Notes in Succession Dean Navarros Lecture

 Notes in Succession: Audio Notes
A. 05-06-10 (FIRST AUDIO)
BASIC PRINCIPLES IN SUCCESSION: PRIMACY OF THE WILL OF THE DECEDENT

MITIGATED BY PROVISIONS ON LEGITIMES:
 While the testator has the right to give his property to anyone he wants, to do with
his property anyway he pleases, but to certain extent that right is mitigated by the
provisions of the law on legitimes;
 If you have compulsory heir, you cannot simply dispose of your entire estate in favor
of anyone whom you pleases, or whom you choose;
 The law reserves certain parts of your estate for your compulsory heirs.
TESTACY IS PREFERRED OVER INTESTACY:
BASIS OF SUCCESSION: THEORIES OF SUCCESSION

1. EXTENSION OF THE RIGHT OF OWNERSHIP—the owner of the property has the right to
determine who will benefit after his death.
2. BASED ON FAMILY CO-OWNERSHIP;
3. COMBINATION;
What is succession—to is a mode of acquisition by virtue of which, property, rights

and transmissible obligations to the extent of the value of the inheritance are transmitted
thru a person’s death to another or others either by will or by operation of law.
 It is a separate distinct mode of acquiring ownership sufficient to transfer and convey
ownership to a person;
 Transmission thru death: Death therefore is essential for there to be either testate or
intestate succession.
Death—a person is considered dead when there is has been a total permanent irreversible
cessation of essential bodily functions.
 There is no temporary death;
SUCCESSION IS A SEPARATE DISTINCT MODE OF ACQUIRING OWNERSHIP:

SUBJECTIVE ELEMENTS:
1. The Testator; the person who died
2. Those of succeed him: heirs, legatees, devisees
OBJECTIVE ELEMENT:
1. Inheritance;
IMPORTANT PROVISION: SEE ARTICLE 777

“THE RIGHTS TO THE SUCCESSION ARE TRANSMITTED FROM THE MOMENT OF DEATH OF THE
DECEDENT.”
LORENZO V. POSADA—In determining of the tax due is the value of the property at the time
of death because it is at the moment of death that there is transmission of rights.
LOCSIN V. COURT OF APPEALS—ALL NEPHEWS AND NIECES WERE THE SURVIVORS: the nephews and
nieces are only entitled to such estate as existed at the moment of death of the decedent
because only in that moment that there is transmission of succession rights.
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DEAN: However, that if the survivors had been compulsory heirs entitled to legitimes, you
would then have to go to the process of collation at least in so far as gratuitous
dispositions are concerned.
THERE CAN BE SUCCESSION OVER THE BASIS OF PRESUMPTIVE DEATH:
ORDINARY ABSENCE—after the absence 10 years, the absentee is presumed death even for
the purposes of succession. If after the disappearance after the age of 75, five years
absence is enough. Once the presumption has arisen death is deemed to have occurred
at the end of the period whether 10 years or five years. Must wait for the period to expire
before the presumption of death would arise. Once reaching the tenth year, he is
presumed death.
 Death is deemed to have occurred, once presumption of death has risen, at the END
of the period.
EXTRAORDINARY ABSENCE—involves situation under circumstances of great danger or risk

of death; four years is enough. Death is deemed to have occurred at the start of the four-
year period because there is great danger or possibility of death. Must wait for four years
for the presumption of death would arise and the decedent is considered to have died at
the start of the period.
 Death is deemed to have occurred at the START of the period once presumption is
established because the great possibility of death.
 Those on board of plane or ships that disappeared;

 Those who took part in war;
 Those who are in danger of death under certain circumstances
 In both ordinary and extra-ordinary, the period must end before the presumption
of death will arise.
SUCCESSION MAYBE TESTATE, INTESTATE, OR MIXED:

 Testate—based on a will;
 Intestate—if there is no will or if the will is void; it is based on the law on intestate
succession;
 Mixed—partly by will and partly by operation of law; when the testator did not dispose
of his entire estate by will.
 No More Contractual Succession
HEIRS VS. LEGATEE OR DEVISEE:
HEIRS:
On Rules on Preterition (under Article 854)—the omission of one, some, or all of the
compulsory heirs in the direct line will result in the annulment of the institution of heir.
Legacy and device will be respected as long as they are not inofficious.
 If there is Preterition and you’re instituted as an heir, your institution will be
annulled.
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 Mr. X has a Son S, died with a will having only two provisions which state: (1) I
give my friend F ten thousand pesos (legacy); (2) I give the rest of my estate to G.
Total estate of 120 pesos. S is preterited (was not mentioned in the will) and S did
not receive anything during the lifetime of Mr. X.
 Distribute: Since S is preterited, Apply 854; Mr. F is a legatee therefore his legacy
will be respected if it is not inofficious. The Legitime of S is 60 thousand, free
portion is 60 thousand; in the case of 10 thousand legacy, it is covered by the free
portion with an excess of fifty thousand pesos. The 50 thousand will go the S
because under the law, once there is a preterition, it will result to the annulment of
the institution of heirs. Hence, the institution of G will be annulled, as if nobody
was instituted as an heir.
 A legacy of device will be considered inofficious if it exceeds the free portion.
A PERSON I CONSIDERED AN HEIR IS HE IS GIVEN THE ENTIRE ESTATE OF FRACTIONAL OR ALIQUOT

PART OF THE ESTATE:
 I give Mr. X one half of my estate—X is an heir
 I give him one fourth of my estate—he is an heir.
 I give him the rest of my estate—he is an heir.
A PERSON IS A LEGATEE IF HE IS GIVEN, BY WILL, A SPECIFIC OR DETERMINATE ITEM OF PERSONAL

PROPERTY:
 I give my friend A my car.
A PERSON IS A DEVICEE IF HE IS GIVEN, BY WILL, A DETERMINATE ITEM OF REAL PROPERTY:

 I give A my farm in Bulacan, etc.
IT IS ADVANTAGEOUS TO BE AN HEIR IN CASE OF AFTER ACQUIRED PROPERTY REFERRED TO UNDER

ARTICLE 793 OF THE CIVIL CODE:
 After Acquired Property are properties acquired after the execution of the will and
before the death of the testator.
 Properties acquired after the making of the will shall only passed thereby if the
testator possessed them at the time he made his will if it expressly appeared on the
face of the will that that was his intention.
 The general rule therefore is that the do not go to the testamentary beneficiary
concern except if it s expressly appeared on the face of the will that the intention
of the testator is to give them to the testamentary beneficiary.
 I give my friend F all of my cars and at the time he made his will, he had five cars.
Later on he dies. F cars will be entitled to five cars. Suppose after the making of the
will the testator acquired 4995 additional cars. F will be entitled to five cars only by
applying the general rule.
 Suppose the testator gave F his car that the testator have as well as all other cars
which he may after acquire; since the it appear upon the face of the will that his
intention is to give even the after acquired car.
 Remember however that Article 793 applies only to legacies and devices, it does not
apply to instituted heirs; therefore, if the testator says in his will in 1985, “I hereby
give my entire estate to my friend F,” and in 1985 his estate consists of five cars,
when he died 20 years later in 2005, his entire estate consist of 5000 cars; F is
then entitled to 5000 cars because F is in this case is an instituted heir and not a
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mere legatee or devicee, so since he was given the entire estate, he is entitled to the
entire estate consisting of 5000 cars existing at the time of the testator’s death.
What is a will?
See Article 783.
CERTAIN FUNDAMENTAL CHARACTERISTICS OF A WILL:
1. IT IS A STRICTLY PERSONAL ACT—is it something each one of us would have to do

personally; we cannot delegate the making of a will to a friend, nor even thru an express
special power of attorney; it cannot be accomplished thru the instrumentality of an agent
or attorney. The testamentary disposition should come from the testator himself. The
testator is prohibited from making testamentary dispositions whose validity or compliance
would depend on the will of another person.
Article 787 for example, the testator cannot make a testamentary disposition in
such a way that another person will have the power to determine whether the will shall
be operative or not. A testator cannot say that he’s giving his house and lot to my brother
B provided my wife will agree.
The testamentary disposition must come, and the disposition of the property must come
from the testator himself.
UNDER ARTICLE 786, THE TESTATOR IS PERMITTED BY THE LAW TO GIVE SPECIFIC PROPERTY OR
SUMS OF MONEY TO A CLASS OR A CAUSE:
 The beneficiaries are specified cause or class;
 He is allowed to delegate the actual distribution to a third person;
 “I leave the amount of 100 million pesos for the street children of Metro Manila; I leave
the distribution to that amount to my executor”; but cannot give the executor an
unlimited power or blanket of authority;
 Cannot say “I authorized my executor to get from my estate as much he may deemed
necessary and distribute it to the street children of Metro Manila.”
 It must be a specific property of sums of money.
UNDER ARTICLE 785, THE DURATION OR EFFICACY OF THE DESIGNATION OF HEIRS, LEGATEE, OR
DEVICEE, OR THE DETERMINATION OF PORTIONS WHICH THEY TO TAKE, WHEN REFERRED TO BY
NAME CANNOT BE DELEGATED TO A THIRD PERSON:
 The beneficiaries are specific named institutions or individuals;
 Cannot say in a will: “I hereby bequeath the amount of 100 million pesos to CEU, San
Sebastian Colleges and UST, and I leave it to my executor to determine how much out of
the 100 million will be given to each institutions.”
 The moment the testator refers by name to the testamentary beneficiaries, forget
Article 786;
 The beneficiaries are specific named institution of individual.
 When the testator referred by name the beneficiaries, the testator is not allowed to
leave to the discretion of a third person, the efficacy, the duration, the designation or
the determination of the portions which the named beneficiaries will get.
NO MATTER HOW CAREFULLY A WILL MAY HAVE BEEN CRAFTED THERE IS ALWAYS THE POSSIBILITY
OF AN AMBIGUITY IN A WILL
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TWO GENERAL TYPES OF AMBIGUITY:

The Patent Ambiguity—ambiguity that is obvious or apparent upon the reading of the
will, or upon reading of the testamentary provisions. Solutions: Extrinsic and Intrinsic
evidence but excluding the oral declaration of the testator.
Intrinsic Evidence— found in the will itself;
Extrinsic Evidence— but excluding the oral declaration of the testator since it is hearsay
and fundamentally dangerous; a letter is however acceptable;
Latent Ambiguity—ambiguity which is not obvious.

Solutions: Extrinsic and Intrinsic evidence but excluding the oral declaration of the
testator.
GIVE THE WORDS OF THE WILL THEIR ORDINARY GRAMMATICAL SENSE:

 Technical words must be given their technical terms unless it is clear that the will
was prepared by the testator all by himself using technical terms without realizing the
technical meaning of those technical words.
IFTHERE ARE TWO WAYS IN INTERPRETING A WILL, ONE WILL RESULT IN TESTACY AND ONE WILL
RESULT IN INTESTACY, ALWAYS TRY TO HAVE TESTACY.
UNDER ARTICLE 795, THE VALIDITY OF THE WILL AS TO ITS FORM DEPENDS UPON THE LAW IN
FORCE AT THE TIME OF EXECUTION:
 If there are subsequent changes in the law, the changes will not generally affect the
validity of the will.
 Except if the subsequent law provides of retroactivity:
o Exception: even if the law provides for retroactivity, if in the meantime, prior to
the effectivity of the new law, the testator has died;
o Because under Article 777, upon the death of the testator, successional rights
have been transmitted;
o There are already in the nature of a vested rights and cannot be impaired by
any subsequent changes in the law even if the subsequent law provides for
retroactivity.
End of Audio
B. 05-07-10 (SECOND AUDIO)
TESTAMENTARY CAPACITY AND INTENT
BASIC REQUIREMENT BEFORE A PERSON CAN VALIDLY MAKE A WILL:

