposed by Rizalina Gonzales, one
of the nieces named in the will, who contends that the
will was not executed and attested as required by law
as there was absolutely no proof that the 3
instrumental witnesses were credible witnesses, there
must be evidence on record that the witness has a
good standing in his community, or that he is honest
and upright, and reputed to be trustworthy and
reliable.
5. She alleged that “credible” is not synonymous with
“competent”
ISSUE: W/N the witnesses are credit witnesses as required
under Art 805
RULING:
● Yes. Art 820 NCC provides the qualification for the
witness to the execution of the will while Art 821 sets
forth the disqualification.
○ Under the law, there is no mandatory
requirement that the witness testify initially
or at any time during the trail as to his good
standing in the community, his reputation
for trustworthiness and reliability, his
honesty and uprightness in order that his
testimony may be believed and accepted by
the trial court.
 ● It is enough that the qualifications in Art 820 are
complied with, such that soundness of his mind can
be shown or deduced from his answers to the
questions propounded to him that his age is shown
from his appearance, testimony, as well as that he is
not blind, deaf or dumb, that he is able to reqad or
write, and that he has none of the disqualification in
Art 821.
● The term “credible” as used in Art 805 should not be
given the same meaning it has under the
Naturalization law in that the witnesses must prove
their good standing and reputation. In probate
proceedings, unlike in petitions for naturalization, the
instrumental witnesses are not character witnesses for
they merely attest to the execution of a will, and
affirm the formalities attendant to said execution.
● The relation of the beneficiary of the will to the
testator does not disqualify one to be a witness. The
main qualification of a witness in the attestation of
wills, if other qualifications as to age, mental capacity
and literacy are present, is that the said witness must
be credible i.e., his testimony may be entitled to
credence.
● In a strict sense, the competency of a person to be an
instrumental witness to a will is determined by Art
820 and 821, whereas his credibility depends on the
appreciation of his testimony and arises from the
belief and conclusion of the court that said witness is
telling the truth.
***Art. 805 requires the notarial will to be attested by at
least 3 credible witnesses. Art. 820 prescribes the
qualifications of a witness, while Art. 821 enumerates
the disqualifications. Thus, an issue arises as to whether
a witness competent under 820 and 821 is necessarily
credible as required by Art. 805. The case makes a
distinction between a competent witness and a credible
witness. Furthermore, the case stresses that competence
may be proved or inferred; whereas, credibility, which is
a matter to be determined by the court, is presumed
unless evidence to the contrary is presented.***
Credible vs Competent witness
● Competence of a witness:
○ may have to be proved, his credibility is a
matter addressed to the court.
○ It is not required that the credibility of the
attesting witness be established before such
witness testifies.
● Credibility is for the court’s appreciation and
discretion since they did not need to prove (kasi di
sila character witness)
Art 821.
The following are disqualified from being witnesses to a
will:
(1)Any person not domiciled in the Philippines;
(2)Those who have been convicted of falsification of a
document, perjury or false testimony.
Domiciliary requirement (baste adds qualification: must be
domiciled + be able to testify in the future)
The domiciliary requirement is intended to ensure that when
the witnesses are called upon to testify, they can without
much difficulty appear in court. The failure of a witness to
appear may jeopardize the admission of the will.
The domiciliary requirement assumes that the probate is
conducted in the Philippines. Domiciliary requirement is not
mandatory if probate proceedings were held in a foreign
jurisdiction.
Disqualification due to Criminal Conviction
The crimes that would disqualify a person from being an
attesting witness to a notarial will have one element in
common—dishonesty.
If the credibility of the witness is questionable, his testimony
on these matters would be pointless and cannot serve as basis
for admitting the will to probate.
Disqualification pertains to 3 specific offenses. It is submitted
that the grounds are exclusive and do not include other forms
of dishonesty. In any case, appreciation of the credibility is a
matter left to the probate judge.
The notary public before whom the will is acknowledged
cannot be one of the instrumental witnesses to the will. (Cruz
vs Villasor)
Art 822.
If the witnesses attesting the execution of a will are
competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the allowance
of the will.
Subsequent Incapacity
The competence of a witness is material at the time of the
execution of the will because it is the time that the witness is
called upon to take mental note of the procedures that were
observed. The competence of a witness is determined as of
such time.
Soundness of the mind is an example of a qualification that a
witness must possess when he takes the witness stand during
probate. However, the law does not require the continuing
qualification of a witness, for to do so would be unjust to the
testator whose will may be disallowed for reasons beyond his
control.
 Art 823.
If a person attests the execution of a will, to whom or to
whose spouse, or parent, or child, a devise or legacy is
given by such will, such devise or legacy shall, so far only
as concerns such person, or spouse, or parent, or child of
such person, or any one claiming under such person or
spouse, or parent, or child, be void, unless there are three
other competent witnesses to such will. However, such
person so attesting shall be admitted as a witness as if
such devise or legacy had not been made or given.
Persons prohibited from obtaining benefit under a
notarial will
Baste class: Related to ARTICLE 1027 - these people are
incapacitated because these people can exert undue influence
Art. 823 voids any economic benefit given by a testator in his
notarial will to certain persons. These prohibited benefits are
testamentary gifts given by the testator to:
1. An attesting witness
2. His or her spouse
3. His or her parents
4. His or her child or children
5. Anyone claiming under such witness, spouse, parents
or child.
Note: Prohibition in 823 does not apply to a holographic will.
Reason for the nullity of the disposition
Primary functions of the witnesses to a notarial will:
1. To identify each page of the will by subscribing
thereto
2. To attest the observance of certain formalities during
the execution thereof.
During probate, the witnesses are expected to give testimony
confirming:
1. Their signature appearing in the will
2. The truth of the matter set forth in the attestation
clause.
If any of the witnesses should deny his signatures in the will,
or otherwise disavow the contents of the attestation clause, the
probate of the will is put at serious risk.
The admission or denial of the will to probate depend on the
quality of the testimonies of the witnesses and their
credibility.
823 seeks to preserve the integrity, honesty and credibility of
the witnesses while testifying on the formalities observed in
the execution of the will.
To ensure that the witness will not be tempted, the
nullification of legacies and devises extends to those given by
the testator to the members of the immediate family of the
witness.
Nature of Prohibition
The law declares void the testamentary benefit given by the
testator to a witness or to the members of his immediate
family, or to anyone claiming under them.
The law does not disqualify the immediate family from being
a witness to the will. By agreeing to be an attesting witness to
a notarial will, a person understands that neither he nor his
family can receive any economic benefit under the will.
Exception to the rule
The nullification does not apply if there are “three other
competent witnesses to such will.” The availability of at least
3 other witnesses who can testify makes unnecessary the
testimony of the witness who has economic interest.
Art. 823 Art. 1027(4)
-nullifies the legacy or -the witness, his immediate
devise given by the testator family and persons
to an attesting witness, claiming under them are
immediate family, or declared incapacitated to
anyone claiming under inherit from the testator
them
While the nullity of the legacies and devises in Art 823 is
qualified by an exception, the incapacity of the witness, his
immediate family, and persons claiming under them in Art
1027 is absolute and unqualified.
It would seem that the appropriate remedy to this situation is
to amend either Art 823 or Art 1027.
Compulsory Heir as witness
The nullification of the legacies and devises may extend to
compulsory heir who acted as instrumental witness to a
notarial will.
Many commentators believe that such effect should be limited
to such dispositions in his favor that may exceed the legitime.
Creditor as witness
A creditor who served as instrumental witness is prohibited
from receiving a legacy or devise from the testator. However,
creditor-witness is not precluded from collecting his credit
from the estate.
Persons claiming under the witness, his spouse, ascendant
or descendants
The nullity of the legacy or devise given extends to any
person claiming under them. The creditor cannot derivatively
make a claim on the legacy or devise which is void as to the
primary beneficiary.
Same principle with Art 1027 (4). If the witness and his
family are incapacitated to inherit, a creditor cannot accept the
legacy or devise on their behalf.
Art 824.
A mere charge on the estate of the testator for the
payment of debts due at the time of the testator's death
does not prevent his creditors from being competent
witnesses to his will.
To “charge” the estate simply means to hold the estate liable
for the payment thereof, or to record a claim as a debt or
obligation of the estate.
admission to probate of the subsequent
revoking codicil.
NOTE: Execution of the codicil for the purpose of making
additional disposition or amending existing disposition is NOT
absolutely necessary if the antecedent will is
HOLOGRAPHIC will.
Reason: Art. 812 permits a testator to add new dispositions
below his signature provided that the new dispositions are
entirely written, dated and signed by the hand of the testator.

Subsection 5 – Codicils and Incorporation by Reference Article 826.

In order that a codicil may be effective, it shall be
Article 825.
executed as in the case of a will.
A codicil is supplement or addition to a will, made after the
execution of a will and annexed to be taken as a part
thereof, by which disposition made in the original will is Formalities of a Codicil
explained, added to, or altered.
Notarial Codicil
(Art. 804-807 and 808 in case of blind testator must be
2 Functions of a codicil complied)
1. It may add to, explain, or modify provisions of
an antecedent will,
Holographic Codicil
2. It may revoke the antecedent will.
(Art. 810 must be complied with)
The execution of a codicil presumes the existence of a prior
formally valid will.
Note: Despite the differences in the formal requisites of 2
different wills, the law DOES NOT prohibit a holographic will
If the antecedent will is formally defective, there is nothing
from being modified by a notarial codicil.
which a codicil can add to, explain, modify or otherwise
Reason: for formal validity, the will and codicil are evaluated
revoke.
separately.

1. Codicil may add to, explain, or modify

Person who executes a codicil must possess testamentary
provisions of an antecedent will
capacity at the time of its execution.

- Codicil makes additional testamentary

Testamentary capacity at the time of the execution of the
dispositions, explains some provisions of the
codicil will NOT validate the void antecedent will.
antecedent will, or modifies any disposition
therein.
Rule: a subsequent valid document cannot cure the defect of
- It is imperative that both the antecedent will and
or otherwise validate a prior void will.
the codicil be preserved – to be presented in the
probate court.
- Effectivity of the disposition of the codicil is XPN: the new testamentary dispositions in the subsequent
dependent on the formal validity of both: will valid codicil may be given effect, subject to the condition that
and the codicil. the codicil is admitted to probate.

