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SUCCESSION | ATTY. URIBE
CODAL PROVISIONS & CASE DOCTRINES
TRICIA CRUZ
DLSU-LAW
SUCCESSION OUTLINE
GENERAL PROVISIONS
A. Definition and Concept
Art. 712. Ownership is acquired by occupation and by intellectual
creation.
Ownership and other real rights over property are acquired and
transmitted by law, by donation, by estate and intestate succession,
and in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription.   
Art. 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. 
Art. 1311. Contracts take effect only between the parties, their
assigns and heirs, except in case where the rights and obligations
arising from the contract are not transmissible by their nature, or by
stipulation or by provision of law. The heir is not liable beyond the
value of the property he received from the decedent.
B. Laws governing form
1. As to time of execution
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.
2. As to place of execution
Art. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.
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 inor out of the
Philippines, and need not be witnessed
Art. 815. When a Filipino is in a foreign country, he is authorized to
make a will in any of the forms established by the law of the country
in which he may be. Such will may be probated in the Philippines. (n)
Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the
place in which he resides, or according to the formalities observed in
his country, or in conformity with those which this Code prescribes.
(n)
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.
(n)
Art. 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. (669)
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.
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In re Will of Rev. Abadia, 50 O.G. #9, p. 4185
- To determine the law applicable to a will, the determining
factor shall be at the time or date it was executed.
- Article 795 of the New Civil Code provides: “The validity of a
will as to its form depends upon the observance of the law in
force at the time it is made.” The validity of a will is to be
judged not by the law enforced at the time of the testator’s
death or at the time the supposed will is presented in court
for probate or when the petition is decided by the court but at
the time the instrument is executed.
Fleumer v. Hix, 54 Phil. 610
- 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 provides.
- The courts of the Philippines are not authorized to take
judicial notice of the laws of the various States of the
American Union. Such laws must be proved as facts. Here
the requirements of law were not met. There was no
showing that the book from which an extract was taken was
printed or published under the authority of the state of West
Va. as provided in the Code of Civil Procedure; nor was the
extract from the law attested by the certificate of the officer
having charge of the original.
Estate of Giberson, 48 O.G. #7, 2657
- If an alien executes a will in the Philippines, not in conformity
with our law, but in conformity with the law of his own state
or country, the will can be probated in the Philippines.
- The requirement of law is that it must comply with the laws of
the country where it was executed for validity and not
probate on the country for execution.
- An alien who makes a will in a place other than his country is
permitted to follow the laws of his own country as sanctioned
by the Civil Code. On the other hand, the Rules provide that
wills proved and allowed in a foreign country, according to
the laws of such country, may be allowed, filed and recorded
by the proper Court of First Instance in the Philippines.
Dela Cerna v. Potot, 12 SCRA 576
- In a joint will of husband and wife, the probate decree of the
will of the husband could only affect the share of the
deceased husband. The validity of the will in so far as the
wife is concerned must be on her death and adjudicated de
novo, since a joint will is considered a separate will.
- A will void on its face can be probated.
Estate of Rodriguez, 46 O.G. # 2, p. 584
- Neither old age, physical infirmities feebleness of mind,
weakness of the memory, the appointment of a guardian, nor
eccentricities are sufficient singly or jointly to show
testamentary incapacity.
- The provision in the rules of court invoked by the oppositors
does not disallow an administration proceeding. It merely
gives an option to the heirs not to undertake such
proceeding.
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C. Laws governing content
1. As to time
Art. 2263. Rights to the inheritance of a person who died, with or
without a will, before the effectivity of this Code, shall be governed by
the Civil Code of 1889, by other previous laws, and by the Rules of
Court. The inheritance of those who, with or without a will, die after
the beginning of the effectivity of this Code, shall be adjudicated and
distributed in accordance with this new body of laws and by the
Rules of Court; but the testamentary provisions shall be carried out
insofar as they may be permitted by this Code. Therefore, legitimes,
betterments, legacies and bequests shall be respected; however,
their amount shall be reduced if in no other manner can every
compulsory heir be given his full share according to this Code
2. As to successional rights, etc.
Art. 16(2). However, intestate and testamentary successions, both
with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found.
Art. 1039. Capacity to succeed is governed by the law of the nation
of the decedent.
Estate of Christensen, 61 O.G. # 46, p. 7302
- The recognition of the renvoi theory implies that the rules of
the conflict of laws are to be understood as incorporating not
only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well.
- The theory in the Renvoi Doctrine is applicable in this case.
- The theory of the doctrine of renvoi is that the court of the
forum, in determining the question before it, must take into
account the whole law of the other jurisdiction, but also its
rules as to conflict of laws, and then apply the law to the
actual question which the rules of the other jurisdiction
prescribe.
- The recognition of the renvoi theory implies that the rules of
the conflict of laws are to be understood as incorporating not
only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well.
According to this theory the law of the country means the
whole of its laws.
Estate of Amos Bellis, 20 SCRA 358
- The national law of the decedent in intestate and testate
proceedings shall be followed.
- Texas Law was applied. NCC Article 16 (2) and Art. 1039
render applicable the national law of the decedent in
intestate or testamentary successions, with regard to four
items: (1) the order of succession; (2) the amount of
successional rights; (3) the intrinsic validity of the provisions
of the will, and (4) the capacity to succeed.
- Even assuming that Texas has a conflict of law rule
providing that the law of the domicile should govern, the
same would not result in a renvoi to Philippine law, but would
still refer to Texas law. The doctrine of of renvoi (reference
back) in the case at bar is inapplicable because the U.S.
does not adopt the situs theory calling for the application of
where the properties are situated, since the properties are
located in the Philippines. In the absence of proof as to the
conflict of law rule of Texas, it should not be presumed to be
different from ours. As the SC ruled in Miciano v. Brimo, a
provision in a foreigner’s will to the effect that his properties
shall be distributed in accordance with Philippine law and not
his national law, is illegal and void, for his national law
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cannot be ignored in regard to those matter that Article 16 of (2) In default of the foregoing, legitimate parents and ascendants,
the Civil Code states said national law should govern. with respect to their legitimate children and descendants;

(3) The widow or widower;

Cayetano v. Leonides, 129 SCRA 524
- It is settled rule that as regards the intrinsic validity of the provisions
of the will, as provided for by Article 16 (2) and 1039 of the Civil
Code, the national law of the decedent must apply.
- Philippine law was not applied as regards the intrinsic validity of the
will. The law which governs Adoracion Campos’ will is the law of
Pennsylvania, USA which is the national law of the decedent by
virtue of Art. 16 (2) and Art. 1039 of the Civil Code. The settlement of
the estate of Adoracion was correctly filed with the CFI of Manila
where she had an estate since it was alleged and proven that
Adoracion at the time of her death was a citizen and a permanent
resident of Pennsylvania, USA and not a “usual resident” of Cavite.
(4) Acknowledged natural children, and natural children by legal
fiction;
(5) Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by
those in Nos. 1 and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes
mentioned, shall inherit from them in the manner and to the extent
established by this Code.

