ATTY.
LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
June 17, 2019 P.1– Palma Gil
Introduction:
"The Testament" by John Grisham Introduction
New York, John is a billionaire with several assets; with
several wives and children; he had 3 families; he made several
wills and now he made another will. Because he knew that his
heirs will contest his will when he dies he calls all his heirs for a
meeting.
Before the meeting, although the will was
confidential nag buhat syag sturya nga ang will provides for equal
shares among the heirs; he asked them to bring psychiatrist to
make sure for his mental condition; because that meeting was also
for the purpose of signing his will; al of the children attended, the
ex wives, the lawyers and the three psychiatrist; the psychiatrist
asked questions to make sure he was of sound mental condition;
he answered all of them.
Eventually, they all confirmed that he was of sound
mind, that he was fit to execute a last will and testament. He
signed the will, and then after mga chika chika they left; 5 mins
after the meeting he was left his room. One lang iya kauban, iya
lawyer. He then tore the will, which he made, he shreded it and he
executed another one in his own handwriting, he only instituted a
sole beneficiary, none of his children - a certain person named
rachel, who at that time cannot be located, he gave that to his
lawyer and jumped off the building. (LOL)
So, in that case, what are your thoughts? what would be the
possible legal questions?
*nanawag si maam syempre gipang kulbaan mi first day palang
recit na? pero di man graded so kalma lang, miss U answers lng
gwapa-gwapa, luto-luto lavan lng gyud*
When you say succession, it talks about death and some say it is
morbid. The law on succession cannot apply without death. But
we don't discuss what happens to the person after death haha but
what will happen to the property, rights obligations that he will
leave upon death.
Succession primarily talks about the transmission of Property,
Rights, and obligations upon death. so kung wala syay properties
rights and obligations okay lang humana problema.
Why do we bother studying succession?
BASIS OF SUCCESSION.
Why do we have the laws on succession?
1) Natural Law – it is in the nature of man to really provide for the
ones whom he would leave behind; it is human nature for us to
provide something to those we leave behind. It's human nature;
Under the law on wills, a person can actively choose the
recepients of his property if he fails to execute a will then we have
the law on legal succession, under that this is the law which
apportions the properties among the heirs of the legal decedent.
2) Based on Social Economic Postulate – the purpose is to
prevent the property from becoming idle. Once a person dies, his
properties are not buried with him but are left. If we do not
determine or provide to whom shall these properties go then these
properties will be left idle.
Here we have a person who owns properties, if we don't have the
law on succession what happens to his property? for example the
law does not provide to whom the properties will go- so it will be
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idle. So even if a person dies we have the proper rule who will get
this property.
3) As an Attribute of Ownership – this is in relation to Article 428
on the Law on Property
Article 428. The owner has the right to enjoy and dispose of a
thing, without other limitations than those established by law.
The owner has also a right of action against the holder and
possessor of the thing in order to recover it.
The right to dispose covers not only the right to dispose inter vivos
or during the lifetime, but also upon death. Because if we will limit
the right only to transfers during the lifetime of the person, then his
ownership will be hampered.
So that is also part of attribute of ownership, you can control he
disposition of your property not only during your lifetime but even
after your death; although you make the dispositions during your
lifetime and it will take effect upon death; so these are the bases of
succession.
Q: Is Succession a Constitutional Right? Is the right to inherit
a constitutional right? Is there a specific provision in
the constitution telling us how we will inherit?
A: there's no succession right given under the Constitution.
But there is a provision under the 1987 Constitution which
mentions Succession: (In relation to ownership of lands in the
Philippines) Can foreigners own lands in the Philippines? General
rule they cannot.
However in Article 12 Section 7 says:
Article XII. Section 7. Save in cases of hereditary succession, no
private lands shall be transferred or conveyed except to
individuals, corporations, or associations qualified to acquire or
hold lands of the public domain.
Ramirez vs. Ramirez (111 S 39 | GR L-27953 | Feb. 15, 1982)
the Court clarified what is this succession being referred to under
the Constitution; because we have 2 kinds of succession:
Testamentary and Legal;
Testamentary succession refers to that which involves a last will
and testament. The testator is able to decide who will get his
properties upon his death. So if we allow that it is very easy to
circumvent the prohibition on transfer of lands to foreigners. You
can simply stipulate that I will give my right to *name of Foreigner*
Thus what is contemplated in this case is legal succession;
Succession by operation of law; here it is not the testator who
chooses who will receive his property but it is the law. That is
allowed under the Constitution.
Although, I may add, it is not only limited to legal succession.
Because even under testamentary succession there is succession
by operation of law; Even without the will certain persons will still
receive- Succession to the Legitime or Compulsory
Succession.
Different Kinds of Succession
As to effectivity:
1) Succession inter vivos (or even for donation inter vivos)– it
refers to a transfer made during the lifetime of the transferor;
transmission of property happens during lifetime of donor;
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
2) Succession mortis causa – the transfer happens or is effective
upon death of the transferor or donor. this is not really donation,
this is succession. Further, it will be goverened by law on
succession.
Q: is Donation mortis causa and Succession mortis causa the
same specie?
A: Actually pareha na sila; They are the same; although mas
broad ang coverage sa succession mortis causa. Same pud ang
Donation Inter vivos and Succession intervivos.
Article 728 of the Civil Code
Article 728. Donations which are to take effect upon the death of
the donor partake of the nature of testamentary provisions, and
shall be governed by the rules established in the Title on
Succession.
Q: What is now the consequence if that is the rule? For
example, A gave this land in Calinan Davao to B; in a Deed of
Donation. It is provided in the deed that title shall vest upon B upon
the death of A. That donation is accepted, and acknowledged in a
public document (which is the formality required for donation of
real property) Now, is B after accepting and occupying the
property, is he now considered the owner of the property? Did it
convey title to B? Now what happens if A dies, can B now say: "Ok
I admit during the lifetime of A the ownership of the land still
remained with him but now he is dead and pursuant to the Deed I
am now the owner of the land" Is that correct? is B correct? Is B
the Owner?
A: NO! the document itself is not a valid document to transfer
property to B upon the death of A because under Art 728 it shall be
governed by the law on Succession (as it is a testamentary
disposition) and under the Law on Succession the only document
that can transfer ownership upon death of testator is a last will and
testament; So for that intended conveyance to take effect and
transfer ownership to B upon death of A it has to be in the form of
last will and testament. Thus even if they complied with he forms of
Donations, but because it is intended to take effect mortis causa, it
is a testamentary disposition and must be in the form of last will
and testament.
June 17, 2019 P.2 – Rosal
You have to know the distinctions between a donation inter
vivos/succession inter vivos from a donation mortis
causa/succession mortis causa.
Why? To know what formalities shall be observed in the execution
of the document.
If the intention is that the donee shall already own the property
during the lifetime of the donor, then you follow the forms of
donation. But if the intention is for the so-called donor to give the
property to the so-called donee upon the death of the donor, then
that is succession. You follow the forms of wills.
You might think, sayon man lang diay na sya ma'am. Kung
donation inter vivos, meaning transfer during the lifetime. Kung
mortis causa, transfer happens upon death. Sayon lang sya
ingnon pero kung tagaan na kag daghan facts, maglisod naka
determine kung unsa ba ni sya, inter vivos or mortis causa? And
this is evident with the number of cases which reached the
Supreme Court, and the question is whether it is donation inter
vivos or donation mortis causa.
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GANUELAS v CAWED
(401 SCRA 447, April 24, 2003)
The title of the document here was a Deed of Donation.
That, for and in consideration of the love and affection
which the DONOR has for the DONEE, and of the faithful
services the latter has rendered in the past to the former,
the said DONOR does by these presents transfer and
convey, by way of DONATION, unto the DONEE the
property above, described, to become effective upon the
death of the DONOR; but in the event that the DONEE
should die before the DONOR, the present donation shall
be deemed rescinded and of no further force and effect.
What is this disposition? Is this donation inter vivos or
donation mortis causa? Did this document convey
ownership to the donee?
Mortis causa. As evident in the portions of the document
saying, "To become effective upon the death of the
donor; in the event that the donee should die before the
donor, the present donation shall be deemed rescinded
and shall have no force and effect."
In this case please remember the distinguishing characteristics of
a donation mortis causa. You have to memorize.
THREE (3) DISTINGUISHING CHARACTERISTICS OF A
DONATION MORTIS CAUSA:
1. It conveys no title or ownership to the transferee
before the death of the transferor; or, what amounts
to the same thing that the transferor should retain
the ownership, full or naked, and control of the
property while alive
So if upon reading the document it shows that the title over the
property remains with the donor during his lifetime and it will be
transferred or vested only to the donee upon his death, that's
donation mortis causa.
What kind of ownership are we talking about here? If the donor
retains the title, it could either be:
Full title. Meaning the title itself and the beneficial use, and upon
his death he will transfer it to the donee. That's mortis causa.
Naked title. The donor retains the naked title but he already
transfers the beneficial use or beneficial ownership to the donee.
So what does beneficial use or beneficial ownership entail?
Cultivation, possession, enjoyment of the fruits, those kinds of
attributes. Still, that is donation mortis causa, as long as there is
title retained by the donor and he intends to transfer that title to the
donee only upon his death.
2. That before his death, the transfer should be
revocable by the transferor at will ad nutum; but
revocability may be provided for indirectly by means
of a reserved power in the donor to dispose of the
properties conveyed
If it is provided in the Deed of Donation that this donation shall be
revocable at will by the donor, that is actually a donation mortis
causa. Why? Because revocability is a characteristic of a last will
and testament. Wills are essentially revocable even without any
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
reason, he can always revoke that. So even if a donation is like
that, it is actually a testamentary disposition.
Or even if the word "revocable" is not used in the document but it
says that the donor has reserved to himself the power to dispose
of the properties conveyed.
Meaning, how can it be a donation? Donation, in its real sense,
already passes ownership to the donee during the lifetime of the
donor. When you say transfer, the donor has already lost
ownership. After donation, he can no longer sell the property. So, if
it says in the donation that I reserve the power to dispose of the
property, he has not really parted with his ownership. Again, that is
equivalent to revocability. In that case, it is a testamentary
disposition, not a real donation.
3. That the transfer should be void should the
transferor survive the transferee
Pag namatay una si donee kay donor, mawala ang donation. Wala
effect ang donation.
Why? In a real donation (inter vivos), once the donation is
perfected, the ownership is transferred to the donee. If the donee
dies ahead of the donor, the property will not return to the donor. It
will be inherited by the heirs of the donee.
But if you say in the donation that if the donee dies ahead of the
donor, the donation shall be void and shall have no force and
effect, that is another characteristic of a testamentary disposition.
Why? In succession, the heir should survive the decedent. The
decedent is the person who dies. That is a requirement for you to
inherit. If that is the provision, it is really a testamentary disposition.
Discussion on Ganuelas v Cawed: Based on these standards, the
Supreme Court said, clearly to become effective upon the death of
the donor, it is mortis causa. The other provisions saying that in
the event that the donee shall die before the donor, the donation
shall be rescinded and shall have no force and effect, means again
that it is mortis causa because it requires that the donee should
survive the donor, which is not a requirement in a real donation.
How about the fact that in a Deed of Donation it was stated that it
is in consideration of love and affection? That the underlying
consideration in donation is love and affection. Is that correct?
The Supreme Court said no. Even succession is founded in
consideration of love and affection. So it is not relevant. It does not
distinguish. Succession inter vivos/Succession mortis causa and
Donation inter vivos/Donation mortis causa are all founded on
consderations of love and affection.
CUEVAS v CUEVAS
(GR No. L-8327, December 14, 1955)
“Dapat maalaman ni Crispulo Cuevas na samantalang
ako ay nabubuhay, ang lupa na ipinagkakaloob ko sa
kaniya ay ako pa rin ang patuloy na mamomosecion,
makapagparatrabaho, makikinabang at ang iba pang
karapatan sa pagmamayari ay sa akin pa rin hanggang
hindi ko binabawian ng buhay ng Maykapal at ito naman
ay hindi ko nga iya-alis pagkat kung ako ay mamatay na
ay inilalaan ko sa kaniya."
What is this disposition? Is this mortis causa or inter
vivos?
Inter vivos. The decisive proof that this donation is inter
vivos lies in the final phrase to the effect that the donor
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may not dispose or take away the land because I am
reserving it upon my death. “Hindi ko nga iya-alis”
meaning I will not dispose of it. It was already given to
him.
The Supreme Court said the words “at ang iba pang
karapatan sa pagmamayari”, other attributes of
ownership, should be interpreted in the same sense as
the words which preceded the phrase under the rule of
ejusdem generis. Possession, cultivation, harvesting,
and all other rights and attributes of ownership.
The phrase “all other rights of ownership” should be
interpreted in the same sense as “possession, cultivation,
etc.” So only beneficial ownership. When examined, what
was only retained by the donor during her lifetime was
the beneficial use of the property. She had already
parted with the legal title over the property.
What will go to the done upon the death of the donor?
Because it mentions “I am reserving it to him upon my
death”. It’s actually the beneficial use of the property
(possession, cultivation, etc.) because she has already
given the naked title to the donee.
The Supreme Court also said that it was necessary for the donor
to specify that she retained possession, enjoyment, etc. because if
she should not specify that in the deed of donation, everything will
go to the done. Ownership, as a general rule, includes those
attributes. So kung silent lang ang iyang deed of donation,
everything will go to the done. But if she wanted to reserve for
herself the beneficial ownership, then she had to specify. But upon
her death, that also goes to the donee.
DEL ROSARIO v FERRER
(GR No. 187056, September 20, 2010)
The title of the document is Donation Mortis Causa.
It is our will that this Donation Mortis Causa shall be
irrevocable and shall be respected by the surviving
spouse.
It is our will that Jarabini Gonzales-del Rosario and
Emiliano Gonzales will continue to occupy the portions
now occupied by them.
It is further our will that this DONATION MORTIS CAUSA
shall not in any way affect any other distribution of other
properties belonging to any of us donors whether testate
or intestate and wherever situated.
It is our further will that any one surviving spouse
reserves the right, ownership, possession and
administration of this property herein donated and
accepted and this Disposition and Donation shall be
operative and effective upon the death of the DONORS.
The deed has no attestation clause and only had 2
witnesses. The donees however signify their acceptance
on the same of the document.
Is this a donation inter vivos or a donation mortis causa?
Inter vivos.
It is not the title of the document which governs. We
interpret the document according to the contents.
Assuming it is mortis causa, notarial wills require an
attestation clause and at least 3 witnesses. So it is not
valid.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
That the document in question is entitled Donation Mortis
Causa is not controlling. If a donation by its terms is inter
vivos, this character is not altered by the fact that the
donor titles it Mortis Causa.
What makes this disposition inter vivos? The Supreme
Court here focused on the provision of irrevocability.
Irrevocability is a quality absolutely incompatible with the
idea of conveyances mortis causa, where revocability is
precisely the essence of the act (because it is revocable).
In this case, the Supreme Court reiterated the 3
distinguishing characteristics of a donation mortis causa.
“the right, ownership, possession and administration of this
property herein donated and accepted and this Disposition and
Donation shall be operative and effective upon the death of the
donors”
It has the same ruling with the case of Cuevas v Cuevas. If you
notice, if this is usually the tenor of the document, the ruling of the
Supreme Court is more on inter vivos. Usually the Supreme Court
says that the naked title is already given to the donee. That’s why
they have to mention in the document that they retain the
possession, cultivation, etc. so as to make it clear that these are
not given yet.
“shall be operative and effective upon the death of the donors”
In this case we are referring to the transfer of the beneficial
ownership to the donee because the naked title has already been
conveyed during the lifetime of the donor. So limited lang sa
beneficial ownership. That is the one transferred or is vested upon
the death of the donor.
VILLANUEVA V SPOUSES BRANOCO
(GR No. 172804, January 24, 2011)
The document is titled Deed of Donation.
In the document, Rodrigo donated a specific parcel of
land to Rodriguez. Under the deed of donation, the
property was described. It was mentioned:
“I give, devise said land in favor of Rodriguez, her heirs,
successor and assigns. The property is now in
possession of Rodriguez since May 21, 1962 in the
concept of an owner. But the deed of donation or the
ownership be vested upon her upon my demise.
If herein done predeceases me, the same land will not be
reverted to the donor but will be inherit4ed by the
successor of Rodriguez, the donee. “
In the same document, Rodriguez manifested her
acceptance and said:
“I am much grateful to her and pray for her for longer life.
However, I will give ½ of the produce of the land to the
donor during her lifetime.”
After the donation, the donee entered the property and
paid taxes. After the deed of donation was executed, the
donor sold the land to another person.
Allegations of the donee:
I am the owner of the land because this land was
donated to me by the donor who is the seller also, and
the donation happened before the sale. So in reality the
donor had no right to sell the land anymore because she
already lost ownership when she donated the land to me.
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Allegations of the buyer:
I am the owner of the land because this was sold to me
by Rodrigo, the registered owner. What you had was not
a real donation but a donation mortis causa. First, it is not
valid because it is not in the form of wills. It is in the form
of a deed of donation. Second, assuming that it is in a
form of a last will and testament, the subsequent sale is
an act of a revocation of a will.
W/N it is a donation inter vivos or a donation mortis
causa. Donation inter vivos.
The Supreme Court reiterated the distinguishing characteristics of
a donation mortis causa.
But the Supreme Court added 3 more characteristics. So there are
6 distinguishing characteristics now:
4. The specification in a deed of the causes whereby
the act may be revoked by the donor indicates that
the donation is inter vivos rather than mortis causa
So kapag nag-enumerate si donor in the deed of donation what
are the causes for revocation, that is a real donation (inter vivos),
kay if it is mortis causa you don’t need to specify any ground. You
can just revoke for any cause or even if you don’t have a cause.
5. That the designation of the donation as mortis causa,
or a provision in the deed to the effect that the
donation is to take effect at the death of the donor,
are not controlling criteria; such statements are to be
construed together with the rest of the instrument in
order to give effect to the real intent of the transferor
So dili sya automatic kung naa gani sa document na, “to be vested
upon my death to the donee; to be transferred, to be operative only
upon my death” dili na sya automatic na mortis causa sya. You
have to reconcile that with the rest of the provisions of the
document.
6. That in case of doubt, the conveyance shall be
deemed donation inter vivos rather than mortis
causa, in order to avoid uncertainty as to the
ownership of the property subject of the deed
So in case of doubt, resolve that doubt in favor of inter vivos.
Because the Supreme Court said it is more in keeping with the
certainty of ownership.
Why? Kung mortis causa man gud, it is essentially revocable.
Even if the document says this shall go to A, di pa jud na sure na it
will go to A. The testator might change his mind and give it to X or
maybe A will die ahead. So maayo nang donation inter vivos kay
pag-ingon na this will go to A, kay A na jud na sya. The testator
cannot change his mind, and if A dies ahead, it will go to
successors of A gihapon. So interpret in favor of donation inter
vivos.
Discussion on Villanueva v Sps. Branoco: Even if there is a
provision in the document saying “but the deed of donation or
ownership be vested on her upon my demise” there’s also a
provision saying “if the donee predeceases me, the same land
shall not be reverted to the donor but shall be inherited by the heirs
of the done”. It also mentions that the land was already given as
early as 1962, and there was a provision where the donee gives ½
of the proceeds of the land to the donor.
Taking into account all these provisions, the Supreme Court said
this is really inter vivos. That provision again saying na “shall be
vested on her upon my demise” that is limited only to beneficial
ownership. Because it is very clear in the document that the
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
beneficial ownership insofar na the half of the proceeds of the land
are concerned, kay donor gihapon. So upon her death, that will go
to the donee.
How about the fact that after the donation, the donor sold the
property to another person? Would that be indicative of the
intention that the donation is mortis causa?
The Supreme Court again said no. The Court said, nor can the
petitioner capitalize on Rodrigo’s post-donation transfer of the
property as proof of her retention of ownership. If such were the
barometer in interpreting deeds of donations, not only will great
uncertainty be visited on gratuitous dispositions, this will give
license to rogue property owners to set at naught perfected
transfers of titles, which, while founded on liberality, is a valid
mode of passing ownership. The interest of settled property
dispositions counsels against licensing such practice.
The Court did not consider it as indicative of a donation mortis
causa. Gikasab-an sya kay imo na ganing gi-donate ang property,
karon imo na pud ibaligya.
Art. 774. Succession is a mode of acquisition by virtue of
which the property, rights and obligations to the extent of
the value of the inheritance, of a person are transmitted
through his death to another or others either by his will or
by operation of law.
Article 774 defines succession. From the definition, the following
are evident:
1. It is a mode of acquisition
It is a way by which one acquires ownership. If you
remember your Law on Property, there are several
modes of acquisition.
Art. 712. Ownership is acquired by occupation and by
intellectual creation.
Ownership and other real rights over property are
acquired and transmitted by law, by donation, by estate
and intestate succession, and in consequence of certain
contracts, by tradition.
They may also be acquired by means of prescription.
Based on Art. 712, succession is a mode of acquiring ownership
along with other modes occupation.
Based on this, we can actually classify the modes of acquisition
into 2:
A) Original mode
B) Derivative mode
In original mode, there is no prior owner. You are the first owner of
the property. Example, intellectual creation: poems and songs.
Derivative mode meaning there is a prior owner and because of
this modes, ownership is transferred to another.
Succession is a derivative mode of acquiring ownership
because it is passed on from the decedent to the heirs.
What are acquired by virtue of succession based on Art. 774?
1. Properties
2. Rights
3. Obligations
Take note, insofar as obligations are concerned, the law says to
the extent of the value of the inheritance.
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So if you’re asked, will the heirs inherit the obligations of the
decedent? Yes, but only to the extent of the value of the
inheritance. If the estate of the decedent is 10M and the debt is
12M, naa ba transmission? Naa gihapon. What will happen? They
will acquire the property plus the debts. But because they cannot
be held liable beyond the value of what they received from the
decedent, up to lang sa properties. So 10M lang ang extent sa
transfer sa obligation. Ang 2M unsaon man? Sorry nalang kay
wala na. That’s the consequence.
July 5, 2019 – Cagas
So we now start with Article 774 with the definition of succession.
Art. 774. Succession is a mode of acquisition by virtue of
which the property, rights and obligations to the extent of the
value of the inheritance, of a person are transmitted through
his death to another or others either by his will or by
operation of law.
Based on Article 774, it is a mode of acquisition. so, in the same
manner that property is acquired by novation, intellectual creation,
sale, donation, so we also acquire property by Succession. So
under Article 712.
Art. 712. Ownership is acquired by occupation and by
intellectual creation.
Ownership and other real rights over property are acquired
and transmitted by law, by donation, by estate and intestate
succession, and in consequence of certain contracts, by
tradition.
They may also be acquired by means of prescription.
So that gives us the Article saying that succession is a mode of
acquisition. Now, what kind of mode are we referring to? Because
there are two modes of acquisition.
If you read Article 712 there are two modes:
1. the original mode and
2. the derivative mode.
Original mode
Meaning there is no prior owner, you are the first owner either
because you created like in intellectual creation so you are the first
owner that's the original mode.
Derivative mode
There is a previous owner and the ownership is passed for one
person to another just like sale, just like donation, just like
succession.
So, succession is a derivative mode of acquiring ownership.
There is a prior owner the decedent and the ownership is
transferred to the heirs or successors.
What is transferred by virtue of succession?
1. The property,
2. rights and
3. obligations.
So, succession is not the property, it is not the right to an
obligation, it is the mode by the property, rights and obligations are
transferred by succession.
When it comes to obligations take note, that the law says to the
extent of the value of inheritance.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
So the question is for example; Can you inherit the debts of your
parents? The rule says properties, rights and obligations to the
extent of the value of the inheritance so when you say to the extent
of the value of the inheritance meaning didto lang kutob on how
much did you inherit.
If you inherited properties worth 10Million and the debts were 8
million, you will pay the debts net nimu na madawat could be 2
million.
What if the debts are 12 Million? The inheritance, the properties
are 10 Million, how much will the heirs be obliged to pay? Only up
to 10 Million which is the value of inheritance.
So, in other words the heirs cannot be made personally liable for
the debts of the decedent, so only to the extent of the value of the
inheritance.
How is the transmission done by succession? The law says,
upon his death. So, in general as we will discuss later, it requires
the intervention of death to transfer ownership by means of
succession.
General Rule: There can be no transfer of properties, rights and
obligations, by succession without death.
How is it done? The law says either by will or by operation of
law.
Let's proceed to Article 775.
Art. 775. In this Title, "decedent" is the general term applied to
the person whose property is transmitted through
succession, whether or not he left a will. If he left a will, he is
also called the testator.
Decedent is the term of a person who died with or without a will.
Testator if he left a will. So, you can interchange, you can use
decedent in general but of course para ingnun na Bright mo
testator gyud kung naay last will and testament.
Let's go to Article 776.
Art. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his
death.
So this is related to Article 774. So what is transmitted by
succession, you have the properties, the rights, and obligations.
So these will comprise the inheritance.
The properties rights and obligations which are not extinguished
by death.
If you are asked to distinguish succession from inheritance:
SUCCESSION INHERITANCE
The mode of acquisition We are referring to
the properties
rights and
obligations which
are transmitted by
succession.
Let's got to the subjects of succession. What are the subjects of
succession? These are properties rights and obligations which are
not extinguished by the death of the decedent.
What are these Properties which are transmitted by
succession? Real properties or immovable properties, personal
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properties or movable properties. We also have tangible or
incorporeal properties. They are all considered as properties.
As a general rule in succession they can be transferred from the
decedent to the heirs. Now, can we say that the concept of
property in other related laws and the constitution, the Labor
Code? They are also applicable to succession. Now, some you
can apply but not all because mas broad ang coverage ug
meaning sa property under the constitution and under the Labor
Code.
If you remember. No person shall be deprived of life liberty and
property without due process of law. As we have learned before,
the term property includes employment. That's why under the labor
code di ba there are several requisites for an employer to
terminate the services of the employee either by just cause or
authorized cause. Because it’s also covered by the rule on due
process. So, employment under the constitution under the labor
code is considered as property. How about in succession? Can
you say as the manager of this bank I will pass on my position to
my son. You cannot do that. The term property in succession does
not include employment. How about if you are a Public officer? So
you are a governor etc, can you pass on your position? Of course
You cannot because that is an elective office even if appointive
office. In fact, that is not considered a property that holding a
public office is a privilege. It is not a property right.
In succession, you cannot pass on employment, public office, you
cannot be considered as a property. What are the properties that
are included in succession? Please remember these requirements.
1. the properties must not be outside the commerce of
men,
2. it must not be prohibited by law,
3. it must not be res nullius,
4. it must not be res communes.
Not be prohibited by law
You have one warehouse full of shabu? Can you pass that on
you're children on succession? Of course not di ba? You cannot
pass that on because that is prohibited by law.
Not be res nullius
Or You have been living under Bangkerohan bridge for 50 years.
You have a structure there, when you die can you pass that on?
No, because that is res communes.
Not be res communes
You have been using solar power for 50 years, so you are saying
na I'm passing on the sun to my children? You cannot do that
because that is res nullius. Or kaning mga isda dire na
nagalangoy, sige man mo gapamingwit, akong anak dapat
mamingwit diha once I die. Unsay tawag ana? Can you give that
by will? Kung nadakpan na ninyo ang isda pwede pero pag
naglanguy pa sila sa dagat dli because that is considered res
nullius. So, you cannot pass them on by succession.
Human body
How about the Human Body? Because I love my boyfriend and
three days from now I am going to die, naa kay terminal na illness I
hereby declare that my heart will be given to my boyfriend as
legacy. Can you do that?
General rule: The human body is not capable of appropriation.
Exception: Organ Donation Act or RA 7170.
Under the organ Donation, it actually allows a donation or a
legacy of a certain part of organs of the human body but you have
to know that the purposes are specified and the recipients are
specified. You cannot just give indiscriminately give by way of
donation or will a body parts or organs of the Body.
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Let's go to Section 6.
Section 6. Persons Who May Become Legatees
or Donees. – The following persons may become
legatees or donees of human bodies or parts
thereof for any of the purposes stated hereunder:
(a) Any hospital, physician or surgeon -
For medical or dental education, research,
advancement of medical or dental
science, therapy or transplantation;
(b) Any accredited medical or dental
school, college or university - For
education, research, advancement of
medical or dental science, or therapy;
(c) Any organ bank storage facility - For
medical or dental education, research,
therapy, or transplantation; and
(d) Any specified individual - For therapy or
transplantation needed by him.
Please remember who are the recipients and for what purposes
nakaspecify jud na sya and if you notice the purposes would be
education research, science, therapy, not for sentimental reasons
it has to fall under the provisions of Organ Donation Act.
How can you give these organs? Under Section 8
Section 8. Manner of Executing a Legacy. –
(a) Legacy of all or part of the human body
under Section 3 hereof may be made by
will. The legacy becomes effective upon
the death of the testator without
waiting for probate of the will. If the will
is not probated, or if it is declared invalid
for testamentary purposes, the legacy, to
the extent that it was executed in good
faith, is nevertheless valid and effective.
(b) A legacy of all or part of the human body
under Section 3 hereof may also be made
in any document other than a will. The
legacy becomes effective upon death of
the testator and shall be respected by and
binding upon his executor or
administrator, heirs, assigns, successors-
in-interest and all members of the family.
The document, which may be a card or
any paper designed to be carried on a
person, must be signed by the testator in
the presence of two witnesses who must
sign the document in his presence. If the
testator cannot sign, the document may
be signed for him at his discretion and in
his presence, in the presence of two
witnesses who must, likewise, sign the
document in the presence of the testator.
Delivery of the document of legacy during
the testator's lifetime is not necessary to
make the legacy valid.
(c) The legacy may be made to a specified
legatee or without specifying a legatee. If
the legacy is made to a specified legatee
who is not available at the time and place
of the testator's death, the attending
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physician or surgeon, in the absence of
any expressed indication that the testator
desired otherwise, may accept the legacy
as legatee. If the legacy does not specify
a legatee, the legacy may be accepted by
the attending physician or surgeon as
legatee upon or following the testator's
death. The physician who becomes a
legatee under this subsection shall not
participate in the procedures for removing
or transplanting a part or parts of the body
of the decedent.
(d) The testator may designate in his will,
card or other document, the surgeon or
physician who will carry out the
appropriate procedures. In the absence of
a designation, or if the designee is not
available, the legatee or other persons
authorized to accept the legacy may
authorize any surgeon or physician for the
purpose.
You can give by way of donation or by way of will. We will discuss
wills. The organs of the Human body are considered under the
purview of Organ donation Act personal properties. That's why
they are termed as legacy gift of specific personal properties. It
has to be pwede donation pwede pud last will. Ang Problema man
gud sa donation kay syempre you don't have to wait for the death
of the donor, what if heart ang gihatag? Buhi pa ka kuhaon pa kag
heart, so usually legacy pud sya pwede siguro kung kidney pero
kung brain heart maghulat na lang jud ka kanusa mamatay si
testator. So legacy, it is embodied in a last will and testament.
Now, it is basic in succession that there is a will it has to be
probated.
What is Probate?
It is mandatory that if there is a will it has to be probated. When
you say probate it is a proceeding intended to determine the
genuineness and due execution of the will, it does not follow na
there is a last will and testament and then magpirmahanay na
notrayuhan na, once na mamatay si testator makuha ang property,
no. It has to pass probate.
Meaning, a Petition for the probate of the will would have to be
instituted before the proper court and then the court will determine
kung valid ba sya for all we know basig fake diay tung last will and
testament or napugsan ra si testator when he made it or buang
sya when he made it. The court has to be satisfied na valid sya. In
Reality, probate proceedings take forever. Usahay namatay na
lang tung heirs wa gihapon na hatagan sa property wa gihapon
nahuman ang probate. Nubo ra ng 10 years ba.
Sa probate special proceeding man na sya, daghan na sya sanga
sanga so dugay sya mahuman and then sa imung will naghatag ka
og heart sa imung boyfriend na kihanglan og transplant. So,
meaning mauna kag mamatay sa imung boyfriend kay imu man
gihatag imung heart sa iyaha. So karun, 10 years pa iyang hulatun
para makuha ang heart, that's why under Section 8 it is not
required that the will should be first probated before the
legacy can be given effect so pwede na pag namatay kay urgent
man ang need so ihatag na ang heart karun.
What if later on mao diay ang will? Bawiun sa boyfriend ang heart
kay void man ang will. Daghan reasons for it to be void for
example wala ang witnesses void na na sya or dili valid imung
attestation clause etc. So bawiun na lang naku ang heart kay
invalid man ang will? The law says if the will is not probated or if it
is declared invalid for testamentary purposes, as long as it is
made in good faith it is nevertheless valid and effective.
.
 ATTY. LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE
ATENEO DE DAVAO UNIVERSITY Class Transcription
College of Law III – Manresa 2019

What is Bad faith?
Bad faith diay di namu magdaug. I have yet to say a case na gusto
baiwun ang organ no kay ang will diay was made in bad faith.
Pwede na sya under the law kay ingun sa law good faith so valid
gihapon tong legacy. That is with respect to property that are
transmitted by succession. Please also remember that when you
speak of property as a subject of succession in general we are
referring to properties owned by the decedent. You cannot say na I
hereby donate the house of my neighbor to my son. Generally that
is not valid, I say generally because there are actually exceptions.
So pwede diay muhatag ug house and lot sa akong silingan sa
akong anak.
Well nay possibility. Pwede na siya under the law when we go to
legacies and devises.
Let’s proceed to rights.
What rights can be transmitted through succession? Under this
category, there are two kinds of rights:
1. Patrimonial rights
2. Purely personal rights
Patrimonial rights
Rights which are related to properties, property rights or
patrimonial rights.
GR: With respect to patrimonial rights, they are transmissible by
succession.
How about purely personal rights? They are NOT transmissible by
succession.
Dr. Leuterio here, applied to be part of the group life insurance.
Later on, he died because of massive cerebral hemorrhage. The
wife, demanded to be paid the proceeds of the insurance kay
maforclose man ang mortgage kung dili bayaran pero nirefuse
man si GREPA Life so that’s why the wife filed for claims against
GREPA Life.
Now what was one of the defenses of GREPA Life? According to
GREPA Life, you know the concept of lack of legal personality.
The wife had no personality to sue because she was not a party to
the insurance contract. The contract was between GREPA Life
and DBP and Dr. Leuterio was the insured. So she had no
standing in that case according to GREPA Life.
The SC said, the rights under an insurance policy are
transmissible to the heirs. A policy of insurance upon life or health
may pass by transfer, will or succession to any person, whether he
has an insurable interest or not, and such person may recover it
whatever the insured might have recovered.
Here Dr. Leuterio was the insured. So he had the rights under that
insurance policy that those rights are related to property, the
housing loan and also the house subject of the mortgage. So upon
his death, his rights over that insurance policy were transmitted to
his heirs including his house. The spouse has the legal personality.
3. Right to institute an action for forcible entry or unlawful
detainer
If you are the owner of a property, and it is occupied by another,
can you still remember the distinctions between an unlawful
detainer and forcible entry?

Lets discuss examples of patrimonial rights. UNLAWFUL DETAINER FORCIBLE ENTRY

It’s either that the person is If you are the possessor
1. Contractual rights possessing the property by of the property and then
reason of tolerance of the you have been
Example: In a contract of lease. So the rights arising from that owner and it is in the implied dispossessed by reason
contract are patrimonial rights. Based on the general rule, the understanding now wants to of force, intimidation,
rights arising from the contract are transmissible to the heirs of the use the property, the strategy, threat or
parties. possessor will vacate. So stealth. You can institute
when the tolerance of the an action for forcible
If the lessor dies, the rights of the lessor to collect rentals can be owner has ended and now he entry.
passed on to the heirs. If the lessee dies, the rights of the lessee demands from the possessor
for example to remain in peaceful possession of the leased to vacate, he will not vacate.
premises as long as you pay the rent shall also be passed on to
the heirs of the lessee. So one cannot say that the lease contract Or maybe there is a lease
is now extinguished because wala naman ang original parties. No, contract and it has now
general rule, rights arising from a contract of lease are expired and despite the
transmissible to heirs of the parties. expiration the lessee did not
vacate. So you can file for an
2. Right to insurance action for unlawful detainer

In this case of
GREPA Life vs CA,
a contract of group life insurance was entered into by DBP and
GREPA Life. So what is this contract of group insurance all about.
DBP had housing mortgagors. These housing mortgagors
borrowed money from DBP. As a collateral for the loan, katong
mga housing units which were bought from the proceeds of the
loan are also used as collateral. So what is the purpose of the
contract of group life insurance of GREPA Life? Are you familiar
with the term mortgage redemption insurance? For example, when
the mortgagor dies before having fully paid the loan, what will
happen to the balance? It will be paid from the proceeds of the
mortgage redemption insurance. This is the danger of the
insurance entered into between DBP and GREPA Life. So to
insure the lives of the housing mortgagors of DBP.
If you have not yet instituted an action at that time, your rights can
be exercised by your heirs. Or if you have already instituted and
then you die, the action will continue. But you know, there will be
substitution. That is also a property right which can be transferred
by succession.
4. An action to compel the execution of a public document
under Art. 1357.
NCC, Art. 1357. If the law requires a document or other special
form, as in the acts and contracts enumerated in the following
article, the contracting parties may compel each other to observe
that form, once the contract has been perfected. This right may be
exercised simultaneously with the action upon the contract.
In contrast, is form essential for the validity of the contract?

.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
GR: No, contracts are valid and obligatory in whatever form they
might have been entered to provided all the essential requisites
are present. But we are referring here to consensual contracts.
EXP: There are contracts where form are essential for validity.
These are what we call formal contracts.
There are also contracts where forms are required not for validity
but merely for enforceability. These are contracts governed by the
Statue of Frauds.
There are also contracts where form is needed for convenience.
These are contracts mentioned under Art 1358 in relation to Art.
1357.
Article 1358. The following must appear in a public
document:
(1) Acts and contracts which have for their
object the creation, transmission,
modification or extinguishment of real
rights over immovable property; sales of
real property or of an interest therein are
governed by articles 1403, No. 2, and
1405;
(2) The cession, repudiation or renunciation
of hereditary rights or of those of the
conjugal partnership of gains;
(3) The power to administer property, or any
other power which has for its object an act
appearing or which should appear in a
public document, or should prejudice a
third person;
(4) The cession of actions or rights
proceeding from an act appearing in a
public document.
(5) All other contracts where the amount
involved exceeds five hundred pesos must
appear in writing, even a private one. But
sales of goods, chattels or things in action
are governed by articles, 1403, No. 2 and
1405. (1280a)
If you notice, the opening paragraph says must appear in a public
document, but in reality even if they are not in a public document
they are valid. But for example, you bought a parcel of land. What
is the requirement if it is a parcel of land or real property? Actually,
a sale of a parcel of land even if it is oral, it is valid. However,
under the Stature of Frauds, it is not enforceable. Pero kung
nagbayad na ka ug downpayment you can already prove the
existence of the contract by parol evidence. That is now taken out
of the purview of the Stature of Frauds, valid sya and enforceable.
Or maybe nagsulatay jud mo pero inyong gisulatan lang is tissue
lang, that is valid and enforcebale. But if you go to the Registrar of
Deeds because you want to register it, it has to be in a public
document. Now you go to the seller, gusto daw ni ROD na
inotarize but dili na musugot si seller, you can file an action to
compel the seller to execute the proper formalities. And that is a
patrimonial right. If you die without executing the action, that right
can be transferred to your heirs.
5. Action to recover possession
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Forcible entry and Unlawful detainer refer to possession de facto.
How about kung nay prescriptive period diba sa unlawful detainer
and forcible entry, nalampas na ka sa 1 year from demand or from
the time na nawala tong force, intimidation, etc. can you still
recover? You can no longer file an action for unlawful detainer and
forcible entry but definitely, you can file an action for recovery of
possession. You can still recover and that right can be passed on
to the heirs.
6. Right to civil liability arising from crimes
If you are the offended party, you learned that under Art. 100 of the
RPC, every person criminally liable for a felony is also civilly liable.
So you can ask for the imprisonment of the accused as well as the
civil aspect of the crime. What if the offended party dies? What
happens to the right to recover the civil liability arising from that
crime? Again, it is a property rights, as a general rule, it can be
passed on to the heirs.
7. The right to recover from tort or negligence
So nabanggan ka, nainjured ka so naospital ka, of course by
reason of your duties, you can file an action for damages against
the offender. Pero what if wala naman ka nakagawas ug hospital
kay nadayuanan ka, so kinsa karon ang mufile? Your heirs can file
the action.
As we have said as a general rule, patrimonial rights can be
transmitted by succession. But there are exceptions. Are there
patrimonial rights when even if they are considered patrimonial,
they cannot be transferred by succession. Yes. These are:
1. If there is a stipulation in the contract
Again, we said that contractual rights are transmissible to the heirs
of the decedent. Unless it is otherwise provided.
Example in a contract of lease, can it be provided in a contract of
lease na in the event that either the lessor or the lessee dies, this
contract of lease can be extinguished. Is it allowed? Yes, it is not
prohibited by law. So when that happens, if the lessor or the
lessee dies, the contract of lease is extinguished by reason of their
stipulation.
Lets discuss the case of
INOCENCIO VS. HOSPICIO DE SAN JOSE.
There was a lease contract in this case. The lessee died. So the
lessor said na pursuant to Sec. 6 of the lease contract, I do not
consent that this contract will be assumed by the heirs of the
lessee. I will now consider this contract as extinguished and
terminated.
Section 6 of their contract provides: “This contract is
nontransferable unless prior consent of the lessor is obtained in
writing.”
Is the contention of the lessor correct? The SC said no. a lease
contract is not essentially a personal in character. Thus, the rights
and obligation herein are transmissible to the heirs.
GR: Heirs are bound by the contracts entered into by their
predecessors in interest.
EXC: when the right s and obligations therefrom are not
transmissible by their nature, stipulation or by provision of law.
What about the provision in their contract? Is that not a stipulation
to the contrary that will stop the transmission of rights in the lease
contract to the heirs.
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 ATTY. LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE
ATENEO DE DAVAO UNIVERSITY Class Transcription
College of Law III – Manresa 2019

The SC said, what Sec. 6 seeks to avoid is for the lessee to
substitute a third person in place of the lessee without the lessor’s
consent. This section refers to transfers inter vivos and not transfer
mortis causa. Kanang transfers made by lessee during his lifetime
but not upon his death because transmission by succession is the
general rule. If you want to prohibit the transfer, you should it
imperative. This provision alone is not that kind of stipulation. It
should be construed merely as transfer inter vivos.
2. Usufruct
Article 603. Usufruct is extinguished:
(1) By the death of the usufructuary, unless a contrary intention
clearly appears; xxx
partners will be inherited by his children. In fact, the death of the
partner is a ground for the dissolution of a partnership.
6. Right to annuity
Article 2027. No annuity shall be claimed without first proving the
existence of the person upon whose life the annuity is constituted.
Kana bitaw na form of insurance for a certain period of time and
when you reach certain age na buhi pa ka, you will receive
annuities. That is also a property right. But once you die, the
annuity also ceases because the existence of the annuity is also
dependent on the existence of that person upon whose life the
annuity was constituted.
7. Right to revoke donation by reason of ingratitude

So if you are the donor, and you want to revoke the donation by
GR: Under Art. 603, the death of either party in a contract of reason of ingratitude, you revoke it during your lifetime. Dili na siya
usufruct extinguishes the usufruct. mainherit sa heirs.

EXC: Unless otherwise provided. 8. Commodatum

3. Agency Article 1939. Commodatum is purely personal in character.

Consequently:
Article 1919. Agency is extinguished: xxx
(1) The death of either the bailor or the bailee extinguishes the
(3) By the death, civil interdiction, insanity, or insolvency of the contract; xxx
principal or of the agent; xxx

Under the law of agency, the death of either the principal or the
agent extinguishes that contract of agency. Although naa man
siyay exceptions. For example, agency coupled with an interest.
You are the borrower. You borrowed 1 million from the creditor.
And to secure your obligation, you mortgaged your house. Under
the contract of real estate mortgage, it is stipulated na the creditor
mortgagee has the right to extrajudicially foreclose the mortgage
upon default by the debtor mortgagor. And to effect that usually,
there is what we call a special power of attorney in favour of the
creditor mortgagee to effect the extrajudicial foreclosure. What if
the debtor dies prior to the full payment of the obligation? What if
the creditor dies also? Wala na ba tong special power of attorney?
If the debtor dies, the creditor can still extrajudicially foreclose. The
SPA or agency is not terminated by the death of the creditor. The
heirs can still foreclose on the mortgagee. An SPA na giexecute in
favour of the creditor inures to the benefit of the heirs.
4. Tenancy
9. Gratuitous Deposit
Art. 1995. A deposit its extinguished: xxx
(2) In case of a gratuitous deposit, upon the death of either the
depositor or the depositary. Xxx
10. Purely personal rights (Not mentioned by maam. Lifted
from 2018 TSN.)
They are not transmitted by succession.
Examples:
1. Parental right. You cannot place in your will that you appoint X
to act as the parent of your child upon your death. The law
provides who will have substitute parental authority.

Kana bitaw mga relative na “pwede lang ko magtanom sa imong 2.
lupa?” and then pag pahawaon na nimo siya kay gamiton na nimo
ang yuta, dili na siya muhawa. Muadto na siyag DAR kay tenant
daw siya. Under RA 3844, if you are a tenant you have a security
of tenure. You cannot just be evicted from the land. 3.
Marital right. ―I hereby give my brother the right to cohabit
with my wife upon my death.‖ This is not allowed, because
the marital bond is severed already upon death.
Action for legal separation.

If it is really a tenancy agreement, you cannot just evict the tenant. 4. Right to receive support. If a person who is entitled support
If the tenant dies, mawala na ba ang tenancy? Dili gihapon. It will dies, his right dies with him.
be inherited by his heirs. What if imong lupa 1 hectare, unya 20
kabuok iyahang anak? So you say the 20 heirs will be tenant? 5. Right to vote.
There is a qualification na isa lang pud ang pwede. And it will be
the landowner who will choose kung kinsa didto ang tenant. There 6. Guardianship.
is still transfer of right but only limited. So that is also a property
right but the transmission is limited dili sa tanan na anak but only
to a specific person.