1. AT LEAST 18 YEARS OLD
 There is a minimum age, but there is no maximum age.
 The testator must have been celebrated his 18th birthday.
2. MUST BE OF SOUND MIND: see Article 799, second paragraph;
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 The testator at time of making his will should know, in a general way, the
nature of the estate to be disposed of, the proper object of his bounty and the
character of the testamentary act.
 The testator may have been suffering from hosts of diseases such suffering does
not incapacitate the testator from making a will as long as he meets all the
three basic requirements under the second paragraph or Article 779.
 Does not require that the mind of the testator is uninjured by disease or any
other cause.
 As long as the testator knows all these three, at least in a general way, then he
has testamentary capacity.
a. Must know the nature of the estate to be dispose of—the testator must
know in a general way what are his properties;
o That he knows, in a general way, that he has a land, or certain amount of
money, or has some paintings;
 All are presumed to be of sound mind subject to rebuttal.
 Reversed Presumption: If the testator, one month or less before
the making of the will, was public known to be insane; the
presumption is that he was not of sound mind and he who alleges
otherwise has the burden of proof; also when the testator at the
time of making a will was placed under guardianship, the
presumption was that he did not have sound mind at the time of
execution.
b. The testator must know the proper object of his bounty— that at the time
of the execution of the will, the testator should still know the persons who are
close to him, or his close relative and those who by the nature of their close
relationship with the testator would naturally expect to receive from him. Those
people in the ordinary events would be given property by him.
c. Must know the character of his testamentary act—He must know that he is
making a last will and testament, that the will is the instrument that will serve
as basis for the distribution of his estate when he dies. He should know that it
is within his power as testator to revoke his will anytime before his death.
Suppose that a person believes in the existence of unseen beings, and even claims
to talk to these creatures:
 He is not necessary incapacitated to make a will.
 Drugs addicts and alcoholics can make a will as long as they satisfy the basic
requirements under article 799.
THE CAPACITY TO MAKE A WILL MUST BE POSSES AT THE TIME OF EXECUTION, AND AS LONG AS HE
IS CAPACITATED AT THE TIME OF THE MAKING OF THE WILL, HIS WILL IS VALID EVEN HE
SUBSEQUENTLY BECOME INCAPACITATED:
 If a person made a will at the age 22, and when he made his will he was of sound
mind but two years thereafter he became insane and died in a state of insanity. His
will should be allowed. What matters is that when he made his will, he was fully
capacitated to make one.
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 Conversely, if at the time of execution, the testator did not have capacity, even if he
subsequently acquires capacity, his will remain invalid. So if the will was made at the
time the person is 17 and he died ten years later at the age of 27, his will is invalid
because when he made the will, he did not possess the required capacity.
FORMS of WILLS:
Article 804:
THE WILL MUST BE EXECUTED IN A LANGUAGE AND DIALECT KNOWN TO THE TESTATOR:
 All wills must be in writing; no oral wills.
 The law does not require any specific materials in writing a will;
 If the lawyer drafted the will in English and fully translated and explained the will to
the testator who only knows Filipino, the will remains invalid.
 The law is not satisfied by mere translation, or interpretation.
 Reason—the matter how good the interpretation or translation may be, certain
nuances of language are always lost in the process of translation of interpretation.
 The law does not require that a will must contain a statement to the effect that the
will was written in the language or dialect know to the testator.
 If there is dispute, evidence must be presented to show whether or not the will was
written in a language or dialect known to the testator. Evidence may come from the
outside of the will like testimony of witnesses, and not necessarily from any intrinsic
writing in the will.
All wills must be in writing, no oral wills

In case of holographic will, any materials may be used
Not permissible to dictate the will in front of video camera.
BASIC REQUIREMENTS FOR A VALID NOTARIAL WILL:

See Article 805
Par 1 of 805:
 ONE ESSENTIAL REQUIREMENT—the 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 directions.
 The requirement for subscription or signing at the end of the will is an essential
requirement for validity.
 If the will is a five-page will, and the testator affixed his signature in every page of the
will on the left margin, but he did not signed at the end of the will, the will is NOT
VALID.
 Where is the end of the will—the end of the will refers not to the physical end, but to
the logical end or after the last testamentary disposition(s);
 This is where the testator should affixe his signature.
 The law allows a third person to affix the testator’s name as long as the 2 requisites
are both present otherwise the will is void.
1. Must be done at the presence of the testator; and
2. Must be done by his expression;
 Both requisites must concur, otherwise the will is void
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 If the testator is Juan Santos and the third person is Pedro Santiago:
 Pedro should not forget to write the testator’s name:
 “Juan Santos, by Pedro Santiago”—Valid
 “By Pedro Santiago”—Not Valid. The law requires that the testator’s
name must be written.
 “Juan Santos” was only written, still Valid as long as under the
attestation clause, the fact that Pedro Santiago wrote the testator’s name
in his presence at by his express direction is stated, otherwise, if the
attestation clause does not indicate such fact, the will is VOID.
IN THE LAW IN WILL, SIGNATURE IS TAKEN FROM THE ROOT WORD “SIGNUM” WHICH MEANS MARK.
 The testator, in signing his will, the testator may use his usual signature; he can also
use his initial or shorten version of his signature.
 The testator may use pen name.
 The testator may use his nickname.
 The testator may use his thumb mark or toe mark;
 The testator may use his lips with the intent to mark his name with the use of his
lips.
 Basically any sign or mark can be used to validate a last will and testament.
THE LAW REQUIRES THAT THE NOTARIAL WILL SHOULD HAVE AT LEAST THREE OF MORE CREDIBLE
WITNESSES:
 During the probate of the will, there is no need to present preliminary proof that the
witnesses enjoy are credible individuals in a sense that they enjoy a high degree of
respectability, or reputation of honesty or probity in the community.
 In so far as credible witnesses, the law simply means qualified or competent witness
so there is no need for a preliminary proof as to the reputation of the witnesses for
probity, integrity, and honesty.
 There can be more than three witnesses, but not less than three.
ON PARAGRAPH 2 OF ARTICLE 805:

 The testator, or the person requested by him to write his name, and the witnesses are
required to sign each and every page of the will, except the last, on the left margin.
 They may sign on the right, top, bottom margin as long as each page has the marginal
signature of the testator and the three witnesses.
SUPPOSE IT IS A 5-PAGE WILL, PERFECTLY EXECUTED EXCEPT THAT ON THE PAGE

THREE, THERE WAS
NO MARGINAL SIGNATURE BY THE TESTATOR OR THERE WAS NO SIGNATURE OF ONE OF THE WITNESSES
EITHER ON ANY OF THE MARGIN OF PAGE THREE:
 Case of Icasiano vs. Icasiano: there was a missing signature of one of the three
witnesses; he did not sign on the margin of page three. Duplicate original was
presented and it was complete and perfect: SUPREME COURT: The Supreme Court
has examine the testimonies and the Court was not convinced that the will was
forgery; the mere fact that the oppositors alleged both fraud and undue influence in
one and the same opposition simply shows how weak their position was because
fraud and undue influence are mutually exclusive, for they exclude each other. In
fraud, the testator is led to do something because of the deception and he does so it
willingly; undue influence on the other hand connotes coercion, and he is unable to
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express and manifest his own will because his will was overpowered by the will of
another.
 ON THE ISSUE OF THE ABSENCE OF MARGINAL SIGNATURE: The lack of signature was simply
due to inadvertence due to the simultaneous lifting of two pages.
DEAN: The ruling in Icasiano should be limit only on the precise circumstances that
obtained in the case. Also, in this case, there was a duplicate original so there cannot be
any doubt at all that there was a validly executed will because there was a duplicate
original. If on the other hand, if there was only one original and that single copy lacks
marginal signature, we should follow the earlier ruling of the Supreme Court that the will
should be disallowed. Hence, the ruling in Icasiano has not done away with the previous
ruling of the SUPREME COURT where the Court invalidated the will because of the
absence of the required marginal signature. The ruling does not mean that we can now
do away with the marginal signatures on each and every page as expressly mandated by
Paragraph 2 of Article 805. Hence, if there was only one copy of the will and the will lacks
marginal signature, the will should not be allowed.
ALL OF THE PAGES SHOULD BE NUMBERED CORRELATIVELY IN LETTERS (SPELL OUT) PLACED ON
THE UPPER PART OF EACH PAGE:
 The precise of location of the numbering is not really essential for the validity; if the
numbering was placed on the right, left, or lower margin, the will is still valid as long
as all the pages were numbered correlatively in letters.
 Numbering correlatively in letters: Arabic Numerals, Roman numerals, Letters of the
alphabet may be use as long as there is correlatively numbering.
 Suppose there is a 5-page will, pages 2,3,4 and 5 are numbered and page one is not
numbered: the will should be allowed because even if page one is not numbered, there
can be no doubt that it is page one since it is the start of the will based on what is
written on it. So if page one is not numbered but the other pages are numbered
correlatively as required by law that should not affect the validity of the will.
 The witnesses are required to sign on the left margin of all the pages of the will, and
just like the testator, the witnesses can also sign with their pen names, nick names,
screen names, with their thumb marks as long as in reality, the witnesses know how
to read and write because one of the requirements for witnesses is that they should
know how to read and write.
WOULD IT MAKE ANY DIFFERENCE IF THE WITNESSES SIGNED THE WILL AHEAD OF THE TESTATOR?
 If only after the witnesses signed did the testator signed the will: should that be a
valid will?
DEAN: The better view is that as long as there is no interruption, as long as everyone
signed during one and single, uninterrupted, continuous occasion, the will is valid as
base in the case of Caneda vs. Court of Appeals.
 If however the testator invited the witnesses to his residence on January 1 and he told
and showed them his will and asked them to sign the will as the witnesses and the
later signed the will. Then they all meet on January 6, and on that date, the testator
signed: the will should not be allowed because when the witnesses attested the will,
they were attesting to falsehood since the testator has not clearly signed it on January
1.
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IFA THIRD PERSON HAS BEEN ASKED BY THE TESTATOR TO WRITE HIS NAME ON THE WILL FOR
HIM:
 It must be done under the express direction of the testator and done in his presence;
 The mere silence of the testator or his failure to object to the signing by the third
person is not the express direction contemplated by law.
 Hence, if the testator is very sick, and his lawyer who had earlier drafted the will in
accordance with instruction of the testator told the testator in presence of the three
witnesses and the lawyer said that “I don’t think that you are not in the position to
signed the will yourself so unless you have an objection, I will sign the will for you.”
Then after waiting for the testator’s reply but the latter failed to reply, the lawyer
signed the will: Not a VALID WILL.
o There was no express direction; mere silence and the failure to object is not an
express direction.
 The express direction however need not be done verbally, if the testator
nodded his head, then it is enough and maybe consider as an express
direction
 The signing however must be done in the presence of the testator.
 If the testator orders the lawyer to write his name, but it was too crowded inside the
room, so the lawyer and the witness went to another room: The Will is not valid
because the signing must be done in the presence of the testator.
 Suppose if the testator was very sick but all of the witnesses are present, and the
testator asked his lawyer to draft a will. The testator dictated the provisions and
further asked the lawyer to sign the will for him. The lawyer went to his office and
typed the will and thereafter returned to the hospital finding the testator in coma and
unconscious. The lawyer still signed the will: the Will is not valid and should not be
allowed since while the signing was done in close proximity of the testator, the
requirement of presence is not satisfied because the testator was no longer conscious of
what was going on;
 Presence requires not only close proximity to the testator, or the absence of
any obstruction, but presence also requires consciousness or awareness of
what is going on.
 The presence of the notary public is not required at the time of the signing of the will
by the testator and the witnesses.
THE LAW IN ARTICLE 805 PROVIDES IN PARAGRAPH THREE (3) ENUMERATES THE MATTERS THAT
ARE REQUIRED TO BE WRITTEN OR STATED IN THE ATTESTATION CLAUSE:
1. It should state the number of pages used upon which the will was written;
2. It should state the fact that the testator signed the will and every page thereof or
cause some other person to write his name under his express direction in the
presence of the instrumental witnesses;
3. That the instrumental witness signed the will and of the pages thereof in the
presence of the testator and of one another.
SUPPOSE ONE OF THE ESSENTIAL FACTS IS NOT STATED ON THE ATTESTATION CLAUSE AS
REQUIRED BY PARAGRAPH 3 OF ARTICLE 805:
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1. THAT THE NUMBER OF PAGES IS NOT STATED IN THE ATTESTATION CLAUSE:
 THE WILL IS NOT NECESSARILY INVALID:
 IF what is missing in the attestation clause can be found in another part of the will,
the will may still be allowed;
 Total number of pages not stated in the attestation clause, but in the notarial
acknowledgment, the total number of pages of the will was stated, then there is
Substantial Compliance.
 Supposing further that if the total number of pages was not stated in the
attestation clause but in the last paragraph of the will, just above the testator
signature: “…in witness whereof I herby sign this is my last will and testament
consisting of five (5) pages…”
o The will can be allowed because while the element is missing in the
attestation clause, it is nonetheless found in another part of the will itself;
there is no need to introduce intrinsic evidence.
 Supposing further that the attestation clause does not categorically state that the
testator signed each and every page of the will: “…foregoing will was signed by the
testator…”
o The will can be allowed as long as each and every page of the will IN FACT
contains the signature of the testator. So although the attestation clause did
not state that the testator signed each and every page of the will, the failure
the state expressly may be deemed cured if upon the examination of the will,
each and every page bears the signature of the testator.
 But of what is not stated in the attestation clause is the fact that the testator
signed the will in the presence of witnesses: “…total number of pages…foregoing
will has five pages…the testator signed the foregoing will and every page thereof
and WE, the witnesses signed the will and every page thereof in the presence of the
testator and of one another.”
 It does not state that the testator signed in the presence of the witnesses!
o This defect will not be cured even on each and every page of the will, the
testator signature is found side by side with those of the witnesses because
the mere fact that the signature of the testator appears in each and every
page of the will, will not prove that the testator affixed his signature in the
presence of the witnesses. Presence is required.
o The mere admission or acknowledgment of the testator that the signatures
already appearing in the will are his is not enough.
o The law requires that the signature of the testator should be affixed in the
presence of the witness;
o If the witnesses were not actually present when the signature of the testator
was affixed, the will is not valid, even if the testator subsequently admits
that the signatures belonged to him
THERE IS PRESENCE WHEN THERE IS CLOSE PHYSICAL PROXIMITY AND THE PARTIES ARE SITUATED IN
RELATION TO EACH OTHER INSTRUMENT SUCH A WAY THAT THERE IS NOT PHYSICAL OBSTRUCTION
WHICH WILL PREVENT ONE FROM SEEING THE OTHER BY SIMPLY TURNING HIS GAZE IN THE PROPER
DIRECTION:
 One of the witness standing by the door and looking out in the hallway—there still
signing in his presence because the law does not require the testator and the
witnesses to actually see each other sign to satisfy presence; all that is required is that
11
they could have seen each other signed. There being no physical obstruction so they
could easily see each other signed by simply turning their gaze towards the proper
direction even one of the witness was watching TV or texting while inside the same
room without physical obstruction.
 If the testator is blind, the requirement of presence could be satisfied by using other
senses like the sense touch or sense of hearing. The witnesses may give the testator of
a running account of what is going on using the sense of hearing.
IF THE ATTESTATION CLAUSE IS IN A LANGUAGE NOT KNOWN TO THE WITNESSES, IT MUST BE

