WILLS AND SUCCESSION l Atty.
Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
SUCCESSION
SUCCESSION DEFINED
Succession is a mode of acquisition by virtue of which the property,
rights and obligations to the extent of the value of the inheritance, of a
person are transmitted through his death to another or others either by
his will or by operation of law. (Art. 774)
Elements of the definition:
1. Mode of acquisition of ownership
2. Transfer of property, rights and obligations to the extent of the
value of the inheritance
3. Transmission through death
4. Transmission to another
5. By will or by operation of law
Ferdie: This article is an over-all picture or guide. It talks about the mode
of transmission, what is to be transmitted, who will transmit, when, to
whom and how.
Bases for succession
1. Principle of consanguinity or natural affection to persons nearest
in relationship
2. To avoid wealth from becoming stagnant or inactive
3. Property rights ownership
WHO TRANSMITS, TESTAMENTARY CAPACITY AND INTENT
DECEDENT
DECEDENT
Decedent is the general term applied to the person whose property is
transmitted through succession, whether or not he left a will. If he left
a will, he is also called the testator.
Specific terms:
A. Testator if there is a will
B. Intestate if there is no will; by operation of law
Q. Upon death, are you a decedent right away?
Not necessarily. One might die without a property, right or obligation
(e.g. taong-grasa). One provision in the Civil Code provides that it only
needs a property for one to become a decedent; not necessarily having
rights or obligations.
QUALIFICATIONS AND DISQUALIFICATIONS
QUALIFICATIONS
1. At least 18 years
2. Of sound mind
3. Not expressly prohibited by law to make a will
a. Under 18 years old
b. Two persons executing a joint will
Ferdie: When you say deaf-mute and blind, they cannot execute a will
because they are unable to communicate or articulate their intentions,
unless they can somehow communicate their intentions. (Arts 807-808)
Q. Is a convict under civil interdiction allowed to make a will?
Yes. The prohibition only extends to disposition of property inter vivos.
Q. Are spendthrifts or prodigals allowed to make a will?
Yes, since the law does not disqualify them. They can make a will even
if under guardianship, provided they are 18 years old and are of sound
mind.
Q. Are juridical persons allowed to make a will?
No. Only natural persons may. This is evident from the requirement of
soundness of mind, and the fact that the making of a will is a personal
1|U N I V E R S I T Y O F S A N C A R L O S
act. Also, that joint wills are not allowed (corporation can only act
through its officers members of the Board).
Capacity to make a will and capacity to inherit
1. Capacity to make a will testamentifaccion active
2. Capacity to inherit testamentifaccion passive
Relevant codal provisions
Qualifications
1. Art. 796. All persons who are not expressly prohibited by law may
make a will.
2. Art. 797. Persons of either sex under eighteen years of age cannot
make a will.
3. Art. 798. In order to make a will it is essential that the testator be
of sound mind at the time of its execution.
4. Art. 801. Supervening incapacity does not invalidate an effective
will, nor is the will of an incapable validated by the supervening of
capacity.
Disqualifications
1. Art. 797. Persons of either sex under eighteen years of age cannot
make a will.
2. Art. 818. Two or more persons cannot make a will jointly, or in the
same instrument, either for their reciprocal benefit or for the
benefit of a third person.
3. Art. 819. Wills, prohibited by the preceding article, executed by
Filipinos in a foreign country shall not be valid in the Philippines,
even though authorized by the laws of the country where they may
have been executed.
Possession of all mental faculties not necessary
It is not necessary that the testator must possess all mental faculties. It
will suffice that he understands what he is doing, he knows the character
of the document he is going to make, that it is revocable, the fact that
he is going to share bounty, and that he knows the objects of the
bounty.
Bounty liberality to give property
Objects of the bounty recipients of liberality
Soundness of mind requires that the testator knows the:
1. Nature of the estate to be disposed of (character, ownership of what
he is giving)
2. Proper objects of his bounty (by persons who for some reason
expect to inherit something from him)
3. Character of the testamentary act (that it is really a will, that it is a
disposition mortis causa, that it is essentially revocable)
Ferdie: Always remember NPC.
Nature of estate
Property objects of bounty
Character of disposition
Q. When should soundness of mind be possessed?
At the time of the execution of the will, not before nor after.
Senility v. senile dementia
A. Senility infirmity of old age
B. Senile dementia decay of mental faculties.
It is only senile dementia, when advanced or absolute, which may
produce unsoundness of mind resulting in testamentary incapacity.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Relevant codal provision
Art. 799. To be of sound mind, it is not necessary that the testator be
in full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the
will to know the nature of the estate to be disposed of, the proper
objects of his bounty, and the character of the testamentary act.
Soundness of mind is presumed as a general rule
There is a presumption that the testator was of sound mind during the
making of the will. Thus, the burden of proof lies on the person alleging
unsoundness of mind.
Exceptions:
1. If the testator, one month or less before making the will, was
publicly known to be insane.
2. If the testator made the will after he had been judicially declared
insane, and before such judicial order had been set aside.
TN: Here, the person who maintains the wills validity must prove that
the will was made during a lucid interval.
Relevant codal provision
Article 800. The law presumes that every person is of sound mind, in
the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time
of making his dispositions is on the person who opposes the probate of
the will; but if the testator, one month, or less, before making his will
was publicly known to be insane, the person who maintains the validity
of the will must prove that the testator made it during a lucid interval.
Supervening incapacity does not invalidate an effective will,
nor is the will of an incapable validated by the supervening of
capacity.
Example: When insane, Feds made a will. Later, he became well, but he
did not change the will. Is the will valid?
Ans No, because his becoming capacitated later on is not important.
What is important is that his mind was not sound at the time he executed
the will.
MARRIED WOMAN, PWDS, FILIPINOS, ALIENS
MARRIED WOMAN
Freedom to make a will
A married woman can make a will even without the consent of the
husband and without court authority, so long as she does not tinker with
the legitime.
Property that may be disposed
She can dispose by will either her separate property or her share in the
conjugal partnership of absolute community.
Relevant codal provisions
Art. 802. A married woman may make a will without the consent of her
husband, and without the authority of the court.
Art. 803. A married woman may dispose by will of all her separate
property as well as her share of the conjugal partnership or absolute
community property.
PERSONS WITH DISABILITY
1. Deaf or deaf-mute if they are able to read and write, they can
make a will on their own. If not, there must be two persons
communicating to them the contents of the will.
2|U N I V E R S I T Y O F S A N C A R L O S
2. Blind the will must be read to him twice:
a. By one of the subscribing witnesses, and
b. By the notary public
Ferdie: A person who is unable to read is considered blind.
Q. If the testator is deaf-mute and also blind, may he still make
a will?
No, unless in some way, the contents thereof may property be
communicated to him in accordance with legal requirements.
Q. In what instance may the notary public be disqualified?
The notary public before whom the will is acknowledged cannot be one
of the three witnesses to said will, in view of the absurdity of one person
acknowledging something before himself.
Relevant codal provisions
Art. 807. If the testator be deaf, or a deaf-mute, he must personally
read the will, if able to do so; otherwise, he shall designate two persons
to read it and communicate to him, in some practicable manner, the
contents thereof.
Art. 808. If the testator is blind, the will shall be read to him twice; once,
by one of the subscribing witnesses, and again, by the notary public
before whom the will is acknowledged.
FILIPINO IN A FOREIGN COUNTRY
Will may conform to formalities of the country where executed.
Example: A Filipino in California can make a will there in accordance with
the forms (extrinsic validity) of:
a. California
b. Or of the Philippines (even if the Philippine form is not recognized
in California)
Exception: A Filipino cannot execute abroad a joint will even if the same
is valid there.
Q. If a will is probated abroad, does it have to be probated again
in the Philippines?
There is no need of an ordinary or usual probate in the Philippines.
However, it is required that there be a proceeding to prove that indeed
the will had already been probated abroad. In other words, the rule is
the same as in proving the existence of a foreign judgment.
Relevant codal provision
Art. 815. When a Filipino is in a foreign country, he is authorized to make
a will in any of the forms established by the law of the country in which
he may be. Such will may be probated in the Philippines.
ALIEN IN A FOREIGN COUNTRY
Will may conform to formalities of country origin, where he resides or in
the Philippines.
TN: This is relevant because the alien may have properties here in the
Philippines.
Thus, an alien abroad may make a will in accordance with the formalities
(extrinsic validity) prescribed by law of:
a. The place of his residence or domicile
b. His own country or nationality
c. The Philippines
d. The law of the place of execution
Example: A Chinese, domiciled in Argentina, is on his way to Manila. The
boat where he is, is staying for one day in Japan. In Japan, can he make
a will? If so, what countrys formalities should he observe?
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Ans This is a typical case of an alien abroad. Thus, he can make a will
in accordance with the testamentary formalities of:
a. Argentina (domicile)
b. China (nationality)
c. Philippines
Relevant codal provision
Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the place
in which he resides, or according to the formalities observed in his
country, or in conformity with those which this Code prescribes.
ALIEN IN THE PHILIPPINES
Will may conform to formalities of country of origin.
Example: If a Chinese lives in Manila, he can follow the extrinsic
formalities of will required in:
a. China (lex nationalii)
b. Or in the Philippines (lex loci celebracionis)
Rationale: The reason for allowing him to make a will following his own
countrys formalities is because being a citizen thereof, he may be more
cognizant of said laws that those in the Philippines.
Relevant codal provision
Art. 817. A will made in the Philippines by a citizen or subject of another
country, which is executed in accordance with the law of the country of
which he is a citizen or subject, and which might be proved and allowed
by the law of his own country, shall have the same effect as if executed
according to the laws of the Philippines.
WHAT IS TRANSMITTED AND WHAT IS NOT
WHAT IS TRANSMITTED
Q. What are transmitted upon death?
1. Properties
2. Rights not extinguished by death
3. Obligations not extinguished by death
4. accruals
PROPERTIES
The properties must be capable of appropriation. These may include:
1. Real properties
2. Personal properties
3. Accessions accruing to the property from the moment of death to
the time of actual receipt by said transferee/
Q. Is the human corpse a property?
No. The human corpse is not a property and is therefore not part of the
estate. Except: Those donated for medical and scientific purposes.
Ferdie: Cadavers cannot be sold for experiment. The same is true with
organs. These are prohibited. In fact, blood cannot anymore be sold.
RIGHTS
Only rights which are not extinguished by death are transmitted.
Ferdie: Personal rights such as the right to hold public office cannot be
transmitted to the heirs. These kinds of rights die with the decedent.
Examples of rights not extinguished by death:
1. Right to bring an action for forcible entry
2. Right to compel the execution of a document
3. Right to continue lease contract
4. Property right in an insurance policy
3|U N I V E R S I T Y O F S A N C A R L O S
Examples of rights extinguished by death:
1. Intransmissible personal rights (i.e. family rights, marital and
parental authority, support, action for legal separation,
partnership, agency)
2. Right to claim acknowledgment or recognition as a natural child
3. Right to hold public or private office or job
OBLIGATIONS
Only those obligations only which are not extinguished by death.
Example: A father entered into a deed of sale to sell his property, a
motor vehicle. Prior to delivery, he died. The obligation to deliver is
transmitted to the heir.
All obligations are transmissible as a general rule
Exceptions:
1. Purely personal obligation
2. Non-transferable by law or contract
Personal obligations cannot be transmitted to the heirs
Personal obligations like obligation to support cannot be inherited. They
die with the decedent. Thus, for instance, when your parent died who
supported probably another child abroad, you cannot inherit the
obligation to support.
Obligation is only to the extent of the value of the inheritance
Take note that before inheritance may be given to the heirs, the debts
of the estate must first be paid. In the event where the debts exceed
the value properties left behind, the heirs cannot be held personally
liable, because their liability extends only in so far as their share in the
inheritance.
ACCRUALS
Accruals are additions to the property. The reckoning period is accrual
from the opening of succession.
Example: A person who owns a property on a river delta also takes
ownership of any additional land that builds up along the riverbank due
to natural deposits or man-made deposits.
Relevant codal provisions
Art. 776. The inheritance includes all the property, rights and obligations
of a person which are not extinguished by his death.
Art. 781. The inheritance of a person includes not only the property and
the transmissible rights and obligations existing at the time of his death,
but also those which have accrued thereto since the opening of the
succession.
AFTER-ACQUIRED PROPERTIES
Relevant codal provision
Art. 793. Property acquired after the making of a will shall only pass
thereby, as if the testator had possessed it at the time of making the
will, should it expressly appear by the will that such was his intention.
WHAT IS NOT TRANSMITTED
AFTER-ACQUIRED PROPERTIES
GENERAL RULE:
What are given by will are only those properties already possessed and
owned by the testator at the time the will was made. Thus, generally,
after-acquired properties may not be inherited.
Example: In 2003, T made the will giving X all my cars. In 2003, T had
5 cars, but in 2005, when T died, he had at the time of his death, 8 cars.
How many will X get?
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Ans Only the 5 cars, because the rest were acquired after the making
of the will.
EXCEPTIONS:
1. Expressly intended
2. If will is republished or modified
3. Erroneous belief or ownership but realized
4. Legacy of credit
5. Legacy of remission
Expressly intended
After-acquired properties can be inherited by the heirs if the will
expressly states the intention of the testator that properties thereafter
acquired will be included, or if another will is made for that purpose.
Otherwise, said after-acquired properties cannot be given to the heirs.
Ferdie: The will states I hereby give X all my cars including all the cars
I will acquire before I die.
Effect if there is no such intention
If there is no such intention, the after-acquired properties cannot be
given to the heirs by virtue of a will. However, it can still be given by
operation of law, as in mixed succession.
If the will is republished or modified
In which case, the properties owned at the time of such republication or
modification shall be given.
Example: In 2003, T made the will giving X all my cars. At that time,
he had 5 cars. In 2005, T made a codicil, disposing of certain other
properties in favor of another. One effect of the codicil is that the will is
construed as having been made in 2005. If in 2005, T had 8 cars and in
2007 when he died, he had 12 cars, how may will X inherit?
Ans X will get 8 cars because it is as if the will was made in 2007 by
reason of the republication. However, the 3 other cars acquired after
the republication will not be given, unless again the contrary intention
had been expressed.
Erroneous belief or ownership but realized
If at the time the testator made the will, he erroneously thought that he
owned certain properties, the gift of said properties will not be valid,
unless after the making of the will, said properties will belong to him.
Example:
In 2003, T made the will giving X all my cars. At that time, he had 5
cars. However, one of the cars was not really his. Ordinarily, X should
only get 4 at the time T dies. However, if after making the will, T
becomes the owner of the 5th car, all of the cars will be given to X upon
Ts death.
Legacy or credit
They are effective only as regards that part of the credit existing at the
time of the death of the testator.
Example: A creditor of P1M made a will in 2003 giving his credit to X. If
by 2006, at the creditors death, the debtor has already paid P600,000,
how much will X get?
Ans Only the remaining P400,00 which still exists at the creditors
death.
TN: If after the will, the debtor borrowed another P600,000, the debt
now totalling to P1.6 M, X can only still get P400,000. This is because
the extra P600,000 will be considered as after-acquired property.
Besides, this contemplates a credit that is reduced, not increased.
4|U N I V E R S I T Y O F S A N C A R L O S
Legacy of remission
They are effective only as regards that part of the debt existing at the
time of the death of the testator. Legacy of credit is naturally in favor of
the debtor.
Example: T is the creditor of D to the amount of P1M. T made a will in
2003 remitting or waiving Ds debt. If in 2004, D pays P600,000 to T,
how much is the legacy of remission if T dies?
Ans Only P400,000 because this is the debt still remaining at the time
of Ts death. Essentially, this is the only amount condoned. Thus, D need
not pay the P400,000.
Relevant codal provisions
Art. 793. Property acquired after the making of a will shall only pass
thereby, as if the testator had possessed it at the time of making the
will, should it expressly appear by the will that such was his intention.
Exceptions
1. Art. 836. The execution of a codicil referring to a previous will has
the effect of republishing the will as modified by the codicil.
2. Art. 930. The legacy or devise of a thing belonging to another
person is void, if the testator erroneously believed that the thing
pertained to him. But if the thing bequeathed, though not
belonging to the testator when he made the will, afterwards
becomes his, by whatever title, the disposition shall take effect.
3. Art. 935. The legacy of a credit against a third person or of the
remission or release of a debt of the legatee shall be effective only
as regards that part of the credit or debt existing at the time of the
death of the testator. In the first case, the estate shall comply with
the legacy by assigning to the legatee all rights of action it may
have against the debtor. In the second case, by giving the legatee
an acquittance, should he request one. In both cases, the legacy
shall comprise all interests on the credit or debt which may be due
the testator at the time of his death.
WHEN TRANSMITTED
UPON DEATH, WHETHER ACTUAL OR CONSTRUCTIVE
Q. What are the requisites for transmission?
1. Death, whether actual or presumed
2. Rights or properties are indeed transmissible
3. Transferee is still alive, willing and is capacitated to inherit
Q. When transmitted?
The rights to the succession are transmitted from the moment of the
death of the decedent. (Art. 777)
1. Actual death
2. Presumed death
ACTUAL DEATH
There has to be a death certificate. The effects of an acceptance of the
inheritance retroact to the moment of death.
PRESUMED DEATH
A. Ordinary presumption
If missing for 10 years
If disappeared after 75 years of age 5 years
Relevant codal provision
Art. 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed dead
for all purposes, except for those of succession. The absentee shall
not be presumed dead for the purpose of opening his succession
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
till after an absence of ten years. If he disappeared after the age
of seventy-five years, an absence of five years shall be sufficient in
order that his succession may be opened.
B. Extraordinary presumption if on board a missing airplane or
vessel, sent to war, or disappeared under dangerous or mysterious
circumstances, and has been missing for 4 years.
Relevant codal provision
Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for
four years since the loss of the vessel or aeroplane
(2) A person in the armed forces who has taken part in war, and
has been missing for four years
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four
years.
Difference and similarity between ordinary and extraordinary
presumption
A. Difference date of presumptive death
B. Similarity both are considered provisional succession because
they are contingent on the possible reappearance of the testator.
Effect of return or appearance
The absentee may recover his property in the condition in which it
may be found.
If already sold by the heirs the price of the property may be
recovered but not the fruits.
Except: If others spent part of the property for daily subsistence in
good faith they need not reimburse the absentee. It was done in
good faith because they needed to feed themselves.
Relevant codal provision
Art. 392. If the absentee appears, or without appearing his existence is
proved, he shall recover his property in the condition in which it may be
found, and the price of any property that may have been alienated or
the property acquired therewith; but he cannot claim either fruits or
rents.
Principle of retroactivity
While the actual division of properties will only happen at the end of the
term limits, succession retroacts to the time of disappearance. This is to