D. Subject of Succession Art. 1003. If there are no descendants, ascendants, illegitimate

children, or a surviving spouse, the collateral relatives shall succeed
Art. 775. In this Title, "decedent" is the general term applied to the
to the entire estate of the deceased in accordance with the following
person whose property is transmitted through succession, whether or
articles.
not he left a will. If he left a will, he is also called the testator.

Art. 782. An heir is a person called to the succession either by the

provision of a will or by operation of law. 1. Who are the subjects?

Devisees and legatees are persons to whom gifts of real and 2. Relationship
personal property are respectively given by virtue of a will.
Art. 963. Proximity of relationship is determined by the number of
Art. 887. The following are compulsory heirs: generations. Each generation forms a degree. (915)

(1) Legitimate children and descendants, with respect to their Art. 964. A series of degrees forms a line, which may be either direct
legitimate parents and ascendants; or collateral.
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A direct line is that constituted by the series of degrees among
ascendants and descendants.
A collateral line is that constituted by the series of degrees among
persons who are not ascendants and descendants, but who come
from a common ancestor. (916a)
Art. 965. The direct line is either descending or ascending.
The former unites the head of the family with those who descend
from him.
The latter binds a person with those from whom he descends. (917)
Art. 966. In the line, as many degrees are counted as there are
generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor. Thus, the
child is one degree removed from the parent, two from the
grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor and
then descent is made to the person with whom the computation is to
be made. Thus, a person is two degrees removed from his brother,
three from his uncle, who is the brother of his father, four from his
first cousin, and so forth. (918a)
Art. 967. Full blood relationship is that existing between persons who
have the same father and the same mother.
Half blood relationship is that existing between persons who have
the same father, but not the same mother, or the same mother, but
not the same father. (920a)
Art. 968. If there are several relatives of the same degree, and one
or some of them are unwilling or incapacitated to succeed, his
portion shall accrue to the others of the same degree, save the right
of representation when it should take place. (922)
Art. 969. If the inheritance should be repudiated by the nearest
relative, should there be one only, or by all the nearest relatives
called by law to succeed, should there be several, those of the
following degree shall inherit in their own right and cannot represent
the person or persons repudiating the inheritance.
3. Capacity to Succeed
Art. 1024. Persons not incapacitated by law may succeed by will or
abintestato.
The provisions relating to incapacity by will are equally applicable to
intestate succession.
a. Determination
Art. 1034. In order to judge the capacity of the heir, devisee or
legatee, his qualification at the time of the death of the decedent
shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be
necessary to wait until final judgment is rendered, and in the case
falling under No. 4, the expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional, the time of
the compliance with the condition shall also be considered
Art. 1039. Capacity to succeed is governed by the law of the nation
of the decedent.
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Art. 16(2). However, intestate and testamentary successions, both
with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found.
b. Who may succeed?
Parish Priest of Victoria v. Rigor, 89 SCRA 493
- In order to be capacitated to inherit, the heir, devisee or
legatee must be living at the moment the succession opens,
except in case of representation, when it is proper.
Art. 1024. Persons not incapacitated by law may succeed by will or
ab intestato.
The provisions relating to incapacity by will are equally applicable to
intestate succession. (744, 914)
Art. 1025. In order to be capacitated to inherit, the heir, devisee or
legatee must be living at the moment the succession opens, except
in case of representation, when it is proper.
A child already conceived at the time of the death of the decedent is
capable of succeeding provided it be born later under the conditions
prescribed in article 41. (n)
Art. 1026. A testamentary disposition may be made to the State,
provinces, municipal corporations, private corporations,
organizations, or associations for religious, scientific, cultural,
educational, or charitable purposes.
All other corporations or entities may succeed under a will, unless
there is a provision to the contrary in their charter or the laws of their
creation, and always subject to the same.
Art. 1029. Should the testator dispose of the whole or part of his
property for prayers and pious works for the benefit of his soul, in
general terms and without specifying its application, the executor,
with the court's approval shall deliver one-half thereof or its proceeds
to the church or denomination to which the testator may belong, to
be used for such prayers and pious works, and the other half to the
State, for the purposes mentioned in Article 1013. (747a)
Art. 1030. Testamentary provisions in favor of the poor in general,
without designation of particular persons or of any community, shall
be deemed limited to the poor living in the domicile of the testator at
the time of his death, unless it should clearly appear that his intention
was otherwise.
The designation of the persons who are to be considered as poor
and the distribution of the property shall be made by the person
appointed by the testator for the purpose; in default of such person,
by the executor, and should there be no executor, by the justice of
the peace, the mayor, and the municipal treasurer, who shall decide
by a majority of votes all questions that may arise. In all these cases,
the approval of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator has disposed
of his property in favor of the poor of a definite locality.
c. Who are incapable of succeeding?
Art. 1025. In order to be capacitated to inherit, the heir, devisee or
legatee must be living at the moment the succession opens, except
in case of representation, when it is proper.
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A child already conceived at the time of the death of the decedent is
capable of succeeding provided it be born later under the conditions
prescribed in article 41.
Art. 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator during his last
illness, or the minister of the gospel who extended spiritual aid to him
during the same period;
(2) The relatives of such priest or minister of the gospel within the
fourth degree, the church, order, chapter, community, organization,
or institution to which such priest or minister may belong;
(3) A guardian with respect to testamentary dispositions given by a
ward in his favor before the final accounts of the guardianship have
been approved, even if the testator should die after the approval
thereof; nevertheless, any provision made by the ward in favor of the
guardian when the latter is his ascendant, descendant, brother,
sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the spouse,
parents, or children, or any one claiming under such witness,
spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist who took
care of the testator during his last illness;
(6) Individuals, associations and corporations not permitted by law to
inherit.
Art. 1028. The prohibitions mentioned in article 739, concerning
donations inter vivos shall apply to testamentary provisions.
Art. 1031. A testamentary provision in favor of a disqualified person,
even though made under the guise of an onerous contract, or made
through an intermediary, shall be void. (755)
Art. 1032. The following are incapable of succeeding by reason of
unworthiness:
(1) Parents who have abandoned their children or induced their
daughters to lead a corrupt or immoral life, or attempted against their
virtue;
(2) Any person who has been convicted of an attempt against the life
of the testator, his or her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a crime for which the
law prescribes imprisonment for six years or more, if the accusation
has been found groundless;
(4) Any heir of full age who, having knowledge of the violent death of
the testator, should fail to report it to an officer of the law within a
month, unless the authorities have already taken action; this
prohibition shall not apply to cases wherein, according to law, there
is no obligation to make an accusation;
(5) Any person convicted of adultery or concubinage with the spouse
of the testator;
(6) Any person who by fraud, violence, intimidation, or undue
influence should cause the testator to make a will or to change one
already made;
(7) Any person who by the same means prevents another from
making a will, or from revoking one already made, or who supplants,
conceals, or alters the latter's will;
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(8) Any person who falsifies or forges a supposed will of the should have children or descendants, the latter shall acquire his right
decedent. (756, 673, 674a) to the legitime.