INTERPRETED TO THEM:
 Suppose that the attestation clause was in language not known to the testator, the
will should be allowed since while it is impossible to have a notarial will without
attestation clause; nonetheless, the fact remains that the attestation clause is the act
of the witnesses and not of the testator.
 Assuming that it is a 5-page will, and page 5 contains only the attestation clause; the
testator signed at the end of the will on page four and the testator also signed with
the witnesses on the left margin of pages 1, 2, 3, and 4. On page 5 however, the
signature of the three witnesses are found on the attestation clause but the there was
no marginal signature of the testator on page 5 or on any on the margin of the page
5; in other words, page five was not signed by the testator: The will should be
allowed since page 5 contains only the attestation clause, the testator has nothing to
do with the attestation clause.
 Assuming in a 5-page will, the testator and the 3 witnesses signed on the left margin
of page 1,2,3,4 and 5. The three witnesses however did not signed below the
attestation clause although their signatures are found on the left margin of the page
containing the attestation clause. The will should not be allowed because in the case
of Azuela case, as pointed out by the Supreme Court in the case of Cagro vs Cagro,
the absence of the witnesses’ signature below the attestation clause negates their
participation in so far as the attestation clause is concern. This is true even though
Article 809 provides for liberal interpretation based on substantial compliance with
the requirements of Article 805.
 The ruling in Cagro vs. Cagro is still controlling. Hence in the subsequent Azuela
ruling, the will was rendered void because although they signed on the left margin,
the witnesses did not sign the attestation clause.
 The will is void because the requirement for marginal signatures is a separate
distinct requirement from the requirement that there should be an attestation
clause.
 The signature of the witnesses on the left margin simply complies with the
requirement for marginal signatures.
 That is not compliance with the requirement to have an attestation clause and if the
attestation clause was not signed, it is not a valid attestation clause; hence, the will
should be considered invalid.
THE WILL MUST BE ACKNOWLEDGED BY A NOTARY PUBLIC:

 The notary public need not be present at the time of the signing of the testator and
the witnesses.
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 If the date of the execution of the will is different from the date of acknowledgement
before the notary public, the will is not defective for it does not affect the validity of the
will.
 The notary public before whom the will is acknowledged must be properly authorized
to act and if the will was acknowledged before a notary public in Quezon City but his
notarial commission is in Caloocan, the will is not valid.
 A notary public a bereft of power to perform any notarial act outside the territory of
his notarial commission: Case in Point—Guerrero vs. Bihis.
 The notary public is not required to retain a copy of the will or to file one in the office
of the clerk of court in order to preserve the secrecy of the will.
 The witnesses must also acknowledge the will before the notary public, but they are
not required to acknowledge the will in each other presence. Hence, when it comes to
acknowledgement, they may all acknowledge separately.
 If one of the three witnesses is the notary public, the will is not a valid; there should
be at least four witnesses including the notary public because in the presence of four
witnesses, there are three competent witnesses, excluding the notary public.
If the testator is deaf or a deaf mute, he must personally read the will if he is able to do
so, otherwise, he shall designate two persons to read the will and to communicate to him
in some practicable manner the contents of the will.
 It is the testator who must designate the two people who will read the will, and to
communicate to him in some practicable manner the contents of the will.
IF THE TESTATOR IS BLIND THE WILL MUST BE READ TO HIM TWICE. ONCE, BY ONE OF THE
WITNESSES, AND AGAIN BY THE NOTARY PUBLIC BEFORE WHOM THE WILL WAS ACKNOWLEDGED:
 If the will was read only once to the testator, the will is not valid because it is not for
the testator to waive a second reading. It is a mandatory legal requirement to prevent
the commission of fraud;
 If the testator is illiterate, the will should be read to him twice; the same rule should
apply for blind testator.
 Alvarado vs Gabiola: The testator was blind and the will was read to him only once.
The will was not read by the notary public and one of the witnesses. The will was read
only once by the lawyer who drafted but the will was allowed because while the lawyer
was reading the will, everyone (notary public and the witnesses) present and each
have a copy of the will. They were following the reading of the lawyer word for word.
After the reading, the testator signed the will and acknowledged before the notary
public. The Court held that there was a substantial compliance with the law.
See Article 809: Doctrine of Liberal Interpretation.
End of Audio.
C. 05-07-10 (THIRD AUDIO)
HOLOGRAPHIC WILL
 Must be entirely written, dated and signed by the hand of the testator.
 He may use his mouth if he has no limbs; if he uses his foot, the will is still valid
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 Must be dated to be valid; ideally, it must be complete date with day, month, and
year but the Supreme court held the even if only the month and the year is indicated,
that is already sufficient in the absence of any indication of bad faith, forgery, or
fraud.
 FEB/61—was considered as a valid date by the Supreme Court.
THE DATE MAY BE PLACED ANYWHERE IN THE WILL;

 In Labrador vs Court of Appeals, the date was simply mentioned in passing in one
of the testamentary provisions.
 A blind man who knows how to write may create a holographic will.
THE REQUIREMENT WHEN IT COMES TO THE NUMBER OF WITNESSES IN THE PROBATE OF

HOLOGRAPHIC WILL UNDER ARTICLE 811:
 If there is no opposition, at least one witness who is familiar with the handwriting and
signature of the testator must be presented to identify the will.
 If there is an opposition, the law requires at least three witnesses shall be presented.
 The Supreme Court treated the three-witness rule as merely directory. According to
the Court in the case of Azuela vs. Singson, the requirement of three witnesses in
case there is an opposition to the probate of the holographic will is merely directory
not mandatory because the availability of three witnesses who are all familiar with the
handwriting and signature of the testator is not something within the total control of
the petitioner.
 However, in the case of Codoy vs. Calugay, the Supreme Court held that the
requirement is mandatory due to the use of the word “shall.”
YOU CANNOT PROBATE A HOLOGRAPHIC WILL UNLESS YOU CAN PRESENT AT LEAST A COPY OF THE
WILL: EITHER AN ORIGINAL COPY OR AT LEAST A PHOTOCOPY.
 A copy of the holographic will is necessary to probate the will either an original or at
least a photocopy because the only guarantee of the requirement of authenticity of the
will is the fact that it is supposed to be entirely written, dated, and signed by the hand
of the testator.
 The court must be given an opportunity to examine the will and determine whether in
fact the will was in the handwriting and signature of the testator.
 If the only copy of the holographic will has already been lost so there is no more any
existing copy, forget about the probate of the holographic will even when there was a
lot of people who were able to see it when it was extant.
o You need at least a photocopy, otherwise, forget about probate.
THE TESTATOR MAY SIGN THE HOLOGRAPHIC WILL JUST LIKE A NOTARIAL WILL: USING HIS FULL
SIGNATURE, INITIAL OR SHORTENED VERSION OF HIS SIGNATURE, NICKNAME, PEN NAME, STAGE NAME,
ETC.
 When it comes to any alteration or insertion however, the law requires that for any
insertion, cancellation, or alteration, it must be authenticated with full signature of
the testator.
 Therefore, insertion, cancellation, or alteration cannot be authenticated other that the
full signature of the testator.
 Full signature means the usual & customary signature of the testator but does not
necessarily mean to include the complete name or surname of the testator.
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Article 812 and 813

 If the testator makes additional dispositions in a holographic will, the additional
dispositions must be signed and dated, otherwise they are not valid.
WHERE SHOULD THE TESTATOR SIGN HIS HOLOGRAPHIC WILL?

 The testator must sign the will after the last testamentary disposition.
 The law assumes that the last thing that should be found at the end of the
holographic will is the signature of the testator. Thus the law made the signature of
the testator as the point of reference in so far as additional dispositions are concern.
IF THE TESTATOR MADE THE FOLLOWING WILL: MAY 7 1985, I GIVE EVERYTHING TO JOSE
SANTOS, SIGNED PEDRO SANTOS. Valid will
 Additional disposition: I give ten thousand to Maria Santos; I give my house to Juan
Escolin. The two dispositions are not valid because the law requires that they should
be dated and signed but the will remains still valid.
o The only two additional provisions are void.
 Supposing that the first disposition was signed, the second is signed, and dated.
o Both dispositions are valid. Since the preceding dispositions are signed but not
dated, the date appearing on the last disposition, which was both signed and
dated, will operate to validate the preceding disposition which is signed but not
dated.
 Reason: the law can assume that the two dispositions were made at the
same time.
o If the preceding disposition however is dated but not signed, only the last
disposition will be valid; the preceding disposition will not be validated. Hence,
if the preceding dispositions are dated but not signed and last disposition has
both date and signature, the preceding dispositions will not be validated
because the law cannot assume that the dispositions were made at the same
time since the dispositions have their own respective dates.
If there are any insertions or cancellation in holographic will, this must be authenticated
by the full signature of the testator: Usual customary signature of the testator.
See Kalaw vs. Relova: The insertion and cancellation was not authenticated with his full
signature, thus the true intention of the testator cannot be ascertain.
 Apply the principal rule in testamentary succession is always the ascertainment of
the intention of the testator.
THIRD PERSON MAKING ALTERATION IN A HOLOGRAPHIC WILL:

1. If a third person makes an insertion in a holographic will without the knowledge and
consent of the testator, simply ignore the insertion for it will be considered as not
written and the will remains valid.
2. A third person makes an insertion in a holographic will with the consent of the
testator. The will remains valid but the insertion is void.
3. The third person makes an insertion in a holographic will with the consent and full
signature of the testator, the entire will is void because the authentication of the
insertion made by the third person, the insertion becomes part of the will and the will
15
will no longer satisfy the fundamental requirement that holographic will should be
entirely written, dated, and signed by the hand of the testator.
4. Third person makes an insertion in the holographic will simultaneous with the
execution of the will, the entire will is void because it was not entirely written, dated,
and signed by the hand of the testator.
If in a holographic will there are some provisions which contain alterations

