SUCCESSION Article 775.
In this Title, “decedent” is the general term applied to the person whose property is
 The right to private property as a theory that underlies succession is on the basis of the attribute
of ownership. One of the attributes of ownership is the right to dispose of the property.
o The right to private property is a consequence on the attribute of ownership which is the right
to dispose of the property that one owns.
o The owner of the private property would dispose his property to the transferor whom he
desires. (That is what we have testate succession. Even if the transferee is not a relative or not
an heir of the transferor, he can do so as long as he likes, as long as he desires by way of a will.
 In contrast of this right, is the right of the family. The right of the family as basis or as underlying
theory in succession.
o Wherein it arises as a result of the natural consequence of a person who prefers a member of
the family or who prefers relatives being closely related as the one who should receive the
inheritance.
o In the Philippines, family is very close to each other, so a person or parent would want that
before leaving this earth, he want or desires that his children is financially capable and
financially stable. that’s why he prefers that his property should be inherited by his children.
o The principle of the right of the family is a recognition of the natural law of consanguinity or a
blood in the natural affection of a person towards who nearest him (relatives, heirs, children)
o The right of the family is a natural consequence of blood relationship. Therefore it results to
intestate succession. Wherein, regardless of whether there is a will or not, the family, the heirs
would have to inherit.
 Socio-economic theory
o What the testator would want or desires or he anticipates that this person whom he desires to
inherit his property would continue to cultivate the property and would make the property be
productive.
o The testator or the deceased person would prefer that the property should be transferred to
the person whom he thinks will continue to make productive and continue to cultivate the
property which is essential from standpoint to enable social economic to the firm.
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
o Succession as a mode of acquisition of property.
o Be it a real property, a personal property, it may be a tangible or intangible.
o Aside from property, what are to be transmitted are rights and obligations, and this consist of
so called inheritance.
transmitted through succession, whether or not he left a will. If he left a will, he is also called the
testator.
Article 776. The inheritance includes all the property, rights and obligations of a person which are
not extinguished by his death
o The inheritance of a person is composed of the properties, rights, and obligations that exist at
the time of his death.
o But as to rights and obligations which are not extinguished so that it can be transferred or
transmitted to the heirs.
o GR: rights and obligations which are personal to the decedent are extinguished upon his death
(which are personal to the decedent – e.g. the right to hold office)
 Even in corporations, it does not necessarily follow that it follows that the decedent will
occupy the position
In a case of an obligation which is not transmittable is the obligation to support.
o If the person has an illegitimate child, during his lifetime he supports the illegitimate, but upon
his death, the remaining heirs of the decedent will not be liable to pay support to the
illegitimate because the obligation to support is personal to the decedent.
In a case of criminal liability, during the lifetime of a father, there is a pending case of estafa, and
upon his death, we know that one of the instances which extinguish a criminal liability is death.
Because a criminal liability is extinguished upon the death of a person because it is personal upon
him.
In a case of civil obligation
o The person has incurred a loan and there is a pending case, there will be substitution. The
heirs will be substituted as defendant. In the event there is judgment and the judgment is
against the defendant. Will the heirs be liable to pay the judgment obligation? It depends. That
is if the person or defendant who died had sufficient inheritance which was left by him. If there
is no sufficient inheritance, the heirs is liable to pay to the extent of the inheritance.
 The creditors cannot go after the personal assets of the heirs. In the event that the value of
the inheritance is not sufficient to cover the decedent.
o If insolvent upon his death, and the son who is a businessman has the capacity to pay, now the
creditor sends the demand letter the son to pay the loan incurred by his father. The son
refused to pay, as a result, the creditor went to court and filed a case for collection. Will the
case proper?
 No. Because the father who incurred the loan has no inheritance, has no property to cover
the loan. The creditor cannot go after the personal assets of his father who died insolvent.
Article 777. The rights to the succession are transmitted from the moment of the death of the
decedent.
 o There is no problem when it regards to death.
o Applies not only to actual death, it applies to presumptive death.
o Presumptive death – we have to wait (maybe the person will return)
 For purposes of opening succession, if it is presumptive death, teh heirs has to wait before
the distribution of the inheritance.
2 kinds of presumptive death
a) Ordinary – how many years would you wait? The heirs should wait for 10 years before they
distribute the property or the inheritance left by them
o Exception: person who left is already 75 years old and he did not return, the heirs will have to
wait for 5 years
b) Extraordinary – the person died who is a member of the Philippine Army, you are to wait for 4
years
Under the Family Code, you have a declaration of presumptive death, if you want to remarry, you
will have to wait for 7 years for ordinary and also for extra-ordinary.
What makes article 777 relevant? death as the reckoning in order that successional rights should
open
o Meantime that the person is still alive, even if he is an only child, can the child sell the property
even if the testator is still alive? NO. Because meantime that the testator is alive, what the
child has is the inchoate right or a future right or a right that is still pending.
o In the meantime that you don't have that full ownership over the property and you cannot
dispose of that property. You have to wait until the death of the testator.
By will or by operation of law - if the decedent left a will, he is considered as a testator; if he left
no will, succession will take place by operation of law and we call it legal succession.
Article 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed
3 kinds of succession:
a) Testamentary – when a person left a will
b) Intestate or legal – when a person left no will but the will is not disposed of the properties of
the testator
o A will it does not necessarily mean that there is disposal of properties. In a will, the testator
would include his will his desires or the manner of disposing his own body and also
properties.
c) Mixed - there is a will but in the will, there is disposition of inheritance of the estate but not all
properties are not disposed of. Therefore, that portion of the inheritance which is not disposed
of by will, will be disposed by operation of law.
When one is to inherit and there is a will, if one inherits a particular real property, the heir or
transferee is considered as devisee. And if one is to inherit a particular personal property
(whether tangible or intangible), the heir or transferee is considered as legatee.
o If a person inherits a particular real property, the inheritance is considered as devise, while the
transferee is considered as devisee.
The institution of heirs known as devisee or legatee, this happens only by virtue of a will. There
can be no institution of a devisee or legatee if there is no will.
o This is what we call voluntary heirs.
Who are compulsory heirs? The children of the testator, the husband, the surviving spouse.
o In the absence of children, parents are compulsory heirs. If there are children, parents are
excluded.
Voluntary heirs becomes an heir because of a will. Absence of a will, there can be no voluntary
institution of heirs. Unlike in compulsory heirs, because whether or not there is a will, compulsory
heirs will have to inherit because there is that so-called legitime which is reserved to the
compulsory heirs.
Legitime - portion of the inheritance which is reserved for compulsory heirs so that it should not
be given or distributed to non - compulsory heirs or to anybody.
Aside from a devisee or transferee who inherits a particular real or personal property, the
institution of an heir is to an aliquot part of the inheritance or a portion of an inheritance.
o e.g. the institution is 1/3. A, B, C, are instituted as heirs to 1/4, 1/3, and 1/4 of the inheritance,
so that institution of heirs would inherit by universal title. Unlike if one is institution as a
legatee or devisee because you inherit by a particular title, if you inherit a aliquot part of the
inheritance, one inherits by universal title.
What makes the distinction between voluntary heirs as legatee or devisee when one inherits by
universal title?
o So the distinction becomes relevant in case of preterition or in case of disinheritance by
imperfect or defective disinheritance.
 Preterition – situation wherein the decedent will omit from inheriting a compulsory heir of
the direct line (e.g. children, and in the absence of children - parents)
 If you will omit is your husband, he is a compulsory heir but he is not a compulsory heir
of the direct line, there is no preterition.
 In preterition, it may be with intent or unintentional. It may be with reason or no cause
at all.
Difference between preterition and disinheritance?
o In disinheritance, there must be a cause, and this cause is provided for by law. While in
preterition, the decedent will omit from inheriting a compulsory heir of the direct line.
 If disinheritance is without cause or it has not been proven, (e.g. the disinheritance by
reason of an attempt of the life of the testator) – the child was disinherited because of the
acts of the child, but it was not proven that indeed the child attempted to took the life of
the testator. In this case, there is the so-called imperfect disinheritance, and the heir
should get the share in the inheritance.
 From where will he get the share? The relevance between an heir who inherits by universal
title because in the case of preterition and an imperfect disinheritance, the institution of an
heir by universal title is annulled and it becomes void. While institution as a devisee or
legatee remains valid as long as the legacy is not inofficious. (meaning that despite the
devise and legacy, there is still inheritance that can be given to the impertectly disinherited
heir or omitted heir.
Relevance of the difference between an instituted heir by universal title and instituted heir of a
particular title (devisee or legatee) because in case of preterition or an imperfect disinheritance,
the legacy or devise will remain valid as long as it is not inofficious.
o If the heir is instituted by universal title, that institution shall be annulled in case of preterition
of a compulsory heir of a direct line or in a case of imperfect disinheritance because in order to
give way to the imperfectly disinherited heir because they are entitled to the inheritance.
Article 779. Testamentary succession is that which results from the designation of an heir, made in
a will executed in the form prescribed by law.
Article 780. Mixed succession is that effected partly by will and partly by operation of law.
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.
o Situation wherein the testator makes a will, but after executing a will, he acquired more
properties not included in the will.
o The inheritance of a person includes not only the property and transmittable rights and
obligation existing at the time of his death but by those which had accrued thereto since the
opening of succession.
 e.g. you have real property (apartment) and in have rentals, what is included in the will is
the apartment, and after his death, there are accrued rentals to be collected. Who is
entitled to the rentals? it belongs to the estate and it becomes part of the inheritance
because of Article 781.
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.
o In testamentary succession, it is by way of will.
o 2 kinds of wills:
a) Notarial – there are formalities required for their validity. Witnesses are required.
b) Holographic – what is required is it must be handwritten by the testator himself, from
beginning to end and signed by the testator and dated by the testator. No witness
required.
Article 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.
o Future inheritance cannot be the subject of a contract.
o It makes mention that future inheritance cannot be the subject of a contract except it is
expressly authorized by law. And this exception refers to another form of succession which is
referred to as contractual succession – which refers to marriage settlement between future
husband and wife.
o It is said that the matter on marriage settlement executed before the celebration of the
marriage constitutes not only an exception to Article 1347. It is not only an exception to 1347
but it is in realty or actually a contractual succession.
o Before the Family Code, marriage settlement is allowed under Article 130 of the FC. Since
Article 130 has been repealed and enactment of the Family Code, so what governs now is the
Family Code.
o The law that authorized contractual succession is provisions of the Family Code.
Corpse in succession – can it be the object of a property in donation mortis cause or donation as an
act inter vivos? NO.
act inter vivos – donate
donation mortis cause - death
If the person would want to include in his will the manner of disposing his dead body, it can be.
But in terms of donation, it cannot be.
o Exception RA 349 as amended by RA 1056 wherein it recognizes the validity of an
authorization given by a person to make use of his corpse or organ for medical, scientific, and
surgical purposes.
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 his estate, to take effect after his death.
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.
Will is a personal act on the part of the testator.
o In succession, if there is a will executed by the testator, the transferror or the will is considered
as a testamentary succession. And the execution of a will, according to 784 is stricly a personal
act.
o He cannot be left in whole or in part and the execution of the will cannot be made dependent
on the execution of a 3rd party, or it can be accomplished through th instrumentality of an
agent or an attorney.
o As a personal act, the succeeding article 785 and 786 is an effect of the will being a personal
act on the part of the testator.
Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the
determination of the portions which they are to take, when referred to by name, cannot be left to
the discretion of a third person.
Article 786. The testator may entrust to a third person the distribution of specifi c property or sums
of money that he may leave in general to specifi ed 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.
Article785 enumerates in absolute terms act that are considered testamentary in nature.
What are these acts?
o The designation of heirs, devises, or legatees
o Duration or efficacy (when would the will be taken effect)
o Determination of the portion on which they will take
 These are considered acts that are testamentary in nature (they cannot be referred or
made by another for or in behalf of the testator) - it should be made by the testator
himself.
 The determination of his heirs is to be made by the testator himself. It should not be left to
another person. He has to decide what is the portion to be given to a specific person.
 When referred to by name, cannot be left on the discretion of a 3rd person.
 The 3rd person does not have a role in the execution of the will in so far as the
designation, the efficacy, the determination of the portion of the heir is to take because
the execution is personal to the testator.
In Article 768, it enumerates by way of exception things which the testator may do after
completing the determination of making a will, the testator may entrust to a 3rd person the
distribution of a specific property to sums of money that he may leave in general to specified
classes or causes.
The designation of the person, institution, or establishment to which such property or sums of
money are to be given or applied.
Articles 785 and 786 are not inconsistent. The determination of who will be the heirs, the
devisees, or legatees, and the portion for which this instituted heirs will receive is to be determine
by the testator.
Article 786 is an exception. The testator had already determine the heirs, legatees, or devisees,
but the details of which may be left by the testator to a 3rd person. that is after completing the
determination and the making of the will by the testator.
The testator entrust to a 3rd person the details thereof.
o e.g. in the will of the testator, he provides that he is giving a legacy of 50 million pesos to a
charitable institution for the purpose of the charitable institution to accommodate senior
citizens, located in Tacloban City.
 In Article 786, the testator may ask a friend to determine who would be this charitable
institution who caters the needs of SC located in TC. (there is the desire of the testator,
there is the determination of the testator to give a legacy of 50M to a charitable institution
who caters the needs of SC.) as long as the 3rd person whom the testator would ask to
determine to look for this charitable institution, it will be valid.