Art. 1033. The cause of unworthiness shall be without effect if the
testator had knowledge thereof at the time he made the will, or if,
having known of them subsequently, he should condone them in
writing.
Art. 990. The hereditary rights granted by the two preceding articles
to illegitimate children shall be transmitted upon their death to their
descendants, who shall inherit by right of representation from their
deceased grandparent. (941a)
Art. 991. If legitimate ascendants are left, the illegitimate children
shall divide the inheritance with them, taking one-half of the estate,
whatever be the number of the ascendants or of the illegitimate
children. (942-841a)
Art. 992. An illegitimate child has no right to inherit abintestato from
the legitimate children and relatives of his father or mother; nor shall
such children or relatives inherit in the same manner from the
illegitimate child.
d. Effect of alienations by the excluded heir
Art. 1036. Alienations of hereditary property, and acts of
administration performed by the excluded heir, before the judicial
order of exclusion, are valid as to the third persons who acted in
good faith; but the co-heirs shall have a right to recover damages
from the disqualified heir.
e. Rights of the excluded heir
Art. 1035. If the person excluded from the inheritance by reason of
incapacity should be a child or descendant of the decedent and
The person so excluded shall not enjoy the usufruct and
administration of the property thus inherited by his children.
Article 1037. The unworthy heir who is excluded from the succession
has a right to demand indemnity or any expenses incurred in the
preservation of the hereditary property, and to enforce such credits
as he may have against the estate. (n)
Art. 1014. If a person legally entitled to the estate of the deceased
appears and files a claim thereto with the court within five years from
the date the property was delivered to the State, such person shall
be entitled to the possession of the same, or if sold the municipality
or city shall be accountable to him for such part of the proceeds as
may not have been lawfully spent.
f. Liabilities of the excluded heir
Art. 1038. Any person incapable of succession, who, disregarding
the prohibition stated in the preceding articles, entered into the
possession of the hereditary property, shall be obliged to return it
together it its accessions.
He shall be liable for all the fruits and rents he may have received, or
could have received through the exercise of due diligence.
g. Prescription of Action
Art. 1040. The action for a declaration of incapacity and for the
recovery of the inheritance, devise or legacy shall be brought within
five years from the time the disqualified person took possession
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thereof. It may be brought by anyone who may have an interest in
the succession.
E. Object of Succession
Art. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death.
Art. 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.
Art. 1311. Contracts take effect only between the parties, their
assigns and heirs, except in case where the rights and obligations
arising from the contract are not transmissible by their nature, or by
stipulation or by provision of law. The heir is not liable beyond the
value of the property he received from the decedent.
If a contract should contain some stipulation in favor of a third
person, he may demand its fulfillment provided he communicated his
acceptance to the obligor before its revocation. A mere incidental
benefit or interest of a person is not sufficient. The contracting
parties must have clearly and deliberately conferred a favor upon a
third person.
Art. 1429. When a testate or intestate heir voluntarily pays a debt of
the decedent exceeding the value of the property which he received
by will or by the law of intestacy from the estate of the deceased, the
payment is valid and cannot be rescinded by the payer.
Art. 1178. Subject to the laws, all rights acquired in virtue of an
obligation are transmissible, if there has been no stipulation to the
contrary.
Art. 1347. All things which are not outside the commerce of men,
including future things, may be the object of a contract. All rights
which are not intransmissible may also be the object of contracts.
No contract may be entered into upon future inheritance except in
cases expressly authorized by law.
All services which are not contrary to law, morals, good customs,
public order or public policy may likewise be the object of a contract.
(Revised Penal Code) Art. 108. Obligation to make restoration,
reparation for damages, or indemnification for consequential
damages and actions to demand the same; Upon whom it devolves.
— The obligation to make restoration or reparation for damages and
indemnification for consequential damages devolves upon the heirs
of the person liable.
The action to demand restoration, reparation, and indemnification
likewise descends to the heirs of the person injured.
Reyes v. CA, S.C. L-5620 July 31, 1954
- If the contract is void, the property still forms part of the
inheritance in order not to prejudice the heir.
- The natural children of the deceased in this case are
questioning the intrinsic validity of the will on the ground that
his compulsory heir cannot be one, as theirs was an illicit
relationship. SC held that as a general rule, courts in probate
proceedings are limited to pass only upon the extrinsic
validity of the will sought to be probated. There are,
however, notable circumstances wherein the intrinsic validity
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was first determined as when the defect of the will is
apparent on its face and the probate of the will may become
a useless ceremony if it is intrinsically invalid. The intrinsic
validity of a will may be passed upon because “practical
considerations” demanded it as when there is preterition of
heirs or the testamentary provisions are doubtful legality. In
this case however, there was never an open admission of
any illicit relationship. Thus, there was no need to go beyond
the face of the will.
Guinto v. Medina, 50 O.G. # 1, p. 199, Oct. 7, 1953.
- SC held that the heirs of a defendant in a civil action is liable
for damages for such action survives despite the defendant’s
death.
- As they are merely substituted in place of Santiago Medina
upon his death, their liability is only up to the extent of the
value of the property, which they might have received from
the original defendant, Santiago Medina.
F. Opening of Succession
Art. 777. The rights to the succession are transmitted from the
moment of the death of the decedent.
Art. 2263. Rights to the inheritance of a person who died, with or
without a will, before the effectivity of this Code, shall be governed by
the Civil Code of 1889, by other previous laws, and by the Rules of
Court. The inheritance of those who, with or without a will, die after
the beginning of the effectivity of this Code, shall be adjudicated and
distributed in accordance with this new body of laws and by the
Rules of Court; but the testamentary provisions shall be carried out
insofar as they may be permitted by this Code. Therefore, legitimes,
betterments, legacies and bequests shall be respected; however,
their amount shall be reduced if in no other manner can every
compulsory heir be given his full share according to this Code.
Art. 2253. The Civil Code of 1889 and other previous laws shall
govern rights originating, under said laws, from acts done or events
which took place under their regime, even though this Code may
regulate them in a different manner, or may not recognize them. But
if a right should be declared for the first time in this Code, it shall be
effective at once, even though the act or event which gives rise
thereto may have been done or may have occurred under prior
legislation, provided said new right does not prejudice or impair any
vested or acquired right, of the same origin.
Art. 533. The possession of hereditary property is deemed
transmitted to the heir without interruption and from the moment of
the death of the decedent, in case the inheritance is accepted.
One who validly renounces an inheritance is deemed never to have
possessed the same.
Art. 1347. All things which are not outside the commerce of men,
including future things, may be the object of a contract. All rights
which are not intransmissible may also be the object of contracts.
No contract may be entered into upon future inheritance except in
cases expressly authorized by law.
All services which are not contrary to law, morals, good customs,
public order or public policy may likewise be the object of a contract.
Art. 1461. Things having a potential existence may be the object of
the contract of sale.
The efficacy of the sale of a mere hope or expectancy is deemed
subject to the condition that the thing will come into existence.
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The sale of a vain hope or expectancy is void.
Art. 130. The future spouses may give each other in their marriage
settlements as much as one-fifth of their present property, and with
respect to their future property, only in the event of death, to the
extent laid down by the provisions of this Code referring to
testamentary succession.
Art. 132. A donation by reason of marriage is not revocable, save in
the following cases:
(1) If it is conditional and the condition is not complied with;
Art. 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.

