Instructions: Analyze the problems very carefully before you even write your

answers. The problems are tricky

I.

1.
2.
3.
4.

In Xs will, he declared that he is married to Y with two 2 children, A and B.

He gave to his two children and wife their respective legitimes but gave the
free portion of his estate to his mistress, Z, with whom he has lived for the last
25 years or so since he separated from his wife and children. During the
proceedings for the probate of the will, his legitimate family opposed the
institution of Y to the free portion of the estate of the testator, stating that the
same is against public policy and public morals. On the other hand, Z
countered by saying that while indeed she was a mistress, there was no
conviction of adultery or concubinage against her, hence she is not
incapacitated to inherit the free portion.
Should the will be admitted to probate? Why? 5%
Is the institution of Z to the free portion of the estate valid? Why? Support your
answer with jurisprudence. %
Can the court consider the intrinsic validity of the provisions of the will?
Expound. 5%
Is the contention of Z valid? Support your answer. 2%
1. Yes, the will may be probated, if executed according to the formalities
required by law.
2. The institution of Z giving the free portion to her is not valid because the
prohibitions under Art. 739 of the Civil Code on donations also apply to
testamentary dispositions (Article1028, Civil Code), Among donations which
are considered void are those made between persons who were guilty of
adultery or concubinage at the time of the donation, Art 739 #1.
3. As a general rule, the probate court will only determine the extrinsic validity
of the will. However, where practical considerations demand that the
intrinsic validity of the will be passed upon, or where the will on its face is
intrinsically void, the court will pass upon its intrinsic validity. Case in point
is Nepomuceno vs. CA, where the Supreme Court sustained the ruling of the
probate court which declared the devise in favor of the paramour null and
void.
4. No, the contention of Z is not valid. It is not necessary that there be a
criminal conviction. In the same proceedings for the probate of the will, the
guilt may be proved by mere preponderance of evidence.

II.

X summoned his three friends as instrumental witnesses to the making of his

notarial will. They are Dr. No, Engineer Maybe and Atty. Yes. Being then a
lawyer, he was the one who drafted the will according Xs specifications.
Atty. Yes being the only lawyer/notary public in their municipality was also
the one who notarized the will. During the probate proceedings, the oppositor
raised the issue that since Atty. Yes was the same person who notarized the

document, this in effect, violated the rule that 3 witnesses must appear before
the notary public. On the other hand, the executor of the will countered that
there was substantial compliance thereof with the legal requirement of having
at least three attesting witnesses even if the notary public acted as one of
them. The question reached the Supreme Court, how do you think the court
will resolve the issue. Support your answer with Jurisprudence. 10%
Answer: This issue is on floors with the case of Cruz vs. Villasor whereby the
Supreme Court resolved that the last will and testament in question was not executed
in accordance with law. The notary public before whom the will was acknowledged
cannot be considered as the third instrumental witness since he cannot acknowledge
himself before himsef his having signed the will. 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. 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.
III.

A petition for the probate of a holographic Will was filed the X, brother of the
testator A, who died without issue. During the probate of the will, Y, sister of
A opposed the probate on the ground that the will was altered because in the
original will, she was the one named as the sole heir; however, the change
from X to Y was not authenticated by the signature of their brother, testator A.
Contending that the alteration was without legal effect, she then argued that
the original same will, in which she was named sole heir should be probated.
X likewise opposed. The case reached the Supreme Court wherein you were
asked to be the ponente of the case. What will be your legal position on the
question of whether or not the will in its original, unaltered form will be
probated or not. You must support your answer with jurisprudence. 10%

Answer: This is similar to the case of Kalaw v. Relova. As a general rule, alterations
in the holographic will without authentication will not be given legal effect or will be
considered as not having made. However, if the will contained only one substantial
provision, the effect of the alteration without authentication will void the entire will
because nothing would remain in the will which could be considered valid. The
change of mind of the testator A cannot be valid because it was not authenticated by
his signature. On the other hand, Y cannot inherit because the cancellation of her
name to change into the name of brother X is an act of revocation. Therefore, the
entire will is invalidated. Intestacy will happen.
IV.