which are not duly authenticated:
 Only invalidate the affected provisions or the particular insertions concerns.
 The other provisions which are not altered will not be affected they will remain
valid.
With respect to the applicable law, if a person wants to make a will, in so far as Filipinos
are concerned as long as they here in the country, they can only follow one law, our law,
the civil code of the Philippines.
If a Filipino is abroad and he wants to make a will, what formalities can he observe?
1. He could observe the law of execution, lex loci celebrationis, by applying Article 17
and 815 of the Civil Code
A Filipino abroad can make his will in accordance with the formalities prescribe in the Civil
Code even though the Civil Code does not categorically or expressly authorized Filipinos
who are abroad to make their wills in accordance with the formalities prescribe by law.
But the Civil Code allows foreigners abroad are allowed to make a will abroad in
accordance with the formalities prescribe by the Philippine laws:
 If foreigners are allowed to make wills abroad in accordance with the formalities
prescribe by the Civil Code, there is no reason why Filipino citizen who are abroad
and who are presumed to be more conversant in Philippine Laws should not be
allowed to do same.
 Hence, even in the absence of any categorical statement in the Civil Code, Filipinos
who are abroad should be allowed to make a will abroad in accordance with the
formalities prescribed by Philippine Laws.
If the act was conducted before the consular office of the Republic of the Philippines in a
foreign country, then there is no question that the formalities of Philippine laws should
govern their execution (Article 17).
IFAN ALIEN IS IN THE PHILIPPINES AND HE WANTS TO MAKE A WILL, WHAT FORMALITIES HE CAN
FOLLOW?
1. He may follow the formalities prescribed in the Philippine laws
2. He can follow the formalities prescribed by the laws of his own country.
IF AN ALIEN IS ABROAD AND HE WANTS TO MAKE A WILL, WHAT FORMALITIES HE CAN FOLLOW?
He has four choices:
1. He can follow the laws of his nationalities;
2. He can follow the laws of his domicile;
3. He can follow lex loci celebrationis, or the law of execution;
4. He can formalities prescribe by Philippine Law;
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WHEN IT COMES TO FILIPINO HOWEVER, REGARDLESS WHERE THEY MAY BE, THEY CAN NEVER
MAKE A JOINT WILL.
JOINT WILL: It is a single last will and testament executed by two or more testators
 The use of a single piece of paper does not necessarily makes it a joint will when
two separate distinct wills are written one on the back and the other on the other
side of the paper.
 But if they only wrote one will and they signed it, it is a joint will therefore, void
and prohibited;
 As long as one is a Filipino, he or she cannot make a joint will even made in a
foreign country that allows joint will.
 H and W, executed a joint will in a country allows joint will: the will is void
 Suppose W is a citizen of the country where joint wills are allowed and H is a
Filipino: Valid as to W but void as to H.
 But if H and W are both citizen of a country where joint wills are allowed: the
Philippine can recognize the joint will made in that foreign country:
Suppose they made their will in the Philippines:
1. One view—the will is void because it is contrary to public policy
2. Other view—valid because even the civil code allows foreigners who are in the
Philippines to make their will in accordance of their own national laws
WHAT ABOUT THE INTRINSIC VALIDITY (NOT FORMS BUT WHETHER A PARTICULAR PROVISION IS
VALID) OF THE WILL?
 It is always the national law of the decedent.
FOUR ASPECTS OF SUCCESSION WHICH ARE ALWAYS GOVERNED BY THE NATIONAL LAW OF THE
DECEDENT: REGARDLESS OF WHAT THE TESTATOR MAY HAVE SAID IN HIS WILL.
1. Oder of succession
2. Amount of successional rights
3. Intrinsic validity of testamentary provisions
4. Capacity to succeed
WITNESS TO WILLS (28:39)

Qualifications of witnesses:
1. Sound mind
2. 18 years of age or more
3. Able to read and write
4. Not blind, deaf, or dumb.
5. Domicile in the Philippines
6. Must not have been convicted of falsification, perjury or false testimony
Article 823
If there is a legacy or device in a will, given to one of the witnesses to that will, or given to
his parents, or spouse, or child, the legacy or device is considered void in so far as that
witness, his spouse, his parent, his child, or anyone claiming under them is concern
unless there are three other competent witness to the execution of the will.
17
 The will is valid, the witness remains a qualified but he will not get the legacy or
device.
 The purpose is to remove any temptation on the part of the witness, who might have
been given something under the will, to testify falsely.
 If there are other three witnesses other than the devicee/legatee, the legacy/device
will be valid because the allowance of the will will not really hinge or depend upon the
devicee/legatee, since there are other three competent witnesses.
 Suppose that instead of being given a legacy or device, one of the three instrumental
witnesses was instituted as an heir.
 Dean submit that the heir will not receive his inheritance because although the
law only mentions legacy and device, there is no reason why it should not
likewise apply to a person who was instituted as an heir.
 There is the same possibility to testify falsely because they would have an
economic interest in the allowance of the will.
THE ENUMERATION OF THE PERSONS IN ARTICLE 823 IS EXCLUSIVE:

 If the grandfather was the one given a legacy or device, the legacy or device is valid.
CODICIL AND INCORPORATION BY REFERENCE:

CODICIL—a supplement or additions to a will whereby a provision in a earlier will are
added to, modified, or altered or explained.
 Only make a codicil if there is already a will. The execution of a codicil presupposes
that there was already a previously existing will which you then supplement, altered,
modify, or explain thru the codicil.
 Same formalities as in the case of wills; can make either:
 Notarial Codicil
 Holographic Codicil
 If the will which you want to alter, supplement, or modify is notarial, does not
necessarily follow that the codicil should also be notarial:
 A notarial will can be modify by a holographic codicil
 A holographic will can be altered or modified by notarial or holographic codicil
INCORPORATION BY REFERENCE:
 Merely for the convenience of the testator;
 If there is already an existing list of properties with description of the properties, or
inventories, there is no need to actually reproduce the long list and inventories in the
last will and testament. The testator can simply incorporate them by reference under
the provision of 827.
REQUISITES FOR VALID INCORPORATION BY REFERENCE: 38: 08

1. The paper of document to be incorporated by reference must already be in existence at
the time of the execution of the will;
2. The will must clearly describe the paper of document stating among other things the
number of pages thereof;
3. It must be establish by clear and satisfactory evidence as the paper and document
referred to in the will.
4. The paper and document must be signed testator and the witnesses on each and
every page except in the case of voluminous books of accounts and inventories
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CAN THERE BE INCORPORATION BY REFERENCE IN A HOLOGRAPHIC WILL?

 No, because there are no witnesses in a holographic will: or while it is possible to have
incorporation by reference in a holographic will, it is necessary that the paper of
document should also be entirely in the handwriting of the testator because if what is
incorporated by reference in a holographic will is a paper or document which is not in
the handwriting of the testator, upon incorporation, that document or paper will be
taken as part of the will. And if it is considered as part of the will, and yet it is not in
the handwriting of the testator, that may affect even the validity of the holographic
will.
 Others claim: if a holographic will has witnesses—it is possible for a holographic will
to have witnesses: the presence of witnesses does not invalidate the will, they will be
considered as mere surplusage.
o So it is possible to have incorporation by reference in a holographic will.
ARTICLE 827 SHOULD NEVER BE USE FOR THE PURPOSE OF INCORPORATING TESTAMENTARY
PROVISIONS:
 Testamentary provisions must always be contained in the will itself.
 Testamentary provisions cannot be simply incorporated by reference.
REVOCATION OF WILL:
THE RIGHT TO REVOKE A WILL IS ONE OF THE BASIC PREROGATIVES OF THE TESTATOR BECAUSE A
WILL IS ESSENTIALLY REVOCABLE OR AMBULATORY IN CHARACTER:
 As long as the testator lives, he can revoke his will anytime and he does not need any
reason for revoking his will.
 The testator does not need any good reason in revoking his will.
 All that is necessary is that he wills it, he intends and he actually revokes his will.
IT IS ENTIRELY POSSIBLE THAT THE TESTATOR MAY HAVE MADE SEVERAL COPIES OF HIS WILL:
 If he wants to revoke his will, he does not have to retrieve all his copies. He can
simply burn or tear the copy which he has.
VARIOUS WAYS OF REVOKING A WILL:

1. By implication of Law or by operation of law
2. By executing another will, codicil, or other writing executed as in the case of wills.
3. Thru physical act of destruction with or coupled with intent to revoke or animus
revocandi (Enumeration is exclusive)
 Burning:
o Complete burning is not necessary. To revoke the will by burning, you don’t
have to completely burn the will. Even only edges of the will are burned, in
such a way not a single words of the will was affected by the fire. That is
already considered sufficient to revoke.
 Tearing:
o Slight tear is sufficient as long as it is coupled with the intention to revoke.
The slightest tear is sufficient as long as it is coupled with the necessary
19
intent to revoke even if the tear extended only up to the margins and not a
single word was affected by the tearing. That would be considered as a valid
revocation.
o Shredder may be used; a pair scissors too is ok.
 Canceling:
o Crossing out the lines—still readable
o Any line may be used, crisscross, etc.
o Simplest way—crossing out the signature of the testator. One of the simplest
way of revoking a will thru cancellation is by crossing our or cancelling the
signature of the testator at the end of the will. In a very real sense, the
testator strike at the very heart of the will.
 Obliteration
o Not readable. Words can no longer be read.
I. BY OPERATION/IMPLICATION OF LAW (LPC-TU-44-50)

THE INSTANCES ARE SCATTERED IN THE PROVISIONS OF THE CIVIL CODE AND OF THE FAMILY
CODE:
1. In case of legal separation (provisions in favor of guilty spouse are revoked).
The provisions in a will of an innocent spouse in favor of the guilty spouse are
revoked by operation of law. The reversed is not true. The provisions in the will
of the guilty spouse in favor of the innocent spouse are not revoked.
2. In case of preterition (Article 854). If there is a preterition brought about by
the complete omission of one, some or all of the compulsory heirs in the direct
line that results to the annulment of the institution of heirs.
3. Legacy of Credit or Remission of Debt and there’s a subsequent action for
collection against the debtor. The action will results to the annulment of the
legacy of credit or remission of debt.
4. Transformation, Alienation, or Lost of thing (Article 957)
5. Acts of Unworthiness (Article 1032)
6. Article 44 of the Family Code, when both of the spouses contracted a marriage
in bad faith.
7. Article 50 of the Family Code, when the marriage is annulled or declared void
ab initio.
II. BY ANOTHER WILL EXPRESSLY REVOKING THE PREVIOUS WILL OR IF

THERE ARE INCONSISTENCIES BETWEEN AN EARLIER WILL AND A
SUBSEQUENT WILL, THEN THERE IS IMPLIED REVOCATION:
 By another will expressly revoking a previous will, then the previous will is
revoked.
 Or if there are inconsistencies between an earlier will and a subsequent will, then
there is an implied revocation.
III. PHYSICAL ACT OF REVOCATION:

 There must always be a corresponding intent to revoke. A physical act of
destruction without a corresponding intention to revoke will not produce a valid
revocation.
 Conversely, with intent to revoke but no act of physical act or revocation or
destruction—the revocation is not valid.
20
 Intention must always be coupled with the physical act of destruction.
 Revocation must be coupled with physical act of destruction
 Burying is not one of the acts of physical destruction
o Crumpling and throwing is sufficient to produce revocation.
 But Civilists agree that the enumeration is exclusive.
 If there are several copy of the will—may revoke the copy which he has.
SUPPOSE THAT THE TESTATOR CHANGED HIS MIND WHILE REVOKING HIS WLL:
 When the testator changed his mind, and the act was already subjectively
completed, the validity of the will cannot be restored.
 Cannot paste together;
 If the act was subjectively completed—cannot resurrect the will
 Consumatum est—completed act
 Too late to restore the validity if the will that has been completely torn.
 The validity of the will cannot be restored which has been revoked by tearing by
simply pasting the pieces together.
BUT IF IS STILL IN THE PROCESS OF REVOKING THE WILL:

Suppose that the testator in the process of revoking the will he tore the will once, then
twice, that thrice, and when he’s about to tear it the fourth time, the testator stopped
because he was prevailed upon not to revoke the will.
 The will can still be allowed because the act was not subjectively completed when
the testator when the testator changed his mind.
 The act was not subjectively complete—no valid revocation.
 Hence, if the act was not subjectively completed and when the testator stopped
and changed his mind, there is no valid revocation.
DOCTRINE OF DEPENDENT RELATIVE REVOCATION:

 If the testator revokes a will with the present intention of making a new one
immediately and as a substitute and he is unable to make the new will, or if he was
able to make the new will, the same fails to take effect for any reason or cause, it is
presumed, in the absence of evidence to the contrary, that the testator would have
preferred his old will to intestestacy.
When the testator revokes his will under this doctrine, he does so conditionally that a
new will be effective. So if he was not able to make a new will or if the new will fails to
take effect, then it is presumed that he would rather die with his old will than to die
intestate.
 The doctrine applies to physical acts of destruction couple with intent to revoke;
 The basis of the doctrine is that the revocation is dependent upon the validity of
the second will, or the ability to make a second will.
 If the second will is invalid—no application of implied revocation
 When the testator revoked his will under this doctrine, he does so conditionally; that
a new will will be effective
 If he failed to make a new will or if the new will fails to take effect, then it is
presumed that he would rather die with his old will than to die intestate
o Based on the ability to make another will.
21
VDA. MOLO VS MOLO

