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notarial will
Sound mind
o Does NPC (knows the Nature of the property,
proper objects of bounty and character of
disposition) apply here?
No. the sound mind here is not in the same
context as the testator being of sound mind. For
a witness, just the soundness of mind without
knowing the nature of the property.
Atleast 18
Able to read and write
o Is it necessary to know the language of the will
by the witnesses?
No. not necessarily
o Is the witness even required to read the will?
No
o If he is not required, then what is he a witness of?
The act of the testator executing the will and his
capacity
o How can we be so sure of that they one testify as
having made by the testator is the same will
that you witnessed?
The signature is attached to the will.
Thats the purpose of the signature. To make
sure that the one being signed by the testator is
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
What if, after the execution of the will, the witness becomes
disqualified?
Revocation of wills
Are wills revocable?
Yes
No.
o
o
He can waive but the law does not mind him. The law says he
cannot waive that nor can it be restricted.
Yes.
Yes because testator has right to revoke at any time before his
death, hence it is still absolute. The making of a will is a
personal act even if there is a final decision of the court
allowing his will, you want to change that because youre still
alive, you can change that because your intention is the
supreme law in succession.
Yes.
E.g. You insitituted me in a will, revoked it and instituted C
instead who turned out to be dead already. That is ineffective.
No
by implication of law
by some will, codicil, or other iting wxwcuted as prvided in
case of wills; or
by burning , tearing, cancelling, or obliterating the will
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
WITNESSES TO WILLS
Who may be a witness?
Immaterial as to validity
material as to capacity to testify
witness to a will is different from witness in court
Witness in court is somebody who is capable of
perceiving and of communicating what he has
perceived. Thus, one who is deaf, dumb, or blind may
still be a witness in court as long as he is capable of
perceiving and communicating information, but he
cannot be a witness to a will because he is expressly
disqualified for being deaf, dumb or blind.
REVOCATION OF WILL
Revocability of wills
Except when
When to revoke
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
Anywhere
If revoked by person out of and not domiciled in the country,
valid if done according:
o Law of place where will was made; or
o Law of domicile of testator
If out but domiciled in the country
o Law of the Philippines
If revoked in the Philippines Phil law
How to revoke
By implication of law
By some will codicil or other wrting; or
By overt acts
Who revokes
Express
o By subsequent will or codicil
o Must be a valid will, as to form
o Must be definite except conditional revocation
Implied just because its in writing, it isnt necessarily an
express revocation.
o Irreconcilable inconsistency of provisions
o If party irreconcilable, it results in implied partial
revocation
o Revocation by implication is disfavored hence
inconsistency must be harmonized;
Testator
Other person
o In the presence of testator so that the testator could
be certain that what is being destroyed is indeed the
will he intends to revoke. Thus, webcam call does not
qualify as being in the presence.
o Under his express direction
Burning
o Sufficient even if only a small part is burned provided
that the subjective phase has already passed
o Even if the entire writing be left untouched
o Physical act must be coupled with intent
Tearing
o Sufficient even if a slight tear
o Only signature is torn
Cancelling
o Drawing of lines across texts
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
Kinds of Probate
Required by law
It is a proceeding in rem
o Except when the distribution is concerned.
o The will is secret only insofar as the testator is
concerned while he is alive or while he wants to keep it
a secret. He may, however, waive the secrecy.
Property right
o We cannot deprive a person of hs right to dispose of his
property by virtue of a will.
Who petitions
o Testator
Others cannot petition during the lifetime of the
testator because no right have vested yet.
When
o Any time prior to death
Where
o RTC of the province where
Testator resided at the time of death; or
Location of property
NOTE: Jurisdiction may be with the MTC (below
P20K) or the RTC depending on the value of the
estate
How
o Follow procedure for post mortem probate
Probate, defined.
