1

Law on Succession
Laws and Case Doctrines
I.

General Principles
a. Definition and Concept of Succession
i. Art. 712
ii. Art. 774
iii. Art. 1311
b. Kinds of Succession
i. Art. 778 780
ii. Art. 960 in relation to Art. 84 of
the Family Code
iii. Art. 130
iv. Art. 752
v. Art. 1347
c. Opening of Succession
i. Art. 777 in relation to Art. 130,
132, 390-391, 533
ii. Art. 1347
iii. Art.1461
iv. Art. 2253
v. Art. 2263 NCC
vi. Art. 84
vii. Art. 86 of the Family Code
viii. Cases:

Uson v. Del Rosario

RENUNCIATION OF INHERITANCE MADE BY
LAWFUL WIFE FUTURE INHERITANCE, NOT
SUBJECT TO CONTRACT. Although the lawful wife
has expressly renounced her right to inherit any
future property that her husband may acquire
and leave upon his death, such renunciation
cannot be entertained for the simple reason that
future inheritance cannot be the subject of a
contract nor can it be renounced (1 Manresa,

6th ed., 123 Osorio vs. Osorio, et al., 41 Phil.,

531);
DESCENT AND DISTRIBUTION HUSBAND AND
WIFE RIGHTS OF LAWFUL WIFE AS AFFECTED BY
THE NEW CIVIL CODE. The right of ownership
of the lawful wife of a decedent who had died
before the new Civil Code took effect became
vested in her upon his death, and this is so
because of the imperative provision of the law
which commands that the rights of succession
are transmitted from the moment of death (Art.
657, old Civil Code Ilustre vs. Frondosa, 17 Phil.,
321). The new right recognized by the new Civil
Code in favor of the illegitimate children of the
deceased cannot be asserted to the impairment
of the vested right of the lawful wife over the
lands in dispute. While article 2253 of the new
Civil Code provides that rights which are
declared for the first time shall have retroactive
effect even though the event which gave rise to
them may have occurred under the former
legislation, yet this is so only when the new
rights do not prejudice any vested or acquired
right of the same origin.

De Borja v. De Borja
Civil law Wills Remedial law Testate and
intestate proceedings Rule of nullity of
extrajudicial settlement prior to probate of will
inapplicable to case at bar. The doctrine of
Guevarra vs. Guevarra, 74 Phil. 479, which holds
that the presentation of a will for probate is
mandatory and that the settlement and
distribution of an estate on the basis of
intestacy when the decedent left a will is against
the law and public policy, is not applicable

where the clear abject of the settlement was

merely the conveyance by the heir of any and
all her individual share and interest, actual or
eventual, in the estate of the decedent and not
the distribution of the said estate among the
heirs before the probate of the will.
Remedial
law
Testate
and
intestate
proceedings Settlement entered into by heir in
his individual capacity does not need court
approval. Where the compromise agreement
entered into by and between the various heirs in
the personal capacity, the same is binding upon
them as individuals, upon the perfection of the
contract, even without previous authority of the
Court to enter into such agreement. The only
difference between an extrajudicial compromise
and one that is submitted and approved by the
Court, is that the latter can be enforced by
execution proceedings.
Civil law Succession Heir may sell her
hereditary rights to coheir. As owner of her
individual share, an heir could dispose of it in
favor of whomsoever she chose, including
another heir of the same defendant. Such
alienation is expressly recognized and provided
for by Article 1088 of the present Civil Code.
Same Same Case at bar, agreement does not
compromise status of heir and her marriage. A
contract which describes one of the heirs as
the heir and surviving spouse of Francisco de
Borja by his second marriage, Tasiana
Ongsingco Vda. de Borja, in itself is a definite
admission of such heirs civil status in relation to
the decedent. There is nothing in the text of the
agreement that would show that this recognition
of Ongsingcos status as the surviving spouse of

Francisco de Borja was only made in

consideration of the cession of her hereditary
rights.
Remedial law Compromise Inability of parties
to draw new agreement does not annul a prior
one. The inability among the heirs to reach a
novatory accord cannot invalidate the original
compromise among them and any of the latter
is justified in finally seeking a court order for the
approval and enforcement of such compromise.

Bonilla v. Barcena
Succession Rights to succession transmitted
from the moment of death of decedent. Article
777 of the Civil Code provides that the rights to
the succession are transmitted from the
moment of the death of the decedent. From the
moment of the death of the decedent, the heirs
become the absolute owners of his property,
subject to the rights and obligations of the
decedent, and they cannot be deprived of their
rights thereto except by the methods provided
for by law. The moment of death is the
determining factor when the heirs acquire a
definite right to the inheritance whether such
right be pure or contingent. The right of the
heirs to the property of the deceased vests in
them even before judicial declaration of their
being heirs in the testate or intestate
proceedings.
Borromeo-Herrera v. Herrera
Civil Law Succession Heirs acquire a right to
succession from the moment of the death of the
deceased. The prevailing jurisprudence on

waiver of hereditary rights is that "the

properties included in an existing inheritance
cannot be considered as belonging to third
persons with respect to the heirs, who by fiction
of law continue the personality of the former.
Nor do such properties have the character of
future property, because the heirs acquire a
right to succession from the moment of the
death of the deceased, by principle established
in article 657 and applied by article 661 of the
Civil Code, according to which the heirs succeed
the deceased by the mere fact of death. More or
less, time may elapse from the moment of the
death of the deceased until the heirs enter into
possession of the hereditary property, but the
acceptance in any event retro acts to the
moment of the death, in accordance with article
989 of the Civil Code. The right is vested,
although conditioned upon the adjudication of
the corresponding hereditary portion." (Osorio v.
Osorio and Ynchausti Steamship Co., 41 Phil.,
531). The heirs, therefore, could waive their
hereditary rights in 1967 even if the order to
partition the estate was issued only in 1969.
Same Same Waiver of hereditary rights,
requisites. In this case, however, the
purported "Waiver of Hereditary Rights" cannot
be considered to be effective. For a waiver to
exist, three elements are essential: (1) the
existence of a right (2) the knowledge of the
existence thereof and (3) an intention to
relinquish such right. (People v. Salvador, (CA)
53 O.G. No. 22, p. 8116, 8120). The intention to
waive a right or advantage must be shown
clearly and convincingly, and when the only
proof of intention rests in what a party does, his

act should be so manifestly consistent with, and

indicative of an intent to, voluntarily relinquish
the particular right or advantage that no other
reasonable explanation of his conduct is
possible.
Rioferio v. Court of Appeals
Remedial
Law
Actions
Party-in-interest
Pending the filing of administration proceedings,
the heirs without doubt have legal personality
to bring suit in behalf of the estate of the
decedent in accordance with the provision of
Article 777 of the New Civil Code. - Pending the
filing of administration proceedings, the heirs
without doubt have legal personality to bring
suit in behalf of the estate of the decedent in
accordance with the provision of Article 777 of
the New Civil Code that (t)he rights to
succession are transmitted from the moment of
the death of the decedent. The provision in
turn is the foundation of the principle that the
property, rights and obligations to the extent
and value of the inheritance of a person are
transmitted through his death to another or
others by his will or by operation of law.
Same Same Same Court recognized the legal
standing of the heirs to represent the rights and
properties of the decedent under administration
pending the appointment of an administrator.
Even if administration proceedings have already
been commenced, the heirs may still bring the
suit if an administrator has not yet been
appointed. This is the proper modality despite
the total lack of advertence to the heirs in the
rules on party representation, namely Section 3,
Rule 3 and Section 2, Rule 87 of the Rules of

4
Court. In fact, in the case of Gochan v. Young,
this Court recognized the legal standing of the
heirs to represent the rights and properties of
the decedent under administration pending the
appointment of an administrator.
d. Subject and Object of Succession
i. Art. 775-782
ii. Art. 887
iii. Art. 963-969
iv. Art. 1003
v. Art. 1014
vi. Art. 1024-1057 in relation to Art.
1178, 1311, 1347, 1429
vii. Cases:
Cayetano v. Leonides
Where circumstances demand that intrinsic
validity of testamentary provisions be passed
upon even before the extrinsic validity of will is
resolved, probate court should meet the issue.
The third issue raised deals with the validity
of the provisions of the will. As a general rule,
the probate courts authority is limited only to
the extrinsic validity of the will, the due
execution thereof, the testatrixs testamentary
capacity and the compliance with the requisites
or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the
court has declared that the will has been duly
authenticated.
However,
where
practical
considerations demand that the intrinsic validity
of the will bepassed upon, even before it is
probated, the court should meet the issue.
(Maninang v. Court of Appeals, 114 SCRA 478).
Same The U.S. law on succession in the state of
Pennsylvania applies to the intrinsic and

extrinsic validity of the last will and testament

of a U.S. national and resident of Pennsylvania
under whose laws a person may give his entire
estate to a complete stranger.Although on its
face, the will appeared to have preterited the
petitioner and thus, the respondent judge
should have denied its reprobate outright, the
private
respondents
have
sufficiently
established that Adoracion was, at the time of
her death, an American citizen and a permanent
resident of Philadelphia, Pennsylvania, U.S.A.
Therefore, under Article 16 par. (2) and 1039 of
the Civil Code which respectively provide: x x x
x the law which governs Adoracion Campos will
is the law of Pennsylvania, U.S.A., which is the
national law of the decedent. Although the
parties admit that the Pennsylvania law does
not provide for legitimes and that all the estate
may be given away by the testatrix to a
complete stranger, the petitioner argues that
such law should not apply because it would be
contrary to the sound and established public
policy and would run counter to the specific
provisions of Philippine Law.
Same Same. It is a settled rule that as
regards the intrinsic validity of the 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. This was squarely applied
in the case of Bellis v. Bellis (20 SCRA 358).

Parish Priest of Victoria v. Rigor

Settlement of Estate Will of Testator is the first
and principal law in the matter of Testaments.
The will of the testator is the first and principal
law in the matter of testaments. When his

intention is clearly and precisely expressed, any

interpretation must be in accord when it may
certainly appear that his intention was different
from that literally expressed (In re Estate of
Caldero, 26 Phil. 2378).
Same Same. One canon in the interpretation
of the testamentary provisions is that the
testators intention is to be ascertained from the
words of the will, taking into consideration the
circumstances as this intention (Art. 789, Civil
Code of the Philippines).
Same A bequest of land to the nearest male
relative of the grantor who would study for the
priesthood construed to mean the grantors
nearest male relative living at the time of his
death and not any indefinite time thereafter.
We hold that the said bequest refers to the
testators nearest male relative living at the
time of his death and not to any indefinite time
thereafter. In order to be capacitated to inherit,
the heir, devisee or legatee must be living at the
moment the succession opens, except in case of
representation, when it is proper. The said
testamentary provisions should be sensibly or
reasonably construed. To construe them as
referring to the testators nearest male relative
at any time after his death would render the
provisions difficult to apply and create
uncertainty as to the disposition of his estate.
That could not have been his intention.