5. Right to become a partner in a partnership

In a Partnership, there is mutual trust and confidence between the

partners. There is a fiduciary relationship. If one of the partners
dies, it does not mean na ang trust reposed upon him by the other

.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
July 8, 2019 – Flores
Rights which are NOT be transmitted by succession - these
rights are PURELY PERSONAL RIGHTS, lahi pud tong
patrimonial rights but not transmissible because it is specifically
provided for by law.
PURELY PERSONAL RIGHTS
When it comes to purely personal rights, the rule is that
they are extinguished upon the death of the decedent. Purely
personal rights cannot be transmitted to the heirs, they do not
survive the decedent.
Generally, purely personal rights are not transmissible.
Examples:
1. Parental authority
e.g. the parents, when they die- they cannot pass on
their rights as parents, but the law provides for a substitute
parental authority – but NOT by succession.
2. Marital rights relating to persons or property
e.g. you are married and you are dying, you cannot
execute a will saying that your brother will be the husband of your
wife.
3. Action for legal separation
e.g. because, when one of the spouses dies, the
marriage itself will be dissolved.
4. Right to receive support
e.g. if the recipient dies, he cannot transfer his right to his
own heirs.
5. Right to vote
-it cannot be transmitted.
6. Right to become a PARTNER in a Partnership
e.g. a partnership is dissolved by the death of anyone of
the partners.
So, in a partnership there is what we call TRUST and
CONFIDENCE, the partners enjoy that and it does not mean that
your partners will also have trust and confidence in your heirs.
That is why, when a partner dies in a partnership, it is dissolved.
7. Guardianship
e.g. the rights of the guardian cannot be transmitted to
the heirs.
8. Right to Annuity
It is usually based upon the lifetime of the person over
which the annuity is constituted.
For example, you are paying premiums now, then when
you reach 60 yrs. old and still alive, you’ll receiving the annuity, but
it will stop upon your death – it will not be received by your heirs,
because the premise of annuity is that it is constituted upon the
existence of a certain person.
9. Right to revoke a donation by reason of ingratitude
It is only for the donor to exercise.
10. Right to hold public office
How about the right to hold public office?
For example, if a governor dies, will his children inherit? Of course
not. There is another law on succession under the Local
Government Code, not under this subject.
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Public office is a public trust. You cannot give it away just like any
other property or right. In fact, it is just a privilege.
OBLIGATIONS
GR: Obligations are transmitted by death, but only up to the extent
of the value of the inheritance.
However, purely personal obligations are extinguished
by the death of the person. There is no transmission with
respect to purely personal obligations.
LIU vs. LOY
[G.R. No.145982. September 13, 2004]
FACTS:
The LIUs seek a reconsideration of the Decision dated 3 July 2003
of this Court declaring void the deeds of sale of Lot Nos. 5 and 6
executed by Teodoro Vaño in favor of Alfredo Loy, Jr. and Teresita
Loy.
The Loys insist that the transaction between Teodoro Vaño and
Benito Liu, the predecessor-in-interest of Frank Liu, is
a contract to sell. In contrast, the transactions between Teodoro
Vaño and Alfredo Loy, Jr. and Teresita A. Loy were contracts of
sale. According to the Loys, the contract to sell did not transfer
ownership of Lot Nos. 5 and 6 to Benito Liu or Frank Liu because it
was only a promise to sell subject to the full payment of the
consideration. On the other hand, the contracts of sale in favor of
the Loys transferred ownership, as the conveyances were
absolute.
The Loys reiterate their contention that Teodoro Vaño, as
administrator and sole heir to the properties, can sell the lots to
them since the rights of an heir are transmitted from the moment of
death of the testator. Although a property under estate
proceedings cannot be sold without judicial approval, the Loys
allege that in their case, the probate court later approved the sales
to them, thereby ratifying the sales.
ISSUE: W/N there was a valid sale byTeodoro to the Loys. NONE
RULING:
The orders of the probate court dated 19 and 23 March
1976 approving the contracts of the Loys are void. The orders did
not ratify the sales because there was already a prior order of the
probate court dated 24 February 1976 approving the sale of Lot
Nos. 5 and 6 to Frank Liu. Hence, the probate court had already
lost jurisdiction over Lot Nos. 5 and 6 since the lots no longer
formed part of the Estate of Jose Vaño. In fact, the administratrix
of the estate filed a motion for reconsideration of the orders of the
probate court approving the contracts of the Loys because she
already executed a deed of sale covering Lot Nos. 5 and 6 in favor
of Frank Liu.
As we held in our Decision, a prior contract to sell made by the
decedent during his lifetime prevails over a subsequent
contract of sale made by the administrator without probate
court approval. It is immaterial if the prior contract is a mere
contract to sell and does not immediately convey ownership.
Frank Liu’s contract to sell became valid and effective upon
its execution and bound the estate to convey the property
upon full payment of the consideration.
It is apparent from Teodoro Vaño’s letter dated 16 October 1954
that the reason why Frank Liu stopped further payments on the
lots, leaving a balance of P1,000, was because Teodoro Vaño
could not yet transfer the titles to Benito Liu, the predecessor-in-
interest of Frank Liu. It would appear that Frank Liu and Teodoro
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Vaño lost contact with each other thereafter and it was only on 25
January 1964 that Frank Liu wrote Teodoro Vaño informing the
latter that he was ready to pay the balance of the purchase price of
the lots. Teodoro Vaño did not reply to Frank Liu’s letter. On 22
April 1966, Benito Liu sold to Frank Liu the lots, including Lot Nos.
5 and 6, which Benito Liu purchased from Teodoro Vaño on 13
January 1950. Frank Liu sent three letters dated 21 March 1968, 7
June 1968 and 29 July 1968 to Teodoro Vaño reiterating his
request for the execution of the deed of sale covering the lots in
his favor but to no avail. On 19 August 1968, Teodoro Vaño sold
Lot No. 6 to Teresita Loy and on 16 December 1969, he sold Lot
No. 5 to Alfredo Loy, Jr. The sales to the Loys were made after
Frank Liu offered to pay the balance of the purchase price of the
lots and after he repeatedly requested for the execution of the
deeds of sale in his favor.
The sale of the lots by Teodoro Vaño to Benito Liu was valid. The
sale was made by Teodoro Vaño on 13 January 1950 in his
capacity as attorney-in-fact of Jose Vaño. The sale to Benito Liu
was made during the lifetime of Jose Vaño, not after the death of
Jose Vaño who died on 28 January 1950.The power of attorney
executed by Jose Vaño in favor of Teodoro Vaño remained valid
during the lifetime of Jose Vaño.
In his letter dated 16 October 1954, Teodoro Vaño stated that on
30 June 1954, the Supreme Court allowed the probate of the will of
Jose Vaño. Teodoro Vaño likewise mentioned in the letter that in
July 1954, the Supreme Court held that all the sales made by
Teodoro Vaño of the properties of his father were legal. Thus,
Benito Liu’s deed of sale in favor of Frank Liu covering the
lots sold to him by Teodoro Vaño constitutes a valid charge
or claim against the estate of Jose Vaño.
Case discussion 2016:
Q: Which of the two contracts should prevail in this case?
A: The Contract to Sell between Teodoro and Benito Liu made
during the lifetime of Jose and the Contract of Sale between
Teodoro and the spouses Loy.
The Contract to Sell between Teodoro and Frank Liu should
prevail.
The SC held that while a Contract of Sale has greater force and
effect than a Contract to Sell, the heirs of Vano should respect the
Contract to Sell entered into between Teodoro and Frank Liu.
The SC also ruled that a prior Contract to Sell made by the
decedent prevails over the subsequent Contract of Sale made by
the administrator without probate court approval. The administrator
cannot unilaterally cancel a Contract to Sell made during his
lifetime.
It is immaterial if the previous contracts is a mere Contract to Sell
and does not immediately convey ownership.
Q: What is there in a Contract to Sell?
A: There is no transfer of ownership until you pay the purchase
price in full.
Q: What is the obligation of the seller?
A: It is to transfer the title or to execute a Deed of Sale in favor of
the buyer upon the fulfillment of the obligation of the buyer.
Here, even if it was just a Contract to Sell, nevertheless, it gave
rise to an obligation on the part of the seller that when the
condition is fulfilled then he is bound to execute the proper Deed of
Sale and to convey the property subject of the sale to the buyer.
So that obligation upon his death was transmitted to his heirs. His
heirs cannot disregard that contract by entering into another
contract after the death of the decedent, even if that contract is a
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Contract of Sale. Because again, they are bound by the prior
obligation entered into by their predecessor.
LIU vs. LOY
The decedent, during his lifetime, was bound to respect the
contract he executed. He could not sell the property anymore
because he has already contracted to sell it previously. Although it
was only a contract to sell, there were already obligations attached
to it. And when he died, his obligations arising from that contract
were inherited also by his heirs. So the heirs cannot anymore enter
into a subsequent contract of sale over the same property.
DEBTS
-there are several obligations, and debt is only one of the
possible obligations (monetary debts) that an estate can have.
2 VIEWS WITH RESPECT TO DEBTS:
1ST View:
In reality, the debts are NOT transmitted to the heirs,
because prior to the distribution of the estate to the heirs, all the
taxes, charges, debts will have to be paid first. After that, the
residue will be distributed among the heirs, including the legatees
and divisees.
In this view, it says here that it is the estate which is
liable for the debts and NOT the heirs.
2ND View:
In this view, the HEIRS are LIABLE FOR the DEBTS of
the decedent, because even if you’re saying that before the
distribution of the estate of then heirs, all the debts will have to be
paid, but because of the payment of these debts – the estate and
then residual shares of the heirs are diminished or reduced.
Ultimately, they also bear the burden of the debt. This 2nd view is
the more prevailing view.
This was also discussed in the case of Alvarez vs. IAC.
ALVAREZ vs IAC
G.R. No. L-68053 May 7, 1990
Digested by: Victor Alba
FACTS:
The real properties involved are two parcels of land identified as
Lot 773-A and Lot 773-B which were originally known as Lot 773. It
was registered in the name of the heirs of Aniceto Yanes who was
survived by his children Rufino, Felipe, and Teodora.
Anecito left his children lots 773 and 823. Record, however shows
that Fortunato, Santiago, Monico Fuentebella and Rosendo
Alvarez were in possession of lot 773. Fortunato Santiago was
issued a TCT covering lots 773-A and 773-B. Said lots were then
sold to Monico Fuentebella. After the latter’s death, the
administratix sold the lots to Rosendo Alvarez.
In 1960, Teodora and the children of her brother Rufino (Estelita,
Iluminado and Jesus) filed a complaint against Santiago, Arsenia
Vda de Fuentebella (administratix), Alvarez and the Register of
Deed for the return of ownership and possession of lots 773 and
823. During the pendency of the case, Alvarez sold lots 773-A and
773-B to Rodolfo Siason.
A decision was rendered by the court ordering Alvarez to reconvey
the lots to the plaintiff. Unfortunately, the decision cannot be
executed since Siason was in possession of the same.
Siason filed a manifestation stating that the decision cannot be
enforced against him as he was not a party thereto. Consequently,
the court nullified its previous order.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
In 1968, the Yanses filed an action for the recovery of the lots with
damages, praying for the cancellation of the TCT’s issued to
Siason for being null and void. Named defendants were Siason,
the legitimate children of deceased Rosendo Alvarez and the
Register of Deeds.
In its decision the court dismissed the case with respect to Siasion
and the Register of Deeds. Rosendo Alvarez died but he was
adjudged to pay the monetary value of properties with damages to
Yaneses.
Issue: WON the liabilities of Rosendo Alvarez arising from the sale
of lots 773-A and 773-B could be legally passed or transmitted by
operation of law to the petitioners without violation of law and due
process. YES
Held:
Petitioners further contend that the liability arising from the sale of
Lots No. 773-A and 773-B made by Rosendo Alvarez to Dr.
Rodolfo Siason should be the sole liability of the late Rosendo
Alvarez or of his estate, after his death.
Such contention is untenable for it overlooks the doctrine
obtaining in this jurisdiction on the general transmissibility of
the rights and obligations of the deceased to his legitimate
children and heirs.
The binding effect of contracts upon the heirs of the deceased
party is not altered by the provision of our Rules of Court that
money debts of a deceased must be liquidated and paid from
his estate before the residue is distributed among said heirs
(Rule 89). The reason is that whatever payment is thus made from
the state is ultimately a payment by the heirs or distributees, since
the amount of the paid claim in fact diminishes or reduces the
shares that the heirs would have been entitled to receive.
Under our law, therefore, the general rule is that a party's
contractual rights and obligations are transmissible to the
successors.
The rule is a consequence of the PROGRESSIVE
"DEPERSONALIZATION" OF PATRIMONIAL RIGHTS AND
DUTIES that, as observed by Victorio Polacco has
characterized the history of these institutions.
From the Roman concept of a relation from person
to person, the obligation has evolved into a relation from
patrimony to patrimony with the persons occupying only a
representative position, barring those rare cases where the
obligation is strictly personal, i.e., is contracted intuitu
personae, in consideration of its performance by a specific
person and by no other.
Petitioners being the heirs of the late Rosendo Alvarez, they
cannot escape the legal consequences of their father's transaction,
which gave rise to the present claim for damages. That
petitioners did not inherit the property involved herein is of no
moment because by legal fiction, the monetary equivalent
thereof devolved into the mass of their father's hereditary
estate, and we have ruled that the hereditary assets are always
liable in their totality for the payment of the debts of the estate.
It must, however, be made clear that petitioners are liable only
to the extent of the value of their inheritance.
Case discussion 2016:
The real properties involved here are 2 parcels of land
owned by Mr. Anecito Yanes who was survived by his heirs
Rufino, Felipe and Teodora. The private respondents are the
children of Rufino and Felipe.
The Yaneses filed an ex part motion of the issuance of an alias
writ of execution. Siason opposed it.
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Q: What is the case filed by the Yaneses?
A: A civil case for recovery of possession of real property with
damages
Q: Against whom?
A: Against Siason, Laura, Flora, Alvarez, and the ROD.
Q: Why was Siason included in the case?
A: Because Alvarez sold the 2 lots and another lot to Siason.
Siason succeeded in declaring the 2 lots in his name for
assessment purposes.
Q: Yaneses filed a case against Alvarez. Alvarez sold the lots to
Siason, that is why he was included. After he sold the lots to
Siason what happened to Alvarez?
A: He died.
Q: What happened to the case against Alvarez? Was it decided?
Did the Yaneses win or lose?
A: The Yaneses won the case.
Q: How about against Alvarez, what was the ruling of the court?
A: In that case, the court adjudged the case in favor of the
Yaneses. The court ordered Alvarez to return the properties to the
Yaneses or to pay the monetary value of the properties.
You said that Alvarez already died. Can the court order that the
heirs of Alvarez pay the monetary value of the property when in
fact they did not receive the property because during the pendency
of the case Alvarez died. So, at the time the case was decided, he
died already and his heirs did not receive the property subject of
the case as it was already sold before to Siason.
Q: Can the heirs of Alvarez be ordered to pay the monetary value
of the property when in fact they did not receive the property?
A: Yes, they cannot escape the legal transaction contracted by
their father. It transmits to them, the obligation.
Q: How about the fact that they did not receive the property, that
such property never formed part of the estate of their father?
A: It is of no moment since the proceeds of the sale became part
of the estate. It devolved into the mass of the hereditary estate of
their father. Even if they did not receive that property but it was
sold, so there must be proceeds and that proceeds formed part of
the estate, and the estate was inherited by the heirs.
Q: But what is the limitation of this liability of the heirs?
A: The heirs may only be liable to the extent of their share in the
estate. It is only up to what they inherited.
Q: What about the PROGRESSIVE DEPERSONALIZATION OF
PATRIMONIAL RIGHTS AND DUTIES? What do you mean by
that? What did the SC discuss?
A: It is a Roman concept of a relation from person to
person, the obligation has evolved into a relation from patrimony to
patrimony, with the persons occupying only a representative
position, barring those rare cases where the obligation is strictly
personal, i.e., is contracted intuit personae, in consideration of its
performance by a specific person and by no other.
Q: Can you explain that? What do you understand by that? When
you say “from a relation from person to person, the obligation has
evolved into a relation from patrimony to patrimony, with the
persons occupying only a representative position,” how do you
explain that? Expound.
A: For example, if you have a debt and if your heir will represent
you, the representation is transmitted to your heir so he will also be
liable for it.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
With respect to properties, if there are rights and obligations
attached to the property, and whoever is the new owner of that
property, also assumes the rights and obligations of that property.
So if you are the owner and you have properties and then you die,
that does not mean that the rights and obligations die with you.
Because again, the relation is not from person to person but from
patrimony to patrimony.
If you are still alive and you are the owner of that property, then
you have the rights and obligations pertaining to that property.
If you die, whoever succeeds you in that property, also assumes
the rights and obligations with respect to that property.
In our jurisdiction, the person merely occupies a representative
position. If he dies, he loses his representation but he is
succeeded by another. And again, that who succeeds has the
corresponding right and obligations pertaining to the property
which he now owns.
So that is the meaning of the progressive depersonalization of
patrimonial rights and duties. Meaning, it has now been
depersonalized, it is no longer with respect to the person but with
the patrimony.
Genato vs. Bayhon
(GR 171035 | Aug. 24, 2009)
This again discussed the concept of progressive
depersonalization of patrimonial rights and duties.
Under our law, therefore, the general rule is that a party's
contractual rights and obligations are transmissible to the
successors. The rule is a consequence of the PROGRESSIVE
"DEPERSONALIZATION" OF PATRIMONIAL RIGHTS AND
DUTIES that, as observed by Victorio Polacco, has characterized
the history of these institutions. From the Roman concept of a
relation from person to person, the obligation has evolved into a
relation from patrimony to patrimony, with the persons occupying
only a representative position, barring those rare cases where the
obligation is strictly personal, i.e., is contracted intuitu personae, in
consideration of its performance by a specific person and by no
other. The transition is marked by the disappearance of the
imprisonment for debt.
----------------------------------------------------
Here, there was a loan, during the pendency of the case
the debtor died.
What happens now to the loan obligation?
The fact that the debtor died, it did not extinguish the
loan obligation.
Situation:
There’s the debtor, before filing the case, he died.
What is your remedy?
Before filing the case namatay si debtor, what you should
do is, file a claim against the estate of the deceased debtor
whether it is testate or intestate.
What about these Testate / Intestate?
 Situation 1:
TESTATE – kung naa sya’y Last Will and Testament, ipa-probate
man na, during the distribution stage na, didto na ka as a
creditor mag-present sa imong money claim or claims.
 Situation 2:
INTESTATE – diri walay Last Will and Testament. As a creditor,
didto ka sa settlement of the estate proceeding mag-present
imohang claims.
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 Situation 3:
Ang problema kay kani, for example naa kay claim for sum of
money, then si debtor namatay – tapos ang heirs (maybe naay last
will, maybe wala) wala lang pod silay gibuhat at all. Ila rang
gibahin-bahin ilang kwarta. Ikaw as creditor, wala kay mabuhat
ana against the heirs.
What will you do as the creditor?
Ikaw dapat ang mag-institute og testate or intestate
proceeding, because you will be considered as an interested
party (that’s under Special Proceedings).
 Situation 4:
There’s already a case filed against the debtor, during the
pendency of the case, the debtor died.
Again, money claims are not extinguished. These monetary
obligations are transmitted to the heirs.
Note that this is only applicable to money claims, and not other
claims such as recovery of possession/ownership – wherein you
have to file a case against the estate or administrator under
specific circumstances.
Remember your Civil Procedure:
The rule here for the substitution is discussed under Section 20 of
Rule 3 of the Rules of Court:
Section 20. Action and contractual money
claims. — When the action is for recovery of money arising from
contract, express or implied, and the defendant dies before entry
of final judgment in the court in which the action was pending at
the time of such death, it shall not be dismissed but shall instead
be allowed to continue until entry of final judgment.
A favorable judgment obtained by the plaintiff therein shall be
enforced in the manner especially provided in these Rules for
prosecuting claims against the estate of a deceased person.
So, the case will be continued, it shall not be dismissed but shall
instead be allowed to continue until entry of final judgment,
because there was already a pending case.
A favorable decision or judgment obtained by the plaintiff shall be
enforced in the manner provided in the rules for prosecuting claims
against the estate of a deceased person.
What will happen? If there is already a pending case for collection
of sum of money or foreclosure of mortgage and then the
defendant dies?
Pursuant to the principle that his obligations are
transmitted to his heirs, so the case will not be dismissed but it will
be continued but the heirs will now substitute him.
If there is already a judgment in the case, what will happen?
The favorable judgment shall be presented in the
settlement of the estate of the deceased person, whether testate
(there is a will) or intestate (there is no will). That decision you will
present that in the intestate or testate court as a claim against the
estate. So all claims against the estate will be prosecuted in that
same proceeding for the settlement of the estate of the deceased
person. That is under your Special Proceedings.
It is not like an ordinary civil action because under an
ordinary civil action, if there is a final decision, the debtor, if he is
still alive, will be ordered to pay. If he does not pay, a motion for
execution will be filed by the prevailing party. The court will issue a
writ of execution. The sheriff will go to the debtor and demand from
him the payment. If he does not pay, then his properties will be
levied upon in execution. That is if he is alive. If he is dead then
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
there is a different procedure- the judgment will be presented in
the settlement of the estate of the deceased person. So that was
also discussed in this case.
PURELY PERSONAL OBLIGATIONS
They are NOT transmitted by succession. They are not
transmitted upon the death of the decedent. They are extinguished
by death.
Note that there are RIGHTS that even if they are considered as
patrimonial, they are extinguished by death.
Naa poy ing-ana sa OBLIGATIONS. Same thing like contractual
obligations, generally they are transmitted by succession - but if
you stipulate in the contract that this contract shall be extinguished
upon the death of the parties, so there will be no transmission.
We discussed before in “RIGHTS” the Contract of Lease, karon diri
na pod ta sa OBLIGATIONS.
In the contract of lease, what is the obligation of the lessor?
To allow the lessee to peacefully possess the leased
premises.
Ang obligation naman ni lessee, is primarily to pay his
rental.
They can stipulate that in case of death of the lessor or
the lessee, this lease contract is extinguished. But without this
stipulation, the death of the lessor/lessee will not extinguish the
lease contract.
From 2016 TSN:
PURELY PERSONAL OBLIGATIONS - CANNOT BE
TRANSMITTED BY SUCCESSION:
1. Parental obligations
2. Marital obligations
3. Contracted to do a piece of work
Ex. You have been contracted to paint a portrait of A but you were
not able to finish it because you died. Can your children be
compelled to finish the painting?
No, because that obligation is also purely personal. It takes
into account the qualifications of the painter. It cannot be assumed
by the heirs of the painter.
4. Obligation to give or pay support
If the person obliged to give support dies, that cannot be passed
on to his heirs.
5. Criminal liability
So you have been convicted and sentenced to be imprisoned for
10 years but you died in your fifth year, can your children be
compelled to serve the remaining sentence?
No, because criminal liability is personal.
6. The obligation to pay taxes
Whose obligation is that?
With respect to taxes and debts, there are two views on the matter:
1. First view: It is not passed on to the heirs. Why? Because
prior to the distribution to the heirs, the taxes and debts will be
settled first so the heirs will only receive the residue.
2. Second view: That obligation is passed on to the heirs
because the payment of the debts and the taxes will diminish
the shares that will be distributed to the heirs. So ultimately,
the burden of the taxes and the debts are shouldered by the
heirs because of their reduced shares.
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This is also discussed in the case of Alvarez.
The second view is the prevailing view. Debts and taxes are
assumed, are obligations which are transmitted to the heirs. But
again, the liability of the heirs would only be up to the extent of the
value of their inheritance. They cannot be held liable for more than
their share.
Article 777. The rights to the succession are transmitted from the
moment of the death of the decedent.
Q: Whose rights (the rights to the succession) are we referring to
here?
A: We are referring here to the rights of the heirs.
The wording of this provision should be:
“The rights to the succession are made effective from the
moment of the death of the decedent.”
Because, if you say “transmitted” –
(the rights of the heirs are transmitted ???)
We are NOT transmitting the rights of the heirs. What happens
from the moment of death is that, these rights are transmitted from
the decedent to the heirs, and therefore the rights of the heirs to
the succession are made effective.
Pursuant to Art. 777, it is basic that DEATH OPENS
SUCCESSION.
Death is the operative act that transfers properties, rights and
obligations by way of succession. Without death, there will be no
transfer of properties, rights and obligations, as a general rule.
Q: What happens now if there’s no intervening effect of death?
A: The rights of the heirs into the properties of their predecessors-
in-interest, parent, etc. is only inchoate or mere expectancy. The
heirs merely have an inchoate right.
Q: What’s the consequence if you only have an inchoate right?
A: You cannot impugn, conveyances or dispositions of properties
made by your parents for example.
Even if, isa na lang gyud ka yuta ang nabilin sa inyoha, nya
ibaligya pa gyud sa imong parents. Dili gyud ka makabuot ana, kay
ilaha man ng yuta – buhi pa man sila. What you have is a mere
expectancy.
Q: What if mu-ingon ka, “ako lang man isa nga anak- it follows ako
gyud ang mag-inherit”.
A: That is if your parents die ahead of you. Kung ikaw ang una
mamatay kaysa sa imong parents, still you will never become an
heir. So you really cannot question the alienations and
conveyances of your parents.
Q: What if it is a Donation? Can you question it?
A: We have this CONCEPT OF COLLATION.
Upon the death of the decedent, ALL DONATIONS made by him
during his lifetime shall be added back to the estate. So kato
tanang value sa donations, ibalik to sya sa estate.
For example, at the time of decedent’s death, naay syay remaining
property worth 1 Million and then naka-donate sya og worth 4
Million;
Kung wala syay debts, so 1 Million + 4 Million = 5 Million (it will be
the NET HERIDITARY ESTATE). This will be basis for the
computation of the legitime.
Q: Why do we have to collate?
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
A: It is one way of safeguarding the legitimes of the compulsory
heirs because the law safeguards the legitimes of the
compulsory heirs.
The decedent cannot just deprive his heirs of their legitime.
Daghan ang safeguards nga gi-provide sa law.
Example:
Kani akong anak, dili ko ganahan sa iyang itsura - so, dili nako
siya tagaan og anything.
 THIS IS NOT VALID. You have to give the legitime,
maski nag-lagot pa ka sa iyahang nawong. The legitime
must be given because it provided for by law.
You can deprive him, only if you have a valid ground. This is what
we call DISINHERITANCE.
Example:
Para walay samok, I will not disinherit him na lang, but dili nako
sya ibutang sa akong last will. Tagaan nako ang uban but I will not
mention him.

This will be a ground to annul the institution of heirs,
which is called PRETERITION. (it will be discussed later)
Preterition is the omission in testator’s will of one, some or all of
the compulsory heirs in the direct line, whether living at the time of
execution of the will or born after the death of the testator. (Art.
854)
Example:
Ako na lang e-donate tanang properties nako, aron walay mabilin,
para akong anak nga dili ko ganahan- wala syay madawat.
 No, this cannot be done. Again we have COLLATION.
So, ibalik to sya, then we will compute the legitime.
CONCEPT OF INOFFICIOUS DONATION
-you cannot give by donation more than what you can
give by way of support, because you are obliged also to retain
property for your support and for your children. You cannot give
away something which will prejudice the legitimes of your
compulsory heirs.
Compulsory heirs, like children, they are reserved a legitime under
the law. This means that they have a minimum share which they
will receive upon the death of the decedent. For children, one-half
of the estate is reserved for them.
July 12, 2019 P.1 – Latorza
So last meeting we discussed Article 6. So we discussed Article
777 and then in relation to that we discussed the properties, the
rights and obligations, your subject of succession.
We already discussed the case INOCENCIO, how about the case
of ALVAREZ. So now we go to. . . As we have discussed under
Article 777 it is death that transfers properties, rights and
obligations by succession. So without death the heirs of the
decedent only have inchoate rights or an expectancy so they
cannot question the sale, donation or any other conveyances
made by the decedent while he is alive only when the decedent is
already died.
So we discuss the cases which illustrate the effect if the heirs only
have inchoate rights. First we go to the case of LOCSIN VS
COURT OF APPEALS
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
LOCSIN VS COURT OF APPEALS
FACTS:
NAPOLEON LOCSIN had 3 children, Mariano, Julian and
Magdalena. Mariano inherited properties from his parents and
brought this into the marriage with Catalina. Mariano executed a
last will and testament and make Catalina the sole and universal
heir. With regard to the last will and testament, there’s an
instruction that since they are childless the property should now
revert back to their own relatives. So the property of Mariano
would go to the Locsin relatives, the property of Catalina would go
now Catalina’s relatives. So following the instruction of Mariano,
Catalina 9 years after the death of her husband already started
transferring the properties. In 1977, she executed a last will and
testament and she affirmed those conveyances already took place
and with the exception of those other properties that are not yet
conveyed. Now after the death, some of her nephews are
contesting now those properties reverted back to the relatives of
Mariano stating following the law on succession that by operation
of law it should follow that the heirs of Catalina should inherit the
properties
ISSUES:
WON those properties that were reverted back to the relatives of
Locsin can now, is it proper to be inherited by the relatives of
Catalina.
HELD:
NO. Since those properties were transferred during the
lifetime of Catalina. Those properties transferred to the relatives of
Mariano during the lifetime of Catalina do not form part of the
hereditary estate of Catalina. Thus, the relatives of Catalina (not
compulsory heirs) cannot question the said conveyances.
MAAM: These properties were disposed during the lifetime of
Catalina, as such she has absolute right to do so. The heirs only
have inchoate right or mere expectancy during the conveyances
were made. The conveyances validly made will reduced the estate
of Catalina to that extent existing at the time of her death, those
properties to which they are entitled to inherit. As to the reduction
of their share or inheritance, this right only pertain to compulsory
heirs those have legitimes. So if you are not a compulsory heir or
legal heir you cannot question alienations or donation made during
the life time of the decedent. That question only pertain only to the
preservation of the legitime and we don’t have a legitime to
preserve if you are not a compulsory heir. So whatever remains at
the time of death, that is the extent of your inheritance.
Let’s go to the case of Felipe vs Heirs of Aldon
FELIPE VS HEIRS OF ALDON
In this case, the wife here sold the conjugal land to the spouses
Felipe without the consent of her husband. The heirs questioned
the validity of sale that it is without the consent of the husband and
depriving them there hereditary rights.
The sale was made during the lifetime of the husband and before
the effectivity of the Family Code.
ISSUE: WON the heirs could question the sale
RULING: No.
The action is not yet prescribed. Prescriptive period is 30
years from the death of the decedent (not at the time of the sale).
In 1976 the heirs filed an action to recover the land.
MAAM: So here, we are not talking the annulment of the sale on
the ground of vitiated consent which under the New Civil Code
should be filed within 4 years it depends upon the defect, if it is
fraud at the time of discovery of fraud, intimidation at the time it
ceases. But here the heirs questioned the sale on the ground that
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
they were deprived of their hereditary rights. And they cannot
possible file the action to impugn the sale on the basis that their
hereditary right are affected during the lifetime of their father
because they have no hereditary rights yet during the lifetime of
their father. There cause of action accrued only upon the father’s
death.
The SC said it should be counted at the time of death because
that’s the time when their rights to succession begin vested. So
again that’s another consequence of the rights being merely an
expectancy or inchoate right.
Now let’s go to death. What kind of death will give rise to
succession? Death that operates to transfer properties, rights and
obligations to the heirs. We have the concept of actual death and
presumptive death.
KINDS OF DEATH WHICH OPENS UP SUCCESSION:
1. PHYSICAL DEATH/ ACTUAL DEATH – death is the
irreversible cessation of circulatory and respiratory
functions or the irreversible cessation of all functions of
the entire brain including the brain stem (Organ Donation
Act of 1991).
A person shall be medically AND legally dead if either:
a. In the opinion of attending physician, based on the
acceptable standards of medical practice, there is
an absence of natural RESPIRATORY AND
CARDIAC FUNCTIONS and attempts at
resuscitation could not be successful in restoring
those functions; OR
b. In the opinion of the consulting physician, concurred
in by the attending physician, that on the basis of
acceptable standards of medical practice, there is
an irreversible cessation of all BRAIN FUNCTIONS,
and considering the absence of such functions,
further attempts at resuscitation or continued
supportive maintenance would not be successful in
restoring those natural functions.
MA’AM: In these cases, death shall be deemed to have occurred
at the time when these conditions first appeared. So, considered
as medically AND legally dead. If you notice, it‘s either the
respiratory and cardiac functions or the brain functions. Here, there
is ACTUAL DEATH (medically proven).
Let’s go to presumptive death. In PRESUMPTIVE DEATH were
not yet sure if the person is already died but because of the
circumstances and the lapse of time we arrived to that conclusion.
We have no news about that person, we don’t his whereabouts
and certainly we don’t know whether or not he is alive because
even if wala sya nagapadugog sa atoa, wala naga text or email
pero makita nato sa Instagram so he is no dead. So no news
whatsoever whether he is alive or not.
So we have here the presumptions under the Civil Code
2. PRESUMPTIVE DEATH
a. ORDINARY PRESUMPTION – after 10 years or 5
years if the person disappeared after the age of 75
years old.
Art. 390. After an absence of seven years, it being
UNKNOWN whether or not the absentee still lives, he shall
be presumed dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead for the purpose
of opening his succession till after an absence of ten years.
If he disappeared after the age of seventy-five years, an
absence of five years shall be sufficient in order that his
succession may be opened.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
So under Article 390 we have the ordinary presumption. In the
opening sentence, there is mention of 7 years and also
presumption of death but no is not enough for the purpose of
succession. In succession we need 10 years.
For the purpose of succession, wait for 10 years. We don‘t know
whether this person is still alive, there is no news on him/her
whatsoever. So, after 10 years, then we presume that this person
is dead. DAPAT, WE DON‘T KNOW IF HE/SHE STILL LIVES.
But, if he/she disappears after the age of 75, an absence of 5
years is sufficient. Why? Because of his/her age lesser chances of
surviving. Most probably patay na jud siya .
So when you say for the purpose of opening succession meaning
his estate can now be distributed. In that case, pwede na
madistribute ang iyahang properties by succession. Kung naa syay
last will and testament pwede na kag mag file ug petition for
probate but after the proceeding for the presumptive of death. If
there are heirs and there is no will, pwede na sila mag extrajudicial
settlement. But of course, there must have a Declaration of
Presumptive Dead.
b. EXTRAORDINARY PRESUMPTION – after 4 years
if the disappearance was under danger of death
MA’AM: Under Article 391, we have here the circumstances
showing that the person was missing under danger of death.
Article 391 gives us the extra-ordinary or the qualified
presumption. Here, there is danger of death. That is why the
period is shorter.
Under the Family Code, for the purpose of remarriage, it is only 2
years. Sa succession 4 years. So, mas taas-taas ang period na
required sa succession (4 years for distribution of the estate) than
for remarriage.
NOW WHEN DO WE COUNT THE MOMENT OF DEATH? WE
HAVE TO MAKE DISTINCTION.
1. Article 390: Ordinary presumption – AFTER 5 or 10
ART. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the
heirs:
1) A person on board a vessel lost during a
sea voyage, or an aeroplane which is missing,
who has not been heard of for four years since
the loss of the vessel or aeroplane;
2) A person in the armed forces who has
taken part in war, and has been missing for
four years;
3) A person who has been in DANGER OF
DEATH under other circumstances and his
existence has not been known for four years.
years (no danger of death).
The moment of death is counted from the lapsed of the period. So
after 5 years or 10 years as the case may be. If one was missing in
2000 (haven‘t seen him or no news of him whatsoever), it is only
after 10 years when you can file a case (a petition to declare him
as presumptively dead). The moment of death is counted only
AFTER 10 YEARS OR AFTER THE 5TH YEAR, IF HE
DISAPPEARED ON THE AGE OF 75.
2. Article 391:Extraordinary presumption – FROM THE
DATE OF DISAPPEARANCE
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
The moment of death is counted from the date he disappeared. If
one participated in the war in year 2000 and he was missing and
was never heard of for 4 years, when can he be considered dead?
Here, it is different because there is DANGER OF DEATH. He is
presumed to have died in the year 2000. But you have to wait until
the end of 4 years. Just to make sure he did not survive. But if
after 4 years, wala jud, then he really died ON THE DATE WHEN
HE WAS MISSING, in this case, in the year 2000.
IMPORTANCE: This would matter in computing the estate tax –
for the purpose of determining what properties should or should
not be included in his estate, example, if there is accretion, it may
change.
Let’s go to the case of Eastern vs Lucero.
2018 TSN: DOCTRINE: The rule on presumptions should yield to
the rule on preponderance of evidence:
a) If there is evidence pointing to the fact that the person is alive,
then he cannot be presumed dead despite the fact that he has not
been heard of OR
b) If there is evidence that the person is really dead, then there is
no need to wait for the periods under Articles 390 and 391 to lapse
before a person may be declared dead.
EASTERN VS LUCERO
FACTS:
Lucero, Jr. was appointed by Eastern Shipping Lines, Inc., as
master/captain to its vessel. While the vessel was enroute from
Hongkong to Manila where it was expected to arrive on February
18, 1980, Capt. Lucero sent 3 messages to the Company's Manila
office,
1st: that they encountered boisterous weather with strong
northeasterly winds causing the vessel to roll and pitch violently;
2nd: that the vessel was laboring violently and that they had to
jettison cargoes; 3rd: that they needed immediate assistance
because seawater was entering inside the hatch and they were
preparing to abandon anytime.
Subsequently, the insurer of the M/V Eastern Minicon confirmed
the loss of the vessel. The Company paid the corresponding death
benefits to the heirs of the crew members, except Mrs. Lucero,
who refused to accept the same.
Mrs. Lucero filed a complaint for payment of her accrued monthly
allotment of P3,183.00, which the Company had stopped since
March 1980 and for continued payment of said allotments until the
M/V Minicon shall have returned to the port of Manila.
She contended that the contract of employment entered into by her
husband with the Company was on a voyage-tovoyage basis, and
that the same was to terminate only upon the vessel's arrival in
Manila.
ISSUE: WON the presumption of death applies? NO.
HELD: It is undisputed that the Company received 3 radio
messages from Capt. Lucero.
The lost of the vessel was confirmed by the insurer.
There is thus enough evidence to show the circumstances
attending the loss and disappearance of the M/V Eastern Minicon
and its crew. The foregoing facts are sufficient to lead to a moral
certainty that the vessel had sunk and that the persons aboard had
perished with it.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
Upon this premise, the rule on presumption of death under Article
391 (1) of the Civil Code must yield to the rule of preponderance of
evidence. Where there are facts, known or knowable, from which a
rational conclusion can be made, the presumption does not step
in, and the rule of preponderance of evidence controls.
Thus, the complaint of Mrs. Lucero was dismissed and instead,
she should receive the death benefits.
PRINCIPLE: The rule on presumption must yield on the rule
on preponderance of evidence.
The rule on presumption should not step in. The following facts
that considered by the SC here:
1. The vessel is in danger.
2. The three messages sent.
3. The vessel was confirmed to be lost.
The logical conclusion is that they sank with the vessel. They
perished along with the vessel.
We don‘t have to wait for 4 years in this case before we can
compel the wife of Captain Lucero to receive the benefits. There
are circumstances that would show with moral certainty that
Captain Lucero already died. There were messages showing that
they are in great danger and the vessel itself was confirmed to be
lost. So, what else do you ask?
So the SC said, we should not hold on to the presumption. The
rule on presumption of death must yield to the rule of
preponderance of evidence.
DOCTRINE: Upon the death of the decedent, the rights of the
heirs become vested.
When a person is already considered dead, whether actual or
presumptive death, then, the rights to succession are already
made effective. So, what are the consequences?
Upon the death of the decedent the properties, rights and
obligations are transferred to the heirs.
July 12, 2019 P.2 – E. Du
UNDER ARTICLE 777
Emnace vs. CA (recitation)
FACTS: Tabanao was a partner in the partnership. He and his
partners decided to dissolve the partnership. So with the
dissolution of the partnership, should come the accounting of
the assets, income, and liabilities and properties as well as the
distribution of these assets to the partners.
The wife of Tabanao brought an action for accounting, payment
of shares, etc. The partners contended that the wife has no
legal capacity to sue because she was never appointed as
administratrix of the property.
ISSUE: Did the wife have the legal capacity to bring the instant
action?
RULING: YES.
Under art. 777, from the moment of death of Tabanao, his rights
in the partnership especially his right to the partition, accounting
and delivery, liquidation of the properties of the partnership
ALREADY PASS ON TO HIS HEIRS (his wife and children).
These rights are not personal rights unlike the right to be a
partner. That is because when you say the right to the
partnership with respect to distribution of properties or income
that is NOT A PERSONAL RIGHT.
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Hence the wife has legal capacity to sue from the moment of
Tabanao’s death.
RATIO: This case tells us that the heirs can file an action based
on the rights of the decedent in the partnership. However the
right to be a partner in a partnership IS NOT TRANSMISSIBLE.
Q: What if there’s already an appointed administratrix or executrix?
A: Then they will be the ones to instead have the right to bring the
action.
Q: So what rights are we referring to here in this case?
A: It is not the right to become a partner, but merely the right to the
partnership with respect to the distribution of properties or income
which IS NOT A PERSONAL RIGHT.
Further, the partnership was already DISSOLVED before Tabanao
had died.
So the rights succeeded to by the heirs are rights to the ALREADY
DISSOLVED PARTNERSHIP.
Again remember you DO NOT NEED AN APPOINTMENT AS AN
EXECUTOR/ADMINISTRATOR to institute actions for and behalf
of the estate because the rights are transmitted from the moment
of death.
Rioferio vs. CA (discussed by ma’am)
Now in this case, the same question however there was
ALREADY A PROCEEDING FOR THE APPOINTMENT OF AN
EXECUTOR OR ADMINISTRATOR.
So if you are an heir, do you have to wait for the conclusion of
the proceeding?
The SC said NO. Even if there is a pending proceeding for the
appointment of an administrator or executor, you can still
institute actions for and behalf of the estate because that
comes from your rights as heirs FROM THE DEATH OF THE
DECEDENT.
So upon his death, the rights are now transmitted to the heirs.
Q: BUT what if there is already an appointed admin/exec? Can you
still institute actions?
A: This time, NO.
IF THERE IS ALREADY AN APPOINTED
EXECUTOR/ADMINISTRATOR:
GR: All actions, on behalf of the estate, MUST ALREADY BE
FILED by the executor or administrator.
XPNS:
1. If the executor or administrator is unwilling or refuses to
bring suit
2. When the administrator is alleged to have participated in
the act complained of and he is made a party defendant
We now go to the PRESUMPTIONS UNDER THE RULES OF
COURT.
As to presumptions of death we have articles 390 and 391.
Now how about the rules of court? Take note that such
presumption on survivorship is not applicable to succession.
Instead for succession we have Rule 131 Section 3 (kk) of the
Rules on Evidence:
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
Section 3. Disputable presumptions. — The following
presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence: (kk) That if
there is a doubt, as between two or more persons who are
called to succeed each other, as to which of them died first,
whoever alleges the death of one prior to the other, shall prove
the same; in the absence of proof, they shall be considered to
have died at the same time.
So for example we have here the mother and the child on board a
vessel which sank and they both died. So no question that they
both died.
Now assuming that the mother is 95 years old and the child was
two years old? What is the presumption?
When it comes to succession, if you are alleging that let’s say the
child in this case died ahead of the mother, you have to prove that
indeed the child died ahead.
If you cannot prove, then the law says they are considered to have
died AT THE SAME TIME. And so no succession.
Now what is the importance of this presumption? Why do we have
to know who dies first?
So going back to the example. The mother and the child. Let’s say
the mother has properties worth 10million.
Now if she died first, what will happen? The heirs will be the child
and the father.
In that case, to the father 5M and to the child 5M.
If namatay gihapon si child, didto na sa father. 10M will eventually
go to the father.
If the child DIED AHEAD, then the child did NOT INHERIT.
Because diba the heirs should survive the decedent.
And then the mother died. Who is entitled now to the estate? If she
has parents and siblings, ang mahitabo is tungaon sa father and
the parents.
That is why the order of death now is important kay if naprove nga
namatay una si child, then the parents of the mother can say na
makadawat pa mi. Pero if namatay una si mother, wala sila
madawat.
Let’s go to another concept.
As we said, death is required in succession. Without it walay
matransfer through succession.
But here we have the concept of FREAK SUCCESSION.
If you still remember your Family Code, in cases of declaration of
nullity of marriage or in annulment of marriages, part of the decree
will be the delivery of the presumptive legitimes of the children.
When you say presumptive legitimes, the estate of the spouses
upon the declaration of nullity or annulment will now be liquidated.
There will now be a computation, based on the estate what will be
the legitimes of the children. Based on that, you deliver to the
children their legitimes. That is the delivery of the presumptive
legitime.
When the marriage is annulled or declared null and void, the
spouses can already remarry. If they can remarry, they will have a
new spouse and their properties will now be merged into the
properties of the other spouse.
To protect the children from that possibility of merging of properties
upon remarriage, the law requires that the presumptive legitimes of
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
these children be delivered. That will not form part of the property
of the spouse when he or she will remarry.
Can the testator provide that ‘I hereby institute A as heir and she
will get ½ of my property but she can only have it after 5 years
from the time of my death’ ?
Can the decedent say after 5 years pa?
-If it is applied to the FREE PORTION it is valid. That is called
institution subject to a suspensive period.
-BUT as to the LEGITIME, hindi pwede. There can be no burdens,
conditions, encumbrance imposed upon the legitime kasi it should
be from the moment of death.
Article 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed.
Article 779. Testamentary succession is that which results
from the designation of an heir, made in a will executed in
the form prescribed by law.
TESTAMENTARY: requires a will. Without a will, there can be no
testamentary succession.
It’s not enough that there’s a will. There should also be
DESIGNATION OF PARTICULAR PERSONS.
Q: Can there be a will without a designation of heirs?
A: Yes, when the will contains instead a DISINHERITANCE. That
does not designate an heir. That is still a valid will even if it only
contains a disinheritance, BUT THERE CAN BE NO
TESTAMENTARY SUCCESSION because a disinheritance only
operates to EXCLUDE an heir from the will.
Note: the rule is that for there to be a valid disinheritance it should
still be embodied in a valid will and it should be probated
And finally the will must be executed in the form prescribed by law.
SUMMARY OF REQUISITES FOR THERE TO BE
TESTAMENTARY SUCCESSION:
1. There is a will
2. There is designation of an heir
3. Observance of the form prescribed by law
Q: What happens if the will is not valid?
A: Legal or intestate succession will take effect instead
Note that under the NCC, there is actually no definition of legal or
intestate succession.
Article 780. Mixed succession is that effected partly
by will and partly by operation of law.
Q: When will this happen?
A:
1. If the testator did not dispose of all his properties in the
will
-For example: He left properties amounting to 20 million but in
the will he only distributed 10 million. What will happen to all
those not disposed in the will? Those will be governed by the
law on legal succession. But for those disposed by the will, by
testamentary succession.
OR
2. If the testator disposed of all his properties in his will but
some provisions turn out to be void
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
-If he disposed of everything in his will but there are void
provisions, those void provisions, if there is no substitution,
representation, accretion, it will go by way of legal succession.
Those which cannot be given effect because they are illegal
but there are still other valid provisions, and the provisions
can be separated, the void provisions will be governed by
legal succession, the properties affected by the void
provisions.
CLASSIFICATIONS OF SUCCESSION:
I. As to effectivity
a. Succession inter vivos
b. Succession mortis causa
II. As to origin
a. Testamentary succession
b. Legal or intestate succession
c. Mixed succession
III. As to extent
a. Universal succession: This is inheritance by the heirs,
who are instituted to the entire estate, to an aliquot
portion, to an ideal share, to a spiritual share of the
estate. Here, the shares are not particularized or
specified.
Ex. “I hereby give to A my entire estate.”
Ex. “I hereby give to A ¼ of my estate.” (an aliquot share)
b. Particular succession: This is succession to a specific or
particular property in the estate. This is the succession of
legatees and devisees.
Legacy – gift of specific personal or movable property
Devise – gift of specific real or immovable property
IV. As to part of property transmitted
a. Forced or compulsory succession: This is succession to
the legitime. Forced meaning the testator cannot avoid
this. He must give to the heirs their legitimes. He can
only deprive his heirs of their legitimes if there is a valid
ground as provided by law, the grounds for
disinheritance.
b. Voluntary succession: This is succession to the free
portion.
We also have contractual succession.
Donations of future property between spouses by reason of
marriage shall be governed by the provision of testamentary
succession and the formalities of wills.
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.
This article is also called the CONCEPT OF AFTER-ACQUIRED
PROPERTIES IN SUCCESSION.
This article mentions all those which are added to, incorporated, or
which accrued from the inherited property from the moment of
death of the decedent.
Ex: A was given a parcel of land by the testator in the will. The
testator died in the year 2000. What will happen to the land upon
the death of the testator? IT WILL BE GIVEN TO A SUBJECT TO
THE PROBATE OF THE WILL
.
 ATTY. LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE
ATENEO DE DAVAO UNIVERSITY Class Transcription
College of Law III – Manresa 2019

Now what if there are fruits from the property kasi farm siya? [nag-drawing si ma’am regarding degrees]
At the time of death kunwari naa pay mga bunga, kinsa man ang
tag-iya sa fruits? Ang estate or si heir?

Note na part pa ni siya sa land wala pa naibot ang fruits. Degrees are significant because under the rule of proximity, the
At the time of death, wala pa na harvest, so under the law of nearer relatives will exclude the ones who are far. So magcount ka
accession si A as the heir by the right of accession will own the pila ka degrees. Katong duol degrees like 1st degree, equal rights
fruits na sila.

Example the land during the lifetime of the testator was being
rented. Narentahan ang land. So naay annual rentals coming from
the property.

Now let’s say the testator died year 2005 and naay uncollected
rentals in the year 2004. And then gideliver na man ang land sa
year 2005 sa heir kay namatay naman si testator.
So naay uncollected rentals pero nagbayad naman ang lessee sa
year 2007 which accrued year 2004 that was paid in the year
2007.

So those which accrued prior to the death of the testator, those

rentals belong to the ESTATE OF THE TESTATOR.
But those which accrued from the death of the testator should go
to the devisee because from the moment of death, the devisee is
now the owner of the land or bldg. As the owner, he gets those
which have ACCRUED THERETO SINCE THE OPENING OF
THE SUCCESSION.
Q: How many degrees away ba si E from B?
A: One degree away lang. Direct descending line na siya
Q: Now si E how many degrees from C iyang sibling?
A: TWO. We count by going to the common ascendant. So your
sister/brother, two degrees away na siya.

So all those income that accrued from the moment of death will
now go to him because he is now the owner.

How about if year 2005 siya namatay and then afterwards naay
baha so there was an accretion. Who is the owner of that half
hectare na accretion which happened two years after death?
So, as the owner now of the property, sa iya pud ng accretion.

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.
[diri na part after kay dili na nako mavisualize unsa pasabot ni
This defines an heir and a devisee or a legatee. ma’am kay wala na niya gidisclose ang relationship sa mga parties
So the term heir exists in both testamentary and legal succession. huhu]

DISTINCTIONS:
 Testamentary heirs – if there is will
 Compulsory heirs – if they are in the legitime
 Voluntary heirs – if they are instituted in the free portion
 Legal or intestate heirs – if there is no will

Compulsory heirs (4 groups):

1. Children and descendants
2. Parents and ascendants
3. Spouse
4. Illegitimate children

Now what if there is now will? You have legal heirs. Now all
compulsory heirs can be considered as legal heirs.