Article 796. All persons who are not expressly prohibited by law may make a will
GR: 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
Not allowed to make a will:
a) Who do not have a capacity to make a will (minors)
b) Those who are not of sound mind
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.
Refers to the condition in order to be considered as of sound mind for purposes of the
execution of the will.
 Circumstances for one who can be considered as sound mind.
The person may not in full possession of all his reasoning faculties.
It does not mean that the mind is wholly unbroken or unimpaired on unshattered by disease,
injury, or other cause.
o If a person suffered stroke, but then he knows what he is doing and what are the
consequences of executing a will, and knows who to give his properties. Will it be a valid
will? YES. because he has the capacity to execute a will because he is of sound mind.
To be of sound mind, it shall be sufficient if the testator at the time of making a will, soundness of
mind is determined when the testator knows the nature of the testate to be disposed of.
The testator knows the proper objects of his bounty. He knows who are those who expect from
him to inherit.
Character of testamentary act: the transfer of property shall take effect upon the death of the
testator and it is revocable during his lifetime.
o Even if the testator executes a will, one of the characteristics is it is ambulatory meaning at any
time, during the lifetime of the testator, the same can be altered and it can be changed.
 That is why we have a revocation of a will, the republication of the will because of this
character of a will which is ambulatory.
The requirements of the soundness of mind: take note that the testator know the nature of the
estate to be disposed of, the testator knows the proper object of his bounty, and knows the
character of the testamentary act.
In the same manner, if the testator would instead distribute his properties, even if he has children,
then there must be something in him.
Drunkeness – if it results to failure to know the testamentary act is an indication of unsoundness
of mind.
o However, on the other hand, if tipsy and executed a will, still you are considered as of sound
mind.
When one in a state of delirium, you are considered as of unsound mind.
Religious delusion – when one would say "distribute your properties to the poor because it will be
the end of the world and the Lord is coming" - the testator would be of sound mind because the
premise for which he executed the will and distributed his properties is something that is not yet
to come.
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.
There is presumption of every person to be 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 disposition is on the person who opposes on the probate of the will.
If the testator 1 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.
As a rule, the law presumes that every person is of sound mind in the absence of proof to the
contrary.
o Who has the burden of proof that the testator was not of sound mind? It is the person who
opposes on the probate of the will.
If a will is executed by the testator upon his death, that will has to be presented probate,
before distribution of properties pursuant to the will. The will has to be admitted probate and
approved by the court.
o The probate of the will, it is to be determined whether or not (one of the matters
established) is the determination whether the testator was of sound mind at the time of
execution.
o If there is opposition on the admission or on the approval of the will on the basis of the
testator is of unsound mind, at the time of the execution of the will, then the burden of
proof will be the oppositor.
Exception to the rule that it is the oppositor who has the burden of proof to establish that the
person was of unsound mind is when the testator a month or less before making his will, was
publicly known to be insane.
o The person who maintains the validity of will that the testator made it during a lucid
interval.
o The burden of proving whether or not the testator is of sound mind would be reverted or
transferred to the person who would want or maintains the validity of the will, and during
probate, he must prove that although a month before, the testator was publicly known to
be insane but he must be able to prove that the testator made the will during lucid interval.
 Lucid Interval – period during which a person of unsound mind has the capacity to enter into
contracts and he is aware or maintains consciousness.
o Period wherein a person although he is insane, there are times that he is of good disposition
and he is considered sane.
Article 801. Supervening incapacity does not invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity.
The reckoning point to determine the will executed validly, the determination of the elements
to determine the validity of the will should be at the time it was executed.
 o If at the time of the execution of a will, the testator was only 16 years old, he does not
have the capacity, and upon his death, he was already 60 years old. Will that will be
approved by the Court? No. Because the reckoning point is at the time of the execution of
a will.
In the same manner if the testator was of sound mind at the time of the execution of the will
but upon his death he has been publicly known that he become insane, and the will is
submitted for probate. Will the will be probated? YES. Because supervening incapacity does
not invalidate an effective will, because the reckoning point is at the time of the execution. At
the time of execution of the will, all the requisites for validity are present. But upon his death,
he becomes incapacitated.
Article 802. A married woman may make a will without the consent of her husband, and without
the authority of the court.
Article 803. A married woman may dispose by will of all her separate property as well as her share
of the conjugal partnership or absolute community property.
o If she makes a will, what he would disposed of is her separate property.
o 802 and 803 goes together.
o But if she makes a will, what she will disposed of will be her separate properties as well as her
share in the conjugal property or the community property.
o She should not disposed a property that does not belong to her.
o As long as what she would dispose of is her own separate property and her share in the
conjugal property of the community property.
Article 804. Every will must be in writing and executed in a language or dialect known to the
testator.
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.
From the phrase "every will rather than holographic will", it is clearly speaking of notarial will.
Requisites of a notarial will must be complied with.
Since the execution of a will is a statutory act, then it must be complied with the accordance of
the law.
Failure to comply is a ground for not admitting or not approving a will.
1st paragraph
Subscribed - mean - it must be signed
o After all the dispositions made by the testator, he must signed the will
o If and when the testator cannot sign because he is illiterate, then he can ask somebody to sign
for him or to sign for him in his presence and by his express direction.
Aside from the testator signing the will, it must be attested and subscribed by 3 or more credible
witness in the presence of the testator and of one another.
o It must be witnessed and it must be signed by 3 or more credible witness in the presence of
the testator or of one another.
As to signature, there is no rule for the signature to be professional, if the testator knows what he
knows as his signature as a cross mark "X", he used to sign with a cross mark, it is valid and
acceptable as long as it is his customary signature or if he does not known how to sign, thumb
mark can be acceptable.
In the case of 3 credible witnesses, the witnesses must sign the will in the presence of the testator
and of one another.
Does it mean that the testator and 3 witness should sign face to face or in the same table?
o It does not require that the testator and 3 witnesses would be actually seeing each other. But
what is required is the possibility of seeing each other without physical obstruction.
o The possibility that the witnesses see the other witnesses signed the will without any
obstruction.
When the testator sign the will in 1 table while the other witness are on the other table but in the
same room, the requirement on the presence of testator and one another is complied with.
o The testator is in a room where it is divided by a sliding door (glass) while the witnesses is in
another room with a divider which is a glass and sliding door and they see each other. Will it
comply with the requirement? Yes. So the possibility of the testator and subscribing witnesses
seeing the signing of the will without any obstruction.
o If there is an obstruction like in the testator is in the sala and the subscribing witnesses is in
the kitchen which is around 20 meters away, the requirement as to the presence of testator
and one another is not complied with because the possibility that the witnesses will not be
able to see the testator actually sign the will is possible.
If the testator cannot sign the will because he cannot read and write, this matter is to be indicated
or stated in the so called attestation clause.
Attestation clause is very important because it would serve as a permanent form or records as to
what happen during the execution of a will. It serves as a permanent form of record as to the facts
that attended to the execution of a will.
In the absence of proof, if it happens that the instrumental witness is no longer around or
available, during the probate of the will, what the court will refer to is the attestation clause.
The attestation clause is also required to render availble proof that there has been a compliance
with the requirements of the law in the execution of the will. This is done in order to minimize
fraud or undue influence on the part of the testator as he executes the will.
What are the matters on what to be included in the attestation clause?
o Is the fact that at the time of the execution of the will, the testator requested or asked
somebody to sign from him in his presence and in his express condition
o The attestation clause shall state the number of pages upon which the will was written. The
fact that the testator signed the will in every page thereof, or have some other person to write
his name under his express direction in the presence of instrumental witnesses, and the latter
witness will sign the will and every page thereof in the presence of the testator and of one
another.
In the attestation clause, it must state the number of pages in which the will has been written.
Why? Because in order to provide no substitution.
o The attestation clause is important in order to minimize fraud and what is presented in court
for probate is indeed the will executed by the testator.
If and when the will does not state the number of pages used, it is considered as a fatal defect in
the will.
o In several decisions of the SC, a will without indicating in the attestation clause the number of
pages is or has been null and void or inadmissible or not admissible in probate.
In the attestation clause that must be included is the fact that the testator signed the will and
every page thereof.
o In designing of the will, the testator must sign on the left margin, so it also the instrumental
witnesses. But on the last page of the will, normally, there appears the name of the testator
and the instrumental witnesses.
o They are to sign over an above their typewritten name.
The attestation clause likewise is to be signed and who is to signed in the attestation clause?
o The attestation clause is an act fo the testator and instrumental witnesses.
o That's why in the last sentence of Article 805 if the attestation clause is in a language not
known to the witness, it shall be interpreted to them. Because the attestation clause is
supposedly the act of the 3 or more witnesses. They are supposed to sign the attestation
clause.
 In the attestation clause, it provides that the matters took place during the execution of a
will, as witnessed by 3 or more credible witnesses.
 The testator need not sign the attestation clause. But if the will is only 1 page and the
testator sign and also the witnesses, it is okay.
Even if without the signature of the testator, it is fine because it is an act of the witnesses and it is
only the witnesses who are supposed to sign the testator.
The testator or the person requested by him to write his name and the instrumental witnesses of
the will, shall also sign for the aforesaid each and every page thereof except on the last on the left
margin and the page shall be number correlatively in letters placed on the upper part of each
page.
What is numbering all the pages of the will correlatively?
o This requirement is made in order to ensure that there is no substitution of the page.
o Example in numbering: page 1 of 10, and so on.
Before they sign the attestation clause, the witness must understand the contents of that clause.
o The witness of a will are witness to the signing by the testator of the will.
o It does not require that the credible witness to read the will as long as what is required is they
sign it in the presence of the testator. It is not necessarily that the credible witnesses read the
will.
o The testator is not obliged to sign the attestation clause. In the event or upon the death of the
testator, the will may be submitted for probate and it is the attestation clause together with
the witnesses who will testify during the probate.
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 fi le another with
the office of the Clerk of Court.
Acknowledgement before a notary public.
There are 3 things:
a) Subscription – signing of the testator and credible witness
b) Attestation – credible witnesses wherein they are to attest as to the facts and
circumstances that happen or transpired during the execution of the will of the testator
c) Acknowledgment before notary public
The notary public before whom the testator and credible witnesses appear to the will be
acknowledge may not be present during the execution of the will.
During acknowledgement, it does not require that the signing of the will be present.
 Acknowledgment – what happens? When a document is presented before a notary public, the
parties who executed a document appears before a notary public and they affirm and confirm and
they acknowledge that the document that they sign is the document and it is voluntary on the
part of the parties who have signed the document.
o When a document is acknowledged before a notary public, it becomes a public document.
 The notary public shall not be required to copy of a will.
 Normally, a notary public when it notarizes document retains a copy of the document
because under the Notarial Law, the notary public is required to submit a copy with the
office of the clerk of court who authorized him his commission as a notary public.
 It is not true in the case of a will because a will, although notarized is not considered as
a public instrument because the will is supposed to be secret.
Any time during the lifetime of the testator, it can be changed. Upon the death of the testator, it
may no longer be the will of the testator because he revoked a will. (That is why the notary public
is not required to have a copy of a will)
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.
If the testator is deaf or deaf-mute, he must personally read the will if able to do so.
Otherwise, he shall designate 2 persons to read it and communicate to him in some
practicable matter the contents thereof.
It proves that this kind of person is not disqualified to make a will as long as he has the
capacity to execute a will.
If he is illiterate, he has to designate 2 persons to read it and communicate to him in some
practicable manner the contents thereof.
For deaf mute, he must be communicated to him in order for the deaf mute to understand.
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.
If a testator is blind, the will should be read to him twice.
Once by one of the subscribing witness and then again by the notary public before whom the
will is being acknowledged
What is the difference between 807 and 808?
o The will is to be read by him by 2 persons designated by the deaf mute. It is not necessarily the
subscribing witnesses.
o But if the testator is blind, the will or provisions of the will are to be read to him twice and in
Article 808, it specifies who are to read the contents of the will of the blind testator.
o It should be somebody chosen by the testator whom the testator knows who can
communicate to him. One who is to read the contents of the will of the deaf mute should be
designated by the deaf mute or the deaf instead.
As to form in the execution of the attestation clause – it is to the form and the language it is used.
If and when there is defect in the substance in the execution of the will, then it is a different thing.
Article 809 is not applicable.
If and when in the attestation clause does not include facts and circumstances which transpired
during the execution of the will (e.g. if the person is blind and there is no reading in the contents
of the will by a notary public, then that matter is not included in the attestation clause then that is
a defect which is in substance.)
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.
Taboada vs. Rosal, G.R. No. L-36033, November 5, 1982
Liberal Construction – "the underlying and fundamental objective permeating the provisions
on the law on wills in this project consists in the liberalization of the manner of their execution
with the end in view of giving the testator more freedom in expressing his last wishes but with
sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator. This objective is in accord with
the modern tendency in respect to the formalities in the execution of a will"
While in Article 805, the testator is required to sign the will at the end of the will in the
presence of one another, it does not require in the subscribing witnesses and it does not
necessitate that the attesting witness will also sign the will at the end thereof.
o It is only the testator who is required to sign in the will thereof.
o Article 809 pertains a defect as to form in the attestaion as well as in the language in which
it is used.
 If there is substantial defect, e.g. there is no paging in the will, it is a fatal defect. But in
the case of Taboada, the will consisted only of 2 pages.