Reyes v. Court of Appeals

Wills Probate Finality of probate decree. A
probate decree finally and definitively settles all
questions concerning capacity of the testator
and the proper execution and witnessing of his

last will and testament, irrespectiveof whether

its provisions are valid and enforceable or
otherwise. As such, the probate order is final
and appealable, and it is so recognized by
express provisions of Section 1 of Rule 109.
Samaniego-Celada v. Abena
Wills and Succession; While it is true that the
attestation clause is not a part of the will, the
court, after examining the totality of the will, is
of the considered opinion that error in the
number of pages of the will as states in the
attestation clause is not material to invalidate
the subject will. Anent the contestants
submission that the will is fatally defective for
the reason that its attestation clause states that
the will is composed of three (3) pages while in
truth and in fact, the will consists of two (2)
pages only because the attestation is not a part
of the notarial will, the same is not accurate.
While it is true the attestation clause is not a
part of the will, the court, after examining the
totality of the will, is of the considered opinion
that error in the number of pages of the will as
stated in the attestation clause is not material
to invalidate the subject will. It must be noted
that the subject instrument is consecutively
lettered with pages A, B, and C which is a
sufficient safeguard from the possibility of an
omission of some of the pages. The error must
have been brought of an omission of some of
the pages. The error must have been brought
about by the honest belief that the will is the
whole instrument consisting of three (3) pages
inclusive of the attestation clause and the
acknowledgement. The position of the court is in

consonance with the doctrine of liberation

enunciated in Art. 809 of the Civil Code
which reads: 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 there in 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.
Same; Petitioner and her siblings are not
compulsory heirs of the decedent under Art. 887
of the Civil Code and as the decedent validly
disposed of her properties in a will duly
executed and probated, petitioner has no legal
right to claim any part of the decedents estate.
We find no reason to disturb the
abovementioned findings of the RTC. Since,
petitioner and her siblings are not compulsory
heirs of the decedent under Art. 887 of the Civil
Code and as the decedent validly disposed of
her properties in a will duly executed and
probated, petitioner has no legal right to claim
any part of the decedents estate.

e. Law governing form and content

i. Art. 16-17
ii. Art. 795
iii. Art. 810
iv. Art. 815-819
v. Art. 2263
vi. Cases:
Enriques v. Abadia
WILLS PROBATE OF WILL VALIDITY OF WILLS AS
TO FORM DEPENDS UPON LAW IN FORCE AT

TlME OF EXECUTION TlTLE OF LEGATEES AND

DEVISEES UNDER WILL VESTS FROM TIME OF
ExECUTION.The validity of a will as to form is
to be judged not by the law in force 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.
ID.
EXECUTION
OF
WILLS
LAW
SUBSEQUENTLYPASSED,
ADDING
NEW
REQUIREMENTS AS TO EXECUTION OF WILLS
FAILURE TO OBSERVE FORMAL REQUIREMENTS
AT TIME OF EXECUTION INVALIDATES WlLLS
HEIRS INHERIT BY INTESTATE SUCCESSION
LEGISLATURE CAN NOT VALIDATE VOID WILLS.
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

7
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 cannot validate void wills
(57 Am. Jur., Wills, Sec. 231, pp. 192193).
Fluemer v. His
WlLLS EXECUTORS AND ADMINISTRATORS
CODE OF ClVIL PROCEDURE, SECTION 781, AS
AMENDED,
APPLIED
RIGHT
OF
SPECIAL
ADMINISTRATOR
TO
APPEAL
FROM
DlSALLOWANCE OF A WlLL.The special
administrator of an estate is a "person
interested in the allowance or disallowance of a
will by a Court of First Instance," within the
meaning of section 781, as amended, of the
Code of Civil Procedure, and so may be
permitted to appeal to the Supreme Court from
the disallowance of a will.
Dela Cerna v. Potot
Judgments Probate courts Error of law does not
affect jurisdiction, of probate court nor
conclusive effect of its decision. An error of
law committed in admitting a joint will to
probate does not affect the jurisdiction of the
probate court nor the conclusive effect of its
final decision.
Same Same Probate decree of joint will affects
only share of deceased spouse. A final probate
decree of a joint will of husband and wife affects
only the share of the deceased spouse and
cannot include the disposition of said joint will,

in so far as the estate of the latter spouse is

concerned, must be, on her death, reexamined
and adjudicated de novo.
Wills Effects of validity of joint will as to share
of wife who dies later than the husband.Where
a husband and wife executed a joint will and
upon the death of the husband said will was
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.

Estate of Amos Bellis

Wills Succession Conflict of laws Renvoi
doctrine. The doctrine of renvoi is usually
pertinent where the decedent is a national of
one country and is domiciled in another. It does
not apply to a case where the decedent was a
citizen of Texas and was domiciled therein at the
time of his death. So that, even assuming that
Texas has a conflicts rule providing that the
domiciliary law should govern successional
rights, the same would not result in a reference
back (renvoi) to Philippine law, but it would still
refer to Texas law. Nonetheless, if Texas has a
conflicts rule, adopting the rule of lex rei sitae,
which calls for the application of the law of the

place where the properties are situated, renvoi

would arise, where the properties involved are
found in the Philippines.
Same Foreign laws.In the absence of proof as
to the conflicts rule of Texas, it would be
presumed to be the same as our local conflicts
rule.
Same Applicability of national law to
succession
Capacity
to
succeedThe
decedent's national law governs the order of
succession, the amount of successional rights,
the intrinsic validity of the provisions of the will
and capacity to succeed.
Same Third paragraph of article 17 of New Civil
Code does not modify article 16. The third
paragraph of article 17 of the New Civil Code is
not an exception to the second paragraph of
article 16. Precisely, Congress deleted the
phrase, "notwithstanding the provisions of this
and the next preceding article," when it
incorporated article 11 of the old Civil Code as
article 17, while reproducing without substantial
change the second paragraph of article 10 of
the old Civil Code, as article 16. The legislative
intent must have been to make the second
paragraph of article 176 a specific provision in
itself which must be applied in testate and
intestate succession. As a further indication of
this legislative intent, Congress added a new
provision, under article 1039, which decrees
that capacity to succeed is governed by the
decedent's national law.
Same Legitimes Statutes Special and general
provisions. Whatever public policy and good
customs may be involved in our system of
legitimes, Congress has not intended to extend

II.

the same to the succession of foreign nationals.

It has specifically chosen the decedent's
national law to govern, inter alia, the amount of
successional rights. Specific provisions must
prevail over general ones.
Same Testamentary provision that successional
right to decedent's estate would be governed by
law other than his national law is void. A
provision in a foreigner's will that his properties
should be distributed in accordance with
Philippine law and not in accordance with his
national law is void, being contrary to article 16
of the New Civil Code.
Same System of legitimes does not apply to
estate of a citizen of Texas. Where the
decedent was a citizen of Texas and under Texas
laws there are no forced heirs, the system of
legitimes in Philippine law cannot be applied to
the succession to the decedent's testate
because the intrinsic validity of the provisions of
the decedent's will and the amount of
successional rights are to be determined under
Texas law.

Testamentary Succession
a. Concept
of
Wills;
Testamentary
Capacity and Intent; Notarial Wills;
Witnesses to Wills
i. Art. 783 809
ii. Art. 820 824
iii. Art. 828
iv. Art. 839 (3) & (4)
v. Art. 930
vi. Cases
Suroza v. Honrado, 110 SCRA 388

Same Same Inasmuch as the will written in

English says that it was in a language
understood and known to the testatrix, but also
states that it was translated into the Filipino
language, the probate judge should have
readily perceived that the testatrix is illiterate
and the will is void. In the opening paragraph
of the will, it was stated that English was a
language understood and known to the
testatrix. But in its concluding paragraph, it was
stated that the will was read to the testatrix
and translated into Filipino language. (p. 16,
Record of testate case). That could only mean
that the will was written in a language not
known to the illiterate testatrix and, therefore, it
is void because of the mandatory provision of
article 804 of the Civil Code that every will must
be executed in a language or dialect known to
the testator. Thus, a will written in English,
which was not known to the Igorot testator, is
void and was disallowed (Acop vs. Piraso, 52
Phil. 660).

Garcia v. Lacuesta, 90 Phil. 489

WILLS ATTESTATION CLAUSE SIGNING BY
ANOTHER OP TESTATOR'S NAMB AT LATTER'S
DIRECTION. When the testator expressly
caused another to sign the former's name, this
fact must be recited in the attestation clause.
Otherwise, the will is fatally defective.
ID. SIGNATURE OF TESTATOR CROSS. Where
the cross appearing on a will is not the usual
signature of the testator or even one of the
ways by which he signed his name, that cross
cannot be considered a valid signature

Matias v. Salud, L-10751, June 23, 1958

WILLS PROBATE DENIAL BY PROBATE COURT
APPEAL TAKEN BY UNIVERSAL HEIR EFFECT IN
THE INTEREST OF SAID HEIR. Although the
probate of the will and testament of the testatrix
was denied by the Probate Court, the order to
this effect is not, as yet, final and executory. It is
pending review on appeal taken by the universal
heir. The probate of said alleged will being still
within the realm of legal possibility, the
universal heir, and executrix designated in said
instrument has a special interest to protect
during the pendency of said appeal. Thus, in the
case of Roxas vs. Pecson (46 Off. Gaz., 2058)
the Supreme Court held' that a widow,
designated as executrix in the alleged will and
testament of her deceased husband, the
probate of which had been denied in an order
pending appeal, "has * * * the same beneficial
interest after the decision of the court
disapproving the will, which, is now pending
appeal, because the decision is not yet final and
may be reversed by the appellate Court."
EXECUTOR AND ADMINISTRATOR APPOINTMENT
OF TWO OR MORE SPECIAL ADMINISTRATORS.
Where it appears that there are, at least, two
factions among the heirs of the deceased,
representing their respective interest in the
estate, and the probate Court deems it best to
appoint more than one special administrator,
justice and equity demands that both factions
be represented in the management of the estate
of the deceased.
Nera v. Rimando, 18 Phil. 450

10

EXECUTION OF WlLLS POSITION OF TESTATOR

AND WlTNESS WHEN WILL is SUBSCRIBED.
The position of testator and of the witnesses to
a will, at the moment of the subscription by
each, must be such that they may see each
other sign if they choose to do so.
ID. ID. SIGNING IN THE PRESENCE OF EACH
OTHER. The question whether the testator and
the subscribing witnesses to an alleged will sign
the instrument in the presence of each other
does not depend upon proof of the fact that
their eyes were actually cast upon the paper at
the moment of its subscription by each of them,
but whether at that moment existing conditions
and the position of the parties, with relation to
each other, were such that by merely casting
their eyes in the proper direction they could
have seen each other sign.
ID. ID. ID. ONE WITNESS IN OUTER ROOM
WHEN WILL is SIGNED. If one subscribing
witness to a will is shown to have been in an
outer room at the time when the testator and
the other witnesses attach their signatures to
the instrument in an inner room, the will would
be held invalidthe attaching of the said
signatures, under such circumstances, not being
done "in the presence" of the witness in the
outer room.