Legal heirs:
1. The 4 groups under compulsory heirs
2. Brothers and sisters
3. Nephews and nieces
4. Uncles and aunts
5. Other collateral relatives up to the 5th degree of consanguinity

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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
July 15, 2019 P.1– Sioson
We already discussed the specifics about heirs and legatees and
devisees.
HEIRS
They succeed by general right They succeed by special or
or universal title; or to all or a particular title; they are given
fraction or an aliquot share.
The term heirs exists in both
testamentary and legal
succession.
Testamentary succession- it
can be forced, compulsory
heirs or universal heirs.
When there is no will, they are
called legal or intestate heirs.
The heir, if compulsory,
succeeds to the inheritance
regardless of the will of the
decedent since it is mandated
by law.
The decedent cannot decide to
just disregard the compulsory
heirs, even if we say na in
testamentary succession, the
testator has freedom to
institute. But in compulsory
heirs, they succeed whether
the testator likes it or not.
The quantity cannot be
determined until after the
liquidation of the estate and
the distribution of the
properties of the testator.
Why? Because they succeed
to either the entirety or just a
share or fractional share of the
estate, so after the death of
the decedent we don’t
immediately get the respective
shares even if you say na at
the time of death, the decedent
left an estate of 1Million, but
there are taxes to be paid,
there are expenses or maybe
debts. Also, there are legatees
and devisees that are need to
be satisfied. So only when all
of these are paid can we
determine what remains for the
heirs.
Prior to the delivery of the
inheritance of the heirs, the
taxes, debts and other charges
will have to be paid first. So
before that, we will never know
yet the quantity or the exact
amount to be given to the
heirs.
The heir represents the
LEGATEES AND DEVISEES
specific properties
So, here they stepped into the
shoes of the testator but only
insofar as the specific property
is concerned.
The term legatee or devisees
exist only in testamentary
succession, not in legal
succession.
There can be no such thing as
a legatee or devisee in legal or
intestate succession.
Only succeed by reason of the
will of the testator.
Without a will, they cannot get
anything.
We can already identify the
specific property; it can be
determined already with
certainty.
Example: I hereby give
1Million cash to A, so we know
that A gets 1Million; or
I hereby give a land in Jacinto
Davao City to B. So we
already know that, that, is the
devise given to B.
They do not represent the
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juridical personality of the juridical personality since they
decedent, acquiring his only acquire specific property.
property, rights and
obligations.
That is why in our discussion,
from the moment of death of
the decedent, the heirs already
step into the shoes of the
decedent, they can already
institute actions for and in
behalf of the decedent. You
already acquire the property,
rights and obligations of the
decedent. They are already
entitled to the estate; their
rights are already vested.
Take note, they acquire the They only acquire properties or
generality of the properties, rights, they do not acquire
right and obligations (only up obligations unlike heirs.
to the value of the inheritance).
Of course, it is obvious that no
If you are an heir, you will have one will accept a legacy of
no right to refuse to the debt.
obligations, because you
succeed to whatever the
decedent leaves behind.
The heir succeeds to the Legatees and devisees will be
remainder of the estate after given their determinate shares
all the debts, devisees, and after paying the taxes, debts
legatees have been paid. and the legitimes.
When it comes to compulsory
heirs, in the distribution, you
pay first the debts, taxes and
charges then the legitime.
If you are a voluntary heir, the
legacies and devisees will also
be paid first before you.
For example, we have here the estate. Then there are debts,
taxes, legacies, and devises. How do we distribute?
Order of Distribution:
1. We deduct the obligations. (Taxes, debts and other
charges)
If there are donations made by the testator during his
lifetime, the value of all those donations shall be added
back to the estate. That is what we call as Collation.
2. Satisfy the legitime of the compulsory heirs.
3. Legacies and devises given to legatees and devisees
4. Those given to a voluntary heir.
Q: Are there legatees and devisees who are also compulsory
heirs?
A: Yes. For example, you are a child of the testator, so you are a
compulsory heir. But over a proper legitime, you are given cash or
a specific real property.
You can also be a voluntary heir at the same time. In the free
portion, you are also instituted in the one-half. So, at the same
time, you can be a compulsory heir, a legatee or devisee, and a
voluntary heir.
Q: Why do we need to know the distinction between an heir, a
devisee, and a legatee?
A: Because there are provisions in the Civil Code relating to
succession which are applicable only to heirs or applicable only to
legatees and devisees wherein the rights of the heirs, devisees,
and legatees will be affected.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
1. In after-acquired properties, which we will discuss in 793,
although the law is silent it actually is limited to legatees
and devisees. If you are an heir, you are not covered by
Article 793. Essentially, 793 provides that the legacy or
devices is only limited to the properties existing at the
time of the execution of the will. Any property acquired,
or added to, to the property devised or bequeathed will
not be part of the legacy or devise.
But if you are an heir, it will not apply. Whatever is the net estate at
the time of death, that will be the value of your inheritance
regardless of the value of the estate at the time of the execution of
the will. That’s one distinction.
2. Under Article 854 on Preterition. Basically, when we say
preterition, there is a compulsory heir in the direct line
who has been omitted in the will. Like a child who was
not mentioned in the will; or although mentioned but
walang binigay sa kanya, and he was not expressly
disinherited.
When there is preterition, the institution of heirs in the will
in annulled, completely. If you are a voluntary heir, and
there is preterition, you will not receive anything.
But if you are a legatee or devisee, even if there is
preterition, you will still receive the legacy or devise, as
long as it is not inofficious. Meaning, the legacy or devise
will not prejudice the legitimes of the compulsory heirs.
INVALID DISINHERITANCE: For example, the legitime of the
compulsory heir who has been invalidly disinherited has been
affected. Ang first na kuhanan is the voluntary heirs. In invalid
disinheritance, we have to satisfy the legitime of the invalidly
disinherited heir, and after that we can now give effect to the
legacies, devises, or even voluntary heirs.
EXAMPLES:
1. The testator says, I give to A ½ of my land in Jacinto Street
Davao City.
Q: What is the provision all about? Is it a devise or an
institution of heir? Is it universal succession or particular
succession?
A: That is particular succession. Devise. Because we are
actually referring a particular property in Jacinto Street,
although he gets ½ of that.
2. What if the estate of the testator consists of lands? Then, he
makes in the will: I hereby institute X to ¼ of my estate. Is X a
devisee or an heir?
A: Heir, because the institution is to the universality of the
estate. He is not referring to a specific or particular
property, although it so happens that the estate is all
lands. So, he is an heir.
3. If you say: My cash in Metrobank. Is it a devisee? Legatee?
Heir?
A: It refers to a specific deposit, in Metrobank, so it is a
legacy.
4. 20% of all my cash?
A: Heir, that is an inheritance because we are not
referring to a specific property.
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Chapter 2: Testamentary Succession
Section 1: Wills
Subsection 1: Wills in General
Article 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death.
Article 783 defines what a will is; it says it is an act. When you see
the definition, it gives us the characteristics of a will. But first, you
have to know the distinctions between the will, between
succession, and between inheritance.
So again, when you say will ,we are referring to the act.
When you say succession, we are referring to the mode of
acquisition.
When we say inheritance, we are referring to the properties,
rights, and obligations which are transmitted by succession.
Essential elements and characteristics of a will:
(PASS U C FRIDM)
When you pass, you see freedom.
Remember this by heart, because not only these are the elements,
but these give the basic principles regarding testamentary
succession.
1. PERSONAL
It should be the act of the testator. As a general rule, this is
something we cannot delegate to another person. The contents
and provisions of the last will and testament must be those of the
testator.
Q: Can the mechanical act of drafting the will be delegated to
another person?
A: It depends.
We have to make a distinction as there are two kinds of wills:
notarial will and holographic will.
1. When it comes to notarial wills, the mechanical act of
drafting the will can be delegated. A notarial will
undergoes certain formalities, forms, or solemnities, like
it has to be acknowledged by a notary public, at least
three witnesses, it has an attestation clause.
Usually, because of the complicated process of drafting a
notarial will, this kind of will is usually given or tasked to
lawyers. However, because the will must be personal,
the testator cannot say “Atty pwede moa ko buhatan ng
last will and testament? Ikaw na bahala maglagay ng
maganda kasi mas magaling ka dyan.” No. The content
must be that of the testator, his properties, his heirs, that
must be his decision. The lawyer will just have to arrange
the will in such a way that it will comply with the
formalities prescribed by law. That kind of will, the
mechanical act of drafting the will can be delegated, and
is usually delegated.
2. When it comes to holographic wills, even the mechanical
drafting of the will cannot be delegated. Why? Because
everything must be in the handwriting of the testator. It
has to be done by the testator.
Another aspect of being PERSONAL, is it being CONFIDENTIAL.
It means it is only for the eyes of the testator. His heirs may not
demand to see it. Hence, it is not readily available to the public, it
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
is only for the eyes of the testator. Even the witness of a notarial
will does need to know the contents of the will or to have a copy of
the will. Even the lawyer before whom the will is acknowledged is
not required to know the contents of the will as a general rule.
Under the NOTARIAL LAW, it is required na all documents
notarized dapat ang notary public must retain two copies. One
copy is for the notary public, and the other one is to be submitted
to the clerk of court.
However, when it come to notarial wills, the Civil Code provides
that the lawyer before whom the will was acknowledged is not
required to retain a copy of the will, and is not required to submit a
copy to the clerk of court.
Also, under the RULES OF COURT, there is an enumeration of
what is classified as public documents. One of those are,
documents acknowledged before a notary public except wills. As a
consequence, you cannot demand a copy of it, because it is
personal and confidential.
2. ANIMUS TESTANDI
It means, “intent to make a will” to constitute this document as the
last will and testament.
For example: If you are drafting a last will and testament, but this is
only in compliance with your legal writing, it cannot be considered
as a valid animus testandi. Unless, yun ang gamitin nyo as your
last will and testament. Generally, it should be considered as a
valid last will and testament if at the time of the execution, the
testator understood the consequences of the act. He must know
that this document will transfer the properties mentioned here to
the persons designated, and the transfer will happen upon my
death.
This is also the reason why when we go to testamentary capacity,
one of the requirements for testamentary capacity is SOUNDNESS
OF MIND. This is because if you don’t have soundness of mind,
you cannot possess animus testandi. It requires understanding of
the act with intelligence.
Montinola v. Herboza
Facts: Montinola filed an action against the heirs of Jose Rizal for
recovery of possession of personal property (Rizal relics) allegedly
sold to him by Trinidad Rizal. The trial court held that neither party
is entitled to the possession, relying on the fact that in Rizal’s Mi
Ultimo Adios, there is a line where Rizal bequeathed all his
property to the Filipino people.
Ruling: Rizal’s Mi Ultimo Adios is not a will but merely a poem, as
there was no animus testandi, no intent to make a will.
Also, there is no disposition of property by the phrase “to you I give
my parents, children, and friends”. It may only be considered as a
will in its grammatical sense, but not in a legal and juridical sense.
3. STATUTORY
Meaning, the privilege to execute a last will and testament. It is not
an inherent right, but merely a privilege granted by the New Civil
Code. Without the NCC providing for the rules on succession, we
cannot exercise the privilege to dispose of our properties mortis
causa. Because of that, in the case of Herreros v. Gil, the will must
be subordinated to law and public policy. Hence, we should
comply to what the law says for the will to be valid.
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4. SOLEMN
The solemnities and formalities prescribed by law shall be
complied with. If you failed to follow them, as a general rule, that
would be a fatal defect that would result to the disallowance of the
will. Hence, the will is not valid.
5. UNILATERAL
Meaning, it is valid even if it is the act of the testator alone. Also, it
means that the validity of the will, or the act of making the will
cannot be conditioned on an act or consent or approval of another.
This is also to be distinguished with the word, BILATERAL.
Contracts are bilateral, you cannot have a contact with yourself.
There must be at least two parties who agreed on a certain
undertaking.
Here, we only have the testator. He doesn’t need the consent of
another person.
Example: What is the consequence of this element, being
unilateral? If there is a provision under the will of a person, making
it a condition that the provision should be valid if there is another
act, like I will give to A my land in Calinan if A will give to me his
land in Jacinto. That is not valid. That is what we call
DISPOSITION CAPTATORIA.
DISPOSITION CAPTATORIA- violates the basic characteristic of
a will that it has to be unilateral. So, these provisions are
prohibited.
6. CAPACITY
To be valid, the will must be made by a person with testamentary
capacity. Testamentary capacity has two requirements:
Soundness of mind and Legal Age (at least 18 years old) at the
time of execution of the will. Without any of the two, the will would
be void.
7. FREEDOM FROM VITIATED CONSENT
When the testator executes a will, you must be free from vitiated
consent.
What are the vices of consent: Fraud, violence, mistake, undue
influence, intimidation (same with OBLICON)
In OBLICON, the presence of these vices would result to a
voidable contract. In wills, this would result to a void will. There is
no such thing as voidable will. There is only valid and void. Hence,
presence of a vice is a ground for the disallowance of a will.
8. REVOCABLE or AMBULATORY
Wills are essentially revocable even if the testator has already
probated the last will and testament, he can still revoke that. Even
if the heirs had already signified their acceptance, still the testator
can still revoke.
This right to revoke is almost absolute. It does not require any
ground. The testator may revoke his will for any whimsical reason
or without any reason. The only possible limitation is if the
testator loses his mind. Revocation can be done by testator at
anytime in his lifetime, as long as he is of sound mind. Because
revocation just like execution requires animus revocandi (intent to
revoke). Hence, he must have a sound mind and must understand
the consequence of his revocation. So, if he loses his mind, that
would not be a valid revocation.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
9. INDIVIDUAL
The will must be the act of only one person. One person, one will.
That is why in our jurisdiction, JOINT WILLS are not allowed.
JOINT WILLS- It means that two or more persons jointly executes
and signs a will, and that is prohibited. The main reason is it being
against public policy.
A. It would tempt the other spouse to commit parricide
perhaps because if they are not in the same financial
situation, the husband in his will gives all his properties to
his wife, and ang daming properties, siguro the wife
would advance nalang the death of the husband.
Worse is, malaman nyang ibigay ng husband sa ibang
person lahat ng properties, edi more reason to commit
parricide.
Either way, it will give a reason or temptation to commit
parricide.
10. DISPOSITION OF PROPERTY
For a document to be considered a will, it should contain a
disposition of property. Which means there has to be a property to
be given to an heir.
Example: What if, there is a document entitled “last will and
testament”, in that document the testator said “I have five children,
I hereby declare also that I have also an illegitimate child, Juan
Dela Cruz, and it is my will that my family accept Juan Dela Cruz
even if I am no longer around.”
It is not in the form of a will, although it is entitled last will and
testament, not a notarial will ang form, not in a holographic will ang
form. So, upon the death of the testator, will the acknowledgement
of the child Juan Dela Cruz will be valid? Yes.
Since in the first place, this is not a last will and testament , to be
considered as a last will and testament there has to be a
disposition of property but here eto lang naman ang content,
acknowledgement of the child.
Q: Can that be used by the child as a form of his
acknowledgment?
A: Yes. Because under the Family Code, you can actually use a
document, even a private one subscribed by the party or the
putative parent. So, the child can use that as a proof that he has
been acknowledged by his father.
Example: A document which only appoints an administrator or
executor is not a last will and testament because there is no
disposition of property. Again, we you say administrator or
executor, you are not giving him a property. You are just
constituting that person to guard, administer, and supervise your
properties when you are no longer around, so it has not to be in a
form of a last will and testament.
2 WAYS OF DISPOSING PROPERTIES IN A WILL:
1. Direct Disposition- That is when the testator either
institutes an heir by designating a legatee or devisee.
There is a specific mention of persons getting specific
properties or persons instituted to an aliquot share of the
estate.
2. Indirect Disposition- The testator does not mention
who will receive, but instead he mentions who will be
excluded to receive from his estate. Like a document
containing only a disinheritance.
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When you say a document which expressly excludes a
compulsory heir to the estate, that is a disinheritance,
and that is a disposition of a property although it was not
actually mentioned who will inherit, but he mentioned
who will not inherit. Being that, a disinheritance shall be
in a form of a last will and testament. If it does not follow,
then the disinheritance will not be valid.
11. MORTIS CAUSA
For the document to be considered a valid last will and testament,
the transfer of the properties, rights and obligations, must be
effective upon the death of the testator.
We already discussed before the guidelines to determine whether
or not a disposition is inter vivos or mortis causa.
July 15, 2019 P.2 –Alba
Vitug vs Court of Appeals
(G.R. No. 82027 March 29, 1990)
Digested by: April John D. Latorza
FACTS:
This case involves the probate of the two wills of the late Dolores
Luchangco Vitug, who died in New York, U. S.A., on November 10,
1980, naming private respondent Rowena Faustino-Corona
executrix.
On January 13, 1985, Romarico G. Vitug (co-administrator) filed a
motion asking for authority from the probate court to sell certain
shares of stock and real properties belonging to the estate to cover
allegedly his advances to the estate in the sum of P667,731.66
which he claimed were personal funds. According to Mr. Vitug, he
withdrew the sums of P518,834.27 and P90,749.99 from savings
account No. 35342-038 of the Bank of America, Makati, Metro
Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on
the ground that the same funds withdrawn from savings account
No. 35342-038 were conjugal partnership properties and part of
the estate, and hence, there was allegedly no ground for
reimbursement.
Vitug insists that the said funds are his exclusive property having
acquired the same through a SURVIVORSHIP AGREEMENT
executed with his late wife and the bank on June 19, 1970.
The said agreement contained the following stipulations:
(1) All money deposited and to be deposited with the Bank in their
joint
(2) After the death of one of them, the same shall belong to and be
the sole property of the surviving spouse and payable to
and collectible or withdrawable by such survivor.
RTC: upheld the validity of this agreement
CA: held that the survivorship agreement constitutes a
conveyance mortis causa which "did not comply with the
formalities of a valid will as prescribed by Article 805 of the Civil
Code," and secondly, assuming that it is a mere donation inter
vivos, it is a prohibited donation under the provisions of Article 133
of the Civil Code. 9
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
ISSUE:
WON the survivorship agreement is in the nature of donation
mortis causa:
RULING:
NO
The conveyance in question is not, first of all, one of mortis
causa, which should be embodied in a will. A will has been defined
as "a personal, solemn, revocable and free act by which a
capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his death." In
other words, the bequest or device must pertain to the
testator.
In this case, the monies subject of savings account No. 35342-038
were in the nature of conjugal funds.
There is no showing that the funds exclusively belonged to one
party, and hence it must be presumed to be conjugal, having been
acquired during the existence of the marital relations.
ISSUE:
WON the survivorship agreement is a donation inter vivos
RULING:
Neither is the survivorship agreement a donation inter vivos, for
obvious reasons, because:
First, it was to take effect after the death of one party.
Secondly, it is not a donation between the spouses because it
involved no conveyance of a spouse's own properties to the other.
It is also our opinion that the agreement involves no modification
petition of the conjugal partnership, as held by the Court of
Appeals, by "mere stipulation" 22 and that it is no "cloak" 23 to
circumvent the law on conjugal property relations.
Certainly, the spouses are not prohibited by law to invest conjugal
property, say, by way of a joint and several bank account, more
commonly denominated in banking parlance as an "and/or"
account. In the case at bar, when the spouses Vitug opened
savings account No. 35342-038, they merely put what rightfully
belonged to them in a money-making venture. They did not
dispose of it in favor of the other, which would have arguably been
sanctionable as a prohibited donation. And since the funds were
conjugal, it cannot be said that one spouse could have pressured
the other in placing his or her deposits in the money pool
THE SURVIVORSHIP AGREEMENT IS IN THE NATURE OF
ALEATORY AGREEMENT
The validity of the contract seems debatable by reason of its
"survivor-take-all" feature, but in reality, that contract imposed a
mere obligation with a term, the term being death. Such
agreements are permitted by the Civil Code. 24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties or both
reciprocally bind themselves to give or to do something in
consideration of what the other shall give or do upon the
happening of an event which is uncertain, or which is to occur at
an indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory
contract depends on either the happening of an event which is (1)
"uncertain," (2) "which is to occur at an indeterminate time." A
survivorship agreement, the sale of a sweepstake ticket, a
transaction stipulating on the value of currency, and insurance
have been held to fall under the first category, while a contract for
life annuity or pension under Article 2021, et sequentia, has been
categorized under the second. 25 In either case, the element of risk
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is present. In the case at bar, the risk was the death of one party
and survivorship of the other.
However, as we have warned:
xxx xxx xxx
But although the survivorship agreement is per se not contrary to
law its operation or effect may be violative of the law. For instance,
if it be shown in a given case that such agreement is a mere cloak
to hide an inofficious donation, to transfer property in fraud of
creditors, or to defeat the legitime of a forced heir, it may be
assailed and annulled upon such grounds. No such vice has been
imputed and established against the agreement involved in this
case. 26
xxx xxx xxx
There is no demonstration here that the survivorship agreement
had been executed for such unlawful purposes, or, as held by the
respondent court, in order to frustrate our laws on wills, donations,
and conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having
predeceased her husband, the latter has acquired upon her death
a vested right over the amounts under savings account No. 35342-
038 of the Bank of America. Insofar as the respondent court
ordered their inclusion in the inventory of assets left by Mrs. Vitug,
we hold that the court was in error. Being the separate property of
petitioner, it forms no more part of the estate of the deceased.
Discussion:
Q: What was the nature of that Survivorship Agreement?
A: It is not considered as a will but a contract.
Q: What were the contents or the relevant portions of the
Survivorship agreement?
A:
We hereby agree with each other and with the BANK OF
AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION
(hereinafter referred to as the BANK), that all money now or
hereafter deposited by us or any or either of us with the BANK in
our joint savings current account shall be the property of all or both
of us and shall be payable to and collectible or withdrawable by
either or any of us during our lifetime, and after the death of either
or any of us shall belong to and be the sole property of the survivor
or survivors, and shall be payable to and collectible or
withdrawable by such survivor or survivors.
We further agree with each other and the BANK that the receipt or
check of either, any or all of us during our lifetime, or the receipt or
check of the survivor or survivors, for any payment or withdrawal
made for our above-mentioned account shall be valid and
sufficient release and discharge of the BANK for such payment or
withdrawal.
Q: What is that provision all about?
SO here as we have discussed, the will must contain a disposition
of property diba?
Another is, the property to be disposed of should be the
separate property of the testator, in this particular case, the
subject matter of the survivorship agreement was the joint savings
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 ATTY. LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE
ATENEO DE DAVAO UNIVERSITY Class Transcription
College of Law III – Manresa 2019

account of the spouses. So their joint holding. It did not constitute 3. The determination of the portions of which they are
the separate properties of the persons. to take when rendered to by name

What other characteristic of a will is not present here? That wills
are supposed to be unilateral.
So this is not a last will and testament. What kind of document is
this? This is a contract. As evident in the term or title,
SURVIVORSHIP AGREEMENT. So this is an agreement between
two or more persons. This is not a last will and testament. So it
does not have to be in a form of will to be valid.
Art. 784. The making of a will is a strictly personal act; it
cannot be left in whole or in part of the discretion of a third
person, or accomplished through the instrumentality of an
agent or attorney.
So we already discussed this, na the making of a will is a
STRICLY PERSONAL ACT.
By the way, going back to the definition of a last will and
testament, the law says that the will is an ACT. That is correct, but
you can also add that the will is an INSTRUMENT, because under
our laws the only will that we recognize are WRITTEN WILLS. So,
we cannot verbally execute a last will and testament. We cannot
execute a last will and testament by merely acting it out.
That’s why to be very precise, we can say that the will is the
instrument where the act is embodied.
So, it cannot be left in whole or in part of the discretion of a
third person, (although we will discuss later on what are those
acts which a testator cannot delegate to a third person and what
are those acts which he can also delegate), or accomplished
through the instrumentality of an agent or attorney.
We also discussed na in so far as the mechanical act of drafting
the will, so if it is a notarial will, the mechanical act of drafting the
will can be delegated, but in holographic will, cannot be
delegated.
Art. 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.
Example:
I hereby leave all my money to A, B, and C, and X will decide how
much will they get.
The same thing, that is like delegating to X his testamentary
power. So siya ang magbuot kung how much each named legatee
or heir will take. This act is not allowed to be delegated.
Art. 786. The testator may entrust to a third person the
distribution of specific property or sums of money that he
may leave in general to specified classes or causes, and also
the designation of the persons, institutions or establishments
to which such property or sums are to be given or applied.
So this article talks about a VALID DELEGATION. Unlike article
785.
What happens here?
The testator entrusts to a third person the:
 distribution of specific property or sums of money,
 and then this specific property or sums of money are left
in general to the specified classes or causes
 And this third person may undertake the designation of
persons, institutions or establishment to which such
property or sums of money are to be given.
Now sometimes, Article 786 can be confused with the third item in
785. The third one is the – the determination of the portions of
which they are to take when rendered to by name. So he cannot
determine that portions like again,
“I hereby leave all my money to A, B, and C, and X will decide how
much will they get.” So this is not allowed.
What are the distinctions?
ARTICLE 785 ARTICLE 786
The heirs, devisees or They are not named
legatees are referred to by
name in the will.

So a continuation of the essential characteristic that the will is There’s no class or cause There is a class or cause
PERSONAL. specified specified
So under this article, there are three (3) items here which cannot What is being done here What is being determined
be delegated. by the third person? here would be the
1. The duration of the designation of heirs, legatees or
devisees; The determination of the Persons, institutions or
portions to be given to establishments to which
Example: these named heirs, such property or sums of
I hereby give to A, B, and C my house and lot in Jacinto Street legatees or devisees money are to be given or
Davao City. They can use the property alternately but X will decide applied
the duration of the use of each.
So this is not allowed, because it is as if X now is the testator, or
he decides a very important aspect which is the duration of the use Example:
of the property. So this kind of provision cannot be given effect. This is the provisions of the testator’s will:
“I hereby give all of my properties to the top 5 of Class 2019
2. The efficacy of the designation of heirs, legatees, or Third Year Manresa AdDU and X will determine how much will
devisees; each get.”

Example:
I hereby give my house and lot in Jacinto Street Davao City to A,
B, and C, but subject to the approval of X.
Oh, powerful kaayo si X, kay siya magbuot kung valid ba na or dili.
So in this example, it should be the testator because it is his
property and his last will and testament. This is not allowed.
Is this valid? Is this under Article 785 or 786? Are the properties
left in general to a specified class? So here, it actually under 786.
What if this is the provision:
“I hereby give to Hannah, Christine, Luwalhati, Benrich, the top 4
of class 2019 section Manresa AdDU, and Alexa will determine
how much the share of each.”