(2) If the marriage is not celebrated; (Family Code) Art. 84. If the future spouses agree upon a regime
other than the absolute community of property, they cannot donate to
(3) When the marriage takes place without the consent of the each other in their marriage settlements more than one-fifth of their
parents or guardian, as required by law; present property. Any excess shall be considered void.

(4) When the marriage is annulled, and the donee acted in bad faith; Donations of future property shall be governed by the provisions on
testamentary succession and the formalities of wills.
(5) Upon legal separation, the donee being the guilty spouse;
(Family Code) Art. 86. A donation by reason of marriage may be
(6) When the donee has committed an act of ingratitude as specified
revoked by the donor in the following cases:
by the provisions of this Code on donations in general.
(1) If the marriage is not celebrated or judicially declared void ab
Art. 390. After an absence of seven years, it being unknown whether
initio except donations made in the marriage settlements, which shall
or not the absentee still lives, he shall be presumed dead for all
be governed by Article 81;
purposes, except for those of succession.
(2) When the marriage takes place without the consent of the
The absentee shall not be presumed dead for the purpose of
parents or guardian, as required by law;
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of five (3) When the marriage is annulled, and the donee acted in bad faith;
years shall be sufficient in order that his succession may be opened.
(4) Upon legal separation, the donee being the guilty spouse;
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(5) If it is with a resolutory condition and the condition is complied
with;
(6) When the donee has committed an act of ingratitude as specified
by the provisions of the Civil Code on donations in general.
Requisites for the transmission of Successional Rights
1. Express will of the testator or provision of law
2. Death of the person whose property is the subject of
succession
Art. 43. If there is a doubt, as between two or more persons who
are called to succeed each other, as to which of them died first,
whoever alleges the death of one prior to the other, shall prove
the same; in the absence of proof, it is presumed that they died
at the same time and there shall be no transmission of rights
from one to the other.
Survivorship Rule:
Rule 131, Sec.3(ii)That a trustee or other person whose duty it
was to convey real property to a particular person has actually
conveyed it to him when such presumption is necessary to
perfect the title of such person or his successor in interest
3. Acceptance of the inheritance
Art. 1041. The acceptance or repudiation of the inheritance is an act
which is purely voluntary and free. (988)
Art. 1042. The effects of the acceptance or repudiation shall always
retroact to the moment of the death of the decedent. (989)
Art. 1043. No person may accept or repudiate an inheritance unless
he is certain of the death of the person from whom he is to inherit,
and of his right to the inheritance. (991)
Art. 1044. Any person having the free disposal of his property may
accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may be
accepted by their parents or guardians. Parents or guardians may
repudiate the inheritance left to their wards only by judicial
authorization.
The right to accept an inheritance left to the poor shall belong to the
persons designated by the testator to determine the beneficiaries
and distribute the property, or in their default, to those mentioned in
Article 1030. (992a)
Art. 1045. The lawful representatives of corporations, associations,
institutions and entities qualified to acquire property may accept any
inheritance left to the latter, but in order to repudiate it, the approval
of the court shall be necessary.(993a)
Art. 1046. Public official establishments can neither accept nor
repudiate an inheritance without the approval of the
government. (994)
Art. 1047. A married woman of age may repudiate an inheritance
without the consent of her husband. (995a)
Art. 1048. Deaf-mutes who can read and write may accept or
repudiate the inheritance personally or through an agent. Should
they not be able to read and write, the inheritance shall be accepted
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by their guardians. These guardians may repudiate the same with
judicial approval. (996a)
Art. 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private
document.
A tacit acceptance is one resulting from acts by which the intention to
accept is necessarily implied, or which one would have no right to do
except in the capacity of an heir.
Acts of mere preservation or provisional administration do not imply
an acceptance of the inheritance if, through such acts, the title or
capacity of an heir has not been assumed. (999a)
Art. 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a
stranger, or to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though gratuitously,
for the benefit of one or more of his co-heirs;
(3) If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be gratuitous,
and the co-heirs in whose favor it is made are those upon
whom the portion renounced should devolve by virtue of
accretion, the inheritance shall not be deemed as
accepted. (1000)
Art. 1051. The repudiation of an inheritance shall be made in a public
or authentic instrument, or by petition presented to the court having
jurisdiction over the testamentary or intestate proceedings. (1008)
Art. 1052. If the heir repudiates the inheritance to the prejudice of his
own creditors, the latter may petition the court to authorize them to
accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent sufficient
to cover the amount of their credits. The excess, should there be
any, shall in no case pertain to the renouncer, but shall be
adjudicated to the persons to whom, in accordance with the rules
established in this Code, it may belong. (1001)
Art. 1053. If the heir should die without having accepted or
repudiated the inheritance his right shall be transmitted to his
heirs. (1006)
Art. 1054. Should there be several heirs called to the inheritance,
some of them may accept and the others may repudiate it. (1007a)
Art. 1055. If a person, who is called to the same inheritance as an
heir by will and ab intestato, repudiates the inheritance in his
capacity as a testamentary heir, he is understood to have repudiated
it in both capacities.
Should he repudiate it as an intestate heir, without knowledge of his
being a testamentary heir, he may still accept it in the latter
capacity. (1009)
Art. 1056. The acceptance or repudiation of an inheritance, once
made, is irrevocable, and cannot be impugned, except when it was
made through any of the causes that vitiate consent, or when an
unknown will appears. (997)
Art. 1057. Within thirty days after the court has issued an order for
the distribution of the estate in accordance with the Rules of Court,
the heirs, devisees and legatees shall signify to the court having
jurisdiction whether they accept or repudiate the inheritance.
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If they do not do so within that time, they are deemed to have
accepted the inheritance. (n)  inheritance whether such right be pure or contingent. The
Uson v. Del Rosario, 92 Phil. 530
- Rights recognized for the first time in the NCC shall be given
retroactive effect subject to the exception when an acquired
or vested right shall be impaired.
- Article 2253 provides that "if a right should be declared for
the first time in this Code, it shall be effective at once, even
though the act or event which gives rise thereto may have
been done or may have occurred under the prior legislation,
provided said new right does not prejudice or impair any
vested or acquired right, of the same origin." The right of
ownership of Uson became vested in 1945 upon the death of
her husband this is so because of Art. 777. The new right
recognized under the NCC in favor of illegitimate children of
the deceased cannot be asserted to the impairment of the
vested right of Uson over the lands.
De Borja v. De Borja, 46 SCRA 577
- The claim of the defendants that Maria Uson (legal wife)
has relinquished her right over the lands in question because
she expressly renounced to inherit any future property that
her husband may acquire and leave upon his death in the
deed of separation they had entered into cannot be
entertained for the simple reason that future inheritance
cannot be the object of a contract nor can it be renounced.
Bonilla v. Barcena, 71 SCRA 491
- From the moment of the death of the decedent, 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. The moment of death is the determining
factor when the heirs acquire a definite right to the
right of the heirs to the property of the deceased vests in
them even before judicial declaration of their being heirs in
the testate or intestate proceedings.
- The question as to whether an action survives or not
depends on the nature of the action and the damage sued
for. In the causes of action which survive, the wrong
complained [of] affects primarily and principally property and
property rights, the injuries to the person being merely