Icasiano v. Icasiano, 11 SCRA 422

Wills Probate Policy of Court against undue
curtailment of testamentary privileges. The
precedents cited in the case at bar exemplify
the Court's policy to require satisfaction of the
legal requirements in the probate of a will in
order to guard against fraud and bad faith but

without undue or unnecessary curtailment of

the testamentary privilege.
Same Same Handwriting expert must have
sufficient standards of comparison to prove
forgery of testatrix's signature. The opinion of
a handwriting expert trying to prove forgery of
the testatrix's signature fails to convince the
court, not only because it is directly
contradicted by another expert but principally
because of the paucity of the standards used by
him (only three other signatures), considering
the advanced age of the testatrix, the evident
variability of her signatures, and the effect of
writing fatigue.
Same Same Variance in ink color not reliable
when writings affixed to different kinds of paper.
The slight variance in blueness of the ink in
the admitted and questioned signatures does
not appear reliable, considering that the
standard and challenged writings were affixed to
different kinds of paper.
Same Same Fraud or undue influence,
diversity of apportionment and prohibition
against contest no evidence of. Neither
diversity of apportionment nor prohibition
against contest is evidence of fraud or undue
influence in the execution of a will.
Same Same Fraud and undue influence are
repugnant allegations. Allegations of fraud
and undue influence are mutually repugnant
and exclude each other their joining as grounds
for opposing probate shows absence of definite
evidence against the validity of the will.
Same Same Inadvertent failure of an attesting
witness to affix his signature to one page of a

11

will not fatal. The inadvertent failure of an

attesting witness to affix his signature to one
page of a testament, due to the simultaneous
lifting of two pages in the course of signing, is
not per se sufficient to justify denial of probate.
Same Same Signed carbon duplicate of will
needs no publication. That the signed carbon
duplicate of a will was produced and admitted
without a new publication does not affect the
jurisdiction of the probate court, already
conferred by the original publication of the
petition for probate, where the amended
petition did not substantially alter the first one
filed, but merely supplemented it by disclosing
the existence of said duplicate.

Cruz v. Villasor, 54 SCRA 31

Succession
Wills
Formal
requirements
Acknowledging officer cannot serve as witness
at the same time. 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. 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.
Notary public Function of office of notary
public. The function of a notary public is,

among others, to guard against any illegal or

immoral arrangements. That function would be
defeated if the notary public were one of the
attesting witnesses. For then he would be
interested in sustaining the validity of the will as
it directly involves himself and the validity of his
own act. It would place him in an inconsistent
position and the very purpose of the
acknowledgment, which is to minimize fraud
would be thwarted.
Javellana v. Ledesma, 97 Phil. 258
WILLS ACKNOWLEDGMENT CERTIFICATION OF
NOTARY
THAT
TESTAMENT
WAS
DULY
ACKNOWLEDGED
IS
NOT
PART
OF
ACKNOWLEDGMENT OR TESTAMENTARY ACT.
The subsequent signing and sealing by the
notary of his certification that the testament
was duly acknowledged by the participants
therein is no part of the acknowledgment itself
nor of the testamentary act. Hence their
separate execution out of the presence of the
testatrix and her witnesses cannot be said to
violate the rule that testaments should be
completed without interruption (Andalis vs.
Pulgueras, 59 Phil., 643), or, as the Roman
maxim puts it, "uno eodem die ac tempore in
eodem loco".
Caneda v. Court of Appeals, 222 SCRA 781
Wills and Succession There are two (2) kinds of
wills. In addition, the ordinary will must be
acknowledged before a notary public by the
testator and the attesting witnesses, hence it is
likewise known as a notarial will. Where the
testator is deaf or a deafmute, Article 807

12

requires that he must personally read the will, if

able to do so. Otherwise, he should designate
two persons who will read the will and
communicate its contents to him in a
practicable manner. On the other hand, if the
testator is blind, the will should be read to him
twice once, by anyone of the witnesses thereto,
and then again, by the notary public before
whom it is acknowledged. The other kind of will
is the holographic will, which Article 810 defines
as one that is entirely written, dated, and signed
by the hand of the testator himself. This kind of
will, unlike the ordinary type, requires no
attestation
by
witnesses.
A
common
requirement in both kinds of wills is that they
should be in writing and must have been
executed in a language or dialect known to the
testator.
Same Attestation clause valid even if in a
language not known to testator. However, in
the case of an ordinary or attested will, its
attestation clause need not be written in a
language or dialect known to the testator since
it does not form part of the testamentary
disposition. Furthermore, the language used in
the attestation clause likewise need not even be
known to the attesting witnesses. The last
paragraph of Article 805 merely requires that, in
such a case, the attestation clause shall be
interpreted to said witnesses.
Same Purposes of attestation clause. The
purpose of the law in requiring the clause to
state the number of pages on which the will is
written is to safeguard against possible
interpolation or omission of one or some of its
pages and to prevent any increase or decrease

in the pages whereas the subscription of the

signatures of the testator and the attesting
witnesses is made for the purpose of
authentication and identification, and thus
indicates that the will is the very same
instrument executed by the testator and
attested to by the witnesses.
Same Same. Further, by attesting and
subscribing to the will, the witnesses thereby
declare the due execution of the will as
embodied in the attestation clause. The
attestation clause, therefore, provides strong
legal guaranties for the due execution of a will
and to insure the authenticity thereof. As it
appertains only to the witnesses and not to the
testator, it need be signed only by them. Where
it is left unsigned, it would result in the
invalidation of the will as it would be possible
and easy to add the clause on a subsequent
occasion in the absence of the testator and the
witnesses.
Same Words and Phrases Attestation and
Subscription distinguished. It will be noted
that Article 805 requires that the witnesses
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 the 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.

13

Same Attestation clause which does not state

that testament was signed by the witnesses in
the presence of one another and of the
testator renders the will null and void. 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.
Same Mere defects in form in the attestation
clause do not render will void. We stress once
more that under Article 809, the defects or
imperfections must only be with respect to the
form of the attestation or the language
employed therein. Such defects orimperfections
would not render a will invalid should it be
proved that the will was really executed and
attested in compliance with Article 805. In this
regard, however, the manner of proving the due
execution and attestation has been held to be
limited to merely an examination of the will
itself without resorting to evidence aliunde,
whether oral or written.
Same Same Defects in attestation clause
which require submission of parol evidence not
mere defects of form. In the case at bar,
contrarily, proof of the acts required to have
been performed by the attesting witnesses can
be supplied only by extrinsic evidence thereof,
since an overall appreciation of the contents of
the will yields no basis whatsoever from which
such facts may be plausibly deduced. What
private
respondent
insists
on
are
the
testimonies of his witnesses alleging that they
saw the compliance with such requirements by
the instrumental witnesses, oblivious of the fact
that he is thereby resorting to extrinsic evidence
to prove the same and would accordingly be
doing by indirection what in law he cannot do
directly.
Same Same Same. It may thus be stated
that the rule, as it now stands, is that omission
which can be supplied by an examination of the

14
will itself, without the need of resorting to
extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the
allowance to probate of the will being assailed.
However, those omissions which cannot be
supplied except by evidence aliunde would
result in the invalidation of the attestation
clause and ultimately, of the will itself.
Garcia v. Vasquez, 32 SCRA 489
Succession Wills Execution of wills Where
testator is blind, will must be read to him twice
Reasons. Where the testator is blind, the will
must be read to him twice as required by Article
808 of the Civil Code. The reason for this is to
make the provisions thereof known to him, so
that he may be able to object if they are not in
accordance with his wishes. Failure to comply
with this requirement makes the will invalid.
Settlement of estate of deceased persons
Administrators Where administrator holds
adverse interest to estate, he may be removed.
Where the administrator hold interest
adverse to the estate or by his conduct,
demonstrated his unfitness or unsuitableness to
discharge the trust, he should be removed from
the administration from the estate
Taboada v. Rosal
Words and Phrases Testamentary Succession
Wills
The
terms
attestation
and
subscription, defined. It must be noted that
the law uses the terms attested and subscribed.
Attestation consists in witnessing the testators
execution of the will in order to see and take
note mentally that those things are done which

the statute requires for the execution of a will

and that the signature of the testator exists as a
fact. On the other hand, subscription is the
signing of the witnesses names upon the same
paper for the purpose of identification of such
paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).
Same Same Same The attesting witnesses
may sign at the lefthand margin of the pages of
a will instead of at the end of the will. Insofar
as the requirement of subscription is concerned,
it is our considered view that the will in this case
was subscribed in a manner which fully satisfies
the purpose of identification. The signatures of
the instrumental witnesses on the left margin of
the first page of the will attested not only to the
genuineness of the signature of the testatrix but
also the due execution of the will as embodied
in the attestation clause.
Same Same Same The law on the formal
requirements of a Will should be liberally
construed. While perfection in drafting is
desirable, unsubstantial departures should be
ignored.While perfection in the drafting of a
will may be desirable, unsubstantial departure
from the usual forms should be ignored,
especially where the authenticity of the will is
not assailed. (Gonzales v. Gonzales, 90 Phil.
444, 449). The law is to be liberally construed,
the underlying and fundamental objective
permeating the provisions on the law on wills in
this project consists in the liberalization of the
manner of their execution with the end in view
of giving the testator more freedom in
expressing his last wishes but with sufficient
safeguards and restrictions to prevent the

15

commission of fraud and the exercise of undue

and improper pressure and influence upon the
testator. This objective is in accord with the
modern tendency in respect to the formalities in
the execution of a will.
Same Same Same Failure of attestation
clause to state number of pages would have
been fatal had not the Will at bar consisted only
of two pages and the acknowledgment clause
states that the Will has only two pages.We
have examined the will in question and noticed
that the attestation clause failed to state the
number of pages used in writing the will. This
would have been a fatal defect were it not for
the fact that, in this case, it is discernible from
the entire will that it is really and actually
composed of only two pages duly signed by the
testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the
entirety of the testamentary dispositions is
signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed
at the left margin. The other page which is
marked as Pagina dos comprises the
attestation clause and the acknowledgment. The
acknowledgment itself states that This Last Will
and Testament consists of two pages including
this page.

