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Article 835: The testator cannot republish, without reproducing in a subsequent

will,
the dispositions contained in a previous one which is void as to its form

REPUBLICATION, DEFINTTION: The process of re-establishing a will,

which has become useless because it was void or has been revoked

REPUBLICATION, HOW MADE

- re-execution of the original will (original provisions are copied)
- execution of a codicil (also known as implied republication)

CUA v Vargas
- Notice done through publication done AFTER the execution/settlement of the
estate does NOT constitute constructive notice as it is "notice after the
fact of execution."

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Article 836: The execution of a codicil referring to a previous will has the effect
of
republishing the will as modified by the codicil

WHEN IS A WILL CONSIDERED VOID AS TO FORM: When there is deficiency, irregularity

or
absence with any of the requisites mentioned in Article 805 of the New Civil Code

EFFECT OF EXECUTION OF CODICIL: the execution of a codicil which refers to a

previous will has the effect of REPUBLISHING the will

RULE IN REPUBLISHING A WILL VOID AS TO FORM: All the dispositions must be

expressed/copied
or reproduced in the new or subsequent will

EXAMPLE OF WILL VOID AS TO ITS FORM:

- Lack or absence of attesting witnessses
- Lack of acknowledgement

HOW TO REVIVE VOID WILL ABOVE: The testator shall execute a new will which copies
all
the provisions in the old one but changing that which is void as to its form to one
that is valid (two attesting witnesses to three attesting witnesses)

EFFECT OF REPUBLICATION AS TO DATE: The will would be considered as being executed

at the time the subsequent valid will was executed

USE OF CODICIL, WHEN NECESSARY: When there is a VALID will as to form but it has
been
REVOKED (burning, tearing, etc)

HOW TO REPUBLISH REVOKED WILL THROUGH CODICIL:

- The prior will must be VALID as to form;;
- It must be done through the execution of a codicil;
- The codicil must make REFERENCE to the already revoked will (mere reference
is
sufficient. There is no need to reproduce all the dispositions of the
previous
will)

EFFECT OF REPUBLICATION THROUGH CODICIL:

- The prior revoked will is REVIVED;
- The old will is REPUBLISHED as of the date of the codicil
- The republished revoked will is governed by a statute SUBSEQUENT to the
execution of the will but which was operative when the codicil was executed

TESTATOR REMOVED HIS SIGNATURE AND LATER ON PASTES IT BACK: Will is void, since
there should
be the execution of a will making reference to the already revoked will for the
prior will
to be revived

EFFECT OF EXECUTION OF CODICIL THROUGH WILL EXECUTED WITH VICES OF CONSENT: The
will is
considered as REVIVED, since vices of consent does not fall within this article
since it
does not refer to the form of the will or otherwise

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Article 837: If after making a will, the testator makes a second will expressly
revoking
the first, the revocation of the second will does not revive the first will, which
can be
revived only by another will or codicil

IMPORTANT RULE UNDER ART. 837:

- If the testator makes two wills, where the latter EXPRESSLY revokes the
first
will made, the revocation of the second will does NOT revive the first one;
- The second will can only be revived through execution of another will (if
void
as to form) or through a codicil (if the prior will was revoked)
- A VOID or REVOKED will is one which is of nullity, devoid of any effect and
is
USELESS

TWO WAYS TO GIVE EFFECT TO VOID OR REVOKED WILLS:

- Republication
- Revival
- IMPORTANT NOTE: Aside from republication and revival, there are NO other
ways
of restoring effectiveness to a will which has been declared void or revoked

REPUBLICATION v REVIVAL
- Republication: An act of the testator
- Revival: One that takes place by OPERATION OF LAW; the restoration or
reestablishment of revoked will or revoked provisions by virtue of LEGAL
PROVISIONS

EXAMPLES OF REVIVAL BY OPERATION OF LAW:

- As a rule, the ommission of a compulsory heir ANNULS the will. However, if
the
ommitted heir subsequently dies AHEAD of the testator, the will is REVIVED as
the
defect is cured
 - If there are two (2) wills executed and the testator IMPLIEDLY revokes the
first,
the revocation of the SECOND will revives the first will

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SUBSECTION 8: ALLOWANCE AND DISALLOWANCE OF WILLS (Probate)