 A man made his first will in 1918. In that will, he gave practically his entire estate
to his wife. In 1939 he made another will. In this second will, he expressly revoked
his earlier 1918 will. Again, he gave the bulk of his estate to his wife. When
testator died, the wife presented the 1939 will for probate. Unfortunately, it was
disallowed by the probate court because it failed to comply with the formality
prescribed by law. The widow then presented the 1918 will for probate. She could
not however present the original copy of the 1918 will. The best that she could
produce was a duplicate of the 1918 will. Oppositors claimed that the husband
already destroyed the original copy of the 1918 will.
Supreme Court: Even if assuming that the husband, after making his 1939 will,
burned the original 1918 will with intent to revoke, nonetheless, under the
doctrine of dependent relative revocation, it should be understood that it is
presumed that the revocation of the 1918 will was conditional upon the effectivity
of the 1939 will. Since the 1939 will failed to take effect, it is presumed that the
husband would have preferred his old 1918 to intestacy.
SOMETIMES REVOCATION MAY BE PRESUMED DEPENDING ON CIRCUMSTANCES:

For example: If there was evidence to show that the will was in the possession of testator
and after the death of the testator, his will was found among his possession in a tattered
or torn condition, the presumption is that the testator revoked his will. Or after his death,
the will could not be found and the evidence was clear that it was the testator who has in
possession of the will, it may be presumed that the testator revoked his will.
 Testator was in possession and the will was found in tattered or torn condition at
the time of his death it may be presumed that the will was revoked, or after his
death, the will cannot be located or found, then it is presumed that it was revoked
and evidence shows that he was in possession of it before his death.
ARTICLE 833: A REVOCATION BASED ON FALSE CAUSE OR ILLEGAL CAUSE IS NOT VALID:
 BEFORE INVOKING ARTICLE 833, IT IS NECESSARY THAT THE CAUSE FOR THE REVOCATION
MUST BE STATED IN THE WILL.
 If the cause is false or illegal but was not stated in the will, article 833 cannot be
invoked.
 If the testator simply revokes a will, even assuming that the cause of the revocation
was false or illegal but he did not state the cause of the revocation in the will itself,
then there will be no basis for any invocation of Article 833:
o Example: Testator instituted Mr. X as heir to the bulk of his estate and the
will was made in 1995. Ten years later, the testator heard that his friend Mr.
X was already dead. As a consequence, the testator made another will and
said among other things, “I hereby revoked my 1995 will.” After the death of
the testator, Mr. X appeared and learned that the 1995 will has been revoked
and he was told that the only reason why the testator revoked his 1995 will
was because the testator erroneously thought that Mr. X was dead. Can Mr.
X questioned the validity of the revocation under the circumstances:
Held: He cannot. There is not basis because in the revocation, the testator
simply said, “I hereby revoked my 1995 will.” He did not state any cause or
reason for the revocation. There is no basis for invoking article 833.
22
However, even if the will was revoked, any recognition of an illegitimate
child contained in a will is not affected because recognition of an illegitimate
child is not really in the nature of testamentary disposition which could be
the subject to the sole will of the testator. Recognition creates status and
there should be a certain element of stability in so far as the status of an
individual is concern.
Article 834—the recognition of an illegitimate child is not essentially a testamentary

disposition and the recognition should not be based on the sole will of the testator.
 A recognition creates a status and there must be a certain element of stability
when it comes to the status of an individual
REPUBLICATION—IS BROUGHT ABOUT BY THE ACT OF THE TESTATOR:

 TWO WAYS OF REPUBLISHING A WILL:
1. By simply executing a codicil to that will. The will is republished as modified by
the codicil.
2. By reproducing the provisions contained in a previous will by reproducing those
provisions in a subsequent will. Republishing the provisions containing in a
previous will.
IF A PREVIOUS WILL IS VOID AS TO FORM, THE ONLY WAY TO REPUBLISH THE PROVISIONS
CONTAINED IN THE VOID WILL IS TO COPY THE PROVISIONS IN THAT WILL IN THE NEW WILL:
 Cannot republish provisions contained in a will which is void as to form by simply
executing a codicil to that void will.
EFFECT OF REPUBLICATION:
A WILL WHICH IS REPUBLISHED BY A CODICIL SPEAKS AS OF THE DATE OF THE CODICIL; IT IS AS IF THE
WILL WAS MADE AT THE TIME OF THE EXECUTION OF THE CODICIL:
 The will speaks at the time of the execution of the codicil: A will which is republished
by a codicil, speaks as of the day of the codicil. In other words, it is as if the will was
made at the time of the execution of the codicil. And that may have some legal
consequences. The will speaks at the time of the execution of the codicil.
 Assuming the testator made a will in 1985. He made another will in 1990. The
provisions of the two wills are inconsistent to each other, or irreconcilable. If the
testator dies, which will will be given effect?
o It is the 1990 will because it is the later expression of the testator intent in case
of irreconcilable conflict.
 Assume that in 1992 the testator made a codicil saying “I hereby modified the
following provisions in my 1985 will.” So the codicil was made referring to the 1985
will modifying some provisions of the 1985 will. The execution of codicil in 1992 will
have the effect of republishing the 1985 will as modified by the 1992 codicil. This
means that it is as if the 1985 will was made in 1992. Assuming that there are still
irreconcilable conflicts between the provisions of the two wills, the 1985 will be the
one to be given effect because it is the latest expression of the testator due to
republication. The 1985 will, as modified by the 1992 codicil, is considered made in
1992, and is considered as later than the 1990 will.
23
HOWEVER, REPUBLICATION THRU A CODICIL IS NOT POSSIBLE IF THE EARLIER WILL IS VOID
BECAUSE OF FORM:
 Republication through a mere codicil of a will that is void as to form is not allowed.
 Based on the above example. If the 1985 will was void because of the failure to comply
with the formalities, the provision can only be republish by copying the provisions in a
subsequent will or (codicil?).
If the problem is to capacity is an issue, then a codicil can republish the will when there is
already capacity.
 If the testator made the 1985 will when he was only 16 years old, then in 1992 he
made a codicil to the 1985 will, the 1985 will will be republish because it is not
defective or void as to form. The problem was with respect to capacity and when the
codicil was made, he was already fully capacitated to make a will.
 Again, if the defect is with respect to the form like in the absence of an attestation
clause, if is not possible to republish thru a codicil; the provisions must be re-copied
or reproduced those provisions in a subsequent will.
REVIVAL—IS BROUGHT ABOUT BY THE LAW:

 Article 837: How was the first will was revoked by the second will:
o If the first will is expressly revoked by the second will, forget about
revival. Even if the second will was revoked by a third will, the first will
however will not be revived.
o If the first will was only impliedly revoked by the second will, so that there
are inconsistencies between the provisions of the two wills, and then the
moment the second will was revoked by a third will, the firs will will be
revived.
o So if the first will was merely impliedly revoked by the second will then
revival is possible. If the second will was itself revoked by a third will, the
first will which after all was impliedly revoked by the second will, that first
will will be revived.
Two inconsistent will—we have then two valid wills
End of Audio
D. (FOURT AUDIO)
Allowance and Disallowance of wills

1. Probate is Mandatory—matter of public policy to protect the interest of the heirs and
other beneficiaries, but also to protect the interest of the testator
2. Probate is imprescriptible;
3. There are only three matters that can be properly inquired during probate proper:
a. CAPACITY (did the testator possessed the necessary capacity when he made the
will?)
b. IDENTITY (Is this document really the last will and testament of the testator)
c. DUE EXECUTION (Were the formalities of the law followed)
 Not proper to inquire into the intrinsic validity of testamentary provisions:
24
 Exception: When it is clear that a testamentary provision is clearly void
and probate would be a waste of time. The court can inquire into the
intrinsic validity of the will
 Nugiud vs. Nugiud—(the parents were preterited) the only provision in
the will is void because of preterition;
 Nepomuceno vs. Nepomuceno—the will is valid, but the provisions in
favor of the mistress are null and void:
o WHEREFORE, the decision a quo is hereby set aside, the will in question declared
valid except the devise in favor of the appellant which is declared null and void.
The properties so devised are instead passed on in intestacy to the appellant in
equal shares, without pronouncement as to costs;
 Article 739 was incorporated by reference on the law on testamentary
disposition;
2. Probate could be Post-mortem or during life-time;
3. Once a will has been allowed; attained finality: conclusive as to its due execution.
a. Mercado vs Santos: Conclusive as to the will’s due execution necessarily
includes the authenticity of all of the signatures appearing on the will.
4. The provisions of the will cannot be the subject of compromise agreement: Rabadilla
v. Court of Appeals.
o The will is the expression of the intention of the testator as to the manner of
disposing his property.
o His wishes must be strictly followed;
5. The grounds for the disallowance under article 839 are exclusive.
6. In connection to undue influence: Also the same cause for vitiation of consent in
contract; Only one case: Revilla vs. Court of Appeals: Man is a social being—we are
bound to be influence by other people, but as long our will is not subjugated by the
will of others, there is no undue influence.
 Mere inequality in the distribution does not prove by itself undue influence
since the purpose of the will is not to distribute equally.
7. Calde vs Court of Appeals: The will was presented to probate, but all the witnesses
when asked a identical question regarding the number of pens used. The will was
written with different pen colors. The net effect was the disallowance of the will.
Institution of Heirs:
 There can be a valid will even without instituting an heir. Can institute only legacy
and devices;
 But for after acquired property or for the net remainder of the estate, it is better have
an institution heir;
 Not really essential to write the complete name and surname of the heir: the writing
of events or circumstances to identify an heir is sufficient.
 Disposition of unknown person or persona incerta: the disposition is void; the
property will be merged with the mass of the estate and given to the legal or intestate
heir of the testator; for intestate succession;
 May leave a sum of money or specific property in favor of a class or a cause is valid.
 Article 846: Rule of Equal Division; But legitime should always be protected.
 The heirs collectively instituted, they are deemed individually instituted.
 If the share is specified, must follow the provisions; Apply article 846 on the Rule of
equal division to the remainder.
25
 If the testator in instituting the heir stated their fractional parts and the fractional
parts together do not cover the entire estate then part not dispose of by will should go
to the legal of intestate heirs;
o It is different if there is an intention to give the entire estate to the instituted
heirs but the fractional parts do not cover the entire estate then make a
proportional increase.
o Or proportion decrease in case in proper case;
Article 854: PRETERITION:

 Compulsory heir in the direct line is completely omitted in the will, and nothing has
been given to him by the testator by gratuitous title even during his lifetime.
 The institution of the heir is annulled; complete annulment of the institution of heir;
 If the omission was done intentionally: Ventura vs. Ventura—Still preterition.
 If the compulsory heir is mention in the will: Still preterition if nothing is given;
 Must be a compulsory in the direct line: if not, no preterition.
 Spouse is not a compulsory heir in the direct line.
 If the omitted compulsory heir is an adopted child: Preterition
 If omitted is an illegitimate children: Preterition
 If no children but parents are alive. If parents are omitted, preterition
 The omission must be total and complete:
 If during the lifetime of the testator, something has been given—no preterition
 If the omitted heir stands to receive something in intestate succession; to get
something as a legal heir—No preterition;
 If the will does not dispose of the entire estate, the part not dispose of by
will must be given to the legal or intestate heir.
 Heir is entitled to the completion of the legitime; apply article 855
 No preterition; do not annul the institution of heir
 If legacy has been given; no preterition; omission not total and complete; but entitled
to the whole legitime;
o Legacy and Device is inofficious if it exceed the free portion;
 Effect of the predeceased of the omitted heir: the institution of the heir is effectual
without prejudice to the right of representation;
o “Without prejudice to the right of representation”—applying Article 777;
determine who are the compulsory heir are at the moment of death; at moment
of death X dies, A and C (child of B; don’t mention B since he’s dead); there is a
preterition of C—then intestacy; Preterition; the institution of A as a sole heir
must be annulled, the estate must be distributed ½ and ½ between A and C
under intestate succession;
 Apply 855 if the omission does not amount to preterition.
 Article 856—voluntary heir (dies before the testator) transmits nothing to his own heir
SUBSTITUTION (1:00:10)
1. Simple—one on one
2. Brief Substitution—two or more substitute for a single heir
3. Compendious—there is one substitute for two or more heirs
4. Reciprocal Substitution—reciprocally substitute of each others
26
IFTHE CAUSE FOR SUBSTITUTION IS NOT SPECIFIED BY THE TESTATOR, IT IS UNDERSTOOD THAT
SUBSTITUTION WOULD TAKE PLACE IN CASE OF REPUDIATION, INCAPACITY, AND PREDECEASED:
 If the testator specifies the cause, then substitution will only take place upon the
occurrence of the particular cause specified by the testator.
If there are several heirs and they are at the same time designated as reciprocally
substitute of each other and there is vacancy occurs—the substitute shall have the same
proportional share in the substitution as in the institution.
FIDEICOMMISSARY SUBSTITUTION:
 There is a fideicommissary substitution when the testator institutes a first heir known
as the fiduciary heir, and imposes upon him the absolute obligation to preserve and
transmit the properties given to a second heir known as the fideicommissary
substitute. Both the first and the second heir must be living at the time of the death
of the testator;
 The substitution must not go beyond one degree from the heir originally instituted:
 Traditional view—one degree means one degree of blood relationship (parent or a
child) and no limited number of transfer as long as it a one degree transfer;
 Modern view—one degree means transfer; there can only be one transfer even if the
transfer not between blood relatives.
 FINALLY: Ramirez vs. Ramirez—One degree means relationship.
 Aranaz vs. Aranaz;
 Right of a mere usufructuary: The Nature of the Right of the First heir over the
property.
THE PROPERTY WILL BE HELD BY THE FIRST HEIR BASED ON THE TIME OR PERIOD SPECIFIED BY
THE TESTATOR:
 If the testator did not specify the time of transmission; the time of transmission will
depend upon the first heir, but only up to the time of his death.
o The longest period is only up to the time of the first heir’s death
 If the second (fideicommissary heir) heir died ahead of the first heir: The rights of the
second heir will pertain to his descendants as long as the first and the second
(descendants) heir are alive when testator died.
BOTH THE FIRST AND SECOND HEIR INHERITS DIRECTLY FROM THE TESTATOR:
 The second heir inherits directly from the testator, from the moment of death of the
testator;
 The second heir can transmits right to his own heir;
FIDEICOMMISSARY SUBSTITUTION CANNOT IMPAIR OR BURDEN LEGITIME:

 Legitime cannot be the subject of fideicommissary substitution.
 If the first heir is a compulsory heir, a fideicommissary substitution can only be
established with respect to the share of the free portion;
End of Audio
E. 05-08-10 (FIFTH AUDIO)

27
X instituted A as fiduciary and C, A’s son, as the fideicommissary substitute; the

properties given to A will go only to his son C and his other son B cannot claim that those
properties should be part of his legitime. A’s creditors cannot run after those properties
since, at best, A has only the right of usufruct over those properties.
“I give my properties to A, and upon the death of A, whatever shall remain with those
properties, shall go to his son C.”
 There is no fideicommissary substitution since there was an implied authority to
dispose whatever is left.
 There is no obligation to preserve and transmit the properties.
IFTHERE IS IMPLIED AUTHORITY TO DISPOSE REMAINING PROPERTY GIVEN TO THE FIDUCIARY,

THERE IS NO FIDEICOMMISSARY SUBSTITUTION:
 There is no obligation to preserve;
 PCIB vs. Escolin: “Whatever will remain of the property I’m giving to my husband
upon his death will pass to my relative.”
CRISOLOGO VS. SINGSON:

 The testator gave ½ of a parcel of land to his niece and the other ½ to his brothers;
that when the niece die, whether before or after the testator’s death, the ½ given to
the niece will be transferred to his brothers of their heirs.
 There is no fideicommissary substitution:
 This is only a simple substitution
ONE CAN ONLY HAVE A FIDEICOMMISSARY SUBSTITUTION IN EITHER OF TWO WAYS:

1. By expressing given the substitution that name;
2. Imposing upon the first heir the absolute obligation to preserve and transmit the
property to a second heir.
 Outside of these two conditions, there is no fideicommissary substitution.
LIMITATIONS UNDER ARTICLE 863: THEY ARE INCORPORATED BY REFERENCE IN OTHER

PROVISIONS
1. One degree of transfer from the first beneficiary instituted;
2. Both the first and the second heir must be living at the time of the death of the
testator;
“X instituted A as the fiduciary heir and B as the fideicommissary heir; B died in 1995
and X died in 1998; in other words, when X died, the fideicommissary heir was already
dead. A is still alive:”
 No fideicommissary substitution because the law requires that the first and second
heir must be living at the time of the death of the testator.
 Will a be able to inherit:
 Yes, because of Article 868 of the Civil Code which provides that, “the nullity of the
fideicommissary substitution does not prejudice the validity of the institution of the
heir first designated; the fideicommissary clause shall simply be considered as not
written.”
28
Suppose the first heir was the one who died in 1995 so when X died, it was only B
who was alive:
 B can still inherit because it will not be considered as fideicommissary substitution
anymore but simple substitution since the basic premise is to follow the intention of
the testator and when the testator intention is that the property will ultimately be
given to B. The first has only a temporary right over the property.
“I give my farm in Bulacan to my friend F (naked ownership), but I give the usufruct of
that property to A for a period of five years, and after five years to B the son of A for
another period of five years, and after five years to C, the son of B for another period of
five years.”
 Cannot go beyond the limit provided under Article 863: “Should not go beyond one
degree from the heir originally instituted, and all of them must be living at the time of
the death of the testator.”
 Therefore, only A and B will get to enjoy the usufruct. C is already two degrees away
from A.
20 YEARS LIMITATION DOES NOT APPLY TO FIDEICOMMISSARY SUBSTITUTION.
ARTICLE 870: ARANAZ V. ARANAZ:
DISPOSITION SUBJECT TO A CONDITION & DISPOSITION SUBJECT TO A TERM OR PERIOD (22:53)

 Impossible and illicit conditions have no effect; an heir will still inherit;
 They are simple ignored or disregarded
CONDITION OF ABSOLUTE PROHIBITION TO CONTRACT A SECOND MARRIAGE:

 As to prohibit first marriage in an absolute manner is not allowed;
 But relative prohibition is allowed.
ABSOLUTE PROHIBITION TO CONTRACT A SECOND MARRIAGE:

 GENERAL RULE: CANNOT BE VALIDLY IMPOSE:
 EXCEPTION: The deceased’s spouse, the ascendant and descendant of the deceased
spouse.
o The law gives consideration to the sensibilities of the deceased spouse or the
latter’s ascendants and descendants.
 A mere expression of a wish or desire does not amount to the imposition of a
condition.
 If the surviving spouse was given the entire estate, part of the estate is the surviving
spouse’s legitime;
o The legitime cannot be subject to a condition.
o In case of violation of the prohibition, the heir will only lose the free portion of
the estate.
o Legitime will be retained; it cannot be subject to any condition, encumbrance,
and substitution.
o
DISPOSITION CAPTATORIA—if the testator gives property to an heir subject to the condition
that the heir will make a disposition in his will in favor of the testator or third person; the
disposition is null and void;
29
POTESTATIVE CONDITION—may be fulfilled as soon as the heir learns of the death of the
testator.
CASUAL OF MIXED CONDITION—it may be fulfilled anytime; even before or after the death of
the testator
o If the testator made a disposition in a will and that the casual or mixed
condition has been fulfilled already and imposed it again; then it must be
fulfilled again.
o Except when it cannot be fulfilled again
DISPOSITION SUBJECT TO A TERM OR PERIOD:

 What was suspended is merely the demandability and not the effectivity of the
institution;
 There is already an acquired rights which can be transmitted to his heir;
 What will be done to the property before the arrival of the suspensive term or period
whether suspensive or resolutory: Use Article 885; The property will be in the mean
time the legal heirs will get to enjoy the property under suspensive term or period;
 But the legal heir must post a security to guarantee that the property will be good
condition when the property is transmitted to the instituted heir;
 If under resolutory term or period, rights are terminated and the property will go to
the legal heir of the testator;
 If under suspensive condition, apply Article 880; the property will be under
administration;
Article 885: As long as the condition is subject to a term or a period, whether

suspensive or resolutory, the applicable provision is Article 885. There reference of a
term or a period under Article 880 is erroneous.
INSTITUTION SUB MODA; MODAL SUBSTITUTION; ARTICLE 882

 If the object of the institution, the charges to be satisfied, or the application of the
property was specified by the testator.
 The instituted heir is immediately entitled to the property given to him under the will
even before he satisfied the charges imposed, or specified the object of the institution
 Subject to posting of security
 MODE obligates but it does not suspends;
 Condition suspends but does not obligates;
 Rabadilla vs. Court of Appeals.
LEGITIMES: (1:03: 10)

 A class of Legitimates are always entitled to one-half;
 Any class surviving alone is entitled to one-half
 Surviving spouse; surviving alone is entitled to one-half legitime if there is no
compulsory heir;
o Exception: if the marriage was solemnized in articulo mortis and the decedent
died within three months of the celebration of the marriage
o Entitled to only one-third.
30
o Exception to the exception: parties has been living as husband and wife for five
years; legitime is one-half;
o If there is an actual marriage and lasted only for few hours, the husband died
due to heart attack: the legitime is one half.
 The dying party must be the one who actually died;
 Must be at the point of death
 The presence of legitimate children and descendants excludes the legitimate parents
and other ascendants
 The presence of an adopted child is sufficient to exclude the legitimate parents and
other ascendants;
 ½ Legitimate Parents; ¼ to illegitimate children; 1/8 to the surviving spouse;
something must be left for the free disposal of the testator; and illegitimate children
are sometimes more.
 Illegitimate children 1/3; Surviving Spouse 1/3
 Illegitimate Parents ¼; Surviving Spouse ¼
 Illegitimate grandparents (not compulsory heirs); Surviving Spouse ½; In succession,
whether under the law on legitimes or intestate succession, in the direct ascending
line in case decedent is an illegitimate person, succession stops at the illegitimate
parents.
o If however, the illegitimate grand father dies, the illegitimate child may inherit:
An illegitimate descendant may inherit from illegitimate ascendant.
o If the illegitimate descendant dies, the illegitimate grandfather cannot inherit;
the property will go the state.
 One legitimate child ½ ; Surviving Spouse ¼; free disposal is ¼;
 Only survivors are illegitimate children ½ (any class surviving alone is ½ )
 One class surviving will get 1/2.
 2 legitimate children ½ ; Surviving Spouse—same share as one legitimate children
RESERVE TRONCAL: (1:20: 25)
End of Audio
F. 05-08-10 (SIXTH AUDIO)
DOCTRINE OF DEPENDENT REVOCATION—would more specifically apply to revocation effected

thru physical acts of destruction couple with intent to revoke. The basis is that
revocation is dependent on the validity of thee second will or the ability to make a second
will;
DISINHERITANCE
 Can only deprive a legitime thru a valid disinheritance;
 A valid disinheritance can only be made thru a valid will;
 The cause of the disinheritance must be stated in the will and for a cause recognized
by law.
 The disinheritance must be based on an existing cause;
 The disinheritance cannot be made conditional upon the happening of a certain event;
 There must be an existing true cause;
 The revocation of disinheritance may be made conditional;
31
 A disinheritance cannot be partial—the disinheritance is based on the offense
committed against the testator; if partial, the heir can still inherit;
GROUNDS: Articles 919, 920, 921:

THE BURDEN OF PROOF IS ON THE HEIRS WHO WANT TO UPHOLD THE DISINHERITANCE;
 Found guilty (of an attempt against the life…); implies a conviction of final
judgment; mere (guilty) of attempt is sufficient;
 Absolute pardon from the president: Can still be disinherited;
 Attempt to kill the father but without prosecution for the attempt—still disinheritance
due to maltreatment: words or deeds; even without conviction;
 Accused the testator of a crime: testify against father, at the latter is acquitted due to
reasonable doubt: Cannot be validly disinherited; the accusation is not entirely
groundless due to reasonable doubt acquittal.
 Adultery/ Concubinage: Requires conviction;
 Refuses to support the testator: not entirely useless.
 Living a Dishonorable or Disgraceful Life—this requires the element if habituality or
continuity; must not be based on a single act;
 Mere conviction of a crime or an offense which carries the penalty of civil interdiction
does not require that the offense was committed against the relative of the testator or
against the testator; may have been committed against a third person.
In disinheriting a parent:
 A mere attempt [Article 920(8)] by one parent against the other parent gives a child a
ground to disinherit his offending parent; except if there’s a reconciliation between
the parents
 However, if there’s conviction for mere attempt [Article 920(2)], despite reconciliation
between the parents, the child can still disinherit; unless there is reconciliation
between the child and the offending parent;
 Reconciliation is more than a mere pardon—there is a restoration of former relation
between the parties.
In disinheriting a spouse
 When a spouse has given a ground for Legal Separation; Article 55 of the Family Code
 Article 923: Children and descendants can inherit at least get the legitime; refers to
the children of validly disinherited heir.
IF A COMPULSORY HEIR IS IMPERFECTLY DISINHERITED, HE GETS HIS LEGITIME:

 If the testator did not validly dispose of his free portion, the imperfectly disinherited
heir can receive more other than his legitime; will get his entire intestate share;
Listen to the problem: 26:00 (F)

 Imperfect disinheritance; not specifying the cause for disinheritance
 ABCD (C preterited; D imperfectly disinherited)—intestate succession; ABCD will
received equally
 ABCD (D imperfectly disinherited; no preterition; gave the entire estate to ABC
only)—D will be limited to his legitime. The free portion will go to ABC only
32
 If D is validly disinherited, he will get nothing but his children will receive his legitime.
LEGACIES AND DEVICES