2. It may revoke the antecedent will. Article 827.

- It is important to preserve the antecedent will.
- Theory of dependent relative revocation
n The effectivity of the revocation of the
antecedent will is dependent on the
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.
Attachments to a Will
This procedure does not require the need to reproduce the
documents in the body of the will.
By making reference and attaching such (additional)
documents to the will, it is incorporated to it.
Once the attachments are incorporated to the will, it become
integral parts of the will.
Note: if the documents to be attached are voluminous, Art. 827
(par. 4) will be appreciated.
Requisites for a valid incorporation by reference
(Applies to notarial only) because the law requires the testator
and the witnesses to sign. Unlike the holographic will, it does
not need to be witnessed.
1. Document must be in existence at the time of the
execution of the will.
Reason: documents which are non-existent, or which
have yet to be executed at the time of the execution
of the will cannot be incorporated by reference.
2. The will must clearly describe and identify the
documents being incorporated into the will,
stating the particular the number of pages
thereof.
Reason: to avoid any doubt as to the identity of the
documents being incorporated into the will.
- This is meant to ensure that the incorporated
document is complete, without addition or
suppression of pages.
3. During probate, the incorporated document must
be clearly identified by satisfactory evidence as
the document referred to in the will.
- Testimonial, documentary evidence
4. It must be signed by the testator and the
witnesses on each and every page, except in the
case of voluminous books of accounts and
inventories.
Purpose of the law:
1.) To ensure authenticity of the
incorporated document
2.) To prevent the substitution of pages
Different views (signature on voluminous documents)
1. No need to sign each and every page
2. The testator and the witnesses should
nonetheless affix their signatures on some part
of the pages for the purpose of identifying the
document.
5. If a document is incorporated to a notarial will
by reference, the number of pages of the will as
stated in the attestation clause should include the
number of pages of the attached document.
Reason: the attached document is an integral part of
the will.
Incorporation by reference in a Holographic will (Not yet
tested in the SC)
1. The document must be entirely written by the
hand of the testator
2. The testator must procure at least 3 witnesses
who shall sign each and every page of the
document to be incorporated into the
holographic will. In case of voluminous records,
the testator and the witness should sign a few
pages thereof for the purpose of identifying the
document.
Subsection 6 – Revocation of Wills and Testamentary
Dispositions
Article 828.
A will may be revoked by the testator at any time
before his death. Any waiver or restriction of this right
is void.
1. A will is ambulatory
- Testator may revoke a will, with or without
cause, at any time prior to his death.
- The testator must possess testamentary capacity
at the time of the revocation.
GR: A testator who becomes insane or mentally incapacitated
after the execution of the will cannot revoke a will already
executed
EXC: Unless in the meantime, he recovers sanity or if at the
time of the revocation, he acted in lucid interval.
Rule: the will does not become final until the death of the
testator.
2. Revocation is a personal act of the testator
- Right to revoke is personal to the testator.
- A testator cannot enter into a contractual
arrangement whereby he relinquishes in favor of
a 3rd person his right to revoke a will already
executed.
- (relinquishes the right to revoke to a 3 rd person)
Even if such provision is incorporated in the
disposition of the will, such stipulation is void.
Revocation pursuant to a notarial codicil: in causing other
person to write his name in the revoking codicil
- should be made pursuant to Art. 805.
● Done by his express direction, in his
presence, and in the presence of 3
instrumental witnesses
- (Art. 805) DOES NOT apply to holographic
codicil
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.
Conflict of rule on Revocation of Wills
Place of revocation Applicable law
Outside PH by non- Domiciliary law of the
domiciliary testator; or law of the place
here the will was executed.
Within the PH Ph law
Outside the PH by a PH law; or law of the place
domiciliary of revocation
Article 830.
No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills; or
(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.
*Relate to 835 to 837
NOTE: enumeration is NOT exclusive
Modes of Revoking a Will
1. Implication of law
2. Execution of subsequent will or codicil
3. Execution of certain overt acts by the testator
NOTE: power to revoke the will is not negated or diluted in
any manner by the fact that the will has been previously
admitted in court in an ante mortem probate.
1. Implication of law
- Does NOT need an affirmative action on the part
of the testator.
- Mere occurrence of the relevant event gives rise
to automatic revocation of the relevant
testamentary disposition.
Rule: revocation by law may be total or partial
Reason: Art. 830 must be understood to include a revocation
of a particular disposition or only some of the dispositions in
the will.
Examples: Art. 43(1) , 44 and 63 (4) of the FC
- Void subsequent marriages; Legal separation
1. cause
2. fault
3. party who gave cause to the legal separation
2. Revocation by the execution of another will or
codicil
- Prior formally valid will can be revoked by a
subsequent valid will or codicil.
 - Formal validity of both the revoked will and the
revoking will or codicil are essential. (Both
should be VALID)
Reason: There is nothing to revoke
Samson v. Naval
- Doctrine of dependent relative revocation (see
page 72 - reviewer)
- Will was denied to probate, thus the revocatory
clause contained therein is void.
- The disallowance of the will produced the effect
of annulling the revocatory clause.
- RULE: a subsequent will containing a clause
revoking an earlier will must be admitted to
probate before the clause of revocation can have
any effect, and the same kind, quality, and
method of proof is required for the
establishment of the former will.
If the revoking will or codicil is formally defective and
accordingly denied probate, the revocatory clause therein
cannot be given effect.
- The prior will may be presented for probate as
the last will and testament of the testator,
assuming it was preserved.
If the testator revoked the prior will by destroying through any
of the overt acts referred to in Art. 830 (3), its contents and
due execution may be proved by secondary evidence. Then
such destroyed will may be allowed to probate.
a) Conditional revocation
- Not prohibited by law (unlike conditional
disinheritance; VOID)
b) Express and implied revocation
b.1 Express revocation
- is accomplished through a clause in a subsequent
will or codicil which expressly revokes the prior will.
e.g. revocatory clause.
b.2 Implied revocation
- when there is an irreconcilable inconsistency
between the provisions of 2 formally valid wills.
- the provisions of the subsequent valid will or
codicil will prevail over the former, and implicitly
revoke the inconsistent provisions of the prior will.
c) Requisites of revocation by means of a
subsequent will (implicitly revoke the prior
will)
1) the testator must possess testamentary capacity at
the time of the execution of the revoking will.
2) the revocation must be definite.
(three) The revoking will must either:
(i) contain a revocatory clause; or
(ii) contain dispositions which are
inconsistent with those of the
prior will.
- If inconsistencies can be reconciled, BOTH
dispositions shall be given effect based on the
reconciled provisions, and there shall be NO
implied revocation.
- If the irreconcilable inconsistencies do not
affect at all the dispositions of the prior will, the
implied revocation shall affect only those
dispositions which cannot be reconciled, while
the unaffected dispositions may be enforced.
(iii) The revoking will must be
formally valid and admitted to
probate.
3. Revocation by means of an overt act
A testator may revoke his will whether:
1. notarial,
secondary 2. holographic or
3. by the execution of certain acts which the law deems
consistent with the notion of revoking a will.
Baste:
● Kahit 25 pages yung will, pwedeng tanggalin ko
lang(gupitin/sunugin) lang yung signature oks na
void na or revoked na yung will.
The following overt acts:
Burning, tearing, canceling, or obliterating
- Are the deliberate destruction of the will which
indicates testator’s intention to get rid of the
will.
“destruction of the will” (Dr. Tolentino)
- Revocation by means of overt act to the physical
destruction of the instrument.
Definitions of the word “destroy”
1. To reduce an object to useless fragments, a
useless form or remains as by rending, burning,
or dissolving
2. To put an end to or extinguish
3. To render ineffective or useless, to nullify, to
neutralize, or to invalidate.
Definition of “destruction”
- May refer, but not necessarily limited to the
physical destruction of the will.
 - Any act which will render the will ineffective or
useless, or which will nullify the will, or which
will invalidate it.
Overt acts which do not physically destroy the will:
1. Obliteration – illegible
2. Cancelation – drawing of crisscross lines across
the face of the will
Why is the enumeration under Art. 830 NOT exclusive?
- Any other act which is consistent with the notion
of “destruction of the will” or otherwise
consistent with the idea of rendering the will
useless or ineffective should produce the same
effect as those acts of revocation enumerated
under Art. 830.
- E.g. writing of the word “null and void” by the
testator with his signature on the face of the will
– considered revoked.
Note: there are contrary opinions that the enumeration is
exclusive. (SC has yet to rule upon the matter)
Chelly’s part
(a) Requisites of revocation by overt act
1. The overt act must be specified by the law, or
otherwise inconsistent with the notion of revoking
a will
2. The testator must complete the substantive phase
of the overt act. Overt act must be fully
consummated by the testator in order to remove all
doubts regarding the revocation. This can be
determined from the facts and circumstances of each
case.
Complete revocation:
○ Tearing the will into four pieces threw it -
reasonably construed to have revoked the
will, there is completion of substantive
phase of the overt act.
○ Burning the will, not fully burned because it
was thrown in the trash can - completed and
effective from the time the intent to revoke,
even if the will is not totally destroyed
Non-completion due to intervention of a third person:
○ Testator with animus revocandi threw the
will into the stove and left the premises
immediately, the housemaid saw the
document and retrieved the same and
prevented the destruction - the will is NOT
revoked.
○ Testator with animus revocandi tore the will
into two pieces, spouse begged to desist and
Testator stopped and kept the torn will in his
vault - NOT revoked, Testator stopped
because of his spouses’ intervention which
indicates that he changed his mind and did
not complete the destruction of the will.
Evident by the fact he kept it in his vault.
Destruction of a small position of the will is sufficient
for its revocation.
○ Testator, with intent to revoke, cut or burn
his signature - essential part of the will,
without the Testator’s signature, the will is
worthless.
○ In a holographic will, cutting off the date -
undated holographic will is worthless.
3. The testator must possess testamentary capacity at the
time of the revocation.
○ Destruction of a will without testamentary
capacity, even with intent, will not revoke
the will.
○ Testator must be of sound mind.
4. The testator must have animus revocandi.
○ It is the intention of the testator to revoke his
will and can only be proven by
circumstantial evidence.
○ Animus revocandi and the overt act must go
hand in hand, missing one will make the
revocation ineffective.
E.g. - threw the will in the stove by mistake
is ineffective revocation.
GR: The unlawful intervention of a third person
which prevented the testator from revoking the will
cannot be considered as an excuse for the testator’s
failure to perform the overt act of revocation.
EXP: If the third person who prevented the testator is
the beneficiary or one of the beneficiaries named in
the will, the failure of the testator to revoke the will
CANNOT operate to his advantage
REASON: A person who by fraud, violence,
intimidation, or undue influence and
pressure prevents a testator from revoking a
will is INCAPABLE of succeeding the
testator by reason of unworthiness.
5. The overt act must be executed by the testator
personally, or through a third person under the
express direction and in the presence of the testator.
GR: Personal to the testator hence it is unlawful to
delegate to a third person the discretion to revoke the
will.
EXP: The testator may delegate to a third person the
physical act of destroying the will under two
conditions:
1. Testator expressly gave a directive to the
third person AND
2. Destruction of the will must be done in the
presence of the testator.
TEST OF PRESENCE (Nera v. Rimando)
Testator, by casting his eyes in the right
direction, should be able to see, without any
obstruction, the destruction of the will.