Alvarado
v.
Gaviola,
G.R.
No.
74695,
September 14, 1993
Civil Law Wills Article 808 applies not only to
blind testators but also, to those who, for one
reason or another, are incapable of reading
their wills.Clear from the foregoing is that
Art. 808 applies not only to blind testators but

also to those who, for one reason or another, are

incapable of reading the(ir) will(s). Since
Brigido Alvarado was incapable of reading the
final drafts of his will and codicil on the separate
occasions of their execution due to his poor,
defective, or blurred vision, there can be no
other course for us but to conclude that Brigido
Alvarado comes within the scope of the term
blind as it is used in Art. 808. Unless the
contents were read to him, he had no way of
ascertaining whether or not the lawyer who
drafted the will and codicil did so conformably
with his instructions.
Same Same Same The purpose of reading the
will twice 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.
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.
Same Same Same Same Court held in a
number
of
occasions
that
substantial
compliance is acceptable where the purpose of
the law has been satisfied.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

16

kinds of fraud and trickery but are never

intended to be so rigid and inflexible as to
destroy the testamentary privilege.
Same Same Same Same 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 testators will.
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 testators will.

Gonzales v. Court of Appeals, 90 SCRA 183

Will Settlement of Estate It is presumed that a
witness to a will has the qualifications
prescribed by law, unless the contrary is
established by the oppositor. We reject
petitioners contention that it must first be
established in the record the good standing of
the witness in the community, his reputation for
trustworthiness and reliableness, his honesty
and uprightness, because such attributes are
presumed of the witness unless the contrary is
proved otherwise by the opposing party.
Same Same Same Words competent
witness and credible witness compared. In
the strict sense, the competency of a person to
be an instrumental witness to a will is
determined by the statute, that is Arts. 820 and

821, Civil Code, whereas his credibility depends

on the appreciation of his testimony and arises
from the belief and conclusion of the Court that
said witness is telling the truth. Thus, in the
case of Vda. de Aroyo v. El Beaterio del
Santissimo Rosario de Molo, No. L22005, May 3,
1968, the Supreme Court held and ruled that:
Competency as a witness is one thing, and it is
another to be a credible witness, so credible
that the Court must accept what he says. Trial
courts may allow a person to testify as a witness
upon a given matter because he is competent,
but may thereafter decide whether to believe or
not to believe his testimony.
Same Same To be considered a credible
witness to a will it is not mandatory that
witness good community standing and probity
be first established. In fine, We state the rule
that the instrumental witnesses in order to be
competent must be shown to have the
qualifications under Article 820 of the Civil Code
and none of the disqualifications under Article
821 and for their testimony to be credible, that
is worthy of belief and entitled to credence, it is
not mandatory that evidence be first established
on record that the witnesses have a good
standing in the community or that they are
honest and upright or reputed to be trustworthy
and reliable, for a person is presumed to be
such unless the contrary is established
otherwise. In other words, the instrumental
witnesses must be competent and their
testimonies must be credible before the court
allows the probate of the will they have
attested.

17

Same Same Same Attestation clause best

evidence of date the will was signed. The
attestation clause which Matilde Orobia signed
is the best evidence as to the date of signing
because it preserves in permanent form a recital
of all the material facts attending the execution
of the will. This is the very purpose of the
attestation clause which is made for the purpose
of preserving in permanent form, a record of the
facts attending the execution of the will, so that
in case of failure in the memory of the
subscribing witnesses, or other casualty they
may still be proved.
Same Same Same Fact that there was conflict
of testimony as to identity of photographer who
took a photograph of the signing and attestation
of the will, not a requirement of law, is of minor
importance. What matters most is the
photograph itself. The law does not require a
photographer for the execution and attestation
of the will. The fact that Miss Orobia mistakenly
identified the photographer as Cesar Mendoza
scarcely detracts from her testimony that she
was present when the will was signed because
what matters here is not the photographer but
the photograph taken which clearly portrays
Matilde Orobia herself, her cowitnesses Celso
Gimpaya and Maria Gimpaya, Isabel Gabriel and
Atty. Paraiso.
Same Same It cannot be expected that the
testimony of all the witness will be identical in
all their minutest details. These are indeed
unimportant details which could have been
affected by the lapse of time and the treachery
of human memory such that by themselves
would not alter the probative value of their

testimonies on the true execution of the will,

(Pascua vs. de la Cruz, 28 SCRA 421, 424) for it
cannot be expected that the testimony of every
person will be identical and coinciding with each
other with regard to details of an incident and
that witnesses are not expected to remember all
details. Human experience teach us that
contradictions of witnesses generally occur in
the details of certain incidents, after a long
series of questionings, and far from being an
evidence.
Same Same The three instrumental witnesses
to the will constitute the best evidence to the
making of the will. Petitioners exacerbation
centers on the supposed incredibility of the
testimonies of the witnesses for the proponent
of
the
will,
their
alleged
evasions,
inconsistencies and contradictions. But in the
case at bar, the three instrumental witnesses
who constitute the best evidence of the
willmaking have testified in favor of the probate
of the will. So has the lawyer who prepared it,
one learned in the law and long in the practice
thereof, who thereafter notarized it. All of them
are disinterested witnesses who stand to receive
no benefit from the testament. The signatures of
the witnesses and the testatrix have been
identified on the will and there is no claim
whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the
last and final analysis, the herein conflict is
factual and We go back to the rule that the
Supreme Court cannot review and revise the
findings of fact of the respondent Court of
Appeals.

18
Guerrero v. Bihis, G.R. No. 174144, April 17,
2007
Wills and Succession Notarial Law Words and
Phrases A notarial will that is not acknowledged
before a notary public by the testator and the
instrumental witnesses is void and cannot be
accepted for probate An acknowledgment is
the act of one who has executed a deed in
going before some competent officer and
declaring it to be his act or deed, and in the
case of a notarial will, that competent officer is
the notary public. One of the formalities
required by law in connection with the execution
of a notarial will is that it must be acknowledged
before a notary public by the testator and the
witnesses. This formal requirement is one of the
indispensable requisites for the validity of a will.
In other words, a notarial will that is not
acknowledged before a notary public by the
testator and the instrumental witnesses is void
and cannot be accepted for probate. An
acknowledgment is the act of one who has
executed a deed in going before some
competent officer and declaring it to be his act
or deed. In the case of a notarial will, that
competent officer is the notary public.
Same Same The acknowledgment of a notarial
will coerces the testator and the instrumental
witnesses to declare before an officer of the law,
the notary public, that they executed and
subscribed to the will as their own free act or
deed Acknowledgment can only be made
before a competent officer, that is, a lawyer
duly commissioned as a notary public. The
acknowledgment of a notarial will coerces the
testator and the instrumental witnesses to

declare before an officer of the law, the notary

public, that they executed and subscribed to the
will as their own free act or deed. Such
declaration is under oath and under pain of
perjury, thus paving the way for the criminal
prosecution of persons who participate in the
execution of spurious wills, or those executed
without the free consent of the testator. It also
provides a further degree of assurance that the
testator is of a certain mindset in making the
testamentary dispositions to the persons
instituted as heirs or designated as devisees or
legatees in the will. Acknowledgment can only
be made before a competent officer, that is, a
lawyer duly commissioned as a notary public.
Same Same Outside the place of his
commission, a notary public is bereft of power
to perform any notarial acthe is not a notary
public An acknowledgment taken outside the
territorial limits of the officers jurisdiction is
void as if the person taking itwere wholly
without official character. A notary publics
commission is the grant of authority in his favor
to perform notarial acts. It is issued within and
for a particular territorial jurisdiction and the
notary publics authority is coextensive with it.
In other words, a notary public is authorized to
perform notarial acts, including the taking of
acknowledgments,
within
that
territorial
jurisdiction only. Outside the place of his
commission, he is bereft of power to perform
any notarial act he, is not a notary public. Any
notarial act outside the limits of his jurisdiction
has no force and effect. As this Court
categorically pronounced in Tecson v. Tecson, 61
Phil. 781 (1935): An acknowledgment taken

19

outside the territorial limits of the officers

jurisdiction is void as if the person taking it were
wholly without official character.
Same Same The violation of a mandatory or a
prohibitory statute renders the act illegal and
void unless the law itself declares its continuing
validity.Article 5 of the Civil Code provides:
ART. 5. Acts executed against the provisions of
mandatory or prohibitory laws shall be void,
except when the law itself authorizes their
validity. The violation of a mandatory or a
prohibitory statute renders the act illegal and
void unless the law itself declares its continuing
validity. Here, mandatory and prohibitory
statutes were transgressed in the execution of
the alleged acknowledgment. The compulsory
language of Article 806 of the Civil Code was not
complied with and the interdiction of Article 240
of the Notarial Law was breached. Ineluctably,
the acts of the testatrix, her witnesses and Atty.
Directo were all completely void.

Lee v. Tambago, A.C. No. 5281, February 12,

2008
Succession Wills Words and Phrases 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. 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. A will may either
be notarial or holographic.
Same Same Notarial Law The object of
solemnities surrounding the execution of wills is
to close the door on bad faith and fraud, to

avoid substitution of wills and testaments and

to guarantee their truth and authenticity. The
law provides for certain formalities that must be
followed in the execution of wills. The object of
solemnities surrounding the execution of wills is
to close the door on bad faith and fraud, to
avoid substitution of wills and testaments and to
guarantee their truth and authenticity. A notarial
will, as the contested will in this case, is
required by law to be subscribed at the end
thereof by the testator himself. In addition, it
should be attested and subscribed by three or
more credible witnesses in the presence of the
testator and of one another.
Same Same Same A notarial will attested by
only two witnesses is void.The will in question
was attested by only two witnesses, Noynay and
Grajo. On this circumstance alone, the will must
be considered void. This is in consonance with
the rule that acts executed against the
provisions of mandatory or prohibitory laws shall
be void, except when the law itself authorizes
their validity.
Same Same Same Words and Phrases 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 The acknowledgment in a
notarial will has a twofold purpose (1) to
safeguard the testators wishes long after his
demise, and (2) to assure that his estate is
administered in the manner that he intends it to
be done. The Civil Code likewise requires that
a will must be acknowledged before a notary
public by the testator and the witnesses. The
importance of this requirement is highlighted by