Article 838: No will shall pass either real or personal property unless it is
proved
and allowed in accordance with the Rules of Court

The testator himself may, during his lifetime, petition the court having
jurisdiction
for the allowance of his will. In such cases, the pertinent provisions of the Rules

of Court for the allowance of the wills after the testator's death shall govern

The Supreme Court shall formulate such additional Rules of Court as may be
necessary
for the allowance of wills on petition of the testator

Subject to the right of appeal, the allowance of the will, either during the
lifetime of the testator or after his death, shall be conclusive as to its due
execution

RULES IN ARTICLE 838:

- No will shall pass unless it is proved and allowed (probated) in accordance

with the Rules

- The wills mentioned in this article refers to both wills disposing real
and/or
personal property
- The testator may, even during his lifetime, petition the court having
jurisdiction for the probate/allowance of his will
- The Supreme Court shall formulate additional Rules re: probate of wills as
may
be necessary
- Subject to the right of appeal, the probate of a will, either during the
lifetime
or after the death of the testator, shall be CONCLUSIVE as to its due
execution

PROBATE, DEFINITION:
- The act of PROVING before a competent court the due execution of a will
by a person possessed of testamentary capacity, as well as APPROVAL by the
competent
court
- Is considered as a proceeding IN REM. As such, publication is a
requirement,
among other things
- Also referred / called as probation, legalization, protocolization,
authentication

DOROTHEO v COURT OF APPEALS: A final judgment on a probated will, although

erroneous, is
BINDING on the whole world
TWO KINDS OF PROBATE:
- Probate during LIFETIME of the testator and; (aka Ante Mortem Probate)
- Probate AFTER DEATH of the testator

PROBATE DURING LIFETIME OF TESTATOR, EFFECTS:

- Is considered as VALID and may be petitioned by the testator himself;
- Testator CAN STILL alter or revoked the same before his death;
- Should testator make a NEW WILL after probate has been concluded, it would
also be allowed on his petition

PROBATE AFTER DEATH OF TESTATOR:

- May be presented by the executor, devisee, legatee or any interested person

- Will may be probated even if the will is not in possession of the

petitioner,
has been destroyed, in somebody else's possession, etc., as long as there is
no
animo revocandi (intention to revoke)

RATIONALE BEHIND ANTE MORTEM PROBATE:

- To prevent or minimize fraud, intimidation, undue influence
- To enable the testator to correct at one failure to observe legal
requirements

WHAT IS DONE DURING PROBATE PROCEEDINGS:

- Orders the probate of a will;
- Hears and approves / disapproves claims against the estate;
- Orders the payment of the lawful debts;
- Authorizes the sale, mortgage or any other encumberance of real estate;
- Directs the delivery of the estate or properties to those who are entitled

RATIONALE BEHIND PROBATE OF WILLS: It is REQUIRED by law. Hence, distribution of

real or
personal property through a will, without probate, is VOID

VALIDITY OF EXTRAJUDICIAL PARTITION:

- Although, as a general rule, the probate of will is MANDATORY, the heirs
may,
nevertheless, partition the estate EXTRAJUDICIALLY
- The extrajudicial partition NEED NOT be in accordance with the will
- If one of the heirs feel AGGRIEVED, his remedy would be to ask for the
PROBATE of the will.
- However, take note that only PROBATED wills can be accepted as evidence in
court. As such, the aggrieved heir must first institute probate proceedings

VOID OR REFUSED PROBATE WILLS, WHEN VALID:

- Under Article 1430, when a will is declared VOID as to form, but one of the

INTESTATE heirs, after the settlement of the debts, PAYS a legacy in

compliance
with a clause in the defective will, the payment is EFFECTIVE and IRREVOCABLE

- Take note that for Article 1430 to be effective, the intestate heir who
pays
the legacy must have KNOWN of the defect in the will. Otherwise, there is no
natural obligation. A solutio indebiti (undue payment) happens in this case

VERA v NAVARRO: Judgment of a probate court ruling that distributive shares be

given
when there are pending taxes / obligations to be paid is VOID. Obligations should
first be settled

JURISDICTION OF THE PROBATE COURT:

- Determination of the who the heirs are;
- Determination of the shares of the heirs;
- Issues regarding the validity of wills;
- Questions of title pertaining to the determination of whether certain
properties
should be included or excluded from the inventory
- GENERAL RULE: Limited only to passing upon the EXTRINSIC validity of the
will
sought to be probated and the compliance with the requisites or solemnities
prescribed by law

EXAMPLE OF ISSUE NOT WITHIN JURISDICTION OF PROBATE COURT:

- The validity of the appointment of a testator, as this refers to the
intrinsic
validity of a will
- Disinheritance of a daughter;
- Declaring a certain woman to be the true wife of the testator;
- Partitioning of the conjugal properties;
- Right of a widow to the inheritance

EFFECT OF RESOLVING INSTRINSIC ISSUES DURING PROBATE PROCEEDINGS:

- As a general rule, the probate courts may not pass upon intrinsic issues in

probate proceedings and can only pass EXTRINSIC issues

- However, the probate courts are allowed to pass on intrinsic issues, such
as
when one of the parties pray to include or exclude a property to the estate
- However, the decision of said courts are NOT final and are NOT res judicata

- Probate courts can only decide on intrinsic matters PROVISIONALLY

- Intrinsic issues should be decided in a SEPARATE action and provisional
decisions made in probate proceedings shall not affect it under the concept
of
res judicata

TWO PARTS OF POST-MORTEM PROBATE:

- Probate proper (deals with the EXTRINSIC validity of the will)

EFFECT OF PROBATE OF WILL WHICH WAS EXECUTED LATER IN TIME: In cases where there
are two
wills, where the probated will was the one executed on a later time, the second
will can
STILL be probated as long as the two wills can be RECONCILED

CONTENTS OF A PETITION FOR PROBATE:

- That the testator is death as well as the place and time of said death;
- That the deceased left a will, a copy of which is attached to the petition;

- That the will was executed in accordance with the legal requirements;
- Names, ages, addresses of the executor and all interested parties or heirs;

- The probate value and character of the property

- If the will has NOT been delivered to the court, the name of the person who
is
 supposed to have custody over the same

PROBATE OF A DESTROYED / LOST WILL:

- Probate of a destroyed or lost will is allowed as long as it must be be
proved
that, once upon a time, a valid will has been executed and that the said will
has been destroyed or lost without animo revocandi;
- The probate of a destroyed or a lost will must be proved by TWO (2)
CREDIBLE
witnesses who must testify to the contents
- It must still be proved even if no one opposes to the probate of the lost
or
destroyed will

WHO IS AN INTERESTED PARTY:

- One who would be BENEFITED by the estate, such as an heir or;
- One who has a CLAIM against the estate, such as a creditor

EFFECT OF FAVORABLE PROBATE PROCEEDINGS:

- Is binding upon the WHOLE WORLD (since probate proceedings are proceedings
in REM)
- Is binding to the whole world insofar as testamentary capacity and due
execution are concerned
- The order allowing probate is NOT considered as interlocutory and,
therefore,
is IMMEDIATELY appealable
- Judgment on ownership of property is NOT conclusive
- Proceedings for DISTRIBUTION of properties are NOT in rem proceedings and
CANNOt affect those who are NOT personally served with summons

DISTRIBUTION, DEFINITION: The division, by order of the court having authority to

do so,
of the estate of a person after payment of debts and charges, to those who are
entitled
thereto

WHO HAS JURISDICTION OVER PROBATE PROCEEDINGS:

- All Regional Trial Courts (RTCs) have jurisdiciton, regardless of where the

testator died.
- The RTC where the real estate is located (in case of a NON-RESIDENT
testator)

PRESCRIPTIVE PERIODS FOR RELIEF:

- Within 60 days AFTER the petitioner learns of the judgment or order to be
set aside;
- Within 6 months after such order or judgment was rendered

MERCADO v SANTOS:
- After final judgment has been rendered regarding the probate of the will,
a person accused of forgery can NO LONGER be convicted of the crime as the
probate
of a will is conclusive to the fact that a will was GENUINE and NOT a forgery

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Article 839: The will shall be disallowed in any of the following cases:
- If the formalities required by law have NOT been complied with;
 - If the testator was INSANCE, or otherwise mentally incapable of making a
will,
at the time of its execution;
- If it was executed through FORCE or UNDUE DURESS or the influence of fear
or
threats;
- If it was procured by undue and improper pressure and influence, on the
part of
the beneficiary or of some other person;
- If the signature of the testator was procured by fraud;
- If the testator acted by MISTAKE or did NOT INTEND that the instrument he
signed
should be his will at the time of affixing his signature thereto