TESTATE ESTATE OF ADRIANA MALOTO v. CA
No. L-76464 February 29, 1988
FACTS: Petitioners and respondents are the nieces/nephews
or Adriana Maloto. They believed that the deceased did not
leave a will, hence they filed an intestate proceeding.
However, the parties executed an extrajudicial settlement of
the estate dividing it into four equal parts.
Inside a cabinet, her last will was discovered purportedly dated
1940. Hence the annulment of the proceedings and a probate
petition was filed by the devisees and legatees. The said will
was allegedly burned by the househelp under the instruction
of the deceased.
ISSUE: Whether or not there was valid revocation of the will-
NO
HELD:
For a valid revocation to occur, the physical act of destruction
and animus revocandi must concur, one without the other will
not produce a valid revocation. The physical act of destruction
of a will must come with an intention to revoke (animus
revocandi). In this case, both requisites are missing. The paper
burned was not established to be the will and the burning was
not proven to be done under her express direction, more so it
was not done in her presence.
(b) Partial revocation by means of overt act
○ May revoke specific disposition in the will without
necessarily revoking the entire will.
(c) Presumed revocation
○ Law does not require proof of the revocation of the
will neither require that the proof of revocation be
preserved. Often, revocation can be proved by parol
evidence.
○ Revocation of a will can be presumed:
➢ Will cannot be found, it was last seen to be
in the possession of the testator - in the
absence of other competent evidence then
the testator canceled or destroyed the same.
➢ Testator had ready access to the will and it
cannot be found after his death. It will be
presumed that such will has been destroyed
by any other person with the knowledge or
authority of the testator.
GAGO v. MAMUYAC
No. 26317, January 29, 1927
FACTS: Miguel Mamuyac executed a last will and testament
on July 1918. Cornelia Mamuyac et al. opposed alleging it was
revoked. It appeared that on April 16, 1919, the deceased
executed another will. The lower court denied the probate of
the first will on the ground of the existence of the second will.
Another petition was filed to seek the probate of the second
will. The oppositors alleged that the second will presented
was merely a copy. According to the witnesses, the said will
was allegedly revoked as per the testimony of Jose Tenoy, one
of the witnesses who typed the document. Another witness
testified that in December 1920 the original will was actually
cancelled by the testator.
ISSUE: Whether or not the will in question has been revoked
and cancelled - YES
HELD: The law does not require any evidence of the
revocation or cancellation of a will to be preserved. In view of
the fact that the original will of 1919 could not be found after
the death of the testator and in view of the positive proof that
the same had been cancelled, the conclusions of the lower
court are in accordance with the weight of evidence.
After a careful examination of the entire record, we are fully
persuaded that the will presented for probate had been
cancelled by the testator in 1920.
Art 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 later wills.
Total or Partial Implied Revocation
● Dispositions of the subsequent (revoking) will or
codicil shall cancel only those provisions of the prior
will which are irreconcilably inconsistent.
● No revocation shall be inferred to the extent that the
provisions of the prior and subsequent will are not in
conflict with each other. In this event, both the prior
and subsequent wills shall be submitted to probate
and shall be given simultaneous effect, minus
provisions that are impliedly revoked by the
subsequent will.
Art 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.
Inoperative Revoking Will
The revocation of a prior will takes effect even if the revoking
will is inoperative. A will is inoperative if:
1. The heirs designated in the revoking will cannot
inherit from the testator either because they
predeceased the testator, incapacitated to inherit, or
repudaited the inheritence; or
2. The revoking will fails to designate any heir or
beneficiary (possible that testator deliberately and
intentionally wanted to die intestate)
Revoking will or codicil is presumably valid and was duly
admitted to probate. But while the revoking will or codicil
may be totally inoperative, it nonetheless revoked the prior
will.
 Art 833
A revocation of a will based on a false cause or an
illegal cause is null and void.
False Cause
● Should not be confused with the “cause” or the
“consideration” of a contract.
● The “cause” for the revocation of a will refers to the
reason which impelled the testator to revoke a duly
executed will or to make changes to certain
disposition.
● The revocation, vitiated by mistake if the intervening
event which caused the testator to revoke his will, or
any disposition therein, is eventually proved to be
false.
E.g. T, with no compulsory heirs, willed his entire
estate to his friend, X. X went missing. Y executed a
second will stating that he revoke his first will
because X has died.
ANALYSIS:
○ If X should reappear, the revocation will be
nullified because the reason for such (X’s
death) is false cause.
■ Using parole evidence, the second
will (revoked the first will) is
deemed to contain all dispositions,
terms and conditions specified by
the testator.
○ If the T did not specify any reason in the
second will, a person having an interest in
the estate cannot, by testimonial evidence,
impute any specific reason for such
revocation. The revocation of the first will
shall take effect.
● Nullity of a revocation based on a false cause can
only be invoked if the revocation of the prior will was
through the execution of another will or codicil
wherein the cause of the revocation is explicitly
stated.
○ Baste: the testator should expressly state the
cause of revocation
Non-applicability of the theory
● If the revocation is accomplished through any of the
overt acts (burning, tearing, cancelling, or
obliterating) the doctrine of revocation based on a
false cause cannot apply because in the execution of
the acts, the cause of the revocation could not have
been stated. No basis to challenge the truth or falsity
of the revocation.
Art 834
The recognition of an illegitimate child does not lose its
legal effect, even though the will wherein it was made
should be revoked. (741)
Additional Notes on Sir’s Book:
Relate this to Art 278 of the Civil Code where the putative
father can recognize his illegitimate child in a will has
ALREADY BEEN REPEALED.
In Art 278, the the recognition of the legitimate child must be
done in a will through:
1) a statement before a court of record
2) in any authentic writing
Denial of probate does not have an adverse effect on
recognition of illegitimate child, provided
1. testator understood the consequences of recognition,
2. his signature in the will is proved authentic,
3. and the testator voluntarily signed the document.
GR: Even if the will wherein the illegitimate filiation of a
child is recognized by the putative father is revoked by the
latter, the recognition of such illegitimate filiation survives the
revocation of the will. As such, the will may still be used as
evidence of such filiation.
Ratio: Since the recognition of an illegitimate child is not in
the nature of a property disposition, its effectivity is not
contingent upon the admission of the will to probate.
XPN: Article 834 cannot apply if the revocation of the will
was through overt acts.
XPN to the XPN: An authentic duplicate copy of the said will
can be used as secondary evidence of the recognition of the
illegitimate child.
If a will is denied probate on account of non-observance of the
required formalities (See Art. 839 (1)), the recognition of the
filiation of an illegitimate child contained therein is not
necessarily avoided.
GR: If a will is denied probate on account of the lack of
testamentary capacity of the testator or due to his consent
being vitiated, the nullity of the will carries with it the nullity
of the recognition of the illegitimate child. (example: testator
was insane at the time of the execution of the will)
XPN: Principle of separability recognized in contract law - If
the vice of consent is contained only to some or all the
testamentary dispositions of the will and nonetheless freely,
voluntarily, and intelligently recognized the filiation of an
illegitimate child in the same document, it can be used as an
evidence to prove the filiation of the illegitimate child (See
Art. 792).
If the will is denied probate because it was a COMPLETE
FORGERY, all provisions including the recognition of
illegitimate children is VOID.
REPUBLICATION AND REVIVAL OF WILLS
● Republication = expressly revoked will, needs act of
testator
● Revival = implied revocation, by operation of law
Art 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. (n)
Baste: This is the XPN
Previous will with void formalities should be republished by
rewriting everything
Art 836
The execution of a codicil referring to a previous will
has the effect of republishing the will as modified by the
codicil. (n)
Baste:This is the general rule
Previous will with valid formalities should be republished by
mere reference.
Example:
● 2019 will states All to X.
○ I revoke 2019 will: Republish
○ [Formally valid will, mere reference to 2019
will]
○ [Formally void, re-write whole]
● All to Y: Revival
○ 2019 revives because no more
inconsistencies
Revoke 2020
Republication
The republication of a will is a process sanctioned by law
pursuant to which:
1) A will that is void as to form is rectified by re-
executing the same, or
2) A revoked will which is valid as to form is brought
back to life through the execution of a codicil that
makes reference to the antecedent revoked will.
Forms of republication
Will is void as to form
- Can rectify mistake by re-executing the will, but this
time, in accordance with formalities prescribed by
law at the time of republication. (Art. 385)
● Cause the will to be rewritten in its entirety
● Procure three attesting witnesses
● Re-execute will following procedures in Art.
804, 805, and 806,
● Subject to the law at the time of
republication.
●
Will is formally valid but revoked
● Rewriting and re-execution unnecessary.
● Accomplished through execution of subsequent valid
codicil that makes specific reference to the revoked
will.
Ratio: Rewriting and re-execution of a will that is
valid to its form would be unnecessary, since it could
have been admitted to probate had it not been
revoked.
● Testator cancelled will by cancelling signature. He
changed his mind and again want to revive the will.
He can do this by executing notarial or holographic
codicil (following formalities required by law at time
of republication)
● Republication by mere reference – testator able to
republic will without having to rewrite the cancelled
will. It is necessary for testator to preserve the
canceled will because formal validity of revoked will
can only be established by its presentation and
examination. (Art 836)
Effects of republication by means of codicil
As to amendments – When revoked will republished by
means of codicil, testator may amend/modify to the contents
thereof. Thus, the republished will is reinstated as modified by
the codicil
- May amend republishing will
As to effectivity – Testator gave all his SMC shares which at
that time was 1000 shares. It was revoked. Years after, it was
revived but this time, the SMC shares earned stock dividends
which is already composed of 5000 shares. Legacy of heir
composed of 5000 shares of SMC.
- Will is construed as it was published for the first
time. (as of the date of republication)
As to governing law – Formal validity of notarial codicil
which republished the notarial will is governed by law in force
at time of republication.
Art 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. (739a)
Revival of wills
● Reinstatement by operation of law, no need testator
● When there is irreconcilable inconsistency on the
second will, revocation of second will
automatically revives the first will, provided all
requisites are met
Ratio: The testator never indicated an express desire to revoke
the prior will. Thus, the elimination of the inconsistent
provision/s by revoking the subsequent will or codicil would
revive the prior will.
● “Revival” is the reinstatement of a revoked will by
operation of law (hence, the reinstatement does not
require any action from the testator).
Requisites of revival
1. The testator executed a first formally valid will;
2. The testator executed a second formally valid will
whose provisions are irreconcilably inconsistent with
those of the first will;
3. The second will does not expressly revoke the first
will, but because of the irreconcilable provisions
between the two wills, the second will implicitly
revoked the first;
4. The testator revoked the second will.
When there is express revocation by second will, the first will
is not automatically revived.
Baste takeaways:
Revocation by means of a will OR a codicil
● Express or implied revocation
Question: What is the difference between the two if the
revoking will contains revocatory clause
Answer: the revocation is explicit in the other.
Explanation:
I have a prior will I executed years ago and the only
disposition is I revoke my prior will, that is express
Ano ang significance non? I made it absolutely clear I don't
like my prior will.
Formalities required by law, my prior will has become a
worthless piece of paper, the consequence of subsequent
will.
Let me stress, I categorically stated, I don't like the prior will.
So sino susundin? Ako.
I dispose my wil, ayaw ko na nun tapos na, wala na yun.
Now, let us say in my prior will, wa;a naman akong
compulsory will, I am giving everything to X my universal
will then I wrote a second will and the disposition is, I give
everything to Y
- there are two wills, both can be admitted to probate
but I cannot give effect to the first will- giving
everything to X and then in the subsequent will that I
am giving everything to Y.
- Tubig at langis because I can't give everything to X
and at the same time give everything to Y.
- I never meant to give half and half to X and Y.
- So what happens my subsequent will takes
precedence over the prior will, because the will I
executed today, kung baga nagbago ang isip ko, di na
kay X, kay Y na ngayon, so that the prior will is
revoked implicitly, so dalawa, express and diresto
ayaw ko nyan, aimplied, di ko na sinabi na ayaw ko
nung una pero binago kaoo ngaking direktiba.
Express yung revocation pag may sinabi ako pero ang implied
wala ako sinabi na ayaw ko na sa will no.1.
Dapat WAG itapon, in Samson v. naval, the theory of
dependent relevance.
If the second will is denied probate it will not produce any
effect the parang wala akong sinabing revocation.
Now pag may revocation therefore, prudence dictates that
even the revoked will should be preserved following the
doctrine of dependent relevant revocation, kahit anong
mangyari ayaw ko sa will no 1 kung ganon ang iniisip ko di
ako dapat marevoke. Punitin ko, sunugin.
835-837, dito niyo maiintindihan ang republication at revival
Ang gusto nating gawin ay patayin so revocation is the act of
killing a will, ano yung republication at ano yung revival
- eto yung mechanism na ginagamit natin or pwede
nating gamitin. Ang patay na will bubuhayin nating
muli.
So kung ang revocation ay good Friday, republication and
revival is easter Sunday, buhayin ang patay, ang will na
napatay pwedeng buhay, ang kuko na napatay ay di
namabubuhay pa. so if you look at this analogy maappreciate
mo ang revival at republication
Republish- 835- isulat uli make known again.
● Dalawang klase ang revival natin under 835-836
etong dalawa ang republication
● When do we republish
○ We republish if there is an express
revocation of a prior will
Example:
10 years ago, I executed my first will, I said all to X.
● I revoked that will today.
Q: How did I revoke that prior will?
A: EXPREESSY
Q: So I will now say in my will no.2 expressly. If we assume
that both will could have been admitted to probate may 2021
will revoked my 2011 will in an express manner, tomorrow, I
changed my mind, no, talagang gusto kong yung 2011 will
pwede ko pa bang buhayin yung nareboke ko na?
A. Yes, under 835, pero negative ito ah, the testator
cannot republish (cte 85-836) cryptic ang statement
but 835 if you can write it down you can see in the
book it is publication by re-witing.
836 republication by mere reference. No doubt that I
revoked my 2011 will because I executed a will
yesterday 2021 will, pero gusto ko buhayin yung
2011 will, meron akong dapat itanong sa sarili ko, if
the 2011 compliant with the formalities required.
KUNG COMPLIANT SYA I can republish under
 836 by mere reference. “I hereby republish my 2011
will”, meaning republication by mere ference because
2011 will is valid as to form.

Q: What if my 2011 will is void as to form therefore not

admissible to probate dahil di ako nagcomply with the
probate? But I will now go to 835, if I want to republish I have
to rewrite everything. Does it now make sense to you to know
the formalities, because if you know the formalities you can
republish a revoked will by mere reference 836 but if not you
will have to re-write everything, 835.

● Republication requires the execution of a subsequent

will, republication presupposes the republication of
the executed will EXPRESSLY.
● If valid as to form- may republish as mere reference
● If not valid- need to be re-written,
● Express revocation killed the will, republication will
bring it back to life.

Implied revocation
● I executed a will in 2011, yesterday I wrote another
will that is completely incompatible with my 2011
will. All to x 2011 and all to y 2021.
● Yung kahapon impliedly revoked by 2021 will, Patay
na yung 2011 will walang express revocation di ko
ever ever sinabi na ayaw ko sa will 2011.

Q: What is revival?
A: All I have to do is kill my 2021 will then buhay na yung
2011.

Today, kinuha ko yung will kahapon tinapon ko sa apoy.

effect: 2011 will resurrected.

Why? the incompatibility had ceased.