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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Is it valid? Is this under 785 or 786? It’s 785 because there are
specific names.
What if the testator says:
“I hereby leave such sum of money as Neon will determine to
support the top 5 of class 2019 Manresa.”
Is this valid? Is it 786 or 785? Is there a specific sum of money or
property? There’s no specific sum of money or property although
it is left in general but 785 says specified sum of money or
property. So here it is NOT valid.
Just remember what the requisites for Article 786 are.
Art. 787. The testator may not make a testamentary
disposition in such manner that another person has to
determine whether or not it is to be operative. (n)
Again, this is similar to Art. 785. It refers to a TESTAMENTARY
DISPOSITION.
“I hereby give my land in Calinan, Davao City to A, subject to the
determination of X whether or not such devise is operative, valid,
or effective.”
So ang difference lang is Art. 787 refers to a TESTAMENTARY
DISPOSITION and Art. 785 refers to DESIGNATION OF HEIRS,
LEGATEES or DEVISEES.
So whether or not these persons will become heirs, legatees or
devisees would be subject to the approval of a third person. –
again THIS IS Not VALID.
Or whether or not a disposition of property in favour of a certain
person is valid? It cannot be delegated to a third person
pursuant to Art. 787.
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.
So, this is the first rule in interpretation of wills.
The law says, if the testamentary disposition admits of different
interpretations –
For example:
One provision in the last will and testament can be interpreted in
such a way that when you interpret it that way, that provision will
be void. But if you interpret that in another way, that provision
would be valid.
Which interpretation shall be followed? Under Art. 788, it says -
that interpretation which is consistent with the validity of the
will.
So we can rephrase it as: THE WILL SHALL BE LIBERALLY
INTERPRETED IN FAVOR OF ITS VALIDITY.
So kung didto na interpretation, mahatgan ug effect ang last will
and testament or ang testamentary provision, the we follow that
interpretation.
Why?
Because the testator’s intent and wishes as much as possible,
must be given effect. The testator’s wishes constitute the first
and principal law in the matter of testaments.
A person would execute a last will and testament in the
expectation that the last will and testament would be given effect.
So as much as possible, we have to respect the express wishes of
the testator.
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Dizon- Rivera v Dizon
G.R. No. L-24561 June 30, 1970
FACTS: In 1961, Agripina Valdez (widow) died and was survived by
seven compulsory heirs: 6 legitimate children and 1 legitimate
granddaughter. Marina is the appellee while the others were the
appellants
Valdez left a w ill executed in February 1960 and written in
Pampango. The beneficiaries were the 7 compulsory heirs and six
grandchildren
In her will, Valdez distributed and disposed of her properties
(assessed at P1.8 million) which included real and personal
properties and shares of stocks at Pampanga Sugar Central Devt Co
During the probate proceedings, Marina (appellee) was name the
executor of the deceased’s estate
In her will, Valdez commanded that her property be divided in
accordance with her testamentary disposition where she devised and
bequeathed specific real properties comprising almost her entire
estate among her heirs. Based on the partition, Marina and Tomas
were to receive more than the other heirs
Subsequently, Marina filed her project of partition adjudicating the
estate as follows:
the legitime computed for each compulsory heir was P129,254.96,
which was comprised of cash and/or properties specifically given to
them based on the will
Marina and Tomas were adjudicated the properties that they received
in the will less the cash/properties to complete their respective
legitime
The other heirs opposed the partition and proposed a counter-
partition on the estate where Marina and Tomas were to receive
considerably less
The lower court approved the executor’s project of partition citing that
Art 906 and 907 NCC specifically provide that when the legitime is
impaired or prejudiced, the same shall be completed. The court cited
that if the proposition of the oppositors was upheld, it will substantially
result in a distribution of intestacy which is a violation of Art 791 NCC
ISSUE: WON the last will of the deceased is to be considered
controlling in this case
HELD:
Yes. Art 788 and 791 NCC provide that "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" and
"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."
In Villanueva v. Juico, the SC held that "the intentions and wishes
of the testator, when clearly expressed in his will, constitute the
fixed law of interpretation, and all questions raised at the trial,
relative to its execution and fulfillment, must be settled in
accordance therewith, following the plain and literal meaning of
the testator's words, unless it clearly appears that his intention
was otherwise."
The testator's wishes and intention constitute the first and principal
law in the matter of testaments, and to paraphrase an early decision
of the Supreme Court of Spain, when expressed clearly and precisely
in his last will, amount to the only law whose mandate must
imperatively be faithfully obeyed and complied with by his executors,
heirs and devisees and legatees, and neither these interested parties
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
nor the courts may substitute their own criterion for the testator's will.
Thus, the oppositors’ proposition for partition cannot be given effect.
Discussion:
*Wala gipa-recite ni Maam, siya nag discuss* 
What is important in this case is the confusion brought by the
repeated use of words – “I BEQUEATH”
Why was there a confusion? Actually when you say bequeath,
there’s a technical meaning for that. When you say bequeath, it
means that you are giving a LEGACY.
When you say “I devise” that means you are giving a DEVISE.
Although sometimes, the words “I bequeath” can be used (?)
(maam: CONFFF….USED lol) also with a devise. But when you
say “I bequeath or I devise” you are referring to free portion and
specific properties.
So, that was the confusion because they were saying na the use of
the words “I bequeath” would be that the property shall be taken
only form the free disposable portion.
Was that the intention of the testator?
The Supreme Court said, we should not limit our interpretation to
the use of the words “I bequeath”. The repeated use of the words
"I bequeath" in her testamentary dispositions acquire no legal
significance, such as to convert the same into devises to be taken
solely from the free one-half disposable portion of the estate.
Where the testator’s intent that her testamentary dispositions were
by way of adjudications to the beneficiaries as heirs and not as
mere devisees or legatees.
And what was the basis of the SC in saying na the designation
was intended to constitute the beneficiaries as heirs and not
merely as legatees or devisees? Because of the use of the
phrase “my heir in this testament” referring to these persons.
So, the property disposition in their favour should not be limited
only to the one-half disposable portion because an heir is instituted
to the universality of the estate as distinguished from a legatee or
devisee who is designated only to a specific real property or
legatee specific personal property.
Vda. De Villanueva vs Juico
Digest by: Cagas
Facts: Don Nicolas Villaflor executed a will in his own handwriting,
bequeathing and devising in favour of his wife ½ of all his
properties and the other half to his brother Faustino Villaflor.
However, such legacy and device will be annulled the moment that
Don Nicolas Villaflor will have a child with his wife.
Don Nicolas died on March 3, 1992, without having any child with
his wife. Dona Fausta (wife) instituted a special proceeding for
partition to which she received the ownership and possession of
properties.
Dona Fausta died without having a second marriage. Her estate is
being settled by Delfin Juico as appointed administrator.
Leonor Villaflor Vda. De Villanueva instituted an action against the
administrator who has been admitted as neice granddaughter of
Don Nicolas. He alleges that said plaintiff became vested with the
ownership of the real and personal properties bequeathed by the
late Nicolas Villaflo
Issue: Whether Leonor Villaflor Vda. De Villanueva has a vested
ownership upon Dona Fausta’s death.
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Ruling: Yes
We agree with appellant that the plain desire and intent
of the testator, as manifested in clause 8 of his testament, was to
invest his widow with only a usufruct or life tenure in the properties
described in the seventh clause, subject to the further condition
(admitted by the appellee) that if the widow remarried, her rights
would thereupon cease, even during her own lifetime. That the
widow was meant to have no more than a life interest in those
properties, even if she did not remarry at all, is evident from the
expressions used by the deceased "uso y posesion mientras viva"
(use and possession while alive) in which the first half of the
phrase "uso y posesion" instead of "dominio" or "propiedad")
reinforces the second ("mientras viva"). The testator plainly did not
give his widow the full ownership of these particular properties, but
only the right to their possession and use (or enjoyment) during
her lifetime. This is in contrast with the remainder of the estate in
which she was instituted universal heir together with the testator's
brother (clause 6). 1äwphï1.ñët
SIXTH: - By virtue of the powers granted to me by the laws, I
institute, through my only and universal heirs of all my rights and
actions, my brother, D. Fausto Villaflor and my wife, Da. Fausta
Nepomuceno so that all my goods belong to me, in the same
parts, for after my death, except the donations and legacies that,
below my most express will, I do it in the following way
The court below, in holding that the appellant Leonor Villaflor, as
reversionary legatee, could succeed to the properties bequeathed
by clause 7 of the testament only in the event that the widow
remarried, has unwarrantedly discarded the expression "mientras
viva," and considered the words "uso y posesion" as equivalent to
"dominio" (ownership). In so doing, the trial court violated Article
791 of the Civil Code of the Philippines, as well as section 59 of
Rule 123 of the Rules of Court.
ART. 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 one is to be preferred which will
prevent intestacy." .
SEC. 59. Instrument construed so as to give effect to all
provisions. — In the construction of an instrument where there are
several provisions or particulars, such a construction is, if possible,
to be adopted as will give effect to all." .
Speculation as to the motives of the testator in imposing the
conditions contained in clause 7 of his testament should not be
allowed to obscure the clear and unambiguous meaning of his
plain words, which are over the primary source in ascertaining his
intent. It is well to note that if the testator had intended to impose
as sole condition the non-remarriage of his widow, the words "uso
y posesion mientras viva" would have been unnecessary, since
the widow could only remarry during her own lifetime
Discussion:
What is this case all about?
Here the testator left a last will and testament and then he said:
“He bequeath in favour of his wife, one-half of certain properties for
her use and possession while alive and does not contract a
second marriage, otherwise the property shall be passed to the
grandniece.”
Take note also that this provision was applied to the free portion
ha, because as to the legitime, you cannot impose a certain
provision. Okay so we’re talking here of a free portion.
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
A question here is what is the nature of that disposition? If the
spouse did not contract a second marriage during their lifetime,
would that property, upon her death form part of her estate?
How did the Supreme Court interpret that provision of the last will
and testament?
The SC said that it is very clear that what was granted to the
spouse is merely a lifetime usufruct, provided that she would
not contract a second marriage.
What would happened if she contract a second marriage? That
means that she will forfeit the use of property. SO even if she is
still alive, the property will go to the grandniece because she
contracted a second marriage.
If she did not contract a second marriage (as what happened in
this case), that means, she would use the property throughout of
her lifetime, but upon her death the property will go to the
grandniece.
This is evident from the use of the words, USE AND
POSSESSION WHILE ALIVE. Because if the testator had
intended to impose a so condition that non-remarriage of his
widow, it would have been unnecessary to use the words USE
AND POSSESSION WHILE ALIVE, because she could only
remarry during her lifetime.
So usufruct lang and after that upon her death the property shall
go to the grandniece.
Balanay Jr v Martinez
(G.R. No. L-39247 June 27, 1975)
Digest by: Louis Palma Gil
FACTS:
Leodegaria Julian (Testator) a native of Sta. Maria, Ilocos Sur,
died on February 12, 1973 in Davao City at the age of sixty-seven.
She was survived by her husband, Felix Balanay, SR., and by
their six legitimate children one of which is Felix Balanay JR.
Felix J. Balanay, JR. filed in the lower court a petition for the
probate of his mother's notarial will.
In that will Leodegaria Julian declared
that she was the owner of the "southern half of nine conjugal lots
(par. II);
that she was the absolute owner of two parcels of land which she
inherited from her father (par. III), and
that it was her desire that her properties should not be divided
among her heirs during her husband's lifetime and that their
legitimes should be satisfied out of the fruits of her properties (Par.
IV).
Then, in paragraph V of the will she stated that after her husband's
death (he was eighty-two years old in 1973) her paraphernal lands
and all the conjugal lands (which she described as "my
properties") should be divided and distributed in the manner set
forth in that part of her will. She devised and partitioned the
conjugal lands as if they were all owned by her. She disposed of in
the will her husband's one half share of the conjugal assets.
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of
the will on the grounds of lack of testamentary capacity, undue
influence, preterition of the husband and alleged improper partition
of the conjugal estate. Later, Felix Balanay, Sr. withdrew his
opposition to the probate of the will and affirmed that he was
interested in its probate, as manifested in an affidavit brought by
Felix Balanay JR.
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On the same date Felix Balanay, Sr. signed an instrument
captioned "Conformation (sic) of Division and Renunciation of
Hereditary Rights" wherein he manifested that out of respect for
his wife's will he "waived and renounced' his hereditary rights
in her estate in favor of their six children. In that same
instrument he confirmed the agreement, which he and his wife had
perfected before her death, that their conjugal properties would
be partitioned in the manner indicated in her will.
This was opposed to by Avelina B. Antonio claiming that the
affidavit and waiver is void. Avelina further claims that:
> that the testatrix (Leodegaria Julian) illegally claimed
that she was the owner of the southern half of the conjugal lots
and
> that she could not partition the conjugal estate by
allocating portions of the nine lots to her children.
Suddenly, another lawyer David O. Montaña, Sr., appeared on
behalf of Felix Balanay JR. withdrawing the probate of Leodegaria
Julian’s will and requesting authority to proceed by intestate estate
proceeding.
RTC (June 18, 1973) : adopted the view that the will was void and
dismissed the probate petition converting it into intestate
proceeding.
Felix Balanay JR obtained a NEW COUNSEL; Roberto M.
Sarenas :
>asked for reconsideration of RTC’s order
>that Atty. Montaña had no authority to withdraw the petition for
the allowance of the will.
>Attached with a letter that they terminated Montaña's services
and informed him that his withdrawal of the petition for the probate
of the will was without their consent and was contrary to their
repeated reminder to him that their mother's will was "very sacred"
to them.
RTC (February 28, 1974) : Denied Balanay JR’s Motion for
reconsideration; It clarified that it declared the will void on the basis
of its own independent assessment of its provisions and not
because of Atty. Montaña's arguments.
ISSUE:
WON the lower court is correct in declaring the will void and
proceeding to hold an intestate proceeding. – NO
RULING:
Passing upon Intrinsic validity prior to formal validity;
ALTHOUGH the trial court acted correctly in passing upon the
will's intrinsic validity even before its formal validity had been
established. The probate of a will might become an idle ceremony
if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the
issue.
Lower Court erred in declaring will void;
But the probate court erred in declaring, in its order of February 28,
1974 that the will was void and in converting the testate
proceeding into an intestate proceeding notwithstanding the fact
that in its order of June 18, 1973, it gave effect to the surviving
husband's conformity to the will and to his renunciation of his
hereditary rights which presumably included his one-half share of
the conjugal estate.
Invalidity in one of several dispositions will not result to
invalidity of entire will;
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
The rule is that
"the invalidity of one of several dispositions contained in a will
does not result in the invalidity of the other dispositions,
unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been
made" (Art. 792, Civil Code).
"Where some of the provisions of a will are valid and others invalid,
the valid parts will be upheld if they can be separated from the
invalid without defeating the intention of the testator or interfering
with the general testamentary scheme, or doing injustice to the
beneficiaries"
In this case;
The statement of the testatrix that she owned the "southern half of
the conjugal lands is contrary to law because, although she was a
coowner thereof, her share was inchoate and proindiviso.But That
illegal declaration does not nullify the entire will. It may be
disregarded.
The provision of the will that the properties of the testatrix should
not be divided among her heirs during her husband's lifetime but
should be kept intact and that the legitimes should be paid in cash
is contrary to article 1080 of the Civil Code.
The testator in her will made a partition of the entire conjugal
estate among her six children (her husband had renounced his
hereditary rights and his one-half conjugal share). She did not
assign the whole estate to one or more children as envisaged in
article 1080. Hence, she had no right to require that the legitimes
be paid in cash.
On the other hand, her estate may remain undivided only for a
period of twenty years. So, the provision that the estate should not
be divided during her husband's lifetime would at most be effective
only for twenty years from the date of her death unless there are
compelling reasons for terminating the coownership.
In this case; the will is VALID;
Subject to the foregoing observations and the rules on collation,
the will is intrinsically valid and the partition therein may be
given effect if it does not prejudice the creditors and impair
the legitimes. The distribution and partition would become
effective upon the death of Felix Balanay, Sr. In the meantime, the
net income should be equitably divided among the children and the
surviving spouse.
Courts must give effect to the intent of the testator;
To give effect to the intention and wishes of the testatrix is the first
and principal law in the matter of testaments Testacy is preferable
to intestacy. An interpretation that will render a testamentary
disposition operative takes precedence over a construction that will
nullify a provision of the will .
It results that the lower court erred in not proceeding with the
probate of the will as contemplated in its uncancelled order of
June 18, 1973. Save in an extreme case where the will on its
face is intrinsically void, it is the probate court's duty to pass
first upon the formal validity of the will. Generally, the probate
of the will is mandatory
Citing: Mr. Justice Barredo:
"the very existence of a purported testament is in itself prima
facie proof that the supposed testator has willed that his estate
should be distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire be
given effect independent of the attitude of the parties affected
thereby"
Testacy is favored. Doubts are resolved in favor of testacy
especially where the will evinces an intention on the part of
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the testator to dispose of practically his whole estate. So
compelling is the principle that intestacy should be avoided and
that the wishes of the testator should prevail that sometimes the
language of the will can be varied for the purpose of giving it effect.
As far as is legally possible, the expressed desire of the testator
must be followed and the dispositions of the properties in his will
should be upheld. The law has a tender regard for the wishes of
the testator as expressed in his will because any disposition
therein is better than that which the law can make
Side Note:
Can Felix Balanay SR renounce his rights; YES;
Felix Balanay, Sr. could validly renounce his hereditary rights and
his one-half share of the conjugal partnership; but insofar as said
renunciation partakes of a donation of his hereditary rights and his
one-half share in the conjugal estate it should be subject to the
limitations prescribed in articles 750 and 752 of the Civil Code. A
portion of the estate should be adjudicated to the widower for his
support and maintenance. Or at least his legitime should be
respected.
It should be stressed that by reason of the surviving husband's
conformity to his wife's will and his renunciation of his
hereditary rights, his one-half conjugal share became a part of
his deceased wife's estate. His conformity had the effect of
validating the partition made in paragraph V of the will without
prejudice, of course, to the rights of the creditors and the legitimes
of the compulsory heirs.
Discussion:
Okay, so one rule of interpretation in this case, if you remember, if
you can separate some provisions – the valid provisions from
the void ones, then retain the valid provision and only
disregard the invalid provisions, unless the intention was that
the valid provisions cannot be implemented without the void
ones.
Q: Now how about the fact that the testatrix disposed of the
conjugal estate in her will and made a partition of the same? Can a
person dispose of the conjugal estate in the will?
A: NO, because he must be the absolute owner of the property.
Okay, just like as what we discuss in the case of Vitug vs CA. So a
disposition of a conjugal property in the will is not valid.
Q: But how was this interpreted in this case?
A: Upon the husband’s execution of the confirmation, he actually
renounced his rights to the ½ share over the conjugal property.
And from that moment, his share became part of the estate of his
deceased wife.
Q: How about the partition? Is it valid?
A: In the instant case there is no doubt that the testatrix and her
husband intended to partition the conjugal estate in the manner set
forth in paragraph V of her will. It is true that she could dispose of
by will only her half of the conjugal estate (Art. 170, Civil Code) but
since the husband, after the dissolution of the conjugal
partnership, had assented to her testamentary partition of the
conjugal estate, such partition has become valid, assuming that
the will may be probated.
Okay because the husband assented to the partition then the
wife’s partition in the will can be given effect subject to the probate
of the will.
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Q: So what important principle in Succession was mention by the
SC here?
A: With respect to the interpretation that the will must be
interpreted in such a way as to favour the testacy. So testacy
is favoured over intestacy.
So please remember what the SC said here, So compelling is
the principle that intestacy should be avoided and that the
wishes of the testator should prevail that sometimes the
language of the will can be varied for the purpose of giving it
effect.
Q: How will you apply Art. 788 to this case?
A: If the will has different interpretations then the interpretation by
which the disposition is to be operative shall be preferred.
Q: Specifically, in the case of Balanay? What particular provision in
the last will and testament of the testatrix here can be interpreted
in two ways?
A: PARAGRAPH V
In paragraph V of the will she stated that after her husband's death
(he was eighty-two years old in 1973) her paraphernal lands and
all the conjugal lands (which she described as "my properties")
should be divided and distributed in the manner set forth in that
part of her will. She devised and partitioned the conjugal lands as if
they were all owned by her. She disposed of in the will her
husband's one half share of the conjugal assets.
Okay, so if you take into account the conformity of the husband
and the waiver of his hereditary rights there would now be no legal
impediment for the implementation of the partition named by the
testatrix in her will.
So this is one example of two possible interpretation, because the
other interpretation would give effect to the will then consistent with
the rule that the will should liberally construed in favour of its
validity, then we interpret it in that way – that provision is already
valid because there is already an assent by the husband.
FROM 2018 TSN
Here, the husband already waived his right. So in effect, he agreed
to the partition made by the wife in paragraph 5 of her will. There‘s
no more impediment to giving effect to that provision. Without that
provision, it would have been void or if we do not take into account
that waiver, it would be void. But the law says, if there is a way to
give effect to the will, you have to give effect to the will because we
have to avoid intestacy as much as possible. So that is why here,
the SC gave effect to that provision. Also, assuming the argument
that such provision is valid, it will not affect the other valid
provisions. Only the invalid provisions will not be given effect. So
that is a way of interpreting the will.
July 19, 2019 – Puerin
We proceed to Article 789. This is also called Interpretation of
Wills.
Art. 789. When there is an imperfect description, or when no
person or property exactly answers the description, mistakes and
omissions must be corrected, if the error appears from the context
of the will or from extrinsic evidence, excluding the oral
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
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circumstances under which it was made, excluding such oral
declarations. (n)
So if you read Article 789, I am sure you will not understand. So
what does Article 789 provide? What does it mean? It speaks of
two kinds of ambiguities in a will.
2 KINDS OF AMBIGUITIES IN A WILL
1. LATENT OR INTRINSIC AMBIGUITY
2. PATENT OR EXTRINSIC AMBIGUITY
So when you say LATENT OR INTRINSIC AMBIGUITY we are
referring to those ambiguities which you will not detect by reading
the will. So for example:
“I hereby give my house and lot in Jacinto St. Davao City to my
bestfriend Juan dela Cruz.”
So what’s wrong with that provision? It is clear no na you are
giving the properties, the house and lot, to Juan dela Cruz. So by
reading the will, you will not know that there is an ambiguity. But
you will only know na there is ambiguity when you start looking for
properties or when you start looking for persons. So for example
lang on the death of the testator, let’s go to Juan dela Cruz, pero
wala diay siya friend na named Juan dela Cruz. So walay
nagcorresponds sa iyahang definition. So now, we have an
ambiguity.
There are actually four types of INTRINSIC OR LATENT
AMBIGUITY.
4 TYPES OF INTRINSIC OR LATENT AMBIGUITY.
1. IMPERFECT DESCRIPTION OF AN HEIR, LEGATEE,
OR DEVISEE
2. IMPERFECT DESCRIPTION OF THE PROPERTY
GIVEN
3. WHEN 2 OR MORE PERSONS CORRESPOND TO
THE DESCRIPTION
4. WHEN 2 OR MORE THINGS MEET THE
DESCRIPTION
So possible nga inigpangita nato kay Juan dela Cruz upat diay
kabook ang bestfriends na named Juan dela Cruz. So kinsa man
sa ilaha upat. We will just say divide the house and lot among the
four? But the intention is to give only to one. So how will you
resolve that ambiguity?
The other one is the PATENT OR EXTRINSIC AMBIGUITY.
So when you say PATENT OR EXTRINSIC AMBIGUITY, by
reading the will we will readily know that it suffers from a defect or
ambiguity. For example:
“I hereby give my house and lot in Jacinto St. Davao City to some
of my nephews”. So by reading the will , what does the testator
mean the word “some”? is it only one? Of course not because if
you say “some” must be more than one. Is it three? Because there
are seven nephews. So how many?7?4? By that provision alone,
we know that there is an ambiguity.
The next question: HOW DO WE RESOLVE OR CURE THE
AMBIGUITY IN THE LAST WILL AND TESTAMENT OF THE
TESTATOR?
So ARTICLE 789 (CC) gives us the solution. So let’s decipher
what does Article 789 means.
Based on Article 789, there are two kinds of Evidence. So in
Succession naa tay duha ka kinds of Evidence.
2 KINDS OF EVIDENCE IN SUCCESSION
1. EXTRINSIC EVIDENCE
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
2. INTRINSIC EVIDENCE
So duha na ka times nato gigamit ang words na extrinsic ug
intrinsic. So lahi na pud ang meaning. So lahi ng extrinsic
ambiguity or intrinsic ambiguity. So now we are talking of
Evidence: Extrinsic Evidence and Intrinsic Evidence.
When you say EXTRINSIC EVIDENCE we are referring to those
pieces of Evidence which are not found in the will. Didto na sila sa
gawas sa will like Letters made by the Testator during his lifetime.
So those are possible pieces of Evidence. Testimonies of persons.
How about INTRINSIC EVIDENCE?
When you say INTRINSIC EVIDENCE that is evidence found
within the four corners of the will. But when you say four corners,
not literal ha. Kung daghan pages ang will tanan sila didto nato
tanawon and then kung naa attestation clause part na siya sa
pagpangita nato ug intrinsic evidence. Kung naa acknowledgment
part pud na siya. So everything but we limit to the will. We do not
go beyond the will unlike Extrinsic Evidence or we call that
Evidence Aliunde.
So what kinds of Evidence may be used to cure an ambiguity in a
will, whether extrinsic ambiguity or intrinsic ambiguity? Actually,
you can use all kinds of Evidence whether exntrinsic evidence or
intrinsic evidence, pwede na siya. So for example katong “I hereby
give my house and lot in Jacinto St. Davao City to my bestfriend
Juan dela Cruz.”
So when you start looking for Juan dela Cruz, kinsa mana siya?
So how do you prove?
Extrinsic Evidence: may be nay mga Letters which will lead us to
who is really Juan dela Cruz or testimonies of persons na “actually
kani siya mao jud ni siya si Juan dela Cruz pero John iya pangalan
pero ginatawag siya ni testator ug Juan mao gyud ma ila term of
endearment”. So si John magtestify siya nga siya ang bestfriend
you can prove that man by evidence nga siya ang bestfriend ni
testator during his lifetime or letters sent by testator to John during
the lifetime saying na “Dear Juan, I promise na pagmamatay ko
ihatag nako sa imoha ang house and lot, etc.”
So that is what you call EXTRINSIC EVIDENCE. Or maybe in a
will, nay mga signs didto na nagindicate na kani si Juan dela Cruz
John diay ni siya. So na mention na sabay sila naglaw school,
nagreview for the bar, nahimong lawyer, so you can prove that. So
that would guide us in determining na this person is really the one
referred to by the testator in the will. So that is INTRINSIC
EVIDENCE.
How about there is a person who will testify saying na actually ako
jud si Juan dela Cruz because the testator during his lifetime told
me na intended jud sa ako ang property even if I named Piolo
Pascual pero ang amo term of endearment kay Juan dela Cruz.
Ako jud to ginamean dili siya. Is it acceptable? Is it allowed?
You read Article 789 “excluding the oral declarations of the testator
as to his intention”. Before that can we allow oral evidence to cure
and ambiguity in the will?
Oral evidence is classified as extrinsic evidence because it is not
found in the will. Can we allow oral evidence because the law says
“escluding the oral declarations”? please remember that what
excluded here are the oral declaration of the testator as to his
intention because the testator is no longer around to dispute. Ang
magtestify sa court bahalag unsa imo isulti diha dili mn gyud na
matubag ni testator kay wala naman siya, so that is not allowed.
So if death already sealed the lips of the testator, so the law shall
also sealed the lips of those who are left behind. So this is one
application.
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Did you discuss this in evidence already or wala pa? in fact, under
RULE 130 SECTION 9 OF THE RULES OF COURT- PAROL
EVIDENCE RULE.
PAROL EVIDENCE RULE
Sec. 9.Evidence of written agreements. — When the terms of an
agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between
the parties and their successors in interest, no evidence of such
terms other than the contents of the written agreement.
However, a party may present evidence to modify, explain or add
to the terms of written agreement if he puts in issue in his pleading:
(a)An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b)The failure of the written agreement to express the true intent
and agreement of the parties thereto;
(c)The validity of the written agreement; or
(d)The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement.
The term “agreement” includes wills. (7a)
So when the terms of an agreement is already reduced to writing it
means that all we have agreed upon are already contained in that
written agreement and there’s nothing else that you have agreed
that not reduced into that written agreement. So it contains
everything that have agreed upon. So under this parol evidence
rule, you cannot vary the tenor of the written agreement by means
of oral evidence. You are not allowed to present oral evidence to
change or modify the terms of the written agreement. Even if we
say agreement the last paragraph of Rule 130 Section 9 says “The
term “agreement” includes wills.”
Now there are exceptions to the Parol Evidence Rule, all
mentioned in Section 9, Rule 130.
However, a party may present evidence to modify, explain or add
to the terms of written agreement if he puts in issue in his pleading:
(a)An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b)The failure of the written agreement to express the true intent
and agreement of the parties thereto;
(c)The validity of the written agreement; or
(d)The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement.
Section 9 paragraph b, this is again applicable to wills. If there is
intrinsic ambiguity in a will, you can actually use parol evidence
only excluding oral declarations of the testator as to his intention.
Now let’s go to another question. In obligation and contracts di ba
you remember if the contract does not express the true agreement
of the parties but they already had a meeting of the minds like A
and B agreed on a loan with mortgage. However, the document
which the signed is a contract of sale with right of repurchase, so
pacto de retro sale. Now A kay nagbrown out man ug kalit
pagpirma nila so pagsiga sa suga “hala! ngano contract of sale
with right to repurchase mani siya?”. Moana si B kay nagtake
advantage n apud siya “ay! Mao mana ato sabot diba”. So kung
ikaw si A, your remedy is to file action for REFORMATION
because there was a meeting of the minds but the contract as
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
written does not express the true intent of the agreement of the
parties. So that’s available in contracts.
How about in wills? For example ikaw ang pinakakusgan na apo,
so ana imo lolo “apo tagaan teka 10M” para pang bar exam nimo.
Himo siya last will and testament and then lipay na kayo ka
siyempre 10M bisan dili ka mopasar sa Bar exam okay lang.
Pagkuha sa will ang nabutang kay 10k lang, so nakita nmo “lo, lahi
lagi ni sa imo giengon na 10M”. Unya sige lang na siya, okay ra na
siya dili na nako usabon ang will kay mahal ako nabayaran ana sa
notary sa last will. Can you file an action for reformation to express
the true intent of the testator? You remember Article 1366 of the
New Civil Code.
Art. 1366. There shall be no reformation in the following cases:
(1) Simple donations inter vivos wherein no condition is imposed;
(2) Wills;
(3) When the real agreement is void.
So based on that provision you cannot file an action for
REFORMATION. Obviously, dili jud na siya allowed because you
know di ba in wils we have discussed that wills are essentially
revocable. So until the testator has died you cannot really demand
from him to give effect the provisions of the will. For all you know
file file ka reformation unya irevoke ra niya ang will, so wala na kay
10k, so pasagdii na lang na siya. So you cannot file an action for
reformation.
We now go to Article 790.
Art. 790. The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in another
sense can be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their technical sense,
unless the context clearly indicates a contrary intention, or unless it
satisfactorily appears that he was unacquainted with such
technical sense. (675a)
So we refer here to the interpretation of the words. Of course the
general rule, we interpret the words of the will in accordance with
their plain meaning. Just like in contracts di ba, you do not interpret
a contract if there is no doubt or if the words of the contract are
very clear. So you interpret according to the plain meaning of the
words.
Now, in wills we have ordinary terms and we also have technical
terms. So what are the rules in interpretation?
1. When it comes to ordinary terms, what do you mean by
ordinary terms? Those are the terms which we as layman
we should understand. So what are examples of ordinary
terms?
“I hereby give to A my favorite table.” So unsa may
meaning sa table? Is it a technical term ang table? Table,
table na siya. We give its ordinary meaning. Unless, of
course, the testator has intended to give it an another
meaning. So for example, “I hereby give to A my favorite
table.” Unya ang iya diay favorite table kay bench na iya
ginabuhat ang table, so even if he calls it a table but it is
really not a table, it is a bench. If you refer it to its real,
ordinary meaning, it is a bench, it is not a table but he
uses it as table and that’s what he calls it in his will; so
we give it a different meaning according to his intention.
2. How about technical terms? Technical terms are words
that have their own meanings as defined in the rules or
laws of certain subject, discipline, science, and the like.
There are technical terms for example legacy: legacy is
actually a technical term-it refers to a gift of specific
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personal property. So when you say legacy meaning that
is taken from the free portion. Devise, adoption are
actually technical terms. So when you say adoption it is
one which happen when there is legal proceeding and
there is decree of adoption. So when you say adopted
child, so that is the child who has undergone adoption
proceedings and there is a decree of adoption. Under the
Law, that child has the same right as legitimate children.
Illegitimate child has the same rights with legitimate
children. What if the testator, kung gamiton na sa will,
general rule we follow the technical meaning unless (so
there are exceptions):
a. When there is a contrary intention;
b. When the testator prepares the will by
himself and he is unacquainted with the
technical meaning.
-So for example, he made a last will and
testament and he said “I am giving this land,
my entire properties to my adopted child Juan”.
So wala siyay anak, wala siyay parents, si Juan
lang, so naa siyay will. Karon naa siyay mga
igsoon. So mocontest ang mga brothers and
sisters because Juan is not really an adopted
child in the legal sense. Si Juan was just
gisagop lang nila sa testator since childhood
and treatedas his own child. So, the testator
hangtod grade six lang siya, obviously wala jud
siya kabalo unsa meaning sa adoption. Basta
mao na ng gi.adopt sa ila(pagkopkop). Can the
brothers and sisters of the testator contest on
the ground that he is not the one or qualified
because the will says “adopted” and he is not
legally adopted; therefore the will should not be
given effect; the estate shall pass by legal
succession to the legal heirs or the brothers
and sisters. Would that be correct? Here, it is
very clear that even if the technical terms used
in the will, the testator has a contrary intention
and obviously he prepares holographic will he
is unacquainted with the technical meaning of
word; here we can give the term in its ordinary
meaning even it is a technical term. So that’s
an example.
-If for example the testator’s intention cannot be
ascertained, in all rules of interpretation when
there is doubt, we cannot give effect to the
provision. Only when we can resolve the doubt.
If there is no doubt, we cannot resort to the
rules on interpretation. We just give effect to
the will as written using the literal meaning of
the words used.
Let’s go to Article 791.
Art. 791. The words of a will are to receive an interpretation which
will give to every expression some effect, rather than one which
will render any of the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will prevent
intestacy. (n)
So another rule in the interpretation of wills. Article 791 has two
parts:
1. The will must be interpreted as a whole; and
2. Testacy is favored over intestacy.
So no. 1. The will must be interpreted as a whole, that’s why the
law says “the interpretation should give every expressions some
effect, rather than one which will render any of the expressions
inoperative”. If you have a certain provision in a will, you do not
isolate your interpretation to that specific provision only. You do
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
not interpret a will piece by piece. As much as possible you have
to reconcile all the provisions of the will, so that by connecting all
this provisions you will determine what is really the intention of the
testator.
No.2.Testacy is favored over intestacy- of course we know that if
the will can be interpreted in two ways- if you interpret it this way, it
will result to intestacy; if you interpret this way it will give effect to
the provisions. So which interpretation shall be followed?
The rule says “that which will prevent intestacy”, because gain
testacy is favored over intestacy. A person will not execute a last
will and testament with that expectation that such will just be
disregarded. If you leavea will meaning gusto nimo na it will be
followed, so that is why we have to give effect to the express
wishes of the testator.
Now let’s go to this case of Yambao vs Gonzales.
DELFIN YAMBAO, plaintiff-appellant, vs. ANGELINA
GONZALES, ET AL., BAUTISTA ANGELO, J.:
FACTS:
On August 10, 1942, Maria Gonzales executed a will bequeathing
to appellees all her properties situated in Sta. Rosa, Laguna. The
will was probated in 1948.
Immediately, thereafter, appellant went to appellees to request that
he be placed as tenant of the riceland which, by an express
provision of said will, they were directed to give to him for
cultivation, as tenant, and when they refused alleging that they had
already given it to another tenant he filed the present action.
The pertinent provisions of the will relied upon by appellant read as
follows:
Dapat din naman malaman ng dalawa kong tagapagmana na sila
MARIA PABLO at ANGELINA GONZALES na sila ay may dapat
TUNGKULIN O GANGPANAN GAYA ng mga sumusunod:
xxx xxx xxx
(2) Pahihintulutan nila na si Delfin Yambao ang makapagtrabajo
ng bukid habang panahon, at ang nasabing bukid ay isasailalim ng
pamamahala ng Albasea samantalang ang bukid ay nasa usapin
at may utang pa.
Arguments of Respondents
In their answer, defendants averred that the provisions of the will
relied upon by plaintiff is not mandatory; that the determination of
who should be the tenant of the land is vested in a special court;
and that the present action is not the proper remedy.
RTC: dismissed the complaint for lack of sufficient cause of action.
It held that the provisions of the will relied upon by plaintiff merely
amount to a suggestion to the defendants who, though morally
bound, are not legally compelled to follow said suggestion,
invoking as authority Article 797 of the old Civil Code.
In holding that the provisions of the will relied upon by appellant
imposes only a moral but not a legal obligation, the trial court went
on to consider the import of the word "Pahihintulutan" employed
with reference to appellant. In its opinion said word only means to
permit or to allow, but not to direct appellees to appoint appellant
as tenant.
ISSUE:
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Whether the defendants are legally compelled to place defendant
as tenant of the riceland. YES
RULING:
The trial court has not properly interpreted the real import of
the wish of the testatrix.
Analyzing it carefully we will find that the same contains a clear
directive to employ appellant as may be seen from the words
preceding the word "pahihintulutan", which say:
"Dapat din naman malaman ng dalawa kong tagapagmana na sila
MARIA PABLO at ANGELINA GONZALES na sila ay may dapat
TUNGKULIN O GANGPANAN GAYA ng mga sumusunod."
The words 'dapat TUNGKULIN O GANGPANAN" mean to do or to
carry out as a mandate or directive, and having reference to the
word "pahihintulutan", can convey no other meaning than to
impose a duty upon appellees. To follow the interpretation given by
the trial court would be to devoid the wish of the testatrix of its real
and true meaning.
Article 797 of the old Civil Code, invoked by the trial court, is
inapplicable.
That refers to an institution of an heir intended to be conditional by
providing that a statement to the effect cannot be considered as a
condition unless it appears clearly that such is the intention of the
testator. We are not faced here with any conditional institution of
heirship. What we have is a clear-cut mandate which the heirs
cannot fail to carry out.
Ma’am: Prior to the “Pahintulutan…..” we have this opening
sentence “Dapat din…………….may tungkulin o gangpanan gaya
ng mga sumusunod”; so meaning after that there is an
enumeration and one those enumerated is pahintulutan si yambao
na manatili.
How will you apply Article 791?
As we already discussed, when we interpret a will we do
not interpret it piece by piece or in isolation. So even if the word
pahintulutan was used in the will, we will not readily say na it only
means discretionary, we have to look to the other portion of the will
to know what was really the intention of the testator. So here aside
from the used of pahintulutan, there was an opening sentence
which covers all the enumerations and in the opening sentence it
was very clear na it mentions “tungkulin o gangpanan” which is a
mandate or a directive. To be consistent, you cannot say na ang
opening sentence kay obligatory tapos ang sunod kay
discretionary, you have to reconcile everything. Based on that the
real intention of the testator was really to make it as an obligation
to allow this person to remain as tenant in the land. It was not just
discretionary. So that is how you interpret according to the
Supreme Court in this case.
Let’s got to Article 792.
Art. 792. The invalidity of one of several dispositions contained in
a will does not result in the invalidity of the other dispositions,
unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been
made. (n)
So here it is another rule in the interpretation of wills. If for example
in a will there are several provisions: one provision is valid; but the
other provision is invalid- so what is the consequence?
Do we disregard the entire will? Do we disregard the invalid
provision and give effect to the invalid? Or do we just close our
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
eyes na there is an invalid provision in order to give effect to the
entire will?
The rule here is if the valid provisions can be separated from the
invalid provisions, then we give effect to the valid provisions unless
it is the intention of the testator that the valid provisions cannot
also be implemented without the invalid provisions.
So meaning they are not separable. In that case, we cannot give
effect to the entire will because we cannot close our eyes also to
the fact na there is an invalid provision. But again for as long as
these provisions van be separated then we give effect to the valid
provisions.
Did we already discussed the case of BALANAY vs MARTINEZ?
So here this is also an illustration because, I think I already
explained it also, there are several provisions in the will di ba.
What was questioned here was the disposition and partition made
by the testatrix of the conjugal lands because under the law the
testator/ testatrix can only dispose of his/her separate property in
the will. So the conjugal property is not the separate property of
the testator.
Therefore a provision dealing with the distribution or partition of
such conjugal lands it is actually void. But we learned before na,
one rule di ba, na if you can interpret the will in such a way that it
was still be valid although there is another possible interpretation
na it is not valid; we follow the interpretation which will make the
will valid. So again in this case the Supreme Court took into
account the conformity and assent made by the husband to the
partition made by the wife in the will and he also made a waiver of
his hereditary rights. And the Supreme Court also said na
assuming the provision is not valid, it will not result to the total
invalidity of the will because that provisioncan actually be
separated from the rest of the valid provisions.
Let’s got to Article 793.
Art. 793. Property acquired after the making of a will shall only
pass thereby, as if the testator had possessed it at the time of
making the will, should it expressly appear by the will that such
was his intention. (n)
So Article 793 is what we call another rule on AFTER-ACQUIRED
PROPERTIES. We discussed the first one in Article 781. Now first
thing that we need to remember about Article 793, athough the law
is silent, it does not really mentioned about the inheritance, a
legacy, or a devise, Article 793 is only applicable to a legacy or
devise. It does not apply to an inheritance. Why? Because when
you say inheritance the heirs succeed to the universality of the
properties, rights, and obligations. And when do we know what is
the value of the universality of the properties, rights and
obligations? It will only be determined at the time of death of the
testator.
In Article 793, it is just saying na the legacy or devise only includes
that property existing at the time of the execution of the will but
before the death of the testator. So if there is anything added to or
incorporated or accrues form, that property existing at the time of
the execution of the will until the moment before the death of the
testator that is not included in the legacy or devise. So that is the
meaning of Article 793.
So for example, year 2000 the testator made a last will and
testament and in that will “I hereby give to A my land in Calinan
Davao City”. And that land has 10 hectares. Maybe gimentioned ni
testator ang title number etc. basta kay his giving that land in
Calinan Davao City to A. he made a will in year 2000.now
assuming thatin year 2004 because of the action of the river kay
daghan man sapa diha sa Calinan dapit, so the land gradually
increased in sides such that it now has 11 hectares, now under
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your property di ba so accretion, to whom the accretion belong? To
the owner of the land to which it is attached. So didto siya
nagattached (river) na gihatag kay A. And the testator died in year
2010. The question is: what can A claim from that devise? What
extent ang iyahang right? Is he limited only to the 10 hectares or
the devise includes the accretion of 1 hectare? So unsa man?
Under Article 793, the legacy or devise is only limited to that
property existing at the time of the execution of the will. So what
you need to do is determine kung unsa ang areas sa land when
the will was made, di ba 10 hectares. How about tong accretion?
Article 793 says it is not included. How about the law on property?
Di ba engon si Civil Code na “to the owner of the land also belongs
the accretion”. Yes, that is correct. Kinsa may owner sa land at the
time the accretion happened? Was is the devisee? No, it was the
testator. So that is not part of the devise.
So upon the death of the testator, A can claim the 10 hectares.
How about the 1 hectare na accretion? It will go to the estate of the
testator because he already owned it during his lifetime by reason
of the law on accession. Ang question lang is would that accretion
go to the devisee upon his death. No, because Article 793 says it
is not included, but only those properties existing at the time of the
execution of the will.
How do we relate that to Article 781? Di ba we already discussed
similar concept of Article 781.
Art. 781. The inheritance of a person includes not only the
property and the transmissible rights and obligations existing at the
time of his death, but also those which have accrued thereto since
the opening of the succession. (n)
For example katong accretion didto na siya nahitabo after the
death of the testator, so the will was made in year 2000 and then
in year 2010 the testator died and in year 2012 there is an
accretion because of the action of the river. Ang question who is
the owner of the accretion? Is it the estate of the testator?
It is now the devisee. Why?
Because at the time of death, the devisee became the owner of
the land in Calinan Davao City and 2 years after there was an
accretion and it was attached to the land of A. so under the law on
Property, particularly Accession, to the owner of the land to which
the accretion is attached also belongs to the accretion.
So Article 781 applies if the addition, income, accretion, accession,
etc. will occur after the death of the testator. To the heir, legatee,
or devisee belongs everything that is added to or incorporated or
accrues from the inherited property form the moment of death.
Pero kung nahitabo to siya before death wala sa kay because it is
not included in the legacy or devise.
EXCEPTIONS:
1. No. 1 exception is mentioned in Article 793 also -
unless it is expressly provided for in the will by the
testator.
For example:
“I hereby give to A my land in Calinan Davao City and any
accretion, income, or additions to the property from the time of the
execution of the will would also belongs to him”
- So in that case you can claim the accretion.
2. Another exception is Article 836 on CODICIL which
we will discuss if we go to Article 836
3. Article 930
4. Article 935 on legacies and devises.
- So these are other exceptions aside from the one
mentioned in Article 793.
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Now for example the testator in year 2000 said “I hereby institute A
as heir to the ¼ of my estate”. In year 2000 iyahang estate kay
10M, but when he died his estate is 20M.
Asa man karon ang basis sa ¼ ? sa value at the time of execution
of the will or value at the time of death? Is this an inheritance or a
legacy or devise?
It is inheritance. So in that case, pila ang maclaim ni A upon the
death of the testator? Is it ¼ of 10M or ¼ of 20M?
IT IS ¼ OF THE NET ESTATE AT THE TIME OF DEATH. So dili
siya parehos sa legacy or devise na ang basis would be the one
exists at the time of the execution of the will because an heir, you
cannot pinpoint to which property is that heir instituted. He (heir) is
instituted to the universality of the estate which will not only include
the properties, rights but also the obligations. It should be the net
estate at the time of the death of the testator, so that is why we
said na Article 793 is not applicable to an HEIR. Article 793 only
applies to a legatee or devisee.
July 20, 2019 P.1 – Claros
Art. 794. Every devise or legacy shall cover all the interest which
the testator could device or bequeath in the property disposed of,
unless it clearly appears from the will that he intended to convey a
less interest. (n)
794 speaks of devise or legacy however this should also apply to
Inheritance. Unlike Art. 793 that is applicable only to Legacies and
Devisees.
So what does Art. 794 say essentially?
It says that whatever would be the interest of the testator in the
thing devise or bequeath that is included unless the contrary
intention appears – unless it appears that he intended a less
interest for example.
Example: The testator is part owner of a parcel of land in Calinan,
Davao City to A, all the interest that the testator has shall be
included in the conveyance.
So we cannot assume that it's only 1/4 or 1/2 unless he specifies.
Okay? So Everything.
So if he say: "I hereby give 1/4 of my interest in the land in
Calinan, Davao City"
That means expressly he is giving he is giving a lesser interest.
But what if in that Particular disposition: "I'm giving my land
in Calinan, Davao City to A"?
- but he only owns 1/2 of such land
Q: How much is the land devised to A? Is the entire land devised
to A?
A: Pursuant to Art. 794 "ALL INTEREST" which he has in the
property. So Meaning hes entire 1/2.
The testator only has 1/2 so meaning the devise will be effective
only as to the share of the testator.
You cannot say the whole of the land. Because basic that you
cannot give what you do not own.
So you cannot give, convey, transfer, assign more that what you
own in the property.
So the devise in that case is limited only to what the testator owns.
GENERAL RULE: Everything that the testator owns in the
property devise or bequeath that is the extent of the device or the
legacy.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
EXCEPTION:
1. If it clearly appears (in the will) that the testate intended to
convey a lesser interest which is mentioned in Article 794.
Q: What if the testator says I only owns 1/2 of the land in
Calinan, Davao City and the in his will he says: ―although I
own only ¼ of the land in Calinan, Davao City, I am giving the
land on its entirety to A. Is the will valid?
A: When we go to legacies and devises, that is actually valid. YES.
The will is valid.
How can that be valid?
In that situation, there is an implied instruction on the este to
acquire the shares of the other owners so that the entire land can
be given to the devisee.
But if the other owners refuse to sell their shares or they demand
an excessive price for their shares - so the law says the estate will
have to give to the devisee the just price of the thing, meaning the
person gets the just value of the land. So that's the 2nd exception.
That is if the testator knew that he did not own the entire land but
still he directed the entire land be given in the will.
GENERAL RULE: The legacy, devise or inheritance is only limited
to the interest of the testator in the property subject thereof.
EXCEPTION:
1. If it clearly appears (in the will) that the testate intended to
convey a lesser interest which is mentioned in Article 794.
2. If he intends to give a greater interest
3. Even if the testator has no ownership at all over that land but in
his will he said: "Even if I don't own the land (describing the land) I
am giving the land to X.
Q: Is that valid?
A: Yes
When we go to legacies and Devises, as long as the testator knew
at the time that he did not own the property but still he is giving the
property that means he intends to give it to the legacy or devise.
So the consequence as we already discussed the estate of the
testator will buy the property from the owner. So if the owner
refuses to part the property or demand excessive price then the
estate only has the obligation to give to the devisee the just value
of the property.
Q: What if the testator did not know that he is not the owner of the
land?
He thought it was his. And in his will he gave the land to the
devisee. Is that devise valid?
A: This time, it's not valid. So, here we apply the general rule: "We
cannot give what we do not own"
Art. 795. The validity of a will as to its form depends upon the
observance of the law in force at the time it is made. (n)
It talks about the validity of the will as to its form. This is what we
call extrinsic validity.
2 KINDS OF VALIDITY of WILLS
1. Extrinsic validity – refers to the forms and solemnities that
must be observed in the execution of wills. Depending if it is a
Notarial or a Holographic will.
2. Intrinsic validity – refers to the legality of the provisions of the
will. The substance of the will.
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
This is now the 3rd time you encountered the words Extrinsic and
Intrinsic. Article 795 refers to forms, that is EXTRINSIC VALIDITY.
When we say EXTRINSIC validity we are referring to the forms
and solemnities that must be observed in the execution of the will.
So form lang. If it is a notarial will, is it acknowledged before a
notary public? If it has an attestation clause. Does it have
witnessess? Are all statements required by law mention in the
Attestation clause present? Are there pages? So those are the
matters that we will need to know.
If it is a HOLOGRAPHIC WILL:
Is it entirely written, dated and signed in the hands of the
testator?So mao lang na sya ang meaning sa extrinsic validity.
When we say Intrinsic validity we are referring to the contents of
the will. So if extrinsic means form, intrinsic means substance.
Whether on the the provisions in the will are valid.
So under this questions pertaining to pretirition, disinhiretance,
impairment of the legitimes, ownership of the property etc. that
would refer to intrinsic validity. So intrinsic validity, the contents,
the legality of the provisions of the will.
So now the question is how do we know if the will is extrinsically
valid or intrinsically valid?
With respect to the 2 KINDS OF VALIDITY (INTRINSIC AND
EXTRINSIC) they can be viewed in two points:
a) VIEW POINT OF TIME AND
b) VIEW POINT OF PLACE OR COUNTRY
EXTRINSIC VALIDITY:
 VIEW POINT OF TIME
If I make a will yesterday, what law will govern? If I made a will in
1940, what law should govern? If I make a will now, what law
should govern?
That is answered by 795 talks of extrinsic validity from the view
point of time.
It says: ―the validity of the will as to form depends upon the
observance of the law in force at the time it is made. ―The time of
the execution of the will‖ meaning, if today you make a will – you
refer to the law effective as of today.
Why?
A: Because when we say extrinsic diba we are referring to the
form. When are you going to observe the form? That is when you
make a will. You have to remember that the forms prescribed by
law on wills are intended to prevent fraud in the execution of wills.
That fraud may be present at the time of the execution of the will
not upon probate. So these formalities must be observed when the
testator makes a will.
Q: Why the laws enforced at the time of the execution? Why not in
the future?
A: You are not expected to know what laws will be effective in the
future, you are only expected to know what are the laws at the time
of the execution of the will. Besides the formalities prescribed by
law in the execution of wills are intended to insure the genuineness
and due execution of the will to prevent fraud or forgery. Those
possibilities would occur at the time of the execution of the will that
is why you are required to comply with the forms prescribed by law
at the time of the execution of the will.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
What are the consequenses in so far as the extrinsic validity or the
form of the will is concern? -It has to be in compliance in the laws
enforced at the time of execution.
Case: ENRIQUEZ vs ABADIA
Enriquez v Abadia
G.R No. L-7188 [August 9, 1954]
Digested by: Keziah M. Sioson
Facts: On September 6, 1923, Father Sancho Abadia, parish
priest of Talisay, Cebu, executed a document purporting to be his
Last Will and Testament. He died, leaving properties estimated
P8,000 in value.
On October 2, 1946, one Andres Enriquez, one of the legatees in
Exhibit "A", filed a petition for its probate in the Court of First
Instance of Cebu. Some cousins and nephews who would inherit
the estate of the deceased if he left no will, filed opposition.
During the hearing one of the attesting witnesses, the other two
being dead, testified without contradiction that in his presence and
in the presence of his co-witnesses, Father Sancho wrote out in
longhand Exhibit "A" in Spanish which the testator spoke and
understood; that he (testator) signed on he left hand margin of the
front page of each of the three folios or sheets of which the
document is composed, and numbered the same with Arabic
numerals, and finally signed his name at the end of his writing at
the last page, all this, in the presence of the three attesting
witnesses after telling that it was his last will and that the said three
witnesses signed their names on the last page after the attestation
clause in his presence and in the presence of each other. The
oppositors did not submit any evidence.
RTC- declared Exhibit A to be holographic will in handwriting of the
testator and that although at the time it was executed and the time
of the testator’s death, holographic wills were not permitted by law
still, because at the time of the hearing and when the case was to
be decided the New Civil Code was already in force which Code
permitted the execution of holographic wills under a liberal view,
and to carry out the intention of the testator which according to the
trial court is the controlling factor and may override any defect in
form
Still, the court upheld its validity reasoning that at the time pf the
hearing and when the case was decided, the NCC was already in
force, and such code permitted the execution of holographic wills.
Issue: WON the provisions of the NCC allowing holographic wills
may be applied in order to validate Fr. Abadia’s will
Ruling: No.
Article 795 provides, "The validity of a will as to its form depends
upon the observance of the law in force at the time it is made."
The above provision is but an expression or statement of the
weight of authority to the affect that the validity of a will is to be
judged not by the law enforce at the time of the testator's death or
at the time the supposed will is presented in court for probate or
when the petition is decided by the court but at the time the
instrument was executed. One reason in support of the rule is that
although the will operates upon and after the death of the testator,
the wishes of the testator about the disposition of his estate among
his heirs and among the legatees is given solemn expression at
the time the will is executed, and in reality, the legacy or bequest
then becomes a completed act.
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Of course, there is the view that the intention of the testator should
be the ruling and controlling factor and that all adequate remedies
and interpretations should be resorted to in order to carry out said
intention, and that when statutes passed after the execution of the
will and after the death of the testator lessen the formalities
required by law for the execution of wills, said subsequent statutes
should be applied so as to validate wills defectively executed
according to the law in force at the time of execution.
However, we should not forget that from the day of the death of the
testator, if he leaves a will, the title of the legatees and devisees
under it becomes a vested right, protected under the due process
clause of the constitution against a subsequent change in the
statute adding new legal requirements of execution of wills which
would invalidate such a will.
By parity of reasoning, when one executes a will which is invalid
for failure to observe and follow the legal requirements at the time
of its execution then upon his death he should be regarded and
declared as having died intestate, and his heirs will then inherit by
intestate succession, and no subsequent law with more liberal
requirements or which dispenses with such requirements as to
execution should be allowed to validate a defective will and
thereby divest the heirs of their vested rights in the estate by
intestate succession. The general rule is that the Legislature can
not validate void wills.
Case Discussion
Q: What was the form of the will?
A: Holographic will.
Q: When did the testator died?
A: 1943
Q: When did the New Civil Code took effect?
A: August 30, 1950
Q: What's the consequence if the New Civil Code was in effect?
A: In NCC, it already allowed holographic wills. (Written, dated
and signed without witnesses)
Q: What is the status of the will?
A: It is void.
The mere passage of the New Civil Code does not mean the void
will is already valid. So meaning, if the will is void, as to the time of
its execution, it remains to be void. Notwithstanding in the changes
or amendments of the law.
So here, the SC applied the law as enunciated in Art. 795. Well,
you have to remember that will making is statutory. In this case,
there is no retroactive application of the New Civil Code.
Because it is not also provided. Of course, Congress can actually
say that "this willl...blah blah blah" because will making is statutory
it depends on the provisions of the law. But, if it silent as in this
case by the mere change in the provisions of the law, we cannot
say that the void will is already validated. A void will remains to be
void. That is the present rule.
Case: Abada vs Abaja
Enriquez v Abadia
G.R No. L-7188 [August 9, 1954]
Digested by: Keziah M. Sioson
Facts: On September 6, 1923, Father Sancho Abadia, parish
priest of Talisay, Cebu, executed a document purporting to be his
Last Will and Testament. He died, leaving properties estimated
P8,000 in value.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
On October 2, 1946, one Andres Enriquez, one of the legatees in
Exhibit "A", filed a petition for its probate in the Court of First
Instance of Cebu. Some cousins and nephews who would inherit
the estate of the deceased if he left no will, filed opposition.
During the hearing one of the attesting witnesses, the other two
being dead, testified without contradiction that in his presence and
in the presence of his co-witnesses, Father Sancho wrote out in
longhand Exhibit "A" in Spanish which the testator spoke and
understood; that he (testator) signed on he left hand margin of the
front page of each of the three folios or sheets of which the
document is composed, and numbered the same with Arabic
numerals, and finally signed his name at the end of his writing at
the last page, all this, in the presence of the three attesting
witnesses after telling that it was his last will and that the said three
witnesses signed their names on the last page after the attestation
clause in his presence and in the presence of each other. The
oppositors did not submit any evidence.
RTC- declared Exhibit A to be holographic will in handwriting of the
testator and that although at the time it was executed and the time
of the testator’s death, holographic wills were not permitted by law
still, because at the time of the hearing and when the case was to
be decided the New Civil Code was already in force which Code
permitted the execution of holographic wills under a liberal view,
and to carry out the intention of the testator which according to the
trial court is the controlling factor and may override any defect in
form
Still, the court upheld its validity reasoning that at the time pf the
hearing and when the case was decided, the NCC was already in
force, and such code permitted the execution of holographic wills.
Issue: WON the provisions of the NCC allowing holographic wills
may be applied in order to validate Fr. Abadia’s will
Ruling: No.
Article 795 provides, "The validity of a will as to its form depends
upon the observance of the law in force at the time it is made."
The above provision is but an expression or statement of the
weight of authority to the affect that the validity of a will is to be
judged not by the law enforce at the time of the testator's death or
at the time the supposed will is presented in court for probate or
when the petition is decided by the court but at the time the
instrument was executed. One reason in support of the rule is that
although the will operates upon and after the death of the testator,
the wishes of the testator about the disposition of his estate among
his heirs and among the legatees is given solemn expression at
the time the will is executed, and in reality, the legacy or bequest
then becomes a completed act.
Of course, there is the view that the intention of the testator should
be the ruling and controlling factor and that all adequate remedies
and interpretations should be resorted to in order to carry out said
intention, and that when statutes passed after the execution of the
will and after the death of the testator lessen the formalities
required by law for the execution of wills, said subsequent statutes
should be applied so as to validate wills defectively executed
according to the law in force at the time of execution.
However, we should not forget that from the day of the death of the
testator, if he leaves a will, the title of the legatees and devisees
under it becomes a vested right, protected under the due process
clause of the constitution against a subsequent change in the
statute adding new legal requirements of execution of wills which
would invalidate such a will.
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
By parity of reasoning, when one executes a will which is invalid
for failure to observe and follow the legal requirements at the time
of its execution then upon his death he should be regarded and
declared as having died intestate, and his heirs will then inherit by
intestate succession, and no subsequent law with more liberal
requirements or which dispenses with such requirements as to
execution should be allowed to validate a defective will and
thereby divest the heirs of their vested rights in the estate by
intestate succession. The general rule is that the Legislature can
not validate void wills
The will was made in 1932 at that time the law did not require
acknowledgement before a notary public. Insofar as the old civil
code was concern, that is valid. So even if subsequently the New
Civil Code required acknowledgement before a notary public it will
not change the fact that the will was valid when it was made.
Principle: The legislature cannot invalidate a valid will. If the will is
already valid at the time of execution, notwithstanding any
subsequent amendment of the law that will remains to be valid.
This is another application of Art. 795. When the will was made it
does not require acknowledgment before a notary public and that
time it is already valid. So even if the new civil code now requires
acknowledgment before a notary public it remains to be valid
because you cannot apply the law retroactively. So the congress
cannot, by the mere passage of a law amending the previous one,
invalidate a valid will.
 VIEW POINT OF PLACE OR COUNTRY
Here, the question is if I execute a will here in the Philippines, what
law shall govern? If I'm abroad, what law shall govern?
We have five(5) rules. It would matter if the testator is a filipino or
a foreigner and if the will is made in the Philippines or abroad.
So wala pay apil ang situation na magbuhat kag will sa Moon? or
sa Mars? Sa Venus? Wala pa.
Situations:
1. A Filipino testator who makes a will in the Philippines.
Article 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.
The forms and solemnities of wills shall be governed by the laws of
the country by which they are executed – laws of the place of
execution or celebration.
So if the testator is in the Philippines and he makes a will in the
Philippines then he can follow the place where he is making the
will which is Philippine law.
Remember Article 17 because this law applies to all other
situations. This is what we call Lex Loci Celebrationes, the place
of the celebration.
2. The testator is a Filipino and he executes a will abroad
before the diplomatic or the consular official of the republic of
the Philippines.
a. Article 17 - Philippine law. Because he is still before the
diplomatic or consular official. These offices are considered as
extensions of the Philippine territory. So by legal fiction he is still
within the Philippines.
3. The testator is a Filipino who executes the will abroad.
a. Article 17 - Law of the place of execution. A Filipino who makes
a will in the US, he can follow the law of the US insofar as the form
of the will is concern.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
Example: If a Filipino makes a will in Germany, what law will
apply? Pursuant to Art. 17 he can follow the law of Germany.
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. (n)
b. Article 815. - the law of the place where he may be. Which is
actually the same as the law of the place of execution.
So if he is in the US, he can follow the laws in the US. Article 815
is same with article 17. The law of the place where he may be is
also the place of execution.
c. Article 815 - In addition, the law says ―is authorized to make a
will‖ so when you say he is authorized meaning he is permitted or
allowed. Ordinarily there is a law that needs to be followed
because he is a Filipino and that would be Philippine law. That's
another option for him as to the extrinsic validity of his will. So we
can follow Philippine Law even if he is abroad.
4. Alien testator who executes a will abroad.
a. Article 17 - Law of the place where he maybe.
Example: The testator is Japanese and a resident of China and he
makes a will in Germany. What law will he complied with in so far
as the form?
The will was executed in Germany, he can follow the law of
Germany.
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. (n)
b. Article 816. - Law of his country, which in our example, Japan.
And then his residence or domicile, China (refer to earlier
example) and "with those which this Code prescribe" which means
the New Civil Code. So Philippine Law.
Here he had 4 choices.
5. If the testator is an Alien and he make his will in the
Philippines.
a. Article 17. Law of the place of execution.
So if he makes his will in the Philippines then he follows the
Philippine law.
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.
(n)
b. 817. - His country or nationality.
Example: So if he's a Japanese and he is in the Philippines, in
addition to Philippine laws he may also observe the laws of Japan
insofar as his will is concern. The formal validity of his will.
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
July 20, 2019 P.2– Lape
INTRINSIC VALIDITY:
 VIEWPOINT OF TIME
What law governs from the viewpoint of time?
Article 2263. Rights to the inheritance of a person who died, with
or without a will, before the effectivity of this Code, shall be
governed by the Civil Code of 1889, by other previous laws, and
by the Rules of Court. The inheritance of those who, with or
without a will, die after the beginning of the effectivity of this Code,
shall be adjudicated and distributed in accordance with this new
body of laws and by the Rules of Court; but the testamentary
provisions shall be carried out insofar as they may be permitted by
this Code. Therefore, legitimes, betterments, legacies and
bequests shall be respected; however, their amount shall be
reduced if in no other manner can every compulsory heir be given
his full share according to this Code.
Based on Article 2263, when you say “Rights to the inheritance of
a person who died,” it mentions before and during the effectivity of
the New Civil Code.
So the law makes a distinction as to:
1. Those who died BEFORE the effectivity of the New Civil
Code; and
2. Those who died DURING the effectivity of the New Civil
Code.
In short, in relation also to Article 774, which we already
discussed: x x x
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.
x x x The intrinsic validity from the viewpoint of time is
governed by the law enforced at the time of death of the
testator.
Why? Because when you say “Intrinsic Validity,” we are referring
to the:
1. Transmission of properties, rights, and obligations;
NOTE: Why is it that ownership is not relevant? Because again,
properties would have to be transferred from the testator to the
heir.
2. Filiation – to know if the recipients are qualified to
receive from the testator;
3. Impairment of the legitimes – to know if the recipient,
the compulsory heir, has received the correct amount of
inheritance.
When you say “Intrinsic Validity,” the ultimate question is the
TRANSMISSION OF THE PROPERTIES, RIGHTS, AND
OBLIGATIONS: “Whether or not the heirs are qualified to inherit.”
And these are matters which would be relevant ONLY at the time
of death. “It is death that opens succession.” Without death, there
is no transfer of properties, rights, and obligations.
So diha na siya mag-matter: AT THE TIME OF DEATH.
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That is why to determine if the will is valid, we have to know the
laws enforced at the time of death.
EXAMPLE: Before the effectivity of the New Civil Code, illegitimate
children had no successional rights. During the New Civil Code,
they already have successional rights.
Under the Family Code, duha nalang ang classification sa
children:
1. Legitimate Children; and
2. Illegitimate Children.
So katong sa New Civil Code na natural children, sacrilegious
children, etc., wala na na sila. So duha nalang, and all of them
have successional rights.
SITUATION: Assuming the testator, in 1945, made a will. In his
will, he did not give anything to his illegitimate child; he only gave
to his legitimate children.
QUESTION: Would that will be intrinsically valid?
ANSWER: It depends as to the time of death, because the
question of whether or not the will is intrinsically valid will be
answered depending on the laws enforced at the time of death.
If he died BEFORE the effectivity of the New Civil Code – say,
1949 – the will is intrinsically valid. Okay lang na dili matagaan
[ang illegitimate child] because the law of transmission at the time
of death did not require successional rights be given to the
illegitimate child.
Pero if he died DURING the effectivity of the New Civil Code – say,
1955 – under Article 854 of the New Civil Code: x x x
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.
When a compulsory heir in the direct line is omitted from the will,
there is what we call “Preterition”, and the institution of heir shall
be annulled.
Kung ang will only contains an institution of heirs, it will entirely be
annulled. So dili siya intrinsically valid, and the estate will be
distributed by legal succession.
In that case, the answer would be different. If he died during the
effectivity of the New Civil Code, the will is not intrinsically valid
because, at that time, there is already successional rights to be
given to illegitimate children.
 VIEWPOINT OF PLACE OR COUNTRY
Dili pareha sa Extrinsic Validity na daghan, we only have one (1)
law here:
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
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found.
1st paragraph of Article 16: Lex Situs –
Article 16. Real property as well as personal property is subject to
the law of the country where it is stipulated. x x x
This is what we call “lex situs”. In Taxation, lex situs – kung asa
located ang property.
2nd paragraph of Article 16: National Law of the person whose
succession is under consideration –
Article 16. x x x
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
When it comes to Succession, whether testate or intestate, it shall
be governed by the national law of the testator or decedent.
Three (3) Matters mentioned in Article 16:
1. Order of Succession;
2. Amount of Successional Rights; and
3. Intrinsic Validity of Testamentary Provisions.
In the past, there were Bar exam questions na ang pangutana kay:
 What matters in succession are governed by the
national law of the testator or decedent?
FOUR (4) MATTERS GOVERNED BY THE
NATIONAL LAW OF THE DECEDENT:
1. Order of Succession (Article 16);
2. Amount of Successional Rights (Article 16);
3. Intrinsic Validity of Testamentary Provisions (Article
16); and
4. Capacity to Succeed [qualifications of the heirs to
inherit] (Article 1039).
Article 1039. Capacity to succeed is governed by the law of the
nation of the decedent.
EXAMPLES: If you have a Filipino testator, whether or not the
provisions in his will are valid would depend upon his
national law. So, Philippine Law.
If the testator is American, what law shall govern? Depende sa
iyang national law:
 For example, if he is a citizen of California, then it would
be the laws of California, insofar as the intrinsic validity of
his will is concerned.
Reprobate Proceedings
It is possible that, in the Philippines, our courts will be faced with a
Petition for the probate of the will of a foreigner because, if you
have properties in the Philippines, and also abroad, it is not
enough na gi-probate lang imong last will abroad even if you are a
citizen of the US, unya naa kay properties in the Philippines na
gusto pud nimo i-dispose.
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The last will and testament will have to be probated also in the
Philippines, even if it already has been probated abroad. That is
what we call a “Reprobate Proceeding”.
Intrinsic Validity of the Will
Here, there are questions like this:
 We have a testator who, at the time of his death, was a
citizen of California. So what law shall govern the intrinsic
validity of his will?
BELLIS v. BELLIS
G.R. No. L-23678, June 6, 1967
Facts: Amos G. Bellis, born in Texas, was "a citizen of the State of
Texas and of the United States."
By his first wife, Mary, he had five legitimate children (one,
however, pre-deceased him in infancy); by his second wife, Violet,
he had three legitimate children; and finally, he had three
illegitimate children: appellants Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis.
Amos G. Bellis executed a will in the Philippines, in which he
directed that after all taxes, obligations, and expenses of
administration are paid for, his distributable estate should be
divided, in trust, in the following order and manner:
1. $240,000.00 to his first wife, Mary;
2. P120,000.00 to his three illegitimate children, Amos, Jr., Maria
Cristina, Miriam Palma, or P40,000.00 each; and
3. After the foregoing two items have been satisfied, the
remainder shall go to his seven (7) surviving children.
Subsequently, Amos G. Bellis died a resident of San Antonio,
Texas, U.S.A. His will was admitted to probate in the CFI of
Manila.
The People's Bank and Trust Company, as executor of the will,
paid all the bequests stated therein. Thereafter, preparatory to
closing its administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and Project of
Partition" wherein it reported, inter alia, the satisfaction of the
legacy of Mary by the delivery to her of shares of stock amounting
to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis in the amount of P40,000.00 each
or a total of P120,000.00.
In the project of partition, the executor divided the residuary estate
into seven equal portions for the benefit of the testator's seven
legitimate children.
Maria Cristina and Miriam Palma opposed to the project of partition
on the ground that they were deprived of their legitimes as
illegitimate children and, therefore, compulsory heirs of the
deceased.
The lower court overruled the oppositions and approved the
executor's final account, report and administration and project of
partition. Relying upon Article 16 of the Civil Code, it applied the
national law of the decedent, which in this case is Texas law,
which did not provide for legitimes.
Issue: Which law must apply — Texas law or Philippine law? –
Texas Law.
Held: Article 16, par. 2, and Article 1039 of the Civil Code,
render applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items:
1. the order of succession;
2. the amount of successional rights;
3. the intrinsic validity of the provisions of the will; and
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 ATTY. LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE
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4. the capacity to succeed: American citizen and a permanent resident of Philadelphia,

Pennsylvania, U.S.A.
Appellants would, however, counter that Article 17, par. 3, of the
Civil Code, stating that “Prohibitive laws concerning persons, their Therefore, under Article 16 par. (2) and 1039 of the Civil Code,
acts or property, and those which have for their object public order, the law which governs Adoracion Campo’s will is the law of
public policy and good customs shall not be rendered ineffective Pennsylvania, U.S.A., which is the national law of the decedent.
by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country” prevails as the Although the parties admit that the Pennsylvania law does not
exception to Article 16, par. 2 of the Civil Code. This is not provide for legitimes and that all the estate may be given away by
correct. the testatrix to a complete stranger, the petitioner argues that such
law should not apply because it would be contrary to the sound
Whatever public policy or good customs may be involved in our and established public policy and would run counter to the specific
system of legitimes, Congress has not intended to extend the provisions of Philippine Law.
same to the succession of foreign nationals. For it has
specifically chosen to leave the amount of successional It is a settled rule that as regards the intrinsic validity of the
rights to the decedent's national law. provisions of the will, as provided for by Article 16 (2) and 1039 of
the Civil Code, the national law of the decedent must apply.
Under the laws of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision of the will LLORENTE v. COURT OF APPEALS
and the amount of successional rights are to be determined under G.R. No. 124371, November 23, 2000
Texas law, the Philippine law on legitimes cannot be applied to the
testacy of Amos G. Bellis. Facts: Lorenzo Llorente was an enlisted serviceman of the US
Navy from 1927 to 1957. In 1937, Paula and Lorenzo were married
Read these cases: in Camarines Sur. Before the outbreak of the Pacific War, Lorenzo
 Cayetano v. Leonidas (G.R. No. L-54919, May 30, departed for US and Paula stayed in the conjugal home
1984); and Camarines Sur.
 Llorente v. Court of Appeals (G.R. No. 124371,
November 23, 2000). In 1943, Lorenzo was admitted to the US Citizenship, and then a
Certificate of Naturalization was issued in his favor by a US court.
CAYETANO v. LEONIDAS
When the Philippine was liberated by US forces in 1945, Lorenzo
G.R. No. L-54919, May 30, 1984
visited his wife in the Philippines. He discovered that his wife Paula
was pregnant and was "living in" and having an adulterous
Facts:
relationship with his brother, Ceferino.
In January 1977, Adoracion C. Campos died, leaving her father,
petitioner Hermogenes Campos (substituted by Polly Cayetano
In 1945, Paula gave birth to a child named Crisologo Llorente but
upon his death) and her sisters, private respondent Nenita C.
then the certificate stated that the child was not legitimate and the
Paguia, Remedios C. Lopez and Marieta C. Medina as the
line for the father’s name was left blank.
surviving heirs.
Lorenzo refused to forgive Paula and live with her. Lorenzo
As Hermogenes Campos was the only compulsory heir, he
returned to the US in 1951 and filed for divorce and issued a
executed an Affidavit of Adjudication whereby he adjudicated unto
divorce decree by Superior Court of the State of California which
himself the ownership of the entire estate of the deceased
became final in 1952.
Adoracion Campos.
Lorenzo returned to the Philippines and married Alicia Llorente,
In November 1977, Nenita C. Paguia filed a petition for the
who had no knowledge of the first marriage even if they resided in
reprobate of a will of the deceased Adoracion Campos, which was
the same town as Paula, who did not oppose the marriage or
allegedly executed in the United States, and for her appointment
cohabitation.
as administratrix of the estate of the deceased testatrix.
From 1958 to 1985, Lorenzo and Alicia lived together as husband
Nenita alleged that the testatrix was an American citizen at the
and wife. Their twenty-five (25) year union produced three
time of her death and was a permanent resident of Philadelphia,
children.
Pennsylvania, U.S.A.; that the testatrix died in Manila while
temporarily residing with her sister; that during her lifetime, the In 1981, Lorenzo executed a Last Will and Testament where
testatrix made her last will and testament on July 10, 1975,
Lorenzo had bequeathed all his property to Alicia and their three
according to the laws of Pennsylvania.
children.
An opposition to the reprobate of the will was filed by petitioner,
In 1985, Lorenzo died.
alleging, among other things, that the intrinsic provisions of the will
are null and void, and that even if pertinent American laws on
Paula filed with the court for letters of administration contending
intrinsic provisions are invoked, the same could not apply
that she was the surviving spouse and that the disposition in the
inasmuch as they would work injustice and injury to him.
will made by Lorenzo was encroaching on her legitime.
The RTC issued an order admitting and allowing probate in the
The trial court issued the letters to Paula, finding that the divorce
Philippines of the Last Will and Testament of Adoracion Campos.
decree granted to Lorenzo was void, thus the marriage to Alicia
was also void.
Issue: Are the provisions of the will valid? – Yes.
Issue: What is the applicable law?
Held: Although on its face, the will appeared to have preterited the
petitioner and thus, the respondent judge should have denied its Held: The fact that the late Lorenzo Llorente became an American
reprobate outright, private respondents have sufficiently
citizen long before and at the time of: (1) his divorce from Paula;
established that Adoracion was, at the time of her death, an