Debby died leaving behind a holographic will which is entirely written, dated
and signed in her own handwriting whereby she disposed of her several
properties to different instituted heirs, legatees and devisees. However, it
contains certain insertions and cancellations which are not authenticated by
her signature. For this reason, the probate of Debby's will was opposed by her

relatives who stood to inherit by her intestacy. May Debby's holographic will
be probated? Cite Jurisprudence in support of your answer.
Answer:
Yes, the will as originally written may be probated. The insertions and
alterations were void since they were not authenticated by the full signature of
Debby, under Art. 814, NCC. The original will, however, remains valid
because a holographic will is not invalidated by the unauthenticated insertions
or alterations (Ajero v. CA, 236 SCRA 468] This is so because unlike in the
preceding problem, there are herein other testamentary dispositions that can
stand.
V.

Totally orphanded, unamarried and childless X died with a Will survived by

his live in partner, Angel, brother James and sisters, Beth and Candy, his
grandparents Pappy & Mammy and nephew, Mark and niece Jane. In his
Will, he named as his universal heir his lived in partner Angel to his entire
estate. During the probate of the will, his brother James opposed contending
ineffective disinheritance because of the long time feud between the siblings.
Angel contended that since X died without issue, he can designate anyone to
his estate as long as the heir has capacity to succeed and Angel is not
capacitated to succeed by inheritance.
A. If you were the judge, decide the merits of the case and what will be the
legal position or argument you will use in accordance with the law and settled
jurisprudence. 5%
B. What will happen to the designation of Angel as universal heir? 5%

Answer: This is similar to the case of Nuguid vs. Nuguid, In this case testator X
totally omitted a compulsory heir in the direct ascending line. In preterition the
testator totally omits a forced heir or any of them either by not mentioning them or
although mentioned, they are neither instituted as heirs nor are expressly disinherited.
Since there was preterition, theis will anull the institution of heirs except the devises
and legacies , insofar as the latter are not inofficious. This is a case of preterition
and will therefore annul the institution of Angel to satisfy the unpaid legitimes.
However, Angel may still inherit the free portion.
VI.

Testator X instituted his best friend, Y, as heir to his estate. He has been
estranged from his wife for 15 years and their adopted son as well for almost
the same number of years. In his will, he stated that his share in the
conjugal partnership with his estranged wife, shall go to his brother and in
case his brother predeceased him, the share shall go to the children of his
brother. The probate of the will was opposed by his wife and his legally
adopted child on the ground of preterition.
A. Is this a case of preterition? Support your answer with the legal provision
and jurisprudence. 5%
B. What will happen to the institution of Y as heir to the estate? 5%

Answer:
(a) Insofar as the wife is concerned, there was no preterition as she is not a
compulsory heir in the direct line. She will however get her legitime as
compulsory heir in intestacy.
(b) Intestacy will happen because the institution of Y to the estate of X will be
annulled. This is so because there was preterition insofar as their adopted son is
concerned. An adopted child becomes a compulsory heir in the direct line of his
adoptive parent hence the child can claim preterition under Article 854.
VII.

a) In succession, death is the operative fact that gives rise to succession. Aside
from physical obvious death, when is constructive or implied death deemed
to occur or take place? 5%
b) Un
der the law, future inheritance may not be the subject of contract except as
expressly authorized by law. Cite at least one jurisprudence under this
exception and cite the doctrine thereto to support your answer. 5%
c) Is there any law which allows the delivery to compulsory heirs of their
presumptive legitimes during the lifetime of their parents? If so, in what
instances? 5%

Answers:
A. Death is presumed to take place in the circumstances under Arts. 390-391 of the
Civil Code. The time of death is presumed to be at the expiration of the 10 year
period as prescribed by Article 390 and at the moment of disappearance under
Article 391.
B. Blas v. Santos; Butte vs. Uy
The partition by the parent, as provided in Art. 1080 is a case expressly authorized by
law. A person has two options in making a partition of his estate: either by an act inter
vivos or by will. If the partition is by will, it is imperative that such partition must be
executed in accordance with the provisions of the law on wills; if by an act inter vivos,
such partition may even be oral or written, and need not be in the form of a will, provided
the legitime is not prejudiced.
C. Yes, under Arts. 51 and 52 of the New Family Code. In case of legal separation,
annulment of marriage, declaration of nullity of marriage and the automatic termination
of a subsequent marriage by the reappearance of the absent spouse, the common or
community property of the spouses shall be dissolved and liquidated.
Art, 51. In said partition, the value of the presumptive legitimes of all common children,
computed as of the date of the final judgment of the trial court, shall be delivered in cash,
property or sound securities, unless the parties, by mutual agreement, judicially approved,
had already provided for such matters. The children of their guardian, or the trustee of
their property, may ask for the enforcement of the judgment. The delivery of the
presumptive legitimes herein prescribed shall in no way prejudice the ultimate

successional rights of the children accruing upon the death of either or both of the
parents; but the value of the properties already received under the decree of annulment or
absolute nullity shall be considered as advances on their legitime.
Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition
and distribution of the properties of the spouses, and the delivery of the children's
presumptive legitimes shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect third persons.
VIII.