incidental, while in the causes of action which do not survive,
the injury complained of is to the person, the property and
rights of property affected being incidental.
Cruz v. Cruz, G.R. No. 173292, September 1, 2010
- A Petition for Declaration of Nullity of Deed of Sale of Real
Property is one relating to property and property rights, and
therefore, survives the death of the petitioner.
Bough v. Modesto, Jan 28, 1954, 94 Phil.
- The contract is valid. It is well settled that rights by
inheritance are acquired and transmitted upon the death of
the decedent. If this is so, it must necessarily follow that it is
perfectly legal for an heir to enter into a contract of the
nature of the document (Modesto agreed that he would
share with Restituto whatever property he might inherit from
his deceased wife) in this case, the understanding to be, of
course, that the contract would be effective only if and when
he is really declared an heir and only as regards any
property that might be adjudicated to him as such.
Borromeo-Herrera v. Borromeo, 152 SCRA 171
- The heirs could waive their hereditary rights in 1967 even
if the order to partition the estate was issued only in 1969.
The prevailing jurisprudence on waiver of hereditary rights is
that "the properties included in an existing inheritance cannot
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be considered as belonging to third persons with respect to repudiates the inheritance, there being no substitution, and no right
the heirs, who by fiction of law continue the personality of the of accretion takes place;
former. Nor do such properties have the character of future
property, because the heirs acquire a right to succession (4) When the heir instituted is incapable of succeeding, except in
from the moment of the death of the deceased. cases provided in this Code. 
- For a waiver to exist, three elements are essential: (1) the
existence of a right; (2) the knowledge of the existence
thereof; and (3) an intention to relinquish such right. The 3. Mixed
intention to waive a right or advantage must be shown
clearly and convincingly. The circumstances of this case Art. 780. Mixed succession is that effected partly by will and partly
show that the signatories to the waiver document did not byoperation of law.
have the clear and convincing intention to relinquish their
rights, in fact on a later date, an agreement to partition was 4. Contractual
signed by the heirs and was approved by the trial court.
Art. 130. The future spouses may give each other in their marriage
settlements as much as one-fifth of their present property, and with
G. Kinds of Succession
respect to their future property, only in the event of death, to the
Art. 778. Succession may be:
(1) Testamentary; extent laid down by the provisions of this Code referring to
(2) Legal or intestate; or testamentary succession.
(3) Mixed.
Art. 1347. All things which are not outside the commerce of men,
1. Testamentary including future things, may be the object of a contract. All rights
Art. 779. Testamentary succession is that which results from the which are not intransmissible may also be the object of contracts.
designation of an heir, made in a will executed in the form prescribed
by law No contract may be entered into upon future inheritance except in
2. Legal or Intestate cases expressly authorized by law.
Art. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which has
All services which are not contrary to law, morals, good customs,
subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all the public order or public policy may likewise be the object of a contract.
property belonging to the testator. In such case, legal succession
shall take place only with respect to the property of which the testator Art. 752. The provisions of Article 750 notwithstanding, no person
has not disposed; may give or receive, by way of donation, more than he may give or
receive by will.
(3) If the suspensive condition attached to the institution of heir does
not happen or is not fulfilled, or if the heir dies before the testator, or
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The donation shall be inofficious in all that it may exceed this
limitation.
(Family Code) Art. 84. 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.
5. Compulsory
TESTAMENTARY SUCCESSION
II. WILLS
A. Definition.
Article 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of this estate, to take effect after his death. (667a)
B. Characteristics
Article 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of this estate, to take effect after his death. (667a)
Article 839. The will shall be disallowed in any of the following cases:
xx
xx
(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;
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. (737a)
Article 796. All persons who are not expressly prohibited by law may
make a will. (662)
Article 797. Persons of either sex under eighteen years of age
cannot make a will. (n)
Article 798. In order to make a will it is essential that the testator be
of sound mind at the time of its execution. (n)
Article 777. The rights to the succession are transmitted from the
moment of the death of the decedent. (657a)
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. (669)
Article 784. The making of a will is a strictly personal act; it cannot be
left in whole or in part to the discretion of a third person, or
accomplished through the instrumentality of an agent or attorney.
(670a)
Article 785. The duration or efficacy of the designation of heirs,
devisees or legatees, or the determination of the portions which they
are to take, when referred to by name, cannot be left to the discretion
of a third person. (670a)
Article 786. The testator may entrust to a third person the distribution
of specific property or sums of money that he may leave in general to
specified classes or causes, and also the designation of the persons,
institutions or establishments to which such property or sums are to
be given or applied. (671a)
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Article 787. The testator may not make a testamentary disposition in
such manner that another person has to determine whether or not it
is to be operative. (n)
C. Interpretation of Wills
Article 788. If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by which the
disposition is to be operative shall be preferred. (n)
Article 789. When there is an imperfect description, or when no
person or property exactly answers the description, mistakes and
omissions must be corrected, if the error appears from the context of
the will or from extrinsic evidence, excluding the oral declarations of
the testator as to his intention; and when an uncertainty arises upon
the face of the will, as to the application of any of its provisions, the
testator's intention is to be ascertained from the words of the will,
taking into consideration the circumstances under which it was
made, excluding such oral declarations. (n)
Article 790. The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in another
sense can be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their technical sense,
unless the context clearly indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn solely by the testator,
and that he was unacquainted with such technical sense.
(675a)
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.
(n)
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.
(n)
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. (n)
Article 794. Every devise or legacy shall cover all the interest which
the testator could device or bequeath in the property disposed of,
unless it clearly appears from the will that he intended to convey a
less interest. (n)
Article 930. The legacy or devise of a thing belonging to another
person is void, if the testator erroneously believed that the thing
pertained to him. But if the thing bequeathed, though not belonging
to the testator when he made the will, afterwards becomes his, by
whatever title, the disposition shall take effect. (862a)
Solla v. Ascuenta, 49 Phil. 333
Where the testator's intention is manifest from the context of the will
and surrounding circumstances, but is obscured by inapt and
inaccurate modes of expression, the language will be subordinated
to the intention, and in order to give effect to such intention, as far as
possible, the court may depart from the strict wording and read word
or phrase in a sense different from that which is ordinarily attributed
to it, and for such purpose may mould or change the language of the
will. such as restricting its application or supplying omitted words or
phrases.
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TESTAMENTARY CAPACITY AND INTENT Article 802. A married woman may make a will without the consent of
A. Who may make a will? her husband, and without the authority of the court. (n)

Article 796. All persons who are not expressly prohibited by law may Article 803. A married woman may dispose by will of all her separate
make a will. (662) property as well as her share of the conjugal partnership or absolute
community property. (n)
Article 797. Persons of either sex under eighteen years of age
cannot make a will. (n) B. Supervening incapacity

