Formalities of will

 “Language known to the testator” not in the attestation clause but still has to be
proven. Presumption may arise if it is in a language used in a locality where the
decedent resided for a long time. This is a disputable presumption.
 “Language known to the testator” is not applicable to the testator because it
applies to the witness. Only requirement is it is interpreted to them.
 Thumbmark can be a signature. Can a cross mark be a signature? See Garcia v.
Lacuesta
 Balonan v. Abellana - requirements needed if the testator asks somebody to sign
for him
 CSU: a witness cannot be someone who will sign for the testator
 Nera v. Rimando – not required that witness or testator actually saw, but not
sufficient that he is aware, should be in a position to see
 Cruz v. Villasor – requirements for 3 witnesses. If notary public is a witness, there
is failure to comply.
 Qualifications/Disqualifications for witness
 If the testator is blind, can he make a will? Yes
 If the testator is blind (since birth or otherwise), can he make a holographic will?
Yes
 Vasquez vs. Garcia – testator was not blind but impaired, will should be read
twice
 Illiterate testator – should be read twice
 Holographic will – no need to read twice
 Facts required to be in attestation clause – not required to state the will is
numbered, but it should state the number of pages
 Taboada v. Rosal – if such number of pages is printed in other parts like
acknowledgement, can be probated
 If there is only one page, or all testamentary provisions are in one page, and the
next page is acknowledgment – no need to state number of pages, will not affect
validity
 Need for acknowledgment – pertains to the testator and witnesses and not the
notary public, does not require to be made in the presence of each other, see
Javellana vs. Ledesma
 If the requirement of the law for attestation clause can be seen by mere
examination of the will, it can be valid
 Holographic wills – law requires that month, day, year should be stated
 Roxas v. De Jesus – court allowed month and year only, there should be no
issues as to the due execution
 Holographic will – insertions should be authenticated by the full signature of the
testator. If made by a third person and authenticated by testator, will is void
because not entirely written by testator
 Kalaw v. Relova – insertion was not given effect

Revocation
 Presupposes a valid will
  Three modes: implication of law, subsequent instrument, destruction
 See Molo v. Molo on subsequent instrument
 Revocation is possible even if testator is already dead (acts of unworthiness)
 Judicial demand can be a revocation
 What if the heirs in the subsequent instrument were incapacitated? Will the
revocatory clause be valid? Yes. It will be an inoperative will, but still valid.
 Doctrine of Relative Revocation – if it can be proven would not have revoked the
first will had he known that the heirs in the 2nd will will not be inherit, the first will
can be valid, otherwise Art. 832 should apply
 In order to revive first will, the revocation must be implied, or that there is a 3rd
will reviving the 1st
 Destruction, requisites: destruction, and intent
 Is mental capacity another requisite? CSU: mental capacity presumed in intent
 If the will can still be read, can there still be revocation? YES
 Presumption of revocation may arise if the will may not be found despite diligent
efforts and in possession of testator. Disputable presumption only.
 See Gago v. Mamuyac
 Casiano v. CA – no revocation

Allowance of wills
 Art. 838 – important provision
 Allowance is also called probate
 Probate pertains to extrinsic validity
 But if on its face the intrinsic validity can be determined, probate cannot be
granted. See Nepomuceno v. CA
 Ante mortem probate
 Requirements for probate, issues may arise in Holographic will, witness must
know handwriting and signature
 Codoy vs. Calugay – CSU: witness not required to have seen the will executed
 Gan v. Yap – the holographic will itself must be presented to the court in order for
the will to be probated. Footnote: Photostatic copy may be allowed
 Rodelas v. Aranza – photostatic copy may be allowed

Disallowance of wills
 Art. 839 enumerates the grounds
 Is the enumeration exclusive? Yes
 Revocation is not in the enumeration. Revocation is a jurisdictional matter, it
should be settled first before probate. It is a ground for dismissal of the case, not
disallowance.

Legitime
Legitimate children
One legitimate child
surviving spouse
Amount of legitime Intestate succession
½ Entire estate
½ ½
¼ ½
 Legitimate children ½ SS same share as one LC
surviving spouse Same share of one LC
Legitimate children ½ NC gets ½ of LC after
natural children Each gets ½ of each LC giving to hen their
legitimes
Legitimate children ½ IC gets 2/5 of LC after
Other illegitimate children 4/5 of ANC or 2/5 of LC or giving to them their
1/2 legitimes (Art. 983)
Legitimate children, natural ½ SS gest same share as LC
children and/or other ½ of each LC
illegitimate children 2/5 of LC or ½ of LC
Surviving spouse Same share of one lc
Legitimate parents ½ Entire estate
Legitimate parents, natural ½ ½
children or other ILC ¼ ½

Legitimate parents and ½ ½

Surviving spouse ¼ ½

Legitimate parents ½ ½
natural child and other ILC ¼ ½
SS 1/8 ¼

Natural children and other ½ Entire estate

ILC
Natural children or ILC 1/3 ½
SS 1/3 1/2
Surviving spouse ½ or 1/3 Entire estate
Illegitimate parents ½ Entire estate
Illegitimate parents None Entire estate to children
Children of any class ½
Illegitimate parents ¼ ½
SS ¼ ½

Surviving spouse ½ or 1/3 ½

Brothers & sisters, None ½
nephews and nieces
Brothers & sisters None Entire estate
Nephews and nieces
Children of first cousins None Entire estate
State Personal property Entire estate
Real property

 2009 Bar exam question no. VII

Collation
 If there is a donation, it must be collated because it may impair the legitime
 X died with 5 children, with P900,000 in bank account. Before she died, she gave
her son 100,000. When she died, she instituted her 4 children as sole heirs. Son
claims he was preterited. Was there preterition? No. He received P100,000.

Principles affecting legitime

Preterition
 Preterition – totally omitted in the inheritance
 Requirements: valid will, all properties were disposed, heir must be in the direct
line (compulsory heir in the direct line)
 Can illegitimate children be preterited? Yes
 Escuin v. Escuin: Sir does not agree with the ruling.
 Effect of pretertion: preterited heir will result in the annulment of the institution of
heirs but respecting legacies and devices. Annulment is total.
 Compare with imperfect disinheritance
 May a preterited heir acquire to more than his legitime? Yes.

Reserva Troncal
 Parties: origin, praepositus, reservista or reservoir, reservatarios or reserves
 Origin need not die, only requirement is he disposed it gratuitously
 Is reservista a mere usufructuary? No. But ownership is not absolute since it is
dependent on double resolutory conditions.
 Reservatario requirements: he is from the line of origin, he must be within 3
degrees from the praepositus
 Reserva troncal pertains only to the legitimate line
 In the collateral line, right of representation pertains only to brothers and sisters

Disinheritance
 Only compulsory can be disinherited/deprived of a share in the estate? NO. Even
legal heirs may be deprived of any share in the inheritance.
 If compulsory heirs who are protected by law can be deprived by law, surely
others can too.
 Determine first if the will was valid or not. No disinheritance is not the same of
imperfect/ineffective disinheritance.
 If void will and there is disinheritance, intestate.
 If valid will there is disinheritance, determine if valid or imperfect. Imperfect if no
ground for disinheritance, and even if there is a ground but the heir questioned it
and it was proven to be false. This is not the same as preterition.
 In preterition, annulment is total. In disinheritance, only to the extent the heir was
prejudiced
 Can an imperfectly disinherited heir be entitled to more than his legitime? CSU:
No, Tolention: Yes.
 1989 bar exam question no. 11(2)
Principles affecting the freely disposable portion
 May the entire estate be the subject of the disposition? Yes. If the testator died
without a compulsory heir, or only heir.
 Even if the will does not institute an heir, it may be a valid will as there may be
legacies or devices.
 Kinds of institution: Simple, condition, with a term, modal
 Suspensive condition does not obligate. Modal institution obligates.
 Conditional suspensive in character, at the time of fulfillment of the condition, he
must be capacitated.
 X, in his will, gave his Ferrari to A with the condition that he must be 18 years old.
However, A died before reaching 18 years old. Will his heirs inherit the Ferrari?
Yes. Art. 606 under usufruct.

Substitution of Heirs
 Simple or common, brief or compendious, reciprocal, fideicommissary
 Fideicommissary: first heir inherits as fiduciary (fruits only)
 Parties in fideicommissary: testator, fiduciary, fideicommissary
 What the law requires is relationship between fiduciary and fideicommissary, not
with testator
 Can there be 2 fideicommissaries? YES.
 Condition: fideicommissary and fiduciary must survive the testator
 What if fideicommissary dies before fiduciary, will his heirs inherit? YES. Rights
vest upon death of the testator

Legacies and Devices

 A compulsory heir may also be a legacy or devisee. Testator may specify that it
may already form his inheritance.
 What if in the will, Y was given by X P5M. But X is debtor of Y for P3M. Assuming
the estate is sufficient. How much will Y receive? P8M. The amount in legacy
should not be treated as payment for debt unless stated in will.
 If in the will of X a parcel of land was given to A, but at the time of death of A, the
land was still the object of a mortgage with an unpaid amount. Who has the
obligation to pay the debt of the mortgage? The estate, unless stated in the will.
 What if heir, at the time of the execution, has 3 debts. But in the will there was a
legacy of waiver of credit (condonation to take upon death). But upon death of
testator, the debt increased to 10. Can testator claim for the other debts? Yes.
Legacy refers only to debts existing at the time of the will.
 Legacy of credit was given to A for P100,000. X paid P50,000 and at the time of
death of testator, the debt is only P50,000. How much will A receive? P50,000.
 A car was given by X to A in his will, but at the time of the execution of the will,
the car was not owned by X. X died. Will A be entitled to the car? It depends on
whether X had knowledge or no knowledge of the fact that he is not the owner of
the car. If he had knowledge with express mandate to give to A, A is entitled to
the car or amount its value if the owner does not want to give. If no knowledge, it
 would depend on the owner at the time of the death. If it is a third party, the
legacy is void. If the estate, no problem. If a legatee or devisee

Legal or intestate succession

 Rules: Proximity, equal division, right to representation, accretion
 Proximity: heirs of nearest degree exclude others.
Exceptions: (1) right of representation, (2) preference between the line
(legitimate descendants over ascendants, direct line preferred over collateral
line), (3) iron curtain rule,
 Equal division rule: heirs of same degree inherit equally
Exception: (1) right of representation, (2) full blood and half blood, (3) in the
ascending line (maternal and paternal), (4) legitimate and illegitimate
 Right of representation: only a fiction of law, 2 or more heirs of different
degrees. Capacity to succeed is to be reckoned on the person whom he will
inherit. It does not matter if the person he is representing is guilty of unworthy
acts. No right of representation in the ascending line.
 If an heir renounces the inheritance of his father, can he still inherit from his
grandfather? YES
 No right of representation in renunciation.
 Accretion: Gave house and lot to A, B, and C. C cannot receive, his share will
be added to A and B by accretion
Exception: (1) testator prohibits accretion in his will, (2) substitution, (3) no
accretion to the extent of the legitime of one who predeceased or renounced