● So pag may express revocation how do you bring it

back to life, re-writing if the prior will is valid as to
form.
● Implied revocation revival, all I need to do is to
destroy the conflicting subsequent will
 Week 4
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 a 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. (n)
Nature and Necessity of Probate
● Two phases of the probate proceedings:
○ Probate proper
○ Partition of the estate.
● [1st phase] In Probate Proper, the probate court
determines the following:
○ 1) Testamentary Capacity of the Testator;
○ 2) Compliance with the formal requisites
prescribed by law;
○ 3) The fact that the document presented to
the court is indeed the will of the testator;
and
○ 4) The fact that the testator freely and
voluntarily executed the same.
● [2nd phase] In partition phase, the probate court will
do the following:
○ 1) Examination of the intrinsic validity of
the testamentary disposition preparatory to
the eventual partition of the hereditary
estate.
○ 2) evaluation of the Capacity of the heirs
● Upon resolution of these issues, the partitioning of
the estate follows.
● PROBATE is necessary before a will can pass
property.
○ Hence, NO WILL shall pass either real or
personal estate UNLESS it is proved and
allowed in the proper court
RODRIGUEZ V. RODRIGUEZ, 642 SCRA 642
(2007)
FACTS:
1. Juanito Rodriguez was the owner of a 5-door
apartment.
2. In 1983, he executed a last will and testament, giving:
a. petitioner Cresenciana (his live-in partner)
apartments D&E,
b. apartment A to Benjamin (deceased husband
of Evangeline),
c. apartment B to Buenaventura and
d. apartment C to Belen.
3. In 1984, Juanito executed a Deed of Absolute Sale
over the property to petitioner Cresenciana.
4. Subsequently, Cresenciana filed an action for
unlawful detainer against respondents alleging that
she as the registered owner of the property (by virtue
of a sale executed by Juanito in her favor)
a. and that she allowed respondents to occupy
the property out of her kindness and
generosity but the latter leased the units
without her consent.
5. On the other hand, respondents claimed ownership
over the subject property by succession alleging that:
a. Petitioner exerted undue influence over their
father to agree to the sale of the property for
only P20,000 after knowing that only 2 units
were given to her in the will
b. Petitioner had no cause of action since she
was a party to the Partition agreement and
recognized respondents as co-owners and
partitioned the property according to the
provisions of the will
6. MTC: held that the dead of sale is simulated
otherwise the pet would not have entered into a
partition agreement, which legally conferred upon
each heir exclusive ownership over their respective
share.
7. RTC: reversed MTC’s decision, MTC eared when it
relied heavily on the “huling habilin at testamento”
which was NOT PROBATED hence has no effect
and no right can be claimed therein. HENCE, the
partition agreement which was allegedly entered into
pursuant to the “huling habilin at testamento should
NOT also be considered.
8. CA: reversed RTC’s decision..
ISSUE: Who has a better right to the subject property
HELD:
1. Petitioner has a better right to the property by virtue
of the sale executed by the testator during his lifetime
in favor of petitioner Cresenciana.
2. Respondents failed to prove their right of possession,
as the Huling Habili at Testamento and the Partition
Agreement have no legal effect since the will has not
been probated.
a. Before any will can have force or validity it
must be probated.
3. This cannot be dispensed with and is a matter of
public policy.
a. Art 838 NCC mandates that “no will shall
pass either real or personal property unless
it is proved and allowed in accordance with
the Rules of Court.”
4. As the will was not probated, the Partition Agreement
which was executed pursuant thereto cannot be given
effect.
 a. Thus, the fact that petitioner was a party to
said agreement becomes immaterial in the
determination of the issue of possession.
5. Moreover, at the time the deed of sale was executed
in favor of the petitioner, Juanito Rodriguez remained
the owner thereof since ownership would only pass to
his heirs at the time of his death.
a. Thus, as owner of the property, he had the
absolute right to dispose of it during his
lifetime.
6. Rodriguez emphasizes the need for probate of a will,
as mandated in Art 838 NCC. Without probate, the
will is ineffective and does not produce legal effect.
In this case, the Supreme Court recognized the
testator’s right,during his lifetime, to sell the property
which he had previously adjudicated to his heirs in
his will.
a. In this regard, the provision of Art 957
NCCis worth considering: “The legacy or
devise shall be without effect: x x x (2) If
the testator by any title or for any cause
alienates the thing bequeathed or any part
thereof, it being understood that in the latter
case the legacy or devise shall be without
effect only with respect to the part thus
alienated. x x x. Art 957 is one of the 7
provisions of the Civil Code and the Family
Code which pertains to implied revocation
of a testamentary disposition.
LASAM V. UMENGAN, 510 SCRA 496 (2006)
FACTS:
1. Spouses Pedro Cuntapay conveyed a parcel of land to
their 2 children: Irene and Isabel.
a. It was agreed that eastern half portion shall
belong to the heirs of Isabel while the west
portion shall belong to heirs of Irene.
2. The heirs of Rosendo Lasam (son of Isabel by her 2 nd
husband) filed a complaint for unlawful detainer
against Vicenta Umengant (daughter of Abdon who
is the son of Isabel by her 1st husband).
a. Lasam alleged that they were the owners of
the property, having inherited it from their
father Rosendo, who was the sole heir of
deceased Pedro through Isabel.
3. On the other hand, Umengan countered that when
Isabel died, the property was inherited by her six
children from her 1st and 2nd marriages.
a. Each of the 6 children had a pro-indiviso
share in the subject lot.
4. MTCC: Rendered a judgement directed the ejetmenet
of Vicenta Umengan
a. Reason: testacy was favored and that the
intestacy should be avoided such that the
wishes of the testator must be favored. Such
ruling hinged upon the newly discovered last
will anf testament purportedly executed by
Isabel Cuntapay.
5. RTC: Affirmed the MTCC’s decision
6. CA: Reversed MTCC and RTC, held that the said last
will and testament did not comply with the formal
requirements of the law on wills.
a. Not numbered and such number is not in the
AC.
b. Lack of signature in some of the pages by
the testator
c. Not acknowledged before a NP
d. Doubtful if the testator really did the will.
Testator died in 1947, the will was claimed
to be discovered the same in 1997.
ISSUE: WON as between the respective claims of petitioners
Lasam and respondent Umengan, the latter has a better right to
possess the subject lot. Yes. Respondent has shown a better
right of possession over the subject lot as evidenced by the
deed of conveyance executed in her favor by the children
of Isabel Cuntapay by her first marriage.
HELD:
1. Contrary to the ruling of the MTCC and RTC the
purported last will and testament of Isabel Cuntapay
could not properly be relied upon to establish
petitioners’ right to possess the subject lot because,
without having been probated, the said last will and
testament could not be the source of any right
pursuant to Art 838 NCC.
2. In Caniza v. Court of Appeals, the Court ruled that:
“(a) will is essentially ambulatory; at any time prior
to the testator’s death, it may be changed or revoked;
a. and until admitted to probate, it has no effect
whatever and no right can be claimed
thereunder, the law being quite explicit;
b. “No will shall pass either real or personal
property unless it is proved and allowed in
accordance with the Rules of Court.”
3. According to Tolentino, an imminent authority on
civil law, also explained that “before any will can
have force or validity, it must be probated.
a. To probate a will means to prove before
some officer or tribunal, vested by law with
authority for that purpose, that the
instrument offered to be proved is the last
will and testament of the deceased person
whose testamentary act it is alleged to be,
and that it has been executed, attested and
published as require by law, and that the
testator was of sound and disposing mind. It
is a proceeding to establish the validity of
the will.”
b. Moreover, the presentation of the will for
probate is mandatory and is a matter of
public policy.
4. Following the above truisms, the MTCC and RTC,
therefore, erroneously ruled that petitioners have a
better right to possess the subject lot on the basis of
the purported last will and testament of Isabel
Cuntapay, which to date, has not been probated.
 5. Stated in another manner, Isabel Cuntapay’s last will
and testament, which has not been probated, has no
effect whatever and petitioners cannot claim any right
thereunder.
6. Lecture:
a. Lasam emphasizes the necessity of probate.
i. Without which, a purported will
cannot be the source of any right
and could not be relied upon to
establish the right to possession.
b. Lasam further confirms the ambulatory
nature of a will, such that at any time prior
to his death, the testator may change or
revoke it.
7. To probate a will means to prove before some officer
or tribunal, vested by law with authority for that
purpose, that the instrument offered to be proved is
the last will and testament of the deceased person
whose testamentary act it is alleged to be, and that it
has been executed, attested and published as required
by law, and that the testator was of sound and
disposing mind. It is a proceeding to establish the
validity of the will.
Jurisdiction of the Probate Court; Effect of Judgment
Scope of inquiry
● The scope of inquiry is limited to 4 specific matters.
○ If the petitioner is able to prove these
matters, the court will issue an order
admitting the will to probate.
○ The probate order is final and conclusive on
the matters stated above, unless the probate
order is appealed within the period allowed
by ROC.
GALLANOSA V. ARCANGEL, 83 SCRA 676 (1978)
FACTS:
1. Florentino Histosis executed a will covering 61
parcels of land in Sorsogon.
2. His second wife Dollentas was also twice married
and had a son, Pedro, by her first marriage.
3. Florentino was childless and a widower whose
surviving relative was Leon (brother).
a. Florentino died in 1939.
i. His will provided ½ share be
bequeathed to Pedro and 3 other
parcels be given to Fortajada, a
minor and his protégé.
4. When the will was submitted for probate, Leon
opposed it.
a. A project of partition was submitted by said
testamentary heirs and was approved by the
court in 1943.
5. In 1952, Leon filed a case against Pedro for the
recovery of the 61 parcels of land, alleging that they
and their predecessors had been in open and
continuous possession of the property in the concept
of an owner.
6. Pedro moved to dismiss the action and the trial court
dismissed the case on the ground of res judicata since
Leon never appealed the probate.
7. In 1967, Leon filed another case against Pedro for the
“annulment” of Florentino’s will alleging that it was
procured through fraud and deceit.
ISSUE: WON Leon has a cause of action in the instant case
HELD: No. What the plaintiff seeks is the annulment of a last
will and testament duly probated in 1939 by the lower court
itself.
1. The proceeding is coupled with an action to recover
the lands adjudicated to the testamentary heirs by the
same court in 1943 by virtue of the probated will,
which action is a resuscitation of the complaint of the
same parties that the same court dismissed in 1952.
2. It is evident from the allegations of the complaint and
from the defendants’ motion to dismiss that plaintiffs’
1967 action is barred by res judicata.
3. The defense of res judicata, as a ground for the
dismissal of plaintiffs’ 1967 complaint, is a two-
pronged defense because:
a. (1) the 1939 and 1943 decrees of probate
and distribution; and
b. (2) the 1952 order of dismissal of the lower
court constitute bars by former judgment.
4. The 1939 decree of probate is conclusive as to the
due execution or formal validity of the will.
a. After the finality of the allowance of a will,
the issue as to the voluntariness its execution
cannot be raised anymore. In Austria v.
Ventenilla, a petition for annulment of a will
was not entertained after the decree of
probate had become final.
5. It is fundamental concept in the organization of every
jural system, a principle of public policy that the risk
of occasional errors, judgments of courts should
become final at some definite date fixed by law.
a. Interest rei publicae ut finis sit litum. “the
very object of which the courts were
constituted was to put an end to
controversies.
6. Art 838 of the Code requires probate as a condition
precedent for the effectiveness of a will. Probate is
limited to determination of 2 issues:
a. first, the soundness of mind of the testator,
and second, the requisite age.
b. Due execution refers to compliance with the
formal requisites prescribed by law.
c. If the proponents of the will are able to
prove testamentary capacity and due
execution, the probate judge will forthwith
issue an order admitting the will to probate
i. Once the probate order becomes
final, the testamentary capacity of
 the testator and the due execution
of the will becomes incontestable.
7. Res judicata will apply to any attempt to reopen and
or revisit the issues of testamentary capacity and due
execution.
8. The case illustrates the inevitable result of an attempt
to reopen probate proceedings long after the probate
order has become final. It is important to note that
the procedural laws do not permit nor sanction the
institution of an action for the “annulment” of a will.
Extrinsic and Intrinsic Validity
● One of the functions of the probate court is to
determine the extrinsic (formal) validity of the will.
○ Matters of intrinsic validity are determined
after the will has been duly admitted to
probate.
● The admission of a will to probate DOES NOT
constitute re judicata insofar as the validity of the
provision thereof is concerned.
● Note(From class): Resjudicata - Issue of ownership
in a probate proceeding is a different subject matter
than that in the admission to probate of a will.
DOROTHEO V. CA, 320 SCRA 12 (1999)
FACTS:
1. Private respondents were the legitimate children of
Alejandro Dorotheo and Aniceta Reyes.
a. The latter died in 1969 without her estate
being settled. Alejandro died thereafter.
2. Sometime in 1977, after Alejandro’s death,
petitioner, who claims to have taken care of
Alejandro before he died, filed a special proceeding
for the probate of the latter’s last will and testament.
3. In 1981, the court issued an order admitting
Alejandro’s will to probate.
4. Private respondents did not appeal from said order. In
1983, they filed a “Motion to Declare The Will
Intrinsically Void.”
5. The trail court granted the motion.
a. Petitioner moved for reconsideration arguing
that she is entitled to some compensation
since she took care of Alejandro prior to his
death although she admitted that they were
not married to each other.
ISSUE: WON the issuance of a probate order, a guaranty that
the testamentary dispositions are valid and would thus be
given effect
HELD:
1. No. It should be noted that probate proceedings deals
generally with the extrinsic validity of the will sought
to be probated, particularly on the following aspects:
a. whether the will submitted is indeed, the
decedent’s last will and testament;
b. compliance with the prescribed formalities
for the execution of wills;
c. the testamentary capacity of the testator;
d. and the due execution of the last will and
testament.
2. Under the Civil Code, due execution includes a
determination of whether the testator was:
a. of sound and disposing mind at the time of
its execution,
b. that he had freely executed the will and was
not acting under duress, fraud, menace or
undue influence
c. and that the will is genuine and not a
forgery,
d. that he was of the proper testamentary age
and
e. that he is a person not expressly prohibited
by law from making a will.
3. It can be clearly inferred from Art 960 NCC, on the
law on successional rights that testacy is preferred to
intestacy.
a. But before there could be testate
distribution, the will must pass the
scrutinizing test and safeguards provided by
law considering that the deceased testator is
no longer available to prove the
voluntariness of his actions, aside from the
fact that transfer of the estate is usually
onerous in nature and that no one is
presumed to give – nemo praesumitur
donare.
4. No intestate distribution of the estate can be done
unless the will had failed to pass both extrinsic and
intrinsic validity.
5. If the will is extrinsically void, the rules of intestacy
apply regardless of the intrinsic validity thereof.
a. If it is extrinsically valid, the test is to
determine its intrinsic validity – that is,
whether the provisions of the will are valid
according to the laws of succession.
6. In this case, the court had ruled that the will of
Alejandro was extrinsically valid but the intrinsic
provisions thereof were void.
a. Thus, the rules of intestacy apply as
correctly held by the trial court.
7. Furthermore, Alejandro’s disposition in his will of
the alleged share in the conjugal properties of his late
spouse, whom he described as his “only beloved
wife,” is not a valid reason to reverse a final and
executory order.
a. Testamentary dispositions of properties not
belonging exclusively to the testator or
properties which are part of the conjugal
regime cannot be given effect.
b. Matters with respect to who owns the
properties that were disposed of by
Alejandro in the void will may still be
properly ventilated and determined in the
 intestate proceedings for the settlement of
his and that of his late spouse’s estate.
8. Note: Dorotheo distinguishes between the extrinsic
and intrinsic validity of a will.
a. It holds that the admission of a will to
probate does not necessarily mean the
provisions of the will can be given effect.
b. The inquiry during probate of the will
focuses only on formal or extrinsic validity.
c. Even as a probate order is issued, it is not a
guaranty that the testamentary dispositions
are valid and would thus be given effect.
d. In sum, extrinsic validity is one thing;
intrinsic validity is another.
Issue of ownership
● A probate court does not have jurisdiction to rule
with finality on the issue of ownership.
● Probate court may provisionally pass upon questions
of ownership, but such determination is without
prejudice to the filing of a separate reinvindicatory
action by the aggrieved party.
○ The liquidation of the estate of a testator
requires the final resolution of all issue
pertaining to ownership of personal
SPOUSES ALVARO PASTOR JR. V. CA, 122 SCRA 885
(1983)
FACTS:
1. Alvaro Pastor Sr., died on June 1966 survived by his
wife Sofia, their two legitimate children (Pastor Jr.
and Sofia), and an illegitimate child, Quemada.
2. Quemada filed a petition filed a petition for the
probate of the alleged will of Pastor Sr. the will
contained only one testamentary disposition:
a. a legacy in favor Quemada consisting of
30% of Pastor Sr.’s 42% share in the
operation of Atlas of some mining claims.
3. Quemada was appointed special administrator.
a. As the special administrator, Quemada filed
an action for reconveyance against Pastor Jr.
and his wife regarding some properties
allegedly forming part of Pastor Sr.’s estate,
including the property subject of legacy.
4. Spouses Pastor Jr. filed their opposition to the
petition for probate and the order appointing
Quemada as special administrator.
a. However, the probate court admitted the will
to probate in 1972.
5. In 1980, the probate court set a hearing on the
intrinsic validity of the will and required the parties
to submit their position papers as to how the
inheritance could divided.
6. On August 20, 1980, while the action for
reconveyance was still pending, the probate court
issued an order of execution and garnishment,
resolving the issue of ownership of the royalties
payable by Atlas and granting the legacy to
Quemada.
7. On November 11, 1980, the probate court issued an
order declaring that the probate order of 1972 indeed