 Something that he does not own; valid L/D as long as the testator knows that he is
not the owner;
 If the testator erroneously thought he owns and gave it as L/D, the L/D is void;
o Unless he subsequently acquired the thing by whatever title;
o Subsequent acquisition will cure the defect
 Cannot give by L/D which something the beneficiary was already the owner; void
o Even if the thing was subsequently alienated to a third person by the owner
beneficiary; legacy remains void.
o Unless the thing was alienated in favor to the testator;
 A clear intention to validate the legacy or device; there is now an intention
to validate the legacy or device
 Giving a device or something owned by a third person:
o Valid Device; there is an implicit order to the estate to acquire the property
from the third person so it can be given to the Devicee.
o If the third person would not want to sell; the value will be given instead
 Only if only one-half interest belongs to the testator and the latter gives the entire
property;
o There is a valid device;
o The device covers the entire property
o There is a valid order to acquire the other half from the other co-owner.
 Before death, co-ownership was terminated; agreement with the other co-owner that
the entire property will belong to the other co-owner;
o The testator was paid of his ½ interest by the other co-owner.
o There is still a valid device with respect to the ½ originally belong to the other
co-owner.
o With respect to the other half previously belonging to the testator, there is no
longer any device because there has been a revocation by alienation when the
testator agreed that entire property will belong to the other co-owner.
 By way of device, a determinate house which is currently owned by a third person;
o The devicee was not aware of the disposition and the devicee bought the house
from the third person eventually;
o The device is entitled to reimbursement for the price paid for the property
o But if the house was donated to the devicee, no rights to claim any
reimbursement.
 Property given is pledge or mortgage to secure a recoverable debt regardless when the
pledge or mortgage was instituted (before or after the execution of the will): The Rule
is the same:
o The estate is obligated to pay the debt and to free the property from pledge
and mortgage;
o Same rule is applied to antichresis.
 Any other charged with the property will go with it such as easement.
 Article 934 covers only those encumbrances which are constituted to the property to
secure a recoverable debt.
33
Legacy of a Credit and Condonation of Debt
 These legacies are rendered ineffective the moment the testator brings an action for
the recovery of the debt.
o “I give my friend F by way of legacy my credit of one million against Mr. D.” If
prior to my death, I bring an action for collection, the legacy is rendered
ineffective.
 If prior to the death a case is filed for collection, the legacy of a credit is rendered
ineffective
 There must be an actual case filed and NOT merely a demand letter
Legacy of Condonation of Debt

 An action instituted will rendered the legacy ineffective;
If the testator is a debtor and gives a legacy to creditor:

 The creditor is entitled to receive or collect not only his credit but also his legacy;
 Owed (credit) 40K; Legacy 30K—May collect 70K
 If ordered that the legacy of 30K will be applied to the credit: Collect 40K, the amount
of the credit.
Distinguish the rules applicable to a legacy of generic personal property and a

device of a generic real property:
 Given was a generic personal property, but after death, the estate does not own any
property of that kind, there is still a valid legacy; the estate will simply acquire the
property and give it to the legatee.
 If given a generic real property, but the estate does not own any property of that kind,
the device is void;
 Legacy for Education—last beyond the age of majority provided he pursues his study
diligently
 Legacy for Support—last during the entire life of the legatee.
 With respect to pure or simple legacy or device, the right is acquire from the
moment of death of testator
 But as to ownership, as distinguish from the right, the ownership of the property that
belongs to the testator is acquired also from the moment of the death of the testator
with respect to pure or simple legacy or device.
 ARTICLE 911: Order of preference if the free portion is not sufficient to cover the
legacies and devices: (1) preferential legacy and devices; (2) all others pro-rated;
 ARTICLE 950: ORDER OF PREFERENCE:
1. Remuneratory L/D
2. Preferential L/D
3. Legacy for Support
4. Legacy for Education
5. Legacy and Device of specific and determinate things which form part of the
estate
6. All others pro-rata;
 APPLY ARTICLE 950 when the conflict is exclusively among the legacies and devices; no
legitimes to be protected; no donation inter vivos.
 Apply Article 911: otherwise apply 911
34
 Remuneratory Legacy or Device—intended to recompense previous services which
do not constitute demandable debt.
ARTICLE 957: THREE SITUATION OR CAUSES WHICH WOULD RENDER THE LEGACY OR DEVICE
INEFFECTIVE:
1. Transformation
2. Alienation
3. Lost
Transformation—If the thing given as a legacy or device is changed in such a way that
it does not retain its form or denomination.
 Form—physical appearance;
 Denomination—the name by which the thing is called.
Alienation—later sells the thing, unless the alienation is temporary in nature such as
when there a right to repurchase;
Test: Whether or not the testator intended to permanently part with the ownership of the
property.
Lost—if the lost occurred during the lifetime of the testator regardless of the cause of
the lost; if the lost took place after the death of the testator and the lost is due to caso
fortuito without the fault of the heir, the bequest is ineffective; but if the lost is due to the
fault of the any of the heirs, can still recover the value of the property; the heirs are
solidarily liable (all heirs who took possession of the hereditary property even if only
one of them was at fault)
Article 959: The Rule of Proximity

 Other rules of succession do not apply;
 Simple count the number of degrees; whoever are the nearest relatives in terms of
degrees, whether direct or collateral line, whoever is the closest will inherit.
 If the testator says, “give house and lot to those who are entitled thereto,”
o Do not apply Article 959;
o Give it to those legally entitled thereto under intestate succession
 But if it says, “I give the property to my relatives.”
o Father is dead; (GF) grandfather (2 degrees) is alive; (U) Uncle (3 degrees) is
alive; (A and B) two brothers (2 degrees) alive, Third brother is dead but
survived by a (D) son (3 degrees), and wife.
o Apply 959 by simply counting the number degrees;
o GF, A and B will inherit;
o There is no representation under Article 959, hence D will not inherit.
o Apply 959—Disposition in favor to those nearest in degree,
o Only rule is the Rule on Proximity Applies.
INTESTATE SUCCESSION (56:30)

PREFERENCE BETWEEN LINES—the direct descending line is preferred over the direct
ascending line;
 Direct ascending line is preferred over the collateral line.
35
 If there are legitimate children and descendants, the legitimate parents and
ascendants are excluded.
 If there are no children and descendants, but there are parents and ascendants
together with the brothers and sister of the deceased, the parents and ascendants
exclude the brothers and sisters who are merely collateral relatives.
RULE ON PROXIMITY—the nearer relative excludes the most distance or further ones from
the decedent;
 The rule of proximity must yield to the order of intestate succession.
 So it even one is nearer but there is an heir who occupies higher rank in the order
of intestate succession, the nearer relative must yield.
THE ORDER OF INTESTATE SUCCESSION: REGULAR AND THE IRREGULAR ORDER;

Regular Order; if the person who died is a legitimate person”
1. Legitimate Children and Descendants
2. Legitimate Parents and Ascendants
3. Illegitimate Children and other Descendants
4. Surviving Spouse
5. Brothers and Sisters, Nephews and Nieces
6. Other Collateral Relatives within the 5th degree
7. State
Irregular order: if the person who died is an illegitimate person”

1. Legitimate Children and Descendants
2. Illegitimate Children and Descendants
3. Illegitimate Parents (only the illegitimate parents is considered legal heirs if the person
who died is an illegitimate person; other ascendants are not included)
 Same rule in legitime: direct ascending line is only up to illegitimate parents.
4. Surviving Spouse
5. Brothers and Sisters, Nephews and Nieces
6. State
Some may Concur, Some may Excludes:

 The Legitimate Children and other Descendants exclude the legitimate parents and
other ascendants, but they do not exclude illegitimate children and the surviving
spouse.
 The Surviving Spouse does not exclude the brothers and sisters(1/2 and1/2)
 The Surviving Spouse exclude the other collaterals as well as the State
 Brothers and Sisters, nephews and nieces exclude the other collateral relatives.
o Brothers/sisters and first cousin—first cousin is excluded.
 If the person who dies is an illegitimate person, the presence of illegitimate children in
the irregular order is enough to exclude the illegitimate parents;
The Rule of Proximity Yields to the Order of Succession

 (3rd Degree) Nephews/nieces (children of deceased brother of deceased);(Category 5)
 (3rd Degree) Uncle (Category 6)
 Category 5 excludes Category 6
36
THE RULES OF REPRESENTATION:
 A farther relative becomes just as near if your represent somebody closer to the
decedent;
 There is representation in intestate and testate succession, but in the latter applies
only to the legitime;
o In testamentary succession, representation applies only to the legitime.
 If a compulsory heir is given a part of the free portion and he dies ahead of the testator
leaving his own children and descendants, he cannot be represented on the free
portion but he can be represented in so far as his legitime is concern.
 There is representation in the direct descending line;
 Never in the direct ascending line;
 There is no representation in the collateral line; except only when nephews and
nieces survive with at least one uncle or aunt;
THERE IS NO REPRESENTATION IN CASE OF REPUDIATION:

o An heir who repudiates cannot be represented:
 An heir may represent him whose inheritance he has previously repudiated.
o X has two children A and B and a grandchild C who is the child of B;
o If B repudiates and X dies, C cannot represent B and everything will go to A;
o However, that B predeceased X, and when B died, C repudiates his inheritance
from B; later on X died, C can represent B which inheritance from B, C has
repudiated.
 If the person to be represented is legitimate, the representative must also be
legitimate;
 If the person to be represented is illegitimate, the representative may be legitimate of
illegitimate;
o X has two children: A, legitimate; B illegitimate;
o A has two children: C legitimate; D illegitimate;
o B has two children; E legitimate; F, illegitimate;
o A and B predeceased X;
o When X died, he is survived by C, D, E, F;
o In the case of A, only C can represent him because A is legitimate so his
representative must also be legitimate;
o D cannot represent because of the barrier between legitimate and illegitimate;
o In the case of E and F can represent B since B himself is illegitimate; there is no
barrier.
 Take note the Barrier Between Legitimate and Illegitimate under Article 992; an
illegitimate child cannot inherit ab intestate from the legitimate children and other
relatives of his parents neither can those relatives can inherit from him.
o Barrier applies only in intestate succession.
 In the exercise of the right of representation, the ratio of 2:1 should always be
observes between legitimate and illegitimate.
 Grand children always inherit by right of representation except when all the children
repudiates, then the grand children can inherit in their own right under Article
969. Therefor, the distribution is per capita and not per stirpes;
 Article 992; The barrier only applies in intestate succession; Nothing will prevent
from instituting an heir in testamentary succession.
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 Dela Merced vs. Dela Merced; in this case, there were brothers and sisters (A,
B,C,D);
o B had an illegitimate son S
o A died and B,C and D inherited from A
o B died and S was claiming his entire estate;
o C and D opposed arguing that S was illegitimate, hence cannot inherit;
o C and D are incorrect;
o Apply Article 777; from the moment of death of A, successional rights were
transmitted to B,C, and D;
o When B died, the properties he inherited from A were already his own
properties;
o S is not inheriting from the legitimate relatives of his father B;
o S is inheriting from his own illegitimate parent B; he is clearly entitled to
inherit.
End of Audio
G. 05-09-10 (SEVENTH AUDIO)
INTESTATE SUCCESSION (CONTINUATION)
INTESTATE SHARES: “EVERYTHING MUST GO.”