20

the fact that it was segregated from the other

requirements under Article 805 and embodied in
a
distinct
and
separate
provision.
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 signatory actually
declares to the notary public that the same is
his or her own free act and deed. The
acknowledgment in a notarial will has a twofold
purpose: (1) to safeguard the testators wishes
long after his demise and (2) to assure that his
estate is administered in the manner that he
intends it to be done.
Same Same Same Notaries public are
required to certify that the party to every
document acknowledged before him had
presented the proper residence certificate (or
exemption from the residence tax), and to enter
its number, place of issue and date as part of
such certification, formalities which are
mandatory and cannot be disregarded.As the
acknowledging officer of the contested will,
respondent was required to faithfully observe
the formalities of a will and those of
notarization. As we held in Santiago v. Rafanan,
440 SCRA 98 (2004): The Notarial Law is explicit
on the obligations and duties of notaries public.
They are required to certify that the party to
every document acknowledged before him had
presented the proper residence certificate (or
exemption from the residence tax) and to enter
its number, place of issue and date as part of
such
certification. These
formalities are
mandatory
and
cannot
be
disregarded,

considering the degree of importance and

evidentiary weight attached to notarized
documents. A notary public, especially a lawyer,
is bound to strictly observe these elementary
requirements.
Same Same Same A notary public, by having
allowed the decedent to exhibit an expired
residence certificate, failed to comply with the
requirements of both the old Notarial Law and
the Residence Tax Act.In the issuance of a
residence certificate, the law seeks to establish
the true and correct identity of the person to
whom it is issued, as well as the payment of
residence taxes for the current year. By having
allowed decedent to exhibit an expired
residence certificate, respondent failed to
comply with the requirements of both the old
Notarial Law and the Residence Tax Act. As
much could be said of his failure to demand the
exhibition of the residence certificates of
Noynay and Grajo.
Same Same Same While a notary publics
failure to file in the archives division a copy of
the notarized will is not a cause for disciplinary
action, he could be faulted for failure to make
the necessary entries pertaining to the will in
his notarial register. On the issue of whether
respondent was under the legal obligation to
furnish a copy of the notarized will to the
archives division, Article 806 provides: Art. 806.
Every will must be acknowledged before a
notary public by the testator and the witness.
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. (emphasis supplied)
Respondents failure, inadvertent or not, to file

21

in the archives division a copy of the notarized

will was therefore not a cause for disciplinary
action. Nevertheless, respondent should be
faulted for having failed to make the necessary
entries pertaining to the will in his notarial
register. The old Notarial Law required the entry
of the following matters in the notarial register,
in chronological order: 1. nature of each
instrument executed, sworn to, or acknowledged
before him 2. person executing, swearing to, or
acknowledging the instrument 3. witnesses, if
any, to the signature 4. date of execution, oath,
or acknowledgment of the instrument 5. fees
collected by him for his services as notary 6.
give each entry a consecutive number and 7. if
the instrument is a contract, a brief description
of the substance of the instrument.
Same Same Same Evidence Secondary
Evidence A photocopy of a notary publics
register is not admissible as evidence of the
entry of the execution of the will where he failed
to comply with the requirements for the
admissibility of secondary evidence. A
photocopy is a mere secondary evidence. It is
not admissible unless it is shown that the
original is unavailable. The proponent must first
prove the existence and cause of the
unavailability of the original, otherwise, the
evidence presented will not be admitted. Thus,
the photocopy of respondents notarial register
was not admissible as evidence of the entry of
the execution of the will because it failed to
comply with the requirements for the
admissibility of secondary evidence.
Same Same Same Defects in the observance
of the solemnities prescribed by law render the

entire will invalid. Notaries public must

observe with utmost care and utmost fidelity the
basic requirements in the performance of their
duties, otherwise, the confidence of the public in
the integrity of notarized deeds will be
undermined. Defects in the observance of the
solemnities prescribed by law render the entire
will invalid. This carelessness cannot be taken
lightly in view of the importance and delicate
nature of a will, considering that the testator
and the witnesses, as in this case, are no longer
alive to identify the instrument and to confirm
its contents. Accordingly, respondent must be
held accountable for his acts. The validity of the
will
was
seriously
compromised
as
a
consequence of his breach of duty.
Samaniego-Celada v. Abena, G.R. No. 145545,
June 30, 2008
Wills and Succession While it is true that the
attestation clause is not a part of the will, the
court, after examining the totality of the will, is
of the considered opinion that error in the
number of pages of the will as stated in the
attestation clause is not material to invalidate
the subject will. Anent the contestants
submission that the will is fatally defective for
the reason that its attestation clause states that
the will is composed of three (3) pages while in
truth and in fact, the will consists of two (2)
pages only because the attestation is not a part
of the notarial will, the same is not accurate.
While it is true that the attestation clause is not
a part of the will, the court, after examining the
totality of the will, is of the considered opinion
that error in the number of pages of the will as

22

stated in the attestation clause is not material

to invalidate the subject will. It must be noted
that the subject instrument is consecutively
lettered with pages A, B, and C which is a
sufficient safeguard from the possibility of an
omission of some of the pages. The error must
have been brought about by the honest belief
that the will is the whole instrument consisting
of three (3) pages inclusive of the attestation
clause and the acknowledgement. The position
of the court is in consonance with the doctrine
of liberal interpretation enunciated in Article
809 of the Civil Code which reads: 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.
Same Petitioner and her siblings are not
compulsory heirs of the decedent under Article
887 of the Civil Code and as the decedent
validly disposed of her properties in a will duly
executed and probated, petitioner has no legal
right to claim any part of the decedents estate.
We find no reason to disturb the
abovementioned findings of the RTC. Since,
petitioner and her siblings are not compulsory
heirs of the decedent under Article 887 of the
Civil Code and as the decedent validly disposed
of her properties in a will duly executed and
probated, petitioner has no legal right to claim
any part of the decedents estate.

B. Holographic Wills; Incorporation of Document

by Reference; Codicils; Revocation of Wills and
Testamentary Dispositions; Republication and
Revival of Wills
1. Art. 804
2. Art. 810-813
3. Art. 825-839
4. Art. 1335
5. Art. 1337-1338
6. Cases:
Casiano v. Court of Appeals, 158 SCRA 451
Civil Law Wills Revocation of Will To constitute an
effective revocation, the physical act of destruction
of a will must be coupled with animus revocandi on
the part of the testator. It is clear that the
physical act of destruction of a will, like burning in
this case, does not per se constitute an effective
revocation, unless the destruction is coupled with
animus revocandi on the part of the testator. It is
not imperative that the physical destruction be
done by the testator himself. It may be performed
by another person but under the express direction
and in the presence of the testator. Of course, it
goes without saying that the document destroyed
must be the will itself.
Same Same Same Same Intention to revoke
must be accompanied by overt physical act of
burning, tearing, obliterating or cancelling the will
by the testator or by another person in his
presence and under his express direction.In this
case, while animus revocandi, or the intention to
revoke, may be conceded, for that is a state of
mind, yet that requisite alone would not suffice.
Animus revocandi is only one of the necessary
elements for the effective revocation of a last will

23
and testament. The intention to revoke must be
accompanied by the overt physical act of burning,
tearing, obliterating, or cancelling the will carried
out by the testator or by another person in his
presence and under his express direction. There is
paucity of evidence to show compliance with these
requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not
satisfactorily established to be a will at all, much
less the will of Adriana Maloto. For another, the
burning was not proven to have been done under
the express direction of Adriana. And then, the
burning was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating that they
were the only ones present at the place where the
stove (presumably in the kitchen) was located in
which the papers proferred as a will were burned.
Molo v. Molo, 90 Phil. 37
WILLS REVOCATION BY SUBSEQUENT WILL
EFFECT OF VOID REVOCATORY CLAUSE. A
subsequent will containing a clause revoking a
previous will, having been disallowed for the
reason that it was not executed in conformity
with the provisions of section 618 of the Code of
Civil Procedure as to the making of wills, cannot
produce the effect of annuling the previous will,
inasmuch as said revocatory clause is void
(Samson vs. Naval, 41 Phil., 838).
ID.
PROBATE
DEPENDENT
RELATIVE
REVOCATION.Even in the supposition that the
destruction of the original will by the testator
could be presumed from the failure of the
petitioner to produce it in court, such
destruction cannot have the effect of defeating
the prior will where it is founded on the

mistaken belief that the later will has been

validly executed and would be given due effect.
The earlier will can still be admitted to probate
under the principle of "dependent relative
revocation". The theory on which this principle is
predicated is that the testator did not intend to
die intestate. And this intention is clearly
manifest where he executed two wills on two
different occasions and instituted his wife as his
universal heir.
Rodelas v. Aranza, 119 SCRA 16
Civil Law Wills Holographic Will Admissibility
of photos tatic or xerox copy of a lost or
destroyed will. However, 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 Gan vs. Yap, 104 Phil 509, the Court ruled
that the execution and the contents of a lost or
destroyed holographic will may not be proved
by the bare testimony of witnesses who have
seen and/or read such will. The will itself must
be presented otherwise, it shall produce no
effect. The law regards the document itself as
material proof of authenticity. But, in Footnote
8 of said decision, it says that Perhaps it may
be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy or

24
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.
Azaola v. Singson, 109 Phil. 102
WILLS AND LAST TESTAMENT HOLOGRAPHIC
WILL PROBATE OF REQUISITE AS TO NUMBER
OF WITNESSES. Since the authenticity of the
holographic will was not contested, proponent
was not required to produce more than one
witness but even if the genuineness of the
holographic will were contested, 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. Since no witness may have been
present at the execution of a holographic will,
none being required by law, it becomes obvious
that the existence of witnesses possessing the
requisite qualifications is a matter beyond the
control of the proponent
ID. ID. ID. PRODUCTION OF WITNESSES
MERELY PREREQUISITE. Where the will is
holographic, no witness need be present and the
rule requiring production of three witnesses
must be deemed merely permissive if absurd
results are to be avoided'.
ID. RESORT TO EXPERT EVIDENCE. Under
Article 811, the resort to expert evidence is
conditioned by the words "if the Court deem it

necessary", which reveals that what the law

deems essential is that the Court should be
convinced of the will's authenticity.
Cuenco v. Court of Appeals, L-24742, October 26,
1973
Settlement of estates Jurisdiction Venue
Residence of deceased not element of
jurisdiction, but of venue. For purposes of
determining what court has jurisdiction in the
settlement of a deceaseds estate, the
residence of the deceased or the location of his
estate is not an element of jurisdiction over the
subject matter but merely of venue.
Same Same Court first taking cognizance of
settlement of the estate of a decedent.
Section 1, Rule 73 on venue does not state that
the court with whom the testate or intestate
petition is first filed acquires exclusive
jurisdiction. The Rule precisely and deliberately
provides that the court first taking cognizance
of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all
other courts. A fair reading of the Rule since
it deals with venue and comity between courts
of equal and coordinate jurisdictionindicates
that the court with whom the petition is first
filed, must also first take cognizance of the
settlement of the estate in order to exercise
jurisdiction over it to the exclusion of all other
courts. Conversely such court, may upon
learning that a petition for probate of the
decedents last will has been presented in
another court where the decedent obviously had
his conjugal domicile and resided with his
surviving widow and their minor children, and

25

that the allegation of the intestate petition

before it stating that the decedent died
intestate may actually be false, may decline to
take cognizance of the petition and hold the
petition before it in abeyance, and instead defer
to the second court which has before it the
petition for probate of the decedents alleged
last will. This is exactly what the Cebu court did.
Upon petitioner widows filing with it a motion to
dismiss Lourdes intestate petition, it issued its
order holding in abeyance its action on the
dismissal motion and deferred to the Quezon
City court, awaiting its action on the petition for
probate before that court. Implicit in the Cebu
courts order was that if the will was duly
admitted to probate by the Quezon City court,
then it would definitely decline to take
cognizance of Lourdes intestate petition which
would thereby be shown to be false and
improper, and leave the exercise of jurisdiction
to the Quezon City court, to the exclusion of all
other courts.
Same Where Quezon City court did not act
without jurisdiction in admitting to probate will
of decedent.Under the facts of the case and
where respondents submitted to the Quezon
City court their opposition to probate of the will,
but failed to appear at the scheduled hearing
despite due notice, the said court cannot be
declared, as the appellate court did, to have
acted without jurisdiction in admitting to
probate the decedents will and appointing
petitioner widow as executrix thereof in
accordance with the testators testamentary
disposition.