resolved the issue of ownership and the intrinsic
validity of the will reiterating its previous orders
ISSUE: WON the probate order resolved with finality the
questions of ownership and intrinsic validity as stated in the
November 11, 1980 order
HELD: No. In a special proceeding for the probate of a will,
the issue is restricted to the extrinsic validity of the will, i.e.
whether the testator, being of sound mind, freely executed the
will in accordance with the formalities prescribed by law.
1. As a rule, the question of ownership is an extraneous
matter which the probate court cannot resolve with
finality.
2. Thus, for the purpose of determining whether a
certain property should or should not be included in
the inventory of estate properties, the probate court
may pass upon the title thereto, but such
determination is provisional, not conclusive, and is
subject to the final decision in a separate action to
resolve title.
3. It was therefore erroneous for the assailed orders to
conclude that the probate order adjudged with finality
the question of ownership of the mining properties
and royalties, and that, premised on this conclusion,
the dispositive portion of the said probate order
directed the special administrator to pay the legacy in
dispute.
4. Pastor Sr., was survived by his wife and their two
children as well as by an illegitimate child.
a. There is therefore a need to liquidate the
conjugal property and set apart the share of
Pastor Sr.’s wife in the conjugal partnership
preparatory to the administration and
liquidation of the estate of Pastor Sr. when
the disputed probate order of 1972 was
issued, there was no liquidation of the
conjugal properties of the spouses.
b. So as of that date, there was no prior
definitive determination of the assets of the
decedent’s estate.
c. There was no determination, much less
payment of the debts of the decedent.
5. Furthermore, there was neither assessment nor
payment of the estate tax to the government.
a. The net estate not having been determined,
the legitime of the forced heirs in concrete
figures could not be determined.
b. Thus, it was not possible to determine
whether the legacy to Quemada would
produce an impairment of the legitime of the
compulsory heirs.
c. Without a final, authorative adjudication of
the issue as to what properties compose the
 estate of Pastor Sr. in the face of conflicting
claims involving properties not in the name
of the testator, and in the absence of a
resolution on the intrinsic validity of the
will, there was no basis for the probate court
to hold that the 1972 probate order that
Quemada is entitled to payment of the
questioned legacy.
6. Therefore, the execution and the subsequent order for
the payment of Quemada’s legacy, in the alleged
implementation of the probate order of 1972 must fall
for lack of basis.
7. Pastor is a detailed account of the jurisdiction of a
probate court, particularly in the matter of liquidating
the estate of a deceased person.
a. The appropriate procedure must be noted in
the light of the unusual haste in which the
probate judge sought to deliver a legacy to
the designated legatee.
b. More importantly, the jurisdiction of a
probate court to determine the issue of
ownership must be noted.
 Jappy’s
Pages 286 - 303 (jappy part)
Jimenez vs IAC
The marriage of Leonardo (Lino) Jimenez and Consolacion
Ungson produced four (4) children, namely: Alberto,
Leonardo, Sr., Alejandra and Angeles.
During the existence of the marriage, Lino Jimenez acquired
five (5) parcels of lands
After the death of Consolacion Ungson, Lino married
Genoveva Caolboy with whom he begot the seven petitioners
herein
Thereafter, in April 1979, Virginia Jimenez (petitioner) filed a
petition praying to be appointed as administratrix of
the properties of the deceased spouses Lino and
Genoveva (2nd wife of Lino).
In October, 1979, herein private respondent Leonardo
Jimenez, Jr., son of Leonardo Jimenez, Sr., filed a motion
for the exclusion of his father's name and those of Alberto,
Alejandra, and Angeles from the petition, inasmuch as they
are children of the union of Lino Jimenez and Consolacion
Ungson and not of Lino Jimenez and Genoveva Caolboy
This because they have already received their inheritance
consisting of 5 parcels of lands.
On March 23, 1981, petitioner Virginia Jimenez was
appointed administrator of the Intestate Estate of Lino Jimenez
and Genoveva Caolboy. On May 21, 1981, she filed an
inventory of the estate of the spouses Lino Jimenez and
Genoveva Caolboy wherein she included the five (5) parcels
of land in Salomague, Bugallon, Pangasinan.
On September 29, 1981, the probate court ordered the
exclusion of the five (5) parcels of land from the inventory on
the basis of the evidence of private respondent Leonardo
Jimenez, Jr. CA Denied apeal
Two (2) years after, petitioners filed an amended complaint to
recover possession/ownership of the subject five (5) parcels of
land as part of the estate of Lino Jimenez and Genoveva
Caolboy and to order private respondents to render an
accounting of the produce therefrom.
RTC resolved to dismiss the complaint on the ground of res
judicata.
ISSUE:
Whether in a settlement proceeding the lower court
has jurisdiction to settle questions of ownership and whether
res judicata exists as to bar petitioners' present action for the
recovery of possession and ownership of the five (5) parcels of
land.?
Ruling:
Petitioners' present action for recovery of possession
and ownership is appropriately filed because as a general rule,
a probate court can only pass upon questions of title
provisionally. Since the probate, court's findings are not
conclusive being prima facie, a separate proceeding is
necessary to establish the ownership of the five (5) parcels
of land.
The patent reason is the probate court's limited
jurisdiction and the principle that questions of title or
ownership, which result in inclusion or exclusion from the
inventory of the property, can only be settled in a separate
action.
All that the said court could do as regards said
properties is determine whether they should or should not be
included in the inventory or list of properties to be
administered by the administrator. If there is a dispute as to the
ownership, then the opposing parties and the administrator
have to resort to an ordinary action for a final determination of
the conflicting claims of title because the probate court cannot
do so.
It has also been held that in a special proceeding for the
probate of a will, the question of ownership is an extraneous
matter which the probate court cannot resolve with finality.
This pronouncement no doubt applies with equal force to an
intestate proceeding as in the case at bar
Exception to the scope of inquiry
The scope of inquiry of a probate court is limited to matters
pertaining to testamentary capacity of the testator and the
extrinsic validity of the will.
Nepomuceno vs CA GR - L-62952
FACTS:
Martin Jugo died with last Will and Testament with
all the formalities required by law. In the said Will, the testator
named and appointed herein petitioner Sofia J. Nepomuceno
as his sole and only executor of his estate.
It is clearly stated in the Will that the testator was legally
married to a certain Rufina Gomez by whom he had two
legitimate children, Oscar and Carmelita, but since 1952, he
had been estranged from his lawfully wedded wife and had
been living with petitioner as husband and wife.
In fact, on December 5, 1952, the testator Martin Jugo and the
petitioner herein, Sofia J. Nepomuceno were married in
Victoria, Tarlac before the Justice of the Peace. The testator
devised to his forced heirs, namely, his legal wife Rufina
Gomez and his children Oscar and Carmelita his entire estate
and the remaining free portion thereof to herein petitioner.
Petitioner then filed for probate of the will but was denied by
the RTC because the testator admitted in his will that he was
cohabiting with petition until his death, and that the admission
to probate of the will be an exercise of futility because on the
face of the will, the invalidity of its intrinsic provisions is
evident. CA set aside the ruling and ruled that only the
disposition as to petitioner is void (***In the end affirm itong
ruling ng CA***).
Issue:
Whether or not the respondent court acted in excess of its
jurisdiction when after declaring the last Will and Testament
of the deceased Martin Jugo validly drawn, it went on to pass
upon the intrinsic validity of the testamentary provision in
favor of petitioner? no
Ruling:
The respondent court did not acted in excess of its jurisdiction.
The general rule is that in probate proceedings, the court's
area of inquiry is limited to an examination and resolution
of the extrinsic validity of the Will. The rule, however, is not
inflexible and absolute. Given exceptional circumstances, the
probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the
Will.
In Nuguid v. Nuguid, the testator instituted the petitioner as
universal heir and completely preterited her surviving forced
heirs. A will of this nature, no matter how valid it may appear
extrinsically, would be null and void. Separate or latter
proceedings to determine the intrinsic validity of the
testamentary provisions would be superfluous.
The prohibition in Article 739 of the Civil Code is against
the making of a donation between persons who are living
in adultery or concubinage. It is the donation which becomes
void. The giver cannot give even assuming that the recipient
may receive. The very wordings of the Will invalidate the
legacy because the testator admitted he was disposing the
properties to a person with whom he had been living in
concubinage. (Note: The defense of Nepomuceno that she was
not aware that Jugo was married was not believed by the
court.)
Types of Probate
The law recognizes 3 types of probate.
1. Ante-mortem probate
2. Post-mortem probate
3. Reprobate of a will
1.) Ante-mortem probate
This is probate of a will during the lifetime of the testator. It is
the testator who initiates the proceedings.
Advantages
1. The testator can readily identify the document as his
will
2. The probate court can easily make determination of
the testator’s capacity
3. When called to testify, the attesting witness have a
fairly fresh recollection of formalities.
If the probate is uncontested, it is sufficient if the testator
affirms the holographic will and the signature as his own
handwriting.
Opposition to probate can only be anchored to testator’s
lack of capacity which he can conveniently rebut.
The ambulatory nature of the will is not destroyed. He may
revoke such will during his lifetime.
2.) Post-mortem probate
This type is initiated after the death of the testator. The testator
can no longer be examined. Much is dependent on the
testimony of the witnesses
3.) Reprobate of will
It is the reprobate of a will that has been admitted by a probate
court in a foreign jurisdiction. The matters to be proved are as
follows:
1. The due execution of the will in accordance with
foreign laws
2. That the testator has his domicile in the foreign
country
3. That the will has been admitted to probate in such
country
4. That the fact that the tribunal is a probate court; and
5. The laws of the foreign country on procedure and
allowance of wills.
Presentment of the will
Presentment of the will to the probate court for examination is
necessary. The custodian of the will is under the obligation to
deliver the will to the court within 20 days from learning of
the death of the testator under pain of penalty. (Vda de Perez
vs Tolete)
A physical examination of the notarial will enable the court to
verify whether or not
1. The testator signed at the end
2. The testator signed in person or through another
3. There are atleast 3 witnesses who signed each and
every page of the will
4. Each pages of the will is correlatively numbered
5. The attestation clause complies with the statutory
requirements in terms of contents and signatures
6. Will is acknowledged before a notary public.
From a physical examination of a holographic will, 3 things
must be proved:
1. The entire will is in the handwriting of the testator
2. The will is dated
3. The signature appearing at the end is that of the
testator
Probate of lost will
2 fundamental obstacles must be surmounted:
1. Proof of compliance with the formalities is absolutely
necessary
2. Proof of contents which is the basis for the
distribution of the estate.
1.) Lost notarial will
In case of a lost or accidentally destroyed notarial will, it is
essential that the proponent proves that the formal
requirements are fulfilled (For Notarial and Holographic). The
burden of proving compliance is problematic because the very
document that will establish compliance is nowhere to be
found.
Thus proof of extrinsic validity is totally dependent on the
testimonial evidence obatined from the lawyer who assisted
the testator in the preparation of the will, if available, the
attesting witness, and the notary public
The quality of evidence necessary to convince a probate court
that the formalities were observed must be of such kind that
leaves no doubt that there was compliance with the law. The
contents of a lost or destroyed will may be proved by
secondary evidence such as records, notes or drafts of the will,
if there be any, coupled by the testimony of the lawyer who
assisted the testator in preparing the same.
2.) Lost holographic will
The primary evidence of authenticity is not available.
At best, the proof of due execution is totally dependent on the
testimonial evidence. Affirmative declaration of at least 1
witness if probate is uncontested, or 3 witnesses if probate is
contested, that the entire holographic will is in the handwriting
of the testator.
Gan vs Yap GR L-12190 (Holographic will)
Felicidad Yap died of a heart failure, leaving properties in
Pulilan, Bulacan, and in Manila.
Fausto E. Gan, her nephew, initiated the proceedings in the
Manila CFI with a petition for the probate of a holographic
will allegedly executed by the deceased.
The will was not presented because Felicidad’s husband,
Ildefonso, supposedly took it. What was presented were
witness accounts of relatives who knew of her intention to
make a will and allegedly saw it as well. According to the
witnesses, Felicidad did not want her husband to know about
it, but she had made known to her other relatives that she
made a will.
Opposing the petition, her surviving husband Ildefonso Yap
asserted that the deceased had not left any will, nor executed
any testament during her lifetime.
After hearing the parties and considering their evidence, the
Judge refused to probate the alleged will on account of the
discrepancies arising from the facts. For one thing, it is strange
that Felicidad made her will known to so many of her relatives
when she wanted to keep it a secret and she would not have
carried it in her purse in the hospital, knowing that her
husband may have access to it. There was also no evidence
presented that her niece was her confidant.
In the face of these improbabilities, the trial judge had to
accept the oppositor’s evidence that Felicidad did not and
could not have executed such holographic will.
Issue: May a holographic will be probated upon the
testimony of witnesses who have allegedly seen it and who
declare that it was in the handwriting of the testator? -no-
Ruling:
With regard to holographic wills, no such guaranties of truth
and veracity are demanded, since as stated, they need no
witnesses; provided however, that they are “entirely written,
dated, and signed by the hand of the testator himself.”
“In the probate of a holographic will” says the New Civil
Code, “it shall be necessary that at least one witness who
knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of
the testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such
witnesses, (knowledge of decedent’s handwriting) and if the
court deem it necessary, expert testimony may be resorted to.”
Rule 77 allow proof (and probate) of a lost or destroyed will
by secondary — evidence the testimony of witnesses, in lieu
of the original document. Yet such Rules could not have
contemplated holographic wills which could not then be
validly made here. Could Rule 77 be extended, by analogy, to
holographic wills? (NO)
Taking all the above circumstances together, we reach the
conclusion that the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.
[READ] In the case of holographic wills, if oral testimony
were admissible only one man could engineer the fraud this
way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive to
let three honest and credible witnesses see and read the
forgery; and the latter, having no interest, could easily fall for
it, and in court they would in all good faith affirm its
genuineness and authenticity. The will having been lost — the
forger may have purposely destroyed it in an “accident” — the
oppositors have no way to expose the trick and the error,
because the document itself is not at hand. And considering
that the holographic will may consist of two or three pages,
and only one of them need be signed, the substitution of the
unsigned pages, which may be the most important ones, may
go undetected.
(a) Secondary evidence of a lost will
Rodelas vs Aranza
- Petitioner presented a photostatic copy of an
alleged holographic will that was missing. The
court held that the photostatic copy of the lost
holographic will may be used as secondary
evidence of its existence and genuineness.
(b)
(c) Evidentiary value of a machine copy of a last will
A probate court is not justified in denying probate simply
because the original copy of the holographic will is not
presented for examination.
It is doubtful if a handwriting expert would certify the
genuineness of the testator’s handwriting based solely on an
examination of the photocopy of the missing will.
In an expert examination of the handwriting based solely on a
comparison of a photocopy of the will, the examination would
be limited to a visual comparison of the strokes. Other factors
such as the pressure of the handwriting cannot be determined.
Art 839.
The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(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 to Disallow a Will
The grounds may be classified into 3 categories:
1. Failure to comply with the formal requisites (par 1)
2. Testator’s want of testamentary capacity ( par 2)
3. Testator’s consent is vitiated (par 3-6)
***
1. Comply with the formalities of a will
2. Testamentary Capacity
3. Free and voluntary act
Denial of probate due to the incapacity of the testator and non-
compliance with the formalities is extensively discussed in Art
796- 810.
Vice of Consent
Consent is manifested by the meeting of the offer and the
acceptance upon the thing and the cause to constitute the
contract.
Consent presupposes that the party is fully aware of the nature
of the contract, the terms and conditions thereof, as well as his
rights and obligations thereunder.
The requisites of consent are:
1. Intelligent
2. Free
3. Spontaneous
Paragraph 3-6 of Art. 839 refer to the vices of consent
affecting the testator’s consent to the execution of the will.
1. Mistake
Art. 1331 describes the nature of mistake. A mistake on the
part of the testator vitiates his consent and shall invalidate a
will if at the time of its execution the testator did not know
that the instrument he signed is a testament that will govern
the disposition of his estate upon his death, and that he
consequently signed the will by mistake.
Refer to Art 799 - “it shall be sufficient that the testator was
able to...know...the character of the testamentary act”
2. Force
Force or violence is defined in Art. 1335. There is violence
when in order to wrest consent, serious and irresistible force is
employed.
Force or violence is physical. Requisites in order that violence
may vitiate consent:
1. Physical force must be irresistible or of such degree
that the victim has no other recourse but to submit.
2. The force is the determining cause in giving consent.
Force vitiates the testator’s consent if the physical force is
irresistible and leaves the testator to sign the will; and the
testator would not have executed the will were it not for the 2. It is serious
physical force. 3. Induced the other to give consent
4. Resulted to damage or injury to the party defrauded
3. Intimidation (same as force but psychological)