avoid the situation where the properties are owned by no one during
the said period of absence.
WHEN NOTHING IS TRANSMITTED
WHEN NOTHING IS TRANSMITTED
1. Predecease
2. Incapacity
3. Renunciation
Except: In cases provided for by law.
PREDECEASE
PREDECEASE
A voluntary heir who dies before the testator transmits nothing to his
heirs. A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the inheritance, shall
transmit no right to his own heirs except in cases expressly provided for
in this Code.
5|U N I V E R S I T Y O F S A N C A R L O S
A voluntary heir transmits no rights and cannot be represented
Example: T has a friend X whom he instituted as heir to an estate of
P100,000. X dies before T but leaves a son Y. Upon Ts death, will Y get
anything?
No, because X, the father of Y, was a voluntary heir who predeceased
the testator. The estate should therefore go to the intestate heirs of T.
A compulsory heir transmits no rights but may be represented
A compulsory heir who predeceases the testator also transmits no right,
although of course there is the right of representation. In other words,
what he could have received is instead given not by him but by the law
to the representative.
A repudiating compulsory heir transmits nothing at all and
cannot be repudiated
He not only receives nothing but his own heirs are denied the right to
represent.
Illustration:
A and B are legitimate children of T. C is a legitimate child of A. The
estate of P100,000. A and B were instituted heirs.
Q1. If A dies before T, how much will C and B get, if any?
Ans A was a compulsory heir to the legitime of P25,000. Therefore, C
will get only P25,000. The remaining P75,000 will all go to B. (This is
because the legitime is 50%. Thus, 25% each for A and B. The other
50% is the free portion. Since A died, the free portion of 50% and the
25% will all go to B.)
Q2. If A renounces the inheritance, how much will C get, if any?
Ans C gets nothing since a person who renounces an inheritance
cannot be represented. Thus, everything goes to B.
Relevant codal provision
Art. 856. A voluntary heir who dies before the testator transmits nothing
to his heirs. A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the inheritance, shall
transmit no right to his own heirs except in cases expressly provided for
in this Code.
INCAPACITY
INCAPACITY
Incapacity may either be absolute or relative.
1. ABSOLUTE INCAPACITY
A. Abortive infants
B. Associations and corporations prohibited by law or their
charters
Relevant codal provisions
Art. 1027. The following are incapable of succeeding:
(6) Individuals, associations and corporations not permitted by
law to inherit. (Ferdie: Individuals refer to abortive infants)
Art. 40. Birth determines personality; but the conceived child shall
be considered born for all purposes that are favorable to it,
provided it be born later with the conditions specified in the
following article.
Art. 41. For civil purposes, the fetus is considered born if it is alive
at the time it is completely delivered from the mother's womb.
However, if the fetus had an intra-uterine life of less than seven
months, it is not deemed born if it dies within twenty-four hours
after its complete delivery from the maternal womb.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
2. RELATIVE INCAPACITY
A. By reason of undue influence
B. By reason of unworthiness
C. By reason of public morality
A. BY REASON OF UNDUE INFLUENCE
a) Priest who heard confession or minister who extended
spiritual aid during last illness.
The confession must be made during the last illness because that
is when testator is the most vulnerable.
Last illness it must be the cause of death or the one
immediately preceding it, if the testator did not have any
opportunity to revoke the testamentary dispositions concerned.
Question: If the decedent made a confession during the last
illness but died due to accident and not because of the illness,
can the priest be an heir?
Ans It depends.
If there is an interval of time to think about it or change
ones mind, that might still be admitted.
But if the decedent made the confession during the last
illness and died immediately due to accident, the priest
cannot inherit.
TN: It must be a priest who heard the confession or minister
who extended spiritual aid. It cannot be interchanged.
Exceptions:
1. Legitime
2. Intestacy
3. Dispositions which do not extend testamentary benefit
Q1 A testator during his last illness confessed to his only son
who happened to be a priest. In his will made shortly after
the confession, the testator have his son P600,000 out of an
estate worth P1M. The rest was given to a friend. How much
will the son inherit?
Ans He gets P500,000 as legitime, but not the P100,000
which is part of the free portion. The P100,000 will accrue in
favor of the friend by reason of accretion.
Q Supposed the deceased who had confessed to his son-
priest had died intestate, how much will the son inherit?
Ans The whole P1M, not as voluntary or testamentary heir,
but as an intestate heir. In other words, he gets everything
by operation of law.
b) Relatives of such priest or minister within the fourth
degree, the church, order, chapter, community,
organization, or institution to which such priest or
minister may belong.
c) Guardian with respect to testamentary dispositions given
in his favor prior to approval of final accounts of
guardianship.
The guardian referred to may be the guardian of the person or
of the property, since both can exercise undue influence.
B. BY REASON OF UNWORTHINESS
Exceptions:
Guardian is an ascendant, descendant, brother, sister, or
spouse
Will was made after approval of the final accounts
Given to guardians relative, except if latter is made an
intermediary
Final accounts those that terminate the financial responsibility
of the guardian. When the guardian is removed, resigns or
when there is no need for guardianship to continue.
6|U N I V E R S I T Y O F S A N C A R L O S
d) Attesting witness to the will, including spouse, parents
or children or any one claiming under such witness,
spouse, parent or children.
Three witnesses are required in a will, the purpose of which is to
ensure that the making of the will was indeed the free will and
volition of the decedent.
Exceptions:
1. If there are three other witnesses. The three others must
be competent and disinterested (not given anything)
witnesses to the will.
2. If witness is not given any testamentary disposition but
instead burdened with a duty.
Question: Can you be a witness and at the same time a recipient
of a last will and testament?
Ans You cannot be if you are one of the three. But you can be
an heir if you are the fourth witness, for as long as the three
witnesses are complied with and you are the fourth.
e) Physician, surgeon, nurse, health officer or druggist who
took care of testator during last illness
Take note:
1. The will must have been made during the last illness and
after the care has commenced
2. Took care means presupposes a continuous and regular
caring, not an isolated service.
f) Individuals, associations and corporations not allowed by
law.
Exceptions common to all
Even if one is among those enumerated here, he can still
inherit if he is entitled to the legitime. In other words, one
actually receives something not because he is a guardian,
priest, witness, physician etc. but because he is entitled to
the legitime a compulsory heir.
Question:
What if what is given is more than the legitime? As when the
legitime is only 500,000 but one is given 600,000.
Ans The 100,000 will not be given because of the
disqualification. This is because the P100,000 now is given
in the context of being a voluntary heir, meaning chosen out
of liberality, which is taken from the free portion of the
estate.
Ferdie: In other words, the priest who heard the confession during
the last illness is disqualified to become a voluntary heir because of
undue influence. However, if the priest is a family member, he can
inherit in his capacity as a compulsory heir. Such that where the priest
is entitled only to P400,000 as a compulsory heir, but the testator
gave him P1 Million, the excess of P600,000 given out of liberality
can be denied because of the disqualification.
Conclusive presumption
These are conclusive presumptions of incapacity. Thus, they
are not rebuttable by evidence to the contrary.
a) Parents who abandoned their children or induced their
daughters to lead a corrupt or immoral life, or attempted
against their virtue.
Failure to give due care and attention
Include granddaughters and sons
Attempted against their virtue. This does not need
conviction
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
If the son or the daughter refused the inducement, the
parents are still disqualified because of the moral perversity
of the parent as revealed by his act of persuasion.
Ferdie: It includes the son. The old laws are normally not as
politically correct as they are now. They are both vulnerable
to abuse.
b) Any person convicted of attempt against the life of
testator, his or her spouse, descendants or ascendants.
Effect of acquittal:
It depends on the nature of the acquittal. If the acquittal is based
on pure innocence, then he can inherit.
TN: De Leon however says that since this requires conviction by
final judgment. Thus, an acquittal on any ground, even that of
reasonable doubt, does not result in incapacity.
Effect of pardon:
Still incapacitated for what is important is that he had been
convicted by final judgment. However, if he has been given an
amnesty before final judgment, he would be qualified.
The conviction need not be done before the testators or
decedents death.
It is enough that the heir be convicted later on. Thus, the law
states that to determine the qualification of the heir, the
rendition of the final judgment must be awaited. In other words,
although conviction be after the death, the fact of conviction and
its effects retroact to the time of the decedents death.
Effect of death of heir before final judgment
The fact remains that he is not convicted. Hence, he should still
be capacitated.
TN: The attempt must be before and not after the testators
death.
c) Any person who accused testator of a crime with 6 years
or more of imprisonment, if found groundless.
Testator should have been acquitted based on pure
innocence
The acquittal of the testator must be definite and not which is
based merely on reasonable doubt. Otherwise, there was some
ground for the accusation, and thus the incapacity does not arise.
Rules:
If definite acquittal or case was dismissed incapacitated
If acquittal is based on reasonable doubt or case was
dismissed for lack of probable cause qualified
Filing of a case is not necessary
When you accuse, it is not necessary that you filed the case. You
could be a witness against the testator in court telling about the
crime. It does not matter whether you filed it in the prosecutors
office or to the court. What is important is that you made an
accusation and the accusation turned out to be false.
d) Any heir of full age who knows violent death of testator,
who fails to report it to an officer of law within a month.
Requirements:
1. The heir must be of full age.
2. He must have knowledge of the violent death of the
testator
3. There is failure to report such death within a month, unless
the authorities have already taken action
4. There is an obligation to make the accusation.
Except: If authorities have already acted or there is no obligation
to accuse.
Violent death
It must be one caused by crime, not because of suicide or
accident. There must be an intent to kill.
7|U N I V E R S I T Y O F S A N C A R L O S
e) Any person convicted of adultery or concubinage with
the spouse of testator.
Conviction by final judgment is essential
Conviction should acquire finality. The spouse himself or herself
who is equally guilty cannot be disqualified by reason of
unworthiness, though he may be disqualified based on
disinheritance. The basis is Art. 921 (4) When the spouse has
given cause for legal separation.
f) Any person who by fraud, violence, intimidation, or
undue influence should cause testator to make a will or
to change one already made.
g) Any person who by the same means prevents another
from making or revoking a will, or who supplants,
conceals, or alters.
h) Any person who falsifies or forges a supposed will of the
decedent.
Article 1032 applies to both testate and intestate
succession.
Example: A son tried to kill his father and went to prison for
the crime. Suppose the father died without a will, will the son
inherit?
Ans No, because the incapacity also applies in intestate
succession. Had the father desired his son to inherit, he
should have condoned the act in writing.
An heir incapacitated by reason of unworthiness loses
everything
Thus, even he be a compulsory heir, he loses all rights to
inherit from the deceased. He loses not only the legitime, but
that which would have appertained to him had he been
capacitated, without prejudice to the right of representation
when proper.
How to judge capacity of heir, devisee or legatee?
General rule Qualification at the time of the death of
decedent is the criterion.
Date when final judgment is rendered:
Conviction of attempt against life of testator, his or her
spouse, descendants or ascendants.
Ferdie: We have to wait until there is final judgment.
Acquittal of testator based on groundless accusation
Conviction of adultery or concubinage with spouse of
testator
Failure to report after a month
In case of a suspensive conditional institution, heir must be
capacitated both:
At the time of testators death
At the time condition is fulfilled
Relevant codal provision
Art. 1034. In order to judge the capacity of the heir, devisee
or legatee, his qualification at the time of death of the
decedent shall be the criterion.
In cases falling under Nos. 2, 3 or 5 of Article 1032, it shall be
necessary to wait until final judgment is rendered and in the
case falling under No. 4, the expiration of the month allowed
for the report.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
If the institution, devise or legacy should be conditional, the
time of the compliance with the condition shall also be
considered.
Condonation of unworthiness
1. Implied condonation When testator knew about the
cause of unworthiness but nonetheless instituted the
unworthy heir.
2. Express condonation When testator knew about the
cause of unworthiness after execution of the will,
condonation must be in writing.
Ferdie: Condonation applies only to relative incapacity by
unworthiness, not to relative incapacity by undue influence or
public morality. In incapacity by undue influence, the one who
says there is undue influence is the law. You cannot condone
for the law. It is a conclusive presumption. Also, we cannot
apply this in public morality as well because the person being
offended is the public.
Relevant codal provision
Art. 1033. The cause of unworthiness shall be without effect
if the testator had knowledge thereof at the time he made the
will, or if, having known of them subsequently, he should
condone them in writing.
Unworthy heir gets nothing?
No. The unworthy heir can still get something but not in his
capacity as an heir.
1. Get reimbursement for necessary expenses of
preservation
2. Enforce credit against estate
Relevant codal provision
Art. 1037. The unworthy heir who is excluded from the
succession has a right to demand indemnity or any expenses
incurred in the preservation of the hereditary property, and to
enforce such credits as he may have against the estate.
C. BY REASON OF PUBLIC MORALITY
Prohibitions mentioned in Article 739 against donations inter
vivos apply to testamentary provisions. The following
donations shall be void:
1. Those made between persons guilty of adultery or
concubinage at the time of donation.
Ferdie: There is no need for criminal conviction. This can be
proven civilly by mere preponderance of evidence.
2. Those made between persons found guilty of the same
criminal offense, in consideration thereof. (This is given
as a reward)
3. Those made to a public officer or his wife, descendants
and ascendants, by reason of his office. (This is given as
a bribe)
Question: A cabinet official, because he had already gained prestige in his
office, gave L, a friend, a legacy. Is the legacy valid? (Trick question)
Ans Yes, provided that L is not otherwise incapacitated. Here, the legacy
was made by the cabinet member, and not to him. The prohibition
therefore does not apply.
Relevant codal provision
Art. 739. The following donations shall be void:
a. Those made between persons who were guilty of adultery
or concubinage at the time of the donation
8|U N I V E R S I T Y O F S A N C A R L O S
b. Those made between persons found guilty of the same
criminal offense, in consideration thereof
c. Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity
may be brought by the spouse of the donor or donee; and the
guilt of the donor and donee may be proved by preponderance of
evidence in the same action.
DECLARATION OF INCAPACITY
When to declare incapacity?
Within 5 years from the time the disqualified heir took possession of the
property, coupled with recovery of inheritance, devise or legacy. (This
is to determine prescription)
Who files?
Anyone with interest in the succession. (i.e. the person who would
inherit in place of the incapacitated heir)
Prior to the possession, can you bring the action?
Yes. That is the best time to bring the action because there is no
prescriptive period. In other words, there is no need to wait for the
incapacitated heir to possess the property. Action may be filed even prior
to possession.
Relevant codal provision
Art. 1040. The action for a declaration of incapacity and for the recovery
of the inheritance, devise or legacy shall be brought within five years
from the time the disqualified person took possession thereof. It may be
brought by anyone who may have an interest in the succession.
REPUDIATION
REPUDIATION
Nature of repudiation
1. A purely voluntary and free act
2. Pure and absolute such that there must be no term or condition.
3. Irrevocable and cannot be impugned
Except:
a. Vitiated Consent
b. Unknown will appears
4. Retroacts to the moment of death this is prevent any stage
where the property will be without an owner and possessor.
Relevant codal provisions
Art. 1041. The acceptance or repudiation of the inheritance is an act
which is purely voluntary and free.
Art. 1042. The effects of the acceptance or repudiation shall always
retroact to the moment of the death of the decedent.
Art. 1056. The acceptance or repudiation of an inheritance, once made,
is irrevocable, and cannot be impugned, except when it was made
through any of the causes that vitiate consent, or when an unknown will
appears.
When to repudiate
1. Certainty of death
2. Certainty of right to the inheritance
TN: Within 30 days after the court has issued an order for the
distribution of the estate.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Relevant codal provision
Art. 1043. No person may accept or repudiate an inheritance unless he
is certain of the death of the person from whom he is to inherit, and of
his right to the inheritance.
Art. 1057. Within thirty days (30) after the court has issued an order for
the distribution of the estate in accordance with the Rules of Court, the
heirs, devisees and legatees shall signify to the court having jurisdiction
whether they accept or repudiate the inheritance. If they do not do so
within that time, they are deemed to have accepted the inheritance.
Who may and how to repudiate
Repudiation being an act of alienation, court approval is generally
needed, unless stated otherwise.
1. Any person with free disposal of the property
Ferdie: A person with free disposal is the one with soundness of mind.
2. Minors or incapacitated persons Parents or guardians may
repudiate
3. Lawful representatives of corporations, associations, etc.
3. Public official establishments
4. Married woman without need of consent of the husband
5. Deaf-mutes
a. If able to read and write personally or through agent even
without court approval
b. Unable to read and write guardians with court approval
Ferdie: Bottomline here is, you should repudiate personally and expressly. If its
through a representative, you must secure an approval from the court.
Relevant codal provisions
Art. 1044. Any person having the free disposal of his property may
accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may be accepted
by their parents or guardians. Parents or guardians may repudiate the
inheritance left to their wards only by judicial authorization.
The right to accept an inheritance left to the poor shall belong to the
persons designated by the testator to determine the beneficiaries and
distribute the property, or in their default, to those mentioned in Article
1030.
Representative of corporations, etc.
Art. 1045. The lawful representatives of corporations,
associations, institutions and entities qualified to acquire property
may accept any inheritance left to the latter, but in order to
repudiate it, the approval of the court shall be necessary.
Art. 1046. Public official establishments can neither accept nor
repudiate an inheritance without the approval of the government.
Married woman
Art. 1047. A married woman of age may repudiate an inheritance
without the consent of her husband.
Persons with disability
Art. 1048. Deaf-mutes who can read and write may accept or
repudiate the inheritance personally or through an agent. Should
they not be able to read and write, the inheritance shall be
accepted by their guardians. These guardians may repudiate the
same with judicial approval.
How to repudiate
1. Public document
2. Authentic document
9|U N I V E R S I T Y O F S A N C A R L O S
3. Petition in court (within 30 days from order for distribution of the
estate, otherwise there is presumed acceptance)
Repudiation should always be express because:
a. It is an act of disposing of property rights
b. It is unnatural and resultantly disturbs juridical relations
c. Creditors of the renouncer should be more or less informed, hence
the need for an express renouncing
Relevant codal provision
Art. 1051. The repudiation of an inheritance shall be made in a public or
authentic instrument, or by petition presented to the court having
jurisdiction over the testamentary or intestate proceedings.
Repudiation prejudicial to creditors
While rights may be waived, it cannot be allowed if it is prejudicial to a
third person with a right recognized by law, like a creditor.
Thus, in a case where the person who repudiates owes a creditor, the
creditor may petition the court to accept in the name of the heir, to the
extent of the value of inheritance.
TN: Notwithstanding, the heir here is still considered a renouncer, and
thus cannot be represented.
Exceptions:
1. If the creditor is not prejudiced such that the heir still has enough
properties of his own to cover his debts