Article 798. In order to make a will it is essential that the testator be
of sound mind at the time of its execution. (n)
Article 799. To be of sound mind, it is not necessary that the testator
be in full possession of all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or unshattered by disease, injury or
other cause.
It shall be sufficient if the testator was able at the time of making the
will to know the nature of the estate to be disposed of, the proper
objects of his bounty, and the character of the testamentary act. (n)
Article 800. The law presumes that every person is of sound mind, in
the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the
time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before
making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it
during a lucid interval. (n)
Article 801. Supervening incapacity does not invalidate an effective
will, nor is the will of an incapable validated by the supervening of
capacity. (n)
Article 801. Supervening incapacity does not invalidate an effective
will, nor is the will of an incapable validated by the supervening of
capacity. (n)
Baltazar v. Laxa, G.R. No. 174489, April 11, 2012
- The burden of proving the testator’s incapacity lies on those
who assail the validity of his will. It must be proven with clear
and convincing evidence and not just bare allegation of
forgetfulness.
IV. SOLEMNITIES OF WILLS
A. Kinds of Wills. Arts. 804, 810
Article 804. Every will must be in writing and executed in a language
or dialect known to the testator. (n)
Article 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. (678, 688a)
B. Notarial Wills
1. General requirements.
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Article 804. Every will must be in writing and executed in a language
or dialect known to the testator. (n)
Suroza v. Honrado, 110 SCRA 388
- A will written in a language not known to the testator is void. It runs
contrary to the mandatory provision of Article 804 of the Civil Code
that every will must be executed in a language or dialect known to
the testator.
- 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.”
2. Specific requirements.
Article 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one
another.
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. (n)
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.(n)
Garcia v. Lacuesta, 90 Phil. 489
- An attestation clause must state that another person
wrote the testator’s name under the latter’s express
direction.
- A cross cannot be taken as the signature of the testator
absent proof unless it is his usual signature.
- The cross was not proven to be the signature of the
testator.
Balonan v. Abellana, 109 Phil. 358
- The law requires that the testator himself sign the will, or if
he cannot do so, the testator's name must be written by
some other person in his presence and by his express
direction.
- The present law, Article 805 of the Civil Code, in part
provides as follows: “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 witness in the presence
of the testator and of one another.”
- Note that the old law as well as the new requires that the
testator himself sign the will, or if he cannot do so, the
testator's name must be written by some other person in his
presence and by his express direction.
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Nera v. Rimando, 18 Phil. 450
- The true test of 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 been seen
each other sign, had they 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.
Taboada v. Rosal, 118 SCRA 195
- When the testator signs at the left hand margin of the
last page instead of the attestation clause, it is considered
an unsubstantial defect which must be ignored in order to
fulfill the wishes of the decedent.
Defects:
1. No indication of total number of pages = disposition stated
total number of pages;
2. Signature of testatrix at the left hand margin and not at the
end = it is an unsubstantial defect which may be ignored.
Echavez v. Dozen Construction, G.R. No. 192916,
October 11, 2010
- An acknowledgment is made by one executing a deed,
declaring before a competent officer or court that the deed or
act is his own. On the other hand, the attestation of a will
refers to the act of the instrumental witnesses themselves
who certify to the execution of the instrument before them
and to the manner of its execution.
- An attestation must state all the details the third
paragraph of Article 805 requires. In the absence of the
required avowal by the witnesses themselves, no attestation
clause can be deemed embodied in the Acknowledgement
of the Deed of Donation Mortis Causa.
In re Enrique Lopez. Lopez v. Lopez, G.R. No. 189984,
November 12, 2012
- The law is clear that 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. It held that while Article 809 of the same Code requires
mere substantial compliance of the form in Article 805, the rule only
applies if the number of pages is reflected somewhere else in the will
with no evidence aliunde or extrinsic evidence required. While the
acknowledgment portion stated that the will consists of 7 pages
including the page on which the ratification and acknowledgment are
written, the RTC observed that it has 8 pages including the
acknowledgment portion. As such, it disallowed the will for not
having been executed and attested in accordance with law.
Icasiano v. Icasiano, 11 SCRA 422
- The prevailing policy is to require satisfaction of the
legal requirements in order to guard against fraud and bad
faith but without undue or unnecessary curtailment of
testamentary privilege.
- 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. Impossibility
of substitution of this page is assured not only the fact that
the testatrix and two other witnesses did sign the defective
page, but also by its bearing the coincident imprint of the
seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses.
- 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
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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 Witnesses to a will
statutory requisites. The prevailing policy is to require
satisfaction of the legal requirements in order to guard a. Who are competent?
against fraud and bad faith but without undue or
unnecessary curtailment of testamentary privilege. Article 820. Any person of sound mind and of the age of
- The law should not be so strictly and literally interpreted eighteen years or more, and not blind, deaf or dumb, and
as to penalize the testatrix on account of the inadvertence able to read and write, may be a witness to the execution of
of a single witness over whose conduct she had no control,
a will mentioned in article 805 of this Code. (n)
where the purpose of the law to guarantee the identity of
the testament and its component pages is sufficiently
Article 821. The following are disqualified from being
attained, no intentional or deliberate deviation existed, and
the evidence on record attests to the full observance of the witnesses to a will:
statutory requisites. The prevailing policy is to require
satisfaction of the legal requirements in order to guard (1) Any person not domiciled in the Philippines;
against fraud and bad faith but without undue or
unnecessary curtailment of testamentary privilege. (2) Those who have been convicted of falsification of a
document, perjury or false testimony. (n)
Cruz v. Villasor, 54 SCRA, 31
- The notary public before whom the will was Article 824. A mere charge on the estate of the testator for
acknowledged cannot be considered as the third instrumental the payment of debts due at the time of the testator's death
witness since he cannot acknowledge before himself his having does not prevent his creditors from being competent
signed the will. witnesses to his will. (n)
Gabucan v. Manta, 95 SCRA 752 b. Supervening incompetency.
- If the will bears no required documentary stamp, the
court should not dismiss the probation of a will but rather Article 822. If the witnesses attesting the execution of a will
require the petitioner to affix the required documentary are competent at the time of attesting, their becoming
stamp to the notarial acknowledgment of the will. subsequently incompetent shall not prevent the allowance of
the will. (n)
Javellana v. Ledesma, 97 Phil. 258
- The New Civil Code does not require that the signing of
the testator, witnesses and the notary be accomplished in one single
c. Competency of interested witness.
act. All that is required is that every will must be acknowledged
before a notary public by the testator and witnesses.
Article 823. If a person attests the execution of a will, to
whom or to whose spouse, or parent, or child, a devise or
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legacy is given by such will, such devise or legacy shall, so
far only as concerns such person, or spouse, or parent, or
child of such person, or any one claiming under such person
or spouse, or parent, or child, be void, unless there are three
other competent witnesses to such will. However, such
person so attesting shall be admitted as a witness as if such
devise or legacy had not been made or given. (n)
3. Special Requirements for deaf, deaf-mute & blind
testators.
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. (n)
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. (n)
Garcia v. Vasquez, 32 SCRA 489
- Art. 808 of the NCC provides that: “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.” The rationale behind the
requirement of reading the will to the testator if he is blind or
incapable of reading is to make the provisions thereof known
to him, so that he may able to object if they are not in
accordance with his wishes. The aim of the law is to ensure
that the dispositions of the will are properly communicated to
and understood by the handicapped testator, thus, making
them truly reflective of his desire.
4. Substantial Compliance.
Article 809. 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. (n)
C. Holographic Wills
1. General requirements.
Article 804. Every will must be in writing and executed in a
language or dialect known to the testator. (n)
2. Specific requirements.
Article 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. (678, 688a)
Article 812. In holographic wills, the dispositions of the testator
written below his signature must be dated and signed by him in order
to make them valid as testamentary dispositions. (n)
Article 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
disposition has a signature and a date, such date validates the
dispositions preceding it, whatever be the time of prior dispositions.
(n)
Roxas v. De Jesus, 134 SCRA 245
- A date containing the month and year, without indicating the
specific day, is valid compliance with art 810 (holographic
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will must be dated) there being no appearance of fraud, bad
faith, undue influence and pressure.
Kalaw v. Relova, 132 SCRA 237
- As a general rule only parts which are under erasures,
corrections, and interlineations made by the testator in a
holographic will litem not been noted under his signature
shall be deemed void, HOWEVER if those particular words
are erased or corrected if made void would not leave the will
with anything to stand on, is shall be void as a whole.
V. INCORPORATION OF DOCUMENT BY REFERENCE.
Article 827. If a will, executed as required by this Code, incorporates
into itself by reference any document or paper, such document or
paper shall not be considered a part of the will unless the following
requisites are present:
(1) The document or paper referred to in the will must be in existence
at the time of the execution of the will;
Article 825. 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 explained, added to, or
altered. (n)
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. (n)