Same Testate proceedings take precedence

over intestate proceedings. ln accordance with
settled jurisprudence in this jurisdiction, testate
proceedings for the settlement of the estate of a
deceased person take precedence over intestate
proceedings for the same purpose. Thus it has
been held repeatedly that, if in the course of
intestate proceedings pending before a court of
first instance it is found that the decedent had
left a last will, proceedings for the probate of the
latter should replace the intestate proceedings
even it at that stage an administrator had
already been appointed x x x. This, however, is
understood to be without prejudice that should
the alleged last will be rejected or is
disapproved, the proceeding shall continue as
an intestacy.
Same Jurisdiction Opposition to jurisdiction of
trial court in settlement proceedings should be
by appeal. Under section 1, Rule 73, the
Quezon City courts assumption of jurisdiction
over the decedents estate on the basis of the
will duly presented for probate by petitioner
widow and finding that Quezon City was the first
choice of residence of the decedent, who had
his conjugal home and domicile thereinwith
the deference in comity duly given by the Cebu
courtcould not be contested except by appeal
from said court in the original case, except when
want of jurisdiction appears on the record.
Same
Jurisdictional
facts
in
probate
proceedings. The jurisdictional facts in
probate proceedings under section 2, Rule 76 of
the Rules of Court are the death of the
decedent, his residence at the time of his death
in the province where the probate court is

26

sitting, or if he is an inhabitant of a foreign

country, his having left his estate in such
province.
Same When proceedings for settlement of
estate will not be annulled even if court had
improper venue. The mischievous effect in the
administration of justice of considering the
question of residence as affecting the
jurisdiction of the trial court and annulling the
whole proceedings only to start all over again
the same proceedings before another court of
the same rank in another province is too
obvious to require comment.
Same Same. lt would be unfair imposition
upon petitioner as the one named and entitled
to be executrix of the decedents last will and
settle his estate in accordance therewith, and a
disregard of her rights under the rule on venue
and the law on jurisdiction to require her to
spend much more time, money and effort to
have to go from Quezon City to the Cebu court
every time she has an important matter of the
estate to take up with the probate court.

Codoy v. Calugay, 312 SCRA 333

Wills and Succession Holographic Wills
Statutory Construction Words and Phrases
Article 811 of the Civil Code is mandatory
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.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.
Same Same Same The goal to be achieved by
Article 811 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. 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.
Same Same Same The possibility of a false
document being adjudged as the will of the
testator cannot be eliminated, which is why if
the holographic will is contested, the law
requires three witnesses to declare that the will
was in the handwriting of the deceased. In the
case of Ajero vs. Court of Appeals, we said that
the object of the solemnities surrounding the
execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this 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.
However, we cannot eliminate the possibility of

27
a false document being adjudged as the will of
the testator, which is why if the holographic will
is contested, that law requires three witnesses
to declare that the will was in the handwriting of
the deceased.
Roberts v. Leonides, 129 SCRA 33
Civil Law Wills Testate proceeding, proper
where decedent died with two wills. A testate
proceeding is proper in this case because
Grimm died with two wills and no will shall pass
either real or personal property unless it is
proved and allowed (Art. 838, Civil Code sec.
1, Rule 75, Rules of Court).
Same Same Probate of will mandatory
Settlement in an intestate proceeding of an
estate of a person who died testate, anomalous
Consolidation of intestate case with testate
proceeding, proper Case at bar. The probate
of the will is mandatory (Guevara vs. Guevara,
74 Phil. 479 and 98 Phil. 249 Baluyot vs. Pao,
L42088. May 7, 1976, 71 SCRA 86). It is
anomalous that the estate of a person who died
testate should be settled in an intestate
proceeding. Therefore, the intestate case should
be consolidated with the testate proceeding and
the judge assigned to the testate proceeding
should continue hearing the two cases.
Nepomuceno v. Court of Appeals, 139 SCRA 206
Succession Wills Jurisdiction The fact that the
probate court declared a devise made in a will
null and void will be sustained where no useful
purpose will be served by requiring the filing of
a separate civil action and restricting the court
only to the issue of extrinsic validity of the will.

We are of the opinion that in view of certain

unusual provisions of the will, which are of
dubious legality, and because of the motion to
withdraw the petition f or probate (which the
lower court assumed to have been filed with the
petitioner's authorization), 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 (Nuguid v. Nuguid,
64 O.G. 1527, 17 SCRA 449. Compare with
Sumilang v. Ramagosa, L23135, December 26,
1967, 21 SCRA 1369 Cacho v. Udan, L19996,
April 30, 1965, 13 SCRA 693). Same Same
Same Same. We pause to reflect. If the case
were to be remanded for probate of the will,
nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that
appears in the record, in the event of probate or
if the court rejects the will, probability exists
that the case will come up once again before us
on the same issue of the intrinsic validity or
nullity of the will. Result: waste of time, effort,
expense, plus added anxiety. These are the
practical considerations that induce us to a
belief that we might as well meet head on the
issue of the validity 01 the provisions of the will
in question. (Section 2, Rule 1, Rules of Court.
Case, et al. v. Jugo, et al., 77 Phil. 517, 522).
After all, there exists a justiciable controversy
crying f or solution.

28

Same Same A devise given by a married man

estranged from his wife for 22 years prior to his
death, to a woman with whom he has been
living for said period of time is void.
Moreover, the prohibition in Article 739 of the
Civil Code is against the making of a donation
between persons who are living in adultery or
concubinage. It is the donation which becomes
void. The giver cannot give even assuming that
the recipient may receive. The very wordings of
the Will invalidate the legacy because the
testator admitted he was disposing the
properties to a person with whom he had been
living in concubinage.

Nuguid v. Nuguid, L-23445, June 23, 1966

Wills Succession Probate of will Courts area of
inquiry is limited to extrinsic validity of will
When Court may rule on intrinsic validity. In a
proceeding for the probate of a will, the courts
area of inquiry is limited to an examination of,
and resolution on, the extrinsic validity of the
will, the due execution thereof, the testatrixs
testamentary capacity and the compliance with
the requisites or solemnities prescribed by law.
The intrinsic validity of the will normally comes
only after the court has declared that the will
has been duly authenticated. However, where
practical considerations demand that the
intrinsic validity of the will be passed upon, even
before it is probated, the Court should meet that
issue.
Same Preterition Omission of forced heirs in
the will. Where the deceased left no
descendants, legitimate or illegitimate, but she
left forced heirs in the direct ascending line

her parents, and her holographic will does not

explicitly disinherit them but simply omits their
names altogether, the case is one of preterition
of the parents, not a case of ineffective
disinheritance
Same
Preterition
distinguished
from
disinheritance. Preterition consists in the
omission in the testators will of the forced heirs
or anyone of them, either because they are not
mentioned therein, or, though mentioned, they
are neither instituted as heirs nor are expressly
disinherited. (Neri vs. Akutin, 72 Phil., 325).
Disinheritance, in turn, is a testamentary
disposition depriving any compulsory heir of his
share in the legitime for a cause authorized by
law. (Justice J.B.L. Reyes and R.C. Puno, An
Outline of Philippine Civil Law, 1966 ed., Vol. III,
p. 8, citing cases.) Disinheritance is always
voluntary preterition, upon the other hand, is
presumed to be involuntary (Snchez Romn,
Estudios de Derecho Civil, 2nd edition, Volume
n. 2.o, p. 1131).
Same Effects flowing from preterition and
disinheritance. The effects flowing from
preterition are totally different from those of
disinheritance. Preterition under Article 854 of
the New Civil Code shall annul the institution of
heir. This annulment is in toto, unless in the
will there are, in addition, testamentary
dispositions in the form of devises or legacies. In
ineffective disinheritance under Article 918 of
the same Code, such disinheritance shall also
annul the institution of heirs, but only insofar
as it may prejudice the person disinherited,
which last phrase was omitted in the case of
preterition (III Tolentino, Civil Code of the

29

Philippines, 1961 Edition, p. 172). Better stated

yet, in disinheritance the nullity is limited to that
portion of the estate of which the disinherited
heirs have been illegally deprived.
Same When institution of heirs is void.Where
the One sentence will institutes the petitioner as
the sole, universal heir and preterits the parents
of the testatrix, and it contains no specific
legacies or bequests, such universal institution
of petitioner, by itself, is void. And intestate
succession ensues.
Same When legacies and devises merit
consideration. Legacies and devises merit
consideration only when they are so expressly
given as such in a will. Nothing in Article 854 of
the New Civil Code suggests that the mere
institution of a universal heir in a willvoid
because of preterition would give the heir so
instituted a share in the inheritance. As to him,
the will is inexistent. There must be, in addition
to such institution, a testamentary disposition
granting him bequests or legacies apart and
separate from the nullified institution of heir.
Same Institution of heirs cannot be considered
a legacy. If every case of institution of heirs
may be made to fall into the concept of legacies
and
betterments
reducing
the
bequest
accordingly, then the provisions of Articles 814
and 851 of the old Civil Code, regarding total or
partial nullity of the institution, would be
absolutely meaningless and will never have any
application at all. And the remaining provisions
contained in said articles concerning the
reduction of inofficious legacies or betterments
would be a surplusage because they would be
absorbed by Article 817 of the same Code.