Intimidation is defined in the 2 nd and 4th paragraph of Art.

1335.

Intimidation is the internal force exerted by a person which is

intended to influence the mind of another to choose between
two evils.

Requisites:

1. The intimidation caused the giving of consent

2. The threatened act is unjust or unlawful

3. The threatened act must be real and serious

4. The intimidation produces a reasonable well-

grounded fear that the intimidator has the necessary
means or ability to inflict the threatened injury.

A will is void if the testator signed the will under a real threat.
Emphasis must be made to the seriousness of the threat and
seriousness of the evil that is threatened to be inflicted.

4. Undue Influence

Undue influence is defined under Art. 1337

Undue influence is a form of moral coercion, it does not

necessarily involve the performance of an unjust or unlawful
act on the part of the person exerting the influence.

Undue influence is any means employed upon a person which

under the circumstances he could not resist, and which
controlled his volition and induced him to give his consent.

Simple influence does not vitiate consent. It is critical to

differentiate between the use of power of persuasion from
influence that is undue because it destroys the free agency of
the will. The first is an appeal to the intellect or to the
emotion; the latter destroys the freedom of the will.

5. Fraud

Fraud is defined under Art. 1338.

Fraud is synonymous with deception. The purpose if fraud is

to lead one person to error so that he would give his consent to
execute an act.

Fraud includes: misrepresentations, false promises, misleading

exaggerations, concealment of material facts, giving of false
hope, promise of false benefits, use of fictitious names, etc.

Fraud vitiates consent if:

1. It is employed by a party upon a counter-party

Andrew’s
 Yap’s
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. (764)
Institution of Heirs and Complete Distribution Not
Necessary
● Institution doesn’t affect the validity of the will since
the only thing needed is that the testator make a
property disposition.
● It is also not required for the testator to give the entity
estate to the instituted heirs (pwede pa legacy, device,
or even rules on intestacy)
● This is the application of the rule where property
acquired after making of the will may be disposed by
the testator under the terms of the said will as if he
had possessed it at the time of the execution of the
will, provided that the testator expresses such intent
in the will
Partial Intestacy and Avoidance of Partial Intestacy
● Incomplete distribution leads to partial
intestacy(mixed).
● It is through institution that the testator can avoid this
in cases of:
○ Art 793 w/c allows for the disposition of
future property after the making of the will
● The rules on intestacy will be applied in distributing
the portion of the estate that was not distributed by
the testator in his will and there was no accretion.
Vacancy in the inheritance due to incapacity or
Repudiation
Will is not invalidated in case of incapacity or repudiation.
The validity of a will is a matter of law whether intrinsic or
extrinsic. Effectiveness of a will is partly dependent on the
law (incapacity) and dependent on the heir (might repudiate).
If the will is admitted to probate, other heirs may accept the
inheritance of the incapacitated or those who repudiated, or if
all heirs were incapacitated or repudiated, the will may be
given effect if the testator provided for substitute heirs,
3 Contingencies that limits the scope of substitution
1. Heir predeceased the testator
2. Heir repudiated the inheritance
3. Heir is incapacitated to inherit from the testator.
In any of these contingencies, the substitute, unless
disqualified, may enter into the inheritance in default of the
heir originally instituted.
If there is no substitute provided but will is admitted to
probate, the will is extrinsically valid but the distribution is
inoperative. Intestacy kicks in! NO right of accretion
( plurality of heirs not met Art 1016) and NO right of
representation(Vacancy caused by repudiation).
EFFECT OF LACK OF INSTITUTION (Art 841)
A will otherwise defective is valid, even ifa:
1. There is no institution of heir
2. The instituted heir is given only a portion of the
estate
3. The heir instituted should repudiate or be
incapacitated to inherit
The testamentary dispositions made in accordance with the
law shall be complied
Article 842.
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. (763a)
Freedom to Dispose Property
Compulsory succession refers to the system of succession
where the law confers upon some specified heirs the statutory
right to receive a definite portion of the hereditary estate
unless they are disqualified to receive the same by reason of
disinheritance or incapacity. Legitime is the guaranteed
minimum amount of entitlement.
Freedom to dispose by the testator if survived by compulsory
heirs should not impair the legitime. However, if no
compulsory heirs, more freedom to dispose his estate by will
since there will be no impairment of legitime.
3 categories on statutory and jurisprudential limitations on the
freedom to dispose the estate
1. Incapacity to Succeed (Art 1027)
 2. Testamentary Provisions that are void least equal to legitime and if less, share of VH must be
3. Disqualification of an heir decrease. Remember that it is a statutory obligation to set
aside the legitime of CH.
Article 843.
a. First Approach
The testator shall designate the heir by his name and
surname, and when there are two persons having the Example:
same names, he shall indicate some circumstance by
which the instituted heir may be known. Testator with a net hereditary estate of P90,000.00 instituted
his two sons A and B, and his nephew C as universal heirs.
Even though the testator may have omitted the name of
the heir, should he designate him in such manner that Segregate legitime (Art 888), always half of estate and then
there can be no doubt as to who has been instituted, the divide equally to CH. The other half then should be divided
institution shall be valid. (772) equally to instituted heirs ABC.
Heir Legitime Institution Total

A - CH 22,500.00 15,000.00 37,500.00

Article 844.
B - CH 22,500.00 15,000.00 37,500.00
An error in the name, surname, or circumstances of the
heir shall not vitiate the institution when it is possible, in C - VH 15,000.00 15,000.00
any other manner, to know with certainty the person
Total 45,000.00 45,000.00 90,000.00
instituted.

If among persons having the same names and surnames,

there is a similarity of circumstances in such a way that, b. Second Approach
even with the use of other proof, the person instituted
cannot be identified, none of them shall be an heir. (773a) Example:

Article 845. Testator with net hereditary estate of P90,000.00 instituted his
son A, and his nephews B and C in equal shares as universal
Every disposition in favor of an unknown person shall be heirs.
void, unless by some event or circumstance his identity
becomes certain. However, a disposition in favor of a Distribute according to institution noting that there is no
definite class or group of persons shall be valid. (750a) impairment of legitime. If there is impairment, remedy
(reiterates 786) according to Art 906. Hence, distribute then adjust.
Heir Institution Adjustment Total
Identification of Heir
A - CH 30,000.00 15,000.00 45,000.00
Testator personally selects his beneficiaries and personally
determines the specific property or specific portion of the B - VH 30,000.00 (7,500.00) 22,500.00
estate that he intends to give to each of them. Testator should
indicate some circumstance by which the true heir can be C - VH 30,000.00 (7,500.00) 22,500.00
identified. If still, unable to resolve determine intent of Total 90,000.00 90,000.00
testator by examining the will and then by reception of
extraneous evidence excluding oral declaration.

Validity of Class Institution
It does not require to identify each member. Example Art
1030 – institution of poor in general.
Article 846.
Heirs instituted without designation of shares shall inherit
in equal parts. (765)
Principle of Equality
Article premised upon the assumption that heirs are of the
same class (all VH or all CH) and should inherit in equal
parts. However, this should not impair the legitime of
compulsory heirs. Hence, the respective share of CH is at
In Dizon-Rivera v Dizon, the Court ordered the completion to
satisfy the legitime in accordance with Art 906. It supported
the second method.
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. (769a)
Collective Institution
Heirs collectively instituted are deemed instituted
individually. (quantitative equality among them)

Testator left a net hereditary estate of P180,000.00 and

instituted A, B, and the Children of C. Each will get its share
as instituted, and the share of those collectively instituted will
be divided among them.
Heir Instituti Collective Institution
on
60,000.0
A
0
60,000.0
B
0
Children 60,000.0 X 20,000.0
of C 0 0

Y 20,000.0
0

Z 20,000.0
0
Total 180,000.0
0

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. (770a)

Reason for equality

Bothers and Sisters are not CH but Intestate Heirs. If

instituted, full blood and half blood gets equal share.
However, in Art 1006, share of full blood is twice of half
blood in intestate succession.

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. (771)

Proscription Against Successive Institution

In the absence of the intention specified in Art 849, share in

the inheritance will be equally. Successive institution
effectively bars the instituted heir from disposing the inherited
property, whose destiny has been predetermined by the
testator.
 Erica’s
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.
The “Cause” of Acts of Pure Beneficence
- Liberality of the grantor
- This cause can never be false.
Institution with a False cause
- The “Cause” under Art. 850 is understood in
colloquial sense (incidental reason for the
institution of the heirs)
- This incidental cause can be False.
GR: the statement of an incidental false cause in the institution
of an heir will not affect the validity of the institution of an
heir. The incidental false cause is deemed not written and
shall be ignored.
EXC: if it appears from the will that the testator would not
have made such institution had he known the falsity of the
incidental cause for the institution of the heir, the testator
would be deemed to have acted on the basis of a mistake of
fact which under the law is a vice of consent. THUS,
institution of heirs = VOID.
In order to VOID an institution based on false cause, it is
necessary that:
1. Testator must expressly state in the will the
incidental cause for the institution.
- Otherwise, there would be no factual basis for an
assertion that the testator, in instituting the heir,
acted upon mistake of fact.
Reason: If having failed to state the cause of the
institution of an heir, the testator subsequently
realized that his unstated reason for institution of heir
was false, the remedy would be to revoke the
relevant disposition.
Note: testator must expressly state in his will of the incidental
cause within his lifetime. As no one can raise an issue
regarding the falsity of the cause after his death.
2. The cause must be SHOWN to be false.
- Competent evidence must be presented to show
the falsity of the cause
Reason: the falsity of the cause may not be apparent
on the face of the will, thus extraneous evidence may
be resorted to.
3. It must appear on the face of the will that the
testator would not have made such institution
if he had known the falsity of the cause.
Note: evidence extraneous to the will cannot be used
to prove this matter.
Austria v. Reyes
FACTS:
1. Vda. de Cruz filed a petition for the probate, ante
mortem, of her last will and testament.
Oppositors were the nephews of Vda. de Cruz.
2. Will was admitted to probate.
3. The will designated the adopted children of Vda.
de Cruz the bulk of her estate.
4. The petitioner, (nephews of Vda. de Cruz) filed a
petition for intervention for partition alleging
that they are the neasrest kin of Vda. and that the
respondents are not actually adopted by the Vda.
Thus, the respondents have the right to succeed
as heirs.
5. The petition for intervention was granted, hence
the petition before the SC filed by the nephews
of Vda.
6. Petitioner (nephews) stated that Vda. was
deceived into believing that she was legally
bound to bequeath 1/2 of her entire estate to her
adopted children as a legitime.
A. If the Vda. knew that the adoption was
spurious, she would not have instituted the
respondents in her will.
ISSUE: W/N the institution of heirs would retain efficacy
in the event that the adoption of the heirs by the decedent
is false. – YES. Still valid.
RULING:
Requisites to annul the instituted heir under Art. 850:
1. The cause for the institution must be stated in the
will
2. The cause must be shown to be false
3. It must appear on the face of the will that the
testator would not have made such institution if
he had known the falsity of the cause.
In cases where the testatrix was in the belief that under the
law, she was obliged to institute the respondents she could’ve
made known to her will.
Here, she did not make this cause known in her will. If she
was aware that succession to the legitime takes place by
operation of law, independent of her own wishes, she would
not have found it convenient to name her supposed
compulsory heirs to the legitime.
Her express adoption of rules on legitime should very well
indicate her complete agreement with that statutory scheme.
But even this, like the petitioner’s (nephews) own proposition,
is highly speculative of what was in the mind of the testatrix
when she executed her will.
The will of the testatrix does not state in a specific or
unequivocal manner the causes for such institution of heirs.
Thus, the Court cannot annul the will on the basis of
guesswork or uncertain implications.
In any case, the legality of the adoption of the respondents by
the testatrix can be assailed only in a separate action brought
for that purpose, and cannot be subject of collateral attack.
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.
Causes of Partial Intestacy
2 specific causes of partial intestacy:
1. When the institution refers only to one heir and
the same is limited to an aliquot part of the
estate
2. When several heirs are instituted to aliquot parts
of the estate, and all the parts do not cover the
whole inheritance
NOTE: These causes of partial intestacy are not exclusive.
Partial intestacy may arise if an instituted heir, legatee or
devisee:
1) Predeceases the testator
2) Is otherwise incapacitated to succeed
3) Repudiates the inheritance, and neither the right
of representation or the right of accretion is
inapplicable.
Note: Art. 851 is not limited to a failure of the instituted heirs
to take the entire inheritance pursuant to the will, but also
incapacitated to receive gifts.
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.
Art. 852 is applied to the institution of sole heirs.
“Sole Heirs” refer to a group of two or more heirs who are
instated by the testator either to the ensure estate or to a
portion thereof to the exclusion of all other persons.
The institution of the sole heirs to the either of 3 possibilities:
1) All are compulsory heirs of the testator
2) All are voluntary heirs
3) A combination of compulsory and voluntary
heirs.
Incomplete Distribution
- The aliquot parts assigned by the testator to each
of the heirs, when added up, may not cover the
whole inheritance and therefore a residual
balance is left undistributed.
Residual estate
- Governed by Art. 852.
- The undisposed residual balance are given to the
sole heirs by proportionately increasing their
respective entitlements.
Institution of group of heirs to a specific portion of the estate
and the aliquot parts assigned to each of the heirs, when added
up, do not cover the entirety of that portion of the estate given
to each of the heirs.
- By proportionately increasing the aliquot
parts due to each of the heirs, the testator’s
intention to give that portion of the estate
exclusively to the instituted heirs is achieved.
Illustrations
1. All voluntary heirs
e.g.
NO compulsory heir
Instituted heirs: brothers (X,Y,Z) as sole heirs to his entire
estate.
X = 1/4 share
Y = 1/3 share
Z = 1/3 share
Net hereditary estate = P 720k
 Total 660k
X 1/4 180k
Undisposed 60k
Y 1/3 240k balance