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.
Requirements in order to constitute a valid holographic will.
If in a holographic will, it requires witnesses. One of the differences between holographic and
notarial will is that it not be witnessed.
o Hologarphic will is entirely written, it is written and signed by the testator himself.
 o From beginning to end, it must be handwritten by the testator himself.
Another difference between the 2 is that in a notarial will, a date is not a must. It may be dated
but it is not required. But in a holographic will, it requires dating. Testator need to sign at the
end of the will.
There are advantages in the holographic will.
a) No other requirements needed except handwritten and dating and signing at the end of
the will. (Easier to execute)
b) Easier to keep secret because witnesses is not required
c) Easier to revise because in a notarial will, the testator make revocation of the will, he will
seek again other witnesses then the other witnesses must be complied with.
There are also disadvantages in the holographic will.
a) It is easier to forge because there is no witnesses to its execution
b) It may lead to misunderstanding and confusion. If the testator cannot express well, it may
result to a confusion
c) There is no assurance that undue influence, fraud, or pressure has been imposed upon the
testator because nobody can tell that the testator was intimidated.
If the holographic will will be probated upon his death, then that is a problem.
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.
A will is to be probated.
When we speak of the probate of will, it refers to the will being presented to the court of
competent jurisdiction in order to approve the will
No real or personal property is to be distributed pursuant to the will which is not admitted
probate.
If and when the will is not probated, then disposition in that will cannot be executed. There
can be no distribution of property pursuant to the will if and when there is no approval by the
Court.
Question: What court has the jurisdiction to approve and allow the will? It would depend on the
gross value of the estate.
o 1st level court (MTC) – has jurisdiction to approve probate or wills.
o For 1st level courts - increase to 2 million (here is already a law that increase or expand the
jurisdiction of 1st level courts)
 Below 2 million – first level court who would decide on whether or not to approve a will.
 Beyond 2 million - it will be the RTC
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.
Probate of a holographic will – requires 1 witness.
Who will be a witness in the holographic will when in the execution of the holographic will,
there is no witness?
o In the probate of a holographic will, witness is required. At least 1 witness if there is no
contest or opposed.
o What is to be testified by the witness? must categorically testify that he is familiar with the
handwriting of the testator and the signature.
o If there is no opposition, only 1 witness required.
o If there is opposition, at least 3 witnesses are required
 Nature of the testimony of the 3 witness is the same: all of them are familiar with the
handwriting of the testator and that of his signature.
If and when no one can be taken as a witness to the execution of a holographic will, the party
who would want to be probated may resort to expert witnesses (NBI or PNP)
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.
In a holographic will herein there is dispositions then the testator signed and put the date on
the will, after signing he put the date.
A will can be altered, changed or additions can be made.
o In order that additional dispositions below the signature of the testator would be valid, it
shall be signed and dated.
This makes the great relevance in a holographic will because in instances wherein the testator
would want to make an additional disposition or he wants to change his disposition with the
date, it will be determined which is his later desire and final wishes before his death.
Nobody can tell what the last desire of the testator is. It is only the date can could tell because
the later date is considered to be a final decision of the testator.
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 date, such date validates the dispositions
preceding it, whatever be the time of prior dispositions.
The situation in Article 813 is the testator is made a holographic will with 3 dispositions. He
signed and dated the will. After a year, he made an additional disposition. But this 4th
disposition, he signed but he did not date, then after another year, the testator made a 5th
disposition, this time he signed the disposition and signed.
The 4th disposition will be validated by the 5th disposition which is dated and signed by the
testator.
It will be different if the 3 dispositions signed but there is no date, and the 5th disposition,
signed with date. Will it validate the 4th disposition? No.
o The presumption in Article 813 is that there is a valid holographic will which has been
executed first and there is additional.
Article 813 contemplates of a situation wherein there is a valid will and additional disposition.
And if from the start, the will does not contain a date but there is a signature and there is
additional dispositions, it would not validate the 1st 3 dispositions.
Article 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the
testator must authenticate the same by his full signature.
An alteration and insertion must be authenticated by the full signature of the testator.
When we speak of signature of the testator, it refers to the customary signature of the
testator. (If the full signature is an X or checkmark, then it is considered as a full signature.)
Question: What if the witness is an heir of the testator, will it be valid? She can be a witness to the
holographic will since he must be familiar with the signature of his parent mother or mother.
De Jesus vs. De Jesus, G.R. No. L-38338, January 28, 1985
The application of Articles 809 and 810 where in SC considered as Feb 61 as a substantial
compliance of the requirements of Article 810.
Although complete date is desired, but the date is not complete.
Labrador vs. CA, 184 SCRA 170
Issue: Whether or not the date in the agreement as to the fish pond is would be considered as
a date? YES.
o Objector of the oppositor because to him it was not the date of the will. It was the date as
to the agreement in relation to the fish pond that was sold.
Ajero vs. C.A., G.R. No. 106720, September 15, 1994
It is only those that are not dated and signed by the testator that would be voided. If there are
several dispositions and among the dispositions especially that it is an additional disposition
and it is not signed and dated, then that portion which is not signed will be voided.
Same is true with erasures and insertions. There should be the full signature of the testator
and the date in order for the change to be valid.
WITNESSES TO WILLS
Article 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf
or dumb, and able to read and write, may be a witness to the execution of a will mentioned in
Article 805 of this Code.
It speaks of qualification in order that one could witness in the execution of a will.
Person must be of sound mind, 18 years of age, not blind deaf or dumb, and must be able to
read and write.
There are more qualifications to become a witness in the execution of a will than becoming a
testator himself. (because a testator, even if he is illeterate, he can be a testator. Even if he is
deaf and dumb, he can be a testator.
For a witness, he must not be blind, deaf, and dumb, and must be able to read and write.
Article 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document, perjury or false
testimony.
It refers to disqualification from being a witness to an execution of a will
(1) If the person is not a resident of the Philippines at the time of the execution of the will, he
is disqualified.
o Why? Because in a notarial will, most likely the subscribing witness are taking as witness
during probate.
o If that witness to the execution of the will is not a resident of the Philippines, how can he
possibly witness in the execution of that will and becoming a witness during its probate.
o If the person is not a resident of the Philippines, then he is disqualified.
(2) When the testator has been convicted with falsification of document, forgery, or false
testimony.
o So one of the 3 crimes are cosnidered to be crimes involving moral turpitude.
o Estafa, theft involves moral turpitude but they are not inculded in the enumeration in order
to be disqualified from witnessing in the execution of a will.
 If a person is convited with estafa, he is not disqualified because it is not included in the
enumeration.
Falsification of the document – whether private, public, or commercial, it does not matter as long as it
is falsified.
o Take note on the requirement of convicted (adjudged guilty of falsification of document,
forgery, or false testimony.
o If there is only a compliant against the witness and that complaint did not prosper because it
was dismissed or the case was acquitted, then Article 821 par. 2 will not apply.
IN RE Petition for the Probate of the Will of Consuelo Santiago Garcia vs. Natividad Garcia Santos,
G.R. No. 204793, June 8, 2020
Lawyers are not disqualified from becoming a witness to a will.
In this case, oppositor opposed to the execution of the will because according to them it was
forged, and the lawyers who witnessed to the execution of the will and the lawyer who
acknowledged or notarized the will is one of the friend of the proponent of the offer of the will
for probate.
SC said that all witnesses are lawyers and they are not disqualified from being witnesses, and
they are not interested.
Speaking of competent and credible. Are they synonymous? Article 820 and 821 speak of
qualifications and qualifications of a witness in order to be considered as competent.
 He must possess all the qualifications as provided for Article 820 and none of the
disqualifications as provided for Article 821.
 Competence and credibility are different things.
o Competence is provided for in Article 820 and 821.
o Credibility – when the witness is to testify in court. If his testimony is to be believed by the
Court.
 It is on the appreciation of the court of his testimony if he the court could give his testimony
the credibility and credence.
 In order that the will can be admitted probate, the witness can be both competent and
credible. But credibility comes when the witness is presented in court, because credibility
would depend on the appreciation of the court by his testimony.
 When the court would give weight on his testimony, then the witness is considered a credible
witness.
 Credibility will be determined when the witness is presented or testified during probate of the
will. When the court will give credence or weight in his testimony, then the witness is
considered credible.
 If it happens that the witness is not presented during probate, then credibility cannot be
determined because determination of credibility would come when that witness is presented.
o Take note in a probate of a notarial will, unlike a probate in holographic will, there is no
required number of witness.
o Out of at least 3 witnesses, the party who would petition the court for the probate of the
will may be able to present only 1 or 2. It doesn't mean that the execution of the will, there
are at least 3 credible witnesses, it doesn’t mean that these 3 credible witnesses should be
presented during probate.
Article 822. If the witnesses attesting the execution of a will are competent at the time of attesting,
their becoming subsequently incompetent shall not prevent the allowance of the will.
Just like the testator, the termination of qualifications of the testator is to be made during the
execution of the will. If the testator is competent to execute a will, then a subsequent
disqualification or incapacity would not result to the invalidity of the will.
For a witness who is qualified or competent at the time of the execution of the will, his or her
becoming incompetent after or later shall not prevent the allowance of the will.
On the other hand, if a will has been attested to by unqualified witnesses to witness in the
execution of the will, and upon the presentation of the probate, that witness is already
qualified, then at the same manner, that will is considered invalid and will not result to
invalidity of the will. (e.g. witnessed by a person whose age is below 18 years of age)
At the time of the presentation of the will for probate, the will is less than 18 years? Will it
result to the validity of the will when presented probate? No. If there only 3 witnesses and 1 of
the witness is only 15 years old at the time of attestation. Then it does not comply with the
requirements of the law that there must be at least 3 competent witness who would subscribe
or attest to the execution of the will.
o The reckoning time to determine whether the witness is competent or not is at the time of
the witnessing or at the time be attest to the execution of the will.
Gonzales vs. Court of Appeals, L-37453, May 25, 1979
The instrumental witness to be considered credible need not present evidence that he has a
good standing in the community. His testimony would be given credence of belief by the Court
because that person is presumed to be trustworthy or reliable unless there is proof to the
contrary.
Article 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or
child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns
such person, or spouse, or parent, or child of such person, or any one claiming under such person or
spouse, or parent, or child, be void, unless there are three other competent witnesses to such will.
However, such person so attesting shall be admitted as a witness as if such devise or legacy had not
been made or given.
Refers to a situation where the witness is also an heir. In that will wherein he is a witness,
there is a devise or legacy which is given to his spouse, parent, or child.
e.g. A is a witness to the execution of the will and in that will, tehre is a legacy that is given to
the mother of A. In so far as this disposition is concerned, of giving a devise to the mother of A
 is considered null and void. Because a witness cannot be considered an heir and that
disqualification or prohibition is extended to his spouse, parent, or children.
o However, if aside from A, this is good if there are only 3 witnesses. If there are more
witnesses, and A who is a witness, there is a devise given to his mother, then Article 823
will not apply.
Legacy or devise given to the mother of the witness is still valid. It doesn’t matter as long as there
are other witnesses to the execution of the will.
Even if A is disqualified by being a witness, there are still other witnesses because there are more
than 3 qualified witnesses aside from A.
Article 824. A mere charge on the estate of the testator for the payment of debts due at the time of
the testator’s death does not prevent his creditors from being competent witnesses to his will.
Situation wherein one of the witnesses to the execution of a will is a creditor, and in that will,
there is a disposition for the payment of an obligation belonging to these credible witness. Will
that witness be disqualified? No.
It is different if the witness creditor is to inherit. He is not inheriting, what the disposition for
the payment or settlement of the obligation due to the creditor witnesses.
o It doesn’t mean that the witness creditor is inheriting from the testator. He is allowed
because there is no such thing as the creditor witness is inheriting from the testator.
CONSTRUCTION OF WILLS
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.
It cannot be left in whole or in part in the discretion of a 3rd person or to be accomplished
through the instrumentality of an agent or attorney.
While Article 787 is not in itself a testamentary disposition, but then, in effect it will allow the
testator to have his will be determined by another person (3rd person) which is being
prohibited under Article 784.
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.
Interpretation of a will.
In Statutory Construction, a contract or a law has to be interpreted if there is doubt. If there is
no doubt, no interpretation is required.
In the same manner, a will, although it is not a contract has to be interpreted if there is doubt.
If the language of the will is clear and no doubt, no interpretation must be made because the
administrator or the court who would admit to the probate of the will has to give the will its
effectivity.
Interpretation and construction of a will is to the effect that it is valid so that testamentary
disposition is always preferred than intestate succession.
If a testamentary disposition admits of different interpretation, in case of doubt, interpretation
by which the disposition is to be operative shall be preferred.
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.
Refers to ambiguity in a will.
Doubts or things that may not be clear in a will, and these are classified into 2.
a) Latent or intrinsic ambiguity – These are the ambiguities which do not appear on the face
of the will itself. It will not show that there is doubt or discrepancy or confusion
b) Patent or extrinsic ambiguity – These are the ambiguities that appears on the will itself. It
will show that there is conflict, doubt, or confusion.
How can you cure a latent ambiguity?
When there imperfect description or when no person answers the description, mistakes and
omissions must be corrected if the error appears on the context of the will or from extrinsic
evidence excluding oral declaration.
To determine which is the desire of the testator. When it comes to latent ambiguity, the same
should be determined by extrinsic evidence or outside from the will itself excluding oral
declaration.