Kalaw v. Relova, L-40207, September 28, 1984

Settlement of Estate Ordinarily erasures or
alterations in a holographic will does not
invalidate the will itselfOrdinarily, when a
number
of
erasures,
corrections,
and
interlineations made by the testator in a
holographic Will have not been noted under his
signature, x x x the Will is not thereby
invalidated as a whole, but at most only as
respects the particular words erased, corrected
or interlined. Manresa gave an identical
commentary when he said la omision de la
salvedad no anula el testamento, segun la regla
de jurisprudencia establecida en la sentencia de
4 de Abril de 1895.
Same Where a holographic will has designate
only one heir to the entire estate and the
designation was cancelled and another sole heir
designated, without the cancellation being
authenticated by full signature of testator,
entire will is void. 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 the simple reason that
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

30

manner required by law by affixing her full

signature.
Same Same. The ruling in Velasco, supra,
must be held confined to such insertions,
cancellations, erasures or alterations in a
holographic Will, which affect only the efficacy
of the altered words themselves but not the
essence and validity of the Will itself. As it is,
with the erasures, cancellations and alterations
made by the testatrix herein, her real intention
cannot be determined with certitude.

In the Matter of the Instestate Estate of Andres

de Jesus v. Roxas
Civil Law Wills Execution of Wills Purpose of
liberal trend of the Civil Code in the manner of
execution of wills in case of doubt is to prevent
intestacy. 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.
Same Same Same Admission to probate of the
will which has been executed in substantial
compliance with the formalities of the law, and
the possibility of bad faith and fraud is obviated.
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

Will should be admitted to probate (Rey v.
Cartagena, 56 Phil. 282).
Same Same Same Purpose of the solemnities
surrounding the execution of wills. The
purpose of the solemnities surrounding the
execution of Wills has been expounded by this
Court in Abangan v. Abangan, 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 of wills and testaments and to
guaranty their truth and authenticity. x x x
Same Same Same Holographic Will Absence
of evidence of bad faith and fraud in the
execution of a holographic will and absence of
any substitution of wills and testaments Finding
that the will was entirely written, dated and
signed and no question of its genuineness and
due execution, correct.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 Wills 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.
Same Same Same General rule that the date
in a holographic will should include the day,
month and year of execution Exception, is the

31
absence of appearance of fraud, bad faith,
undue influence and pressure and the
authenticity of the will Date Feb./61
appearing in a holographic will, valid, under the
principle of substantial compliance. 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.
Ajero v. Court of Appeals, G.R. No. 106720,
September 15, 1994
Succession Wills Holographic Wills Probate
Proceedings The grounds enumerated in the
Civil Code and Rules of Court for the
disallowance of wills are exclusive Issues in a
petition to admit a holographic will to probate.
Section 9, Rule 76 of the Rules of Court provides
the cases in which wills shall be disallowed. In
the same vein, Article 839 of the New Civil Code
enumerates the grounds for disallowance of
wills. These lists are exclusive no other grounds
can serve to disallow a will. Thus, in a petition to
admit a holographic will to probate, the only
issues to be resolved are: (1) whether the
instrument submitted is, indeed, the decedents
last will and testament (2) whether said will
was executed in accordance with the formalities

prescribed bylaw (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.
Same
Same
Same
Same
Statutory
Construction 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.We reiterate what
we held in Abangan vs. Abangan, 40 Phil. 476,
479 (1919), that: The object of the solemnities
surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid
substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore,
the laws on this 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 testators last will,
must be disregarded. For purposes of probating
nonholographic wills, these formal solemnities
include the subscription, attestation, and
acknowledgment requirements under Articles
805 and 806 of the New Civil Code
Same Same Same Same Failure to strictly
observe other formalities will not result in the
disallowance of a holographic will that is
unquestionably handwritten by the testator.In

32

the case of holographic wills, on the other hand,

what assures authenticity is the requirement
that they be totally autographic or handwritten
by the testator himself, as provided under
Article 810 of the New Civil Code. Failure to
strictly observe other formalities will not result
in the disallowance of a holographic will that is
unquestionably handwritten by the testator.
Same Same Same Same The requirement of
Article 813 of the New Civil Code affects the
validity of the dispositions contained in the
holographic will, but not its probate.A reading
of Article 813 of the New Civil Code 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.
Same Same Same Same Unauthenticated
alterations, cancellations or insertions do not
invalidate a holographic will, unless they were
made on the date or on testators signature.
Likewise, a holographic will can still be admitted
to probate, notwithstanding noncompliance with
the provisions of Article 814. Thus, unless the
unauthenticated alterations, cancellations or
insertions were made on the date of the
holographic will or on testators signature, their
presence does not invalidate the will itself. The
lack of authentication will only result in
disallowance of such changes.
Same
Same
Same
Same
Only
the
requirements of Article 810 of the New Civil
Codeand not those found in Articles 813 and

814are essential to the probate of a

holographic will.It is also proper to note that
the requirements of authentication of changes
and signing and dating of dispositions appear in
provisions (Articles 813 and 814) separate from
that which provides for the necessary conditions
for the validity of the holographic will (Article
810). The distinction can be traced to Articles
678 and 688 of the Spanish Civil Code, from
which
the
present
provisions
covering
holographic wills are taken. This separation and
distinction adds support to the interpretation
that only the requirements of Article 810 of the
New Civil Codeand not those found in Article
813 and 814 of the same Codeare essential to
the probate of a holographic will.
Same Same Same Same Probate Courts
While courts in probate proceedings are
generally limited to pass only upon the extrinsic
validity of the will sought to be probated, in
exceptional cases, courts are not powerless to
do what the situation constrains them to do,
and pass upon certain provisions of the will.As
a general rule, courts in probate proceedings
are limited to pass only upon the extrinsic
validity of the will sought to be probated.
However, in exceptional instances, courts are
not powerless to do what the situation
constrains them to do, and pass upon certain
provisions of the will. In the case at bench,
decedent herself indubitably stated in her
holographic will that the Cabadbaran property is
in the name of her late father, John H. Sand
(which led oppositor Dr. Jose Ajero to question
her conveyance of the same in its entirety).
Thus, as correctly held by respondent court, she

33
cannot validly dispose of the whole property,
which she shares with her fathers other heirs.
Dorotheo v. Court of Appeals, G.R. No. 108581,
December 8, 1999
Same Same Probate proceedings deals
generally with the extrinsic validity of the will
sought to be probated. It should be noted
that probate proceedings deals generally with
the extrinsic validity of the will sought to be
probated, particularly on three aspects: whether
the will submitted is indeed, the decedents last
will and testament compliance with the
prescribed formalities for the execution of wills
the testamentary capacity of the testator and
the due execution of the last will and testament.
Same Same What includes due execution of a
will.Under the Civil Code, due execution
includes a determination of whether the testator
was of sound and disposing mind at the time of
its execution, that he had freely executed the
will and was not acting under duress, fraud,
menace or undue influence and that the will is
genuine and not a forgery, that he was of the
proper testamentary age and that he is a person
not expressly prohibited by law from making a
will.
Same Same Intrinsic validity is another matter
and questions regarding the same may still be
raised
even
after the will
has been
authenticated Even if the will was validly
executed, if thetestator provides for dispositions
that deprives or impairs the lawful heirs of their
legitime or rightful inheritance according to the
laws
on
succession,
the
unlawful
provisions/dispositions thereof cannot be given

effect.The intrinsic validity is another matter

and questions regarding the same may still be
raised
even
after
the
will
has
been
authenticated. Thus, it does notnecessarily
follow that an extrinsically valid last will and
testament is always intrinsically valid. Even if
the will was validly executed, if the testator
provides for dispositions that deprives or
impairs the lawful heirs of their legitime
orrightful inheritance according to the laws on
succession, the unlawful provisions/dispositions
thereof cannot be given effect. This is specially
so when the courts had already determined in a
final and executory decision that the will is
intrinsically void. Such determination having
attained that character of finality is binding on
this Court which will no longer be disturbed. Not
that this Court finds the will to be intrinsically
valid, but that a final and executory decision of
which the party had the opportunity to
challenge before the higher tribunals must stand
and should no longer be reevaluated. Failure to
avail of the remedies provided by law
constitutes waiver. And if the party does not
avail of other remedies despite its belief that it
was aggrieved by a decision or court action,
then it is deemed to have fully agreed and is
satisfied with the decision or order.
Maloles II v. Phillips, G.R. No. 129505, January
31, 2000
Remedial Law Courts Wills In cases for the
probate of wills, it is well settled that the
authority of the court is limited to ascertaining
the extrinsic validity of the will.In cases for the
probate of wills, it is wellsettled that the

34

authority of the court is limited to ascertaining

the extrinsic validity of the will, i.e., whether the
testator, being of sound mind, freely executed
the will in accordance with the formalities
prescribed
by
law.
Ordinarily,
probate
proceedings are instituted only after the death
of the testator, so much so that, after approving
and allowing the will, the court proceeds to
issue letters testamentary and settle the estate
of the testator. The cases cited by petitioner are
of such nature. In fact, in most jurisdictions,
courts cannot entertain a petition for probate of
the will of a living testator under the principle of
ambulatory nature of wills.
Same Same Same Jurisdiction The different
branches comprising each court in one judicial
region do not possess jurisdictions independent
of and incompatible with each other. Indeed,
the jurisdiction over probate proceedings and
settlement of estates with approximate value of
over P100,000.00 (outside Metro Manila) or
P200,000.00 (in Metro Manila) belongs to the
regional trial courts under B.P. Blg. 129, as
amended. The different branches comprising
each court in one judicial region do not possess
jurisdictions independent of and incompatible
witheach other. It is noteworthy that, although
Rule 73, 1 applies insofar as the venue of the
petition for probate of the will of Dr. De Santos is
concerned, it does not bar other branches of the
same court from taking cognizance of the
settlement of the estate of the testator after his
death. Necessarily, therefore, Branch 65 of the
RTC of Makati City has jurisdiction over Sp. Proc.
No. M4343.

III.