Z 1/3 240k
Distribution of legitime to legitimate sons:
Total 660k Net hereditary estate / 2 = Legitime to be distributed
720k/2 = 360k
Undisposed 60k
balance Legitime / No. of children

360K/3 = 120k each

In application of Art. 852, the undisposed balance of P60K
will be proportionately added to the sole heirs’ share.
Legitime Free Portion Total
FORMULA:
A 120k 240k 360k
Adjusted share of an heir = A x B / C B 120k 60k 180k

A = Net hereditary estate C 120k 0 120k

B = Amount representing the aliquot part assigned by
the testator to the heir Total 360k 300k 660k
C = Total amount distributed in accordance with the
terms of the will Undisposed 60k
balance of
the Free
Answer: Portion
Heir A xB /C Adjusted
Share FP = Share on institution – Legitime
X 720k 180k 660k 196,364
FORMULA
Y 720k 240k 660k 261,818
Adjusted share to the disposable free portion = A x
Z 720k 240k 660k 261,818
B/C
Total 660k 720k
A = total disposable free portion
B = Original share of the heir in the DFP pursuant to
institution
2. All compulsory heirs C = total amount of the DFP distributed pursuant to the
institution
e.g.
Instituted heirs: Sons (A,B, C) as sole heirs Answer:
A = 1/2
B = 1/4 Heir A xB /C Adjusted
C = 1/6 share

A 360k 240k 300k 288k

Net hereditary estate = 720K
B 360k 60k 300k 72k
Institution:
Total 300k 360k
A 1/2 360k

B 1/4 180k Actual share = Legitime + Adjusted Share

A = 288k + 120k
C 1/6 120k
B = 72k + 120k
C = 120k
NOTE: there is no adjusted share of C as his legitime is equal
Tot 150k
to the original instituted share.
al

3. Compulsory and voluntary heirs concurring Final Distribution = Adjusted share + Legitime

e.g. A = 50k + 75k

Instituted heir: Sons (A, B) B = 50k + 75k
Universal heirs: brothers (C, D) C = 25k
D = 25k
A and B = 3/4 (will get legitime)
C and D = 1/8 (will not get legitime)

Net hereditary estate = 300k

Free Portion (FP) = instituted share - Legitime Article 853.

If each of the instituted heirs has been given an aliquot
Legiti FP Total part of the inheritance, and the parts together exceed the
me (share whole inheritance, or the whole free portion, as the case
) may be, each part shall be reduced proportionally.
A 75k 37.5k 112.5
k
Proportionate Reduction of Shares
B 75k 37.5k 112.5
k This article addresses a mathematical error committed by the
testator. The sum total of the aliquot parts which the testator
C 18.75 18.75 gave to his heirs exceeds the inheritance.
k k - This is to reduce the respective shares of the
heirs proportionately.
D 18.75 18.75
- NOTE: Legitime is never reduced.
k k

Total 150k 112.5 262.5

FORMULA
k k

Undistribut 37.5k Adjusted share of an heir = A x B / C

ed Balance
of FP A = Net hereditary estate
B = Amount representing the aliquot part assigned by
the testator to the heir
Adjusted share C = Total amount distributed in accordance with the
A = remaining net estate (after legitime) terms of the will
B = FP
C = Total FP
ILLUSTRATION
Heir A xB /C Adjus
ted
1. All voluntary heirs
Share
e.g.
A 150 37.5 112. 50k NO compulsory heirs
k k 5k Instituted heirs – Brothers (A, B, C, D)

B 150 37.5 112. 50k A = 1/8

k k 5k B = 1/2
C = 1/4
C 150 18.7 112. 25k D = 1/6
k 5k 5k
Net Hereditary estate = 360k
D 150 18.7 112. 25k
k 5k 5k
Distribution (Original Share)
Total 375k
A 45k
Excess 15k
B 180k

C 90k Note: compulsory heirs should be given their legitime.

Legitime of each heir = 45k
D 60k Since A’s original share is 45k, this cannot be reduced, as
legitime can never be reduced.
Total 375k
The reduction of the excess can only be taken from the shares
Excess 15k of B, C, D in the DFP.

The distribution intended by the testator exceeds the value of Share of the Free Portion after legitime
his estate by 15k. The shares of the heirs should be Heir Institution Legitime Share of the
proportionately reduced. (Original FP
Share)
Adjusted share (reduction of excess)
A 45k 45k
Heir A xB /C Adjusted
Share
B 180k 45k 135k
A 360k 45k 375k 43.2k
C 90k 45k 45k
B 360k 180k 375k 172.8k
D 60k 45k 15k
C 360k 90k 375k 86.4k
Total 375k 180k 195k
D 360k 60k 375k 57.6k
From the 195k, the excess of 15k shall be proportionately
Total 375k 360k
deducted proportionately.

Reduced amount of share FORMULA

Original Share – Adjusted Share
A = (1.8k)
Adjusted share of the DFP = A x B / C
B = (7.2k)
C = (3.6k)
D = (2.4k) A = DFP
B = institution of each heir to the DFP
C = aggregate dispositions of the FP under the will
2. All Compulsory heirs
e.g.
Instituted heirs – legitimate sons (A, B, C, D) Answer:
Heir A XB /C Adjusted
A = 1/8 Share of
B = 1/2 the FP
C = 1/4
D = 1/6 B 180k 135k 195k 124,615.3
9
Net estate = 360k
C 180k 45k 195k 41,538.46
Distribution (original share)
D 180k 15k 195k 13,846.15
A 45k
Total 195k 180k
B 180k

C 90k Deducted shares:

Original share – Adjusted Share of the DFP
D 60k A = (0)
B = (10,384.61)
dispositio
C = (3,461.54)
n of the
D = (1,153.85)
FP
Final Share A 45k 30k 225k 6k
Adjusted Share on DFP + legitime
A = 45k B 180k 30k 225k 24k
B = 169,615.39
C = 86,538.46 Total 225k 30k
D = 58,846.15
Total: 360k
Share after the First Reduction (SFR)
(Completion of legitime = CL)
3. Compulsory and voluntary heirs concurring Heir Legitime CL FP Reduction SFR

A 45k (6k) 39k

e.g.
Instituted heirs:
B 180k (24k) 156k
Brothers (A,B) – without legitime
legitimate sons (C, D) – with legitime
C 90k 90k
A = 1/8
D 90k 30 90k
B = 1/2
k
C = 1/4
D = 1/6 Total 150k 30 225k (30k) 375k
k
Distribution (Original share)
A 45k Despite the first reduction, there is still an excess. Thus the
second reduction should be proportionately reduced from the
B 180k
combined SFR of A and B to satisfy the 15k (excess).
C 90k
Second Reduction
D 60k Heir SFR x / 2ndReductio
2ndreductio Combin n
Total 375k
n (amount) ed SFR
Excess 15k of A and
B

Legitime of C and D is 90k each. But since D’s original share A 39k 15k 195k (3k)
is 60k, his legitime was impaired by 30k. And for C, his
share of 90k cannot be reduced, as legitime can never be B 156k 15k 195k (12k)
reduced.
Total 195k (15k)
Thus, the reduction of the excess should be made
proportionately from A, and B’s share. (45k +180k = 225k) – Final Distribution
Aggregate disposition of the FP Original Share – 1st reduction – 2nd reduction

The following should be reduced proportionately: A = 45k – (6k) – (3k) = 36k

First Reduction: 30k = impaired legitime of D. B = 180k – (24k) – (12k) = 144k
Second Reduction: 15k = excess from the original share C = 90k
D = 90k

First Reduction
Article 854.
Heir Original x First / First The preterition or omission of one, some, or all of the
Share reduction Aggregat Reductio compulsory heirs in the direct line, whether living at the
(amount) e n 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 inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of representation
Protection to the Legitime
Testator may evade the payment of legitime in the many ways:
1. Testator may dispose the entire estate by will
and omit a compulsory heir.
- The Compulsory heir is effectively denied
participation in the hereditary estate without
having been disinherited.
2. Testator may deliberately or unintentionally
give to a compulsory heir a participation in
the hereditary estate which is less than the
legitime.
- The Compulsory heir is short-changed
3. Testator may indirectly deprive a compulsory
heir of the legitime by dissipating his estate in
his lifetime through a single donation or a
series of donations given to other compulsory
heirs or to strangers.
Art. 854 is made for the protection of the omitted
compulsory heirs, in entitling them to the annulment of the
institution of heirs, so that they may participate in the
distribution of the hereditary estate (intestate succession)
NOTE:
1) if the compulsory heir is left by an amount less
than the legitime, but NOT preterited, the heir
may demand the completion of legitime (Art.
906)
2) In donations made by the testator to others,
every compulsory heir is entitled to require that
the value of each donation be brought to
collation (Art. 1061) – computed in the
determination of legitime.
Requisites of Preterition
Before invoking the remedy provided for Art. 854, the
Compulsory heirs should prove these 4 requisites:
1. The preterited compulsory heir is totally
omitted.
“Total omission” – means that the preterited heir:
1) Received nothing from the testator by donations
inter vivos which the law coniders as an
advance legitime and therefore creditable
thereto
2) Received nothing from the testator by will
because he or she had been totally omitted
therefrom
3) Will receive nothing by way of intestate
succession because the testator disposed the
entire estate by will.
NOTE:
1) if the omitted compulsory heir was given a
legacy or devise by testator, he CANNOT claim
to have been preterited because he was NOT
totally omitted in the inheritance.
2) Even if a compulsory heir is totally omitted in
the will, he CANNOT claim pretertion if:
(1) AFTER giving effect to the testamentary
disposition there remains an undistributed
balance from where his legitime could be
paid either in whole or in part.
(2) If he received a donation from the testator a
donation from the testator during the
testator’s lifetime, he CANNOT claim to
have been preterited because the donation is
imputable to and considered as advance of
his legitime.
Two kinds of donations inter vivos:
1. Collationable donation,
2. Non-collationable donation
Collationable donation
- Deemed as an advance of the legitime.
Non-collationable donation
- advance of the free portion and in respect of
such donation the donee is deemed to be a
stranger to the donor.
Note: remedy for compulsory heirs who received non-
collationable donation or if they are totally omitted in the
will
- Art. 854 (to annul the institution of other heirs)
- Except legatees and devises (insofar as they are
NOT inofficious)
HOWEVER, if the omitted compulsory heir received
something from the testator by any title which is chargeable to
the legitime and the value is LESS than the legitime, that heir
is NOT preteritated but he may recover the balance of the
legitime under Art. 906.
Preterition and effective disinheritance
Preterition
- unintended
- only applies to compulsory heirs in direct line
 - Art. 854
Disinheritance
- intended
- applies to all kinds of heirs
- Art 906 to satisfy the legitime