In order to determine what is the desire of the testator when there is an imperfect description
of the person or property that is distributed or disposed of or to whom the property is
disposed of, then there must be an extrinsic evidence to prove the desire of teh testator.
 In both extrinsic and intrinsic ambiguity, oral declaration is not allowed to determine the wish of
the desire of the testator. If one is to construe on the provision of a will, oral declaration is not
allowed.
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.
Words that are used in a will.
 Ordinary words should be given their ordinary meaning and technical words should be given
their technical meaning unless the context clearly indicates a contrary intention on the part of
the testator.
In all instances, we should remember is when there is interpretation of the provisions of the
will, you have always have to consider the intention of the testator (considered as golden rule)
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.
The words of a will are to receive an interpretation which will give to every expression some
effect rather than one that will render any of the expressions in operative. And in 2 modes of
interpretation of the will that is to be preferred in order to prevent intestacy.
Give rise to intestacy – not the preferred thing that the executor of the will has to do. He must
always consider the wish of the testator who gave him the trust to execute his will.
Leonor Villaflor Vda. De Villanueva vs. Delfin N. Juico, in his capacity as Judicial Administrator of the
testate estate of Fausta Nepomuceno ; G.R. No L-15737 ; Feburary 28, 1962
On the interpretation of the words use and possession.
When the husband executed a will, and his will there is a disposition wherein he gave certain
properties for his wife for her use and possession while still living and she does not remarry,
otherwise the properties shall pass to the grand niece of the testator.
The widow leave for 34 years and never remarry. The grandniece wanted to get said property.
It was contented that the widow never remarry, so the grandniecce cannot get the property.
SC said that the grandniece can get the property despite the fact that the widow never
remarry. It would have been differnet when the testator indicated in his will "ownership" over
the properties given to widow.
According to SC, use and possession is different from ownership. What did the widow have a
usufructuary interest over the property. While living, the widow could use and possess the
property but she did not own the property.
That is how the SC interpreted the disposition wherein it said that the widow would have the
use and possession of certain properties belonging to the testator while she is alive and not
remarry.
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.
If a disposition is invalid, then it may will not result to the invalidity of the other disposition
unless it is determined that the testator will not make the other disposition if the 1st
disposition is invalid.
Even if one disposition is invalid, it does not necessarily follow that the other disposition is
invalid.
o Exception: if the testator will not make a determination that the disposition is indivisible as
to the intent of the testator or as to the nature.
Article 793. Property acquired after the making of a will shall only pass thereby, as if the testator
had possessed it at the time of making the will, should it expressly appear by the will that such was
his intention
Speaks of after acquired property or after the execution by the testator of a will.
Question: If the testator executed a will today, and in his will, he disposed of 5 cars in favor of A. After
the execution of the will, the testator acquired more cars. And upon his death, he has 10 cars already.
Will A receive all 10 cars?
o Property acquired after the makeing of the will shall only pass thereby as if the testator has
possessed it at the time of making the will should it expressly appear by the will that such was
his intention.
o In other words, if it appears that it is the intention of the testator, to give A all the cars that he
have, then A will all get the 10 cars. But there is a contrary intention on the part of the
testator, only 5 cars will belong to A.
o If his intention is to give the 10 cars, he could have amended his will.
o We have to remember that a will is ambulatory
Article 794. Every devise or legacy shall convey all the interest which the testator could devise or
bequeath in the property disposed of, unless it clearly appears from the will that he intended to
convey a less interest.
 In the case of Vda. de Villanueva, althouth the testator owned the property which he gave to
his wife stating that use and possession or he gave usufructuary right. In the absence of a clear
disposition that the testator intends a less interest, then the interpretation of the willl should
be for the entire interest.
 e.g. if the testator is a partner in a partnership and he gives his share in the partnership. He
does not own the entire partnership, he owns only 3/4 of that partnership. If that share of the
testator is given to X, then interpreting the disposition, sicne he has 75% ownership in that
partnership, the intention must be to give X 75% of X over the partnership.
o But if it is clear that the testator intends to give 50% of the 75%, then the testator is giving
X a less interest over the partnership.
Article 795. The validity of a will as to its form depends upon the observance of the law in force at
the time it is made.
 The validity of the will as to its form depends upon the observance of the law in force and at
the time it is made.
 Speaking of extrinsic validity as to the form in the execution of the will, the laws that should be
follow is at the time of the execution of the law.
  The formal requisites that should be complied with by the testator is the law or the
requirements at the time he executed the will.
As long as the time of the execution of the will, the requirements have been followed by the
testator, even if later, there is more rigid requirements in the execution of the will, then the rigid
requirements will not apply or invalidate the will if and when at the time of the execution, there is
actually compliance with the formalities required by law.
Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the
forms established by the law of the country in which he may be. Such will may be probated in the
Philippines.
 Rule with regard to execution of a will by a Filipino who is in a foreign country.
For formalities in the execution of a will of a Filipino while in a foreign country, he can make a will
in any of the forms established by the law of the country in which he may be. And it can be
probated in the Philippines.
For a Filipino residing or staying temporarily in a foreign country, he can execute a will in
accordance to the laws with respect to formalities required by law of that country.
When it comes to intrinsic validity, Article 16 or the NCC will apply (Par.2).
Article 16. Real property as well as personal property is subject to the law of the country where it is
stipulated.
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.
But in so far is extrinsic validity, we have the successional rights.
o It must be in accordance with the national law of the Filipino.
If the Filipino would wish, while abroad, he executes a will following the laws of the Philippines.
Can he do so? Yes.
o It's either the laws of the country where he executes a will or Philippine laws as so far as
formalities is concerned.
Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this Code prescribes.
 We have an alien or a national of another country who executes a will abroad.
 It 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 Philippine laws.
1st is the place his residence
o An alien who executes a will may make a will in accordance with the laws prescribed by the
law of the place where he is a resident or domicile or he can execute in accordance with the
laws of the country of which he is a subject. If he comes to the Philippines, will the will be
admitted probate? Yes. As long as it complies with the requirements of the law of his country
in regard to intrinsic validity.
The choices or preferences as to execution of a will is only applicable with regard to formalities.
Article 817. A will made in the Philippines by a citizen or subject of another country, which is
executed in accordance with the law of the country of which he is a citizen or subject, and which
might be proved and allowed by the law of his own country, shall have the same effect as if
executed according to the laws of the Philippines.
 It simply provides for formalities of a will executed by an alien, a citizen of another country
which is executed in the Philippines but in accordance with the laws of the country in which he
is a citizen or country.
 It can be admitted probate in the Philippines. If and when the same could also be admitted
probate in his own country.
 It shall have the effect from being executed here in the Philippines according to the laws of the
Philippines.
He could follow the laws of the country where he is executing a will or he can follow the laws of
the Philippines. But with respect to intrinsic validity, he shall follow the laws of the Philippines.
If an alien executes a will abroad, he has preferences as to the execution of the will. He can follow
the formalities required by the law of the country in which he is a resident or in domicile or he can
follow the law of the country in where he is a citizen.
If an alien executes a will in the Philippines, he can follow the law of his nationality even if he
executes a will in the Philippines, or he can follow the laws of the Philippines in the execution of
the will. It can still be admitted probate in the Philippines.
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.
  Joint will are not allowed under our laws. (because it is based on the characteristic of a will
that a will is supposed to be a personal act)
o In order to reserve the secrecy of the will, public policy requires that persons should not
execute a joint will.
 Likewise, joint wills are prohibited, they are void in order to avoid undue influence to the more
aggressive party.
 In case of death or different times, it would be difficult to have the wills probated.
 Joint wills are wills that are found in the same instrument.
o Recitation: In a sheet of paper, one will was on the front, and the 2nd will was on the back,
this is a decision of the SC wherein it said that there are actually 2 wills. What is prohibited
is the execution of a will in 1 instrument wherein the signatures of the persons or testators
could be found in the same instrument.
o In the case wherein a will is on the 1st page, and another will on the other side, the SC said
that it is not a joint will. There are 2 will in a different side of the sheet of paper .
 Joint wills should be differentiated from reciprocal or mutual wills.
o Reciprocal or mutual wills happen or provides that the survivor of the testators will
succeed to all or some of the properties of the decedent.
o Different from joint will because the reciprocal will is executed in different instruments.
Although, the husband will state or dispose of his properties in favor of the wife. While in
another will, the wife will also dispose her properties in favor of the husband - it is a
reciprocal will.
Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country
shall not be valid in the Philippines, even though authorized by the laws of the country where they
may have been executed.
 Even if the Filipino executes a joint will in a foreign country where a joint will is allowed, the
same shall not be valid in the Philippines even though authorized by the laws of the country
where they have been executed.
 Even if the Filipino executes a joint will abroad, and in that place where the joint will is
executed it is allowed, when it comes to the Philippines for probate, the same shall not be
allowed.
 The prohibition pertains to Filipinos. This article does not cover aliens.
Ancheta vs. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006
 When it comes to an alien with regards to his intrinsic validity or dispositions in is will, it must
follow his national law.
Palaganas, et. al. vs. Palaganas, G.R. No. 169144, January 26, 2011
 When a will is executed abroad by an alien and it is brought in the Philippines without being
probate in a country where it is executed, the same could be probated in the Philippines.
 The SC had the opportunity of explaining between probate and reprobate.
o Reprobate – the will executed abroad has been admitted probate in that country where it
was executed. If it is for reprobate, what is to be proven is the fact that the will has been
probated in the foreign country.
 If it is probated for the 1st time, what is to be proven is the fact that the will has been
executed with the formalities required by law in the foreign coutnry where the alien is a
subject.
 When it comes to intrinsic validity, it has to comply with the requirements of his national law.
Dacanay vs. Florendo, 87 Phil 324
 The provision of article 669 of the Civil Code prohibiting the execution of a will by two or more
persons conjointly or in the same instrument either for their reciprocal benefit or for the
benefit of a third person, is not unwise and is not against public policy. The reason for this
provision, especially as regards husband and wife, is that when a will is made jointly or in the
same instrument, the spouse who is more aggressive, stronger in will or character and
dominant is liable to dictate the terms of the will for his or her own benefit or for that of third
persons whom he or she desires to favor. And, where the will is not only joint but reciprocal,
either one of the spouses who may happen to be unscrupulous, wicked, faithless or desperate,
knowing as he or she does the terms of the will whereby the whole property of the spouses
both conjugal and paraphernalia goes to the survivor, may be tempted to kill or dispose of the
other.
De la Cerna, et. al. vs. Potot, et. al., G.R. No. L-20234, December 23, 1964
 Although joint wills are not allowed but the court committed an error in admitting the same,
and that became final and executory.
CODICILS AND INCORPORATION BY REFERENCE
Article 825. A codicil is a supplement or addition to a will, made after the execution of a will and
annexed to be taken as a part thereof, by which any disposition made in the original will is
explained, added to, or altered.
 If a codicil is to be an addition or it is a supplement to a previously executed will, then the
coming up of a codicil must be after the execution of a will.
 In the execution of a will, there are formalities that are to be complied with. Whether it is a
notarial will or a holographic will, there are formalities to be complied with.
 In order that a codicil will be effective or valid for the purpose for which it has been executed,
it must be executed in accordance with the formalities of a will.
 If the codicil is to supplement a holographic will, then the requirements of a holographic will
must be complied with in order to be effective.
Article 826. In order that a codicil may be effective, it shall be executed as in the case of a will.
Article 827. If a will, executed as required by this Code, incorporates into itself by reference any
document or paper, such document or paper shall not be considered a part of the will unless the
following requisites are present:
(1) The document or paper referred to in the will must be in existence at the time of the
execution of the will;
(2) The will must clearly describe and identify the same, stating among other things the
number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the document or paper referred
to therein; and
(4) It must be signed by the testator and the witnesses on each and every page, except in
case of voluminous books of account or inventories
 If the testator would want to include in his will a document by reference, then Article 827
provides for the requisites.
 In order that an addition or incorporation in a will of ad document by reference would be valid,
it should apply with Article 827.
o e.g. If the testator disposes in the will a parcel of land, the testator instead of describing in
details in his will a parcel of land, he can refer, in order to form part of his will, the TCT of
that parcel of land. In that TCT, there is already a detailed description of property that
should be disposed of.
 In order that there is proper incorporation of reference, that TCT at the time of the execution
of the will must be existing.
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.
 Application of the principle of the characteristic or nature of a will which is said to be
ambulatory.
 Makes a waiver or restriction on the right of the testator to waive revocation of a will or
changes in a will as void.
 In order that a revocation (valid) could be have, we have Article 809 which governs the law
that has to be complied with or followed in the revocation of a will
 The law that has to be followed in Article 829 will depend on whether or not the revocation or
not is within the Philippines or not.
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.
 If revocation made outside the Philippines, we have to consider where the testator is
domiciled at the time of revocation.
o If the testator is domiciled in the Philippines, then the revocation of his will, if outside the
Philippines, must follow the laws of the Philippines even if he is revoking his will outside
the Philippines.
o If he is outside the Philippines, he can also follow the GR of lex loci celebraciones. On the
other hand, if the testator is not domiciled in the Philippibes, then he could follow the law
of the place where the will was executed.
 The reckoning time is the time of revocation. If the testator would follow the law of the place
where the testator was domiciled, then it is domiciled at the time of revocation. On the other
hand, if the testator ought to follow the law of the place where the will was made, then he has
to follow the law of the place where the law was made.