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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
(2) marriage to Alicia; (3) execution of his will; and (4) death, is
duly established, admitted and undisputed. Thus, as a rule, issues
arising from these incidents are necessarily governed by foreign
law.
True, foreign laws do not prove themselves in our jurisdiction and
our courts are not authorized to take judicial notice of them. Like
any other fact, they must be alleged and proved.
Whether the will is intrinsically valid and who shall inherit from
Lorenzo are issues best proved by foreign law which must be
pleaded and proved. Whether the will was executed in accordance
with the formalities required is answered by referring to Philippine
law. In fact, the will was duly probated.
As a guide however, the trial court should note that whatever
public policy or good customs may be involved in our system of
legitimes, Congress did not intend to extend the same to the
succession of foreign nationals. Congress specifically left the
amount of successional rights to the decedent's national law.
Fallo: The court remands the cases to the court of origin for
determination of the intrinsic validity of the will of Lorenzo as well
as the determination of the successional rights allowing proof of
foreign law.
We are very clear that when it comes to the intrinsic validity of the
will, it is the national law of the testator that would govern.
If the testator happens to be a foreigner, we have to apply his
national law, which is a foreign law.
QUESTION: Do our courts take judicial notice of foreign laws?
PCIB v. ESCOLIN
GR Nos. L-27860 and L-27896, March 29, 1974
Held: Our courts do not take judicial notice of foreign laws.
If you allege that these are the laws of Texas, then you have to
present evidence like any other fact.
What pieces of evidence can you present?
1. Testimony of their experts;
2. Repository of their laws (e.g. Civil Code); or
3. Supreme Court decisions or jurisprudence (for common law
countries with no codified provisions of law).
That would have to be presented in evidence.
Exceptions to the judicial notice rule regarding foreign laws:
1. When the said laws are already within the actual knowledge
of the court, such as when they are well and generally known;
or
2. When they have been actually ruled upon in other cases
before it and none of the parties concerned do not claim
otherwise.
In those cases, the court can take judicial notice of that foreign
law.
DOCTRINE OF PROCESSUAL PRESUMPTION
MICIANO v. BRIMO
G.R. No. L-22595, November 1, 1927
Facts: The judicial administrator of the estate of deceased Joseph
Brimo filed a scheme of partition. Andre Brimo, one of the brothers
of the deceased, opposed it. The court, however, approved it.
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Andre Brimo opposed the denial of his participation in the
inheritance based on the fact that the partition in question puts into
effect the provisions of Joseph G. Brimo's will which are not in
accordance with the laws of his Turkish nationality, for which
reason they are void as being in violation or article 10 of the Civil
Code which, among other things, provides the following:
Nevertheless, legal and testamentary successions, in
respect to the order of succession as well as to the amount of the
successional rights and the intrinsic validity of their provisions,
shall be regulated by the national law of the person whose
succession is in question, whatever may be the nature of the
property or the country in which it may be situated.
Issues: WON testamentary dispositions are in accordance with
the Turkish laws
Held: Andre Brimo did not prove that said testamentary
dispositions are not in accordance with the Turkish laws, inasmuch
as he did not present any evidence showing what the Turkish laws
are on the matter, and in the absence of evidence on such laws,
they are presumed to be the same as those of the Philippines,
under the Doctrine of Processual Presumption.
It has not been proved in these proceedings what the Turkish laws
are. He, himself, acknowledges it when he desires to be given an
opportunity to present evidence on this point; so much so that he
assigns as an error of the court in not having deferred the approval
of the scheme of partition until the receipt of certain testimony
requested regarding the Turkish laws on the matter.
ANCHETA v. GUERSEY-DALAYGON
GR No. 139868, 490 SCRA 140, June 8, 2006
Facts: Sps. Audrey and Richard Guersey are American citizens
who have resided in the Philippines for 30 years. They adopted
Kyle Guersey Hill.
Audrey died leaving a will, bequeathing all her estate to Richard.
Richard was also appointed as the executor, but due to his
renunciation of such appointment, one Phillips was named to be
the executor. Petitioner Ancheta of the of the Quasha Asperilla
Ancheta Pena & Nolasco Law Offices was also named as ancillary
administrator. The will was admitted to probate before the Court of
Maryland, USA.
In 1981, Richard married respondent Candelaria Guersey-
Dalaygon. They have 2 children, Kimberly and Kevin.
In 1982, Audrey’s will was also admitted to probate by the CFI of
Rizal. Ancheta filed an inventory and appraisal of the subject
properties.
In 1984, Richard died, leaving a will, bequeathing his entire estate
to respondent. The will was also admitted to probate before the
Court of Maryland, USA. Phillips was named as the executor, who
in turn designated Quasha or any member of the Quasha Asperilla
Ancheta Pena & Nolasco Law Offices as ancillary administrator.
Petitioner filed a motion to declare Richard and Kyle as heirs of
Audrey. It was granted and Kyle was given ¼ of the properties of
Audrey, leaving the ¾ to Richard.
Meanwhile, Quasha, the ancillary administrator of Richard’s estate
also filed a project of partition wherein 2/5 of Richard’s 3/4
undivided interest of the Makati property was allocated to
respondent, while the 3/5 of which were given to the three (3)
children of Richard.
Respondent opposed on the ground that under the law of the State
of Maryland, "a legacy passes to the legatee the entire interest of
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
the testator in the property subject of the legacy." Since Richard
left his entire estate to respondent, then his entire ¾ undivided
interest in the Makati property should be given to respondent.
Issue: WON the law of the State of Maryland governs. – YES.
Held: It is undisputed that Audrey Guersey was an American
citizen domiciled in Maryland, U.S.A. During the reprobate of her
will, it was shown, among others, that at the time of Audrey’s
death, she was residing in the Philippines but is domiciled in
Maryland, U.S.A.; her Last Will and Testament was executed and
probated before the Orphan’s Court in Baltimore, Maryland,
U.S.A., which was duly authenticated and certified by the Register
of Wills of Baltimore City and attested by the Chief Judge of said
court; the will was admitted by the Orphan’s Court of Baltimore
City on September 7, 1979; and the will was authenticated by the
Secretary of State of Maryland and the Vice Consul of the
Philippine Embassy.
Being a foreign national, the intrinsic validity of Audrey’s will,
especially with regard as to who are her heirs, is governed by her
national law, i.e., the law of the State of Maryland, as provided in
Article 16 of the Civil Code.
Article 1039 of the Civil Code further provides that "capacity to
succeed is governed by the law of the nation of the decedent."
While foreign laws do not prove themselves in our jurisdiction and
our courts are not authorized to take judicial notice of them;
however, petitioner, as ancillary administrator of Audrey’s estate,
was duty-bound to introduce in evidence the pertinent law of the
State of Maryland.
IN RE TESTATE ESTATE OF SUNTAY
G.R. Nos. L-3087 and L-3088 July 31, 1954
Facts: In 1934, Jose B. Suntay, a Filipino citizen and a resident of
the Philippines, died in Amoy, China. He left real and personal
properties in the Philippines and a house in Amoy. During his
lifetime, he married twice. The first wife was Manuela Cruz, with
whom he had several children. The second marriage was with
Maria Natividad Lim Brillian, with whom he had a son, petitioner
Silvino Suntay.
Intestate proceedings were instituted by the heirs from the first
marriage. While the second wife, the surviving widow who
remained in Amoy China, filed a petition for the probate of the last
will and testament of the deceased which was claimed to have
been executed and signed in the Philippines on November 1929.
The petition was denied due to the loss of the will before the
hearing thereof.
After the Pacific War, Silvino claimed to have found, among the
records of his father, a last will and testament in Chinese
characters executed and signed by the deceased on January,
1931 and probated in the Amoy District Court. He filed a
petition in the intestate proceedings for the probate of the will
executed in the Philippines on November 1929 or the will executed
in Amoy China on November, 1931.
Issue: Whether or not the will executed in Amoy, China can still be
validly probated in the Philippines. – NO.
Held: The fact that the municipal district court of Amoy, China is a
probate court must be proved. The law of China on procedure in
the probate or allowance of wills must also be proved. The legal
requirements for the execution of the will in China in 1931 should
also be established by competent evidence. There is no proof on
these points.
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In the absence of proof that the municipal district court of Amoy is
a probate court and on the Chinese law of procedure in probate
matters, it may be presumed that the proceedings in the
matter of probating or allowing a will in the Chinese courts
are the same as those provided for in our laws on the subject.
It is a proceeding in rem and for the validity of such proceedings
personal notice or by publication or both to all interested parties
must be made.
The evidence shows that no such notice was received by the
interested parties residing in the Philippines. The proceedings had
in the municipal district court of Amoy, China, may be likened to a
deposition or to a perpetuation of testimony, and even if it were so,
it does not measure or come up to the standard of such
proceedings in the Philippines for lack of notice to all interested
parties.
Furthermore, the order of the municipal district court of Amoy,
China, which reads, as follows: x x x
The above minutes were satisfactorily confirmed by the
interrogated parties, who declare that there are no errors, after
said minutes were loudly read and announced actually in the court.
x x x does not purport to probate or allow the will which was
the subject of the proceedings. In view thereof, the will and the
alleged probate thereof cannot be said to have been done in
accordance with the accepted basic and fundamental concepts
and principles followed in the probate and allowance of wills.
Consequently, the authenticated transcript of proceedings held in
the municipal district court of Amoy, China, cannot be deemed and
accepted as proceedings leading to the probate or allowance of a
will and, therefore, the will referred to therein cannot be allowed,
filed and recorded by a competent court of this country.
RENVOI DOCTRINE
TESTATE ESTATE OF CHRISTENSEN v. GARCIA
GR No. L-16749, Jan. 31, 1963
Facts: Subject of this petition is the will of the testator Edward E.
Christensen, a citizen of US and the State of California, and at the
time of his death, he was domiciled in the Philippines.
In accordance with the will of the testator, Adolfo Aznar (the
executor), in his final account and project of partition, ratified the
payment of only P3,600 to Helen Christensen Garcia (who,
according to the testator is not related to him) and proposed that
the residue of the estate be transferred to his daughter, Maria Lucy
Christensen.
Opposition to the approval of the project of partition was filed by
Helen Christensen Garcia, insofar as it deprives her (Helen) of her
legitime as an acknowledged natural child, she having been
declared by Supreme Court an acknowledged natural child of the
deceased Edward E. Christensen.
Helen alleged that the law that should govern the estate of the
deceased Christensen should not be the internal law of California
alone, but the entire law thereof because several foreign elements
are involved; that the forum is the Philippines and even if the case
were decided in California, Section 946 of the California Civil
Code, which requires that the domicile of the decedent should
apply, should be applicable.
It was also alleged that Maria Helen Christensen, having been
declared an acknowledged natural child of the decedent, is
deemed for all purposes legitimate from the time of her birth.
Issue: WON the law of the Philippines should govern the intrinsic
validity of the subject will. – YES.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Held: The law that governs the validity of his testamentary
dispositions is defined in Article 16 of the Civil Code of the
Philippines. The application of this article in the case at bar
requires the determination of the meaning of the term "national
law" is used therein.
There is no single American law governing the validity of
testamentary provisions in the United States, each state of the
Union having its own private law applicable to its citizens only and
in force only within the state. The "national law" indicated in Article
16 of the Civil Code above quoted cannot, therefore, possibly
mean or apply to any general American law. So it can refer to no
other than the private law of the State of California.
Article 946 of the California Civil Code, as invoked by appellant,
should apply to such of its citizens as are not domiciled in
California but in other jurisdictions. The rule laid down of resorting
to the law of the domicile in the determination of matters with
foreign element involved is in accord with the general principle of
American law that the domiciliary law should govern in most
matters or rights which follow the person of the owner.
The laws of California have prescribed two sets of laws for its
citizens, one for residents therein and another for those domiciled
in other jurisdictions. Reason demands that We should enforce the
California internal law prescribed for its citizens residing therein,
and enforce the conflict of laws rules for the citizens domiciled
abroad – Article 946, which authorizes the reference or return of
the question to the law of the testator's domicile.
The conflict of laws rule in California, Article 946, Civil Code,
precisely refers back the case, when a decedent is not domiciled
in California, to the law of his domicile, the Philippines in the case
at bar (under the Renvoi doctrine). The court of the domicile
cannot and should not refer the case back to California; such
action would leave the issue incapable of determination because
the case will then be like a football, tossed back and forth between
the two states, between the country of which the decedent was a
citizen and the country of his domicile.
We therefore find that as the domicile of the deceased
Christensen, a citizen of California, is the Philippines, the validity of
the provisions of his will depriving his acknowledged natural child,
the appellant, should be governed by the Philippine Law, the
domicile, pursuant to Art. 946 of the Civil Code of California, not by
the internal law of California.
NOTE FROM LCYE:
If you will be asked the question:
 “What laws govern the validity of wills?”
Ang answer ana, taas. You have to site BOTH:
1. The EXTRINSIC and the INTRINSIC validity;
2. From the VIEWPOINT OF TIME and VIEWPOINT OF
PLACE OR COUNTRY.
If the question is:
 What law governs the forms of wills?
Kung wala kaayo ka nagstudy, ang imuhang dali na makit-an is
Article 795, because directly, it says:
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.
But, again, you have to make a distinction if it is from:
1. VEIWPOINT OF TIME; or
2. VIEWPOINT OF PLACE OR COUNTRY.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
So duha (2) ang imuhang classification, and there are several laws
that govern.
July 26, 2019 P.1 – Piodos
Now let’s go to Article 796.
We will discuss — Testamentary Capacity and Intent
SUBSECTION 2. Testamentary Capacity and Intent
Article 796. All persons who are not expressly prohibited by law
may make a will.
So, who can execute wills? The law says all persons.
As you have learned, we have natural persons, we also have
juridical persons. When you say persons, does this include juridical
persons in Article 796? No, because of the requirements of
testamentary capacity, which we will discuss later.
But again, let us remember that persons here, would only refer to
natural persons.
Now, TESTAMENTARY CAPACITY actually refers to the
qualification of a person who executes a will. Whereas
TESTAMENTARY POWER is the power to execute wills granted
by the state to its subject.
So, in the Philippines, we have TESTAMENTARY POWERS
because of the Civil Code, which permits us to execute wills.
TESTAMENTARY CAPACITY, it depends. If we have the
qualification stated in the Article 797 and 798 of the new Civil
Code.
A person can have testamentary power but may have no
testamentary capacity like he’s a minor. He has testamentary
power because he lives in the Philippines where the new Civil
Code grants the subject the power, permission to execute wills.
A person can also have testamentary capacity but have no
testamentary power like in countries where the citizens or subjects
are not given the privilege to execute wills. So, under our laws,
they might be qualified because they have the requisites. But they
don’t have testamentary power because they are not given the
privilege to execute a will.
Although we make a distinction, but under the new Civil Code,
there is not actually definition of testamentary power. So, they are
just used interchangeably. Although if you are asked, whether in
the exam or in the Bar, you should be able to cite the distinctions
because the examiner will be looking for that distinction. Although
in the end you can just say, they are used interchangeably.
Article 797. Persons of either sex under eighteen years of age
cannot make a will.
This is the first requirement for testamentary capacity.
So who can make wills? Persons of either sex, male or female can
execute wills. At least 18 years old AT THE TIME of the execution
of the will. Not after but, “at the time” — he our she should be
eighteen years old.
HOW DO WE KNOW IF THE PERSON IS ALREADY 18 YEARS
OLD?
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
We have THREE THEORIES ON THE MEANING OF EIGHTEEN
YEARS OLD:
 SPANISH LAW THEORY — here, the 18th birthday
should have passed or commenced before one can
make a will.
For example, I was born 18 years ago, like 1pm. And then, now,
12midnight on my birthday, can I execute a will? Or should I wait
for 1pm? (for example, tomorrow’s my debut).
Do I have to wait for 1PM of July 21 before I can say that I am 18?
No, for as long as you are already 18. Pag-bagting sa alas doce,
18 naka, then you already execute a last will and testament.
 AMERICAN LAW THEORY — It is sufficient that the
date preceding one’s birthday had already commenced.
So, ang birthday nako is July 21, but it’s enough na July 20, I can
already execute a last will and testament.
 CIVIL CODE THEORY — Under the Civil Code, four
days before my birthday, I could already execute a last
will and testament.
Why? Because under the new Civil Code, one year means 365
days. So, I am already eighteen if there are 18- 365days already; I
have lived for eighteen 365 days.
Diba sa atoa, every four years, there’s a leap year? So, 366 days.
So, in eighteen years, how many leap years are there? Four.
Meaning, if I say, “ugma akong debut”, actually, lampas nako ug 4
days, under the Civil Code theory kay naay upat ka leap years na
366 days. So four days before my birthday, I could already execute
a last will and testament under the Civil Code Theory.
What do we follow? THE SPANISH LAW.
Our laws on Succession have their origin in the Spanish Law.
here, the 18th birthday should have passed or commenced
before one can make a will.
But you can use the Civil Code theory, like, naay pirmahan na
contract, ikaw ang other party. And later on, ni-allege siya na
voidable because at the time he signed the contract he was not yet
eighteen. Ingon siya, mag-18 pako sa July 21, nagpirma ta ug
contract July 19. But you can argue, “eighteen naka, under the
Civil Code” because four leap years, there are already eighteen
365 days. That’s one argument that you can use.
Article 798. In order to make a will it is essential that the testator
be of sound mind at the time of its execution.
There are only TWO REQUISITES FOR TESTAMENTARY
CAPACITY.
1) At least 18 years of age at the time of the execution of
the will;
2) Sound mind at the time of the execution of the will.
So, the important point in time that we have to remember is that
these requisites exist at TIME OF THE EXECUTION OF THE
WILL. Even if sound mind siya at that time and later on naubang
siya, it doesn’t affect the will. Also, if the time of the execution of
the will, dili siya sound mind but thereafter, immediately, naulian
siya-void gihapon ang will, because again, it should be at the time
of the execution.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
The general rule actually is CAPACITY. As a general will, persons
can execute wills for as long as they are not 18 years old and they
are of sound mind at the time of execution.
How about a person suffering CIVIL INTERDICTION; can he
execute a last will and testament?
Yes, under the Article 34, of the Revised Penal Code, it says,
“Civil interdiction shall deprive the offender during the time of his
sentence, of the rights of parental authority, or guardianship, either
as to the person or property of any ward, or marital authority of the
right to manage his property, and of the right to dispose of such
property by any act or conveyance inter vivos."
So, only during his lifetime, but if it is mortis causa, he is not
disqualifed.
Also, in Article 82 of the RPC, the later portions, if he is serving
sentence, he has the right to consult lawyers, make a will, confer
with members of his family; again, he can execute a last will and
testament.
Based on what we have discussed again, there are 2 qualifications
to be able to execute wills and these are 18 years old at least and
soundness of mind.
Because of these requirements only natural persons can execute
wills. Because only natural persons can have soundness of mind.
Although a juridical person can be 18years old but it cannot
possess soundness of mind. Take note that unlike marriage, when
your 18 and below 21, you need parental consent, parental advise,
but of course in wills, no need; you can execute wills.
In contract, if it was entered into by a minor the effect will be
voidable then eventually be cleansed by ratification if he
subsequently attained the age of majority or even if minor so long
as you are represented. How about in Wills? No because Wills are
personal. How about when you were 16 then you made a will can
you give effect to it when you attain the age of 18? No. but if you
really want to give it effect, then you avail the remedy of
Republication.
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.
Please remember Article 799.
This gives us the definition of soundness of mind. The first
paragraph is the negative definition. It says, “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”.
Meaning, he need not possess a perfectly balanced mind for him
to be considered of sound mind. Even if he’s forgetful, even if he’s
suffering some diseases, even if we say, naa siyay gamay, pero,
as long as he complies with the 2nd paragraph of 799, which is the
positive definition.
What are the requisites under the 2nd paragraph of 799.
Please memorize this. I will always tell my students na, “if you are
confronted with the question that calls for the determination
whether or not the testator is of sound mind, you answer using the
guidelines under the 2nd paragraph of 799 before you conclude.
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Although you have to make a conclusion at first, then make a
support, then, you reinforce.
1) The testator must understand the NATURE OF THE
ESTATE TO BE DISPOSED OF.
The nature of his estate like he owns lands, properties, cash, cars,
jewelry; at least he must know the nature of his properties; he must
have sufficient recollection of his properties and comprehend their
kind, character and quality in general.
He does not have to memorize pila ka hectares, unsay title
number, pila ang cash in bank; for as long as he knows pila ang
iyang properties.
2) The testator must know the PROPER OBJECTS OF HIS
BOUNTY.
Meaning, he must be aware of those persons who would naturally
be disposed to have a claim upon him, like he knows na he has a
wife, he has children; na I can’t leave these people behind without
giving them anything. I am morally compelled to give them
something at least. That means he knows the proper object of his
bounty. Because if that testator no longer recognizes his wife or
his children, and then he makes a will, then, his will is of doubtful
validity because he’s not able to comply with the second requisite.
3) The testator must know the CHARACTER OF THE
TESTAMENTARY ACT.
Here, he must understand that the document he is executing is a
last will and testament; that the purpose of this is to dispose or
distribute the properties mentioned in this will to the persons
mentioned in this will. He must know the consequences of the act.
Otherwise, he if thinks only na wala ni siya na document,
compliance lang ni siya sa requirement kay mag-apply ko ug loan,
mao iyang pagtuo—he has not complied with the requisites. If
that’s a will, that is not valid.
These requisites must all be present.
TORRES VS. LOPEZ
Q:What was the specific condition of the testator here and what is
the consequence of which?
A: Senile Dementia. When one has senile dementia, there is
degeneration of the mental capacity.
Q: What is the issue here?
A: W/N the testator has a sound mind when he executed the will.
The SC said that senile dementia is not a reason that a person
would be considered of unsound mind. One must have a complete
senile dementia to be of unsound mind. Here, it was not a
complete dementia.
So, the fact that the testator had senile dementia did not
automatically mean that he did not have soundness of mind.
Q: How about the fact that he was placed under guardianship?
As long as he could still comply with the requisites under 799.
Being placed under guardianship is not conclusive as to the
unsoundness of mind. A person can be placed under
guardianship, not only for that reason. There are several reasons
why a person may be placed under guardianship, such as if one is
a minor, a spendthrift, a prodigal, under civil interdiction, advanced
age, insane.
The SC said, each case rests on its facts and must be decided by
its own facts. It really is a case to case bases.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
In this case, SENILE DEMENTIA alone is not equivalent
to an unsound mind as long as the testator is able to comply to the
second requisite of 799. So, the law says, he need not have a
perfectly balanced mind. Or that his mind be wholly unbroken,
unimpaired, or unshattered by disease—here the testator was
suffering from a disease, but not an equivalent to an unsound
mind.
NEYRA VS. NEYRA
Q. When the testratix executed the will, what was her condition?
A. She was sick and was in the hospital.
Q. And then, how did she sign the will?
A. With the assistance of the witnesses
Q. Could she move her? Walk?
A. No, she was very weak. But at the time of the executing of the
will, she was still capable to do so.
Q. How about the fact that she was afflicted with Addison’s
Disease (sleeping sickness)?
A. It is not an equivalent of having an unsoundmind as to be
disqualified to make a will. A person suffering from such disease
would actually benefit from the sleep.
In fact, if you have this sickness, you always rest, have the benefit
of sleep, your mind is actually alert. The mental faculties of one
suffering from Addison’s disease remain. Due to the fact on
account of the sleep they enjoy, they receive the benefit of
physical and mental rest. They preserve their mental faculties. Just
like a person suffering from TB, insomnia or diabetes, as
discussed in this case.
July 26, 2019 P.2 – Palma Gil
Regarding SOUNDNESS OF MIND we have the case of Avelino v
Dela Cruz on Blindness; so obviously that is not a ground to
disqualify a person to make a will.
Article 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and again, by the
notary public before whom the will is acknowledged. (n)
In the case of SAMSON so diabetes; SC said it did not affect;
although it was alleged that testator here was in comatose
condition for several days the SC said this does not affect his
testamentary capacity in view of the positive testimony of the
witnesses that he was conscious and was able to udnertand what
was said to him and was able to communicate his desires;
paralysis in the case of BAGTAS VS PAGUIO here paralysis on
the left side of body and impairment of sense of hearing and loss
of power of speech; but SC said he retained the use of his right
hand and he could write fairly and through the medium of *NAAY
NI UBO* and he was able to communicate his wishes to his wife
and other members of his family.
How about in the case of BALTAZAR VS LAXA; (Called for
recitation)
Baltazar v Laxa (2012)
Pacencia was a 78 year old spinster who made her last will and
testament naming her nephew Lorenzo, who she treated as her
own son. During the probate of her will a Rosie Mateo claims that
Pacencia was in the state of being “Mangulyan” or forgetful at the
time of the making of the will making her unfit for executing a will
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
and that the will had been procured by undue and improper
pressure and influence
ISSUE: WON the will executed by a forgetful woman is valid -
YES
the state of being forgetful does not necessarily make a person
mentally unsound so as to render him unfit to execute a Will.
Forgetfulness is not equivalent to being of unsound mind.
In this case, apart from the testimony of Rosie pertaining to
Paciencia’s forgetfulness, there is no substantial evidence, medical
or otherwise, that would show that Paciencia was of unsound mind
at the time of the execution of the Will. On the other hand, we find
more worthy of credence Dra. Limpin’s testimony as to the
soundness of mind of Paciencia when the latter went to Judge
Limpin’s house and voluntarily executed the Will. “The testimony
of subscribing witnesses to a Will concerning the testator’s mental
condition is entitled to great weight where they are truthful and
intelligent.”[69] More importantly, a testator is presumed to be of
sound mind at the time of the execution of the Will and the burden
to prove otherwise lies on the oppositor.
Here, there was no showing that Paciencia was publicly known to
be insane one month or less before the making of the Will.
Clearly, thus, the burden to prove that Paciencia was of unsound
mind lies upon the shoulders of petitioners. However and as
earlier mentioned, no substantial evidence was presented by them
to prove the same, thereby warranting the CA’s finding that
petitioners failed to discharge such burden.
Furthermore, we are convinced that Paciencia was aware of the
nature of her estate to be disposed of, the proper objects of her
bounty and the character of the testamentary act.
A scrutiny of the Will discloses that [Paciencia] was aware of the
nature of the document she executed. She specially requested
that the customs of her faith be observed upon her death. She was
well aware of how she acquired the properties from her parents
and the properties she is bequeathing to LORENZO, to his wife
CORAZON and to his two (2) children. A third child was born after
the execution of the will and was not included therein as devisee
Bare allegations of duress or influence of fear or threats, undue
and improper influence and pressure, fraud and trickery cannot be
used as basis to deny the probate of a will.In this case, evidence
shows the acknowledged fact that Paciencia’s relationship with
Lorenzo and his family is different from her relationship with
petitioners. The very fact that she cared for and raised Lorenzo
and lived with him both here and abroad, even if the latter was
already married and already has children, highlights the special
bond between them. This unquestioned relationship between
Paciencia and the devisees tends to support the authenticity of the
said document as against petitioners’ allegations of duress,
influence of fear or threats, undue and improper influence,
pressure, fraud, and trickery which, aside from being factual in
nature, are not supported by concrete, substantial and credible
evidence on record.
FROM 2018 TSN
Q. What was the disease?
She was forgetful. ―mangulyan‖
Q. How did the SC discuss her qualification vis-a-vis Article 799?
As to the nature of the document that she executed, she was
aware of it. It was stated in her will, that customs of her faith be
observed upon her death.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
She knew that she was dying, because she mentioned about the
customs of her faith. She knew about the consequences of that
document.
Q. Another?
She knew of the nature of the properties that were to be disposed.
She acknowledge that the properties were acquired through her
parents. And she knew about the proper objects of her bounty;
giving it to Lorenzo, wife and children
She knew about this persons; she even made a description and
she had sufficient recollection of the properties.
Q. What was relied upon by the Supreme Court here?
That there is the presumption that there is of sound mind
Q. What is the consequence of that presumption?
A. The burden of proof is upon the one who is alleging that the
testator is not of sound mind.
Q. What is the quantum of proof required to overturn that
presumption?
CLEAR AND CONVINCING EVIDENCE, which is a high degree of
proof, being the next to guilt beyond reasonable doubt; in the
hierarch of evidence.
Here, the Supreme Court decided based on the requisites on
Article 799 and the presumption.
So here again, we have the guidelines on the determination on
whether or not a person is of sound mind; although we will discuss
also the presumptions as to the soundness of mind in the
succeeding articles;
DRUNKENESS
is a person who is drunk of unsound mind? 'Kay ang mga
palahubog diri unsa man inyong maingon (as a palahubog dili
unsound mind maam uy haha) will a drunk person still possess
sound mind? wala ko kasulay mahubog so wala ko kahubog so
wala ko kabalo; Can you still recall the nature of the estate to be
disposed of, the proper objects of your bounty and when you
execute a last will at the time you are drunk do you still understand
the character of the testamentary act? 'Kay it will all boil down to
that; We dont really know because there are persons na carry lang
nila ang pagkahubog mskin pila ka bote walay effect; naa puy
uban na wala na wala na sya sa utok; In fact naay ubana na if
kung mag exam dapat muinom para mas hawud murag kanang
drunken master ; so it depends; we ask the question are the
requisites under the law present? (Art 799)
DRUG ADDICTION
A person who is high on drugs; Will the last will and testament be
valid? Again it depends if the 3 requisites under the 2nd
paragraph of Art 799 are present
COMATOSE
He is not insane but he is unconscious so if there is a will which
appears to have been made while he was in Coma obviously that
will is not valid because he was unconscious.
IQ;
1. Idiots (IQ average of 25) - they are congenitally and
intellectually deficient. They cannot take care of their
body needs and they cannot even be trained. They
cannot execute wills as they are not of sound mind.
2. Imbeciles (IQ average 26-50) - They are mentally
deficient due to disease. They can be trained to take care
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 ATTY. LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE
ATENEO DE DAVAO UNIVERSITY Class Transcription
College of Law III – Manresa 2019

of their bodily needs only. They cannot execute wills.
They are considered to be of unsound mind.
3. Morons (IQ average 51-70) - So they can learn reading,
writing, simple math. They can be self- supporting. They
can execute wills, their IQ is sufficient to comply with the
2nd requisite of 799.
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.

The general rule is every person is of sound mind. So unless there

is proof to the contrary; and this is actually true because that is
INDICATIONS OF AN NOT INDICATIVE OF AN also the natural order of things; persons really are of sound mind in
UNSOUND MIND UNSOUND MIND the absence of proof to the contrary.

 Albornoz VS. Albornoz (71
Phil 414) - Lack of memory
and understanding and pre-
senile dementia
 Neyra VS. Neyra (76 Phil
333) - Delirium when it
beclouds the mind so as not
to understand the nature of
act, extent of property,
objects of bounty
 Torres VS. Lopez de
Bueno (48 Phil 772) -
complete senile dementia
will result to testamentary
incapacity
 Samson VS. Corrales Tan
(44 Phil 573) - the positive
testimony of attesting
witnesses which does not in
itself seem unreasonable as
to the mental condition of
the testator must prevail
over the professional
speculations of a non-
attending physician
 Torres VS. Lopez de Bueno
(48 Phil 772) - Senility, Senile
Dementia when not complete
 Sancho VS. Abella (58 Phil
728) -Senile debility,
deafness, poor memory.
 Alsua-Betts VS. CA (July 30,
1979) - Weakness of mind or
partial imbecility from disease
of body or from age
 Avelino VS. Dela Cruz (21
Phil 521) – Blindness
 Bagtas VS. Paguio, Jocson
VS. Jocson (46 Phil 701),
Cuyugan vs. Baron - Failure
of memory
 Caguioa VS. Calderon (20
Phil 400) – Insomnia
 Yap Tua VS. Yap Ca Kuan
(27 Phil 579) – Tuberculosis
 Samson VS. Corrales Tan
Quintin (44 Phil 573) –
Diabetes
 Galvez VS. Galvez (26 Phil
243) – Cholera
 Bagtas VS. Paguio -
Paralysis and loss of speech
 Carilio VS. Jaojoco (46 Phil
957) - Cerebral Hemorrhage
with hemiplegia
 Hernaez VS. Hernaez (1 Phil
683) - Old age
 Neyra VS. Neyra (76 Phil
333) - Delirium; Sleeping
Sickness (Addison's disease)
 Bugnao VS. Ubag (14 Phil
163) - Asthma
If you are the proponent of the will (meaning you are the one who
file the petition of a will), you don‘t have to prove that the testator is
of sound mind, because that is presumed.
Soundness of mind is the general rule; as a consequence it is
the burden of oppositor who alleges that will was made by the
testator at the time when he was not of sound mind; and the
burden of proof is discharged only by presenting CLEAR AND
CONVINCING EVIDENCE.
CLEAR AND CONVINCING EVIDENCE
The highest in the heirarchy of proof is: proof beyond reasonable
doubt that is the one needed in criminal cases; next is clear and
convincing evidence; It is more than preponderance of evidence
which is next; last is substantial evidence in administrative cases;
However, in the 2nd paragraph of Art 800; we have a reverse
presumption (but rare) there are only 3 instances on law and
jurisprudence that presumption is on reverse; meaning the
presumption is at the time will was made testator was not of sound
mind;
1) If the testator, one month, or less before making his will
was publicly known to be insane.
Take note of the time: ONE MONTH or LESS. It is proximate to the
execution of the will. Because the presumption here, for example,
two days before making the will, publicly known that he is insane,
chances are wala pa siya maayo. Alang-alang magic kalit, ―ayo
nako, buhat nako ug will.
Although, it can be proved that, indeed, he was of sound mind at
the time he made the will. Like persons who are in lucid intervals.
For 3 years buang sila, then, for one day naay lucid interval. Kung
full moon, mas mabuang; maybe because of the magnetic force of
the moon (affecting the brain).
It has to be publicly known.
Of course this is only a presumption; if you are the proponent of
the will, you have the first burden to show that the will was made
by testator during lucid interval;
2) Judicial declaration of insanity
Another would be, in case of Torres v lopez, although in this case
we mention that judicial declaration of incapacity is not conclusive
as to the mental condition. But if it is a judicial declaration of
incapacity, then here, there is a presumption that a person makes
will and he was judicially declared as insane before, he was still
insane at the time he made the will. The fact that he was placed in
guardianship is not conclusive as to his mental condition;

Although again, this presumption is disputable or rebuttable; you

can present evidence to the contrary.

Article 800. The law presumes that every person is of sound mind, In special proceedings we have the provision for the hospitalization
in the absence of proof to the contrary. of insane persons kana ng naay buang diha and di sya mu angkon
na buang sya and iya family gyud wala naga angkon; and if you

.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
feel na danger sya sa society there can be a petition for him to be
declared as insane and be confined in a mental institution; so if
nahitabo na siya and here comes a last will and testament made
by that person then presumtion is he was not of sound mind at the
time he made the will.
3) Insanity of a general or permanent nature shown to have
existed at one time is presumed to have continued; Under the
Rules of Court, Rule 131, Section 3(ee)
(ee) That a thing once proved to exist continues as long as is usual
with things of the nature;
Again, once upon a time, you are proved to be or established to be
from birth that you were born with a mental defect, it is publicly
known. And there is no judicial declaration. But two years old ka,
mao gihapon imong condition. Nag-18 na lang ka, mao gihapon,
20. There was never a time that you were actually normal.
And then suddenly, here comes a last will and testament allegedly
made by this person. What is the presumption - sound mind or
not? He is not publicly known to be insane, for example lang, kay
gitago gyud sa family and wala pod judicial declaration. But it was
already established. It was known to some, like the oppositor, na
insane siya.
Here, the presumption is not sound mind. The proponent of the will
has to prove, by clear and convincing evidence na sound mind
siya at the time when the will was made.
EVIDENCE ON SOUNDNESS OF MIND
What kind of Evidence can the proponent or oppositor present to
prove the mental condition of the testator? Wether he was of
sound mind or not?
1) NOTARY PUBLIC
Ramirez v Ramirez; the SC recognized that the testimony of the
notary public is also admissible as to the mental condition and is
entitled to great weight because if it is a notarial will, only notarial
wills need acknowedgement before the notary public; so here the
testimony of the notary public will be relevant only if we are talking
of notarial wills;
In holographic wills only the testator is present at time of
execution.
So unsa manay purpose sa notary public? upon the execution of
notarial will the testator will have to declare before the Notary
Public that he executed the will freely and voluntarily; also the
witnesses will have to acknowledge that they executed the
attestation clause freely and voluntarily. so here the notary public
is in a position to asses mental condition of testator.
However in Ramirez the SC characterized the testimony of the
notary public as far from satisfactory and vague, evasive, and
tends to beg the very issue. He was asked "can you positively
declare that at the time the will was acknowledged before you, the
testator was of sound mind?" the Notary public r efused to directly
answer the question, he just said "Oh! mao manang nakabutang
sa acknowledgemnt so mao na na siya" So he would just refer to
certifaiction he refused to commit. so the SC said he declined to
fully commit himself and his testimony fails to prove testamentary
capacity;
RAMIREZ VS. RAMIREZ (39 SCRA 147)
What is disputed is the will of a Maria Gareau. The son of the half
brother of Maria’s husband claims that she executed a will
instituting her husband Ramon as universal heir;
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Her will was questioned on the ground that she was mentally
incapacitated at the time of its execution. Dr. Manuel Ramon de
Arcos had given her a diagnosis that she was suffering a senile
cerebral involution that caused her to regress due to cerebral
defects of arteriosclerosis.
The most pertinent evidence on behalf of the capacity of Maria is
the testimony of the notary public before whom the will was
executed.
The notary public, Braulio Nolasco Carrasquedo, gave the
following statements on the subject of the testatrix' mental
condition:
17. Do you know what was the state of mind of that lady when I
grant the testament annex 1? R. In my opinion, it was fine.
18. Do you please explain your answer to the previous question.
R. I do not know what they mean by that question. Yom judged
that she was qualified and there is a clause there that she is legally
qualified
19. Do you say if Mrs. Maria Garnier Garreau realized that she
was granting a will? R. Answer with the previous answer, because
if she was trained she knew what she was doing.
20. Tell me if the tester remembered its properties? A. I suppose
that although the will is not allowed unless bequests are made, but
here is a testament in general terms
21. Do you say if the tester remembered its relatives? A. I cannot
say that but she was with her niece, although I suppose she
remembered her relatives.
ISSUE: WON the testimony of the Notary public proves the
capacity of Maria – NO
the foregoing statements of the notary public are far from
satisfactory. They are vague and evasive, and tend to beg the
very issue. Thus the witness could not say, but merely
supposed, that the testatrix had a recollection of her
properties or of the relatives who would logically inherit from
her and when asked to explain his answer to the question
concerning her mental state, he simply referred to the
certification in the will on that point. It would seem that he was
aware that he had no sufficient basis for a categorical opinion on
the subject, and so declined to fully commit himself.
2) ATTESTING WITNESSES
Second, the TESTIMONY OF THE ATTESTING WITNESSES. Of
course they were present during the execution of the will. This is
also entitled to great weight. It must be reasonable and unbiased
3) OTHER WITNESSES
Third, we have the TESTIMONY OF THE OTHER WITNESSES,
there are certain instances when the witness during the execution
of the will could not be present maybe because they‘re dead
already or they are out of the country. Maybe they also become
insane or they have forgotten about the execution..nagka-amnesia
sila. So other witnesses can be asked. Here, they can testify also
as to the mental condition of the testator at the time of the
execution of the will.
ang helper na nag serve sa merienda na nakakita sa demeanor sa
testator. Other persons who saw the testator immediately before or
after execution.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Junuquea v Borromeo Witnesses who were not present at the
execution of will but before they saw testator; so as long as they
state facts and ground upon which they base opinion.
4) ATTENDING PHYSICIAN
Lastly, we have the ATTENDING PHYSICIAN. For example the
testator was ill at the when he made the will. But as we already
discussed, a person need not possessed of a perfectly balanced
mind so we could say he is of sound mind. He might be sick but
still of sound mind. The testimony of the attending physician is also
entitled to great weight. In fact, it should be given the HIGHEST
REGARD if the physician was present when the will was executed
In Samson v Corrales Tan we have the testimony of physician
and testimony of other witnesses; so sc said between their
testimony the testimony of witnesses was accorded greater weight
as the physician was not the attending physician and his testimony
could just be considered as professional speculation.
SAMSON VS. CORRALES-TAN
In the case, however, of SAMSON VS CORRALES-TAN, the SC
did not give credit to the testimony of the physician. The SC gave
more way to the testimony of the attesting witnesses. Why?
Because the physician was not the attending physician. What he
had was merely an opinion.
The positive testimony of the attesting witnesses whose testimony
does not in itself seem unreasonable as to the mental condition of
the testator must prevail over the professional speculations of a
non-attending physician.
Kung dili siya ang attending physician, opinion or speculation na
lang to niya ha. So not much weight is given.
Article 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by the
supervening of capacity.
PRINCIPLE OF SUPERVENING CAPACITY
THE TIME OF THE EXECUTION OF THE WILL THE TESTATOR
MUST BE OF SOUND MIND. We don‘t care about before or after.
What matters is the present.
Even if he was not of sound mind before, but at the time of the
execution of the will he was of sound mind, the will is valid. Or
even if he loses soundness of mind after. It does not matter. The
will is still valid.
What if at the time he made will he was not of sound mind but after
he was of sound mind; When he went back to normal state he
would like to validate will; so NO; dili pwede; if he should really
wish to do so he should REPUBLISH his will; so that is the
remedy.
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.
You don’t need consent of husband/wife nor court authorization;
You don’t need consent of husband nor court authorization; You
don’t need consent of husband nor court authorization; So you
cannot dispose of property in conjugal property of gains; However,
in Ananay v Martinez SC still gave effect to disposition because
husband already expressed conformity to partition and he waived
his hereditary rights.
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How about the husband? Can he? Is there a provision in the New
Civil Code? Naa uy! But, of course, it is no longer mentioned
because since time immemorial the right of married men had
always been recognized. There is just a need to place these
provisions in the NCC to make it clear that married women also
have these rights.
Art. 97. Either spouse may dispose by will of his or her interest in
the community property.
In fact under Article 97 of the Family Code they can.
What if the spouse disposes of the entire conjugal or absolute
community? That would not be valid. We discussed that in the
case of BALANAY VS. MARTINEZ. Because you can only
dispose your own separate property. It could be valid only as to the
share of the spouse.
FORMS OF WILLS
This refers to extrinsic validity of will; Kung sa gawas mu execute
si testator ug last will and testament even if he is a filipino citizen
he can actually disregard articles 804 to 814 of the CC; and follow
the law of the palce where he makes will; under Art 17 he is
allowed diba? but in case he wants to follow Philippine laws then
we have these formalities so in the Phils we only have two kinds of
wills
1. Notarial Wills
2. Holographic wills
there are no other wills; what are the formalities? when you say
notarial or ordinary wills where the mechanical act of drafting can
be delegated to third persons; but when it comes to holographic
wills they cannot- even the mechanical act cannot be delegated.
Everything must be in the handwriting of testator, dated, written,
and signed.
Notarial will usually typewritten basta in writing sya its not required
to be in handwriting; and there are several requisites; this is the
kind of will where we require acknowledgement and witnesses
before notary public. aside from the other requisites;
Article 804. Every will must be in writing and executed in a
language or dialect known to the testator.
Applicable to both Notarial and Holographic will - every will.
1. In writing
2. language and dialect known to testator
When you say in WRITING meaning there are no oral wills in the
Philippines.
Like naka video ang iyahang last wishes. I could not
forget before si Claudine Barretto pa to na teleserye.
Murag naa siyay will unya naka video siya. And on that
basis nawad-an siyag rights sa properties. Which is not
correct. Kay oral wills are not recognized in the
Philippines. Dili siya valid maski pa 1 million kabuok imo
witness, there are no such things as oral wills in the
Philippines. We only have written wills.
As to kind of writing; there is no requirement it can be
typewritten or computerized; how about if sa whiteboard? well it's
in writing.
NUNCUPATIVE WILLS – wills which are orally made by the
testator in contemplation of death and before competent
witnesses. These kinds of wills are not recognized.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
These wills are not valid even if you have a million witnesses for
they are not in writing.
One of the essential characteristics of a will is that it is Solemn
and Statutory so the law requires the will to be in writing
LANGUAGE; the language or dialect known to the testator.
What kind of language? Language or dialect known to the testator.
It is not required that the testator must be proficient in the
language. Kung gusto niyag English, bahalag wrong grammar
iyang English. Basta kay he understood that language. And he is
able to express his wishes based on the language. It is not even
required that the will contains only one language. There could be
different languages. Like multi lingual man siya, so French,
Spanish, Bisaya, Tagalog. Valid siya as long as all these
languages are known to the testator.
Now, there is a presumption when it comes to the language. What
is the rule? The presumption here is THE WILL IS IN THE
LANGUAGE OR DIALECT KNOWN TO THE TESTATOR.
What if wrong grammar kaayo? Wrong spelling pa gyud? well
if nakasabot sya sa iyang gipansulat didto VALID; it is not needed
that testator is proficient in laguage used; as long as he
understood the language and he could express himself in that
language.
July 29, 2019 P.1 – Cagas
Art. 804. Every will must be in writing and executed in a
language or dialect known to the testator.
Under Article 804 which is a common requirement to holographic
and notarial wills that every will must be in:
1. writing and
2. in a language and dialect known to the testator.
Language or dialect
When it comes to the language or dialect there is a presumption
that the will is in the language or dialect known to the testator.
What's the consequence if you have that presumption?
1. The will does not have to state that is in the language or
dialect known to the testator.
You don't have to write that in the will, so even if it is not
mentioned in the will it will not make the will invalid because
the law presumes that.
2. It is not required to be stated in the attestation clause that
the will is in the language or dialect known to the testator.
In Article 805 there are four items which are needed to be
mentioned in the attestation clause. If you fail to mention
these items in the attestation clause as a general rule it will be
a fatal defect and the will is not valid.
However, the language requirement is not one of those
statements that must be mentioned in the attestation clause.
Even if it is not mentioned there it will not make the will
void.
But again in practice I usually place that in the will that the last
will and testament which is written in English is in the
language or dialect known to the testator. Just to minimize the
grounds for objections but there is no statutory requirement.
3. That the will is the language or dialect known to the
testator can be proved by extrinsic evidence or evidence
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aliunde.
If there is an oppositor who says na the testator did not know
the language used in the will, so you can present extrinsic
evidence. Know the distinction between intrinsic and extrinsic
evidence.
 Intrinsic Evidence is found in the will.
 Extrinsic Evidence is one which is beyond the will.
So if somebody contest the will on the ground that it is not in
the language or dialect known to the testator, you can
present letters for example written by the testator during his
lifetime na he knows the Chinese language which is used in
the will.
Testimonies of persons during his lifetime kay iyang best
friend kay Chinese na di kabalo magbisaya, so what is the
presumption there? It would prove that he knew the language
used in the will.
4. If the will is executed in the language or locality where
the testator lives then there is a presumption that the
testator knows the said language.
If you notice in the cases which we will discuss there should
be a connection between the circumstances of the testator
during his lifetime and the language used in the will. If the will
is written in French and then the testator only lives in Panabo
during his lifetime and he did not go at Panabo at all and his
will is in French, can we presume that the will is in the
language or dialect known to the testator? So, Let's discuss
the cases:
Abangan vs Abangan
Here, the will was written in the language of Cebu. It was executed
also in Cebu. It was found out that the testatrix was a resident of
Bohol a neighboring locality. Here, there was no evidence
presented that the testatrix understood the language of Cebu.
However, we have the presumption that the will is in the
language or dialect known to the testator and in the absence of
evidence to the contrary then the presumption remain besides we
cannot say na a person who is a resident of Bohol does not know
the language used in Cebu because they are just neighboring
localities. They can just transfer from one place to another so we
can presume that these people know the language in the
neighboring localities.
Reyes vs Vidal
Here, the will was written in Spanish. But, there were no witnesses
who testified that the testatrix knew the Spanish. There was no
testimonial evidence but the records would show that she was a
Spanish Mestiza married to a Spaniard made several trips to
state and had letters. There were letters written by the
testatrix in Spanish so these pieces of evidence were sufficient to
show that indeed she knew the Spanish Language and besides we
have a presumption that the will is in the language or dialect
known to the testator.
Acop vs Piraso
Here, the will was written in English. At the time of his death the
testator was a resident of Baguio. There was no evidence
presented that the testator knew the English language. In fact,
what was on record was that during his lifetime the testator knew
no other language but Igorote dialect with a smattering of Ilocano.
And there is no record which would show that English was the
official language of Baguio.
The SC said that presumption did not arise. Evidence shows that
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
the language he knows is an Igorot Language. No evidence that
the English language is the Language used in Benguet. He
only knows the Igorot dialect with a smattering of Ilocano. We have
a presumption that the will is in the dialect or language known to
the testator but it is a disputable presumption so if the evidence
would show that indeed the testator did not know the language or
dialect then it's either the presumption would not arise or even if it
would arise it would be wholly contradicted or destroyed
Javellana vs Javellana
Just remember when it comes to this language requirement we
have a presumption that the will is in a dialect or language known
to the testator. But if you have a problem presented to you and you
cannot see any connection between the language used and the
circumstances of the testator, again your answer would be either
the presumption did not arise or even if you have the presumption
the evidence on record would show that it was actually the
contrary so it was contradicted.
Just Read the case of Abada vs Abaja.
Why is that there is a need for the testator to know the
language used in the will? How about if the will is just interpreted
to the testator? Di ba when the will was interpreted to the testator
meaning he already knew the language. Would the interpretation
be enough? Take note insofar as the language of the will is
concerned it has to be known to the testator. That is the only
acceptable requirement. An explanation or interpretation of the
will to the testator would not cure the defect.
In one case decided by the SC, in the will itself it was said "this will
is written in English which was interpreted and explained to the
testator”. By the presence of that phrase the SC said the will is not
valid. Why? Because it shows that the will was not in a language
or dialect known to the testator. Why would you need an
interpretation or explanation if in the first place the testator knew
the language so it has to be known.
An explanation is not acceptable. Why? Because
1. We don't know if the interpretation or explanation is
correct,
2. Even if the explanation or interpretation is correct we
don't know if the testator really understood it.
Take note, that everything in the will should be those of the
Testator, his wishes. So everything there is in a language not
known to the testator and was just interpreted to him, we don't
know for sure if he really understood everything there. Just like di
ba sa atu magexplain nya maulaw man ta kung wala ta kasabot.
So di ba feeling ninyo pagtanaw niyo kasabot nya wala diay to and
we cannot ask the testator, Sir nakasabot ba ka ani number 3?
How can he answer patay naman sya delikado pud muanswer sya
no? So dili. It has to be in a language or dialect known to the
testator.
Q: How about the witnesses? Are they required to know the
language used in the will? Ang attesting witnesses?
A: No there is no such requirement because the attesting
witnesses, their act is only limited to the Attestation Clause. Ang
declaration sa witnesses is only the Attestation Clause. The
testator's declaration is the will so when the will is acknowledged
the testator acknowledges the will before the notary public. The
witnesses acknowledge that attestation clause. Walay labot ang
witnesses sa will. They don't have to know the language used in
the will. They are only limited to the Attestation Clause. Also the
testator wala pud na syay pakialam sa attestation clause. So even
if the attestation clause is in a language not known to the testator,
it doesn't matter. Strictly speaking also the attestation clause is not
the will of the testator although it is part of the notarial will but its
not the will of the testator. The testator only has to know the
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language or dialect used in his will.
Article 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
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
witness, it shall be interpreted to them
PLEASE MEMORIZE THE CONTENTS OF ARTICLE 805!!!
because Article 805 gives us the requisites of notarial will.
Article 805 is only applicable to a notarial will.
What are the specific requirements under Article 805? These
requirements actually are of equal importance, failure to comply
with any one of these requirements as a general rule would be
a fatal defect. It means the will shall be denied or disallowed to
probate. The courts cannot add to these requirements. The courts
cannot also say na some of this requirements are not applicable.
What are the formalities of notarial will?
1. The will must be in writing.
2. It must be in a language known to the testator.
3. It must be subscribed at the end thereof by the testator
himself or the testator's name is written by some other person
in his presence and under his express direction.
4. The will must be attested and subscribed by 3 or more
credible witnesses in the presence of the testator and of one
another.
5. The will must be signed at the left margin by the testator or
the person requested by him to write his name and by his
instrumental witnesses on each and every page thereof
except the last.
6. All the pages shall be numbered correlatively in letters
placed on the upper part of each page.
7. There must be an Attestation Clause.
8. The will must be acknowledged before a notary public.
Now, how do we construe these formalities?
Abangan vs Abangan
The SC said that as a general rule, these requirements, these
formalities in the execution of wills are strictly construed. You
really have to comply with them. The purpose of requiring this
formalities is to close the doors against fraud, bad faith, to avoid
substitution and to guaranty the authenticity of the will. We have to
make sure that the testator signed his will it was not signed by
another person without his consent. It was really his will it was not
just a forged document, that he was not forced during the
execution of his will, he was not acting under vitiated consent,
mistake, undue influence, intimidation, etc. This is the reason why
we have this formalities.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
SUBSCRIPTION
It says the will must be subscribed.
Who subscribes? The testator or another person in his behalf, in
his presence and under his express direction.
Where? At the end.
When you say subscribe that is just the act of signing the will. The
testator or some other person. Why some other person will sign?
We are talking of a notarial will. So another person can sign but
naay requirements again in the presence of the testator and
under his express direction. In the presence we will discuss that
later what do we mean by 'in the presence'. Because the words in
the presence here are used several times. When it comes to
signing by the person directed by the testator, when it also comes
to the signing of the testator himself which should be in the
presence of the witnesses and then the signing by the witnesses
themselves must be in the presence of the testator and of each
and every one of them. There are 3 instances when the words in
the presence are required under Article 805.
Let's got to the signing by the testator. What does the testator
subscribe in the will? Unsa iyang ipirma sa will. Of course, his
signature. What kind of signature? Well, ideally his full signature.
Kung iyahang name is Francis Emuy, so complete.
What if ang iyahang signature kay kuan lang, FJ Emuy. Ok ba na
sya? Well as long as it is his customary signature.
Actually, when it comes to notarial wills, even if gusto niya isign
dire, magthumbmark lang sya, pwede ba na? or stamp kanang di
ba naay stamp na inyuhang sign or smiley face iyahang ibutang?
or cross? allowed ba na sya? Please remember when it comes to
notarial wills, any sign can be affixed by the testator, provided that:
1. It is his customary signature or
2. he intended that mark to be his signature.
If these requirements are present or either lang, either his
customary signature or karun feel nako gusto nako star ang
akoang sign so he intended that to be his signature then that
would be valid insofar as notarial wills are concerned. Cross, I
already mentioned that.
Leanjo vs Leanjo
The testarix here was Christina Valdez. Another person wrote the
name Christina Valdez. Afterwards, Christina Caldez herself affixed
a cross above her name. During the probate of the will, it was
opposed and oned of the grounds was because it was not signed.
But the evidence on record would show that she intended the
cross to be her signature. Here take note the cross was
accepted as the signature of the testatrix.
Garcia vs Lacuesta
The testator was named Antero Mercado. Now the name Antero
Mercado was written by his lawyer. DIli siya, kung di ang lawyer.
After the name above that, Antero Mercado himself wrote a cross.
During probate, there was no evidence which would show that
Antero Mercado intended the cross to be his signature or that he
customarily signed during his lifetime using the cross.
Is the will void? Not necessarily because remember the will can be
signed by a third person in the presence of the testator and under
his express direction. Who wrote the name Antero Mercado? It
was his lawyer. The SC considered the will as signed or
subscribed by another person. Kay bisan pa ang cross dili
cusomary signature or not intended to be his signature, naa man
gihapon ang name na Antero Mercado. It was deemed to be
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signed on behalf of the testator by a third person. Pwede na sya.
The problem in this case was if that is the scenario na the will was
signed by some other person, it should be stated in the attestation
clause that the will was signed by another person under the
express direction of the testator, It was not stated in the attestation
clause, so that made the will void.
In this case of Garcia vs Lacuesta there was no evidence that the
cross was the customary signature of Antero Mercado or he
intended that to be his signature. Consequence we just disregard
the cross but still there is a name Antero Mercado in the will written
by the lawyer, so as a consequence because we disregard the
cross as the signature of Antero Mercado we treat it as a will
signed on behalf of the testator by another person which is also
allowed di ba? under Article 805 for as long as the signing of that
person is in the presence of the testator and under his express
direction and it must also be stated in the attestation clause na it
was signed by a third person under the express direction of the
testator. Here, that was the reason why the will was
disallowed, not because the cross is not the customary
signature or not to be intended to be the signature of the
testator but because there was no showing that it was made
under the direction of the testator, there was no statement in
the attestation clause.
Going back to that situation where the will is signed by another
person, the law says 'in the presence.' As we will discuss later
there are also other test but when you say in the presence ideally
the testator should see that his will is being signed on his behalf by
the person who was directed by him to sign. He must see or even
if he did not see but he could see if he wanted to so he was in a
position to see or if the testator is blind.
Can a blind person execute a last will and testament?
Yes, in fact it is recognized under Article 808, a blind person. If the
testator is blind you can still satisfy the test of presence if that
person who signs the will on behalf of the testator signs it within
the range of the available sense of the testator. We will discuss
that again, under the express direction.
What do we mean by under the express direction? Authority
say the testator shall by word of mouth or action clearly indicate to
the proxy a desire to have his name signed to the document.
Meaning when you say express direction, there must be an
express authority. The authority must be seen the act of signing.
What if the 3rd person just signed and then the testator saw the
signing and he did not say anything would that be considered
under his express direction? That would be under his implied
consent but that is not the one mentioned by the law. The law
mentions express direction, there must be a directive preceding
the act.
Can a minor or incompetent person sign the will on behalf of
the testator? The testator can sign using a rubber stamp. What
difference would that make if a person himself signs the will on
behalf of the testator? Kinahanglan ba na naay capacity to act or
of legal age ang person who signs? There is no such requirement
as long as the signing is made in the presence and under the
express direction because the person here is not really doing a
contract, he is not executing an act, he is just signing. Just like
mugamit og rubber stamp si testator to sign ang iyahang gigamit
diha na instrument is the rubber stamp. What difference would that
make kung iyang gigamit na instrumentality is a person who signs
on his behalf?
Now, In the case of Barot vs Cagacungan 21 PHil 461, the SC
said anybody may sign for the testator even one of the subscribing
witnesses.
But in the case of In Re: Will of Tanjuico 45 Phil 807, when you
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
relate this to Barot vs Cagacungan the indication is that anybody
may sign on behalf of the testator even one of the attesting
witnesses as long as there are more than 3 witnesses.
In the case of Barot vs Cagacungan there were four witnesses,
so meaning basta naay sobra na isa because a notarial will
requires at least 3 witnesses and these witnesses have
qualifications and it must also be impartial because they would
later on testify as to the facts attendant during the execution of the
will. That is why when we go to Article 806 we will learn na a
notary public cannot be one of the attesting witnesses. The
attesting witnesses must remain to be impartial. Ang attesting
witnesses ang ilahang act should be different from the testator.
That's why if you allow one of them to sign on behalf of the testator
then they should not be the 3 witnesses kay ang testator is
different form the witnesses. The act of the testator should be
separate from the act of the witnesses. If you use one person to
sign on behalf of the testator he should not be one of the attesting
witnesses. Even if the case of Barot says anybody but here there
were 4 witnesses. Even if we exclude that person person who
signs the will on behalf of the testator as a witness it would not
affect the validity of the will because the will you still have 3
witnesses. That's the implication on these 2 cases
July 29, 2019 P.2 – Tan, Nikki
Signature of the testator in a notarial will as long as it is a
customary signature and he intended it to be his signature.
Even if sometimes misspelled as long as he intended it to be his
signature. Or initials pwede gihapon siya if it is a notarial will.
Actually any sign basta katung duha ka requirements.
Electronic Commerce Act of 2000
RA NO 8792
How about the electronic or digital signature under the E
Commerce Act. Would it be allowed as a signature under the last
will and testament?
RA NO 8792 Electronic Commerce Act of 2000
Section 5. Definition of Terms - For the purposes of this
Act, the following terms are defined, as follows:
(e) "Electronic Signature" refers to any distinctive mark,
characteristic and/or sound in electronic form,
representing the identity of a person and attached to or
logically associated with the electronic data message or
electronic document or any methodology or procedures
employed or adopted by a person and executed or adopted
by such person with the intention of authenticating or
approving an electronic data message or electronic
document.
Under the present law E-signatures are affixed pursuant to
transactions and contracts.
So the meaning of this signature does not fit the signature
requirement in a notarial will much more a holographic will. So
limited lang ang application sa e-signatures when we compare it to
the last will and testament.
We have already discussed before that one of the essential
characteristics of a will it should be unilateral. When you say
unilateral it is the act of the testator alone, it does not need the
consent or approval of another party as distinguished from a
bilateral transaction.
The signature under the E Commerce Act is intended to be affixed
to transactions and contracts. And wills as we all know are not
transactions or contract.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
Will making is statutory so probably in the future, if there is a
legislation an E-signature when affixed to a will, then that will be
now allowed. But again if we go to the meaning of the E-signature
as of the present it is not yet contemplated to be affixed to a last
will and testament.
Illustration:
SITUATION: Now what if it is another person who
signs in behalf of the testator?
For example Bueldia is requested by the testator to sign
his will, what will Bueldia sign?
Neon True Bueldia, mas gwapo man akong name kaysa
sa testator akong name akong ibutang. Kay siya man
ang gisugo sa testator iyahang name iyahang pirmahan.
NO! He should affix the name of the testator, and not
his name. But if he really wants his name to appear then
he should put “For Juan Dela Cruz by Neon True
Bueldia.” So you add that you are signing on behalf of
the testator, but you should affix the name of the testator
and not your name.
Where should the signature be affixed?
The law says at the end when you say the end it should
be the logical end we are not referring to the physical end.
Where is the logical end?
The logical end is the portion below the testamentary
dispositions and immediately above the attestation clause.
The purpose of requiring the signature here is to prevent
unauthorized additions or insertions.
Illustration:
LAST WILL AND TESTAMENT
WHEREAS, on _______, I _______________, resident of in the
City of ____
__________________________________________________
____________________________________________ XXXX
TESTAMENTARY DISPOSITION
_______________________________________________
___________________________________
SIGNATURE OF THE TESTATOR
ATTESTATION CLAUSE
__________________________________________________
_____________________________XXXX
_____________________________
SIGNATURE OF THE WITNESS
_____________________________
SIGNATURE OF THE WITNESS
_____________________________
SIGNATURE OF THE WITNESS
ACKNOWLDEGEMENT OF THE NOTARY PUBLIC
Illustration
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 ATTY. LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE
ATENEO DE DAVAO UNIVERSITY Class Transcription
College of Law III – Manresa 2019

SITUATION: In some cases the first page of the last In a notarial will after the signature of the testator can he
will and testament has a huge space and the place additions and if he adds what are the effects of
attestation clause appears on the next page. those additions?