<3<3<3<3
 Chelly’s
Aznar v. Duncan
17 SCRA 590
FACTS: Christensen died testate. The will was admitted to
probate. The court declared that Helen Garcia was a natural
child of the deceased. The Court of First Instance equally
divided the properties of the estate of Christensen between
Lucy Duncan (whom testator expressly recognized in his will
as his daughter) and Helen Garcia. In the order, the CFI held
that Helen Garcia was preterited in the will thus, the institution
of Lucy Duncan as heir was annulled and the properties passed
to both of them as if the deceased died intestate.
ISSUE: Whether the estate, after deducting the legacies,
should be equally divided or whether the inheritance of Lucy
as instituted heir should be merely reduced to the extent
necessary to cover the legitime of Helen Garcia, equivalent to
¼ of the entire estate.
HELD: The inheritance of Lucy should be merely reduced to
cover the legitime of Helen Garcia.
No preterition in this case: The testator did not entirely omit
Helen Garcia but left her a legacy of Php 3, 600. Since there is
no preterition, Art. 854 does not apply.
Christensen refused to acknowledge Helen Garcia as his
natural daughter and limited her share to a legacy of
P3,600.00. When a testator leaves to a forced heir a legacy
worth less than the legitime, but without referring to the
legatee as an heir or even as a relative, and willed the rest of
the estate to other persons, the heir could not ask that the
institution of the heirs be annulled entirely, but only that the
legitime be completed.
This rule is more in consonance with the expressed
wishes of the testator as may be gathered from the
provisions of his will.
● Edward Christensen refused to acknowledge Helen
Garcia as his natural daughter, and limited her share
to a legacy of P3,600
● The fact that she was subsequently declared judicially
to possess such status is no reason to assume that
had the judicial declaration come during his
lifetime his subjective attitude towards her would
have undergone any change and that he would
have willed his estate equally to her and to Lucy
Duncan, who alone was expressly recognized by
him
BASTE NOTES:
● Omission of the compulsory heir is total: i.e., he
stands to receive nothing by will, will receive nothing
by intestacy as the will disposed everything, and he
received no advances of the legitime (i.e., no
collationable donation) (Aznar vs. Duncan).
● If something is left undistributed by the will, the
omission is not total, there is no preterition; the
omitted heir would merely be entitled to completion
of his legitime (see illustrative example in Art. 855).
2. The omitted heir must be a compulsory heir.
Heirs are either compulsory (Article 887) or voluntary.
Compulsory heirs are entitled to a share of the legitime;
voluntary heirs are not and also can never be perterited.
3. The omitted compulsory heir must be an heir in the
direct line.
A direct line is the series of degrees among ascendants and
descendants.
The compulsory heirs in the direct line are, with respect to the
testator (Descendants and ascendants only):
● His children, legitimate, illegitimate, or adopted are
entitled to the legitime unless disinherited. If the
testator, other than disinheritance, totally excludes a
child from inheritance, the child is preterited.
● Parents and other ascendants are secondary
compulsory heirs who inherit only in default of
primary compulsory heirs.
● Preterition of a parent or other ascendant depends on
whether or not the omitted parent or ascendant
inherits as a compulsory heir of the deceased child or
descendant in the particular case.
● Total omission of an adopted child results in
preterition, the total omission of the surviving
spouse does not.
○ Surviving spouse cannot be preterited
because he or she is not a relative of the
deceased spouse in the direct line.
○ If a surviving spouse is totally omitted in the
will of the deceased spouse, the remedy is
not to claim preterition under Article 854
BUT TO DEMAND THE COMPLETION
of his or her LEGITIME pursuant to Article
906.
NOTE: An adopted child is not a relative of the
adopting parent in the direct line in view of the
absence of blood ties.
Balanay, Jr. v. Martinez
FACTS: Leodegaria Julian died in 1973. She was survived by
her husband, Felix Balanay, Sr., and by their six legitimate
children.
Paragraph V of the will stated that after her husband's death,
her paraphernal lands and all the conjugal lands should be
divided and distributed in the manner set forth in that part of
her will.
She devised and partitioned the conjugal lands as if they were
all owned by her. She disposed of in the will her husband's ½
share of the conjugal assets. Felix Balanay, Sr. and Avelina B.
Antonio opposed the probate of the will on the grounds of
preterition of the husband and alleged improper partition of
the conjugal estate.
ISSUE: Whether or not preterition of surviving spouse made
the will void and produce intestacy - NO
HELD: The instant case is different from the Nuguid case:
where the testatrix instituted as heir her sister and preterited
her parents. Her will was intrinsically void because it
preterited her compulsory heirs in the direct line.
Article 854 of the Civil Code provides that "the preterition or
omission of one, some, or all of the compulsory heirs in the
directline, 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 inofficious."
Since the preterition of the parents annulled the institution of
the sister of the testatrix and there were no legacies and
devises, total intestacy resulted (.Art. 960[2],Civil Code).
In the instant case, the preterited heir was the surviving
spouse. His preterition did not produce intestacy. Moreover,
he signified his conformity to his wife's will and renounced his
hereditary rights.
Acain v. IAC
FACTS: Acain filed a petition for the probate of the will of the
late Nemesio Acain and for the issuance to Acain of letters
testamentary. When Nemesio died, he left a will in which
Acain and his siblings were instituted as heirs. The will
allegedly executed by Nemesio was submitted by petitioner
without objection raised by private respondents.Segundo, the
brother of Nemesio, was initially instituted as the heir, in case
Segundo pre-deceases Nemesio, Segundo’s children would
then succeed.
Respondents (Virginia Fernandez, legally adopted daughter of
Nemesio, and the latter's widow, Rosa Acain) filed a motion to
dismiss on the following grounds: for the petitioner has no
legal capacity to institute these proceedings; he is merely a
universal heir and Rosa and Fernandez have been pretirited.
The IAC granted the private respondents' petition and ordered
the TC to dismiss the petition for the probate of the will
ofNemesio.His MR having been denied, Acain filed this
present petition for the review of IAC’s decision.
ISSUE: Whether private respondents have been preterited - No
for the widow, yes for the adopted child.
HELD:
Preterition consists in the omission in the testator's will of the
forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited.
Insofar as the widow is concerned, Article 854 may not apply
as she does not ascend or descend from the testator, although
she is a compulsory heir. Even if the surviving spouse is a
compulsory heir, there is no preterition even if she is omitted
from the inheritance, for she is not in the direct line.
The same thing cannot be said of the other respondent
Virginia, whose legal adoption by the testator has not been
questioned by petitioner. Adoption gives to the adopted person
the same rights and duties as if he were a legitimate child of
the adopter and makes the adopted person a legal heir of the
adopter.
It cannot be denied that she was totally omitted and preterited
in the will of the testator and that both the adopted child and
the widow were deprived of at least their legitime. Neither can
it be denied that they were not expressly disinherited. This is a
clear case of preterition of the legally adopted child.
The universal institution of Acain and his siblings to the entire
inheritance of the testator results in totally abrogating the will.
BASTE NOTES: Compulsory heir in the direct line –
excludes the surviving spouse (Balanay vs. Martinez), but
includes an adopted child (Acain vs. IAC)
4. The omitted compulsory heir must survive the testator.
A preterited heir who predeceased the testator never became a
compulsory heir of the latter. To inherit, it is essential that he
must survive the testator.
WHY? If the omitted compulsory heir predeceased the
testator, he never had a chance to inherit from the latter; thus,
he could not have been omitted.
HOWEVER, the children and descendants of a predeceased
omitted compulsory heir are entitled to exercise the right of
representation (856 in relation to 972) and as such
representatives of the predeceased child may invoke Article
906 and demand the completion of the legitime which is due
them by right of representation.
● While there is no preterition of a predeceased child,
the descendants of the latter are entitled to recover the
legitime of the predeceased omitted child by right of
representation.
Article 854 inadvertently omitted to make a provision for a
compulsory heir in the direct line who was born after the
execution of the will but before the testator’s death. There
is no intention on the part of the testator to omit the child from
his will,
Not totally preterited? Use Article 906.
Distinction between preterition and ineffective disinherited
descendants
Preterition(Article 854) Ineffective Disinheritance
(Article 918)
Presumed to be Always for a reason. There
unintentional, omission is must be a cause, whether
due to testator’s mistake or legitimate or otherwise,
oversight stated in the will or not, that
made the testator decide to
 Jurisdiction of the probate court is limited to an inquiry into:
disinherit a compulsory
1. Extrinsic Validity of the Will
heir.
2. Testamentary capacity of the testator
3. Confirmation that the document is the will of the
Annuls the institution of Annuls the institution of
Testator, and
heirs in its totality, resulting heirs only insofar as it may
4. Testator freely executed the will
to partial or total intestacy be necessary to give the
legitime of the said
GR: The question of preterition should NOT be raised during
ineffective disinherited heir.
probate proceedings, the the probate court should NOT
entertain such issue
Does not necessarily result
in intestacy.
EXCEPTION: The probate court may pass upon the issue of
Only in the direct line, Applies to surviving spouse preterition before the will is admitted for practical
excluding the surviving considerations.
spouse from its protection
Atty. Au’s examples on preterition:
The preterited heir may Heir receives merely a
receive, in addition to share of the legitime.
legitime, a share in the
disposable free portion
because of intestacy.

Effects of Preterition
Annuls the institution of heirs.
1. Annulment of the institution of heirs resulting in total
intestacy
e.g. T has 3 legitimate sons (A, B, C). T instituted 2
sons (A, B) and a friend (X) as sole heirs to a net
hereditary to be shared by them equally = Annuls the
entire institution, all the sons will be equally given
the net hereditary estate, X does not get any since
will is annulled.
2. Annulment of the institution of heirs without
prejudice to a legacy
e.g. T instituted 2 sons (A, B) as sole heirs to a net
hereditary estate after payment of a legacy to X (T’s
brother). The preterition of C annulled only to the
institution of A and B. The legacy in favor of X may
be honored if the same is not inofficious which
should be given effect.
3. Annulment of the institution with reduction of
legacies
e.g. Testator institured to 2 sons (, B) as sole heirs to
a net hereditary estate after payment of legacy to X
(T’s brother) and Y (T’s sister). The preterition of C
annulled the institution of A and B. Legacies in favor
of X and Y may be honored to the extent they are not
inofficious.

If X and Y’s legacies exceed the value of the

disposable free portion then legacies must be reduced
to prevent impairment of the legitime. Note that
neither legacy was declared preferred by the testator
thus reduction shall be pro-rata (refer to formula in
Article 854)

After reducing the inofficious legacies to the extent

that could be absorbed by the disposable free portion,
T’s estate shall be distributed.

Preterition: An Issue of Substantive Validity of the Will

 Lyca’s
NUGUID v. NUGUID
The probate of will was opposed by parents of the testator,
which are compulsory heirs.
Where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is
probated, the Court should meet that issue.
Where the deceased left no descendants, legitimate or
illegitimate, but she left forced heirs in the direct ascending
line—her parents, and her holographic will does not explicitly
disinherit them but simply omits their names altogether, the
case is one of preterition of the parents, not a case of
ineffective disinheritance.
Where the one sentence will institute the petitioner as the sole,
universal heir and preterits the parents of the testatrix, and it
contains no specific legacies or bequests, such universal
institution of petitioner, by itself, is void. And intestate
succession ensues.
XPN to the GR that question of preterition should not
be raised during probate proceedings and probate court should
not entertain such issue.[Exceptional cases]
• Here the Supreme Court entertained a petition
premised on a question of law, which is the intrinsic validity
of a will, despite it not being probated yet, as the parties did
not touch on the issue of whether the will should be admitted
to probate to avoid a protracted litigation on the matter
(Nuguid v. Nuguid, G.R. No. L-23445 (1966) [Per J. Sanchez,
En Banc]).
Law governing the issues of preterition
Intestate and testamentary successions 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:
● the order of succession and
● to the amount of successional rights and
● to the intrinsic validity of testamentary
provisions,
Preterition relates to the order of succession and amount of
successional rights
CAYETANO v. LEONIDAS
Although on its face, the will appeared to have preterited the
petitioner and thus, the respondent judge should have denied
its reprobate outright, the private respondents have sufficiently
established that Adoracion was, at the time of her death, an
American citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and
1039 of the Civil Code which respectively provide: x x x x the
law which governs Adoracion Campo’s will is the law of
Pennsylvania, U.S.A., which is the national law of the
decedent. Although the parties admit that the Pennsylvania
law does not provide for legitimes and that all the estate may
be given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it
would be contrary to the sound and established public policy
and would run counter to the specific provisions of Philippine
Law.
Article 855.
The share of a child or common 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 other compulsory
heirs.
Omissions not total
This envision of this article there (1) was omission of an heir
and (2) will not dispose the entirety of the estate. There is no
preterition because the omitted heir can still recover from the
undistributed portion.
If the undistributed portion does not satisfy the legitime of the
omitted heir, the omitted heir can recover from portion of
other compulsory heir in excess of their respective legitime.
There is no preterition because the omission is not total.
Problem: Testator was survived by 4 legitimate children A, B,
C, and D. The testator instituted A to 1/3, B to 1/3 and C to 1/6
to a hereditary estate of P90,000. D was omitted.
A 30,000
B 30,000
C 15,000
D 11,250
Undistributed (not yet discussed)
In this case, although D was omitted, he can still get it from
the undisposed portion of the estate hence THERE IS NO
PRETERITION.
Recovery from the undisposed portion of the estate
Problem: Testator was survived by 4 legitimate children A, B,
C, and D. The testator instituted 50,000 to A and 40,000 each
to B and C. Net hereditary estate of 140,000. D was omitted.
Solution based on Atty. Au’s computation:
A= 50k
B=40K
C=40K 3.14516+ 2.17742+2.17742= 7.5

D= omitted A 46,855

Total: 130K B 37,823

Undisposed: 10K C 37,823

Legitime: 17.5K D 17,500

To complete: 7.5K

Formula:Excess legitime of heir/Combined excess legitime X

amount to complete
ATTY. AU example:
A

= 32.5/32.5+22.5+22.5=0.4194

=0.4194x7.5

=3.14516K

= 22.5/77.5=0.2903

=0.2903x7.5 Recovery from the undisposed portion of the estate with

reduction of shares of compulsory and voluntary heirs
=2.17742K
Problem: Testator was survived by 3 legitimate children A, B
and C. The testator instituted 50,000 to A and 40,000 each to
B and D. D is a nephew of the testator Net hereditary estate of
C 150,000. C was omitted.

= 22.5/77.5=0.2903 ● A= 50k
● B=40K
=0.2903x7.5 ● C= omitted
● D=40K
=2.17742K ● Total: 130K
● Undisposed: 20K
● Legitime: 25K each
Reduced Share ● To complete: 5k

A= 50,000K-3,145.16 A= 50k
B=40K
= 46, 854
C= omitted
D=40K
Total: 130K
B=40,000K-2,177.42
Undisposed: 20K
=37,822 Legitime: 25K each
To complete: 5k

C=40,000K-2,177.42 Portion Charged to DFP

A=25K
=37,822
B=15L
D=40K
To Check:
A=
25K/25K+15K+40K= 0.3125
0.3125x5K= 1.5625

B=
15K/25K+15K+40K= 0.1875
0.1875x5K= 0.9375

D=
40K/25K+15K+40K= 0.5
0.5x5K= 2.5K
A 48,438

B 39,063

C 25,000

D 37,500

Article 856.

A voluntary heir who dies before the testator transmits

nothing to his heirs.

A compulsory heir who dies before the testator, a

person incapacitated to succeed, and one who
renounces the inheritance, shall transmit no right to his
own heirs except in cases expressly provided for in this
Code.

Representation in testamentary succession

● Voluntary heir cannot be represented. It can only pass

through substitution if so provided by the testator, or
by accretion, if appropriate, or by intestate succession
if accretion not available.
● Compulsory heirs who predeceased or is
incapacitated to inherit may be represented by his
own heirs, subject to limitations: Representation
available only in descending lines, never in ascending
or collateral lines
● Recovery is limited to legitime of predeceased or
incapacitated compulsory heir
● Representative not barred to inherit from testator by
Art. 992, or for any other reason be disqualified or
incapacitated.
● Repudiator cannot be represented.