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.
a) By implication of law – it is by operation of law.
 This is the kind of revocation which arises because of the change, event that change the
relationship of the testator with that of beneficiary or there is an event or change in the status
or condition of the property that is to be exposed of.
 Because of this change that would happen after the execution of the will, the law presumes
that the testator intended to revoke his will.
 There is a presumption that the testator intended to revoke his will because of that event or
happening that changes the relationship of the testator and beneficiaries or the condition of
the property that is to be disposed of.
 The law presumes a change of mind on the part of the testator.
b) In the case of will, codicil or other writing executed as provided in the case of wills
 The principal consideration here is that the codicil or the will is intended to revoke a previously
executed will, then that will or codicil must be in itself valid and must be executed with the
formalities intended by law.
  Because if the intention of the testator is to revoke a previously executed will by way of a
subsequent will or by way of subsequent codicil to be an effective revocation, the revoking
codicil must itself be valid.
c) In the case of burning, tearing, cancelling, or obliteration, there is no rule on the degree or
extent of burning, tearing, and cancelling.
 However, the cancellation of a will is that to the extent that everything has been crossed out
or there is a horizontal or diagonal line which cancels the disposition of the will, then there is a
greater indication or intention to revoke of a will.
 In the case of obliteration – the writings cannot be read anymore
o Even if the will, what has been obliterated is the signature of the testator alone, then that
is an indication of intention on the part of the testator to revoke the will.
 A slight burn as long as it was done by the testator by himself and it was purposely done by the
testator, it is already considered as revocation.
Implication of law – this is a revocation that will arise because of a change of mind, change or
heart on the part of the testator because of an event or act that arises after the execution of the
will.
o The Civil Codes provides for 5 instances where it results to a revocation of a will by
implication of law.
a) When, after the testator made a will, he sells, donates, or transforms the property
disposed of into another which could no longer be identifiable as the property referred
to by the testator in a will.
o e.g. The testator in his will disposes of a parcel of land to A, but after the execution of
the will, the testator sold the parcel of land intended to be given to A. Upon the death
of the testator, will A inherit? No. Because there is no more parcel of land in the estate
of the testator.
b) The testator would change or transform the identity or the use of the property that has
been disposed of.
o e.g. The testator gave in his will a fish pond to X. After the execution of the will, the
testator had that fishpond filled. There is no more fishpond, instead what appears in
that parcel of land is already a building. Upon the death of the testator, will X inherit?
No. Because there has been a revocation of the provision in the will giving X a fishpond.
c) A provision in a will in favor of a spouse who has given cause for legal separation.
o The offended spouse gave cause to the decree of legal separation.
o The moment there is decree of legal separation, then the provision in the will giving or
disposing a property in favor of the offending spouse is automatically revoked.
d) When an heir, legatee, or devisee commits an act of unworthiness.
o e.g. An attempt against the life of the testator.
o If the testator in a will gives a legacy of credit.
 Legacy of credit – a receivable of a testator.
 Since there is payment in the legacy of credit, or a judicial demand, then it is
deemed to have been revoked.
e) When there is preterition of a compulsory heir.
o The institution of heir is considered as null and void.
o There is an implied revocation of the institution of the heir if and when there is
preterition. This is in order to give way to the compulsory heir that has been omitted.
 In a case of disinheritance (invalid), if and when the heir is instituted by universal title, the same
becomes null and void. Whereas, the institution of an heir is to a particular real property or to a
particular personal property, it does not result to the disposition even if there is preterition or
imperfect disinheritance because as long as the estate of the testator is sufficient to cover the
share of the imperfectly disinherited heir or omitted heir.
By way of will.
o If it is by way of a will or codicil, it is by either express or implied.
 Express - revoking a previously executed will
 Implied - provisions of the subsequent will are totally inconsistent with the provisions of
the prior or previous will.
o If the will or codicil is supposed to revoke a previously executed will, this executed will must
itself be valid. Otherwise, if the subsequent will is not validly executed, then there is no
revocation that could take place.
In the case of burning, tearing, cancelling, or obliteration, there is no rule on the degree or extent
of burning, tearing, and cancelling.
 An important requirement is the intention of the testator which could be determined by the
extent of the overt act.
 That overt act has reached the so-called subjective phase of burning, tearing, etc. (That point
in time wherein the testator does not have any more control of the act that he made)
 Must be made by the testator himself with the intention of revoking or the testator would not
do it by himself, then he ask somebody to perform the overt act, but it must be in his
presence.
 If it is not by his presence or his express direction, then it is not considered as a valid
revocation by overt act.
In a case wherein what has been presented to the court was a carbon copy of a will, the same has
been objected to because the oppositor, the original copy of the will has been destroyed, but to
the party or petitioner who presented the carbon copy for probate, it contended that the
destruction of the original was not with the intent of the testator.
o The probate court dismissed the case. But according to the SC, the probate court should not
have dismissed the case. The provision of Par 3 of Article 830 should have been applied. Since
the petitioner claims that the destruction of the will was not with the intention by the testator
and it was not made by the testator, then the petitioner should have been required to prove
and establish the fact that the destruction was not made by the testator, and it must be
established that the will has been executed and with due execution of the will, and the fact
that there is the existence of that will that has been executed by the testator. Because if the
petitioner would be able to establish this facts, then distribution of the estate may be made in
accordance of the will.
 In relation to intent to revoke, the testator at the time of revocation must be shown or
established that there is really an intention of the testator.
 In our jurisdiction, there are presumptions that will show intention of the testator to revoke
his will.
a) Where the will cannot be found, following the death of the testator, and it was shown
that it was in the testator's possession last seen.
o (in the absence of other evidence that he must have destroyed animo revocandi)
b) Where the will cannot be found following the death of the testator and it is shown that
the testator had ready access to it.
o (in the absence of other evidence, that he has destroyed it animo revocandi)
c) That the will is in the custody of the testator after the execution of the will and
subsequently, it was found among the testator's effects after the his death in such estate
of mutilation, cancellation or obliteration as represents sufficient act of revocation within
the meaning of applicable statue
o (In the absence of evidence that such act was performed by the testator with the
intention of revoking the will.)
d) Conditional or dependent relative revocation.
o Established that if a testator revokes a will with a present intention of making a new
one immediately as a substitute, and the new will has been made, or if made, fails of
effect for any reason.
o Presumption: the testator preferred the old will to intestacy and the old one will be
admitted probate in the absence of evidence overcoming the presumption provided
that its contents can be ascertained.
o The doctrine is considered to be a rule of presumed intention rather than a substantive
rule of law. (So if there is evidence to the contrary that there was no intention on the
part against actual evidence that the testator's intention was not to revoke the
subsequent will, that intention shall prevail.
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.
 Revocation by will or a codicil may either be express or implied.
 If the revoking will expressly provide that this will revokes the previous will executed, then it is
considered as an express revocation
 If the previous will, or provisions thereof is inconsistent with the subsequent will, then there is
an implied revocation
 This may be total or partial.
o If in the provisions of the will, there are 2 provisions which are inconsistent with the
previous will, then that provisions are revoked.
o If and when in the will, the entire provisions are inconsistent with the provisions of the
previously executed will, then there is a total or entire implied revocation of the prior will.
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.
 Situation where there is a valid revocation of a will by way of a subsequent will. However, the
subsequent will or revoking will cannot be made to operate because the heirs or legatee or
devisee designated by the testator is either incapable to inherit either the heirs renounced the
inheritance or the heirs would predecease the testator.
 Even if the subsequent revoking will will not be operative because of incapacity of the heirs, it
will not revive the previously revoked will.
 A revocation made in a subsequent will shall take effect even if the new will should become
inoperative. The revoked will will not be revived just because the new will is not operative
because the heirs will not inherit, and not capable of inheriting.
 In order that a revoking will will validly revoke a previous will, that revoking will must be in
itself be valid.
o If the revoking will is not validly executed, then it will not result to revocation. Tehre will be
an invalid revoking will. It will not result to revocation.
 In Article 832, there is a valid revocation of a previous will but it cannot be made to operate
because the heirs themselves are incapable of inheriting or the heirs renounced their
inheritance.
Article 833. A revocation of a will based on a false cause or an illegal cause is null and void
 Example of a revocation of will based on a false cause: if the testator revoke his will because of
the information that the heirs he designated is dead or attempted on the life of his spouse.
That revocation is null and void.
 If the testator revoked his will because in favor of a mistress, would that be valid? No. It is null
and void.
Article 834. The recognition of an illegitimate child does not lose its legal effect, even though the
will wherein it was made should be revoked
 Situation wherein in a will, there is recognition of an illegitimate child.
 In the even that will wherein it provides for a recognition of an illegitimate child, then that
information remains valid and it will not lose its legal effect even if the will has been revoked.
 Modes of recognition of an illegitimate child: by way of a will.
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.
 What is the purpose of coming up with a republished will?
o Republication – re-establishment of a previously revoked will or a will that has been
considered void because it did not comply with the requirements of the law.
 If the testator would decide to give life to that previously revoked will. Then the mode of
giving life to a previously revoked will or to a will that has been considered null and void
because it does not comply with the requirements of the law, remedy? Answer: to republish
the will.
 2 modes:
a) Re-execution of the original will (Article 835) – express republication of the will.
 How is the will give life? Re-execution of the original will. It has to be recopied of the
will that has been previously revoked or null or void in has to be copied in a subsequent
will.
b) Article 836 (by way of a codicil)
Article 836. The execution of a codicil referring to a previous will has the effect of republishing the
will as modified by the codicil
 So-called implied republication.
 It is done by simply referring to the previous will.
 Effect of republication? It revives the previous will.
o The old will is republished as of the date of the codicil.
Article 837. If after making a will, the testator makes a second will expressly revoking the first, the
revocation of the second will does not revive the first will, which can be revived only by another
will or codicil.
 The situation is there are 3 wills executed. The 1st will has been revoked expressly by a 2nd
will. And the 2nd will later has also been revoked.
o Q: Will the 1st will be revived? It cannot revive the 1st will because the 1st will should be
revive by another will or codicil.
o If the will has been impliedly revoked because the provisions in the 1st will are inconsistent
with the provisions of the 2nd will, then there is an implied revocation. In this case, Article
837 will not apply.
o In order that the 1st will is not considered revive, the 2nd will must expressly revoked the
1st will. But if the 1st will has been impliedly revoked by a 2nd will, jurisprudence dictates
that the 1st will will be revive if and when the 2nd will which revoked the 1st will impliedly
has also been revoked.
o The reason behind is if and when a 1st will has been revoked by a 2nd will expressly, that
will becomes null and void.
ALLOWANCE AND DISALLOWANCE OF WILLS (PROBATE)
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 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.
 Why is it necessary to have a will admitted by the court? Par 1. (Because provides that no will
shall pass either real or personal property unless it is proved and allowed in accordance with
the Rules of Court.
 2 kinds of probate:
a) Probate will be made by the testator himself during his lifetime (ante-mortem probate)
o Testator may, during his lifetime, petition the court having jurisdiction for the
allowance of his will.
b) Probate after the testator’s death (Made by the heirs, executor, or administration upon
the death of the testator
 Advantage:
a) Made by the testator himself (the testator having been influence or there is fraud or
involuntariness is null because he himself goes to court in order to have his will
probated)
o If and when there are formalities which are not complied with, during his lifetime, he
can rectify, he can correct whatever error that has been committed and whatever
formalities which are not complied with shall be complied with during his lifetime.
 Jurisdiction. Who has jurisdiction during the probate of wills?
o Before RA 11576, before the expansion of the jurisdictional amounts of the 1st level courts, if
the value of the estate amounts to 300k and below outside MM and 400k in MM, probate is
with 1st level courts. But if the value of the estate exceeds 300k-400k, jurisdiction of probate
proceedings is with the RTC.
o However, the jurisdiction of 1st level courts has been expanded under RA 11576 so that the
value of the estate is 2M and below, probate proceedings is with 1st level courts. But if the
value of the estate is above 2M, then the jurisdiction is with the RTC.
o Where? It is the RTC where the the decedent was a resident.
 If not a resident of the Philippines, the venue will be at the city or municipality where the
testator has a property.
Mang-oy vs. Court of Appeals, 124 SCRA 33 [September 12, 1986]
 If not probated, it is inoperative. But conveyance is allowed not because of the will but
because the agreement made by the parties in order to comply with the provisions in the will.
 But if the will itself, the same is not valid because it is not probated.
Rodriguez vs. Rodriguez, 532 SCRA 642 [September 11, 2007]
 That cannot be made as valid claim for ownership as heirs because the will has not yet been
probated.
 A probate proceeding cannot be dispensed with because it is a manner of public policy. It is
not the interest of the heirs that is being protected but it is the interest of the testator whose
right to dispose his properties must be protected by the estate.
Guevarra v Guevarra (1st case)
 Rosario Guevarra also filed an action for recovery of ownership over a parcel of land from
Ernesto Guevarra as the acknowledged child of Victorino Guevarra. Upon the death of
Victorino, Rosario is in possession of her father's will but she did not present the will for
probate. However, when she filed for an action for recovery of a parcel of land where she
claims to be her share. He presented the will as evidence that she has been acknowledged as a
daughter of Victorino Guvarra. The will was presented in court not in a probate proceedings
but as proof that the plaintiff was an acknowledged natural child of the testator and such she
is entitled for her legitime.