2. If the creditor became creditors only after the repudiation.
Relevant codal provision
Art. 1052. If the heir repudiates the inheritance to the prejudice of his
own creditors, the latter may petition the court to authorize them to
accept it in the name of the heir. The acceptance shall benefit the
creditors only to an extent sufficient to cover the amount of their credits.
The excess, should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to whom, in
accordance with the rules established in this Code, it may belong.
Effect of renunciation
Accretion applies. The share renounced is added or incorporated to that
of his co-heirs, co-devisees or co-legatees
In testamentary succession, accretion takes place when:
1. Two or more persons are called to the same inheritance or to the
same undivided share
2. One of them predeceases, renounces or is incapacitated
In legal succession:
The share of the person who repudiates always accrues to his co-
heirs.
Among compulsory heirs, right of accretion takes place only when
free portion is left to two or more of them, or to any one of them
or to a stranger.
Should it be the legitime, the other co-heirs succeed in their own
right, and not by right of accretion
Difference between renunciation and repudiation
Ferdie: There is not much of a difference. They can be used
interchangeably. But what I noticed is that, once the law mentions of
renunciation, it is in favor of a named co-heir/s. In repudiation, it doesnt
mention of anyone, thus the share repudiated accrues in favor of the
other co-heirs equally.
In other words:
Repudiation refusal because of pride
Renunciation refusal because of liberality
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
CAPACITY TO INHERIT
WHO IS CAPACITATED TO INHERIT?
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.
Requirements:
1. Living at the time succession opens
2. Or at least conceived at the time of death of the testator (Art. 41)
At the time the succession opens
This means at the time of death and not at the time of the making of
the will. This is because prior to the death of the decedent, the rights of
the heirs are still inchoate. They will only pass to them upon death.
There is no exception
There is no exception to the rule even if it says except. This is because
even in case of representation, the representative must already be alive
or at least conceived at the time the succession opens. He himself must
be capable of succeeding the decedent.
This article should have been written this way: In case of representation,
if proper, the person represented need not be alive at the time the
succession opens.
Relevant codal provisions
Art. 1025. 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.
Art. 1039. Capacity to succeed is governed by the law of the nation of
the decedent.
Art. 41. For civil purposes, the fetus is considered born if it is alive at
the time it is completely delivered from the mother's womb. However, if
the fetus had an intra-uterine life of less than seven months, it is not
deemed born if it dies within twenty-four hours after its complete
delivery from the maternal womb.
WHO SUCEEDS
WHO CAN SUCEED?
1. Heir (Compulsory or voluntary)
2. Devisee
3. Legatee
4. State, public and private corporations
5. Representative
HEIRS
Q. Who is an heir?
An heir is a person called to the succession either by the provision of a
will or by operation of law. An heir could either be compulsory or
voluntary. (Art. 782)
COMPULSORY HEIRS
Those heirs which are entitled to the legitime. The decedent or testator
can never disregard a compulsory heir, except if there is disinheritance.
They can inherit with or without a last will and testament.
Two classes of compulsory heirs:
1. Primary compulsory heirs (Nos. 1, 3, 4, 5, 6)
2. Secondary compulsory heirs (No. 2)
Relevant codal provision
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants
10 | U N I V E R S I T Y O F S A N C A R L O S
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants
(3) The widow or widower
(4) Acknowledged natural children, and natural children by legal
fiction
(5) Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by
those in Nos. 1 and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes
mentioned, shall inherit from them in the manner and to the extent
established by this Code.
Primary compulsory heirs
Those who get their legitime even in the presence of the other primary
and secondary compulsory heirs:
1. Legitimate children and descendants, with respect to their
legitimate parents and ascendants
2. The widow or widower
3. Acknowledged natural children, and natural children by legal fiction
4. Other illegitimate children referred to in Art. 287
Secondary compulsory heirs
Those who can only inherit in the absence of No. 1 in Art. 887.
1. Legitimate parents and ascendants in default of legitimate children
and descendants
2. If there are no other ascendants, illegitimate parents in default of
legitimate children and descendants and widow or widower
VOLUNTARY HEIRS
Those which can receive inheritance from the free portion of the
testators estate. There can only be voluntary heirs in testamentary
succession (those with a last will and testament).
DEVISEE AND LEGATEE
DEVISEE AND LEGATEE
A. Devisee Recipient of a real property
B. Legatee Recipient of a personal property
TN: To avoid confusion: If property is personal (with an L) Legatee.
Ferdie: They can be a voluntary heir in THE sense that the source of the
shares are from the free portion of the decedents estate. The difference
is that the legatee and the devisees shares are very specific.
Transferees in testamentary succession
1. Heir they succeed by universal title, to the whole or an aliquot
portion of the properties. An heir may be compulsory or voluntary.
2. Legatees and Devisees they succeed by particular title to cash or
to a particular or specified item or thing in the inheritance.
a. Devisee Recipient of a real property
b. Legatee Recipient of a personal property
TN: Legatees and devisees can exist only in testamentary succession.
Transferees in legal succession
The transferees are called legal or intestate heirs.
Possibility of dual status
If in a will, a compulsory heir is given more than his legitime, he
assumes a dual status.
A. Insofar as his legitime is concerned he is a compulsory heir.
B. Insofar as the excess he is a voluntary heir.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
TN: This distinction is important because if a compulsory heir dies
ahead of the testator, his legitime is inherited by his own child. On the
other hand, the child of a voluntary heir who predeceases the testator
gets nothing.
Relevant codal provision
Art. 782 (2). Devisees and legatees are persons to whom gifts of real
and personal property are respectively given by virtue of a will.
STATE, PUBLIC AND PRIVATE CORPS
STATE, PUBLIC AND PRIVATE CORPORATIONS
1. State, provinces, municipal corporations
2. Private corporations
3. Organizations or associations for religious, scientific, cultural,
educational or charitable purposes
Relevant codal provision
Art. 1026. A testamentary disposition may be made to the State,
provinces, municipal corporations, private corporations, organizations,
or associations for religious, scientific, cultural, educational, or charitable
purposes.
All other corporations or entities may succeed under a will, unless there
is a provision to the contrary in their charter or the laws of their creation,
and always subject to the same.
Q. Can a juridical person make a will?
No. The making of a will is purely a personal act. While it may be argued
that a corporation can make a will through their directors, but there are
at least 15 directors, it would tantamount to a joint will which is
prohibited under the law.
Relevant codal provision
Art. 818. Two or more persons cannot make a will jointly, or in the same
instrument, either for their reciprocal benefit or for the benefit of a third
person.
A juridical person can only inherit in testate succession
They cannot inherit in legal succession. In other words, they can only
inherit as voluntary heirs where there is a last will and testament.
Q. If a person dies and there is no will and no heirs, where do
his properties go?
The property goes to the state and it becomes patrimonial.
Q. Is it required for a decedent to specify the purpose of the
disposition?
It is not compulsory but he may. If you put in the purposes, it might
jeopardize the state, municipal corporations.
Example: I will give this to the state and this must be used for religious
purposes. What is violated? Separation of church and state.
At the time the succession opens
Means at the time of death. Why not at the time of the making of the
will? Example: I am making a will and you are my compulsory heir. Prior
to my death, do you have the right to my property?
No. The right is only inchoate as long as the decedent is living. That is
the reason. You will only have the property at the moment of my death.
11 | U N I V E R S I T Y O F S A N C A R L O S
REPRESENTATIVE
REPRESENTATIVE
Difference between representation and agency
Agency is allowed by law because you cannot be in two places at the
same time. In representation, you represent as a matter of right not
because you cannot be there. You are there because the law allows you
to be there. An agent cannot be allowed in the context of succession.
Who can represent?
1. Capable of succeeding the decedent
2. Renouncer
Q. May a renouncer be represented?
No. A renouncer may represent but cannot be represented. If the
renouncer is going to repudiate or renounce, who is he going to
represent? It is the parent (you go up).
From what viewpoint should capacity to succeed be governed
Capacity to succeed is governed, from the viewpoint of private
international law, not by national law of the representative nor of the
person represented, but of the decedent.
Relevant codal provisions
Art. 973. In order that representation may take place, it is necessary
that the representative himself be capable of succeeding the decedent.
Art. 976. A person may represent him whose inheritance he has
renounced.
Who cannot represent?
1. Adopted child
They cannot represent because the legal filiation between the
adopter and adopted exists only between both and does not extend
to the parents of the adopter. If an adopted is allowed to represent,
in effect, he will be allowed to get from the estate of the parent of
the adopter, to whom he has no legal filiation.
But can the grandparent institute the adopted child as an heir?
Yes, but only as a voluntary heir. Not from the legitime.
2. Grand nephews and grand nieces
RIGHT OF REPRESENTATION
The right of representation pertains to right to represent
The right of representation pertains to the right to represent, not the
right to be represented, because the latter results in a situation where
grandnieces and grandnephews are allowed to represent who are, by
law, not allowed to represent.
Representation exists in case of:
1. Predecease (testate and intestate)
2. Incapacity (testate and intestate)
3. Disinheritance (only in testate succession)
TN: If intestate covers all that the person being represented would
have inherited. If testate covers only the legitime.
Relevant codal provision
Art. 970. Representation is a right created by fiction of law, by virtue of
which the representative is raised to the place and the degree of the
person represented, and acquires the rights which the latter would have
if he were living or if he could have inherited.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Q. Who can be represented?
1. Compulsory heirs
2. Incapacitated heirs
3. Heirs who predecease
4. Disinherited heirs
Ferdie: Disinherited heirs may be represented because it was the compulsory
heir who gave rise to the cause of disinheritance. The heirs of the compulsory
heir should not be made to suffer because of what he did which caused the
disinheritance.
Q. Who cannot be represented?
1. Heirs in ascending line
Ferdie: Never in the ascending line because its too far and it might be
against the nature of things. The probability of the grandparents to represent
the parents share in the estate of the child is slim. Also, it might be against
the nature of things as opposed to descending line.
2. In the collateral line, it takes place only in favour of the children of
brothers and sisters, whether they be of full or half blood.
Ferdie: The right of representation takes place only in favor of the children
of brothers and sisters.
3. Heirs who repudiate their share
Ferdie: This is because a renouncer, for motives of his own, does so
voluntarily. His act of repudiation takes away his right to dispose of the
property dispossesses his children of that which could have gone down to
them. Repudiation is an act of disposition. In cases of incapacity or
disinheritance however, the loss is involuntary.
4. Voluntary heirs
Ferdie: This is because the voluntary heirs are given inheritance based on
liberality. It might be that the testator would not want that liberality to go
beyond the chosen voluntary heir as opposed to a compulsory heir where
the testator has no choice.
5. Adopted child
An adopted child also cannot be represented. This is because there
is no filiation whether by blood or by law between the adopter and
the children of the adopted.
Relevant codal provisions
Art. 972. The right of representation takes place in the direct descending
line, but never in the ascending. In the collateral line, it takes place only
in favor of the children of brothers or sisters, whether they be of the full
or half blood.
Art. 977. Heirs who repudiate their share may not be represented.
ACCEPTANCE OF INHERITANCE
NATURE AND WHEN EFFECTIVE
NATURE
1. Acceptance is purely voluntary and free.
2. Acceptance is irrevocable
Pure and absolute acceptance
It means that there must be no term or condition otherwise, there would
be uncertainty as to whether the properties or rights are being
transmitted or not.
Irrevocability of acceptance
GR: Acceptance is irrevocable to prevent confusion and instability of
rights.
12 | U N I V E R S I T Y O F S A N C A R L O S
Exceptions:
1. When the acceptance or repudiation was made through any of the
causes that vitiate consent:
a. Mistake (of substance or on the principal conditions)
b. Violence
c. Intimidation
d. Undue influence
e. Fraud
Ferdie: Vitiated consent means corrupted or adulterated consent. It does
not entirely belong to the one who gave it.
2. When an unknown will appears and it makes substantial changes
in the old will.
Ferdie: If the new will makes only insignificant changes in the old one, the
appearance of the unknown will should not allow the impugning of the
previous acceptance or repudiation concerning the old one.
Relevant codal provisions
Art. 1041. The acceptance or repudiation of the inheritance is an act
which is purely voluntary and free.
Art. 1056. The acceptance or repudiation of an inheritance, once made,
is irrevocable, and cannot be impugned, except when it was made
through any of the causes that vitiate consent, or when an unknown will
appears.
May acceptance be made during the lifetime of the testator?
No. acceptance cannot be made during the lifetime of the testator
because it is still premature. The right to the inheritance is still inchoate.
Is partial acceptance allowed?
Sirs opinion: No, because it amounts to a condition. If one accepts half
of the inheritance, what happens to the other half? It could be
repudiation of the other half.
Paras: If the heir would say that he will just accept 50% and the other
half he leaves to the discretion of the other heirs, it becomes a donation
or a gratuitous renunciation. Technically, there is already acceptance
because you cannot give something you do not own.
WHEN EFFECTIVE
The effects of acceptance and repudiation shall always retroact to the
moment of the death of the decedent.
Ferdie: In the interval of time, there is a question of ownership. There
should be retroaction to know who should pay the taxes due of the
property and to prevent any stage where the property will be without
an owner and possessor.
Relevant codal provision
Art. 1042. The effects of the acceptance or repudiation shall always
retroact to the moment of the death of the decedent.
WHEN TO ACCEPT
WHEN TO ACCEPT
After the death of the decedent, with the following requisites:
1. Certainty of death
2. Certainty of right to the inheritance
If these requisites concur, when should you accept?
Anytime. Because anyway, acceptance retroacts at the time of death of
the decedent. During the time that there was yet no acceptance, it is
uncertain on who owns the property or who will take care of the
property. Reason for retroactivity is to prevent any stage where the
property will be without an owner and possessor. Matters such as taxes
can be settled only when the owner of the property is determined.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Presumed acceptance
After the lapse of 30 days after the court has issued an order for the
distribution of the estate without the heirs signifying their acceptance or
repudiation of the inheritance.
Relevant codal provision
Art. 1043. No person may accept or repudiate an inheritance unless he
is certain of the death of the person from whom he is to inherit, and of
his right to the inheritance.
Art. 1057. Within thirty days (30) after the court has issued an order for
the distribution of the estate in accordance with the Rules of Court, the
heirs, devisees and legatees shall signify to the court having jurisdiction
whether they accept or repudiate the inheritance. If they do not do so
within that time, they are deemed to have accepted the inheritance.
WHO MAY ACCEPT
WHO MAY ACCEPT
Those with free disposal of the property.
MINORS OR INCAPACITATED PERSONS
Acceptance may be made by their parents or guardians. It does not
require court approval because it is not contrary to human experience
to accept something beneficial as opposed to repudiation where court
approval is required.
Exception: If there be burdens.
Relevant codal provision
Art. 1044. Any person having the free disposal of his property may
accept or repudiate an inheritance. Any inheritance left to minors or
incapacitated persons may be accepted by their parents or guardians.
Parents or guardians may repudiate the inheritance left to their wards
only by judicial authorization. The right to accept an inheritance left to
the poor shall belong to the persons designated by the testator to
determine the beneficiaries and distribute the property, or in their
default, to those mentioned in Article 1030.
THE POOR
Acceptance may be made by:
1. Persons designated by the testator to determine beneficiaries and
distribute property
2. If none, by the executor
3. If there is no executor, by the following persons who shall decide
by a majority vote:
a. Justice of the peace (municipal or metropolitan trial judge)
b. Mayor
c. municipal treasurer
TN: In all instances, court approval is required because the question as
to who really are the poor is a judicial question. When the testator gives
inheritance to the poor, the intention there is too general. There is no
specific person named so the determination of who belongs to the poor
intended to be given inheritance is best left to the court.
Why is RTC not included in the list of the persons allowed to
accept in favor of the poor?
Ans Because it is the RTC which approves.
What if the testator did not designate a locality?
Ans The poor in general will be limited to the poor living in the
domicile of the testator at the time of his death.
Relevant codal provisions
Art. 1030. Testamentary provisions in favor of the poor in general,
without designation of particular persons or of any community, shall be
deemed limited to the poor living in the domicile of the testator at the
13 | U N I V E R S I T Y O F S A N C A R L O S
time of his death, unless it should clearly appear that his intention was
otherwise.
The designation of the persons who are to be considered as poor and
the distribution of the property shall be made by the person appointed
by the testator for the purpose; in default of such person, by the
executor, and should there be no executor, by the justice of the peace,
the mayor, and the municipal treasurer, who shall decide by a majority
of votes all questions that may arise. In all these cases, the approval of
the Court of First Instance shall be necessary. The preceding paragraph
shall apply when the testator has disposed of his property in favor of
the poor of a definite locality.
REPRESENTATIVES OF CORPORATIONS AND PUBLIC OFFICIAL
ESTABLISHMENTS
1. Lawful representatives of corporations, associations, etc. no
need for court approval because a benefit is presumed.
2. Public official establishments needs government approval,
particularly the executive or department head.
What is a public official establishment?
Those devoted to public purposes (like charity, education) and
supported by public money (UP, Philippine National Red Cross)
Relevant codal provisions
Art. 1045. The lawful representatives of corporations, associations,
institutions and entities qualified to acquire property may accept any
inheritance left to the latter, but in order to repudiate it, the approval of
the court shall be necessary.
Art. 1046. Public official establishments can neither accept nor repudiate
an inheritance without the approval of the government.
PERSONS WITH DISABILITY
Deaf-mutes
1. Able to read and write personally without need of court approval
2. Unable to read and write guardians, subject to court approval
Relevant codal provision
Art. 1048. Deaf-mutes who can read and write may accept or repudiate
the inheritance personally or through an agent. Should they not be able
to read and write, the inheritance shall be accepted by their guardians.
These guardians may repudiate the same with judicial approval.
CREDITOR
While rights may be waived, it cannot be allowed if it is prejudicial to a
third person with a right recognized by law, like a creditor.
Thus, in a case where the person who repudiates owes a creditor, the
creditor may petition the court to accept in the name of the heir, to the
extent of the value of inheritance.
Question: I owe P1M to someone. Then my father left me P1M as
inheritance. However, I said that I dont need the money. I repudiated.
What is the remedy of the creditor?
Ans Petition the court to accept in behalf of heir-creditor who
repudiates.
Exceptions:
1. If the creditor is not prejudiced such that the heir still has enough
properties of his own to cover his debts
2. If the creditor became creditors only after the repudiation.
Relevant codal provision
Art. 1052. If the heir repudiates the inheritance to the prejudice of his
own creditors, the latter may petition the court to authorize them to
accept it in the name of the heir. The acceptance shall benefit the
creditors only to an extent sufficient to cover the amount of their credits.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