Same Same Same Only if the appointed

executor is incompetent, refuses the trust, or
fails to give bond may the court appoint other
persons to administer the estate.Petitioner, as
nephew of the testator, is not a compulsory heir
who may have been preterited in the testators
will. Nor does he have any right to intervene in
the settlement proceedings based on his
allegation that he is a creditor of the deceased.
Since the testator instituted or named an
executor in his will, it is incumbent upon the
Court to respect the desires of the testator. Only
if the appointed executor is incompetent,
refuses the trust, or fails to give bond may the
court appoint other persons to administer the
estate. None of these circumstances is present
in this case.
Legitime and Collation
A. Legitime
a. Art. 872
b. Art. 886-913 (excluding Art. 891)
c. Art. 1347
d. Art. 39 of PD 603
B. Collation
a. Art. 914
b. Art. 1061-1077
C. Cases

Rosales v. Rosales, 148 SCRA 69

Civil Law Succession A surviving spouse is not
an intestate heir of his or her parentinlaw.
There is no provision in the Civil Code which
states that a widow (surviving spouse) is an
intestate heir of her motherinlaw. The entire
code is devoid of any provision which entitles

35

her to inherit from her motherinlaw either by her

own right or by the right of representation. The
provisions of the Code which relate to the order
of intestate succession (Articles 978 to 1014)
enumerate with meticulous exactitude the
intestate heirs of a decedent, with the State as
the final intestate heir. The conspicuous
absence of a provision which makes a
daughterinlaw an intestate heir of the deceased
all the more confirms our observation. If the
legislature intended to make the surviving
spouse an intestate heir of the parentinlaw, it
would have so provided in the Code.
Same Same Neither is a widow (surviving
spouse) a compulsory heir of her parentinlaw in
accordance with the provisions of Article 887 of
the Civil Code.The aforesaid provision of law
refers to theestate of the deceased spouse in
which case the surviving spouse (widow or
widower) is a compulsory heir. It does not apply
to the estate of a parent in law. Indeed, the
surviving spouse is considered a third person as
regards the estate of the parentinlaw. We had
occasion to make this observation in Lachenal v.
Salas, 71 SCRA 262 265, L42257, June 14,
1976, to wit: "We hold that the title to the
fishing boat should be determined in Civil Case
No. 3597 (not in the intestate proceeding)
because it affects the lessee thereof, Lope L.
Leoncio, the decedent's soninlaw, who, although
married to his daughter or compulsory heir, is
nevertheless a third person with respect to his
estate. x x x."

Dizon-Rivera v. Dizon, 33 SCRA 554

Succession Testamentary succession Wills

Interpretation of provisions of wills Intention of
testator paramount.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 nor the courts may substitute
their own criterion for the testator's wiIl.
Same Same Same Partition of estate in will is
valid. Where the testator in her will specified
each real property in her estate and designated
the particular heir among her compulsory heirs
and grandchildren to whom she bequeathed the
same, the testamentary disposition was in the
nature of a partition of her estate by will. This is
a valid partition of her estate, as contemplated
and authorized in the first paragraph of Article
1080 of the Civil Code. This right of a testator to
partition his estate is subject only to the right of
compulsory heirs to their legitime.
Same Same Same Interpretation of wills
Effect of use of words "I bequeath" in
testament.The repeated use of the words "I
bequeath" in the 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 his
testamentary dispositions were by way of
adjudications to the beneficiaries as heirs and
not as mere devisees, is clear and that said

36

dispositions were borne out by the use of phrase

"my heirs in this testament" referring to the
"devisees."
Same Same Collation Does not apply where
no donations were made by testator during her
lifetime. Articles 1061 and 1063 of the Civil
Code on collation do not apply to a case of a
distribution and partition of the entire estate by
the testatrix, without her having made any
previous donations during her lifetime which
would require collation to determine the
legitime of each heir nor having left merely
some properties by will which would call for
collation.
Same Same Partition of estate in will Heirs
cannot compel payment of their legitime in real
estate instead of money as specified in the will.
The forced heirs may not legally insist on their
legitime being completed with real properties of
the estate instead of being paid in cash as
provided in the will. The properties are not
available for the purpose where the testatrix
had specifically partitioned and distributed them
to her heirs, and the heirs are called upon, as far
as feasible to comply with and give effect to the
intention of the testatrix as solemnized in her
will by implementing her manifest wish of
transmitting the real properties intact to her
named beneficiaries under the will. That the
purchasing value of the Philippine peso has
greatly declined since the testatrix' death
provides no legal basis or justification for
overturning the wishes and intent of the
testatrix. The transmission of rights to the
succession are transmitted from the moment of
death of the decedent and accordingly, the

value thereof must be reckoned as of then, as

otherwise, estates would never be settled if
there were to be a revaluation with every
subsequent fluctuation in the values of the
currency and properties of the estate.
De Roma v. Court of Appeals, 152 SCRA 205
Civil Law Succession Intestacy Collation Fact
that a donation is irrevocable does not
necessarily exempt the donated properties from
collation as required under Art. 1061, Civil
Code Given the precise language of the deed of
donation the decedentdonor would have
included an express prohibition to collate if that
had been the donor's intention. We agree with
the respondent court that there is nothing in the
above provisions expressly prohibiting the
collation of the donated properties. As the said
court correctly observed, the phrase "sa
pamamagitan ng pagbibigay na di na
mababawing muli" merely described the
donation as "irrevocable" and should not be
construed as an express prohibition against
collation. The fact that a donation isirrevocable
does not necessarily exempt the subject thereof
from the collation required under Article 1061.
We surmise from the use of such terms as
"legitime" and "free portion" in the deed of
donation that it was prepared by a lawyer, and
we may also presume he understood the legal
consequences of the donation being made. It is
reasonable to suppose, given the precise
language of the document, that he would have
included therein an express prohibition to
collate if that had been the donor's intention.
Anything less than such express prohibition will

37

not suffice under the clear language of Article

1062
Same Same Same Same Intention to exempt
donated properties from collation should be
expressed plainly and unequivocally as an
exception to the general rule in Art. 1062, Civil
Code Absent such a clear indication of that
intention, the rule not the exception should be
applied. The intention to exempt from
collation should be expressed plainly and
unequivocally as an exception to the general
rule announced in Article 1062. Absent such a
clear indication of that intention, we apply not
the exception but the rule, which is categorical
enough.

Locsin v. Court of Appeals, 206 SCRA 383

Civil Law Succession The rights to a persons
succession are transmitted from the moment of
his death and do not vest in his heirs until such
time.The trial court and the Court of Appeals
erred in declaring the private respondents,
nephews and nieces of Doa Catalina J. Vda. de
Locsin, entitled to inherit the properties which
she had already disposed of more than ten (10)
years before her death. For those properties did
not form part of her hereditary estate, i.e., the
property
and
transmissible
rights
and
obligations existing at the time of (the
decedents), death and those which have
accrued thereto since the opening of the
succession. The rights to a persons succession
are transmitted from the moment of his death,
and do not vest in his heirs until such time.
Property which Doa Catalina had transferred or
conveyed to other persons during her lifetime

no longer formed part of her estate at the time

of her death to which her heirs may lay claim.
Same Same Prescription Trial court and the
Court of Appeals erred in not dismissing the
action for annulment and reconveyance on the
ground
of prescription.Apart
from
the
foregoing considerations, the trial court and the
Court of Appeals erred in not dismissing this
action for annulment and reconveyance on the
ground of prescription. Commenced decades
after the transactions had been consummated,
and six (6) years after Doa Catalinas death, it
prescribed four (4) years after the subject
transactions were recorded in the Registry of
Property, whether considered an action based
on fraud, or one to redress an injury to the
rights of the plaintiffs. The private respondents
maynot feign ignorance of said transactions
because the registration of the deeds was
constructive notice thereof to them and the
whole world.

Manongsong v. Estimo, 404 SCRA 683

(facts)
She is entitled to her legitime. The Deed of Sale
[Exhs 4 & 41 (sic)] did not at all provide for
the reserved legitime or the heirs, and,
therefore it has no force and effect against
Agatona Guevarra and her six (6) legitimate
children including the grandchildren, by right of
representation, as described in the order of
intestate succession. The same Deed of Sale
should be declared a nullity ab initio. The law on
the matter is clear. The compulsory heirs cannot
be deprived of their legitime, except on (sic)
cases expressly specified by law like for instance

38
disinheritance for cause. x x x (Emphasis
supplied)
Spouses Joaquin v. Court of Appeals, 416 SCRA
263
(Ruling)
Petitioners do not have any legal interest over
the properties subject of the Deeds of Sale. As
the appellate court stated, petitioners right to
their parents properties is merely inchoate and
vests only upon their parents death. While still
living, the parents of petitioners are free to
dispose
of
their
properties.
In
their
overzealousness to safeguard their future
legitime, petitioners forget that theoretically,
the sale of the lots to their siblings does not
affect the value of their parents estate. While
the sale of the lots reduced the estate, cash of
equivalent value replaced the lots taken from
the estate.
Arellano v. Pascual, 638 SCRA 826
Succession Collation Words and Phrases The
term collation has two distinct concepts: first, it
is a mere mathematical operation by the
addition of the value of donations made by the
testator to the value of the hereditary estate
and second, it is the return to the hereditary
estate of property disposed of by lucrative title
by the testator during his lifetime.The term
collation has two distinct concepts: first, it is a
mere mathematical operation by the addition of
the value of donations made by the testator to
the value of the hereditary estate and second,
it is the return to the hereditary estate of
property disposed of by lucrative title by the

testator during his lifetime. The purposes of

collation are to secure equality among the
compulsory heirs in so far as is possible, and to
determine the free portion, after finding the
legitime, so that inofficious donations may be
reduced. Collation takes place when there are
compulsory heirs, one of its purposes being to
determine the legitime and the free portion. If
there is no compulsory heir, there is no legitime
to be safeguarded.
Same Same Siblings are collateral relatives
and, therefore, are not entitled to any legitime
that part of the testators property which he
cannot dispose of because the law has reserved
it for compulsory heirs.The records do not
show that the decedent left any primary,
secondary, or concurring compulsory heirs. He
was only survived by his siblings, who are his
collateral relatives and, therefore, are not
entitled to any legitimethat part of the
testators property which he cannot dispose of
because the law has reserved it for compulsory
heirs. The compulsory heirs may be classified
into (1) primary, (2) secondary, and (3)
concurring. The primary compulsory heirs are
those who have precedence over and exclude
other compulsory heirs legitimate children and
descendants are primary compulsory heirs. The
secondary compulsory heirs are those who
succeed only in the absence of the primary
heirs the legitimate parents and ascendants are
secondary compulsory heirs. The concurring
compulsory heirs are those who succeed
together with the primary or the secondary
compulsory heirs the illegitimate children, and

39

the surviving spouse are concurring compulsory

heirs.
Same Same Where a person does not have
any compulsory heirs entitled to legitime, he is
at liberty to donate all his properties, even if
nothing is left for his siblings collateral relatives
to inherit.The decedent not having left any
compulsory heir who is entitled to any legitime,

he was at liberty to donate all his properties,

even if nothing was left for his siblings collateral
relatives to inherit. His donation to petitioner,
assuming that it was valid, is deemed as
donation made to a stranger, chargeable
against the free portion of the estate. There
being no compulsory heir, however, the donated
property is not subject to collation.