 SC said the procedure adopted by the plaintiff is not proper. No claim of property can be made
on the basis of the will since the will has not been probated. There was no probate of the will,
as such reconveyance is not allowed.
 No claim of ownership can be held.
In probate of wills, what are the matters to be determined by the probate court?
1. Whether or not the instrument that is being presented in Court and offered for probate is the will
and testament of the decedent or the testator. The probate court will determine the identity of
the will.
2. Whether or not the will has been executed in accordance with the formalities prescribed by law.
(question of due execution) The probate court will determine whether the will has been executed
by the testator without force and undue influence and without being intimidated.
3. Whether the testator had testamentary capacity
 Testamentary capacity is to be determined at the time of the execution of the will by the
testator.
In probate proceedings, if the probate is presented by the testator himself, no problem, because
he himself goes to court and if and when there are matters which have not been complied with,
he can easily rectify that requirements which has not been complied with.
In case of post-mortem probate, who is supposed to go to court and have the will probate?
Executor, administrator, or any of the heirs will go to court and have probated even if that heir is
not in possession of the will himself or herself.
He can ask the court to have the will probated even if he is not in possession of the will. But in his
petition, he has to indicate that he is not in possession of the will but someone is in possession
and include in the prayer for the submission or presentation of the will by the person who is in
possession of the will.
Facts that should be included in the petition.
a) The testator is dead (proof) because death opens successional right
b) The place and time of death (relevance? may determine the proper venue if the testator at the
time of his death was a resident of the Philippines or he is an alien or whether he has been
domiciled in the Philippines)
c) The will has been executed by the testator.
o He left a will. If petitioner is in possession of the will, he has to attach the will. If not in
possession, he has to pray that the Court directs in possession of the will to produce the
same in Court.
d) State that the will was executed by the formalities required by law.
e) Indicate the names, ages, and relation of the heirs or beneficiaries
f) The value of the estate because this will determine jurisdiction of the Court
Consequently, the probate court cannot inquire into the intrinsic validity of testamentary
disposition
When we speak of intrinsic validity, it speaks if there is impairment of legitime, legitime,
disposition is over and above the free portion which could be disposed of freely by the testator.
o This is not a matter that should be looked into in probate proceedings.
 As long as none of the grounds for disallowance under Article 839 is determined by the Court,
then the will has to be admitted probate.
o As long as the Court determines that none of the grounds provided for in Article 839 is
present, then probate of the will is to be allowed.
Pastor vs. Court of Appeals, G.R. No. L-56340, June 24, 1983
 Since probate court don't have jurisdiction to look into the intrinsic validity of dispositions in
the will, whatever determination that the probate court would have as to ownership of
property will only be temporary. It is not final because the determination of whether or not
who owns the property is to be made in another action.
 Although, the basis to determine jurisdiction is the value of the estate. Therefore, the
purposes of determining what properties are to be included in the estate of testator, for a
start, there must be an inventory of properties that should belong to the estate of the testator
- and this is for purposes of determining the value of the estate.
 Even if the property is included in the estate of the testator, the determination of the
ownership is not final. Because if there is a claim over the property over an heir or by 3rd
person, then a separate civil action must be filed to determine whether or not the property
belonged to the testator.
Magallanes vs. Kayanan, L-31048, January 20, 1976
 Generally, a probate court has no jurisdiction to decide questions of ownership.
 The SC gave 2 exceptions: (1) When the parties voluntarily submit the question before the
probate court, and (2) when the property is provisionally passed upon by the probate court
in order to determine whether or not the property involved is part of the estate.
 A probate court passed upon the question of ownership, the same is only temporary. The
same is only provisional because whoever questions the ownership of that property should file
a separate civil action.
Lachenal vs. Salas, L-42257, June 14, 1976
 Probate proceedigns cannot determine questions of ownership
Nature of Probate Proceeding
 Proceeding in rem (as long as the judgment is made by a court of competent jurisdiction)
 Requirement in order for the validity of a decision on a probate proceedings.
 As long as the final judgment is made by a court of competent jurisdiction, it is binding upon
the whole world. All parties as long as those parties who are notified are bound by the
judgment by the probate proceedings.
 It is said that it is imprescriptible. It does not prescribe because it is a matter of public policy.
What is being protected by the interest of the testator, and not by the heirs. The State
respects the will of the testator.
Guevarra v Guevarra (sequel)
 Statute of limitations is not applicable in probate proceedings.
 Even if Rosario had the will probated several years after the death of her father, still it was
allowed on the objection of Ernesto on the ground that it has been submitted for probate
several years after the death of the testator.
 Prescription is not applicable in probate proceedings, the doctrine of estoppel is not applicable
in probate proceedings.
Alsua-Betts et. al. vs. CA, L-46430-31, July 30, 1979
 The SC said that estoppel is not applicable in probate proceedings and so the testator cannot
be prevented or estopped to have a 2nd will. Because a will by nature is ambulatory, it can be
revoked during the lifetime by the testator.
 The 2nd will which was not probated during the lifetime of the testator, still it was allowed
probate because estoppel has no application in probate proceedings in so far as testamentary
capacity of the testator is concerned.
How is probate proceeding terminates?
 After the order admitting the will, what will follow is the project of partition.
 Partition of the properties belonging to the testator which will be distributed to his heirs,
legatees, or devisees. After the project of partition is approved, what will follow is the delivery
of the properties to the heirs in accordance to the adjudication made in the will.
 It is only after the admission or approval of the will that distribution in accordance with the will
shall be ordered by the Court.
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;
(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.
INSTITUTION OF HEIR
Article 840. Institution of heir is an act by virtue of which a testator designates in his will the person
or persons who are to succeed him in his property and transmissible rights and obligations
 There can be no institution without the execution of a will.
 Institution of an heir, there is an institution of a will.
 Institution of heir – designation by the testator as to who will succeed from him.
o Institution is sometimes referred to voluntary heirs.
 When an heir inherits to a universal title in relation to the estate, he is simply considered as an
heir. But the heir inherits to a specific personal property or a specific real property, he is
referred to a legatee or devisee as the case may be.
Voluntary heirs – the testator institutes somebody or designates somebody whom he wants to
inherit from the estate.
o To have a valid institution of heirs, since it is voluntary, it cannot affect the legitime.
Legitime – that portion of the estate which is reserved for compulsory heirs, therefore it should
not be impaired.
 Requirement in order that the institution of heirs would be valid, it must be extrinsically valid
(the execution of the will must comply with the requirements under Article 805 as to the
validity or formalities in order to execute a will)
 Since it is voluntary, then it must likewise be intrinsically valid (must not affect the legitime of
the compulsory heirs. No compulsory heirs must be preterited otherwise institution becomes
null and void.
 Another requirement, the instituted heirs must be capacitated. They must have the capacity to
inherit. (If the heirs that has been designated is incapacitated, then the institution would not
take place, it becomes inoperative
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.
 In institution of heirs, or in the execution of a will, there may be no institution of heirs. It is not
always that there is an instituted heirs. A will may be executed just for the purpose of giving
instruction as to how his remains would be managed.
 If there is no designation of heirs, intestate succession will take place.
 If and when there is execution of a will, but there is also designation of heirs, but not the
entire estate is disposed of.
e.g. If the estate is 20 Million, only 1/2 has been disposed of to the compulsory heirs and
designated heirs. That portion which is not covered by the will because there is no instituted heirs,
will go the legal heirs by intestate succession (also called mixed succession)
o If there is an institution of heirs, but the instituted heirs does not want to accept the
inheritance, the will becomes inoperative. The institution of heirs becomes inoperative .
o Likewise, that portion which is not accepted by the instituted heirs will go to the legal heirs by
intestate succession.
o The same is true if the instituted heir becomes incapacitated. At the time of the execution of
the will, the instituted heir is still of sound mind. Upon the death of the testator upon
succession takes place, the instituted heirs is confined in the mental hospital (incapacitated),
although the institution is valid because the reckoning is at the time of the execution of the
will, but upon the death of the testator and upon the opening of the successional right, the
instituted heir is incapacitated, he cannot inherit. The institution becomes inoperative.
In such cases, the testamentary dispositions made in accordance with law shall be complied with
and the remainder of the estate will pass through the legal heirs.
o In instances wherein not the entire estate is disposed of the testator, intestate succession
takes place between and among legal heirs. The portion that is given to instituted heir but
then the heir does not want to inherit or becomes incapacitated, which is given to that heir
will go to legal heirs by way of intestate succession.
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.
 Who are the compulsory heirs? If the testator do have children, whether legitimate or
illegitimate, is considered as compulsory heirs. (heirs of the direct descending line)
o Surviving spouse is also considered
 The testator dies without issue (no children or spouse), the 1st paragraph of Article 842 will
apply.
o He can dispose of his estate in whatever way he wants.
o The testator can dispose of his property in favor or any person whom he wants because it
is an attribute of ownership (free to dispose of property to what is the desire of the person
who owns the property)
 But parents are excluded in the presence of children and surviving spouse. (heirs of the direct
ascending line)
o Surviving spouse is considered but it is not in the direct line.
 He can dispose of only that portion of the estate which is free in the sense that the portion
which is reserved for compulsory heirs is already maintained or reserved.
Article 843. The testator shall designate the heir by his name and surname, and when there are two
persons having the same names, he shall indicate some circumstance by which the instituted heir
may be known.
 Even though the testator may have omitted the name of the heir, should he designate him
in such manner that there can be no doubt as to who has been instituted, the institution shall be
valid.
 Referred to as the proper identification of heir instituted.
o In order that it will not create doubt as to whom is intended.
 If there are 2 persons having the same names, but the other person is not known to the
testator, he shall indicate some circumstance by which the instituted heir may be known.
o e.g Juan Cruz, my friend or Juan Cruz, my cousin
 Even though the testator may have omitted the name of the heir, is it possible that heir can
still inherit? Yes. As long as there is designation and there has been no doubt as to who has
been instituted.
 A valid description as to the person whom the testator institutes as an heir could be a valid
identification of the person instituted.
o Even if the testator omits the name and surname of the supposed heir, since there is a
description of the person who is to inherit, then he has to receive the inheritance.
Article 844. An error in the name, surname, or circumstances of the heir shall not vitiate the
institution when it is possible, in any other manner, to know with certainty the person instituted.
If among persons having the same names and surnames, there is a similarity of
circumstances in such a way that, even with the use of other proof, the person instituted cannot be
identified, none of them shall be an heir.
 If and when the testator fail to name or to give the name and surname and the circumstances
for which the person is instituted, it doesn't mean the institution is not valid. It can still be valid
if it is possible that the executor or administrator could determine with certainty whom the
person who wants to inherit.
 That is what administrator and executor has to exert effort in order to determine or come up
with a determination as to who are the instituted heirs.
 If despite effort on the part of the executor or administration, there can be no identification of
the person, then that is the time that the institution of the heir is considered invalid.
 No heir will inherit because there is in proper identification of the instituted heirs.
Article 845. Every disposition in favor of an unknown person shall be void, unless by some event or
circumstance his identity becomes certain. However, a disposition in favor of a definite class or
group of persons shall be valid.
 If it is a specified person and that person cannot be determined or is unknown, then that
designation is considered void or invalid.
 If it is a class or a group of persons, it is valid (e.g. Law 3A of DVOREF SY 2021-2022)
 Even if it is not specific, the inheritance is considered valid.
Article 846. Heirs instituted without designation of shares shall inherit in equal parts.
 e.g. X, Y, Z of 5 Million Pesos. There is no specification as to the share of the 3. According to
846, they will inherit equally. It shall be divided by 3.
 If heirs are instituted and there is no designation to their shares, then they inherit equally.
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.
 If the estate is 5 Million, designated are A, B, and the children of C (3). How much will they
receive? They will receive 1 Million each because the children of C will be individually
instituted.
 It would be different if the Children of C are not individually instituted, because it will be
divided by 3.
o A, B, and the children by C divided by 3. And the children of C will divide among themselves
their share. (They would have a lesser share in the inheritance if it is the desire of the
testator.)
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.
 Full blood - they belong to the same mother and father
 Half blood - may have a common father or a common mother
 But when we speak of half blood brothers or sisters who are considered to be an heir of
another brother or sister, it connotes legal.
 Half blood brothers and sisters which are entitled to inherit, it refers to a brother or a sister of
a 1st marriage and a brother or sister of another marriage.
 Without regard to whether you are a half blood or a full blood, as long as the testator does not
indicate the sharing of the full and half blood, they will inherit equally.
 This article is important because in intestate succession, we have a different rule. If you are a
full blood brother or sister, if the deceased has not have compulsory heirs and the deceased
do have full blood and half blood brothers and sisters, in intestate succession, a full blood
receives double inheritance than that of a half blood brother or sister.
 The rule is different in testate succession because when the testator does not indicate in the
designation of heirs as brothers or sisters (whether half or full blood), they will inherit equally.
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.
  They inherit altogether and not successive.
 e.g.: The testator X, the designated heir are F, the father and his 3 children. Upon the death of
the testator, the 3 children and F will inherit altogether.
o The children inherit from the testator. They do not inherit from their father. They would
co-own the property if it is a parcel of land. If it is money or a personal property, they have
to divide themselves.