The excess, should there be any, shall in no case pertain to the Relevant codal provisions
renouncer, but shall be adjudicated to the persons to whom, in Art. 1049. Acceptance may be express or tacit. An express acceptance
accordance with the rules established in this Code, it may belong. must be made in a public or private document.

Who may accept A tacit acceptance is one resulting from acts by which the intention to
Minors or Parents or guardians, without need of accept is necessarily implied, or which one would have no right to do
incapacitated persons court approval except in the capacity of an heir.
1. Person designated by the testator for
the purpose Acts of mere preservation or provisional administration do not imply an
2. If none, by the executor acceptance of the inheritance if, through such acts, the title or capacity
3. If no executor, by the following of an heir has not been assumed.
persons who shall decide by majority
vote: Art. 1050. An inheritance is deemed accepted:
Poor a. Justice of the peace (municipal
or metropolitan trial court (1) If the heirs sells, donates, or assigns his right to a stranger, or to
judge) his co-heirs, or to any of them
b. Mayor
c. Municipal treasurer (2) If the heir renounces the same, even though gratuitously, for the
benefit of one or more of his co-heirs.
With court approval in all instances.
(3) If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be gratuitous, and
Corporations, Lawful representatives, without need of the co-heirs in whose favor it is made are those upon whom the
associations, etc. court approval portion renounced should devolve by virtue of accretion, the
inheritance shall not be deemed as accepted.
Public official Needs government approval, particularly
establishments the executive head or department head Art. 1057. Within thirty days (30) after the court has issued an order for
the distribution of the estate in accordance with the Rules of Court, the
Deaf-mutes heirs, devisees and legatees shall signify to the court having jurisdiction
Can read and write Personally or through an agent
whether they accept or repudiate the inheritance. If they do not do so
Cannot read and without need of court approval
within that time, they are deemed to have accepted the inheritance.
write Guardians, subject to court approval

Creditors through a petition in court WHO CANNOT SUCCEED

Creditor subject to court approval
ABSOLUTE INCAPACITY

HOW TO ACCEPT ABSOULTE INCAPACITY

HOW TO ACCEPT Relevant codal provisions

Acceptance may be express, tacit or presumed. Art. 1027. The following are incapable of succeeding:

Express acceptance (6) Individuals, associations and corporations not permitted by law to
An express acceptance must be made in a public or private document. inherit.

Tacit or implied acceptance

A tacit acceptance is one resulting from acts by which the intention to
accept is necessarily implied, or which one would have no right to do
except in the capacity of an heir.
A. Disposal if heir sells, donates or assigns rights to others
B. Renunciation
a. For a price essentially a sale; deemed accepted
b. Gratuitously deemed not accepted
Ferdie: These are acts of disposal based on the legal maxim, nemo
dat quod non habet which means no one gives that which he does
not have
If one renounces indiscriminately in favor of all co-heirs for a price
it is deemed a sale, thus an acceptance.
If the renunciation is also indiscriminately made in favor of all co-
heirs but gratuitously, it is considered an absolute repudiation.
Ferdie: Individuals refer to abortive infants.
Art. 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be
born later with the conditions specified in the following article.
Art. 41. For civil purposes, the fetus is considered born if it is alive at
the time it is completely delivered from the mother's womb. However, if
the fetus had an intra-uterine life of less than seven months, it is not
deemed born if it dies within twenty-four hours after its complete
delivery from the maternal womb.
INCAPACITY DUE TO INFLUENCE
INCAPACITY DUE TO UNDUE INFLUENCE
Art. 1027. The following are incapable of succeeding:

Question: Since it is considered absolute repudiation, does it have to be
in writing? Think about it. (This might come out in the exam)
Presumed acceptance
If within 30 days after the court has issued an order for the distribution
of the estate, the people concerned have not signified their acceptance
or repudiation.
(1) The priest who heard the confession of the testator during his last
illness, or the minister of the gospel who extended spiritual aid to
him during the same period
(2) The relatives of such priest or minister of the gospel within the
fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister may
belong

14 | U N I V E R S I T Y O F S A N C A R L O S
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
(3) A guardian with respect to testamentary dispositions given by a
ward in his favor before the final accounts of the guardianship
have been approved, even if the testator should die after the
approval thereof; nevertheless, any provision made by the ward
in favor of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid
(4) Any attesting witness to the execution of a will, the spouse,
parents, or children, or any one claiming under such witness,
spouse, parents, or children
(5) Any physician, surgeon, nurse, health officer or druggist who took
care of the testator during his last illness
UNWORTHINESS
UNWORTHINESS
Art. 1032. The following are incapable of succeeding by reason of
unworthiness:
(1) Parents who have abandoned their children or induced their
daughters to lead a corrupt or immoral life, or attempted against
their virtue
(2) Any person who has been convicted of an attempt against the life
of the testator, his or her spouse, descendants, or ascendants.
(3) Any person who has accused the testator of a crime for which the
law prescribes imprisonment for six years or more, if the
accusation has been found groundless.
(4) Any heir of full age who, having knowledge of the violent death
of the testator, should fail to report it to an officer of the law
within a month, unless the authorities have already taken action;
this prohibition shall not apply to cases wherein, according to law,
there is no obligation to make an accusation.
(5) Any person convicted of adultery or concubinage with the spouse
of the testator.
(6) Any person who by fraud, violence, intimidation, or undue
influence should cause the testator to make a will or to change
one already made.
(7) Any person who by the same means prevents another from
making a will, or from revoking one already made, or who
supplants, conceals, or alters the latter's will.
(8) Any person who falsifies or forges a supposed will of the
decedent.
Art. 1033. The cause of unworthiness shall be without effect if the
testator had knowledge thereof at the time he made the will, or if,
having known of them subsequently, he should condone them in writing.
Art. 1037. The unworthy heir who is excluded from the succession has
a right to demand indemnity or any expenses incurred in the
preservation of the hereditary property, and to enforce such credits as
he may have against the estate.
DISINHERITANCE
DISINHERITANCE
What is disinheritance?
Disinheritance is the process or act, through a testamentary disposition
of depriving in a will any compulsory heir of his legitime for true and
lawful causes.
Other ways of depriving the heirs of their legitime
1. In case of Predecease, Incapacity, Repudiation.
15 | U N I V E R S I T Y O F S A N C A R L O S
Ferdie: In case of predecease or incapacity, his own heirs may
inherit by representing him.
2. In case the liabilities of the estate equal or exceed its assets, there
would be no hereditary estate, and consequently, no legitime.
Purpose of disinheritance
It is not vengeance but retribution inasmuch as there can possibly be no
feelings of vengeance between parents and children or between
husband and wife at the supreme hour of death.
When you say retribution, it is to teach you a lesson. But when you say
vengeance, it is probably just getting even. Giving you your own dose
of medicine.
Who may be disinherited
Only compulsory heirs can be disinherited, for they alone are entitled to
the legitime.
Disinheritance includes both the legitime and the free portion
A disinheritance excludes the heir not only from the legitime but also
from the free portion. In other words, he is completely excluded from
the inheritance.
Relevant codal provision
Art. 915. A compulsory heir may, in consequence of disinheritance, be
deprived of his legitime, for causes expressly stated by law.
Requisites for a valid disinheritance
1. Must be made in a valid will
It can be in any will so long as it expresses the will of the testator.
2. Must be made expressly
3. Must be for a legal cause
The cause must be one authorized by law. Even if graver than
those set forth in law, if it be not one of those enumerated, the
disinheritance will be ineffective. The law limits the causes for
disinheritance because this will give them broad power over the
heirs who have rights over their legitime.
4. Must be for a true cause
If it is not the true cause, there is an ineffective disinheritance.
5. Must be for an existing cause
It must exist at the time of the making of the will because there
can be no conditional or preventive disinheritance.
6. Must be total or complete
7. The cause must be stated in the will itself
It could be in the same will or in a separate will.
8. The heir must be clearly identified
So that there will be no doubt as to who is really being disinherited.
9. The will must not have been revoked
Relevant codal provisions
Art. 916. Disinheritance can be effected only through a will wherein the
legal cause therefor shall be specified.
Art. 917. The burden of proving the truth of the cause for disinheritance
shall rest upon the other heirs of the testator, if the disinherited heir
should deny it.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Art. 918. Disinheritance without a specification of the cause, or for a
cause the truth of which, if contradicted, is not proved, or which is not
one of those set forth in this Code, shall annul the institution of heirs
insofar as it may prejudice the person disinherited; but the devises and
legacies and other testamentary dispositions shall be valid to such extent
as will not impair the legitime.
CAUSES FOR DISINHERITANCE
Children and descendants
Art. 919. The following shall be sufficient causes for the disinheritance
of children and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt
against the life of the testator, his or her spouse, descendants, or
ascendants.
Ferdie: Final judgement is necessary. If an attempt is sufficient to
disinherit, it follows that if the act is consummated, or frustrated there is
sufficient cause for disinheritance. This also applies even if you are a mere
accomplice, provided of course that there was intent to kill.
Q. What if there is pardon?
If after conviction there is a pardon, disinheritance is also proper, unless
the pardon be based on the heirs complete innocence.
Q. When you say ascendant or descendant, is it by consanguinity or
affinity? Why?
Consanguinity. When you say ascendant or descendant, it is always
associated with love. As opposed to when you say relative, you can qualify
either by consanguinity or affinity.
(2) When a child or descendant has accused the testator of a crime
for which the law prescribes imprisonment for six years or more,
if the accusation has been found groundless.
Elements:
1. The act of accusing
2. The fact that the accusation has been found groundless
3. The offense or crime charged carries a penalty of imprisonment for at
least six years.
TN: It does not matter whether the accused was accused under different
capacities. Whether you filed the case, or you were a mere witness, it
does not matter for as long as there is an act of accusation.
Q. Is there such a thing as passive accusation?
Yes. When you have the evidence that could have helped the testator but
you did not do anything about it.
Testator should have been acquitted based on pure innocence
To be considered groundless, the acquittal of the testator must be definite
and not which is based merely on reasonable doubt. Otherwise, there was
some ground for the accusation, and thus the incapacity does not arise.
Rules:
If definite acquittal or case was dismissed incapacitated
If acquittal is based on reasonable doubt or case was dismissed for
lack of probable cause qualified
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator.
Example: A son has been convicted of adultery with his own mother. The
father can thus disinherit him.
Q. Does it have to be your mother or father? Or just the step parents?
The law does not distinguish whether biological or not.
(4) When a child or descendant by fraud, violence, intimidation, or
undue influence causes the testator to make a will or to change
one already made.
16 | U N I V E R S I T Y O F S A N C A R L O S
Example: A makes a will because he was threatened with injury by B, his
son, if the will was not made. Later on, A makes a new will. In this new
will, A can disinherit B.
TN: Unless a new will is made, there can be no disinheritance, because for
this to exist, there must be a will where the disinheritance is made.
(5) A refusal without justifiable cause to support the parent or
ascendant who disinherits such child or descendant.
Q. When is it justified?
It is a judicial question whether or not you can be justified in not giving a
support.
Q. What if you gave support because of a court order? Can you still be
disinherited by your parent?
It will still be a ground for disinheritance because there is compulsion
involved.
(6) Maltreatment of the testator by word or deed, by the child or
descendant.
Q. What if it was the parent who maltreated the child by word or by deed?
The maltreatment by ascendant of a descendant does not constitute a
ground for the descendant to disinherit the ascendant, for while it may be
abuse, it is generally in the exercise of a power.
Q. What about in other provisions? Can you not disinherit? Can this not be
a ground for loss of parental authority?
Yes. You can put it in another ground which is the loss of parental authority.
(7) When a child or descendant leads a dishonorable or disgraceful
life.
Q. What constitutes dishonorable life?
Anything that brings dishonor or disgrace to the family of the testator
merits correction in the form of disinheritance.
Q. Who determines that?
Testator, subject to judicial determination.
Q. What does leads a dishonorable life imply?
An isolated act does not suffice. For leading a life implies continuity.
(8) Conviction of a crime which carries with it the penalty of civil
interdiction.
Q. What is civil interdiction?
There is loss of civil rights. These are accessory penalties to particular
crimes:
1. Death
2. Reclusion perpetua
3. Reclusion temporal
Parents or ascendants
Art. 920. The following shall be sufficient causes for the disinheritance
of parents or ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their children or induced their
daughters to live a corrupt or immoral life, or attempted against
their virtue.
Ferdie: Abandonment means not just physical abandonment (under the
Revised Penal Code) but also lack of care and support spiritually, mentally,
economically, etc.
Q. Who determines whether it is a corrupt or an immoral life?
The testator determines. If the heir who was disinherited challenges that,
the court now may decide. It becomes a judicial question. It does not mean
that it has to be in a final judgment.
Examples:
1. Parents forced their daughters into a life of prostitution
2. A mother helps a stranger commit rape on her own daughter
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
(2) When the parent or ascendant has been convicted of an attempt
against the life of the testator, his or her spouse, descendants, or
ascendants
(3) When the parent or ascendant has accused the testator of a crime
for which the law prescribes imprisonment for six years or more,
if the accusation has been found to be false
(4) When the parent or ascendant has been convicted of adultery or
concubinage with the spouse of the testator.
Q. What if it is the spouse himself?
This is a ground for legal separation which is also a ground for
disinheritance.
(5) When the parent or ascendant by fraud, violence, intimidation, or
undue influence causes the testator to make a will or to change
one already made
(6) The loss of parental authority for causes specified in this Code.
Q. What does Paras means when he said that this provision is misleading?
If you look at the provision, it encompasses everything, that all loss of
parental authority can be a ground for disinheritance.
Q. What if the loss is due to the fact that the child matured/emancipated?
Can the child disinherit the parent?
No. That is why the provision is misleading. It cannot apply to all
situations of losses of parental authority. It cannot also apply to death of
the parent and adoption. This is because to no fault of the parents.
Q. What are the causes that would allow disinheritance under loss of
parental authority?
1. Judicial declaration of abandonment of the child in a case filed for
the purpose.
2. Final judgment of a competent court divesting the party concerned
of parental authority.
3. Judicial declaration of absence or incapacity of the person exercising
parental authority.
Q. What if there is an appointment of a guardian?
This can also be a reason for disinheritance except if the parent has become
insane. This is because if a parent is insane then all the more that the
parent needs the support of the child.
Also, we have to distinguish, what is the cause? If it is the fault of the
parent why there is a loss of parental authority, then there is a valid cause
for disinheritance. Otherwise, it cannot be a ground.
Q. What if the parental authority was lost but was restored why the testator
is still alive, would the disinheritance be invalid?
There are two views in this situation.
1. First, the disinheritance continues to be valid, according to Sanchez
Roman, because it is sufficient if at one time the parents have been
deprived of such authority. The reason is that the disinheritance is
made not so much because of loss of parental authority but because
there had been a commission of an act resulting in such loss of
authority.
2. Second, the disinheritance becomes ineffective and invalid according
to Manresa and Scaviola, because what is important is the fact that
upon the death of the child-testator, parental authority has been
regained, and therefore, there can exist no just cause for
disinheritance. Disinheritance being a deprivation of a right to the
legitime must be strictly construed.
Ferdie: The second opinion seems like the revocation happened by
operation of law. There are only two ways to revoke a disinheritance,
reconciliation and making a will. So I am more inclined to believe Sanchez
Roman because the cause of disinheritance must be existing at the time of
the disinheritance.
(7) The refusal to support the children or descendants without
justifiable cause
17 | U N I V E R S I T Y O F S A N C A R L O S
(8) An attempt by one of the parents against the life of the other,
unless there has been a reconciliation between them.
Q. Does it require a finality of conviction?
Not necessary. The difference of this one to the other attempts is probably
because the others talk about relationships by blood and this one talks
about relationship by affinity.
Also, maybe because the propensity to file a case is low when it is between
spouses so no conviction can be given.
Q. Why is the child being deprived of his right to disinherit if the parents
reconcile?
The child cannot have a more severe reason that the offended spouse. The
law recognizes that the child is just an expectator in that situation.
What is reconciliation?
Restoration of feelings. Not just to forgive but also to forget. According to
Paras, the relationship goes back to the relationship before the attempt on
the life of the other.
Q. Does the reconciliation need to comply with the formalities?
No. It may be presumed. Such as when the spouses live together again.
But this presumption is rebuttable.
Q. What is an example of a general pardon?
The pardon is not specific. Like when you say I forgive you, lets move
on. If this happens, pardon was not given because it did not remove the
hurt.
Q. Does pardon have to be accepted?
Yes it has to be accepted because if not, there is no reconciliation.
Spouse
Art. 921. The following shall be sufficient causes for disinheriting a
spouse:
(1) When the spouse has been convicted of an attempt against the
life of the testator, his or her descendants, or ascendants
(2) When the spouse has accused the testator of a crime for which
the law prescribes imprisonment of six years or more, and the
accusation has been found to be false
(3) When the spouse by fraud, violence, intimidation, or undue
influence cause the testator to make a will or to change one
already made
(4) When the spouse has given cause for legal separation
(5) When the spouse has given grounds for the loss of parental
authority
(6) Unjustifiable refusal to support the children or the other spouse.
Revocation of disinheritance
1. Subsequent reconciliation
2. Making of a new will instituting disinherited heir
Relevant codal provision
Art. 922. A subsequent reconciliation between the offender and the
offended person deprives the latter of the right to disinherit, and renders
ineffectual any disinheritance that may have been made.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

c. Testator may not make a testamentary dispositions in such a

HOW TRANSMITTED
manner that another person has to determine whether or not
HOW TRANSMITTED it is to be operative.
Art. 778. Succession may be:
(1) Testamentary Ferdie: A personal act so it means that it cannot be subjected to a
(2) Legal or intestate compromise agreement. It will defeat the purpose of the will which
(3) Mixed is to carry out the intention of the testator. But if everyones happy
then MAYBE it can be done.
TESTAMENTARY SUCCESSION
GR: Third party intervention is not allowed.
TESTAMENTARY SUCCESSION XPN: Drafting may be delegated to a third persons in matters
concerning distribution of specific property or sums of money to a
Rules for Testamentary Succession
designated class or cause.
Testamentary succession may be done through a will or through a
codicil, which will or codicil may either be notarial or holographic.
7. It is effective mortis causa
TN: In case of doubt, testamentary succession is preferred to legal or It produces effect only after death of the testator
intestate succession.
8. It is essentially revocable or ambulatory
Relevant codal provision
The right to revoke is absolute. (Ambulatory may be changed as
Art. 779. Testamentary succession is that which results from the long as the testator has not died yet)
designation of an heir, made in a will executed in the form prescribed
by law. 9. It is free from vitiated consent

WILL IN GENERAL This means it must be executed freely, knowingly, and voluntarily,
otherwise it will be disallowed.
WILL DEFINED
An act whereby a person is permitted, with the formalities prescribed by 10. It is an individual act
law, to control to a certain degree the disposition of his estate, to take Prohibition against a joint will is absolute. Even if a joint will (which
effect after his death. (Art. 783) is not allowed in the Philippines) is made in another country, it will
still not be valid in the Philippines as the intrinsic validity of the will
Q. What does it mean when it says to control to a certain follows the national law of the decedent)
degree?
It means you might have the freedom to dispose your property but the 11. It disposes of a testators estate
limitations are law and public policy. You cannot freely dispose all of your properties as the law (only to
a certain degree) as the law reserves the legitime to the
ESSENTIAL ELEMENTS AND CHARACTERISTICS OF A WILL compulsory heirs.
1. A statutory right
The making of a will should be considered subordinated to both Mixed succession not mandatory to dispose everything as the law
law and public policy. will provide.
a. Intent of the testator prevails Relevant codal provision
b. Subject to limits of law and public policy
c. Mouthpiece of the dead Art. 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
2. A unilateral act disposition of this estate, to take effect after his death.
This means that no acceptance by the transferees is needed while Difference between a Last Will and a Testament?
the testator is still alive; any acceptance made prematurely is Under the Anglo-American law, a testament disposes of personal
useless, just a surplusage. property, while a will disposes of real property. But, common usage
today notes no difference between the two.
3. A solemn or formal act
It is executed in accordance with the formalities prescribed by law. Q. Can oral conveyances be valid?
This practice is common for country folks in the Philippines. The
4. Animus testandi or intent to make a will consistent jurisprudence in this country, despite express codal
provisions, has recognized oral contracts as valid and efficacious to bring
5. Testator must be capacitated to make a will about partition of a decedents estate among heirs, provided that it does
not affect the interest of third persons.
a. At least 18 years of age
b. Of sound mind Q. Can a criminal which carries civil interdiction execute a will?
Know nature of estate Yes, it only prohibits disposition of property inter vivos, not mortis causa.
Know proper objects of bounty
Know character of testamentary act

6. Strictly a personal act in all essential matters

a. It cannot be left to the discretion of a third person
b. Duration or efficacy of designation and the portions they are
to take, when referred to by name, cannot be left to the
discretion of a third person.

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WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
THE MAKING OF A WILL IS A STRICTLY PERSONAL ACT
The mechanical act of drafting may be entrusted to another, as long as
the disposition itself expresses the testators desires and all the
formalities of the law are complied with.
What is required if the drafting of the will is entrusted to
another person?
In notarial will, the signing of the testator and the witnesses is required
if the drafting was done by another. In holographic will, what is required
is for the testator to copy the draft in his own handwriting.
Relevant codal provision
Art. 784. The making of a will is a strictly personal act; it cannot be left
in whole or in part of the discretion of a third person, or accomplished
through the instrumentality of an agent or attorney.
DISCRETION OF THIRD PERSON
This is a reinforcement of the idea of a will being a personal act. If the
discretion to designate is left with third persons, it is a clear case of
illegal delegation.
Relevant codal provisions
Art. 785. The duration or efficacy of the designation of heirs, devisees
or legatees, or the determination of the portions which they are to take,
when referred to by name, cannot be left to the discretion of a third
person.
WHEN A THIRD PERSON MAY BE ENTRUSTED
This is possible if the testator entrusts to a third person the distribution
of a specific property or sums of money to specified classes or causes.
Examples:
1. The high school seniors class in the Poveda Learning Center
2. The first ten topnotchers in the bar examinations
3. Charitable institutions
Relevant codal provision
Art. 786. The testator may entrust to a third person the distribution of
specific property or sums of money that he may leave in general to
specified classes or causes, and also the designation of the persons,
institutions or establishments to which such property or sums are to be
given or applied.
NON-DETERMINATION BY THIRD PERSON
It is not allowed for a third person to decide whether a will is operative
or not. This Article strengthens the rule that the making of a will is
strictly a personal act.
Example: I institute X as my heir provided that my friend Y will agree.
The institution of X is void, and also the participation or delegation of Y.
Relevant codal provision
Art. 787. The testator may not make a testamentary disposition in such
manner that another person has to determine whether or not it is to be
operative.
INTERPRETATION OF A WILL
The rule in interpretation is similar to that of interpreting a law or a
contract. The reason is that intestate succession is preferred to intestacy
provided that there is doubt.
Fixed law of interpretation
The intention and desire of the testator if clearly expressed in the will,
constitute the fixed law of its interpretation.
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Relevant codal provision
Art. 788. If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by which the
disposition is to be operative shall be preferred.
Ordinary words have their ordinary meanings
Exception: If there is a clear intention that another meaning was used,
provided that other meaning can be determined.
Technical words have technical meanings
Exceptions:
1. If there is a contrary intention
2. If it appears that the testator alone drafted the will, who did not
know the technical meaning.
Reason: A will drafted by a lawyer is construed more strictly than those
made by ordinary layman.
Relevant codal provision
Art. 790. The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in another sense
can be gathered, and that other can be ascertained. Technical words in
a will are to be taken in their technical sense, unless the context clearly
indicates a contrary intention, or unless it satisfactorily appears that he
was unacquainted with such technical sense.
Interpretation as a Whole
A. The will must be interpreted as a whole.
B. While testacy is preferred over intestacy, this is only true only if the
will has been validly made.
Relevant codal provision
Art. 791. The words of a will are to receive an interpretation which will
give to every expression some effect, rather than one which will render
any of the expressions inoperative; and of two modes of interpreting a
will, that is to be preferred which will prevent intestacy.
Effect of Invalid Disposition
General rule: Even if one disposition or provision is invalid, it does not
necessarily follow that all the others are also invalid.
Exception: When the various dispositions are indivisible in intent or
nature.
Relevant codal provision
Art. 792. The invalidity of one of several dispositions contained in a will
does not result in the invalidity of the other dispositions, unless it is to
be presumed that the testator would not have made such other
dispositions if the first invalid disposition had not been made.
Summary of rules:
1. Intent of the testator prevails. (The intent of the testator is the
supreme law of succession)
2. Interpreted as a whole
3. Invalidity of one disposition does not infect the other except when
indivisible in nature and effect
4. In case of ambiguity, that which operates disposition is preferred.
Ferdie: Testacy is preferred over intestacy.
5. Words ordinary meaning and grammatical sense unless intended
otherwise
6. Technical words in their technical sense unless:
a. Context clearly indicates contrary intention
b. Another sense is clearly intended
c. Will was drawn solely by the testator unacquainted with such
technical sense.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

KINDS OF AMBIGUITY IN A WILL b. Laws of the country where he may be

c. Laws of the country where he executes the will
1. Intrinsic or Latent those which do not appear on the face of
the will and is discovered only be extrinsic evidence. This is found B. Testator is an alien abroad
in the first clause of the provision. a. Law of domicile
b. Law of nationality
TN: Alleged oral declarations should not be allowed as this can c. Philippine laws
result in fraud, confusion and unfairness to the dead man whose d. Law of place of execution of the will
words may be distorted or perjured.
C. Testator is an alien in the Philippines
This kind of ambiguity arises when: a. Philippine laws
a. Imperfect description of the heir, legatee, or devisee b. Law of nationality
b. No person or property exactly matches description
c. Imperfect description of the gift given Intrinsic validity
d. Only one recipient is designated but it turns out that there are
1. From the viewpoint of time governed by the law in force at the
two or more who fit the description
time of decedents death. (the law may change)
Example: I institute my brother-in-law (when it is discovered
2. From the viewpoint of place national law of the decedent.
that I have two brothers-in-law). This ambiguity is not found in
the will itself, which is clear. The doubt arises only because of
Important: The national law follows you wherever you are. Example:
things outside of the will imperfect description.
The alien wants to execute a will governed by Philippine law. This is void
unless the laws of the aliens country allows it (ren voi doctrine)
2. Extrinsic or Patent those which appear on the face of the will
itself. In other words, by examining the provision itself, it is evident
TAKE NOTE: The Legislature cannot validate a will void at the time it
that it is not clear. This is found in the second clause of the
was made by changing the formalities required. This is because if it were
provision when an uncertainty arises upon the face of the will.
otherwise, the testator would be deprived of property without due
process of law. However, said rule applies only to formal or extrinsic
Example: I hereby institute some of my 7 brothers. (It is evident
validity.
here that we do not know how many of the brothers are being
instituted)
Relevant codal provisions
Q. How to cure ambiguity? Art. 795. The validity of a will as to its form depends upon the
1. Discover the intent of the testator observance of the law in force at the time it is made.
2. Examine the will itself
3. Examine extrinsic evidence like written declarations of the testator Extrinsic validity

Ferdie: The written declarations here need not be notarized. Just a Art. 17. The forms and solemnities of contracts, wills, and other
memorandum or even letters are enough. public instruments shall be governed by the laws of the country in
which they are executed.
Relevant codal provisions
When the acts referred to are executed before the diplomatic or
Art. 789. When there is an imperfect description, or when no person or
consular officials of the Republic of the Philippines in a foreign
property exactly answers the description, mistakes and omissions must
country, the solemnities established by Philippine laws shall be
be corrected, if the error appears from the context of the will or from
observed in their execution.
extrinsic evidence, excluding the oral declarations of the testator as to
his intention; and when an uncertainty arises upon the face of the will,
Prohibitive laws concerning persons, their acts or property, and
as to the application of any of its provisions, the testator's intention is
those which have, for their object, public order, public policy and
to be ascertained from the words of the will, taking into consideration
good customs shall not be rendered ineffective by laws or
the circumstances under which it was made, excluding such oral
judgments promulgated, or by determinations or conventions
declarations.
agreed upon in a foreign country.
VALIDITY OF A WILL
Art. 795. The validity of a will as to its form depends upon the
observance of the law in force at the time it is made.
What are the kinds of validity of a will?
1. Extrinsic validity refers to the forms and solemnities needed
Intrinsic validity
(how it is written)
2. Intrinsic validity legality of the provisions in the will (i.e. sharing;
Art. 16. Real property as well as personal property is subject to the
how much an heir is getting)
law of the country where it is stipulated.
Ferdie: When you say legality of provisions: Who and How much? When
However, intestate and testamentary successions, both with
you say forms and solemnities: Extrinsic.
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
Extrinsic validity
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
1. From the viewpoint of time what must be observed is the law in
nature of the property and regardless of the country wherein said
force at the time the will was made. This is because the future
property may be found.
cannot be foreseen.
2. From the viewpoint of place or country
Art. 2263. Rights to the inheritance of a person who died, with or
A. Testator is a Filipino without a will, before the effectivity of this Code, shall be governed
a. Philippine laws by the Civil Code of 1889, by other previous laws, and by the Rules

20 | U N I V E R S I T Y O F S A N C A R L O S
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

of Court. The inheritance of those who, with or without a will, die
after the beginning of the effectivity of this Code, shall be
adjudicated and distributed in accordance with this new body of
laws and by the Rules of Court; but the testamentary provisions
shall be carried out insofar as they may be permitted by this Code.
Therefore, legitimes, betterments, legacies and bequests shall be
respected; however, their amount shall be reduced if in no other
manner can every compulsory heir be given his full share according
to this Code.
FORMS OF WILLS
Forms of wills:
1. Notarial Will
2. Holographic Will
3. Codicils and Incorporation by reference
NOTARIAL WILL
Every will must be in writing and executed in a language or dialect
known to the testator.
Handwriting and handwriting expert explained
Handwriting
The handwriting of a person may be proved by any witness who believes
it to be the handwriting of such person because he has seen this person
write, or has seen writing purporting to be his upon which the witness
has acted or been charged, and has, thus, acquired knowledge of the
handwriting of such person.
Handwriting experts
Usually helpful in the examination of forged documents, but resort to
these experts is not mandatory or indispensable to the examination or
the comparison of handwriting. The judge must conduct an independent
examination of the signature in order to arrive a reasonable conclusion
as to its authenticity.
The opinions of the experts are not binding upon the courts. It is also
an accepted fact that two specimens of a persons signature are exactly
alike.
Electronic Commerce
Legal recognition of E-commerce is given. Suffice to say, every
contractual agreement entered into may be deemed valid and
enforceable even if it is in the form of an E-document EXCEPT in the
execution of a will.
SC declared that an authenticated E-signature or a digital signature is
admissible in evidence as the functional equivalent of the signature of a
person on a written document.
REQUIREMENTS FOR A NOTARIAL WILL:
1. Must be in writing.
Oral wills are not allowed. It could be handwritten, typewritten or
printed. The material on which it is written is immaterial.
3. Signed at the end by the testator or by the testators name
written by another in his presence, and by his express
direction.
If there are additions right after the signature, the entire will is
void.
4. Attested and subscribed by three or more credible
witnesses in the presence of one another.
Subscribe is to sign. Attest means witness. Credible witness must
possess the qualifications impose by law and must be able to testify
in court (in case of conflict, he will testify as to the truthfulness of
the will)
5. Testator or the person requested by him to write his name,
and the instrumental witnesses of the will signs each and
every page, except the last, in the left margin.
In the last page, the names are provided for already
Not necessarily on the left margin so long as there is a
signature
Failure to have the marginal signatures of the testator and of
the witnesses when needed is a FATAL defect
6. All the pages are numbered correlatively in letters placed
on the upper part of each page.
This is to prevent substitution or loss of any of its pages.
7. The attestation clause provides:
a. Number of pages used
b. That testator signed or expressly caused another person to
sign the will and its every page in the presence of instrumental
witnesses
c. That instrumental witnesses witnessed and signed the will and
all its pages in the presence of testator and of one another.
Ferdie: The attestation clause is not strictly a part of the will (there
can be a separate page for the attestation clause). The testator
not required to sign the attestation clause; if he signs, mere
surplusage.
Purpose:
To preserve in permanent form a record of the facts attending
the execution of the will
To render available proof that there has been a compliance
with the statutory requisites for the execution of the will
To minimize the commission of fraud or undue influence
8. Acknowledged before a notary public by the testator and
the witnesses.
The testator and witnesses need not make the acknowledgment in
the presence of one another. This is only required in attestation. It
should be the subscribing or attesting witnesses who should
acknowledge together with the testator, not ordinary or other
witnesses.
TN: Acknowledgement is done by the testator and the witnesses
before the notary public. It is not the notary public who
acknowledges.

2. Must be executed in the language or dialect known to the

testator.

If the testator resides in a certain locality, it is presumed that he

knows the language or dialect there. This presumption does not
stand if the will is not written in that language. The presumption is
only prima facie and therefore, the contrary may be proved.