RULES UNDER ARTICLE 839:

- The grounds mentioned in Article 839 for disallowance of a will are
EXCLUSIVE
and no other ground can serve as basis to disallow a will

EFFECTS OF VICES OF CONSENT:

- Force, Duress, Fear or Threat are vices of consent which, in ordinary
contracts,
render them merely VOIDABLE
- However, in wills, the presence of vices of consent renders a will VOID

UNDUE INFLUENCE, DEFINITION:

- The testator is influenced to do something which he otherwise would NOT
have done
- It is present when the testator does something because of fear or a desire
for
peace or from any other feeling which he is unable to resist
- Deprivation of reasonable freedom of choice

EFFECT OF UNDUE INFLUENCE IN EXECUTION AND SUBSEQUENT OPPORTUNITY TO REVOKE: In

cases where
a will was executed with undue influence and after thereto, the testator had the
opportunity
to change or revoke the same but fails to do so, it was ruled that the will MAY be
admitted,
as the failure to do so reveals that there was indeed no undue influence

UNDUE INFLUENCE ON SOME PROVISIONS: Undue influence on some provisions of the will
does NOT
have the effect of making the entire will void. In such cases, the other provisions
not
affected by undue influence should be considered VALID

RULES REGARDING FRAUD:

- Fraud is the use of insidious machinations to convince a person to do what
he ordinarily would not have done;
- There must be intent to defraud
- Intent and the nature of the fraud must be proved

REVOCATION v DISALLOWANCE OF A WILL:

- REVOCATION:
- Voluntary act of the testator;
- Is with or without cause;
- May be total or partial;
- DISALLOWANCE:
 - Given by juridical order;
- Must always be for a legal cause;
- As a rule, is always total, save in cases where the ground of fraud
or
undue influence affects only certain portions of the will

WILLS PROBATED OUTSIDE THE PHILIPPINES:

- Wills probated OUTSIDE the Philippines may be allowed in the PH as long as
it was
probated in accordance with the laws of said country

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SECTION 2: INSTITUTION OF HEIR

Article 840: Institution of an heir is an act by virtue of which a testator

designates
in his will the person or persons who are to suceed him in his property and
transmissible
rights and obligations

INSTITUTION OF AN HEIR, DEFINITION: An act by which a testator DESIGNATES in his

will the
person or persons who are to SUCEED him in his property and transmisible rights and

obligations

RULES REGARDING INSTITUTION OF HEIR:

- Being a voluntary act, it cannot affect legitime which is mandatory;
- In general, these provisions are applicable to devisees and legacies;

REQUISITES FOR VALID INSTITUTION:

- The will must be EXTRINSICALLY VALID;
- The institution must be VALID INSTRISICALLY and;
- The institution must be EFFECTIVE

WHEN IS A WILL VALID EXTRINSICALLY:

- No vitiated consent;
- Will was duly probated;
- will was the personal act of the testator;
- The formalities must be observed

WHEN IS A WILL VALID INTRINSICALLY:

- The legitime must NOT be impaired;
- The heir must be certain or ascertainable;
- There should be no preterition

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Article 841: A will shall be valid even though it should not contain an institution
of an
heir, or such institution should not comprise the entire estate, and even though
the person
so instituted should not accept the inheritance or should be incapacitated to
succeed

In such cases, the testamentary dispositions made in accordance with the law shall
be
complied with and the remainder of the estate shall pass to the legal heirs
RULE/S UNDER ARTICLE 841: A will shall be valid although,
- there are no institution of heirs;
- the institution does not comprise the entire estate;
- the institued heir does not accept the inheritance or incapacitated to
suceed;

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Article 842: One who has no compulsory heirs may dispose by will all of his estate
or any part of it in favor of any person having capacity to suceed.

One who has compulsory heirs may dispose of his estate provided he does not
contravene
the provisions of this Code with regard to the legitime of said heirs

RULES UNDER ARTICLE 842:

- One who has NO compulsory heirs may dispose by will ALL of his estate or
any part
of it in favor of any person having capacity to suceed
- One who HAS