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 institution of an heir based on false cause shall be considered as if not written.
 e.g.: the institution states "I hereby institute T, my HS classmate because he is a good doctor"
but then it is false, the designated heir is not a good doctor and he has been charged
administratively, it is considered as a false cause. Upon the death of the testator, would the
doctor inherit? Yes. Because the false cause is considered as if not written.
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.
 In a will, if the entire estate is not disposed of, then the remaining estate or inheritance, legal
succession shall take place. It shall go to the legal heirs by way of legal succession.
o e.g.: The testator institutes A to 1/2 of the inheritance. What would happen to the other
half? It shall go to the legal heirs by way of intestate succession.
o e.g. There are 2 or more instituted heirs (A, B, C) to the estate. A 1/4, B 1/3, and C 1/3.
What portion of the estate remains? 1/12. The entire estate is 12/12. What has been given
to A, B, C is equivalent to 11/12. The 1/12 portion of the estate will go to the legal heir by
way of intestate succession.
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.
 e.g REFER TO PIC SENT BY DANA HA GC
Article 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the
parts together exceed the whole inheritance, or the whole free portion, as the case may be, each
part shall be reduced proportionally.
 The excess shall be distributed to the parties in the proportion in which they are designated.
Article 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not
inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be
effectual, without prejudice to the right of representation.
 Preterition – omission of a compulsory heir in the direct line.
o If the compulsory heir in the ascending direct line is omitted because there are compulsory
heirs, that is fine.
o If the compulsory heirs of the direct ascending line is being omitted in the inheritance
without compulsory heirs, then that is preterition.
 REQUISITES:
a) There must be total omission of a compulsory heir of the direct line
b) The omission must be a compulsory heir (not a brother or sister because they are not
considered as a compulsory heir. They are referred to as a collateral relatives)
c) The compulsory heir omitted must be in the direct line.
 A surviving spouse is a compulsory heir but then he is not a compulsory heir of the direct line.
o Can Article 854 apply? No. Because he is not a compulsory heir in the direct line.
o Preterition applies only to the compulsory heirs in the direct line.
In the Matter of the Petition to Approve the Will of Leodegaria Julian. Felix Balanay, Jr., vs. Hon.
Antonio M. Martinez, Judge of the Court of First Instance of Davao, Branch VI; Avelina B. Antonio
and Delia B. Lanaban ; G.R. No. L-39247 ; June 27, 1975
 The spouse is preterited in the will of the testator. So the surviving spouse question the will,
oppose to the admission of the will because he has been preterited and omitted.
 SC said that there can be no omission of a surviving spouse because he is not a compulsory
heir of the direct line.
Remedios Nuguid vs. Felix Nuguid and Paz Salonga Nuguid ; G.R. No. L-23445 ; June 23, 1966
 The preterited heir was the parent.
 Instead of the parents who are the nearest heirs of the deceased were instituted in the will of
the deceased, another person (friend) has been given the inheritance.
 The parents complain and objected or opposed to the admission of the will.
 SC said that there was preterition of the parents because they being considered as compulsory
heirs in the direct line in the ascending line. In the absence of the compulsory heir in the direct
line, then the parents will have to inherit.
Consist preterition if it is total.
o The compulsory heir in the direct line will not inherit anything pursuant to the will.
o If the compulsory heir inherit something but not in accordance with his or her legitime, there is
no preterition. But what the heir should do is to demand for the full satisfaction of his legitime.
IN RE: Testate Estate of Edward Christensen vs. Helen Christensen Garcia, G.R. No. L-16749, January
31, 1963
 Edward have acknowledged natural child in the Philippines. But then in his will, Christiansen
give only 3,000 pesos and yet these natural child complained that he has been preterited.
 SC said that there is no preterition because to constitute preterition, it should be a total
omission.
 The child was given 3,000, so you cannot claim preterition because you were given 3,000.
 If there is legitime under the law of the country where Christiansen is a subject, the
acknowledge natural child has to demand for the satisfaction of his legitime. Whatever is the
amount of the legitime in accordance to the law of the country of Christiansen.
Article 855. The share of the child omitted in the will must first be taken from the part of the estate
not disposed of by the will, if any. If it is not sufficient, as much as may be necessary may be taken
proportionally from the shares of the compulsory heirs.
 Omission may be intentional or unintentional.
o Omission is different from disinheritance because in disinheritance, there must be a ground
or legal cause or a valid cause as provided for by the law for disinheritance. But for
preterition, there can be no cause one can be preterited.
o Preterition – it is without regard if it is a legitimate child or illegitimate child because an
illegtimate child is considered as a compulsory heir in the direct line. It is without regard to
legitimate or illegitimate held in the direct line.
 If there is an omitted heir, then he is entitled to his legitime. He has to receive his legitime.
From where would it be taken? If there is still a portion of the estate which can be given to the
omitted heir, then so be it. It would be taken from that portion not disposed of.
 If and when there is preterition, the institution of an heir which is by universal title is null and
void. It becomes null and void to give way to the share to the legitime of the omitted heir.
Whereas, the institution of the heir is specific personal or real property, as long as the legacy
or devise is not inofficious. It does not affect the legitime of the omitted heir because there is
still something that could be given to the omitted heir, then the legacy or devise remains valid.
o It shall be taken form the portion of the estate not disposed of. But if and when nothing is
left, then it will be taken from the shares of the compulsory heir. And that includes the
devise and legacy. It shall be reduced in order to give the omitted heir its share in the
inheritance.
 If it is a particular real or personal property, even if tehre is a omission of the heir as long as
the estate is sufficient to give the omitted heir his share of the inheritance, then the legacy or
devise shall remain valid. But if the heir inheirts by universal title, whether or not there is still
enough in the estate. It becomes null and void. The institution of heir becomes null and void.
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.
 Voluntary heir – an heir who is designated by the testator to inherit as per his will. In
accordance of his will, he is to inherit a voluntary heir.
 If the voluntary heir predecease the testator, and the testator did not revoke his will, and yet
there is a voluntary heir who predecease. And this voluntary heir do have children. Will the
children of the voluntary heir inherit? No. Because voluntary heir transmits nothing to his own
heirs if he predecease the testator.
 e.g. Testator designate X as heir to an estate of 5 Million. X predecease the testator, but X do
have children, A,B,C. Will the children inherit upon the death of the testator? No. Because X
being a volutnary heir transmits nothing to his own heirs.
o Is it necessary that if one is a voluntary heir, you must be living at the time of the testator.
Because successional rights opens upon the death of the testator. Prior to the death of the
testator, he can do anything what he wants. But here, it so happen, the testator did not
change his will. With that, the own heirs of X will not inherit.
 The rule is different if the heirs is a compulsory heir.
o If he is a child or the testator, and at the same time, he is designated as voluntary heir. A
compulsory heir who dies before the testator or becomes incapacitated and renounces his
inheritance, he transmits nothing also to his heirs.
o But exception: right of representation. In instances where it is allowed, you own heirs will
inherit as a representative.
 e.g. X, a compulsory heir predecease. and A,B,C are the children of X. Will teh children
inherit upon the death of the testator? Yes. By means of representation.
 What if X becomes incapacitated. Will the children inherit? Yes. By representation.
o The inheritance by representation will be limited to the legitime of X. But then, if X
renounces his inheritance, will the children of X inherit upon the death of the testator? No.
because renunciation of inheritance is a voluntary on the part of the heir.
o The same is true in the case of disinheritance.
 When an heir is disinherited, his own heirs can still inherit because it is not the fault of
the children that his father is disinherited.
 They can still inherit by representation.
 The portion could be inherited by representation would be limited to the legitime. As
for the free portion, they cannot demand for inheriting from the free portion if they are
to inherit only by representation.
 SUBSTITUTION OF HEIRS
Substitution - still designation of a substitute.
o The testator would want to be assured that in the event the designated heir would not inherit,
he has a substitute.
o Indication that the testator does not want intestacy to come in because he has a substitute
Article 857. Substitution is the appointment of another heir so that he may enter into the
inheritance in default of the heir originally instituted.
 The substitute will come in only when the originally constituted heir cannot inherit by reason
of death, incapacity, or renunciation.
Article 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary.
 e.g. of Simple substitution. "I designate X as an heir to an estate of 5 million. However, in case of
incapacity, death, or renunciation, B shall take his place."
Article 859. The testator may designate one or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die before him, or should not wish, or should be
incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers, shall comprise
the three mentioned in the preceding paragraph, unless the testator has otherwise provided.
 The testator may designate 1 or more persons to substitute.
o e.g. X is original instituted heir, and as substitute, he designated A and B. Or other way
around.
Article 860. Two or more persons may be substituted for one; and one person for two or more
heirs.
Article 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute
shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears
that the intention of the testator was otherwise. If there are more than one substitute, they shall
have the same share in the substitution as in the institution.
 Problem: REFER TO DANA'S PICTURE
o Since they are to be designated as heirs in the ratio in proportion in which they are
designated, 2/3 will belong to B, and 1/3 will belong to C.
Article 862. The substitute shall be subject to the same charges and conditions imposed upon the
instituted heir, unless the testator has expressly provided the contrary, or the charges or conditions
are personally applicable only to the heir instituted.
 You have an originally substituted heir. If there is a condition to the institution of heir upon the
originally instituted heir, the originally instituted heir becomes incapacitated, dies, or
predecease the testator or renounces the inheritance and there is a substitute, the substitute
shall be subject to the same conditions imposed upon the original instituted heir unless the
condition imposed upon the originally instituted heir is personal upon the originally instituted
heir. It cannot be imposed against the substitute.
 Like if the originally substituted heir is designated to receive a devise of a parcel of land subject
to the condition that the devisee will pay all the arrears in real property tax. If there is a
substitute (the originally substituted heir cannot inherit because he becomes incapacitated),
the substitute will also bear the burden of paying the arrears in real property tax because that
is the condition upon the originally substituted heir.
 The substitute, in order to inherit must comply with the conditions imposed upon the
originally instituted heir.
Article 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is
entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the
inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided further, that the fiduciary or first heir and
the second heir are living at the time of the death of the testator.
 Requisites and Limitations of the Fideicommissary Substitution
a) There must be a FIRST HEIR called primarily or preferentially to the enjoyment of the
property.
b) There must be an obligation clearly imposed upon him to preserve and transmit to a third
person the whole or part of the inheritance (part only if the substitution refers merely to
that part).
c) A SECOND HEIR.
d) The 1st and the 2nd heirs must be only one degree apArticle (Article 863).
e) Both the First and the Second Heirs Must Be Alive (or at Least Conceived) at the Time of
the Testator’s Death.
 To constitute fideicommissary substitution, it must comply with the requisites under Article
863.
 It must be in accordance with the will and it must be expressly provided for in the will.
 It must not be subject to a condition nor should it burden the legitime of compulsory heir.
REQUISTES (DISCUSSION)
 1st heir – must be specifically and expressly obliged or under the obligation to preserve and to
transmit to a 2nd heir the whole or part of the inheritance.
  There must be an express obligation on the part of the 1st heir to preserve the inheritance. If
and when there is no express obligation on the part of the 1st heir, there is no fidecomissary
substitution, but it is considered as simple institution of heirs,
 It requires that the 1st heir and the 2nd heir must be 1 degree apart (referred to as one
generation apart)
 Take note that the both 1st and 2nd heir must be living at the time of the death of the testator
(no one should predecease the testator because if the 1st heir and 2nd heir predecease the
testator, there is no fidecomissary but there is a simple designation of an heir.)
 The 2nd heir need not be alive at the time of death of the 1st heir. If and when the 2nd heir
predecease the 1st heir, then what he is supposed to inherit will go to his own heirs because
the 2nd heir inherits from the testator, not from the 1st heir.
 While fidecomissary substitution requires that both 1st and 2nd are alive at the time of death
of the testator, it does not require that at the time of the 1st heir, the 2nd heir must be still
alive.
o Even if the 2nd heir is dead, the heirs of the 2nd heir can still get the inheritance upon the
death of the 1st heir.
Until when the 1st heir preserve and transmit to the 2nd heir the inheritance?
o It depends upon the designation of the testator.
o But in the absence of a period within which to transfer the inheritance, it is the opinion of
knowledgeable authors that the transfer should be made upon the death of the 1st heir.
o Upon the death of the 1st heir, the inheritance Shall go to the own heirs of the 2nd heir
because it is presumed that if and when there is no period within which to transmit the
inheritance, the inheritance should be transmitted upon the death of the 1st heir.
 So being the 1st heir, the 1st heir must be himself be capacitated and accept the inheritance if
he wants to enjoy the inheritance. If he renounce the inheritance, there can be no
fidecomissary substitution.
 He (1ST heir) is not a mere agent or administrator but he owns the property that is being given
to him by the testator.
o During the period in which he is supposed to preserve the property, he can enjoy and make
use of the property but he has to preserve that property.
o Neither is he a usufructuary. Because in usufructuary, he is not required to furnish a bond.
He is entitled to a refund of useful imporvement in case of usufructuary.
Article 864. A fideicommissary substitution can never burden the legitime.
 The fidecomissary should not burden the legitime. If it burdens the legitime, it shall be
considered null and void.
Article 865. Every fideicommissary substitution must be expressly made in order that it may be
valid.
The fiduciary shall be obliged to deliver the inheritance to the second heir, without other
deductions than those which arise from legitimate expenses, credits and improvements, save in the
case where the testator has provided otherwise
 It must be expressly and clearly made in the will that the intention of the testator is
fidecomissary substitution.