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WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
What Article 805 provides
This provision particularly segregates the requirement that the
instrumental witnesses sign each page of the will, from the requisite that
the will be attested and subscribed by the instrumental witnesses- the
respective intents behind these two classes of signature are distinct from
each other.
It is the attestation clause which contains the utterances reduced into
writing of the testamentary witnesses themselves. It is the witnesses
and, not the testator, who are required under Art. 805 to state the
number of pages used upon which the will was written.
Relevant codal provisions
Art. 804. Every will must be in writing and executed in a language or
dialect known to the testator.
Art. 805. Every will, other than a holographic will, must be subscribed
at the end thereof by the testator himself or by the testator's name
written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and
that the latter witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another. If the attestation clause
is in a language not known to the witnesses, it shall be interpreted to
them.
ACKNOWLEDGMENT
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 extra-
step undertaken whereby the signor actually declares to the notary that
the executor of the document has attested to the notary that the same
is his own free act and deed.
Is acknowledgment necessary?
Yes. If a will is duly acknowledged before a notary public, there is, in its
favor, the presumption of regularity.
TN: This only refers to notarial will and not holographic will because the
latter does not need witnesses.
Effect if a notarial will is not acknowledged
A notarial will not acknowledged before a Notary Public by testator and
the witnesses is fatally defective. This is even if it is subscribed or sworn
to before a notary public.
Officials authorized to notarize
1. President down to the mayor
2. Clerk of court
3. Notary Public
TN: Acknowledgement cannot be done in front of the President because
the law clearly states that it has to be acknowledged in front of a notary
public. Simple oaths can be done in front of the President, mayor and
the clerk of court, but insofar as acknowledgement is concerned, it has
to be done in front of a notary public.
Can the notary public be one of the instrumental witnesses?
No, in view of the absurdity of one person acknowledging something
before himself.
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Jurat
Part of the affidavit whereby the notary certifies that before him, the
document was subscribed and sworn by the executor.
What if instead of the acknowledgement the Jurat was used?
It is a fatal defect because the law clearly states that it has to be
acknowledged in front of the notary public.
INTERVENTION OF THE NOTARY PUBLIC
The notary public does not have to be present at the execution of the
will. He may be present but he cannot be one of the three instrumental
witnesses.
The notary public is not allowed to read the will or to know the contents
unless the testator permits. It is not him acknowledging the will, it is he
before whom it is acknowledged. He is only required to read the will
under Art. 808 (Blind testator).
Two instances where the notary public may be allowed to read
the contents of the will:
A will is a secret document because it carries out the last will and
intention of the testator. Thus, he may not be allowed to read the
contents of the will, unless:
1. The testator is blind
2. If the testator consents
The notarial will is a private instrument
The notarial will is not a public instrument, although acknowledged. This
is evident from the fact that unlike in the case of public instruments, the
notary public shall not be required to keep a copy of the will, or file
another, with the Office of the Clerk of Court.
Purpose: It is meant to a secret document so as not to create conflict
among members of the family.
Can a probate for a notarial will be dismissed because of the
absence of a documentary stamp?
No. The probate court could require the proponent to affix the requisite
of the stamp; after all, the documentary stamp may be affixed at the
time the taxable document is presented in evidence.
Relevant codal provision
Art. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to
retain a copy of the will, or file another with the Office of the Clerk of
Court.
DEFECTS AND IMPERFECTIONS IN THE FORM OF ATTESTATION
OR IN THE LANGUAGE USED
As long as the purpose sought by the attestation clause is obtained, the
same should be considered valid. It does not speak of defects of
substance but defects and imperfections in the form of attestation or in
the language used.
Does this include substantial compliance in defects of
substance?
No. It only includes defects and imperfections in the form of attestation
and in the language used.
How can substantive defect be cured?
It is believed that it can be cured with evidence within the will itself and
not by extrinsic evidence.
What does substantial compliance mean?
It means that as long as the purpose sought by the attestation clause is
obtained, the same should be considered valid.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Purpose of substantial compliance:
It is designed to attain the main objective of the NCC in the liberalization
of the manner of executing wills. The courts 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 the
testamentary privilege.
Effect on the enactment of the new CC in 1950 Re Attestation
Clause
It did not put in force a rule of interpretation of the requirements of
wills, at least insofar as the attestation clause is concerned.
What is the purpose of law in requiring the number of pages be
stated in the attestation clause?
This 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.
When is there substantial compliance?
There is substantial compliance of this requirement if the will states
elsewhere in it how many pages it is comprised of. The failure of the
attestation clause to state the number of pages on which the will was
written remains a fatal flaw.
Relevant codal provision
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form
of attestation or in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of Article 805.
BLIND TESTATOR
Rules if the testator is blind
The will shall be read to the testator twice. Once by the subscribing
witness and once by the notary public.
Should this be signed and executed in the presence of a notary
public?
The law is silent but it would seem that for the better protection of the
testator, it is advisable to have the same done before the notary public
so that the blind man may have the benefit of the notary publics
participation even before he signs the will.
If the testator is deaf-mute and also blind, may he still make a
will?
No, unless in some way, the contents may properly be communicated
to him in accordance with the legal requirements.
Relevant codal provision
Art. 808. If the testator is blind, the will shall be read to him twice; once,
by one of the subscribing witnesses, and again, by the notary public
before whom the will is acknowledged.
HOLOGRAPHIC WILL
Q. What is a holographic will?
A will that is entirely written, dated and signed by the hand of the
testator.
Advantages
1. Easier to make
2. Easier to revise
3. Easier to keep secret
Disadvantages
1. Easier to forge by expert falsifiers.
2. Easier to misunderstand since the testator may have been faulty in
expressing his last wishes.
23 | U N I V E R S I T Y O F S A N C A R L O S
3. No guaranty that there was no fraud, force, intimidation, undue
influence; and no guaranty regarding testators soundness of mind.
FORMALITIES FOR A HOLOGRAPHIC WILL:
1. Language must be known to the testator
It is not enough that the will be interpreted to him, unlike in the
notarial will. The language must be really known to the testator.
2. Entirely written in the hand of the testator
The mechanical act of drafting the will may be done by someone
else, however, the testator himself must copy the will in his own
handwriting and for as long as the one he copies expresses his true
will and intent.
If the testator has no hands and can write with his foot then
it is all right since what the law requires is a personal
distinctiveness.
3. Must be dated
The will must be dated. Otherwise, void since this is a mandatory
requirement.
Reason: In order to determine whether the will was made at the
time when the law allows the making of a holographic will.
Rule in case of revision
The later date should be preferred as expressing truly the last will
and testament.
The date must be complete
That is, it must contain the year, month and day.
Rule in case of incorrect date
An incorrect date does not invalidate the will as long as it was made
in good faith. In which case, the date will be presumed as the date
it was executed.
4. Must be signed by the testator himself.
The full and customary signature is needed, hence full name is not
required. It must appear at the end of the will.
It must be signed at the end of the will in order to prevent any
additions to the will. It locks the last will and testament)
If there are any dispositions after the signature, the additional
dispositions will be rendered void.
If the additional disposition is signed but not dated or dated
but not signed, the disposition is still VOID.
If the first disposition is signed but not dated, but the second
disposition is signed and dated, then the second diposition
would cure the defects of the previous disposition. Therefore,
the will becomes valid.
TN: HOWEVER, the same rule does not apply if the previous
disposition is not signed but date. In that case, the will
remains to be VOID and that the second disposition cannot
cure the defects in the previous disposition.
Both the signature and the date are important, but all things
being equal, it is the signature that has to be present.
If there are insertions and cancellations anywhere in the will,
the same must be authenticated by the testator. Therefore,
the insertions, cancellations and additions have to be signed
by the testator.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
5. There must be animus testandi
6. It must be executed at the time that holographic wills are
allowed
If the execution was done at the time holographic wills are not
allowed, but probated at the time holographic wills are allowed, the
probate shall be rendered void. The probate cannot ratify an
otherwise void will.
Other features of the holographic will
1. No witnesses are required. If there are witnesses or an attestation
clause, they will be disregarded and will be considered as mere
surplusage. The will itself will remain valid.
2. No marginal signatures on the pages are required.
3. No acknowledgment is required.
4. In case of insertion, cancellation, erasure and alteration, the
testator must authenticate the same by his full signature.
5. May be made in or out of the Philippines, even by Filipinos.
6. Generally a blind person cannot be a testator of a holographic will,
unless there are means and ways for him to write his own will. (TN:
It must be written by hand by the blind person)
7. Mechanical act of drafting is allowed as long as the testator copies
it himself and he dates and signs it.
Why should a holographic will be construed more liberally than
the ones drawn by an expert?
Holographic wills are usually prepared by those not learned in the law.
The intention of the testator must be recognized as the supreme law in
succession.
What is the function of a probate court?
Its main task is to settle and liquidate the estates of deceased persons
either summarily or through the process of administration.
Relevant codal provisions
Art. 804. Every will must be in writing and executed in a language or
dialect known to the testator.
Art. 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is
subject to no other form, and may be made in or out of the Philippines,
and need not be witnessed.
PROBATE OF HOLOGRAPHIC WILL
It is the allowance by the court of the will after the due execution
thereof.
Q. What proof is needed?
Proof of identity of the signature and handwriting of the testator is
important, otherwise, the will cannot be valid.
Two types of probate:
1. Uncontested
a. One identifying witness
TN: The witness must not just identify the handwriting but
also the signature.
b. If none, handwriting expert.
2. Contested
a. There must be three identifying witnesses to prove the
authenticity of the handwriting and signature of the testator
b. If none, handwriting expert (The opinion of the expert is
merely persuasive, but not binding)
TN: The courts may resort to handwriting experts if ordinary witness is
unconvincing. The duty of the court is to exhaust all available lines of
inquiry for the State is interested in putting into effect the intention of
the testator.
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Effect if holographic will is lost or destroyed
The will cannot be probated because there is no evidence of the
existence of such will. Evidence of handwriting of the testator will not
be accepted as there is no will to compare it with.
Except: If there is a photocopy, the will may be probated because here,
there is something to compare the signature with. (Caveat: This is
merely an opinion of the author)
Q. Are the provisions of Article 811 permissive or mandatory?
Article 811 is mandatory. The word shall connotes a mandatory order.
(Codoy v. Calugay et al)
Q. Can a Holographic Will be made in or out of the Philippines?
It can be. Testacy is preferred over intestacy and because it is being
prepared by ones who are not learned of law, it must be construed
liberally. (Seangion v. Reyes)
Relevant codal provision
Art. 811. In the probate of a holographic will, it shall be necessary that
at least one witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three of such
witnesses shall be required.
Dispositions below signature
1. Must be both dated and signed
2. If dated but not signed void
3. If signed but not dated void
Except: If at the end, the last disposition is signed and dated, it
validates dispositions preceding it.
Can a testator draft one part of the holographic will one time
and another at another time?
Yes. It may even happen that the latter dispositions are made even after
signature had been written.
Should the dispositions after signature be signed and dated?
Yes. The lack of one will void the additional dispositions for lack of
essential requisite. Note that dispositions are really considered
independent of the will itself.
What if the latter disposition is signed and dated by another
person?
A. If without testators consent it will not affect the previous
dispositions, which will remain void if they are already void and
valid if they are valid.
B. If with the testators consent it has the same effect as signed and
dated by the testator because the latter disposition is not really
holographic (not done by the testator himself).
Relevant codal provisions
Art. 812. In holographic wills, the dispositions of the testator written
below his signature must be dated and signed by him in order to make
them valid as testamentary dispositions.
Art. 813. When a number of dispositions appearing in a holographic will
are signed without being dated, and the last disposition has a signature
and a date, such date validates the dispositions preceding it, whatever
be the time of prior dispositions.
Authentication of correction by full signature
Full signature means full or usual or customary signature. However, if
both the first and second names are initials, it is believed that it is
contrary to the law.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

If there is alteration without signature, will the whole will be
void?
No. Only the alteration is void. However, if what was altered was the
DATE or the SIGNATURE, the alteration makes the WHOLE will VOID.
Relevant codal provision
Art. 814. In case of any insertion, cancellation, erasure or alteration in
a holographic will, the testator must authenticate the same by his full
signature.
CODICILS AND INCORPORATION BY REFERENCE
Q. What is a Codicil?
A supplement or addition to a will, made after the execution of a will
and annexed to be taken as a part, by which any disposition made in
the original will is explained, added to, or altered.
Codicil defined
It was derived from the Latin word codex and literally means a little
code or a little will.
It is a supplement / addition to the previous will
It has a function of revoking the previous will
It is done after the execution of a will, therefore it must be
subsequent to the original will
If there is a conflict between the original will and the codicil, the
latter shall prevail
Time when Codicil is made
It cannot be made before a will, it is always made after. Of course, even
the codicil may later on be revoked by another will or codicil.
3. Must be identified by clear and satisfactory proof as the
document being referred to.
Parol evidence or evidence aliunde is needed here.
4. Must be signed by the testator and the witnesses on each
and every page.
Except: Voluminous books of account or inventories. It is believed
that at least, there must be a signature on several pages for the
purpose of identifying same as the documents really referred to.
5. May be generally done in notarial wills.
Except:
a. If holographic will have three witnesses
b. If the holographic will has no witness, it can still incorporate
a document which is entirely handwritten, dated and signed
in the handwriting of the testator.
Is attestation is only available in notarial wills?
Yes but that does not stop you from having attestations in a holographic
will. Also, a will only becomes notarial when it is notarized.
Relevant codal provisions
Art. 825. A codicil is supplement or addition to a will, made after the
execution of a will and annexed to be taken as a part thereof, by which
disposition made in the original will is explained, added to, or altered.
Art. 826. In order that a codicil may be effective, it shall be executed as
in the case of a will.

Formalities of Codicils
It shall be executed as in the case of a will. There can be
notarial/ordinary codicils or holographic codicils.
If a codicil is not executed with the formalities of a will, said codicil is
void. A valid will can never be revoked, expressly or impliedly, by an
invalid codicil.
Art. 827. If a will, executed as required by this Code, incorporates into
itself by reference any document or paper, such document or paper shall
not be considered a part of the will unless the following requisites are
present:
(1) The document or paper referred to in the will must be in existence
at the time of the execution of the will.

Relevant codal provision
Art. 826. In order that a codicil may be effective, it shall be executed as
in the case of a will.
INCORPORATION BY REFERENCE
The purpose of the article is to provide for those cases when a testator
wishes to incorporate to his will only by reference (i.e. without copying
the whole thing) certain documents or papers, especially inventories and
books of accounts. Thereby, the testator saves time and energy.
(2) The will must clearly describe and identify the same, stating
among other things the number of pages thereof.
(3) It must be identified by clear and satisfactory proof as the
document or paper referred to therein.
(4) It must be signed by the testator and the witnesses on each and
every page, except in case of voluminous books of account or
inventories.

Said documents or inventories, when referred to in a notarial will, do not

need any attestation clause, because the attestation clause of the will
itself is sufficient.

Requisites for validity of documents incorporated by reference:

1. Document must exist at the time of execution of a will

Reference to future papers will render the incorporation void.
However, the will itself remains valid. The will must refer to the
papers as having been already made; it is not enough that in truth
it was already in existence.

2. The will must clearly describe and identify the paper

including number of pages
It must also state the number of pages. This is true even in the
case of voluminous books of accounts or inventories.

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