Discuss the difference in the probate of a holographic will from the probate of
a notarial will? 5%

Answer: In the probate of a holographic will, the only issue is the genuineness of the
handwriting of the testator and this can be proved by one witness in case of
uncontested wills and the three witnesses in case of contested wills. However, in the
case of notarial will, the issue is whether the will complied with the requirements of
Arts. 805 and 806. The testimony of the subscribing witnesses and the notary
guarantees its authenticity.
IX.

John & Jane both German citizens lived, married each other and settled in the
Philippines. On the 10th year after their marriage and already with 3 children,
2 boys and 1 girl, all of them acquired Filipino citizenship. After their
marriage but before naturalization, they acquired a farm lot and a house and
lot in Hamburg, Germany. In the Philippines and after their naturalization,
they acquired several real properties in the country consisting a house and lot
in Manila, where they resided, a condominium unit in Makati and a ranch in
Palawan. On their 20th wedding anniversary, the spouses went to Germany
and therein executed a joint will, which was allowed therein. The joint will
mutually made each one of them heirs of each other and further provided that
their properties in Germany would be inherited only by their parents who are
in Germany. The properties in the Philippines will go to their children as coowners but they are prohibited to partition the properties perpetually. Upon
the spouses death while vacationing in France during the massacre incident in
a Paris night club, the will was petitioned for probate in Manila court.
a) Should the will be admitted to probate? 5%
b) Are the testamentary disposition valid? 5%
Answers:
a) The spouses executed a joint will in Germany at the time they were
already naturalized Filipino citizens. Under our laws, the nationality rule
govern the intrinsic validity of wills executed by Filipino citizens. Art.
818 prohibits the making of joint wills even though executed abroad by
Filipino citizens as enunciated under Art. 819. Hence, the will will not be
admitted to probate as this is void.
b) The testamentary dispositions are void. For one, it prohibits the partition
of the properties among the heirs perpetually. Second, it may be that the
properties valued in Germany may be more than the value of the

properties in the Philippines, hence the legitime of the compulsory heir

may be impaired. Otherwise, the free portion may be inherited by the
parents in intestacy and all the compulsory heirs inherit by intestacy.
X.

A. Doctrine of Presumed Revocation--- This is enunciated in the case of

Gago vs. Mamuyac which states that when the will was last found to be in
the possession of the testator and the same can no longer be found, despite
diligent search, the will will be considered revoked.
B. Doctrine of Dependent Relative Revocation--- This is an exception to Art.
832 which states A revocation made in a subsequent will shall take
EFFECT, even if the new will shall become INOPERATIVE by reason of the
incapacity of the heirs, devisees or legatees designated therein by their
renunciation.
However, if the revocation clause contained in the second will did not become
operative BY REASON OF THE FACT THAT THE SECOND WILL DID
FAILE TO COMPLY WITH THE REQUISITES under Arts. 805 & 806,
hence it was not admitted to probate or where the testator has not sufficient
mental capacity to make a will or the will was procured through undue
influence, or the like; in other words, where the second will is really no will, it
does not revoke the first will Hence, in this case, the first will is not revoked.
C.Disallowance of Will Just go to Art. 839 which I asked you to memorize
Sidebytes: As you can very well discern from the exam questions, a lot of them
were taken from the decided cases or they are hypothetical questions and the
answers may be found in the cases, I assigned to you. This is so because in the
Bar, it is really a matter of application of law and analysis that will come to fore
and not enumerations or fill in the blanks. There is one question on the
distinctions however, which I feel is important, so that I will know if you
understood the differences in the probate between a holographic and notarial will.
And as I told you, some questions are tricky so that you have to analyze carefully
first before writing down. And I told you to look for clues, which are provided in
ALL hypothetical questions. But of course, you should have been wary of the
distractions or confusing terms or situations intended to mislead, so that you will
be alert.
In the doctrine of dependent relative revocation, it is wrong to make a
blanket statement. You have to reckon first with the general rule under Art.832.
Also, by now you must know the difference between Kalaw v. Relova and
Ajero v. CA. which I have given.
Cruz v. Villasor is a very impt case situation, so is Nuguid &
Nepomuceno, etc. Anyway, good luck. I hope you will learn from these more.