Republication vs Revival
Who petitons
o Executor, devisee, legatee or any interested person
(heir)
When
o Any time after death
o Not subject to prescription because the Statute of
Limitations does not apply to special proceedings
o Not subject to estopped because it is impressed with
pubic interest and it might block the ascertainment or
determination of the truth
Where
o RTC of the province where
Testator resided at the time of death; or
Location of property
NOTE: Place of residence is preferred.
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
Determination of heirs
Proof of filiation
Determination of estate
o Determination of ownership is provisional
GENERAL RULE: A probate court cannot act on
question of title and ownership.
EXCEPTIONS:
Extrinsic validity
Intrinsic validity
Distribution not proceeding in rem, meaning it does not bind
you if you didnt know about it
Extrinsic validity
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
Distribution
Moral ascendancy
Revocation
o voluntary act of the testator
o with or without cause
o may be partial or total
Disallowance
o by judicial order
o for legal cause
o always total EXCEPT where fraud/undue influence
affects only certain portions of the will
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
There are three: (1) the will must be extrinsically valid; (2) the
institution must be intrinsically valid; (3) the institution must
be effective (the heir doesnt predeceases, repudiates or
becomes incapacitated).
You are free to give your entire property to anybody you like
provided the voluntary heir is capacitated to succeed.
No one inherits.
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
10
A will get P300K. B will get P200K + the racquet worth P100K.
C will get P250K + the DVD collection worth P50K.
They each will get an equal share because within that context,
they are all in the same category of strangers/friends.
be
increased
What if I was too arrogant and I gave you all P2M each and
my estate was insufficient?
P200K each.
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
11
say
there
is
preterition?
What
are
the
For example, if the legitime 100t but you receive only 10t .
The will remains valid but the share of the heir will be taken
from the share of the other.
Yes. No matter how small, that partial share that was given to
you, it does not result in preterition because a little something
is given. Bottom line: as long as you are given a little
something, no matter how small there is no preterition
because what is required is total omission.
What if your name was there but the share is less than the
others? Is there preterition? No.
Whats the remedy?
So are you saying that you are my compulsory heir and I give
you a little a something not equal with the others, there is
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
12
I give 250t pesos each then I forgot to name the other one,
can he get something even if he was not named?
No, because it is unfair for the surviving spouse. And the book
gave three reasons and one of them is about the illegitimate
child. If the illegitimate child is omitted, they can question the
omission however, if it is the surviving spouse that is omitted,
the surviving spouse has no recourse. He or she cannot
question or invoke preterition.
By operation of law.
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
13
Yes, sir, regarding the partition. You cannot have partition not
exceeding 20 years from the execution. You cannot impose a
condition on the legitime,
except when you impose a
condition that you cannot partition that property for a period
not exceeding 20 years.
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
14
Why?
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
15
Hey, you can marry but not in the next ten years. Can I do
that?
What if you are already 70 years, and the will says you can
never marry in 10 years. That is already burdensome. You can
marry but never in the Philippines. Burdensome. I institute
you as an heir provided you marry Torky. No.
Marry Torky, is that absolute prohibition?
There is no timeline.
Yes. When testator impose prohibitions for the heir not to do.
Example: Joan gives me one of her cars on the condition that I
do not marry for a period of 10 years.
When do you
condition?
inherit
if
there
is
negative
potestative
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
16
The condition is not deemed fulfilled. The heir must win the
lotto again.
A condition that depends partly both upon the will of the heir
himself and upon the chance and/or the will of a 3rd person.
What if Ms. Salas is already a lawyer and you did not know
about it, what happens?
What if the testator died after the testator but prior to the
fulfilment of the condition, can the heir transmit the rights to
his own heirs?
Usufructuary.
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
17
What are the requisites for which you can institute the soul?
What if the
government?
person
who
instituted
soul
hated
the
To the court.
Where does the State apply the 50%? For what purpose?
If you cannot articulate your intent in such clarity, the law operates.
Your intent is inferior to the law, if you are ambiguous.
Can I institute the rich?
Who determines?
By majority vote.
No. It is prohibited.
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS
18
Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS