SUCCESSION JULY 22, 2017

WITNESSES TO THE WILLS

QUALIFICATIONS AND DISQUALIFICATIONS

Relevant Codal Provisions

Qualifications

Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or
dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of
this Code.

Disqualifications

Art. 821. The following are disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines;

(2) Those who have been convicted of falsification of a document, perjury or false testimony

When we say witnesses to wills what kind of wills are we talking about? Notarial will

Why not holographic? The holographic will does not require a witness

What if there were witnesses? Do we need to require into the qualifications of the witnesses? It would
be meaningless to require as it is a mere surplusage for a holographic will.

Qualified to become witnesses:

1. Any person of sound mind

Question – Does the requirement of soundness of mind of a testator (to know the Nature of the
estate, Proper objects of his bounty, Character of the testamentary act) apply to witnesses to a
will?

Ans – No, the NPC requirement applies only to the testator because witnesses need not know
the contents of the will.

2. At least 18 years of age

3. Able to read and write

Question: Is it necessary that the witnesses know the language of the will?
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Ans – No, as they are not required to know the contents of the will. It is not even essential for
the witness to know the language in which attestation has been written. It is sufficient that the
same be interpreted to him.

Question – If it is not necessary for them to read the will, then what are they witness of?

Ans – They are witnesses to the execution of the document.

4. Must not be blind, deaf or dumb

These three disabilities need not concur.

Ferdie: These disabilities actually impair your communication skills and we said that the will is
now the dead man talking through the will or through the witnesses. So if the witnesses are
somehow impaired in so far as communication is concerned, they are disqualified.

5. Must be domiciled in the Philippines

Question – What is domicile in the context of succession law as opposed to domicile in election
law were domicile is synonymous with residence?

Ans – Domicile means place of habitual residence.

Paras: But if a Filipino in the US wants to execute a notarial will in accordance with the
Philippine laws, his witnesses NEED NOT be domiciled in the Philippines as the will is being made
in the US.

Reasons for requiring domicile:

(1) For assurance that the witness will be available at the time the will is presented for probate.

(2) Likeliness of personal acquaintance with the testator. (Especially insofar as penmanship is
concerned, signature)

6. Must not have been convicted of falsification of a document, perjury, or false testimony

Take note:

A. The list of crimes is exclusive (only limited to the three)

B. There has to be conviction with finality

C. The common denominator in all these crimes is mental dishonesty

Question – If you’re convicted of Estafa (which involves mental dishonesty) with finality, are you
not going to be disqualified?
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Crimes involving moral turpitude: Estafa is graver but you said the list is exclusive. (No conclusive
answer from Sir) (Sir addresses this in the later part)

Effect of pardon: If based on pure innocence, then he is qualified to be a witness.

SUBSEQUENT CAPACITY

Relevant Codal Provision

Art. 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their
becoming subsequently incompetent shall not prevent the allowance of the will.

When should the witness possess these qualifications? During attesting

What if later on, after the attestation, the witness loses a qualification? What happens to the will?

It does not invalidate the will. What is important is that during the time of the execution, the witnesses
possess these qualifications.

But it can affect the witness’s credibility

TN: The will can still be probated.

What is the difference between the capacity of a witness to the court and the capacity of a witness a
will?

The general qualifications for a witness to the court are the ability to perceive and to communicate your
perception. You can be deaf or blind because you still have your other senses. But if you are a witness to
a will and you are impaired, insofar as communication skills are concerned, you are disqualified.

Why are there more qualifications for a witness than the testator?

Because witnesses have to guard against fraud and it is the dead man talking through the witnesses.

Why are there only few qualifications for a testator?

When you transmit a property through a will, it is an act of ownership. If there are more qualifications
for a testator, you are going to restrict such act of ownership.

If the witness possesses all the qualification and none of the qualifications, is he now a credible
witness? Qualification is one thing, credibility is another. So insofar as the person convicted of estafa is
concerned, by logic he is disqualified but the law does not say he is disqualified. So, let’s just qualify him.
But is he credible? That’s another question.
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CONFLICT OF INTEREST

Relevant Codal Provision

Devisee or legatee as witness

Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a
devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or
spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or
child, be void, unless there are three other competent witnesses to such will. However, such person so
attesting shall be admitted as a witness as if such devise or legacy had not been made or given.

Creditor as witness

Art. 824. A mere charge on the estate of the testator for the payment of debts due at the time of the
testator's death does not prevent his creditors from being competent witnesses to his will.

Can a notary public be a witness?

No, because it results to conflict of interest and it is absurd for him to acknowledge something before
himself.

Can a witness inherit?

No, in so far as the free portion of the estate is concerned but if he is a compulsory heir, he cannot be
deprived of his legitime. (Atty. Gujie: If you would allow situations where a witness is disqualified to
inherit, it would be easy to circumvent the law. so if you want to disqualify a compulsory heir from
inheriting, you just make him a witness)

Is the witness the only one disqualified here to inherit?

No, the disqualification extends to the witness’

1. Spouse

2. Parent

3. Child

4. Anyone claiming the right of said witness, spouse, parent or child (i.e. creditor)
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Is this rule absolute? No, because creditors can charge from the estate of the deceased.

For as long as there are three witnesses and you are a surplusage, you are not disqualified to inherit.

REVOCATION OF WILLS

Relevant Codal Provisions

Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of
this right is void.

Art. 832. A revocation made in a subsequent will shall take effect, even if the new will should become
inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their
renunciation.

Art. 833. A revocation of a will based on a false cause or an illegal cause is null and void.

NATURE OF REVOCATION

General rule: The right to revoke a will is absolute.

Exceptions:

1. Testator becomes incapacitated (i.e. becomes insane, convicted of a crime with civil
interdiction).

2. Revocation is based on a false cause or illegal cause.

Example: You instituted Abigail as heir. She went to a grocery store, she never came back. So you made
a subsequent will revoking the previous one because you thought she was dead. It turns out she’s alive.
What happens to the subsequent will? It is a void because it was based on a false cause.

Example of illegal cause: I instituted Abigail but I revoked such because we were business partners but
she was not able to sell drugs. The revocation is void because my reason is illegal.

Ferdie: But doesn’t your revocation actually penalize her for not selling drugs? So in effect you are trying
to correct her ways? It is then for a legal cause. (Will late r be clarified by Sir during Arjay’s turn)

May a testator say “I waive my right to revoke”? No sir. That would be void.

Can a will be presented for probate while the testator is alive? Yes.

What if a will was already presented for probate and allowed with finality by the court, and here comes
a codicil revoking the will already allowed by the court with finality. Is that allowed? Yes. Even if there is
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already finality as to the allowance of the will, it can still be revoked because the right to revoke is
absolute except for those two instances.

WHEN REVOKED

Relevant Codal Provision

Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this
country, is valid when it is done according to the law of the place where the will was made, or according
to the law of the place in which the testator had his domicile at the time; and if the revocation takes
place in this country, when it is in accordance with the provisions of this Code.

A will can be revoked anytime before the death of the testator unless you already lose the capacity to
revoke (i.e. of unsound mind).

May a valid will be revoked by an invalid will? No. Express or implied revocation of a will presupposes
that the new will is valid.

What if it is a valid but inoperative will? Yes, for as long as it is valid. A will is inoperative as when there is
repudiation by the heir.

What if the heir you designated became incapacitated or renounced? Does that make your will
ineffective? It does. It becomes ineffective.

What if the revoking will is both invalid and ineffective? Can it revoke? It cannot.

WHERE REVOKED

Relevant Codal Provision

Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this
country, is valid when it is done according to the law of the place where the will was made, or according
to the law of the place in which the testator had his domicile at the time; and if the revocation takes
place in this country, when it is in accordance with the provisions of this Code.

A will may be revoked anywhere, subject to the following rules:

Revocation made outside the Philippines

1. If the person is domiciled in the Philippines

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A. Follow Philippine law, or

B. Follow the general rule of lex loci celebrationis of the revocation (Art. 17)

2. If not domiciled in the Philippines

A. Follow law of the place where the will was made, or

Does it matter where you are when you revoke? You are abroad but you are not domiciled there?
Does that mater? Yes. You can follow the rule of the place where revocation was done. (Lex Loci
Celebrationis)

B. Law of the place where the testator was domiciled at the time

Revocation made in the Philippines

Follow Philippine laws (regardless of domicile).

HOW REVOKED

Relevant Codal Provision

Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case of wills; or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the
testator himself, or by some other person in his presence, and by his express direction. If burned, torn,
cancelled, or obliterated by some other person, without the express direction of the testator, the will may
still be established, and the estate distributed in accordance therewith, if its contents, and due execution,
and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the
Rules of Court.

A will may be revoked in three ways:

1. by implication or operation of law

2. By virtue of an overt act

3. By virtue of a revoking will or codicil

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 BY IMPLICATION OR OPERATION OF LAW

A. Implication of law – You have to do something (i.e. selling the property)

Example: When after the testator has made a will, he sells, or donates the legacy or devise.

What if I promise to give my properties to Tanggor, Cepedoza and Almerino? Can you still sell
the properties? Yes. This is an implied revocation. Here the law presumes revocation.

Legacy of Credit- Someone owes you debt, then you tell that person if you can’t pay while I’m
alive just give that to Jassey– but later, while alive, you filed a case to collect the debt – here
there is revocation by implication

B. Operation of law – it is without you having to do anything.

Revocation is generally personal but subject to certain circumstances. Revocation can be by

operation of law. In this instance, the law presumes that it was the intention of the testator to
revoke the will.

Example: When one of the compulsory heirs has been preterited or omitted, the institution of
heir is void.

Reason why the law allows implied revocation:

By the testator’s actions, the law presumes that he changed his mind.

 BY VIRTUE OF A REVOKING WILL OR CODICIL

A. Express revocation, by making reference to the previous will.

B. Implied revocation, when there is irreconcilable inconsistency between the codicil and the
previous will.

Is implied revocation favored? No, because it will obscure the intention of the testator.

May a notarial will be revoked by a holographic will or vice versa? Yes. For as long as it is the intention of
the testator.

May a revocation be subject to a condition? Yes, because the law wants to facilitate the intention of the
testator.

Does your reason matter for revocation? Are you even required to state the reason of revocation? No. If
you want to revoke, just revoke.
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Can there be partial revocation? Yes, such as in implied revocation due to irreconcilable consistency.
Revocation extends only to the provisions that are irreconcilably inconsistent with the subsequent
codicil, and not the entirety of the will.

 BY VIRTUE OF AN OVERT ACT

A. Burning

B. Tearing

C. Cancelling or obliterating the will

Requisites:

1. There must be an overt act specified by law.

2. There must be a completion at least of the subjective phase of the overt act.

Meaning: In the viewpoint of the testator, he thinks that the revocation has already been made
by the overt act..

This is hard to prove because what if the physical evidence says otherwise. For example, gamay
ra ang nasunog na part sa will. But as the testator, in your mind, you already had revoked the
said will. Subjective phase, it is when the testator considers the will already revoked regardless
of whether or not the will stays intact

3. There must be animus revocandi or intent to revoke.

4. The testator at the time of revoking must have the capacity to make a will. (Soundness of
mind)

5. The revocation must be done by the testator himself, or by some other person in his presence
and by his express direction.