 It has to require the 1st heir to transmit to the 2nd heir. If there is no such obligation on the
part of the 1st heir, there is no fidecomissary substitution.
 The 1st heir is not merely an agent or delivery man. He actually owns or inherits from the
testator but he has the obligation to preserve the property for the 2nd heir.
o What happens if the 1st heir disposes or sells or mortgage the property which he supposed
to transmit to the 2nd heir? Can the 2nd heir get the property? YES. The heirs could still
recover or the 2nd heir can still recover the property which was sold subject to
reimbursement from the estate of the 1st heir if and when this property has been sold by
the 1st heir and even upon his death the same has not been taken back by the 1st heir.
Article 866. The second heir shall acquire a right to the succession from the time of the testator’s
death, even though he should die before the fiduciary. The right of the second heir shall pass to his
heirs.
 The 2nd heir acquires or inherits from the 1st heir, not from the 2nd heir. Even if the 2nd heir
predeceases the fiduciary, the right of the 2nd heir will pass to their own heirs.
 It would be different if the 2nd heir predecesse the testator, his own heirs cannot inheirt
because this is considered voluntary institution of heirs.
Article 867. The following shall not take effect:
(1) Fideicommissary substitutions which are not made in an express manner, either by
giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the
property to a second heir;
(2) Provisions which contain a perpetual prohibition to alienate, and even a temporary
one, beyond the limit fixed in Article 863;
(3) Those which impose upon the heir the charge of paying to various persons successively,
beyond the limit prescribed in Article 863, a certain income or pension;
(4) Those which leave to a person the whole or part of the hereditary property in order
that he may apply or invest the same according to secret instructions communicated to him by the
testator.
(1)
 No fidecomissary substitution can take place if and when there is no compliance with all the
requirements under Article 863.
  What is the limit fixed in Article 863? The limit fixed is one degree, one trasnfer, or one
generation.
 If there is alienation for several degrees or transfers, then Article 863 does not apply.
(2)
 Perpetual prohibition – not to transfer or alienate or dispose of the property. (If in a will, there
is a prohibition that the property that is inherited is not to be disposed of.)
o A, B, and C are designated to a devise of a parcel of land located on Tacloban City on a
condition that A,B,C will not transfer the property. But A,B,C disposed of the property.
There is perpetual prohibition and Article 867 (2) does not allow a perpetual prohibition.
 If perpetual prohibition to alienate or dispose is not allowed. So if and when there is kind of
prohibition, that is allowed for only 20 years and after 20 years, the prohibition shall be
considered void according to Article 870.
o A prohibition made by the testator in the will which is in effect a perpetual prohibition is
good only for 20 years because of Article 870.
(3)
 There is charge or imposition by the testator upon to give pension or income to the heirs, that
cannot be because it is beyond the period provided for in Article 863.
(4)
 Secret instruction – which lead to a person the whole of the hereditary property in order that
he may apply or invest the same according to secret instructions communicated to him by the
testator.
 It is a protection on the part of the testator. The testator cannot object or comment if and
when it says that there is a secret instruction by the testator to keep the property or to invest
to a certain company. That cannot be allowed as a disposition in a will.
 If and when there is to interpret a provision in a will, if and when there is doubt in the
disposition of a will, an oral testimony is not allowed. This is the same as Article 867 (4).
 If the party who wants the admission of a will, and that will there is a provision for a secret
instruction made by the testator, the same cannot be allowed.
Article 868. The nullity of the fideicommissary substitution does not prejudice the validity of the
institution of the heirs first designated; the fideicommissary clause shall simply be considered as
not written.
 If and when there is a 1st heir and 2nd heir, and there is no compliance as to the degree
between either heirs or the 2nd heir predecesse the testator, there is no compliance with all
the requisites to constitute fidecomissary substitution.
o There will be no substitution. The 1st heir will still be inherit. But if in a will, there is no
obligation on the part of the 1st heir to deliver, preserve to the 2nd heir, there is a simple
institution of heir.
o It does not prejudice the validity of the institution of heirs 1st designated. The
fidecomissary substitution is considered as not written.
Article 869. A provision whereby the testator leaves to a person the whole or part of the
inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons,
not simultaneously, but successively, the provisions of Article 863 shall apply.
 The right to make use of the property.
 The testator can provide, give the right to use a property to various persons, not
simultaneously but successively.
 863 shall apply – it refers to the degree of relationship between the 1st usufructuary to the
2nd usufructuary.
o He can give to make use of a property provided it is simultaneously but successively.
Article 870. The dispositions of the testator declaring all or part of the estate inalienable for more
than twenty years are void.
 If and when the alienation or disposition to alienate exceeds 20 years, the excess is considered
void.
CONDITIONAL TESTAMENTARY DISPOSITIONS AND TESTAMENTARY DISPOSITIONS WlTH A TERM
Article 871. The institution of an heir may be made conditionally, or for a certain purpose or cause.
 If it is subject to a condition, it may be resolutory or suspensive condition.
o If it is subject to a certain purpose - it is considered as modal institution of heir.
Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the
legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed.
 There is no condition that is to be imposed upon the legitime.
 The father or the parent cannot impose upon his children the prohibition.
 When we speak of a condition or prohibition, it should not affect the legitime.
 The prohibition that is made or a condition that would be made should only be in regard to the
free portion. (that portion of the state which can be disposed of by the testator)
Article 873. Impossible conditions and those contrary to law or good customs shall be considered as
not imposed and shall in no manner prejudice the heir, even if the testator should otherwise
provide.
 Impossible conditions - which cannot be performed by the heir should be considered as not
written
 If the prohibition or condition is against the law, or against good customs and public policy.
Article 874. An absolute condition not to contract a first or subsequent marriage shall be
considered as not written unless such condition has been imposed on the widow or widower by the
deceased spouse, or by the latter’s ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or some personal prestation may be
devised or bequeathed to any person for the time during which he or she should remain unmarried
or in widowhood.
 Absolute prohibition not to contract first marriage
 Relative prohibition
o If prohibition would simply say "P institutes X to a legacy of 10 Million if she will marry until
the age of 30" - it is relative. The heir can marry if he reaches 30 years old.
o "P institutes X to a legacy of 10 Million if she will not marry" - it is considered as an
absolute prohibition.
 If the testator requires the heir to marry a specific person
o T designates A to a devise an apartment if he marries X? It is considered as relative. He can
marry. He will inherit if he marries X.
 If the condition is: "A designates X to a legacy of 10 million if he marries at the age of 70." It is
now considered as an absolute condition.
 If the prohibition is made upon a widower by the deceased spouse of the latter's descendants
or ascendants. Whether absolute or relative, that is allowed.
 If in a will of the deceased spouse, spouse inherits as long as he will not remarry. - it is allowed.
The reason is for economic reason and sentimental reason.
o This is the reason why if there is the so called survivorship benefit. That will remain to
receive the pension as long as he will not remarry.
o In the same reason, if and when the testator will provide in his will that the wife can get
the inheritance as long as he will not remarry - that is a valid prohibition.
 If the spouse makes a prohibition or the latter's ascendants or descendants. It is the
ascendants or descendants of the deceased spouse.
o e.g. A & B (H &W), A died. In the will of A, B is to inherit on condition that he will not marry.
The prohibition is valid
o If the prohibition is made by the heirs of A, it is still valid.
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.
 What we called as a condition captatoria wherein it is prohibited because it tends to make the
will a contractual act.
 In disposition captatoria, the testator designates a person to be his heir as long as that
designated heir will also designate the testator as his heir.
o e.g. A gave in his will a legacy of 10 million to B. On condition that B will in turn makes him
his own heir. (reciprocal) - the condition is to make the heir of whom he designated as an
own heir. It is considered as a not valid condition.
Article 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon
as he learns of the testator’s death.
This rule shall not apply when the condition, already complied with, cannot be fulfilled
again.
 It is one for the fulfillment of which depends purely upon the heir.
 If he cannot fulfill the condition, he will not inherit.
Article 877. If the condition is casual or mixed, it shall be sufficient if it happened or be fulfilled at
any time before or after the death of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time the will was executed
and the testator was unaware thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be considered fulfilled only when it is of
such a nature that it can no longer exist or be complied with again
 Casual condition or mixed – shall be sufficient or fulfilled or any time of the death of the
testator unless he has provided otherwise. Should it have existed or fulfilled the will was
executed and the testator was unaware thereof, it shall be deemed as complied with. If he had
knowledge thereof, the condition is considered fulfilled only when it such a nature that can no
longer exist or complied with again.
 Casual condition – one which depends upon chance or upon the will of a 3rd person. (e.g.
winning the lotto)
 Potestative – one which depends personally upon the person who is given or charge of the
condition.
 Mixed condition – depend both partly upon the part of the person himself or upon the will of a
3rd person. (e.g passing the bar exam)
 Effect if the condition is casual or mixed and it exist already at the time of the execution of the
will, and the testator was not aware of it, it shall be deemed as complied with.
o Like if the testator that the heir has already won the lotto, it shall be deemed as complied
with. The heir need not win the lotto anymore in order to inherit.
 If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such
nature that it can no longer exist or complied with. There is a distinction of the condition is
based upon chance or will of a 1rd person, and at the time of the exection of the will, the
testator didn’t know about the happening of the condition that he ahd set upon the heir, it will
be considered as if it has been complied with.
o The heir will inherit even if it will not happen again.
 o If the testator made the condition and he didn’t know that the heir had already won the
lotto, in order to inherit, that heir must again win the lotto. Unless there is no longer
complied with.
o If at the time of death of the testator, lotto can no longer operating in the Philippines, it
can no longer be complied with. Can the heir inherit? Yes.
Article 878. A disposition with a suspensive term does not prevent the instituted heir from
acquiring his rights and transmitting them to his heirs even before the arrival of the term.
 Suspensive term & condition –
 Resolutory term & condition
When we speak of term, it is something which is sure to happen. (e.g. death)
o Subject to a suspensive term - it suspends the demandability of the right. It is sure that it will
happen.
o Suspensive condition - it does not merely suspend the demandability but even the acquisition
of the right itself.
Condition
o Effect of resolutory condition upon a disposition in a will: upon the happening of the condition
or compliance of the condition, it will extinguish.
 A right that has already been acquired, but if and when upon the compliance and
fulfillment of the condition, it is extinguished or loss.
o In case in a suspensive condition - the happening of the condition will give rise to the
obligation.
 The devise or legacy is acquired if it pertains to succession.
 In terms of succession - upon the happening of the condition, successional rights arising
from the institution of an heir, devise or legacy is acquired.
 suspensive term - this is what we call as in diem and ex diem
o A legacy of education given to X starting year 2020. That is a suspensive term. (ex diem)
o If the term would ends, the legacy of support until X becomes 30 years old. When the term
comes, it extinguishes the obligation or stops the support. (in diem)
Article 879. If the potestative condition imposed upon the heir is negative, or consists in not doing
or not giving something, he shall comply by giving a security that he will not do or give that which
has been prohibited by the testator, and that in case of contravention he will return whatever he
may have received, together with its fruits and interests.
 Potestative condition is one which is imposed in the negative. (If the heir will not smoke) –
Upon the death of the testator, will the heir inherit? Yes. But he is required to post a bond.
o Purpose of the bond: for security (the security will answer in the event that the heir will not
comply with the condition.
o He has to return the inheritance if he fails to comply with the condition
Article 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed
under administration until the condition is fulfilled, or until it becomes certain that it cannot be
fulfilled, or until the arrival of the term.
The same shall be done if the heir does not give the security required in the preceding
article.
 In 879, if the will not post a bond, the inheritance will be under administration.
 In 880, it is subject to a suspensive condition or term. There is suspension as to the
demandability of the right until the condition is fulfilled. While the condition is not yet fulfilled,
the inheritance will be under administration.
Article 881. The appointment of the administrator of the estate mentioned in the preceding article,
as well as the manner of the administration and the rights and obligations of the administrator
shall be governed by the Rules of Court.
 When in a will, the testator designates a person who will manage its properties and
compliance of his will, he is considered as an executor.
 If he dies without a will, it is the Court who appoints an administration in order to manage the
estate of the person.
Article 882. The statement of the object of the institution, or the application of the property left by
the testator, or the charge imposed by him, shall not be considered as a condition unless it appears
that such was his intention.
That which has been left in this manner may be claimed at once provided that the
instituted heir or his heirs give security for compliance with the wishes of the testator and for the
return of anything he or they may receive, together with its fruits and interests, if he or they should
disregard this obligation.
 Speaks of modal institution of an heir.
 In modal institution, there is an object of the institution or there is a purpose or cause of the
institution,
 If there is a purpose (e.g. I give X a legacy of 20 million in order that he will obtain a legal
education)
 In the will, it must be clearly and expressly indicated by the testator that he intends to have or
to come up with a modal institution.
Article 883. When without the fault of the heir, an institution referred to in the preceding article
cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner
most analogous to and in conformity with his wishes.
 If the person interested in the condition should prevent its fulfillment, without the fault of
the heir, the condition shall be deemed to have been complied with.

Article 884. Conditions imposed by the testator upon the heirs shall be governed by the rules
established for conditional obligations in all matters not provided for by this Section

Article 885. The designation of the day or time when the effects of the institution of an heir shall
commence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession until the arrival
of the period or its expiration. But in the first case he shall not enter into possession of the property
until after having given sufficient security, with the intervention of the instituted heir.