They now contend that the entire will is void because: In a notarial will additional provisions after the signature
of the testator is not allowed. What if there are additional
1. the signature of the testator was not at the end of provisions? Di man kaha siya allowed? Would you just
the page and disregard this additions?

2. the attestation clause was merely added as it
appears on another page
The Supreme Court said that it is not strict that the
signature should really appear at the end of page.
And as long as the attestation clause was executed at
the same time the will was, it is valid. Besides the law
says it should be the logical and not at the physical end.
Illustration of the problem above (Page 1):
LAST WILL AND TESTAMENT
WHEREAS, on_______, I ___________, resident of in the City
of ______________
__________________________________________________
_____________________________________ XXXX
No! The entire will is invalidated.
Why?
The will is no longer in the form prescribed by the
law. The law says the signature should appear at the
end, meaning the logical end pag naay addition the
signature of the testator in a notarial will the signature is
no longer at the end because naa na siya sa middle.
Precisely the reason why the signature has to be at the
logical end is to prevents unauthorized additions.
What if the testator would really want to add the 10M.
What can the testator do?
He could execute a new will or add a codicil. In a
notarial will you cannot add any more provisions after the
signature of the testator. That will make the entire will
void.

II. MARGINAL SIGNATURES

TESTAMENTARY DISPOSITION
Let’s go to the other requirement. The testator or the person
_______________________________________________
requested by him and the credible witness of the will shall sign
every page of the will
________________________________
SIGNATURE OF THE TESTATOR Article 805 Civil Code
Article 805.
xx

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
1ST CONTENTION THE SIGNATURE MUST BE PLACED
last, on the left margin xx
HERE AT THE VERY END OF THE PAGE:
_________________________________
MARGINAL SIGNATURES
SIGNATURE OF THE TESTATOR
We are talking here of signing in the marginal signatures located at
the left hand side of the will.
Illustration of Page 2:
PURPOSE OF MARGINAL SIGNATURES
ATTESTATION CLAUSE
Why do we need marginal signatures? The purpose of which is
_________________________________________________
identification. So how do we identify?
_____________________________
Kay diba usually pagmagbuhat ka ug last will and
SIGNATURE OF THE WITNESS
testament dili mani ingon na pagkaugma mamatay dayon
si testator. Usually basig maabtan pana ug 10 years, so
_____________________________
katung mga witnesses that were present during the
SIGNATURE OF THE WITNESS
execution of the will. How will they know that it is the
same will that they attested years ago? That’s why we
_____________________________
need marginal signatures.
SIGNATURE OF THE WITNESS

The law says “each and every page thereof, except the last”
ACKNOWLDGEMENT OF THE NOTARY PUBLIC
Illustration of Purpose of Marginal Signatures (Two Page Will):

Illustration of Additions in the Will:
SITUATION: Nahuman na ug pabuhat si testator sa
iyahang last will then nag-panotarize na siya. Then,
he realized he forgot to give 10,000,000 to his helper
gi-insert nalang niya ang provision.
Would that be valid?
SCENARIO: You have a two (2) page last will and
testament. The law says marginal signature. Left hand
margins of each and every page thereof except the last.
So dapat minimum naay upat ka signature: testator and
the 3 witnesses. “Each and every page,” so that later on
the probate the witness will be asked:
Q: Do you remember having attested to the last will and
testament of Juan Dela Cruz?

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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
A: Yes
Q: I’m showing you know a copy of the last will and
testament purportedly executed by Juan Dela Cruz, now
is this the will your referring to?
A: Yes Sir!
Q: Why?
A: Because I remember signing on the left hand margin
of the will and this will has my signature.
Q: Where is your signature?
So the witness is now able to identify his signature in
the last will and testament, that is the purpose of
marginal signatures.
Illustration on the second page of the will:
Now how about the second page, kinanhanglan pa ba
siya nga naay marginal signatures?
NO. The law says “except the last.”
Usually the last page already contains all the signatures.
Pwede gud ka mag marginal signature gihapon kay
gusto nimo but it would be a surplusage because naa
na may signatures. The witness can still identify this
page even if he signs here as an attesting witness in the
attestation clause he can already identify this as forming
part of the will which he attested to some twenty (20)
years ago.
Illustration of One Page Will:
SCENARIO: How about this will, one page lang,
kinahanglan pa ba ug marginal signatures?
NO. Because again all the signature are already here. So
by the presence of the signature, the witnesses can
already identify this last will that’s forming part of the will
that he attested to.
Illustration of Two Page Will:
SCENARIO: What if there are two pages of the will. The
first page was signed by the witnesses and testator. The
second page containing only the attestation clause
however has only the signature of the notary public. Is
that will valid?
Take note: the last will and testament is the act of the
testator, the attestation clause is the act of the witnesses.
And when the law says “shall sign each and every
page of the will on the left margin except the last
page” strictly speaking the attestation clause is NOT
part of the will which requires the marginal signatures.
So the Supreme Court said that if the second page
contains only the attestation clause and the
acknowledgement for that matter and without the
marginal signature of the testator STILL THE WILL IS
VALID. What is required to be signed on the margins are
the will.
So everything that has a disposition of the testator
must be signed by the testator and the witness. Pero
kung purely attestation clause lang siya na page wala
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
na’y testamentary disposition even if wala na’y pirma si
testator diha, the Supreme Court said the will is still valid.
So please remember, if we are talking of a will. Dapat sa
marginal signatures naa ang pirma sa three (3)
witnesses ug sa testator.
Pero kung ang page na we’re talking about is already
signed by the testator at the bottom ang witnesses
nalang ang musign sa margins.
What is important is all signatures: the testator’s
signature and the three (3) witnesses’ signatures is
present.
Location of Marginal Signatures Not Important
Ang location sa marginal signature is not important even
if the law says left hand margin it has been recognized by
jurisprudence that the signatures can actually appear at
the right hand margin, the top, the bottom, as long as
there are signatures. It doesn’t matter.
Why? Because wherever the signatures are located the
purpose of identification can still be served, you can
still identify the presence of you signature.
So important again is all signatures of testator and three
(3) witnesses on each and every page of the will except
when the last page contains only the attestation clause
wala nay testamentary disposition. The absence of the
signature of the testator on that page will not be a fatal
defect.
Pero kung nagdoubt diud mi sige pa-pirmaha diud ninyo.
Para during the probate of the will, ma-minimize ang
objections.
CREDIBLE WITNESSES
The law says credible witnesses. Who is a credible witness? In
Gonzales v CA
GONZALES VS. CA
 We are talking here of the credibility of the witnesses
during probate. It is during probate that the witnesses
will testify. During probate proceedings, the witnesses
who attested to the execution of the will, will be called to
testify in court for purposes of the will.
But there was an objection here saying that prior to presenting the
witnesses in the witness stand, there should be separate and
independent evidence to prove that they are competent and
credible. It must be proved that they have a good standing in the
community and refuted to be trustworthy and reliable. After that,
they can now be called to testify on the will.
Q: As to the contention that there should be separate
and independent evidence to prove that the witnesses
are competent and credible.
A: According to the SC, it is NOT required. Credible
witnesses mean competent witnesses. And not those
who testify to facts upon hearsay.
Q: Why is that there is no need to present prior
independent evidence for credibility?
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
A: In a strict sense, the competency of a person to be an
instrumental witness to a will is determined by the statue.
That would be Article 820 and 820 of the NCC.
Q: To what proceeding did they likened the probate such
that these prior evidences are needed?
A: Naturalization proceedings.
Q: What do you call the witnesses in naturalization
proceedings?
A: They are called character witnesses, they testify as
to the character of the alien wanting to be naturalized.
Q: When we say he must have all the qualifications in
Article 820 and none of the disqualifications in Article
821, what do you call that witness technically?
A: Competent witness.
Q: What did the SC say about being credible?
A: That would depend upon the appreciation of the court
on the testimony of the witness. Based on their
demeanor.
So when we say credible witnesses, you must be competent,
must possess all of the qualifications and none of the
disqualifications, and you must testify based on truth and not
hearsay.
But in probate proceedings, the witnesses are not character
witnesses. They do not testify as to the character of the testator,
even if the testator was a rapist, a criminal, he can execute a will.
The witnesses in probate proceedings only testify as to the
facts attendant during the execution of the will. As to
credibility, again, we go to Article 820 and 821 – competence.
There is no need to present prior and independent evidence.
When you say Credible Witnesses they are the same witnesses
who attest who must possess all of the qualifications and none of
the disqualifications. They are Instrumental Witnesses because
they attest the instrument. They are also called Attesting
Witnesses because again they witness the execution of the will.
Marginal Witnesses because they sign on the margins.
So dapat kanang mga tawhana pareha diud na sila dili pwede nga
lahi ang credible witness, lahi ang instrumental, lahi ang attesting,
lahi ang marginal NO they must be identical. Those are just the
terms used to identify them. Subscribing Witnesses because
they also subscribe.
We already mentioned earlier that the Marginal Signatures could
be placed anywhere as discussed in the case of Nayve v Mojal.
Now someone asked me before why is it at the left hand
margin?
Siguro kay sa physical appearance sa paper dako’g space sa left
compared sa right makita man na ninyo pagmagexecute mo ug
document. If you have seen another explanation, you may share.
In this case of In Re: Estate of Salingsing nagtipid ang testator,
one page back to back. So ang question kinahanglan pa ba
gihapon pirmahan ang sa likod? Nga naa na may pirma ang sa
atubangan?
The Supreme Court said YES! The law says each and every page
NOT sheet.
In Avera v Garcia what if signed on the right margin?
So the Supreme Court said it is still valid.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
In Fernandez v De Dios this is exactly the same with are
illustration earlier that the last page only contains the attestation
clause. Is the testator required?
The Supreme Court said NO, because strictly speaking the
attestation clause is not part of the will. The testator has only to
sign at the margins of the will including the subscribing witnesses.
How about if there are no signatures on the first page?
Of course the will is not valid as discussed in the case of Abangan
v Abangan
But if the will has only one page as we discussed then no need of
marginal signatures as discussed in the case of Abangan v
Abangan.
How about in the case of Icasiano v Icasiano? Here there was
simultaneous lifting of the pages, siguro sa panahon nila onion
skin ang gamit.
ICASIANO VS. ICASIANO
FACTS: The will had five pages. There was an original copy and
there were duplicate copies. In the original copy, in page 3, one of
the witnesses failed to sign in the margin. Perhaps because of the
simultaneous lifting of the pages. Because of that page 3 was not
signed on the margin by one witness. But, all the other
duplicate copies of the will contained all the signatures of the
witnesses and of the testator.
ISSUE: Is the will valid? Was it a fatal defect that page 3 of the
original was not signed on the margin by the witness?
RULING: The Supreme Court said the will is still valid. The law
should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over
whose conduct she had no control, where the purpose of the law
to guarantee the identity of the testament and its component
pages is sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record attests to the
full observance of the statutory requisites.
The will here was allowed. But take note ha, in this case, there
were original and duplicate copies. And all the duplicate copies
were signed. The omission of the signature on the 3rd page of the
original was actually cured by the presence of that missing
signature in all the duplicate copies.
It would be different if there were no duplicate copies at all and all
you have is one copy. And page 3 of that one copy is not signed. I
would say that it would be a fatal defect because that defect
cannot be cured by intrinsic evidence as we will discuss later
under the PRINCIPLE OF SUBSTANTIAL COMPLIANCE.
Remember the ruling in this case because again even if number
one we should not penalize the testator and the defect was cured
because the other copies the duplicate copies were all signed so
we don’t have to be very strict about it.
III. NUMBERING
Let’s go to the other requirement all the pages shall be numbered
correlatively in letter placed on the upper part of each page.
Article 805.
xx
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 ATTY. LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE
ATENEO DE DAVAO UNIVERSITY Class Transcription
College of Law III – Manresa 2019

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.
xx
fourth page does not have a page number, but says:
* * * We certify that the foregoing document
written in Spanish, a language known by the
testator Antonino Vergel de Dios, consisting
of three sheet actually used, correlatively
enumerated, besides this sheet . . . .

NUMBERING ISSUE: Is it excusable? Would the will be allowed even if the

So numbering, what does the law mean when it says numbered fourth page is not numbered?
correlatively in letter?
So dapat nakasulat siya, naka spell-out siya. RULING: The SC said it is evident that the page containing the
Example: “PAGE ONE, PAGE TWO PAGE THREE” attestation clause is the fourth page. This will consist of three
pages excluding this attestation clause. The defect was cured
PURPOSE OF NUMBERING by that statement because you can still verify that the will has
1) To guard against fraud; four pages.

2) To forestall any attempt to suppress or substitute any of If the first page does not have a page number and only the
the pages; second, third, fourth, fifth page has. Is the will valid?
The Supreme Court, said yes it is valid. In this case Lopez vs.
3) To prevent any increase or decrease in the pages; and
Liboro. Why? Because it is evident that is already the first page
4) To afford means of detecting the loss of any of its pages. because it has a a title.

In the case of Abangan vs. Abangan, if there is only 1 page will, 1

So, dapat naka number: “PAGE ONE, PAGE TWO, PAGE sheet so the provisions, attestation clause, and acknowledgement
THREE” are all in there. Is the will valid? Yes! The supreme court said
anyway it’s the sole page, if it is lost then it is lost everything’s
Let’s discuss cases: gone. The purpose of the law T to guard against the loss of the
UNSON VS. ABELLA Arabic numerals pages will not apply because isa lang siya ka page.
ALDABA VS. ROQUE Letters (A,B,C)
NAYVE VS. MOJAL Numbers (1,2,3) IV. WITNESSES
IN RE PILAPIL Partly in letters and partly in Let’s go the the next requirement. The will must be attested and
figures subscribed by 3 or more credible witnesses in the presence of the
testator and of one another.
Just remember it should be consecutive.
Article 805 Civil Code
Illustration of using letters:
Article 805. Every will, other than a holographic will, must be
For example, the name of the testator is Babe. So in subscribed at the end thereof by the testator himself or by the
the first page you use B, then on the second page you testator's name written by some other person in his presence,
use A, then on the third page you use B again, and on and by his express direction, and attested and subscribed by
the fourth page E. three or more credible witnesses in the presence of the
testator and of one another.
No! That is not allowed. Even if you use letters, it should be
consecutive. xx

So you use A,B,C,D,E and so on… again to prevent the So, we already discussed that the notarial will requires at least 3
substitution of any pages, increase or decreas of any of the pages. credible witnesses. So attested and subscribed, that is two acts.

In the case of Fernandez v De Dios the law says upper part of
each page but the Supreme Court it doesn’t actually matter as long
as there are page numbers on every page of the will. The paging
may be placed at the top, bottom, or even at the margin of the will
or even at the text of the will itself, so sa body sa will. Basta makita
nimo first page, second page.
ATTESTED
When you say attested meaning it is an act by the witnesses they
witness the execution of the will, aside from it is the mental act,
they sign which is also a physical act. So what they attest or
witnessing the will must be in the presence of the testator and of
each and every one of the witnesses.

In the case of Fernandez v De Dios the page can be indicated in SUBCRIBED

the body of the document.
FERNANDEZ VS. DE DIOS
FACTS: In this case, there are four pages. The first three
pages contain the testamentary dispositions. And the fourth
page contains the attestation clause and the acknowledgment.
In that will, only pages one to three had page numbers. And
Signing means subscription. When you say subscribed it means
they subscribe at the bottom of the attestation clause as the
attesting witnesses. They also subscribe at the left hand margin of
each and every page of the will. Again this must be in the
presence of the testator and of each and every one of the
witnesses.
Attestation vs Subscription

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 ATTY. LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE
ATENEO DE DAVAO UNIVERSITY Class Transcription
College of Law III – Manresa 2019

ATTESTATION SUBSCRIPTION mentioned because this is not the issue.

Consist in witnessing the The signing of the witnesses
testator's execution of the names upon the same paper What if there is a curtain which separates the testator from the
will in order to see and take for the purpose of identification witnesses. Would that be considered in the presence? So, the SC
note mentally that those of such paper as said NO because there was physical obstruction. If there is a
things are done which the a will executed by the testator curtain even if you turn your eyes in the proper direction, you could
statute requires for the not see because of the curtain.
execution of the will and that What if it is a sliding glass door? Dili sya tinted, klaro sya. Can that
the signature of the testator be considered in the presence? Can you see? Yes. If you can see,
exists as a fact. that can be considered in the presence.
A mental act, an act of the A mechanical, an act of the
senses hand
The purpose of attestation is to The purpose of subscription is MARAVILLA VS MARAVILLA
render available proof of identification. Thus, indicates
authenticity of the will and its that the will is the very In this case the witness during the probate of the will, he was
due execution instrument executed by the asked to testify the signature of the testator. But he failed to
testator and attested to by the identify although he identified his own signature. However, he
witnesses testified that during the signing of the will, the testator and the
To attest a will is to know that To subscribe a paper witnesses were seated next to each other around a table.
it was published as such published as a will is only to The SC said it is of no moment that the witness was not able to
and to certify the fact required write on the same paper the identify the signature of the testator. In fact, he is not required to
to constitute an actual or legal names of the witnesses for the do so. It would also be incredible for him to identify because the
publication sole purpose of identification signing took place around 14 years ago and it was the first and
only time that he saw the signature of the testator.
Aug. 2, 2019 P.1 – Latorza
It is enough that he testified that during those signing the testator
Ok let’s go to another requirement under Article 805 that the and all of them were seated next to each other around the table.
will must be attested and subscribed by 3 or more credible That shows that they were in a position to see. That satisfies the
witnesses in the presence of the testator and one another. test of presence.

So the phrase “in the presence”, when the testator allows or
authorizes the other person to sign in his behalf:
1. It should be signed in his presence; and
2. Under his express direction.
Now when the testator also signs the will or the person
requested to sign the will it should be also in the presence of the
witnesses. Also if the witnesses, when they attest and sign the will
that should be in the presence of the testator and of each and
every one of them. Ok, so in the presence. What do we mean in
the presence? When it comes to the signing by the witnesses and
the testator? Ok it should be in the presence of each and every
one of them.
WE HAVE THE FOUR TEST:
1. THE TEST OF VISION: that is the one when the signing
is seen by the testator or the witnesses. So they could
actually see the act of signing.
2. THE TEST OF POSITION: under this test, even if the
testator or the witness did not actually see the act of
signing but they were in the position to see. They could
easily by simply cast their eyes in the proper direction.
Like in the case of:
JABONETA VS GUSTILLO
Here the testator had his head back turn so meaning nakatalikod
sya. And then the other witnesses were behind him. The SC said
that was considered could be in the presence. He could have
easily cast his eyes in the proper direction.
NERA VS RIMANDO
Here, although the SC did not directly discuss this. It was just
In probate of notarial will it is not required that the witnesses
should be positively declare that the will and signature are those of
the testator. What is important? There was in the position to see
because they are sitting each other. If the testator is blind, the test
of available senses should be used.
3. THE TEST OF MENTAL APPREHENSION: This means
that even if they did not see actually the signing and the
attestation but mentally they knew that the signing and
the attestation were already being done.
4. THE TEST OF AVAILABLE SENSES: In the case of
MARAVILLA VS. MARAVILLA, if the testator is blind it
is enough that the signing or action is within the range of
other senses like hearing, touch, smell or taste. As long
as the testator realizes what is being done
Is it required that the testator should sign ahead of the witnesses?
Or the witnesses ahead of the testator? Is there a particular order
in the signing?
No. In the case of GABRIEL VS MATEO, the SC said that there is
no particular order which the law only requires signing of the will as
long as it is done contemporaneously, in one single occasion. So
the order will not affect, as long as the other requirements are
complied with. The purpose of requiring in the presence is to avoid
fraudulent substitution of the will and to make it difficult for the
intervention of false testimony because there are also the
witnesses of each other. Ok if somebody lies and the other can
easily calling out a liar.
Now we go to other requirement, the attestation clause. We
mentioned before that the witnesses attest or witness and sign the
will in the presence of the testator and each and every one of
them. So duha na ila ginabuhat ha, they attest and they subscribe
or sign. Aside from the fact that the witnesses actually attested the
execution of the will, there is another requirement, there must be
an attestation clause in the will. So it is not enough that the will