(2) The will must clearly describe and identify the same, stating B. Solemnities. Art. 826
among other things the number of pages thereof;
Article 826. In order that a codicil may be effective, it shall be
(3) It must be identified by clear and satisfactory proof as the executed as in the case of a will. (n)
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 VII. REVOCATION OF WILLS AND TESTAMENTARY
inventories. (n) DISPOSITIONS

A. Definition of revocation
VI. CODICILS
B. When may revocation be effected.
A. Definition. Art. 825, 830
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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. (737a)
C. Law governing revocation.
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. (n)
D. Modes of revocation.
Article 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
Casiano v. CA, 158 SCRA 451
(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. (n)
Gago v. Mamuyac, 49 Phil. 902
- Where the will which cannot be found is shown to
have been in possession of the testator, when last
seen, the presumption is, in the absence of other
competent evidence, that the same was cancelled or
destroyed;
- The fact that such cancellation or revocation has
taken place must either remain unproved or be
inferred from evidence showing that after due search
the original will cannot be found.
- In view of the fact that the original will of 1919 could
not be found after the death of the testator Miguel
Mamuyac and in view of the positive proof that the
same had been cancelled, the Court is of the
conclusion that the will presented for probate had
been cancelled by the testator in 1920.
- Duplicate copy of a will may be admitted in evidence
when it is made to appear that the original has been
lost and was not cancelled or destroyed by the
testator.
- In this case, while animus revocandi or the intention to
revoke, may be conceded, for that is a state of mind, yet the
requisite alone would not suffice. Animus revocandi is only
one of the necessary elements for the effective revocation of
a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the testator
or by another person in his presence and under his express
direction.
- There is paucity of evidence to show compliance with these
requirements. For one, the documents or papers burned by
Adriana’s maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana
Maloto. For another, the burning was not proven to be under
the express direction of Adriana.
E. Effect of revocation.
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Article 831. Subsequent wills which do not revoke the previous ones
in an express manner, annul only such dispositions in the prior wills
as are inconsistent with or contrary to those contained in the later
wills. (n)
Article 832. A revocation made in a subsequent will shall take effect,
even if the new will should become inoperative by reason of the
incapacity of the heirs, devisees or legatees designated therein, or
by their renunciation. (740a)
Article 833. A revocation of a will based on a false cause or an illegal
cause is null and void. (n)
Article 834. The recognition of an illegitimate child does not lose its
legal effect, even though the will wherein it was made should be
revoked. (741)
Molo v. Molo, 90 Phil. 3
- This doctrine is known as that of dependent relative
revocation, and is usually applied here the testator cancels
or destroys a will or executes an instrument intended to
revoke a will with a present intention to make a new
testamentary disposition as a substitute for the old, and the
new disposition is not made or, if made, fails of effect for
same reason. The doctrine is limited to the existence of
some other document, however, and has been applied
where a will was destroyed as a consequence of a mistake
of law.
- Revocation of the first will, will be conditional and dependent
upon the efficacy of the new disposition; and if, for any
reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains
in full force.
F. Doctrine of Dependent Relative Revocation
VIII. REPUBLICATION AND REVIVAL OF WILLS
Article 835. The testator cannot republish, without reproducing in a
subsequent will, the dispositions contained in a previous one which
is void as to its form. (n)
Article 836. The execution of a codicil referring to a previous will has
the effect of republishing the will as modified by the codicil. (n)
Article 837. If after making a will, the testator makes a second will
expressly revoking the first, the revocation of the second will does
not revive the first will, which can be revived only by another will or
codicil. (739a)
IX. ALLOWANCE OF WILLS.
Article 838. No will shall pass either real or personal property unless
it is proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance of wills after the
testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of Court as
may be necessary for the allowance of wills on petition of the
testator.
Subject to the right of appeal, the allowance of the will, either during
the lifetime of the testator or after his death, shall be conclusive as to
its due execution. (n)
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A. Concept of probate
Agtarap v. Agtarap, G.R. No. 177099 and 177192, June
8, 2011
- GEN RULE: The jurisdiction of the trial court,
either as a probate or an intestate court, relates only
to matters having to do with the probate of the will
and/or settlement of the estate of deceased persons,
but does not extend to the determination of
questions of ownership that arise during the
proceedings.
- As held in several cases, a probate court or one
in charge of estate proceedings, whether testate or
intestate, cannot adjudicate or determine title to
properties claimed to be a part of the estate. All that
the said court could do as regards said properties is
to determine whether or not they should be included
in the inventory of properties to be administered by
the administrator.
- EXCEPTIONS: (1) the probate court may
provisionally pass upon in an intestate or a testate
proceeding the question of inclusion in, or exclusion
from, the inventory of a piece of property w/o
prejudice to the final determination of ownership in a
separate action; (2) if the interested parties are all
heirs to estate, or the question is one of collation or
advancement, or the parties consent to the
assumption of jurisdiction by the probate court and
the rights of third parties are not impaired, then the
probate court is competent to resolve issues on
ownership.
B. Necessity of probate
De Borja v. De Borja, 46 SCRA 577
- Probate of a will is MANDATORY when the heirs
SETTLE and DISTRIBUTE the estate of the
decedent.
- Probate of will is NOT NECESSARY in the
CONVEYANCE of SHARE as a hereditary share in a
decedent’s estate is transmitted or vested
immediately from the moment of the death of such
predecessor in interest.
- Probate of will is NOT NECESSARY in the
CONVEYANCE of share belonging to a compulsory
heir; the compulsory heir’s successional interest
exists independent of the will and would exist even if
such will were not probated at all.
- A hereditary share in a decedent’s estate is
transmitted or vested immediately from the moment
of the death of the decedent (w/ requisite contracting
capacity) disposing of his/her hereditary share
immediately after such death, even if the actual
extent of such share is not determined until the
subsequent liquidation of the estate.
- It is likewise worthy of note in this connection that
as the surviving spouse of Francisco de Borja,
Tasiana Ongsingco was his compulsory heir under
article 995 of the NCC.
C. Modes of probate
D. Requirements for probate.
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Article 811. In the probate of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and signature of
the testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three of
such witnesses shall be required.
In the absence of any competent witness referred to in the preceding
paragraph, and if the court deem it necessary, expert testimony may
be resorted to. (619a)
Gan v. Yap, 104 Phil 509
- The courts will not distribute the property of the
deceased in accordance with his holographic will, unless
they are shown his handwriting and signature.
- The execution and the contents of a lost/destroyed
holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will.
- In the case of a lost will, the three subscribing witnesses
would be testifying to a fact which they saw, namely the act
of the testator of subscribing the will; whereas in the case of
a lost holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an
opinion which can not be tested in court, nor directly
contradicted by the oppositors, because the handwriting
itself is not at hand.
Rodelas v. Aranza, 119 SCRA 16
- Pursuant to Art. 811 of the Civil Code, probate of
holographic will is the allowance of the will by the court after
its due execution has been proved.
- The probate may be uncontested or not. If uncontested,
at least one identifying witness is required and, if not witness
is available, experts may be resorted to. If contested, at least
three identifying witnesses are required.
- However, if the holographic will has been lost/destroyed
and no other copy is available, the will cannot be probated
because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the
testator and the handwritten will. But, a photostatic copy or
xerox copy of the holographic will may be allowed because
comparison can be made with the standard writings of the
testator.
Azaola v. Singson, 109 Phil. 102
- Whether the will is contested/not contested, Art. 811 of
the NCC cannot be interpreted as to require the compulsory
presentation of three witnesses to indentify the handwriting
of the testator, under penalty of having the probate denied.
- The three-witness rule in Art. 811 (when contested) can
be considered mandatory only in the case of ordinary
testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (Art. 810), and the
rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.
Codoy v. Calugay, 312 SCRA 333
- Art. 811 is mandatory. The word “shall” in a statute
commonly denotes an imperative obligation and is
inconsistent with the idea of discretion and that the
presumption is that the word “shall,” when used in a statute
is mandatory.
Uy Kiao Eng v. Nixon Lee, G.R. No. 176831, January 15,
2010
- The remedy of mandamus cannot be availed of by a
person seeking for the production of the original copy of a
holographic will because there lies another plain, speedy
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and adequate remedy in the ordinary course of law by virtue
of Rule 76, Sec. 1 and Rule 75, Secs. 2-5.
Palaganas v. Palaganas, G.R. No. 169144, January 26,
2011
- Our laws do not prohibit the probate of wills executed by
foreigners abroad although the same have not as yet been
probated and allowed in the countries of their execution. A
foreign will can be given legal effects in our jurisdiction. Art.
816 of the Civil Code states that the will of an alien who is
abroad produces effect in the Philippines if made in
accordance with the formalities prescribed by the law of the
place where he resides, or according to the formalities
observed in his country.
- Our rules require merely that the petition for the
allowance of a will must show, so far as known to the
petitioner: (a) jurisdictional facts; (b) the names, ages, and
residences of the heirs, legatees, and devisees of the
testator or decedent; (c) the probable value and character of
the property of the estate; (d) the name of the person for
whom letters are prayed; and (e) if the will has not been
delivered to the court, and the name of the person having
custody of it.
E. Effect of allowance of wills
Gallanosa .v. Arcangel, 83 SCRA 676
- The 1939 decree of probate is conclusive as
to the due execution or formal validity of the will.
That means that the testator was of sound
disposing mind at the time when he executed
the will and was not acting under duress,
menace, fraud or undue influence; that the will
was signed by him, in the presence of the
required number of witnesses, and that the will
is genuine and not a forgery. Accordingly, these
facts cannot again be questioned in subsequent
proceeding, not even in a criminal action for the
forgery of will.
De la Cerna v. Leonides, 129 SCRA 33
Roberts v. Leonides, 129 SCRA 33
- The probate of the will is mandatory. It is
anomalous that the estate of a person who died
testate should be settled in an intestate
proceeding. Therefore, the intestate case should
be consolidated with the testate proceeding and
the judge assigned to the testate proceeding
should continue hearing two case.
Nepomuceno v. Ca, 139 SCRA 206
- Citing Nuguid v. Nuguid: “In view of certain
unusual provisions of the will, which are of
dubious legality, and because of the motion to
withdraw the petition for probate, the trial court
acted correctly in passing upon the will’s intrinsic
validity even before its formal validity had been
established. The probate of a will might become
an idle ceremony if on its face, it appears to be
intrinsically void.
- Where practical considerations demand that
the intrinsic validity of the will be passed upon,
even before it is probated, the court should meet
the issue.
X. DISALLOWANCE OF WILLS.
Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
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(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. (n)
Article 1335. There is violence when in order to wrest consent,
serious or irresistible force is employed.
There is intimidation when one of the contracting parties is
compelled by a reasonable and well-grounded fear of an imminent
and grave evil upon his person or property, or upon the person or
property of his spouse, descendants or ascendants, to give his
consent.
To determine the degree of intimidation, the age, sex and condition
of the person shall be borne in mind.
A threat to enforce one's claim through competent authority, if the
claim is just or legal, does not vitiate consent. (1267a)
Article 1337. There is undue influence when a person takes improper
advantage of his power over the will of another, depriving the latter of
a reasonable freedom of choice. The following circumstances shall
be considered: the confidential, family, spiritual and other relations
between the parties, or the fact that the person alleged to have been
unduly influenced was suffering from mental weakness, or was
ignorant or in financial distress. (n)
Article 1338. There is fraud when, through insidious words or
machinations of one of the contracting parties, the other is induced to
enter into a contract which, without them, he would not have agreed
to. (1269)
Pascual v. de la Cruz, 28 SCRA 421
- Contradictions and inconsistencies appearing in the
testimonies of the witnesses and the notary, pointed out
by the oppositors-appellants, relate to unimportant
details of the impressions of the witnesses about certain
details which could have been affected by the lapse of
time and the treachery of human memory, and which
inconsistencies, by themselves, would not alter the
probative value of their testimonies on the due execution
of the will.
- For purposes of determining the due execution of a
will, it is not necessary that the instrumental witnesses
should give an accurate and detailed account of the
proceeding, such as recalling the order of the signing of
the document by the said witnesses. It is sufficient that
they have seen or at least were so situated at the
moment that they could have seen each other sign, had
they wanted to do so.