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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
was attested and it has no written attestation clause, then the will
is void. Why? Because we don’t know if the witnesses are present
during the probate of the will.
So attestation clause is the clause of an ordinary or notarial will
wherein the witnesses certify that the instrument has been
executed before them and the manner of the execution of the
same. It is a separate memorandum or record of the facts
surrounding the conduct of the execution, and one signed of the
witnesses it gives affirmation that the compliance of the
requirements by law has been observed.
So what is important here is the testimonies of the witnesses are
preserved. So in the case of LEYNES VS LEYNES, the purpose of
the attestation clause is to preserve in permanent form a record of
the fact attending the execution of the will, so that in case of death,
absence, or failure of memory of the subscribing of the witnesses,
or other casualty, the due execution may still be proved.
Attestation clause is the declaration by the witnesses. So it is the
act of the witnesses. So strictly speaking, the attestation clause is
not part of the will because it does not contain a testamentary
dispositions.
MATTERS WHICH THE SUBSCRIBING WITNESSES IN THE
ATTESTATION CLAUSE ATTEST TO:
1. The GENUINENESS OF THE SIGNATURE of the
testator; and
2. The DUE EXECUTION of the will as embodied in the
attestation clause.
So without an attestation clause, the will is void.
FOUR STATEMENTS REQUIRED TO BE STATED IN THE
ATTESTATION CLAUSE, failure to mention any of these
statements will be fatal, it will cause the disallowance of the will.
1. THE ATTESTATION CLAUSE SHOULD STATE THE
NUMBER OF PAGES UPON WHICH THE WILL WAS
WRITTEN.
DISCUSSION:
EXAMPLE. The total number of pages.
1. This will consists of 5 pages including this attestation
clause.
2. This will consists 5 pages excluding this attestation
clause.
Aside from the fact that each page must be numbered correlatively
in letters, there must be a statement in the attestation as to the
total number of pages (additional requirement).
Why do we need a statement in the attestation clause?
Because from what we know, we have a document which has
page numbers 1 to 5 but in reality, there is still a 6th page. So
without the attestation clause which says with finality what is the
total number of pages, it would still be possible to insert some
pages or to omit some pages. so it‘s the attestation clause which
puts a cap as to exactly how many pages are there in the will.
Let’s discuss the case of:
AZUELA VS COURT OF APPEALS
As to the issue on the number of pages, the statement in the
attestation clause.
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Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling
dahong ito,‖
Petitioner argues that the requirement under Article 805 of the Civil
Code that "the number of pages used in a notarial will be stated in
the attestation clause" is merely directory, rather than mandatory,
and thus susceptible to what he termed as "the substantial
compliance rule."
RULING:
So it was located and said, even if there was an attempt to comply
because there was a blank, It only means that the blank was not
filled out, there is nothing in the will at all or in the acknowledgment
portion which sets how many pages are there in the will. And
because this is not stated which is a mandatory requirement, not
merely directory, the Supreme Court said that it was a fatal flaw.
The principle of substantial compliance cannot be applied because
this principle can apply only if the defect or omission can be
supplied by a reading of a will, or in any part of the will, it may be
in the acknowledgement portion, but there is none in here, nothing
at all which says about the total number of pages.
How about in the case of:
IN THE MATTER OF THE PETITION FOR PROBATE OF THE
LAST WILL AND TESTAMENT OF LOPEZ
FACTS:
ATTESTATION CLAUSE— does not state the total number of
pages used in the will
ACKNOWLEDGEMENT— stated that the will consists of 7 pages
including the page on which the ratification and acknowledgment
are written, the RTC observed that it has 8 pages including the
acknowledgment portion
The defect here is on the acknowledgement.
ISSUE: is there substantial compliance with the requirement of
statement of total number of pages in the attestation clause?
HOLDING: None.
The Attestation must state the number of pages used upon which
the will is written. The purpose of the law is to safeguard against
possible interpolation or omission of one or some of its pages and
prevent any increase or decrease in the pages.
While Article 809 allows substantial compliance for defects in the
form of the attestation clause, Richard likewise failed in this
respect. The statement in the Acknowledgment portion of the
subject last will and testament that it "consists of 7 pages including
the page on which the ratification and acknowledgment are
written"‚ cannot be deemed substantial compliance. The will
actually consists of 8 pages including its acknowledgment which
discrepancy cannot be explained by mere examination of the will
itself but through the presentation of evidence aliunde.
On this score is the comment of Justice J.B.L. Reyes regarding the
application of Article 809, to wit:
x x x The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether all the
pages are consecutively numbered; whether the signatures appear
in each and every page; whether the subscribing witnesses are
three or the will was notarized. All these are facts that the will itself
can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
of pages, and whether all persons required to sign did so in the
presence of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate
proceedings.
DISCUSSION: we need extrinsic evidence to explain the
discrepancy because the acknowledgement said it had 7 pages
but upon counting there were 8 pages. So had the statement in the
acknowledgement portion been correct, it could have been
admitted under the principle on substantial compliance.
TABOADA V. ROSAL (the will was admitted)
Here, there was no mention in the ATTESTATION CLAUSE of the
total number of pages. But in the ACKNOWLEDGEMENT portion it
was mentioned that this last will and testament consists of 2 pages
including this page. True enough, there were 2, including the page
containing the acknowledgement. That is considered a substantial
compliance.
That was actually an intrinsic evidence, which should supply the
omission in the attestation clause that is found in the
acknowledgement portion.
The 2nd requirement the attestation clause must state the fact that
the testator signed the will and every page thereof or cause him
the other person to write his name under his express direction. So
we are referring here the signing. Whether testator who signed the
will or the other person under the testator’s express direction, it
must be stated. So take note that if the signing of the testator is
made by the other person in his behalf it should be in presence
AND express direction.
We have the case of:
GARCIA VS. LACUESTA (the will was disallowed)
In that case, the testator was named Antero Mercado. Now the
name Antero Mercado was written by his lawyer. Dili siya, kung di
ang lawyer. After the name above that, Antero Mercado himself
wrote a cross. During probate, there was no evidence which would
show that Antero Mercado intended the cross to be his signature
or that he customarily signed during his lifetime using the cross.
Is the will void?
Not necessarily because remember the will can be signed by a
third person in the presence of the testator and under his express
direction. Who wrote the name Antero Mercado? It was the lawyer.
The SC considered the will as signed or subscribed by another
person. Kay bisan pa ang cross dili customary signature or not
intended to be his signature, naa man gihapon ang name na
―Antero Mercado‖. It was deemed to be signed on behalf of the
testator by a third person. Pwede na siya.
The problem in this case was if that is the scenario na the will was
signed by some other person, it should be stated in the attestation
clause that the will was signed by another person under the
express direction of the testator. It was not stated in the
attestation clause, so that made the will void.
So in the case of:
PAYAD vs. TOLENTINO
The probate of the will was denied on the ground that the
attestation clause was not in conformity with the requirements of
law in that it is not stated therein that the testatrix caused Atty.
Almario to write her name at her express direction. The evidence
establishes the fact that Leoncia, the decedent, assisted by Atty.
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Almario placed her thumb mark on each and every page of the
questioned will and that said attorney merely wrote her name to
indicate the place where she placed said thumb mark.
HELD: Probate of the will must be allowed. Atty. Almario did not
sign for the testatrix. She signed for placing her thumb mark on
each and every page thereof.
"A statute requiring a will to be 'signed' is satisfied if the signature
is made by the testator's mark." It is clear, therefore, that it was not
necessary that the attestation clause in question should state that
the testatrix requested Attorney Almario to sign her name
inasmuch as the testratrix signed the will in question in accordance
with law.
DISCUSSION: Is it required that it should be stated in the will that
it was signed for him? NO. It is not required because thumbmark
was not signature of the testator.
We have the case of:
JALLORES vs. ENTERINO L- 42463
HELD: It is not essential to state in the attestation clause that the
person delegated by the testator to sign in his behalf did so in the
presence of the testator. It is enough that it be proved in court that
this was what happened.
Aug. 2, 2019 P.2 – E. Du
3rd statement that must be mentioned in the attestation
clause:
The signing by the testator or by the person requested by him
was in the presence of the instrumental witnesses.
(inaudible kay naa nag-ubo huhu)
4th:
That the instrumental witnesses witnessed and signed the will
and all the pages thereof in the presence of the testator and of
one another.
So the fourth refers to the (inaudible kay naa na sad nag-ubo
huhu) of the witnesses.
Note na duha na siya: instrumental witnesses WITNESSED and
SIGNED the will
So these are the 4 statements that must be mentioned in the
attestation clause.
In the case of Abada vs. Abaja the SC said that the attestation
clause should copy the statement mentioned in Article 805, but it
does not have to be a verbatim copy.
Although you can use your own words, but again that’s where the
danger lies because you might forget some of the important terms.
But the SC said here that there was compliance with the
requirements.
From the case of Abada vs. Abaja: Precision in the language in
the drafting of the attestation clause is desirable, however it is not
imperative that a parrot-like copy of the words of the statute be
made. It is sufficient if that from the language employed it can be
reasonably deduced that the attestation clause fulfills what the law
expects of it.
So as long as all the 4 statements as earlier mentioned as present
in the attestation clause. Although my advice is that better na if i-
copy na lang para wala jud malimtan. And in the exam you have to
memorize.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Now let’s go to the other problem in the case of Azuela
(kini tong gipa-drawing si Edsam sa board)
Azuela vs. CA
(with respect to the signing of the attestation clause)
(from the full text of the case):
For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of the
will, they do not appear at the bottom of the attestation clause
which after all consists of their averments before the notary
public.
There is no question that the signatures of the three witnesses
to the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the
witnesses on the left-hand margin.
The petitioner and appellee contends that signatures of the
three witnesses on the left-hand margin conform substantially to
the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures
are in compliance with the legal mandate that the will be signed
on the left-hand margin of all its pages. If an attestation clause
not signed by the three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add such clause to a
will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.
The Court may be more charitably disposed had the witnesses
in this case signed the attestation clause itself, but not the left-
hand margin of the page containing such clause. Without
diminishing the value of the instrumental witnesses’ signatures
on each and every page, the fact must be noted that it is the
attestation clause which contains the utterances reduced into
writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under
Article 805 to state the number of pages used upon which
the will is written; the fact that the testator had signed the
will and every page thereof; and that they witnessed and
signed the will and all the pages thereof in the presence of
the testator and of one another. The only proof in the will
that the witnesses have stated these elemental facts would
be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly
attested to by the instrumental witnesses, as they failed to sign
the attestation clause.
Discussion:
Q: Can we not invoke the principle of substantial compliance?
A: No, ma’am.
Q: Now what if instead of marginal signatures, there were only
signatures at the bottom?
A: The decision would be different. The SC said that will already
serve as a dual purpose which is the identification and attestation
of the will.
So the SC said they would have charitably considered it had that
been the case that the signature was at the bottom as opposed to
just the marginal signatures.
Ma’am’s discussion:
As we have discussed there would be no problem as to the
placement of the marginal signatures if we are talking about
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marginal signatures alone. Because the purpose of marginal
signatures is ONLY FOR IDENTIFICATION and we can identify in
the will if there are signatures regardless of the location.
Hence even if they were signed at the bottom, that will already
serve the purpose of the marginal signatures in addition to
avowing the signatures above.
RULE: THE ATTESTATION CLAUSE SHOULDBE SIGNED AT
THE BOTTOM
Another reason which the SC gave as to why the signature should
be at the bottom is that it would be difficult to insert a belated
attestation clause if the signatures would be at the bottom of the
attestation clause. According to the SC, it would be easy to add
such clause to the will on subsequent occasion and in the absence
of the testator and any or all of the witnesses. Because when you
have an attestation clause, the signing of the same should be
made in the presence of the testator and of the witnesses.
Again with regard to the language, insofar as the language is
concerned in the attestation clause, the witnesses ideally have to
know the language, but if they do not know the language in the
attestation clause, it should be interpreted or explained to them.
Pwede diay na wa sila kasabot sa language, pero pwede man i-
explain. Unlike sa will, THE TESTATOR HAS TO KNOW the
language of the will and no amount of explanation or interpretation
can cure the defect that the will is not in a language or dialect that
is known to the testator.
On the other hand, the testator does not have to know the
language of the attestation clause and the witnesses do not have
to know the language of the will.
The testator: their act is the will
The witnesses: their act is the attestation clause
Let’s go to Article 806
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public shall
not be required to retain a copy of the will, or file another with
the Office of the Clerk of Court.
Now this article says ‘EVERY WILL’ but this does not apply to a
holographic will. So while the law might say ‘every will’ it actually
only applies to a notarial or ordinary will.
There’s no acknowledgement required for a holographic will. Only
the testator participates in the execution of his holographic will.
What is an acknowledgment?
It is a declaration by:
1. The testator that he voluntarily and freely executed
the last will and testament
2. The witnesses that they acknowledge before the
notary public that they voluntarily and freely
executed the attestation clause
So here the notary public courses from the testator and the
witnesses that the testament is their own free act and voluntary
deed.
So mao na siya ang purpose sa acknowledgment.
Let’s discuss this case of Azuela again
Azuela vs. CA
(with respect to the acknowledgment)
(from full text of the case)
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
The requirement under Article 806 that "every will must be
acknowledged before a notary public by the testator and the
witnesses" has also not been complied with. The importance of
this requirement is highlighted by the fact that it had been
segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-
observance of Article 806 in this case is equally as critical as
the other cited flaws in compliance with Article 805, and should
be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y.
Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng
Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.” By no
manner of contemplation can those words be construed as
an acknowledgment. An acknowledgment is the act of one
who has executed a deed in going before some competent
officer or court and declaring it to be his act or deed. It
involves an extra step undertaken whereby the signor actually
declares to the notary that the executor of a document has
attested to the notary that the same is his/her own free act and
deed.
Yet even if we consider what was affixed by the notary public as
a jurat, the will would nonetheless remain invalid, as the
express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to.
The will does not present any textual proof, much less one
under oath, that the decedent and the instrumental
witnesses executed or signed the will as their own free act
or deed. The acknowledgment made in a will provides for
another all-important legal safeguard against spurious wills or
those made beyond the free consent of the testator.
Discussion:
A jurat is actually a statement under the oath. So if there’s a jurat,
meaning it is under oath subscribed and sworn to before a notary
public.
But again acknowledgment is not only the taking or swearing an
oath before a person authorized to administer oaths. It takes an
extra step on the part of the notary public in (coercing?) from the
testator and the witnesses a statement that they voluntarily and
freely executed the document.
Q: So what is missing here in the statement which the alleged
lawyer had written? Which is required in an acknowledgment?
A: That it was freely and voluntarily executed by the testator
regarding the will and the witnesses regarding the attestation
clause. So there was nothing here to indicate that it was voluntarily
and freely executed. The jurat here was not enough.
Q: Can the notary public be also one of the attesting witnesses?
RECAP: in a notarial will we have at least the three attesting
witnesses and then there’s acknowledgment before a notary
public.
What happened in the case of Cruz vs. Villasor
Cruz vs. Villasor
(from the full text of the case)
The notary public before whom the will was acknowledged
cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the will.
To acknowledge before means to avow to own as genuine, to
assent, to admit; and "before" means in front or preceding in
space or ahead of Consequently, if the third witness were the
notary public himself, he would have to avow assent, or admit
his having signed the will in front of himself.
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This cannot be done because he cannot split his personality
into two so that one will appear before the other to acknowledge
his participation in the making of the will. To permit such a
situation to obtain would be sanctioning a sheer absurdity.
To allow the notary public to act as third witness, or one the
attesting and acknowledging witnesses, would have the effect
of having only two attesting witnesses to the will which would be
in contravention of the provisions of Article 806 be requiring at
least three credible witnesses to act as such and of Article 806
which requires that the testator and the required number of
witnesses must appear before the notary public to acknowledge
the will. The result would be, as has been said, that only two
witnesses appeared before the notary public for or that
purpose. In the circumstances, the law would not be duly in
observed
RULE: THE NOTARY PUBLIC CANNOT BE ONE OF THE
SUBSCRIBING WITNESSES
Q: Now what if there are four witnesses and one of them is a
notary public?
A: So you would just be disqualified as a witness, but not as a
notary public. You exclude this notary public as a witness and so
and result there are still 3 witnesses and so you can still comply.
Pero if tulo lang ang witnesses and then one of them is the notary
public, hindi na pwede kay by then you would technically be having
only two witnesses, dili na siya three.
Q: Now is it required that the will must be acknowledged in one
single occasion by the testator and by the witnesses?
A: It is NOT REQUIRED. What is required is that the person
personally appears before the notary public. They can appear one
by one before the notary public (i.e. day 1: the testator appears
first. Day 2: one witness appears. Day 3: another witness appears,
etc.)
So it’s not required that they acknowledge together because what
is important is they should acknowledge the document IN THE
PRESENCE OF THE NOTARY PUBLIC.
Q: Is the notary public required to know the contents of the will?
Should they need to know and understand?
A: NO. not required. In fact diba I said that the testator and the
witnesses pwede nga sila one by one mag-appear. They would
just acknowledge that they signed freely and voluntarily. The
notary public does not even have to read the will (exception to this
is when they are actually required to read the will as provided
under article 808 and hence they are required to know the
contents of the will)
Under the notarial law, you cannot notarize the document if you
are one of the interested parties or if you are related to one of the
parties within the 4th degree of consanguinity or affinity.
Q: How about documentary stamp?
A: It is not required
Gabucan vs. Manta
The issue here is the failure to affix the documentary stamp tax
in the acknowledgement. It is required that documents
acknowledged before a notary public should be affixed with a
doc stamp. Would it affect the will? No. Just affix the Doc
stamp. The will would still be valid.
So if there’s no doc stamp affixed to the will, just affix it, but note
that it is not a fatal defect that will cause the invalidity of the will.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
So remember that a notarial will must be acknowledged before a
notary public, but even if it’s acknowledged it does not become a
public document. (Note: RULE 132 SECTION 19 OF THE RULES
OF COURT)
Rule 132 Section 19
Public documents are:
(b) Documents acknowledge before a notary public except last
wills and testaments
As a consequence of this provision, you cannot demand as a
matter of right a copy of the will.
In fact, under the notarial law, notaries public are required to retain
two copies of the document (one for their file and second to be
submitted to the Clerk of Court).
These documents you can ask for a copy, but not last wills and
testaments.
Echavez vs. Dozen Construction and Dev’t Corp
(from full text of the case):
Even granting that the Acknowledgment embodies what the
attestation clause requires, we are not prepared to hold that an
attestation clause and an acknowledgment can be merged in
one statement.
That the requirements of attestation and acknowledgment
are embodied in two separate provisions of the Civil Code
(Articles 805 and 806, respectively) indicates that the law
contemplates two distinct acts that serve different
purposes. An acknowledgment is made by one executing a
deed, declaring before a competent officer or court that the
deed or act is his own. On the other hand, the attestation of a
will refers to the act of the instrumental witnesses themselves
who certify to the execution of the instrument before them and
to the manner of its execution.
Although the witnesses in the present case acknowledged the
execution of the Deed of Donation Mortis Causa before the
notary public, this is not the avowal the law requires from
the instrumental witnesses to the execution of a
decedent’s will. An attestation must state all the details the
third paragraph of Article 805 requires. In the absence of the
required avowal by the witnesses themselves, no attestation
clause can be deemed embodied in the Acknowledgement of
the Deed of Donation Mortis Causa.
Discussion:
Again, first you cannot merge the attestation clause and the
acknowledgment. Assuming that you can merge, there was no
complete statement as to the requirement of the law insofar as the
attestation clause is concerned, those matters which are required
by Article 805.
So the fact that there are two separate provisions with respect to
the acknowledgment and attestation clause, the SC held that they
should thus be complied with separately.
So remember the importance of acknowledgment.
Aug. 9, 2019 P.1 – Sioson
Article 807. If the testator be deaf, or a deaf-mute, he must be
personally read the will, if able to do so; otherwise, he shall
designate two persons to read it and communicate to him, some
practicable manner, the contents thereof.
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Just like a blind person which we’ve mentioned before, a deaf or a
deaf mute can also execute a last will and testament. Here, we are
talking about a notarial will. The requirement in 807 is he must be
able to read the will, if he cannot do so, he shall designate two
persons.
Q: Who are these two persons? Are they the attesting witnesses?
A: There is no such requirement, it just says two persons to read
the will and communicate to him in some practicable manner the
contents of the will. Practicable manner, may be sign language.
That is if the testator is deaf or deaf-mute.
Q: Do you have to state this to the will itself? That the testator is
deaf or deaf-mute and therefore, the will was read to him by two
persons, or do you have to mention this to the attesting clause?
A: The law does not say so. This can be proved by extrinsic
evidence of evidence aliunde.
Article 808. If the testator is blind, the will shall be read to him
twice, by one of the subscribing witnesses, and again, by the
notary public before whom the will is acknowledged.
Here, the testator is blind, and he executes a notarial will. So, the
law says na there are additional requirements, two readings. We
mentioned before that the notarial public need not know the
contents of the will because even if the will is acknowledged to him
by the testator, the testator merely confirms to him that he
executed the will freely and voluntarily. This is the exception.
There is a requirement that it must be read by one of the
subscribing witnesses, so this is very particular, not just any
person. Second, by the notary public before whom it is
acknowledged. Hence, the notary public will know the contents of
the will because he will read it.
What is important here is: First, how do we know that the testator
is blind? Dapat ba total blindness, he cannot see? Second, if the
testator is blind, what are the additional requirements (which we
already discussed- as stated above).
Garcia v. Vasquez
The eyesight of the testatrix is merely for the viewing of distant
objects and not reading them, so she is farsighted.
Alvarado v. Gaviola
She could only count fingers at three feet.
Makakita sila di ba? But the Supreme Court said that they are
blind, even if they could see. If they could not read the will because
of the condition of their eyes, then they are considered blind.
Maybe some of us here are considered blind na no under Article
808.
Because these people are considered blind na, the requirement of
808 shall be applied.
Garcia v. Vasquez
G.R No. L-26884| April 30, 1970
Facts:
Gliceria Avelino del Rosario died unmarried in the City of Manila
on 2 September 1965, leaving no descendents, ascendants,
brother or sister. At the time of her death, she was said to be 90
years old more or less, and possessed of an estate consisting
mostly of real properties.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Gliceria A. del Rosario, during her lifetime, executed two wills: one
on 9 June 1956 consisting of 12 pages and written in Spanish, a
language that she knew and spoke, witnessed by Messrs. Antonio
Cabrera, Jesus Y. Ayala and Valentin Marquez, and
acknowledged before notary public Jose Ayala; and another dated
29 December 1960, consisting of 1 page and written in Tagalog,
witnessed by Messrs. Vicente Rosales, Francisco Decena, and
Francisco Lopez and acknowledged before notary public Remigio
M. Tividad.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a
niece of the deceased, petitioned the Court of First Instance of
Manila for probate of the alleged last will and testament of Gliceria
A. del Rosario, executed on 29 December 1960, and for her
appointment as special administratrix of the latter’s estate, said to
be valued at about P100,000.00.
The petition was opposed separately by several groups of alleged
heirs. They maintain that on 29 December 1960 the eyesight of
Gliceria del Rosario was so poor and defective that she could not
have read the provisions of the will.
RTC- issued an order admitting to probate the 1960 will of
Gliceria A. del Rosario.
Issue: WON the testatrix is blind under Article 808
Ruling: Yes.
AS TO THE DOCTOR’S TERTIMONY:
We find the declarations in court of Dr. Jesus V. Tamesis very
material and illuminating. Said ophthalmologist, whose expertise
was admitted by both parties, testified, among other things, that
when Doña Gliceria del Rosario saw him for consultation on 11
March 1960 he found her left eye to have cataract (opaque lens),
and that it was "above normal in pressure", denoting a possible
glaucoma, a disease that leads to blindness.
The records also show that although Dr. Tamesis operated of the
left eye of the decedent at the Lourdes Hospital on 8 August 1960;
as of 23 August 1960, inspite of the glasses her vision was only
"counting fingers," at five feet.
The foregoing testimony of the ophthalmologist who treated the
deceased and, therefore, has first hand knowledge of the actual
condition of her eyesight from August, 1960 up to 1963, fully
establish the fact that notwithstanding the operation and removal
of the cataract in her left eye and her being fitted with aphakic lens
(used by cataract patients), her vision remained mainly for viewing
distant objects and not for reading print. Thus, the conclusion is
inescapable that with the condition of her eyesight in August, 1960,
and there is no evidence that it had improved by 29 December
1960, Gliceria del Rosario was incapable f reading, and could not
have read the provisions of the will supposedly signed by her on
29 December 1960. It is worth noting that the instrumental
witnesses stated that she read the instrument "silently" which is a
conclusion and not a fact.
AS TO THE WILL’S APPEARANCE:
Against the background of defective eyesight of the alleged
testatrix, the appearance of the will, Exhibit "D", acquires striking
significance. Upon its face, the testamentary provisions, the
attestation clause and acknowledgment were crammed together
into a single sheet of paper, to much so that the words had to be
written very close on the top, bottom and two sides of the paper,
leaving no margin whatsoever; the word "and" had to be written by
the symbol" &", apparently to save on space. Plainly, the
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testament was not prepared with any regard for the defective
vision of Doña Gliceria. Further, typographical errors like
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso",
"MERCRDRS" for MERCEDES", "instrumental" for "Instrumental",
and "acknowledged" for "acknowledge’’, remained uncorrected,
thereby indicating that execution thereof must have been
characterized by haste. It is difficult to understand that so
important a document containing the final disposition of one’s
worldly possessions should be embodied in an informal and
untidily written instrument; or that the glaring spelling errors should
have escaped her notice if she had actually retained the ability to
read the purported will and had done so. The record is thus
convincing that the supposed testatrix could not have physically
read or understood the alleged testament, Exhibit "D", and that its
admission to probate was erroneous and should be reversed.
That Doña Gliceria should be able to greet her guests on her
birthday, arrange flowers and attend to kitchen tasks shortly prior
to the alleged execution of the testament Exhibit "D", as appears
from the photographs, Exhibits "E" to "E-1", in no way proves; that
she was able to read a closely typed page, since the acts shown
do not require vision at close range. It must be remembered that
with the natural lenses removed, her eyes had lost the power of
adjustment to near vision, the substituted glass lenses being rigid
and uncontrollable by her. Neither is the signing of checks
(Exhibits "G" to "G-3") by her indicative of ability to see at normal
reading distances. Writing or signing of one’s name, when
sufficiently practiced, becomes automatic, so that one need only to
have a rough indication of the place where the signature is to be
affixed in order to be able to write it.
Thus, for all intents and purpose of the rules on probate, the
deceased Gliceria del Rosario was, as appellant oppositors
contend, not unlike a blind testator, and the due execution of her
will would have required observance of the provisions of Article
808 of the Civil Code.
"ART. 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."crala
In connection with the will here in question, there is nothing in the
records to show that the above requisites have been complied
with. Clearly, as already stated, the 1960 will sought to be
probated suffers from infirmity that affects its due execution.
Article 809. In the absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of article 805. (n)
Alvarado v. Gaviola
G.R. No. 74695 September 14, 1993
Facts:
On 5 November 1977, the 79-year old Brigido Alvarado executed a
notarial will entitled "Huling Habilin" wherein he disinherited an
illegitimate son (petitioner) and expressly revoked a previously
executed holographic will at the time awaiting probate.
As testified to by the three instrumental witnesses, the notary
public and by private respondent who were present at the
execution, the testator did not read the final draft of the will himself.
Instead, private respondent, as the lawyer who drafted the eight-
paged document, read the same aloud in the presence of the
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
testator, the three instrumental witnesses and the notary public.
The latter four followed the reading with their own respective
copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted
to probate on 9 December 1977. On the 29th day of the same
month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing
some dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from glaucoma.
But the disinheritance and revocatory clauses were unchanged. As
in the case of the notarial will, the testator did not personally read
the final draft of the codicil. Instead, it was private respondent who
read it aloud in his presence and in the presence of the three
instrumental witnesses (same as those of the notarial will) and the
notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed
upon the testator's death on 3 January 1979 by private respondent
as executor (Atty. Bayani Ma. RIno).
Petitioner (illegitimate child- Cezar), in turn, filed an Opposition on
the following grounds: that the will was executed under duress, or
influence of fear and threats; that it was procured by undue and
improper pressure and influence on the part of the beneficiary who
stands to get the lion's share of the testator's estate; and lastly,
that the signature of the testator was procured by fraud or trick.
RTC- issued the probate order
CA- There was substantial compliance since its purpose of making
known to the testator the contents of the drafted will was served
when both documents were read aloud to the testator with each of
the three instrumental witnesses and the notary public following
the reading with their respective copies of the instruments.
Issue: WON there was substantial compliance with the
requirements in the execution of the will, hence valid
Ruling: Yes
Article 808 requires that in case of testators like Brigido Alvarado,
the will shall be read twice; once, by one of the instrumental
witnesses and, again, by the notary public before whom the will
was acknowledged. The purpose is to make known to the
incapacitated testator the contents of the document before signing
and to give him an opportunity to object if anything is contrary to
his instructions
That Art. 808 was not followed strictly is beyond cavil. Instead of
the notary public and an instrumental witness, it was the lawyer
(private respondent) who drafted the eight-paged will and the five-
paged codicil who read the same aloud to the testator, and read
them only once, not twice as Art. 808 requires.
As to private respondent: (correct)
Private respondent however insists that there was substantial
compliance and that the single reading suffices for purposes of the
law.
As to petitioner:
He maintains that the only valid compliance or compliance to the
letter and since it is admitted that neither the notary public nor an
instrumental witness read the contents of the will and codicil to
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Brigido, probate of the latter's will and codicil should have been
disallowed.
This Court has held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has been
satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds
of fraud and trickery but are never intended to be so rigid and
inflexible as to destroy the testamentary privilege.
In the case at bar, private respondent read the testator's will and
codicil aloud in the presence of the testator, his three instrumental
witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and petitioner
does not so allege, that the contents of the will and codicil were not
sufficiently made known and communicated to the testator. On the
contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth
and authenticity of the contents of the draft. The uncontradicted
testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his
expressed wishes even prior to 5 November 1977 when Atty. Rino
went to the testator's residence precisely for the purpose of
securing his conformity to the draft.
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the
three instrumental witnesses likewise read the will and codicil,
albeit silently. Afterwards, Atty. Nonia de la Pena (the notary
public) and Dr. Crescente O. Evidente (one of the three
instrumental witnesses and the testator's physician) asked the
testator whether the contents of the document were of his own free
will. Brigido answered in the affirmative. 16 With four persons
following the reading word for word with their own copies, it can be
safely concluded that the testator was reasonably assured that
what was read to him (those which he affirmed were in accordance
with his instructions), were the terms actually appearing on the
typewritten documents. This is especially true when we consider
the fact that the three instrumental witnesses were persons known
to the testator, one being his physician (Dr. Evidente) and another
(Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of the
will, the formal imperfections should be brushed aside when they
do not affect its purpose and which, when taken into account, may
only defeat the testator's will.
Abangan v. Abangan, to wit:
The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid the
substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But,
on the other hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the
right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's will, must be
disregarded (emphasis supplied).
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Brigido Alvarado had expressed his last wishes in clear and
unmistakable terms in his "Huling Habilin" and the codicil attached
thereto. We are unwilling to cast these aside fro the mere reason
that a legal requirement intended for his protection was not
followed strictly when such compliance had been rendered
unnecessary by the fact that the purpose of the law, i.e., to make
known to the incapacitated testator the contents of the draft of his
will, had already been accomplished. To reiterate, substantial
compliance suffices where the purpose has been served.
Let’s go back to the case of Garcia v. Vasquez.
Again, she could read distant objects but she couldn’t read prints.
So, the Supreme Court said she is blind under 808. Hence, there
should be compliance with the requirements of two readings.
Q: Was there a compliance with the reading requirement?
A: The court examined the appearance of the will. According to the
Supreme Court, the contents are cramped together in a single
instrument apparently to save space and it was very untidy. There
were also typographical errors. Had she retained the good
conditions of her eyes, she would’ve corrected or detected the
errors.
The SC said, it is very difficult to believe that one would dispose of
all the worldy possessions in such untidy document. Siguro naman
if you execute a last will and testament, hindi sya mukhang scratch
paper. Kulang nalang mukha na syang tissue paper.
If you are to execute a Last Will, siguro naman it is formally done,
no typographical errors. So, based on that condition it became
apparent that the testatrix was not able to read her will. Because
there was no compliance with the reading requirement, the will
was not allowed probate.
Alvarado v. Gaviola:
She could only count fingers at three feet. The SC said, she was
blind.
Q: Was there compliance with the reading requirement? What
happened during the execution of the will?
A: There were two lawyers. Number one, the lawyer who drafted
the will. After finishing the drafting, the lawyer distributed the
copies to the testatrix, the three witnesses, and to the notary public
before whom it is acknowledged.
When they had their own copies, the lawyer who drafted the will,
read the will loudly while the others followed sightedly. After that,
the lawyer who drafted the will, will ask the testatrix if the contents
of the will embodied her last wishes, which she will confirmed
correct. So that was the reading that was conducted.
Q: Was there compliance with Article 808? Is the will valid?
A: Evidently, if you look at the facts there is no literal compliance
with the letters Article 808. Here, it was read aloud by the lawyer
who drafted the will, not the one who notarized the will. But the SC
said, there was compliance. The spirit of the law was served
though the letters was not. Although there should be strict
compliance with substantial requirements of law, in order to ensure
the authenticity of the will the formal imperfections should be set
aside when they do not affect its purpose and when taken into
account they would defeat the testator’s will.
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Here, there was actually substantial compliance because the
attesting witnesses read, not only one, although sightedly. And the
notary public also, he also read the will, although it is the one who
drafted the will who read it out load which also contain the very
same provisions in the copies distributed to the testatrix, to the
witnesses, and notary public. Hence, there was still compliance
with 808.
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.
We already mentioned the principle of substantial compliance.
Based on 809, what defects and imperfections can be
excused?
1. Defects and imperfections in the form of the attestation
2. Defects and imperfections in the language used in the
attestation
Authorities say na for Article 809 to apply, these requisites must
be present:
1. There are defects and imperfections in the form of the
attestation clause or in the language used therein;
2. Absence of bad faith, perjury, or fraud, or undue
improper pressure and influence;
3. The will was executed and attested in substantial
compliance with all the requirements; and
4. The fact of such execution and attestation is proved.
If you are able to memorize these four requisites, will you now be
able to know whether substantial compliance will apply? I don’t
think so, because it is very vague. What kind of defects and
imperfections can be excused on the ground of substantial
compliance.
Caneda v. CA:
We already discussed before, Justice Reyes said, “The law does
not seem to distinguish what kind of evidence may be used to cure
a defect or imperfection in the attestation clause. (Hence, it will
seem that we can use intrinsic or extrinsic evidence.) However, if
we arrive at that conclusion, then just any defect in the attestation
clause can be cured. Because you can always say this is curable,
then present intrinsic evidence. If there is none in the will, then
extrinsic. Practically, every defect can be cured.
Now, in the case of Canega, the SC said that if the rule is so broad
that no matter how imperfect the attestation clause happens to be,
the same can be cured by evidence aliunde or extrinsic evidence,
the attestation would be of no value if it be protected against fraud
or really defective execution.
Caneda v. CA
G.R. No. 103554| May 28, 1993
Facts:
On December 5, 1978, Mateo Caballero, a widower
without any children and already in the twilight years of his life,
executed a last will and testament before three attesting
witnesses. The said testator was duly assisted by his lawyer, Atty.
Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will. It was declared therein, among other
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
things, that the testator was leaving by way of legacies and
devises his real and personal properties to Presentacion Gaviola,
Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G.
Cabrera and Marcosa Alcantara, all of whom do not appear to be
related to the testator.
Four months later, Mateo Caballero himself filed a petition seeking
the probate of his last will and testament. However, the testator
passed away before his petition could finally be heard by the
probate court.
Thereafter, herein petitioners, claiming to be nephews and nieces
of the testator, instituted a second petition, entitled "In the Matter
of the Intestate Estate of Mateo Caballero". Benoni Cabrera, on of
the legatees named in the will, sough his appointment as special
administrator of the testator's estate and he was so appointed by
the probate court in its order. However, due to his death, he was
substituted by William Cabrera.
Petitioners’ Contention:
Petitioners, claiming to be nephews and nieces of the testator,
appeared as oppositors and objected to the allowance of the
testator's will on the ground that on the alleged date of its
execution, the testator was already in the poor state of health such
that he could not have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of the signature
of the testator therein.
They asserted therein that the will in question is null and void for
the reason that its attestation clause is fatally defective since it fails
to specifically state that the instrumental witnesses to the will
witnessed the testator signing the will in their presence and that
they also signed the will and all the pages thereof in the presence
of the testator and of one another.
RTC- allowed the probate of the will
CA- affirming that of the trial court, and ruling that the attestation
clause in the last will of Mateo Caballero substantially complies
with Article 805 of the Civil Code
Issue: Whether the attestation clause in question may be
considered as having substantially complied with the requirements
of Art. 805 of the Civil Code.
Ruling: No.
An attestation clause refers to that part of an ordinary will whereby
the attesting witnesses certify that the instrument has been
executed before them and to the manner of the execution the
same. It is a separate memorandum or record of the facts
surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with the
essential formalities required by law has been observed. It is made
for the purpose of preserving in a permanent form a record of the
facts that attended the execution of a particular will, so that in case
of failure of the memory of the attesting witnesses, or other
casualty, such facts may still be proved.
Under the third paragraph of Article 805, such a clause, the
complete lack of which would result in the invalidity of the will,
should state (1) the number of the pages used upon which the will
is written; (2) that the testator signed, or expressly caused another
to sign, the will and every page thereof in the presence of the
attesting witnesses; and (3) that the attesting witnesses witnessed
the signing by the testator of the will and all its
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pages, and that said witnesses also signed the will and every page
thereof in the presence of the testator and of one another.
An examination of the last will and testament of Mateo Caballero
shows that it is comprised of three sheets all of which have been
numbered correlatively, with the left margin of each page thereof
bearing the respective signatures of the testator and the three
attesting witnesses. The part of the will containing the
testamentary dispositions is expressed in the Cebuano-Visayan
dialect and is signed at the foot thereof by the testator. The
attestation clause in question, on the other hand, is recited in the
English language and is likewise signed at the end thereof by the
three attesting witnesses hereto.
It will be noted that Article 805 requires that the witness should
both attest and subscribe to the will in the presence of the testator
and of one another. "Attestation" and "subscription" differ in
meaning. Attestation is the act of senses, while subscription is the
act of the hand. The former is mental, the latter mechanical, and to
attest a will is to know that it was published as such, and to certify
the facts required to constitute an actual and legal publication; but
to subscribe a paper published as a will is only to write on the
same paper the names of the witnesses, for the sole purpose of
identification.
It is contended by petitioners that the aforequoted attestation
clause, in contravention of the express requirements of the third
paragraph of Article 805 of the Civil Code for attestation clauses,
fails to specifically state the fact that the attesting witnesses
the testator sign the will and all its pages in their presence
and that they, the witnesses, likewise signed the will and
every page thereof in the presence of the testator and of each
other. We agree.
What is fairly apparent upon a careful reading of the attestation
clause herein assailed is the fact that while it recites that the
testator indeed signed the will and all its pages in the presence of
the three attesting witnesses and states as well the number of
pages that were used, the same does not expressly state
therein the circumstance that said witnesses subscribed their
respective signatures to the will in the presence of the
testator and of each other.
The phrase "and he has signed the same and every page thereof,
on the spaces provided for his signature and on the left hand
margin," obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words "as his Last
Will and Testament." On the other hand, although the words "in the
presence of the testator and in the presence of each and all of us"
may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to the
testator signing in the presence of the witnesses since said phrase
immediately follows the words "he has signed the same and every
page thereof, on the spaces provided for his signature and on the
left hand margin." What is then clearly lacking, in the final
logical analysis , is the statement that the witnesses signed
the will and every page thereof in the presence of the testator
and of one another.
It is our considered view that the absence of that statement
required by law is a fatal defect or imperfection which must
necessarily result in the disallowance of the will that is here sought
to be admitted to probate. Petitioners are correct in pointing out
that the aforestated defect in the attestation clause obviously
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
cannot be characterized as merely involving the form of the
will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated
in the pertinent provision thereon in the Civil Code, to wit:
Art. 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 not proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of article 805"
While it may be true that the attestation clause is indeed
subscribed at the end thereof and at the left margin of each page
by the three attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said witness affixed
their respective signatures in the presence of the testator and
of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it
was indeed signed, but it does not prove that the attesting
witnesses did subscribe to the will in the presence of the
testator and of each other.
Abada v. Abaja: The SC also reiterated this guideline. “The so-
called liberal rule does not offer any puzzle or difficulty nor does it
open the door to serious consequences. The later decisions do tell
us when and where to stop. They draw the dividing line precision.
They do not allow evidence aliunde or extrinsic evidence to fill a
void in any part of the document or supply missing details that
should appear in the will itself. They only permit a probe into the
will, and exploration within its confines to ascertain its meaning
and determine the existence or absence of the requisite formalities
of the law. This clear sharp limitation eliminates uncertainty and
ought to banish any fear dire result.”
Rule: In short, if the defect or imperfection can be cured by
intrinsic evidence, then that be excused on the ground of
substantial compliance. If in the defect or imperfection you
need to resort to evidence aliunde, then that defect or
imperfection can no longer be excused.
In this case of Abada, the only issue is WON there was a
statement in the attestation clause saying that the witnesses
attested and subscribed the will in the presence of the testator,
and each one of them. It was actually in Spanish, but as stated in
English it says: It is to witness, everyone of us also sign in our
presence and in the presence of the testator.
Q: How do you interpret that? How do you understand that
statement?
A: The SC said that actually satisfies the requirement of the law,
that the witnesses signed and attested the will in the presence of
the testator and of each and everyone of them. Again, precision of
language is not really required. The SC said na you don’t have to
make a parrot type copy of the provisions of Article 805. You don’t
have to cite the provision verbatim, you can use your own words.
Although it is very dangerous to use your own words because you
might forget some very important terms. But again, applying the
rule of substantial compliance, if at the end if it says the same
thing it will be accepted. So here, the SC said na it actually shows
that the attesting witnesses witnessed the signing of the will of the
testator, and in the presence of each and everyone of them.
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Although in practice, I suggest na you just copy the provisions of
the law, you have your books naman.
Cagro v. Cagro:
This was reiterated in the case of Azuela v. CA. Remember the
case where the page contained only that of the attestation clause
and the witnesses signed only the left-hand margin but not at the
bottom. The SC said that this will is not void because that defect in
the attestation clause, it lacked the signatures. It is considered as
unsigned attestation clause. (Huh?)
Q: How about the signatures on the left-hand margin?
A: The SC said that it is directed wholly different. You cannot use
that marginal signatures as the attesting signatures. That cannot
be cured by substantial compliance. The SC already explained that
the reason why you place your signature at the bottom is to avow
or adopt the recitals in the attestation clause. If there are only
signatures in the margins, you cannot ask the witnesses kung
anong purpose, there is an explanation needed. So, that is
evidence aliunde.
2016 TSN:
Cagro v. Cagro: When the witnesses signed in the margins of the
attestation clause but not in the bottom. How can we explain that
the witnesses did not sign at the bottom and that they really
intended their signatures in the left margins to be their signatures
also in the attestation clause? We have to ask the witnesses and
that would be again extrinsic evidence. So that cannot be allowed
under the rule on substantial compliance or liberal construction.
Taboada v. Rosal: The attestation clause did not state the total
number of pages used in the will. So, there is a defect in the
attestation clause. But in the acknowledgement portion, there is a
mention that the will consists of two pages including the
acknowledgement. That statement in the acknowledgement is an
intrinsic evidence that can be used to cure the omission in the
attestation clause. Hence, the principle of substantial compliance
will apply in that case.
Villaflor v. Tobias: In the first page, there was only the
testamentary disposition and the signature of the testator, and
even if there is still a big space, the attestation clause was written
on another page. The SC said, its curable under the principle of
substantial compliance. Number one, the signature of the testator
does not have to be at the physical end, it only has to be at the
logical end of the will. And besides there is still the attestation
clause although it is on the next page already, but still there is still
an attestation clause.
Caneda v. CA: This was the statement, “The will consists of three
pages and he has signed the same and every page thereof on the
spaces provided before his signature, and on the left-hand margin
in the presence of the testator, and in the presence of each and all
of us.”
Q: Is this attestation clause sufficient under 805? If you analize this
paragraph it only speaks of the testator’s signing, that he signed
on the left hand margin in the presence of the said testator and in
the presence of each and all of us. It merely refers to the signing
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
by the person directed by the testator. There is nothing here as to
the signing of the witnesses in the presence of the testator and in
the presence of each and every one of them.
If that is the case, can you cure that? How do you cure that, if the
attestation clause did not mention anything about the signing of the
witnesses or even if there is a mention as to the signing of the
witnesses, but no mention that it was signed in the presence of the
testator and to each and one of them?
You cannot just present the witness during the probate
proceedings and let him explain. Were you present when the
witnesses signed the will? Did you also sign the will in the
presence of the testator?
A: That is no longer allowed because that is in the nature of an
extrinsic evidence. So, ang only evidence allowed to prove that the
will was attested and subscribed in the presence of the testator
and each and every one of the witnesses is the statement in the
attestation clause. Here, that is not curable. Article 809 cannot be
applied.
Whether it is a defect in the form, or in the substance as long as it
can be cured by intrinsic evidence, then that can be excused on
the ground of substantial compliance.
HOLOGRAPHIC WILLS
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.
In the Philippines, there are only two kinds of wills. One is the
ordinary or notarial will, and then we have the holographic or
holograph will.
We already discussed Articles 804-809 referred to notarial wills.
Articles 804 (also), 810- 814 referred to holographic wills.
Compared to notarial wills, holographic wills are easier to make
because the only requirement under the law is it should be written,
dated, and signed in the hands of the testator. You don’t need
attestation clause, witnesses, or acknowledgement. In fact right
now, you can execute your holographic will, during our break time.
These are the advantages of holographic wills:
1. It is easier to make.
You don’t need those other formalities. You need only
paper and ballpen. Of course, you need soundness of
mind.
2. It is easier to revise.
If you forgot something, you can easily add. If you want
to insert, or alter, you can do so. Unlike in notarial wills,
you’re already done with your notarial will, you signed it,
then have it notarized. What if you wanted to give 10M to
your helper and you weren’t able to put that in your
notarial will, what happens if you just add that after your
signature? The notarial will is void.
We don’t just exclude that certain provision, everything
becomes null and void because now we are no longer in
compliance with the forms required by law. The law says,
the signature should be at the logical end. So, if there are
additional provisions after the signature, the signature
becomes in the middle. Again, it is a matter of form or
formalities.
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In holographic wills, we can alter, we can insert. So, it is
easier.
3. It is easier to keep secret.
The only person who is present during the execution is
the testator himself.
Disadvantages of Holographic Wills:
1. It is easier to forge.
We don’t know whether or not it is really the testator who
made his will, unlike notarial wills na there are witnesses
and notary public.
2. It is easier to misunderstand because the testator
might have been faulty in expressing his last wishes.
Wala naman syang lawyer na kasama, sya lang naman.
Maybe he uses terms na akala nya okay, pero mali
naman pala ang meaning.
3. No guarantee that there is no vitiated consent during
the execution of the will or that he was of sound
mind during the execution.
For the same reason na there are no witnesses.
History of Holographic Wills:
Before the New Civil Code, we have the Spanish Civil Code,
before August 7, 1901. During that time, holographic wills are
allowed. Then, August 7, 1901, Code of Civil Procedure/ Act 190
was adopted. At this time, holographic wills were not allowed.
Then, we have the effectivity of the New Civil Code on August 30,
1950. Holographic wills were then allowed.
Q: Why do we need to know the history?
A: If we go back to Article 795, the extrinsic validity of the will is
governed by the law in force at the time of the execution of the will.
Example: Last will and testament dated 1940, it is a holographic.
Then it is not valid. That is why in holographic wills, the date is
very important.
Aug. 9, 2019 P.2 – Alba
REQUISITES OF HOLOGRAPHIC WILLS
1. It must be in writing;
2. Executed in the dialect known to the testator;
3. It must be entirely written by the testator;
4. It must be dated by him;
5. It must be signed by him;
6. There must be animus testandi.
WRITTEN
Here, it has to be HANDWRITTEN. In holographic wills,
everything must be written in the hand writing of the testator.
Example:
Q: Any portion of the will is not in the handwriting of the testator.
What is the effect?
A: It’s not only that portion that is not valid, but everything. The
entire holographic will is null and void, because as provided in the
requisites, EVERYTHING MUST BE ENTIRELY WRITTEN BY
THE TESTATOR.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
So everything must be in the handwriting of the testator. It doesn’t
matter if ang pagkasulat kay cursive or dili, as long as it is
handwritten by the testator.
Q: How about kung walay hand si testator? What if tiil or mouth
lang iyang ginagamit for writing? Will the will still be valid?
A: As long as it is the writing of the testator. By analogy, it is still
his stroke. Foot written or mouth written (lol) by the testator.
Q: Can the testator entrust or delegate to a third person the
mechanical act of drafting his holographic will?
A: NO. Again, it must be handwritten by the testator himself.
Although, in notarial wills, you can delegate as long as the
contents of the will are those of the testator.
Q: What if we have a holographic will which is entirely
handwritten? So written, dated and signed by the testator. And
then there is an attestation clause and it is TYPEWRITTEN. What
is the effect insofar as the will is concerned? Is the will valid?
A: NO, because it is no longer entirely handwritten by the testator.
Take note, do we need an attestation clause in a holographic will?
NO. So this attestation clause is a mere surplasage in a
holographic will.
As long as the provisions of the will are entirely handwritten by
the testator and without taking into account the attestation clause,
the will in itself is already valid. We just disregard the attestation
clause (handwritten, mere surplasage).
SIGNATURE
Q: What signature is allowed or required in a holographic will?
A: The law says, it should be the full signature of the testator.
Q: What do we mean by the full signature of the testator?
Example:
The law says full signature. So if his name is Juan Dela Cruz, he
should sign ― Juan Dela Cruz.
Q: What if he customarily signs, ― JD Cruz? Would that be
allowed?
A: Yes, as long as it‘s his full customary signature.
Q: What if his customary signature are all initials – JDC?
A: In that case, not allowed. Because initials are very easy to
forge.
GENERAL RULE: Full signature of the testator.
XPN: Even if it is not full signature but it is customary signature,
that would be allowed.
XPN TO THE XPN: Even if that is his customary signature but that
is all initials, not allowed.
Q: Is thumbmark allowed in holographic wills as signature?
A: NO, because it is not the handwriting of the testator. Stamp also
is not allowed, and cross.
Q: Where should the signature in a holographic will be located?
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A: If you read Art. 812, it should be at the end, after the
testamentary dispositions.
Note: Unlike in a notarial will, you can still add some more
dispositions after the signature of the testator in a
holographic will.
DATE
Date is one of the major parts in a holographic will. Written, dated
and signed in the hands of the testator. So this is very important.
Now if you recall our discussion on notarial wills-
Q: Is date important in a notarial will? What happens if the
notarial will is not dated?
A: The date is not important in a notarial will. Even if the date is not
mentioned in the will, it can still be proved by extrinsic
evidence, because we can easily determine the date, we have
the witnesses and the notary public. They can testify on the date
when the will was executed.
In holographic wills, however, it is only the testator who
executes (in secret) his holographic will. So how do we know
when did the testator execute the last will and testament?
Note: Without the date in a holographic will, it is void. And it
must be in the handwriting of the testator.
Q: What are the reasons why date is important in holographic
wills?
A:
1. To provide against contingencies as that of two
competing wills executed on the same day or on
different dates.
Example:
Provided in the last will and testament:
“I institute X as my sole heir to my entire estate.” signed
by Testator. (not dated)
And there’s another one
“I hereby institute Y as my sole heir to my entire estate.”
Signed by testator. (not dated)
Q: What is the nature of these wills? Can they be reconciled?
A: They cannot be, because one says to X the entire estate, and
another one says to Y, the entire estate. So meaning isa lang gyud
ang iyahang recipient. So they cannot be reconciled.
Q: If this is the case, which of the two wills shall be given effect? Is
it the one given to X or to Y?
A: Under the law on revocation, if there are two wills which are
completely incompatible with each other, the later will is
deemed to have revoked the earlier one.
Q: So which is the earlier one?
A: We do not know, because there are no dates. That’s why the
date is very important.
2. To determine the mental condition of the testator at
the time he made the will.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
We have a testator na sometimes okay siya, sometimes dili ,
although naa siyay lucid interval. So that person can still execute a
last will and testatment, provided he made the will during a lucid
interval.
Q: If the will is not dated, how do we know that the will was made
during a lucid interval?
A: Again that’s the reason why we need a date.
3. As we have discussed, there was a point in history
where holographic wills were not allowed.
Naa pa bay tao karun na possibly nagbuhat ug last will before the
effectivity of NCC? 1949? 18 years old ka in 1949, you can already
execute a last will and testament.
So we have here a person who executed a last will and testament
tapos yellow na kaayo iyahang papel. Walay date (holographic
will). Patay na siya.
Q: How do we know when he executed the will?
A: Possibile before August 30, 1950. Or 1951. So again, that’s the
reason why we need the date in a holographic will.
Now going back to the date.
Q: How should the date be written?
A: Ideally, it should indicate the DAY/MONTH/YEAR.
A: Or it can be BY IMPILCATION
 Christmas of 2019
 Valentine’s day of 2019
 My birthday in year 2019
By this, you can determine. Kanus-a ba ang Christmas? Naa pa
bay laing date ang Christmas? December 25.
How about Valentine’s? Ang uban muingon, “everyday is
Valentine’s day” – so February 14. So you can determine the date.
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G.
DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R.
ROXAS & PEDRO ROXAS DE JESUS,
vs.
ANDRES R. DE JESUS, JR.,
Digest by: Jessalyn Puerin
FACTS:
After the death of spouses Andres G. de Jesus and Bibiana Roxas
de Jesus, Special Proceeding entitled "In the Matter of the
Intestate Estate of Andres G. de Jesus and Bibiana Roxas de
Jesus" was filed by petitioner Simeon R. Roxas, the brother of the
deceased Bibiana Roxas de Jesus.
Petitioner Simeon R. Roxas was appointed administrator. After
Letters of Administration had been granted to the petitioner, he
delivered to the lower court a document purporting to be the
holographic Will of the deceased Bibiana Roxas de Jesus.
On May 26, 1973, respondent Judge Jose Colayco set the hearing
of the probate of the holographic Will on July 21, 1973. Petitioner
Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased
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Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof,
a letter-will addressed to her children and entirely written and
signed in the handwriting of the deceased Bibiana R. de Jesus
was found. The will is dated "FEB./61 " and states: "This is my will
which I want to be respected although it is not written by a lawyer.
...
The testimony of Simeon R. Roxas was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus
who likewise testified that the letter dated "FEB./61 " is the
holographic Will of their deceased mother, Bibiana R. de Jesus.
Both recognized the handwriting of their mother and positively
identified her signature. They further testified that their deceased
mother understood English, the language in which the holographic
Will is written, and that the date "FEB./61 " was the date when said
Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an
"opposition to probate" assailing the purported holographic Will of
Bibiana R. de Jesus because a it was not executed in accordance
with law, (b) it was executed through force, intimidation and/or
under duress, undue influence and improper pressure, and (c) the
alleged testatrix acted by mistake and/or did not intend, nor could
have intended the said Will to be her last Will and testament at the
time of its execution.
Respondent Judge Jose C. Colayco issued an order allowing the
probate of the holographic Will which he found to have been duly
executed in accordance with law. Respondent Judge Colayco
reconsidered his earlier order and disallowed the probate of the
holographic Will on the ground that the word "dated" has generally
been held to include the month, day, and year.
A motion for reconsideration was then filed by Luz assailing that
the alleged holographic will was not dated as required by Article
810 of the Civil Code and contending that the law requires that the
Will should contain the day, month and year of its execution and
that this should be strictly complied with. The court then
reconsidered its earlier order and disallowed the probate of the
holographic will on the ground that the word “dated” has generally
been held to include the month, day, and year.
PETITIONERS’ CONTENTIONS:
The petitioners contend that while Article 685 of the Spanish Civil
Code and Article 688 of the Old Civil Code require the testator to
state in his holographic Win the "year, month, and day of its
execution," the present Civil Code omitted the phrase Año mes y
dia and simply requires that the holographic Will should be dated.
The petitioners submit that the liberal construction of the
holographic Will should prevail.
RESPONDENT’S CONTENTIONS:
Respondent Luz Henson on the other hand submits that the
purported holographic Will is void for non-compliance with Article
810 of the New Civil Code in that the date must contain the year,
month, and day of its execution. The respondent contends that
Article 810 of the Civil Code was patterned after Section 1277 of
the California Code and Section 1588 of the Louisiana Code
whose Supreme Courts had consistently ruled that the required
date includes the year, month, and day, and that if any of these is
wanting, the holographic Will is invalid. The respondent further
contends that the petitioner cannot plead liberal construction of
Article 810 of the Civil Code because statutes prescribing the
formalities to be observed in the execution of holographic Wills are
strictly construed.
ISSUE: Whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code?
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
RULING: YES. The Holographic Will of the deceased is VALID.
Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made in
or out of the Philippines, and need not be witnessed.
This will not be the first time that this Court departs from a
strict and literal application of the statutory requirements
regarding the due execution of Wills. We should not overlook
the liberal trend of the Civil Code in the manner of execution
of Wills, the purpose of which, in case of doubt is to prevent
intestacy —
The underlying and fundamental objectives permeating the
provisions of the law on wigs 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 sufficien 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 modem tendency with
respect to the formalities in the execution of wills. (Report of
the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of
Raymundo Castro v. Bustos (27 SCRA 327) he emphasized
that:
... The law has a tender regard for the will of the testator
expressed in his last will and testament on the ground that any
disposition made by the testator is better than that which the law
can make. For this reason, intestate succession is nothing more
than a disposition based upon the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal
requirements in order to guard against fraud and bad faith but
without undue or unnecessary curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been
executed in substantial compliance with the formalities of the law,
and the possibility of bad faith and fraud in the exercise thereof is
obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record
are to be considered in the application of any given rule. If the
surrounding circumstances point to a regular execution of the wilt
and the instrument appears to have been executed substantially in
accordance with the requirements of the law, the inclination
should, in the absence of any suggestion of bad faith, forgery or
fraud, lean towards its admission to probate, although the
document may suffer from some imperfection of language, or other
non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with
all the requisites, although compliance is not literal, it is
sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the
form followed by the testator.
The purpose of the solemnities surrounding the execution of
Wills has been expounded by this Court in Abangan v. Abanga
40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid substitution
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of wills and testaments and to guaranty their truth and authenticity.
...
In particular, a complete date is required to provide against such
contingencies as that of two competing Wills executed on the
same day, or of a testator becoming insane on the day on which a
Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no
such contingency in this case.
We have carefully reviewed the records of this case and found
no evidence of bad faith and fraud in its execution nor was
there any substitution of Wins and Testaments. There is no
question that the holographic Will of the deceased Bibiana
Roxas de Jesus was entirely written, dated, and signed by the
testatrix herself and in a language known to her. There is also
no question as to its genuineness and due execution. All the
children of the testatrix agree on the genuineness of the
holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will.
The objection interposed by the oppositor-respondent Luz
Henson is that the holographic Will is fatally defective
because the date "FEB./61 " appearing on the holographic
Will is not sufficient compliance with Article 810 of the Civil
Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should
include the day, month, and year of its execution. However,
when as in the case at bar, there is no appearance of fraud,
bad faith, undue influence and pressure and the authenticity
of the Will is established and the only issue is whether or not
the date "FEB./61" appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of
substantial compliance.
Discussion:
Although in the case of ROXAS vs DE JESUS
In this case, the date was FEB.’61. So there’s a month and a year,
but there’s no day.
Q: Is the will valid?
A: Yes.
Now if you notice, there’s actually no danger in this case that the
will might have been executed at that day when the testator was
not sane, because the mental condition of the testator in this case
was not in question.
It would have been different kung naa siyay periods. Even in a
month, you cannot say na for the entire duration of February he
was sane.
So kung for the entire duration of February naa kay lucid interval
ug naa kay moment na dili okay, so ang DAY mag matter.
However, in this case the mental condition of the testator was not
in question.
Second, there’s only one will here. So whether or not there was
revocation it was also not in issue.
And definitely the will here was made during the effectivity of the
NCC. It was already in 1961. That’s why the will here is allowed.
Although again in practice, kung ing-ani gihapon ang mahitabo
tapos isa sa mga questions kay mental conditions sa testator,
definitely the DAY would really matter, because here even the
DAY itself must be indicated.
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
As to the LOCATION OF THE DATE
 The law does not specify. So it can be at the bottom or at
the top, beside the signature of the testator or body of the
will, as long is there is date.
DY YIENG SEANGIO, et. al., vs. HON. AMOR A. REYES
G.R. Nos. 140371-72, November 27, 2006
Digested by: Erven John Claros
Digest by: Claros
Facts:
Private respondents (other Seangios) filed a petition for
the settlement of the intestate estate of the late Segundo Seangio
before the Regional Trial Court of Manila. Petitioners opposed
contending that Segundo left a holographic will disinheriting one of
the private respondents, Alfredo Seangio, for cause, thus, the
intestate proceedings are to be automatically suspended and
replaced by the proceedings for the probate of the will.
A petition for the probate of the holographic will of
Segundo was subsequently filed by petitioners before the RTC.
Private respondents moved for its dismissal on the ground that the
document purporting to be the holographic will of Segundo does
not contain any disposition of the estate of the deceased and thus
does not meet the definition of a will under Article 783 of the Civil
Code as the will only shows an alleged act of disinheritance and
nothing else.
Petitioners filed their opposition to the motion to dismiss
contending that disinheritance constitutes a disposition of the
estate of a decedent and that the rule on preterition does not apply
because Segundo’s will does not constitute a universal heir or
heirs to the exclusion of one or more compulsory heirs.
The RTC issued its order dismissing the petition for
probate proceedings as the will clearly shows that there is
preterition since the other heirs were omitted, Article 854 of the
New Civil Code thus applies. Petitioner filed for motion for
reconsideration but was denied.
Issue: WON the will executed is a holographic will / WON the will is
valid. – YES
Ruling:
Segundo’s document, although it may initially come across as a
mere disinheritance instrument, conforms to the formalities of a
holographic will prescribed by law.
It is written, dated and signed by the hand of Segundo himself. An
intent to dispose mortis causa can be clearly deduced from the
terms of the instrument, and while it does not make an affirmative
disposition of the latter’s property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other words, the
disinheritance results in the disposition of the property of the
testator Segundo in favor of those who would succeed in the
absence of Alfredo.
Holographic wills, therefore, should be construed in a manner
where the circumstances surrounding the execution of the
instrument and the intention of the testator should be taken into
account. Considering that the questioned document is Segundo’s
holographic will, and that the law favors testacy over intestacy, the
probate of the will cannot be dispensed with. It is settled that
testate proceedings for the settlement of the estate of the
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decedent take precedence over intestate proceedings for the same
purpose.
TSN: The document, although it may initially come across as a
mere disinheritance instrument, conforms to the formalities of a
holographic will prescribed by law. It is written, dated and signed
by the hand of the testator himself. An intent to dispose mortis
causa(Article 783) can be clearly deduced from the terms of the
instrument, and while it does not make an affirmative disposition of
the latter’s property, the disinheritance of the son nonetheless, is
an act of disposition in itself. In other words, the disinheritance
results in the disposition of the property of the testator in favor of
those who would succeed in the absence of the eldest son.
Discussion:
I would just go directly to the discussion on how to interpret a
holographic will. Because here what was made, it was entitled
“Kasulatan sa pag-aalis ng mana”
SO here it was handwritten by the testator, it was dated and it was
signed by him.
We already discussed before:
Q: Is a document containing only a disinheritance of will. Diba one
of the essential elements is that it must contain a disposition of
property. So is this considered a will?
A: The SC said, YES. An intent to dispose mortis causa can be
clearly deduced from the terms of the instrument, and while it
does not make an affirmative disposition of the latter’s
property, the disinheritance of Alfredo, nonetheless, is an act
of disposition in itself. In other words, the disinheritance results
in the disposition of the property of the testator Segundo in favor of
those who would succeed in the absence of Alfredo (disinherited
heir).
A disposition of property can be:
 direct or
 indirect.
Note: Disinheritance is an indirect disposition of property.
Now here because it is a holographic will, then It should conform to
the provisions on holographic wills.
Q: How are holographic wills interpreted?
A: As to the interpretation, the holographic wills, therefore,
being usually prepared by one who is not learned in the law,
as illustrated in the present case, should be construed more
liberally than the ones drawn by an expert, taking into account
the circumstances surrounding the execution of the instrument and
the intention of the testator.
Note: So mas strict ang interpretation sa notarial wills compared to
holographic wills.
Art. 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.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
This talks about probate of holographic wills. You will also discuss
this in you special proceedings, however it must be emphasized
that when it comes to holographic wills specially as to its probate,
this is a matter of substantive law, because this is actually
provided in the NCC (Art. 811).
There’s nothing here in the NCC about probate of notarial wills,
although it is in the Rules of Court.
Q: When you say probate of notarial wills?
A: It is procedural.
Q: When you say probate of holographic wills?
A: It is substantive.
PROBATE DEFINED
Q: What do we mean by probate?
A: It is a special proceeding intended to determine the
genuineness and due execution of the will.
If a person executes a will, it has to be probated. Meaning, there
must be a petition filed in court, and the court will determine if the
will was duly executed by the testator.
 If it was the last will and testament made by the testator;
 If he was of sound mind and of legal age at the time of
execution of the will
So unlike a deed of sale, or a deed of donation, diba when the
seller executes a DOS in favor of the buyer, and then they sign, it’s
already acknowledged before the notary public, so that is also
equivalent to a transfer of ownership on the part of the buyer.
But unlike in a last will and testament, even if the will is already
signed by the testator and is already acknowledged before the
notary public, and then the testator died, by operation of law, the
properties, rights and obligations are transmitted to the heirs.
So the transmission here happens upon death, however if there is
a will, we cannot yet say na it’s already transferred.
The will has to be probated first. You cannot use an unprobated
will as a foundation and derive, even if you are designated as a
devisee in the will and the testator already died, you cannot say na
“Okay, give me that land already”, because again for all we know,
that will is a forgery, or the testator was forced to execute that will.
But once the will is already probated, your rights will be
determined starting from the death of the testator. Not from
the date of probate but from the time of death.
Q: What is the requirement?
If the holographic will is uncontested the minimum requirement is
ONE WITNESS.
 A witness who can explicitly declare that the
signature in the will is of the testator.
 One who is familiar of the signature of the
testator.
 Or one, for example, na at the time gibuhat ang
will kay naa pud siya sa tapad ni testator, then
he can also testify that he saw na gi signan ni
testator ang will.
Now going back to the case of Maravilla vs Maravilla.
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IN NOTARIAL WILLS
The case involves a notarial will, and there is a witness who
during the probate of the will testified, and then he was asked, is
this your signature? He was able to identify his signature. How
about this? Whose signature is this (testator)? He could not
possibly identify the signature of the testator. But what he testify
was that during the execution of the will, the testator and all of
them witnesses are seated next to each other around the table.
The Supreme Court said that that is already sufficient, because in
notarial wills, we do not require that the witnesses explicitly
declare that the signature is that of the testator, what we need
is a witness who will testify that he attested and subscribed the will
in the presence of the testator and each and every one of them
and the testator also subscribed the will in the presence of the
witnesses.
Note: In the presence ang requirement.
And it was satisfied when he testified na he and the testator and
the other witnesses are seated next to each other around the
table, so it was in the presence.
IN HOLOGRAPHIC WILLS
So that same situation if we are talking of a holographic will, it will
no longer apply. Because what is required in a holographic
will, is that the witness must really testify and must identify
explicitly that this is the signature of the testator.
Q: The other important provision here is, what if the will is
contested?
A: The law says, if the will is contested atleast 3 of such witnesses
shall be presented.
AZAOLA VS. SINGSON
Digest by : Vicco
The probate was denied on the ground that under Art. 811 of the
Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are in the writing of the
testatrix, the probate being contested; and because the lone
witness presented by the proponent "did not prove sufficiently that
the body of the will was written in the handwriting of the testatrix.”
Azaola contends that Art. 811 does not mandatorily require the
production of 3 witnesses to identify the handwriting and signature
of a holographic will, even if its authenticity should be denied by
the adverse party.
ISSUE: Should Azaola have presented more than 1 witness?
HELD: NO.
Art. 811 of the CC is merely directory and not mandatory. Azaola
was not required to produce more than 1 witness since the will’s
authenticity was not contested. But even if the genuineness of the
holographic will were contested, art. 811 cannot be interpreted as
to require the compulsory presentation of 3 witnesses to identify
the handwriting of the testator, under penalty of having the probate
denied. Since no witness may have been present at the
execution of a holographic will, none being required by law
(Art. 810, new Civil Code), it becomes obvious that the
existence of witness possessing the requisite qualifications is
a matter beyond the control of the proponent.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
For it is not merely a question of finding and producing any three
witnesses; they must be witnesses "who know the handwriting and
signature of the testator" and who can declare (truthfully, of
course, even if the law does not so express) "that the will and the
signature are in the handwriting of the testator". There may be no
available witness of the testator's hand; or even if so familiarized,
the witnesses may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of Article 811 may thus
become an impossibility.
The law foresees the possibility that no qualified witness may
be found. That is evidently the reason why the second paragraph
of Article 811 prescribes that — in the absence of any competent
witness referred to in the preceding paragraph, and if the court
deems it necessary, expert testimony may be resorted to. The
requirement can be considered mandatory only in case of ordinary
testaments, because the presence of at least 3 witnesses is
required in the execution thereof. Whereas in the execution of the
holographic wills, no witness need be present. The rule requiring
production of 3 witnesses must be deemed merely permissive if
absurd results are to be avoided.
Art. 811, the resort to expert witness is conditioned by the
word “if the court deem it necessary” which reveal that what
the law deems essential is that the court should be convinced
of the will’s authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by their
testimony that the will is genuine, it may consider it unnecessary to
call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the
Court may still, and in fact it should, resort to handwriting experts.
The duty of the Court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that
the true intention of the testator be carried into effect. And because
the law leaves it to the trial court if experts are still needed, no
unfavourable inference can be drawn from a party's failure to offer
expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Note: With respect to holographic wills, according to this case, it is
not just a matter of presenting 3 witnesses but witnesses with
requisite qualifications — which is sometimes beyond the control
of the proponents of the will because there are no witnesses
around when he executes the will. How can we now be sure that
the will was really voluntarily executed by the testator when you
don’t really require the 3 witnesses? If the court is not convinced
that the will is authentic, it may resort to handwriting experts. The
duty of the Court, in fine, is to exhaust all available lines of inquiry,
for the state is as much interested as the proponent that the true
intention of the testator be carried into effect. SC said in this case
that Art. 811 is not mandatory. It is difficult to find these kinds of
witnesses. In the absence of these 3 witnesses, the court may
resort to expert testimony. The court may also make its own
determination.
Discussion:
In this case, what are the issues?
1. The execution of the will was procured with undue and
improper pressure and influence (vitiated consent).
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2. There was no animus testandi, because the testatrix
allegedly did not seriously intended that the instrument to
be the last will and testament.
So mao ni sila ang duha ka questions, there was an opposition
and it was contested.
But here there was only ONE WITNESS presented.
Q: IS IT MANDATORY TO PRESENT THREE WITNESSES WHO
CAN EXPLICITLY DECLARE THAT THE WILL AND THE
SIGNATURE, ARE IN THE HANDWRITING OF THE TESTATOR,
IF THE WILL IS CONTESTED?
A: In this case, the SC said NO. It is not a requirement. Since the
authenticity of the will was not contested, he was not required
to produce more than one witness; but even if the
genuineness of the holographic will were contested, we are of
the opinion that Article 811 of our present Civil Code cannot
be interpreted as to require the compulsory presentation of
three witnesses to identify the handwriting of the testator,
under penalty of having the probate denied.
Q: Dili daw siya mandatory, why?
A: Because in the execution of holographic wills, in the first place,
no witnesses are required. So it is very difficult if not
impossible to procure witnesses who can explicitly declare
that the will and signature are in the handwriting of the
testator. More so if to require 3 witnesses. They are not just
witnesses but witnesses of the requisite qualification.
Q: If cannot produce 3 witnesses?
A: The SC said if we cannot produce 3 witnesses then under the
second paragraph of Art. 811, expert testimony may also be
resorted to. So it is not mandatory.
Note: It is only mandatory in notarial wills.
CODOY v. CALUGAY 312 SCRA 333 (1999)
Digest by : Vicco
Respondents devisees and legatees of the holographic will of
Matilde Seo Vda de Ramonal filed a petition for probate of the
holographic will of the deceased .The petition was opposed on the
ground that the holographic will was a forgery and that the same is
even illegible. It gives an impression that a 3rd hand of an
interested party other than the true hand of Matilde executed the
holographic will.
rated or appearing on the will after
every disposition is out of the ordinary
at the bottom after the dispositions, as regularly done and not after
every disposition.
holographic will is in the handwriting of the
deceased, it was procured by undue and improper pressure and
influence on the part of the beneficiaries, or through fraud or
trickery.
Respondents presented 6 witnesses and various documentary
evidence.
Is Art. 811 mandatory or permissive?
HELD: BASED ON THE LANGUAGE USED, ART. 811 IS
MANDATORY. The word “shall” connotes a mandatory order. We
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
have ruled that shall in a statute commonly denotes an imperative
obligation and is inconsistent with the idea of discretion and that
the presumption is that the word shall, when used in a statute is
mandatory. Laws are enacted to achieve a goal intended and to
guide against an evil or mischief that aims to prevent. In the case
at bar, the goal to achieve is to give effect to the wishes of the
deceased and the evil to be prevented is the possibility that
unscrupulous individuals who for their benefit will employ means to
defeat the wishes of the testator.The paramount consideration in
the present petition is to determine the true intent of the deceased.
An exhaustive and objective consideration of the evidence is
imperative to establish the true intent of the testator.
THE CASE IS REMANDED TO THE TRIAL COURT FOR THE
PRESENTATION OF MORE EVIDENCE.
Note: SC said here that Art. 811 is mandatory. They took into
account the facts of the case. They just cannot close their eyes to
the fact that the will appeared to be written by a third person. If you
will be asked if it is mandatory to present 3 witnesses, of course,
the later case to cite is the case of Codoy vs. Calugay. Art. 811 is
mandatory. Especially if the facts are the same.
But if the facts are exactly the same as Azaola vs. Singson, then
you should cite that. If you want to top the bar exam, you can also
say that “but in the case of Codoy…” That would be your possible
answer. Although when you practice, of course it depends on the
situation of your client. If the testator made a holographic will and
he only has 1 witness, then you can cite the Azaola case. If you
are for the oppositors, and you know that the proponents can’t
present 3 witnesses, then cite Codoy. Actually, in real life, you can
always argue.
Discussion:
In this case, there was a question as to the genuineness of the
holographic will. It was noticed that in the will in seemed like a
third hand participated in the writing of the will. The strokes in the
will are different from the strokes in the other writings of made by
the testator during her lifetime. And there were traces of hesitation.
So here the SC again was confronted on whether or not there is a
requirement to present 3 witnesses.
Here the opposition was dealing on the genuineness and
authenticity of the holographic will.
The SC said, we are convinced, based on the language used, that
Article 811 of the Civil Code is mandatory. The word "shall"
connotes a mandatory order. We have ruled that "shall" in a
statute commonly denotes an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is
that the word "shall," when used in a statute is mandatory.
And also, the SC said that if the will is contested, we cannot
eliminate the possibility of a false document, that is why if the will
is contested 3 witnesses as a minimum must be presented.
Here the SC mentioned the appearance of the will and the fact that
at the time of the death of the testator, it was not even found within
her personal belongings. So the SC was really doubtful.
As compared in the case of Azaola vs Singson, the SC mentioned
in this case that the authenticity of the will is not in question, but
even if the genuineness of the will is in question still it is not
mandatory. But in reality that is just a theoretical discussion,
because in the first place, there was really no question as to the
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authenticity of the will unlike in the case of Codoy vs Calugay, na it
was really a question.
So if ang question is, IS THERE A NEED TO PRESENT
ATLEAST 3 WITNESSES IF THE WILL IS CONTESTED? If that’s
the only question you can cite the 2 cases, but if nakalimot namo
do not forget the case of Codoy vs Calugay because this is the
more recent case compared to the case of Azaola.
Another important question here:
Q: When do we know that the will is contested? Because the law
says, if the probate of the holographic will is contested, then that is
the time that you need to present atleast 3 witnesses.
Let’s discuss the case of Rivera vs IAC
JOSE RIVERA vs. INTERMEDIATE APPELLATE COURT and
ADELAIDO J. RIVERA
FACTS: Was there only one Venancio Rivera in Mabalacat,
Pampanga, or were there two? (two)
Venancio Rivera was a prominent and wealthy resident of
Mabalacat, Pampanga who died on May 30, 1975.
Jose Rivera, claiming to be the only surviving legitimate son of the
deceased, filed a petition for the issuance of letters of
administration over Venancio's estate.
This was opposed by Adelaido Rivera, who denied that Jose was
the son of the decedent. Adelaido averred that Venancio was his
father and did not die intestate but in fact left two holographic wills.
Adelaido J. Rivera also filed with the RTC of Angeles a petition for
the probate of the holographic wills. This petition was in turn
opposed by Jose Rivera, who reiterated that he was the sole heir
of Venancio's intestate estate. The two cases were consolidated.
Jose claims that Venancio was married to his mother Maria Vital
and insists that Adelaido and his brothers and sisters were
illegitimate children sired by Venancio with Maria Jocson.
RTC and CA favored Adelaido.
ISSUE 1: Whether or not Jose was the son of the same Venancio
Rivera. No, he was a son of a different Venancio Rivera.
ISSUE 2: Whether or not there was a necessity of presenting 3
witnesses required under Article 811. No.
HELD:
SC held that Venancio Rivera who married Maria Jocson in 1942
was not the same person who married Maria Vital, Jose's
legitimate mother, in 1928.
Jose belonged to a humbler family which had no relation
whatsoever with the family of Venancio Rivera and Maria Vital.
This was more prosperous and prominent. Except for the curious
Identity of names of the head of each, there is no evidence linking
the two families or showing that the deceased Venancio Rivera
was the head of both.
For the holographic wills. The respondent court considered
them valid because it found them to have been written, dated and
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
signed by the testator himself in accordance with Article 810 of the
Civil Code. It also held there was no necessity of presenting
the three witnesses required under Article 811 because the
authenticity of the wills had not been questioned.
The existence and therefore also the authenticity of the
holographic wills were questioned by Jose Rivera. In both
proceedings, Jose Rivera opposed the holographic wills submitted
by Adelaido Rivera and claimed that they were spurious.
Consequently, it may be argued, the respondent court should have
applied Article 811 of the Civil Code, providing as follows:
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.
The flaw in this argument is that, as we have already determined,
Jose Rivera is not the son of the deceased Venancio Rivera
whose estate is in question. Hence, being a mere stranger, he
had no personality to contest the wills and his opposition thereto
did not have the legal effect of requiring the three witnesses. The
testimony of Zenaida and Venancio Rivera, Jr., who authenticated
the wills as having been written and signed by their father, was
sufficient.
Discussion:
Here there was a petition for probate of the will of the late
Venancio Rivera, and it was filed by Adelaida Rivera. And then
there was an opposition filed by Jose Rivera, he alleged that he
was the illegitimate son of the testator.
He had several grounds of his opposition, but the point here is that
the SC said, Jose Rivera was not the son of the late Venancio
Rivera, although he was claiming to be the son of the late
Venancio Rivera but actually based on the evidence presented, he
was referring to another Venancio Rivera, and not the same
Venancio Rivera who was the decedent and the testator.
So the SC said, being a stranger Jose Rivera has no personality to
intervene in the probate proceedings, because again you cannot
just intervene if you don’t have an interest or you are just a mere
stranger.
Here, in probate proceedings also, you can file a petition for the
probate of the will or you can oppose the probate of the will only if
you have legal personality to intervene, or you are an interested
party.
So not being an interested party or having a legal personality to
oppose technically the will was not contested.
Note: Not being contested in a legal sense, there is actually
no need to present 3 witnesses.
Dili lang diay buot pasabot nga naay opposition, it is already
contested.
It has to be an opposition which is made by one who is a proper
party, having a legal personality to intervene in the probate
proceedings.
*Maam discusses Best Evidence Rule*
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Under the Best Evidence Rule diba? If the subject inquiry is the
content of a written document, no evidence is allowed other than
the original of the document itself.
So as a general rule, you shall only present the ORIGINAL.
Unless, you can lay the basis for the presentation of secondary
evidence or photocopies.
The same thing in wills:
GR: You should present the original, whether it is a notarial will or
a holographic will.
What if the original cannot be presented? So it is lost or
destroyed? The under the best evidence rule, you can present
secondary evidence or photocopies, carbon copies, photo static
copies – secondary evidences.
In probate of wills (holographic or notarial), kung photocopy lang
imong gipresent like in the case of Rodelas vs Aranza
IN THE MATTER OF THE PETITION TO APPROVE THE WILL
OF RICARDO B. BONILLA
FACTS: On January 11, 1977, appellant filed a petition for the
probate of the holographic will of Ricardo B. Bonilla and the
issuance of letters testamentary in her favor. The petition was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla
Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following
grounds:
(1) Appellant was estopped from claiming that the deceased left a
will by failing to produce the will within twenty days of the death of
the testator as required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain
a disposition of property after death and was not intended to take
effect after death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy
thereof, must be produced, otherwise it would produce no effect,
as held in Gam v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise,
executed and attested as required by law.
ISSUE: Whether a holographic will which was lost or cannot be
found can be proved by means of a photostatic copy.
HELD: Yes. A photostatic copy or xerox copy of the holographic
will may be allowed because comparison can be made with the
standard writings of the testator. Pursuant to Article 811 of the Civil
Code, probate of holographic wills is the allowance of the will by
the court after its due execution has been proved. If the
holographic will has been lost or destroyed and no other copy is
available, the will cannot be probated because the best and only
evidence is the handwriting of the testator in said will. It is
necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will.
Even a mimeographed or carbon copy; or by other similar means,
if any, whereby the authenticity of the handwriting of the deceased
may be exhibited and tested before the probate court," Evidently,
the photostatic or xerox copy of the lost or destroyed holographic
will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate
court.
WHEREFORE, the order of the lower court dated October 3, 1979,
denying appellant's motion for reconsideration dated August 9,
1979, of the Order dated July 23, 1979, dismissing her petition to
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
approve the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.
Discussion:
The SC said you can present a photocopy or a carbon copy or
photo static copy of the will.
The court said, if the holographic will has been lost or destroyed
and no other copy is available, the will cannot be probated
because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison
between sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be
made with the standard writings of the testator.
In the case of GAGO VS MAMUYAC, when what you present is
just a photocopy kay again general rule, original, but if you were
able to lay the basis for the presentation of secondary or
substitutionary evidence, pwede ang photocopy.
But if you are presenting a copy, you must also prove that the
original was lost or destroyed not because it was revoked by the
testator. Kay possible man na in revocation, there are several
copies of the will but he wants to revoke the will, and then he tore
or burned the original copy of the will.
So in this situation, even if he did not destroy the copies, he only
burn the original – there is already revocation. Because an act
directed against the original is also affecting the rest of the copies
of the will.
So again in this case, if photocopy lang ang imong ipresent, you
have to prove nga wala ang original because it was lost or
destroyed, but not because it was revoked. Kay kung narevoke
na diay ang original, we cannot probate the photocopies.
Q: How about if there is no copy at all?
Example: I hereby institute X as sole heir to my entire estate,
signed testator. Mao lang ni ang naka provide sa iyang will and
then nawala. Wala najud copy na nabilin at all.
Q: Can this will be allowed probate? When you go to your special
proceedings, if in notarial wills, possible gihapon as long as the
contents of the will can be proved by a recital of the witnesses. So
kung naay maka testify kay naa man sya photographic memory
kay na memorize niya ang contents sa will, he can testify.
Q: How about in a holographic will?
In the case of Gan vs Yap 104 PHIL 509 *not assigned* *for
second exam case*
Without the copy of the holographic will, the will cannot be allowed
probate. Because in holographic wills, the best and only safeguard
as to the genuineness and due execution of the will is the will itself.
In the probate of the holographic will, to determine the
genuineness and due execution of the will and the authenticity of
the handwriting, the court must make a comparison, it will
compare the writings in the will with the other documents
purportedly executed or written by the testator in his lifetime.
So if there is no copy at all presented, how can the court or any
expert witness for that matter make a comparison? Dili siya
possible, you cannot say na the witness can testify as to the
handwriting? He cannot testify as to the stroke.
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Therefore, without the copy of the will even if the will was really
executed, it cannot be allowed probate. Again we are talking here
about holographic wills.
In notarial wills, you can because again there are witnesses. And
the strokes or handwriting are not significant in a notarial will.
Aug. 19, 2019 P.1 - Puerin
Art. 812. In holographic wills, the dispositions of the testator
written below his signature must be dated and signed by him in
order to make them valid as testamentary dispositions. (n)
Okay. In Holographic wills, are we allowed to add some provisions
after the signature of the testator?
A: It is very clear in Article 812 that it is allowed. Additional
provisions after the signature can be added. The requirement is:
these additional provisions must be dated and signed by the
testator. So, if the additional provision is not dated or is not signed,
then it is not valid.
However, we also have Article 813 which will at least vary the
tenor in Article 812.
Before going to that in notarial wills, can you add additional
provisions after the signature? As we have discussed before, NO.
Because the law says that the signature must be at the logical end.
So, if there are additional provisions after the signature of the
testator in the notarial will, what is the effect? The entire will is void
because the form is not in accordance with Article 805.
In so far as holographic will as in concern, so again, you can.
That is why as what we have discussed, that is one advantage of
holographic will. It is easier to revise because if you want to add
you can; whereas, in notarial will, how can you add if you really
want to give 1million to your helper and it is not in your notarial
will? What will you do? You can execute a codicil or a new will-
so that is the procedure. But it is difficult because you have to
make another will or a codicil.
So in relation to Article 812:
Art. 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
disposition has a signature and a date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions. (n)
What is the effect if there is additional provisions pero signed lang
and not dated but the last disposition has a signature and a date?
This last one validates all the preceding dispositions. Take note, it
must be signed even it is not dated. Because if it is dated but not
signed, it is not in accordance with Article 813, you disregard them.
When do we consider that the disposition as having a date?
It is important to know kung kanus-a ni siya like for
example under a rule on after-acquired properties under Article
793- di ba the legacy and devise includes only properties exist at
the time of the execution of the will. So kung kani, what is the area
for example the extent of the property. Because the disposition is
without date, this will be considered to have been made as of the
date of last disposition. Because this is without date, they will be
considered to have been made as of the date of his last
disposition.
For example, these additional provisions are written by a
third person. So the testator made a holographic will, he signed
and dated the will. So here the additional provisions are written by
a third person, not by a testator.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
What is the effect of these additional provisions in a holographic
will which are written by the third person, would that make the will
void or shall disregard these additional provisions?
Take note ha nga ang holographic will everything must be written,
dated, and signed in the hands of the testator.
So what is the effect?
It depends. For example, there is an attempt on the part
of the testator to adopt these additional provisions like he signed
them, so when he signed them-meaning he is adopting these
additional provisions. Because by affixing his signature, there is
now an intent on the testator‘s part to adopt the new portions as
part of his will. Now, it will violate Article 810. It is no longer entirely
in the hands of the testator because there is something there
which is not in his handwriting.
What is the effect?
We invalidate the entire will. We just don’t disregard the
additional provisions, but entirely the will is invalidated. So here,
the entire will becomes void.
But for example these additional provisions are not adopted by the
testator. Then, we just disregard these additional provisions,
consider them as not written.
Why? Because it is very easy to invalidate the will if we considered
the handwriting of a third person even if without the consent of the
testator. For example, ang iyahang isa ka nephew nagexpect siya
na tagaan siya ug property, then Nakita niya wala lagi ko apil diri,
so nasuko siya, so gibutang niya “I hereby give 1 million to my
most handsome and favorite nephew X”.
Here, you can easily invalidate the will of the testator, if we
consider that it is no longer valid because it is not entirely in the
handwriting of the testator, by the simple expedient of writing over
the will of the testator. Just disregard those additional provisions
which are not adopted by the testator. So, the holographic will still
be valid. That would be Article 813.
Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will, the testator must authenticate the
same by his full signature. (n)
So, can you make insertions, cancellations, erasures or alterations
in a holographic will? Yes, obviously under Article 814 which we
cannot do it if it is a notarial will.
This is different under Article 812 because Article 812 refers to
additional provisions after the signature.
We are referring here to those will in the body of the holographic
will that is why the law merely requires authentication and the full
signature of the testator. There is no need to put a date to the
insertions, cancellations, erasures or alterations in a holographic
will. They are consider dated as of the date of the will. So for
example in a will the testator said ”I hereby give all my properties
to , A, B, and C” and then he wants to add D- so A, B, C, and D.
That insertion should be authenticated by the full signature of the
testator. When you say full signature that is the same as what we
have discussed before. It should be his full signature kanang full
name signature. If he does not use his full name, then his full
customary signature of the testator as long as the full customary
signatures are not mere initials. Because if it is a holographic will it
is very easy to forge the initials. So the same concept of signature.
So if it is insertion, you have to authenticate that. Cancellations: “I
hereby give my properties to A, B, C” and then you cancel the
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name of B, that has to be authenticated. So that is the
requirement.
What if the insertion, cancellation, erasure or alteration is not
authenticated? What is the effect?
As if there is no insertion, cancellation, erasure or alteration. We
just apply the will as originally written without those insertion, etc..
So that is the general rule. However, there are exceptions.
There are TWO EXCEPTIONS:
1. Kalaw vs Relova
ROSA K. KALAW
vs.
HON. JUDGE BENJAMIN RELOVA
FACTS: On September 1, 1971, private respondent Gregorio K.
Kalaw, claiming to be the sole heir of his deceased sister,
Natividad K. Kalaw, filed a petition for probate of her holographic
will executed on December 24, 1968.
The holographic will, as first written, named Rosa K. Kalaw, a
sister of the testatrix as her sole heir. Hence, petitioner Rosa K.
Kalaw opposed probate alleging that the holographic will contained
alterations, corrections, insertions without the proper
authentication by the full signature of the testatrix as required by
Article 814 of the Civil Code.
Rosa‘s position was that the holographic will, as first written,
should be given effect and probated so that she could be the sole
heir.
The trial court denied probate. The court adjudged based on the
NBI report that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same person. It
was the handwriting of the decedent. However, since the
alterations and/or insertions or additions were not authenticated by
the full signature of the testatrix based on Article 814 of the Civil
Code, the court denied the will to be probated.
Gregorio moved for reconsideration but the same was denied.
Hence, Rosa filed a petition for review on certiorari.
ISSUE: Whether or not the original unaltered text after subsequent
alterations and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be
probated or not, with her as sole heir.
HELD:
NO. Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic will have not
been noted under his signature, the will is not thereby invalidated
as a whole, but at most only as respects the particular words
erased, corrected or interlined.
However, when as in this case, the holographic will in dispute had
only one substantial provision, which was altered by substituting
the original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator,
the effect must be that the entire will is voided or revoked for
nothing remains in the will after that which could remain valid. To
state that the will as first written should be given efficacy is to
disregard the seeming change of mind of the testatrix. But that
change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full
signature.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
Petition dismissed. Assailed decision affirmed.
What happened here?
The testratix Natividad Kalaw executed a last will and testament.
She instituted Rosa Kalaw as the sole heir to her entire estate.
And then later on she cancelled the name os Rosa and inserted
the name of the brother Gregorio Kalaw. Cancellations and
insertions are not authenticated by the testratix. And then she died.
So now the will is presented for probate.
And question here is: between Rosa, an heir instituted, and
Gregorio, the one whose name is later on inserted. Who is entitled
to the estate of the testratix?
Now according to Rosa, the insertion of the name of Gregorio is
not valid. Why? Because it is not authenticated under Article 814 –
again, it has to be authenticated by the full signature of the
testator. Is that correct na ang name ni Gregorio, because it was
not authenticated ang insertion, he is not entitled? Yes, that is
correct because Article 814, there should be authentication. So,
Rosa is now saying “therefore, also the cancellation of my name
which was not authenticated, it is not valid. Therefore, applying the
general rule it is as if my name is not cancelled and the will should
be given effect as originally written which instituted her as the
whole heir of the testatrix. Is that correct?
Now, the Supreme Court said na it is not correct. Because here
there was only one substantial provision of the will. It only contains
the institution of an heir. So in that institution of heir was cancelled
by the testator, if it is a change of mind of the testator and it would
not be proper to still give effect to that original institution when
again there is already a change of mind on the part of the testator.
When that one provision of the will is cancelled, nothing in the
original will remained. So in that case none, neither Rosa nor
Gregorio. There will be intestacy. So that will be the distribution of
the property.
If you analyze it, although this was not mentioned by the Supreme
Court in the case, there is really an underlying reason here why
the cancellation in the name of Rosa even if it was not
authenticated, it gives an effect of invalidating the entire will. Kay
kung mofollow ta sa general rule, when the cancellation is not
authenticated it is as if no cancellation. So si Rosa gihapon ang
entitled. Now, when we go to revocation, that would be in
subsequent articles. There are three modes of revocation. And one
of them is Revocation by overt acts- the over acts are burning,
tearing, cancelling, obliterating. So Cancellation is an overt act
coupled with intent to revoke that will produce the revocation.
Under the law on revocation, when you cancel, unlike in
cancellation under Article 814 that you need authentication, what is
needed is the act and the intent to revoke. When you have those
two, the will or the institution is revoked.
If we apply the above rule to this Kalaw case, did the testatrix have
a change of mind? Yes, because she replaced the name of Rosa
with Gregorio-meaning there was animus revocandi or intent to
revoke. Was there an overt act? Yes, there was cancellation.
Therefore, even if the cancellation was not authenticated because
there was an intent to revoke. It gave effect to the intention of the
testatrix to cancel, to revoke the institution of Rosa. That would be
the better explanation. If you really want to analyze why- nganong
dili man nato iapply ang general rule? Because it is equivalent to
revocation here- the act of cancellation.
2. The other exception is the case of AUJERO VS COURT OF
APPEALS
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AUJERO vs CA
236 SCRA 488
G.R. No. 106720; September 15, 1994
FACTS:
The holographic will of Annie San was submitted for probate.
Private respondent opposed the petition on the grounds that:
neither the testament’s body nor the signature therein was in
decedent’s handwriting; it contained alterations and corrections
which were not duly signed by decedent; and, the will was
procured by petitioners through improper pressure and undue
influence.
The petition was also contested by Dr. Ajero with respect to
the disposition in the will of a house and lot. He claimed that said
property could not be conveyed by decedent in its entirety, as she
was not its sole owner.
However, the trial court still admitted the decedent’s holographic
will to probate.
The trial court held that since it must decide only the question of
the identity of the will, its due execution and the testamentary
capacity of the testatrix, it finds no reason for the disallowance of
the will for its failure to comply with the formalities prescribed by
law nor for lack of testamentary capacity of the testatrix.
On appeal, the CA reversed said Decision holding that the
decedent did not comply with Articles 313 and 314 of the NCC. It
found that certain dispositions in the will were either unsigned or
undated, or signed by not dated. It also found that the
erasures, alterations and cancellations made had not
been authenticated by decedent.
ISSUE:
Whether the CA erred in holding that Articles 813 and 814 of the
NCC were not complied with. YES
HELD:
YES. A reading of Article 813 shows that its requirement affects
the validity of the dispositions contained in the holographic will, but
not its probate. If the testator fails to sign and date some of
the dispositions, the result is that these dispositions cannot be
effectuated. Such failure, however, does not render the whole
testament void.
Likewise, a holographic will can still be admitted to probate
notwithstanding non-compliance with the provisions of Article 814.
Unless the authenticated alterations, cancellations or insertions
were made on the date of the holographic will or on testator’s
signature, their presence does not invalidate the will itself. The lack
of authentication will only result in disallowance of such changes.
It is also proper to note that he requirements of authentication of
changes and signing and dating of dispositions appear in
provisions (Article 813 and 814) separate from that which provides
for the necessary conditions for the validity of the holographic will
(Article 810).
This separation and distinction adds support to the interpretation
that only the requirements of Article 810 of the NCC – and not
those found in Articles 813 and 814 – are essential to the probate
of a holographic will.
Section 9, Rule 76 of the Rules of Court and Article 839 of the Civil
Code enumerate the grounds for disallowance of wills. These lists
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
are exclusive; no other grounds can serve to disallow a will.
In a petition to admit a holographic will, the only issues to be
resolved are:
1.whether the instrument submitted is, indeed, the decedent’s last
will and testament;
2.whether said will was executed in accordance with the formalities
prescribed by law;
3.whether the decedent had the necessary testamentary capacity
at the time the will was executed; and
4.whether the execution of the will and its signing were the
voluntary acts of the decedent.
The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud; accordingly, laws on
this subject should be interpreted to attain these primordial ends.
In the case of holographic wills, what assures authenticity is the
requirement that they be totally authographic or handwritten by the
testator himself. Failure to strictly observe other formalities will no
result in the disallowance of a holographic will that is
unquestionable handwritten by the testator.
In this particular case, this not really the issue or the controversy
ang exception. It is just the discussion made by the Supreme Court
that if the authenticated alterations, cancellations or insertions
were made on the date of the holographic will or on testator’s
signature, this will also invalidate the entire will.
Authorities would say na, this is because the signature and the
date in a holographic will go into the very heart of the will. So when
you make cancellation, insertion, etc. on these parts of the
holographic will, the entire will is cancelled. So mao ni siya ang
exact wordings the Supreme Court,” Unless the authenticated
alterations, cancellations or insertions were made on the date of
the holographic will or on testator’s signature, their presence does
not invalidate the will itself.” So meaning unauthorized insertions,
cancellations will not invalidate the will unless made on the
signature and on a date of a holographic will.
So we already discussed Article 815, Article 816, and Article 817
when we discussed the extrinsic validity of the will and the intrinsic
validity of the will. So we will now proceed to Article 818.
Art. 815. When a Filipino is in a foreign country, he is authorized to
make a will in any of the forms established by the law of the
country in which he may be. Such will may be probated in the
Philippines. (n)
Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the
place in which he resides, or according to the formalities observed
in his country, or in conformity with those which this Code
prescribes. (n)
Art. 817. A will made in the Philippines by a citizen or subject of
another country, which is executed in accordance with the law of
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the country of which he is a citizen or subject, and which might be
proved and allowed by the law of his own country, shall have the
same effect as if executed according to the laws of the Philippines.
(n)
Article 818. JOINT WILLS.
Art. 818. Two or more persons cannot make a will jointly, or in the
same instrument, either for their reciprocal benefit or for the benefit
of a third person.
Under Article 818, two or more persons, so meaning could be two,
three, or four and so on, and so forth, you cannot make a will
jointly.
Examples:
1) So we have here, ―Last Will and Testament,‖ then the
testamentary provisions, and then at the last part is signed by X
and Y. So that is a joint will. They have a joint testamentary
disposition and jointly signed by them. The reasons why a joint will
is not allowed because it is difficult to probate the will; it would be
difficult for the testator to revoke the will. Kay kung joint will siya
tapos gigisa na niya na dili lang mana iyahang will but also the will
of another person. What is joint will is that is jointly executed by
two or more persons. Whatever you do you cannot separate the
will of A and B because if you cut, maputol na. so dili jud siya
pwede iseparate because they are jointly executed by the two or
more testators.
2) Now, what if there‘s a ―Last Will and Testament,‖ then the
testamentary provisions, and then signed by X; and then on the
same paper, another ―Last Will and Testament,‖ then the
testamentary provisions, and then signed by Y. Is that a joint will?
Isa lang ka-papel. Is that a joint will? NO. Nagtipid lang jud silang
duha ug papel. Kay basin nastranded sila sa island unya gusto
maghimo ug last will unya naa isa ka papel. So you can just cut
this into two, A naa ra imo will or B naa ra imo will. So this actually
not a joint will. It‘s not a joint will because it‘s not jointly executed
and signed by them. Pagkahuman ug sulat ni X, pwede na man
guntingon, then give to X his will, and give to Y his will. Actually,
the dangers anticipated by the prohibition on joint wills are not
present in this case. Because again, we can just separate the two
wills.
But in the first example (refer to No. 1), there‘s no way of
separating because the provisions are joint. It‘s really a joint will.
As defined, a joint will is one where the same testamentary
instrument is made of two or more persons as jointly executed and
signed by them.
Is a mutual or reciprocal or twin will valid? is it equivalent to a joint
will? When you say mutual or reciprocal or twin will we are
referring to wills which are reciprocal in their provisions. As
defined, mutual or reciprocal wills are the separate wills of two
persons which are reciprocal in their provisions giving the separate
property of each testator to the other. They are executed with the
common intention on the part of the testators irrespective of
whether there is a contract between them. Although the
contractual element is applicable. So his will says “I hereby give all
my properties to B”. And then in B’s will also say “I hereby give all
my properties to A”. What they have is mutual or reciprocal or twin
wills- they have reciprocal provisions. Mura bag nagexchange gift
silang duha. They are not void. There are no prohibition against
mutual or reciprocal wills. They will only be void if:
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
1. They are embodied in one document which make them a
joint will. Like A and B execute jointly a last will and
testament. So in that same will, A to B, B to A. That will is
void, not because it is a mutual or reciprocal or twin will
but because it is in the form of a joint will.
2. Another example they have separate wills so A made his
own will and he said “I will give to B all of my properties
provided that B would also give to A all of his properties”.
the same thing with B saying “I will give to A all of my
properties provided that A would also give to B all of his
properties”. They are not joint wills because they are
embodied in two separate papers or documents. But they
are what we call in the nature of DISPOSITION
CAPTATORIA which we will discuss when we go to
legacy. That is not valid because as we discussed
before, one of the essential elements and characteristics
of a will is that it should be unilateral- meaning there is
only one person who participates in the execution of the
will and it is not conditioned upon the approval of another
person as opposed to bilateral disposition wherein there
are two persons and they give something to each other
like a contract di ba. Wills are not contracts. So that
would be prohibited because it is in the nature of
DISPOSITION CAPTATORIA.
What if you have one sheet of paper, sa first page last will and
testament signed by A, sa second page last will and testament
signed by B, is that a joint will? Is it jointly executed by A and B?
NO.
You can separate the first page from the second page-iphotocopy
lang na ninyo ang second page. So dili na siya joint wills. That will
is still valid.
Remember that mutual/reciprocal/twin wills are valid for as
long as:
1) They are not made jointly, so they do not partake the
form of joint wills;
2) They do not constitute disposition captatoria.
What is the reason why joint wills are not allowed?
1) It destroys the character of the will as a strictly
personal act. Because di ba if you make a will you
cannot delegate that to another person. It is
supposed to be confidential. So when you have a
joint will, duha jud mo nagsabot “unsaon nato ni
pagplastar sa ato last will and testament”.
2) It tends to convert the will into a contract.
Because chances when two or more persons would
execute a joint will, it is either sweet kayo sila duha
na gusto jud nila “we do things together” or siguro
naa sila agreement that is why they make a joint will.
So when that is the case, chances are naa sila
conditions which would require the approval of the
others. So it tends to convert a will into a contract.
3) It runs counter to the idea that wills are
essentially revocable. Why? Because if it is a joint
will of A and B, and B would like to revoke his will by
burning it, it would also result to burning the will of A.
So B will find it hard to exercise his right to revoke.
(Remember that the testator has the absolute right
to revoke his will, unless he loses his soundness of
mind). Take note also that one means of revocation
is by overt acts such as burning, tearing, cancelling,
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or obliterating. So kung si A and B nagbuhat ug joint
will and si A later on dili na siya ganahan sa iya joint
will, gusto na niya sunugon. Kung ikaw nagbuhat sa
will wala magpugong sa imoha na you can just burn
it. Pero kung inyoha ng joint will moengon si B na
“hoy! Paghulat diha kay akoa pud ng will. Sunuga
lng na imo will ayaw akoa”, how can A do that?
Because you made a joint will.
4) It may subject one to undue influence and may
induce parricide if reciprocal. Mao jud ni siya ang
pinakareason why the prohibition against joint wills is a
matter of public policy. Imagine parricide. So for
example, the husband and wife (sweet pa kayo sa
sugod) made a joint will, and then the husband is a
billionaire while the wife is just a beggar (aliping
mamahay). And the wife saw the will of her husband
where the latter disposed of all his properties in favor of
the wife. So, nakaidea si wife na i-advance na lang nako
ang death sako husband para ma akoa na ang
properties. So here, it would tempt one spouse to commit
parricide. So that is the major reason given.
5) It makes probate much more difficult in case of
death of testators of different times. For example
namatay si A ug una (kay it does not mean man no na
nagexecute mo ug joint will mamatay pud mo together,
dili mana siya usually mahitabo, chances are mamatay
uns ang isa and the mosunod ang isa) iprobate na siya
na will and because it is a joint will maapilsa proceeding
ang will ni B. And then for example sa kadugay (kay
dugay baya ang probate labi nan aa oppositions) so
gutay-gutay nato last will nila and then karon si B napud
ang namatay and the same will will be presented for
probate. So that is the one reason why it is difficult to
probate the joint will. Because the same will is to be
presented to the court during each probate or to be
subjected to the same proceeding over and over. Okay
lang kung sabay sila mamatay. Pero if the wife dies only
after 20 years from the death of husband, then nag-
probate proceedings sa husband, then sa wife. So the
same will is to be subjected to the probate procedures.
Siguro kum-ot na kayo ang will, especially kung isa lang
kabuok ang copy.
Aug. 19, 2019 P.2 - Rosal
BASIC PRINCIPLES IN JOINT WILLS that you need to
remember:
1. Joint wills are prohibited
2. Even if there is a joint will, ultimately that is still the
will of two persons
Even if A and B made a joint will, what we have is actually the
separate wills of A and B. Because they are considered as
separate, they will be treated separately.
DE LA CERNA v. POTOT
GR L-20234, 12 SCRA 576, December 23, 1964
Digest by Hannah Keziah P. Dela Cerna
DOCTRINE: Where a husband and wife executed a joint
will and upon the death of the husband said will was
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
admitted to probate by a final decree of the court
although erroneous, and the wife dies later, it is held that
said first decree of probate affects only the estate of the
husband but cannot affect the estate of the wife,
considering that a joint will is a separate will of each
testator; and a joint will being prohibited by law, the
estate of the wife should pass upon her death to her
intestate heirs and not to the testamentary heir, unless
some other valid will is shown to exist in favor of the
latter or unless the testamentary heir is the only heir of
said wife.
Facts: It appears that on May 9, 1939, the spouses,
Bernabe de la Serna and Gervasia Rebaca, executed a
joint last will and testament in the local dialect whereby
they willed that:
"our two parcels of land acquired during our marriage
together with all improvements thereon shall be given to
Manuela Rebaca, our niece, whom we have nurtured
since childhood, because God did not give us any child in
our union, Manuela Rebaca being married to Nicolas
Potot", and that "while each of the testators is yet living,
he or she will continue to enjoy the fruits of the two lands
aforementioned"
Bernabe dela Serna died on August 30, 1939, and the
aforesaid will was submitted to probate by said Gervasia
and Manuela before the Court of First Instance of Cebu
which, after due publication as required by law and there
being no opposition, heard the evidence, and, by Order
of October 31, 1939; in Special Proceedings No. 499:
"declares the Exhibit A document legalized as the
testament and last will of the late Bernabe de la Serna
and his widow Gervasia Rebaca at the same time
according to Exhibit A to enjoy the fruits of the terran
described in said documents; and there was
consideration of the amount of said goods, the summary
distribution of the same is decreed in favor of the
universal company Manuela Rebaca de Potot previous
provision by the same of a deposit in the sum of P500.00
to respond to any claims that will be filed against the
property of the late Bernabe de la Serna for the years
from this date"
Upon the death of Gervasia Rebaca on October 14,
1952, another petition for the probate of the same will
insofar as Gervasia was concerned was filed on
November 6, 1952, being Special Proceedings No. 1016-
R of the same Court of First Instance of Cebu, but for
failure of the petitioner, Manuela R. Potot and her
attorney, Manuel Potot to appear, for the hearing of said
petition, the case was dismissed on March 30, 1954.
RTC: The Court of First Instance ordered the petition
heard and declared the testament null and void, for being
executed contrary to the prohibition of joint wills in the
Civil Code (Art. 669, Civil Code of 1889 and Art. 818,
Civil Code of the Philippines).
CA: On appeal by the testamentary heir, the Court of
Appeals reversed, on the ground that the decree of
probate in 1939 was issued by a court of probate
jurisdiction and conclusive on the due execution of the
testament.
Issue: Whether or not the final decree of the probate
court has conclusive effect. - YES, but only with respect
to the husband’s estate.
Held:
Decree of Probate Court Final. - The appealed decision
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correctly held that the final decree of probate, entered in
1939 by the Court of First Instance of Cebu (when the
testator, Bernabe de la Cerna, died), has conclusive
effect as to his last will and testament despite the fact
that even then the Civil Code already decreed the
invalidity of joint wills, whether in favor of the joint
testators, reciprocally, or in favor of a third party (Art.
669, old Civil Code). The error thus committed by the
probate court was an error of law, that should have been
corrected by appeal, but which did not affect the
jurisdiction of the probate court, nor the conclusive effect
of its final decision, however erroneous. A final judgment
rendered on a petition for the probate of a will is binding
upon the whole world and public policy and sound
practice demand that at the risk of occasional errors
judgment of courts should become final at some definite
date fixed by law. Interest rei publicae ut finis set litium.
Petitioners, as heirs and successors of the late Bernabe
de la Cerna, are concluded by the 1939 decree admitting
his will to probate. The contention that being void the will
cannot be validated, overlooks that the ultimate decision
on Whether an act is valid or void rests with the courts,
and here they have spoken with finality when the will was
probated in 1939. On this court, the dismissal of their
action for partition was correct.
Probate Decree Could Only Affect Husband’s Share.
But the Court of Appeals should have taken into account
also, to avoid future misunderstanding, that the probate
decree in 1989 could only affect the share of the
deceased husband, Bernabe de la Cerna. It could not
include the disposition of the share of the wife, Gervasia
Rebaca, who was then still alive, and over whose interest
in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then
be in issue. Be it remembered that prior to the new Civil
Code, a will could not be probated during the testator's
lifetime.
Joint Will Considered Separate Will of Each Testator;
Trial De Novo for Wife’s Will. - It follows that the validity
of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a
separate will of each testator. Thus regarded, the holding
of the court of First Instance of Cebu that the joint will is
one prohibited by law was correct as to the participation
of the deceased Gervasia Rebaca in the properties in
question.
Therefore, the undivided interest of Gervasia Rebaca
should pass upon her death to her heirs intestate, and
not exclusively to the testamentary heir, unless some
other valid will in her favor is shown to exist, or unless
she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint
wills should be in common usage could not make them
valid when our Civil Codes consistently invalidated them,
because laws are only repealed by other subsequent
laws, and no usage to the contrary may prevail against
their observance
Discussion: There is no legal impediment on the part Court for the
will to be presented for probate. The probate is valid. There is no
res judicata.
What was decided was the validity of the will of the husband, not of
the wife. So, there can now be adjudication de novo in so far as
the will of the wife is concerned.
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
That is one consequence that even if we have a joint will, it is still
the separate wills of two or more testators involved in that 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.
When you say joint wills, we are referring to the extrinsic validity of
the will. We discussed that in Arts. 715 and 815 to 817.
When you say extrinsic validity of the will, diba from the viewpoint
of time, from the viewpoint of place or country.
From the viewpoint of place or country, Article 817 says na it shall
be governed by the laws in force at the place where the will is
made. Lex loci celebracionis. If the will is valid in the place of
execution, it is also considered as valid here on the Philippines.
We are referring again to the extrinsic validity of the will.
Join wills also refer to the extrinsic validity of the will. The form. But
that is an exception to Article 17.
Article 17. The forms and solemnities of contracts, wills,
and other public instruments shall be governed by the
laws of the country in which they are executed.
When the acts referred to are executed before the
diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their
execution.
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public
order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated,
or by determinations or conventions agreed upon in a
foreign country.
The prohibition against joint wills is an exception to the principle in
Article 17 that if the will is valid as to form in the place of execution,
it is valid in the Philippines. Except joint wills.
Art. 819 specifically says,
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.
This is also in relation to Article 17, paragraph 3:
Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
Even if the foreign laws recognize joint wills, still, we should not be
subordinated to these foreign laws. If joint wills are allowed there,
still, we do not allow joint wills.
But take note, Article 819 talks of Filipinos. We are not
concerned with foreigners.
For example in Argentina where joint wills are allowed. A Filipina
and a foreigner execute a joint will. The foreigner is Argentinian.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
Is that will valid? Can that will be probated in the Philippines? What
if that joint will is presented before the Philippine courts because
there are properties involved in that will which are located in the
Philippines? Is that will extrinsically valid?
Because as we said, even if we have a joint will, this is actually the
separate wills of the two testators. We shall treat each will
separately.
As to the Filipina, the joint will is not valid because it is prohibited
by Articles 818 and 819. Wherever she may be, it is void.
As to the foreigner, it depends. We have Article 17 which says that
if the will is valid at the place of execution it will also be valid here
in the Philippines. Or Article 815 which says that if it is valid in the
place where he may be. Meaning, as to the foreigner, if it is valid in
the place it is made (in Argentina, where joint wills are allowed),
then that would also be valid here in the Philippines.
For example, the said joint will was executed here in the
Philippines by the Filipina and the foreigner. Is that joint will valid?
Again, we treat it differently.
As to the Filipina, void. Bisag asa niya gibuhat ang joint will, void.
As to the foreigner, we have two views on the matter:
1. If it is valid in his country or nationality pursuant to Article
817, it is valid in the Philippines.
As we have discussed already, if a foreigner executed a will in the
Philippines, what are his options in so far as the extrinsic validity of
his will is concerned? He can comply with:
A) Philippine Laws
B) Law of his country/nationality
If the law of his country or nationality allows joint wills, then
pursuant to Article 817, that will is also considered valid here in the
Philippines.
2. The will is not valid
Because even if his nationality allows joint wills, he made the will in
the Philippines. Again, the same provision that we discussed,
paragraph 3 of Article 17, prohibitive laws concerning persons and
their property which have for their object public policy.
In this case, the prohibition against joint wills is a matter of
public policy. Because of that, even if his country allows joint
wills, our laws which prohibit joint wills should not be rendered
subordinate by those laws promulgated abroad. In that sense, if
we follow that argument, the joint will is not valid.
Which is the prevailing view? There is actually no prevailing view.
There is still no jurisprudence to that effect.
If in the exams you are asked the same question, you should cite
the two views.
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.
This would refer to notarial wills.
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
When it comes to holographic wills, there are no witnesses in the
execution although there are witnesses during the probate.
Insofar as notarial wills are concerned, there are witnesses
required during the execution and the witnesses should also be the
same witnesses during the probate. Although if not all of them
cannot testify, other witnesses may be resorted to.
Article 820 refers to the qualifications. It mentions Article 805
which refers to notarial wills.
Before we discuss that, let's go first to Art. 821.
Article 821. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a
document, perjury or false testimony.
Article 821 gives us the disqualifications. We already discussed
the case of Gonzales v CA, who are the credible witnesses.
These witnesses are credible if:
1. They are competent
2. They testify from facts and not from hearsay
When do we know that the witnesses are competent?
When they have all the qualifications under Art. 820 and none of
the disqualifications under Art. 821.
When we combine all of these, these are the qualifications:
1. Sound mind
2. 18 years of age or more
3. Not blind, deaf or dumb
4. Able to read and write
5. Domiciled in the Philippines
6. Has not been convicted by final judgment of
falsification of document, perjury, or false testimony
If you notice, as compared to a testator there are more
qualifications required of witnesses. Diba 2 lang sa testator?
Sound mind and 18 years old.
Again, as we discussed before in the case of Gonzales v CA,
even a criminal can execute a last will and testament. The
witnesses during the probate of wills do not testify as to the
character of the testator but only as to the facts which attended the
execution of the will.
When we say sound mind and 18 years old, basically they have
the same requirements when you go to testators.
Let's discuss these other requirements.
Not Blind
A blind cannot be a witness but he can be a testator. Although
Article 808 requires additional requirements if a person is blind and
he wants to execute a will.
Why are blind persons not prohibited from executing a will but they
are prohibited from being witnesses? Because if you are the
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
testator you cannot delegate to another person the execution of
your will, and if you are blind, you should not be deprived of your
privilege. You can still execute. There is no one else to execute
your will for you. You alone. That is why you are not prohibited.
Although, the signing and attestation should be in your presence,
how can that be complied if you are blind? If the signing and the
attestation are made within the range of your other available
senses. That refers to the testator.
But insofar as blind witnesses are concerned, they are actually
disqualified. You cannot argue that the will was still signed in the
presence of the witness even if he is blind because it was within
the range of his other available senses. You cannot use that
argument because Articles 820 and 821 say na you cannot be a
witness. You are disqualified.
Of course, I always say na, no choice man jud ta if si testator ang
blind. Sya man lang isa. Pero kung ikaw mangita kag witness,
kadaghan tao sa kalibutan ngano mangita man jud kag buta?
Pwede man ka mangitag dili blind.
The reason here why blind persons are disqualified is they cannot
attest to the execution of the will.
Not Deaf
Although deaf persons can see, but during the probate
proceedings they will be asked to testify, it will be difficult to elicit
their testimony. Although we have sign language, but then ngano
maglisod-lisod man jud ta? Kato nalang dili deaf.
Not dumb, illiterate persons, cannot read and write
They can see, they can hear but they cannot give intelligent
testimony during the probate proceedings.
Domiciled in the Philippines
What do we mean by domiciled in the Philippines? We refer to
Article 50 of the New Civil Code:
For the exercise of civil rights and the fulfillment of civil obligations,
the domicile of natural persons is the place of their habitual
residence.
There are two elements here:
1. The fact of residing or physical presence in a fixed place
You are present or you have to be established to be present at one
point in that place.
2. The intention to remain there permanently or the animus
manendi.
Even if at some point you are away from that place but you still
intend to remain in that place permanently.
The definition of domicile in succession regarding witnesses is
different from election laws because election laws really require
physical presence. In succession, insofar as witnesses are
concerned, even if at some point in time you are not physically
present, or at some point in time you are present and you intend to
remain in that place.
What is the reason why it is required that the witnesses should be
domiciled in the Philippines?
We are not talking about citizenship, only domicile.
Why? These same witnesses during the execution of the will, will
be called upon to testify during the probate proceedings. If they are
.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
College of Law
not residents of the Philippines, chances are they will not be
around anymore at the time of the probate. If that is the case, it will
be difficult to summon them because our judicial processes are
only effective within our territory.
Remember that this requirement would refer only if the will is made
in the Philippines. If the will is made abroad, there are several
possible laws that the testator can comply with insofar as the
extrinsic validity of the will is concerned.
The witnesses here, we are referring to the extrinsic validity. Part
na sya sa requirement.
If you choose to execute the will complying with the laws in force
in, example, California, where you are, it might have a different
requirement. Also, if you are in California, and you still require
witnesses to be residents of the Philippines, lisod sya because
hindi sure if daghan ba residents of the Philippines didto. So that is
only applicable if the will is made in the Philippines.
The witness shall not have been convicted by final judgment
It should be final judgment because it can still be reversed if hindi
sya final judgment.
Take note he must be convicted of these crimes:
1. Falsification of document
2. Perjury
3. False testimony
What is common in these crimes? These crimes refer to the
capacity of the person to tell the truth. The question now is: Is he
trustworthy? Is he honest?
Meaning, even if you are a criminal, rapist, serial killer, you can still
be a witness. What is important is you are not a liar. Because what
you will be asked to testify would be the facts attendant during the
execution of the will.
What is the effect if the witness had already been pardoned of his
crimes? Would that now erase his disqualifications? It depends.
If the pardon was because he is really innocent, but still there is no
way of reversing the decision of the case because it had already
become final, authority says na he is qualified because in the first
place he was never a liar. He was innocent.
But if the pardon is because by reason of executive grace or
clemency, meaning you really committed these crimes but nag
bagong buhay na ka, that will not change the fact that you were
dishonest. Still, you are disqualified.
We discussed before the case of Cruz v Villasor in Article 806:
A notary public, the one before whom the will was acknowledged,
is he qualified to be a witness? No.
He is not disqualified as the notary public but he is disqualified as
a witness. Because of that, if there are only 3 witnesses and none
of them is the notary public before whom the will was
acknowledged, then the will is void because it is short of the
minimum requirement of 3 witnesses. But if you have 4 or more
attesting witnesses and one of them is the notary public, the will is
still valid. As long as the other remaining witnesses are qualified
because your presence as a witness even if you are a notary
public would not affect the number of witnesses anymore. Kay naa
lang gihapon 3 or more.
1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
Are the qualifications of witnesses during the execution of wills and
during usual proceedings (qualifications of witnesses in general) in
court the same?
As long as you can perceive, and by perceiving you can make
normal perception to others, you are qualified to testify in court.
That is the only requirement if you will be a witnesses in court.
But if you are going to be a witness because you attested the due
execution of the will, in addition to that, you should have all the
qualifications in Art. 820 and none of the disqualifications under
Art. 821. Because in the first even if you are not required to have
these qualifications at the time of the probate, you are required to
have these qualifications at the time of the execution of the will.
Perhaps katong time sa page execute sa will wala pa ka naconvict.
Nacommit nimo ang crime subsequent na. What matters is at the
time of the execution of the will, you did not have these
disqualifications and you possessed all the qualifications, even if
you lost them subsequent to the execution of the will.
Like sound mind. At the time of execution, normal pa ka. After a
few years, nabuang na ka. The will is still valid, although you can
no longer testify in court because you are no longer of sound mind
and the Rules of Court says you can make know your perception
to others. Kung nabuang ka murag lahi-lahi na pud siguro imong
perception. So that would affect your qualification to testify in court
as a witness but it will not affect the validity of the will.
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.
As long as you are competent at the time of the execution of the
will, the will is valid, even if subsequently you lost these
qualifications. It will only affect your qualification to testify in court.
The provision which I mentioned, the general qualifications is in
Rule 130, Sec. 20:
SECTION 20. Witnesses; their qualifications. — Except as
provided in the next succeeding section, all persons who can
perceive, and perceiving, can make known their perception to
others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or
conviction of a crime unless otherwise provided by law, shall not
be a ground for disqualification.
That is the general qualification.
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.
This is another provision relating to witnesses but this will not
affect the validity of the will.
Example: A is a legatee in the last will and testament of the
testator. He is also one of the attesting witnesses.
Is the will valid? Assuming there are 3 witnesses.
.
 ATTY. LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE
ATENEO DE DAVAO UNIVERSITY Class Transcription
College of Law III – Manresa 2019

What does Art. 823 provide? It merely says that he is disqualified

to receive the legacy but he is still an attesting witness. So he will
just forfeit the legacy.
The same thing applies if A is a witness but his spouse, parent, or
his child is a legatee or devisee in the will. This spouse, parent, or
child will also forfeit the legacy or devise but A is still competent
and qualified as a witness. The will is still valid.
The law says devise or legacy. Would this also apply to
inheritance? If you are a voluntary heir, you are instituted as an
heir? Yes. Under the same reason.
In the first place, what is the reason why the witness who is at the
same time a legatee or devisee will forfeit the legacy or devise?
Because it will place him under a conflict of interest. As a witness,
you are supposed to be impartial, you will have to testify truthfully
as to facts attendant of the execution of the will.
For example, you know at the time that the will was signed by the
witnesses, the testator was at the CR. He was not in the position to
see. Pero kahadlok ka muingon na naa sya sa CR kay mawala
pud ang imong legacy because a legacy depends upon the validity
of the will. So, you will constrained to testify na "naa sya sa among
atubangan". To prevent that, disqualified ka from receiving the
legacy, devise, and including the inheritance as a voluntary heir.
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.
Example: X is a creditor of the testator. In the last will and
testament of the testator he says, "I hereby give 1M in payment to
my debt to X." Then X is also a witness.
Will X forfeit that allocation of 1M? No.
Even if without that provision in the will, that creditor is already
entitled to be paid. In fact, payment of the debts is prioritized over
the distribution of the estate to the heirs. So, he will not forfeit that
allocation because it is for the payment of his credit.
What if ang utang is only 1M but the testator says in the will, "I
hereby give 10M to X including to that would be the payment of my
debt." X is also a witness to the will.
What is the consequence? He will still receive the 1M payment for
his credit, but over and above that, it will be considered a legacy.
He forfeits that pursuant to Art. 823. That is the meaning of Art.
824.

What if you are a compulsory heir? End of 1st Exam Coverage

Anak ni testator, entitled to his legitime. A legitime is that portion of

the estate which is reserved by law for the compulsory heirs. Hindi
jud na sya pwede matanggal. Entitled jud na sila as a matter of
GOD BLESS US ALL!
right.

So anak, witness at the same time sa will. What is the

consequence?

He is not disqualified from receiving his legitime because even if

he is not a witness, even if the testator would want to deprive him
of his legitime, the heir is entitled to his legitime. The law assures
him of his legitime. He cannot be deprived of that unless there is a
valid ground.

However, if he is given something which is over and above his

legitime. Example the legitime is only 1M, pero gitagaan nimo sya
sa free portion og excess, 10M imong gihatag sa will. In that case,
he would still receive his legitime but because he is also a witness,
he will forfeit that portion over and above his legitime.

And anyone claiming under such person, spouse, parent or

child

Example: A is a witness and at the same time a legatee. Naa pud

sya creditor. Wala na sya laing mabayad sa iyang creditor, kato
nalang unta legacy. But then he is also at the same time a witness.
Can the creditor just receive the legacy on behalf of A?

No. He is also disqualified under Art. 823. Anyone claiming under

the witness, or the spouse of the witness, the child of the witness,
the parent of the witness, DISQUALIFIED.

How about if in the will, the testator made as a witness si A. In the

will he gave a legacy to X who is a creditor of A. Is X disqualified to
receive the legacy? Is that covered by Art. 823?

No, that is not covered because the law says anyone claiming
under such person. Meaning, ihatag sa katong witness at the
same time legacy. So, anyone under him cannot receive that. But
in my example, it's the creditor himself who is made a legatee. He
is not disqualified because he is not claiming under the witness,
the spouse of the witness, the child or parent of the witness. He is
in his own right a legatee or a devisee.