 The Legitimate always gets ½
 Legitimate Parents ½; Illegitimate children ¼ ; Surviving Spouse ¼
 Surviving spouse ½ ; Brothers and Sisters, Nephews and Nieces ½
 One Legitimate Child ½ ; surviving spouse ½
 Illegitimate children ½ ; Surviving Spouse ½
 Legitimate children ½ ; Illegitimate Children ; Surviving Spouse
CONCURRENCE THEORY (Dean, follow this theory); takes into account the ratio of 2:1
established by law between legitimate and illegitimate children.
 Do not apply the ratio immediately in order not to impair the legitime of the legitimate
children in case there are several illegitimate children.
 Hence, distribute first the legitime;
EXCLUSION THEORY:
 In both, always get the legitime first.
 Do not apply the 2:1 ratio immediately so not to impair the legitime of the illegitimate.
EXCLUSION THEORY: The remaining free portion will go to the legitimate children only since
there are first in the order of intestate succession
CONCURRENCE THEORY: The free portion will be distributed to both legitimate and
illegitimate following the ratio.
 Adopted children—treat as a legitimate child
 X has two legitimate children A and B; 2 illegitimate children C and D; estate of 120K;
 Give the legitime first: A and B will get 30K; C and D will get 15K each;
 Under the Exclusion theory, the remaining 30K will be distributed only to A and B;
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 Under the Concurrence theory, the remaining 30K will be distributed to A,B,C, and D
following the 2:1 ratio.
PROBLEM OF PARTIAL INTESTACY OR MIXED SUCCESSION

 A will giving 10K to a friend Mr. M (this is the only provision);
 120K Estate;
 Survive by legitimate parents (A & B) ½; Illegitimate children ¼ , Spouse 1/4 ;
 There is a mixed succession because the will did not dispose of the entire estate;
 With respect to the part of the estate not disposed of by will, the result is intestate
succession.
 RULE: Get the legacy by deducting it from the intestate share of the legal heir whose
intestate share is bigger than his legitime.
 The legitime of the legitimate parents (A & B) is ½ (30K ) , and their intestate share is
also ½ (30K); hence, cannot be reduced; cannot deduct 10K from 120K and distribute
110K;
 Illegitimate children legitime is ¼ (30K) and intestate share is also ¼ (30K);
 Since the legitime of Surviving Spouse is only 1/8 (15K), the intestate share is ¼
(30K); if the legacy of 10K is deducted from the spouse’s intestates share, there will is
still a balance of 20K which is enough to cover her 15K legitime; so deduct the legacy
from the surviving spouse.
o As long as the legitime is not impaired, the legacy can be deducted from the
intestate share.
THE RULE OF DOUBLE SHARE OF FULL BLOOD COLLATERALS:

 Full blood brothers and sisters and full blood nephews and nieces get double as that
of the half-blood.
 The rule applies only brothers and sisters and nephews and nieces;
 It does not apply to other collateral relatives.
COMMON PROVISIONS TO INTESTATE AND TESTATE SUCCESSION

Accretion:
 Unity of Object; Only One property is given;
 Plurality of subject; given to more than one individual;
 “I give my house and lot to my friends A,B, and C.”; there is a unity of object: the
house and lot; and there is plurality of subjects: A,B, and C;
 If A predeceased me, his 1/3 share will go thru accretion to his co-devicee B and C;
 “I give the entire free portion of my estate to my friend A,B,C; if A predeceased me, or
repudiate, the 1/3 share of A will go to B and C by right of accretion.
Article 1016: Requisites of Accretion in Testamentary Succession:

1. Two or more persons are called to the same inheritance or to the same portion thereof
pro-indiviso;
2. There is by vacancy caused by Repudiation, Incapacity, or Predeceased;
In Intestate Succession, Article 1018: In legal succession the share of the person who
repudiates shall always accrue to his co-heirs.
39
 BETTER VIEW: There is no accretion in case of predeceased and incapacity in intestate
succession since there is really no vacancy in predeceased and incapacity;
 Article 1018 only mentioned repudiation;
 As long as there is no earmarking, money and other fungible things can be the subject
of accretion.
 Earmarking—Physical segregation.
WHEN TO APPLY ACCRETION AND OTHER RULES IN DEALING WITH VACANCY:

 Underlying Principle Theory in succession—extension of the right to property
ownership;
 The principle of the primacy of the will of the testator
 Testacy in preferred than intestacy;
 Give the property to those device, legacy and the instituted heirs;
 Legitime is off-limits; only thru valid disinheritance;
 The right to institute heirs and to name legacy and device; the right to name the
substitutes;
 Legitime is not subject to any substitution, condition, or encumbrance;
 So if there is a vacancy, somebody predeceases, in so far as the legitime is concern,
there can be no substitution.
 Instead, apply the Rules of Representation when it comes Legitime;
 In case of the free portion, legacies, devices, those given to purely voluntary
heirs, apply substitution; hence in the other portions, apply substitution
IFREPRESENTATION IS NOT PROPER UNDER THE CIRCUMSTANCE OR IF THERE IS NO SUBSTITUTE,

AND THERE IS A VACANCY—APPLY ACCRETION:
 Give to the co-heirs, legatee or devicee
 If there is no co-heir, legatee or devicee, last option in intestate succession; give to the
legal heirs;
 Lastly, the State is always there.
 But the child of your first cousin can still inherit and vice-versa; covered by 5th civil
degree relative; first cousins are excluded.
 Representation exists only in direct descending line;
 Determine if there is a substitute designated by the testator in case there is a
predeceased legal heir with respect to his free portion; give the vacant portion to the
substitute;
 If there is no substitute but if there are co-heir similarly instituted to the free portion,
give to the co-heir thru the right of accretion if the requisites for accretion are present;
 With respect to the legitime, if there is no qualified representative, give it to the legal
or intestate heirs;
 With respect to the free portion, if there are no substitute, and there are no qualified
co-heirs for accretion, then distribute thru intestate succession;
 There can be accretion in intestate succession and there is no distinction between the
legitime and free portion because it only deals with the intestate share and the right of
representation, the representative gets not just the legitime but also the entire
intestate share of the person whom he represented.
 Article 1018: In legal succession, the share of the person who repudiates the
inheritance shall always accrue to his co-heirs;
40
 If there are no co-heirs, then intestate succession;
 38:00 (graph; testate succession)
 49:30 (graph; intestate succession)
CAPACITY TO SUCCEED (53:08)

 In case of Natural Persons—can only succeed if they were living at the time of
succession;
 Child Intrauterine Life of Less than Seven months; Must survive for 24 hours from the
time the umbilical cord is cut; seven months or more—must survive from the time of
separation from womb;
 Non-Natural person—May inherit even though it does not have any separate juridical
personality;
o Article 1026—association
o For the benefit of the soul
o Provisions for the benefit of the poor of certain locality.
 Article 43 of the Civil Code; Does not preclude the right of representation;
 Article 1027: Enumerate certain individuals who are incapacitated to inherit; does
not affect the legitime because there is no possibility of undue influence; does not
apply to intestate succession; only in testamentary succession; reason—no possibility
of undue influence in intestate succession because it is the law that mandates who
will share parts of the estate.
 Don’t bother about number 6
 The Priest/Minister of the Gospel: as long as the priest heard the confession during
the last illness of the testator, the pries is incapacitated; Basis: possibility of undue
influence; if the confess to five priest, all priest are incapacitated; does not mean the
last confession but all confessions during the last illness; if the priest did not hear the
confession (read bible, pray rosary, meditate)—NOT incapacitated; for ministers—
sufficient if they extended spiritual help to the testator; for catholic priest, they must
have heard the confession; But if the priest was given part of the estate before the last
confession, the priest can inherit because there is no possibility of undue influence.
 Guardian with respect to their wards: Exceptions: in favor of the guardian if the
latter happened to be the ascendants, descendants, brothers, sisters, spouse of the
ward—valid
 Attesting witness to the will and anyone claiming under them; reiteration of
Article 823; read in conjunction with article 823, hence with exception: unless there
are other three witnesses in the execution of the will;
 Physicians, etc.: if they took care of the testator during the last witness; consulting
doctor of the primary or attending physician/doctor is not incapacitated.
 Suppose the doctor is the son of the testator: Compare with guardian, there is an
exception; no exception under doctors, etc., HENCE, the legislature did not intend to
supply an exception.
 1:09:00 Example: X-testator; First cousin of the testator (4th degree), son pries (A)t,
son doctor (B), and C: Article 1027 does not affect the legitime; ABC will entitled to
their legitime even they are incapacitated; C is included because C is a relative of the
priest (siblings) within the 4th civil degree; First Cousin is incapacitated because ABC
are incapacitated creating vacancies which will be filled by intestate succession: then
legitimate children (and descendants) will received since under the order of either
41
intestate succession and testate succession they are the number one on the list; in
the end ABC will inherit the entire estate thru intestate succession.
 Article 1029: disposition made for prayers and pious works, there will be 50/50
division; half for the church where the testator belonged, the other half to the state for
the purposes given under Article 1013 of the Civil Code; DO NOT APPLY the 50/50
rule if the testator specified the application on how to spend the money. “I give 1
million for the prayers and pious work for the benefit of my soul,”—apply 50/50 rule;
half to the church and half to the government.
End of Audio
H. 05-09-10 CONT. (SUCCESSION) DEAN NAVARRO MORNING
If the adopted child died: ½ to the adopter, and ½ to the parents by nature:
 Section 18 of the Domestic Adoption law still refers to parental authority
 Follow the Family Code: ½ to parents by nature; ½ to the adopting parents if these
two concur;
 An adopted child cannot represent;
 Neither an adopted child be represented
 Adoption creates a relationship between the adopter and the adopted; the adopter
does not become the relative of the adopter and vice-versa;
Article 1032; Unworthiness
 Paragraph 5: The spouse is not rendered incapable of succeeding by reason of
unworthiness;
 To erase unworthiness, a pardon is required whether express or implied;
 An express pardon must be in writing;
 An implied pardon can take effect when the unworthy heir was instituted as an heir
with the testator having full knowledge of the facts constituting the unworthiness.
 If there is no pardon, express and implied, the unworthiness is not erase;
 If the heir was disinherited; then the rule on disinheritance will apply; Article 922
will apply; reconciliation deprives the offended party the right to disinherit and
renders ineffectual any disinheritance previously made.
 If the rule on disinheritance was not invoked, then the rules on unworthiness should
apply.
THE HEIR SHOULD BE CAPACITATED AT THE MOMENT OF DEATH OF THE DECEDENT:

 If however the institution, the legacy or device is subject to suspensive condition, then
there are two moments to consider: moment of death and the moment of the
fulfillment of the condition:
o Capacity to succeed must possess at both moments, otherwise, the heir, the
legacy and device does not inherit.
 Article 1039
 FOUR ASPECTS OF SUCCESSION GOVERN BY THE NATIONAL LAW of the decedent regardless
where the properties may be.
o Order of succession
o Amounts of successional rights
o Intrinsic validity of testamentary provisions
42
o Capacity to succeed (Article 1039)
ON ACCEPTANCE AND REPUDIATION:

 Every gratuitous disposition (donation, succession) needs acceptance;
 Acceptance and repudiation must be free and voluntary acts;
 Always retroacts to the moment of death;
 Acceptance may be express or implied
o In public or private document
 If an heir executes an act of ownership, he is deemed to have impliedly accepted
 Article 1050: Implied acceptance; thru the exercise of ownership
1. An heir executes any acts of ownership;
2. If there are several heirs and one of the heirs renounced his share gratuitously
in favor of one or more but not all of his co-heirs
3. If an heir renounces for a price.
 But if he renounced gratuitously and it is done indiscriminately in favor his co-heirs
and his co-heirs are the very same persons who would have acquired his vacant share
under accretion, he is deemed not to have accepted;
 One of the rights granted to the creditors under 1052; if an heir renounces, his share
in the inheritance but he has unpaid creditors, the creditors are allowed to accept up
to the extent of their respective credits.
 An heir can accept even without doing anything;
 For repudiation: thru public instrument, authentic document or filing the
corresponding manifestation or petition in settlement court;
PARTITION
 Prior to partition; co-ownership
 Partition may be done by the heirs themselves;
 The testator may make a partition under Article 1080: thru a will or thru act inter
vivos; the testator is free to revoke it before his death as long as the legitime of
compulsory heir are not impaired;
SUPREME COURT: Considered void will can be considered as a valid partition; MANG-OY
VS. COURT OF APPEALS
VOID WILLCAN BE CONSIDERED A VALID PARTITION AS LONG AS TWO ESSENTIAL CONDITIONS MUST
BE PRESENT:
1. The will must be in reality a partition; in the will, specific determinate property are
given to specific individual or heirs in such a way when the will of followed, there will
be no co-ownership;
2. The beneficiaries or heirs named in the void will must at least a legal heirs; if
they are total strangers, there is no way they can acquire ownership of the properties
given to them under the void will because the law enumerates the mode of acquiring
ownership and partition is not one of them; partition is not a mode of acquiring
ownership;
Effects of partition:
 There is mutual reciprocal warranty among the heirs with respect to title and quality
of the portions allocated to them under the partition;
43
 The action to enforce the warranty prescribes in 10 years, 10 years from the time the
cause of action accrues.
THREE SITUATIONS WHEN THERE IS NO WARRANTY (ARTICLE 1096)

1. If the testator himself who made the partition unless there is impairment of the
legitime of compulsory heirs or unless it is clear that his intention is otherwise;
2. If there is an express agreement among the heirs that there is no warranty
3. If eviction is due to cause which arise after the partition
 A partition is a contract; subject to rescission on the ground of lesion or damage;
when an heir receives a property whose value is less by at least ¼ of that that which
he is legally entitled; prescriptive period is four years from the time of the partition
was made.
Article 1104 and 1105: consequences when an heir is omitted in the partition or if
a stranger is included in the partition
 If there is one heir who was supposed to inherit but entered into a partition with a
third person, the entire partition is void because everything should go to the heir.
 If there are two or more heirs and a third person was included in the partition, the
partition is void only with respect to the share given to the third person.
 If there are several heirs and one of them is omitted and his share was instead given
to a third person, the entire partition will not necessarily rescinded in the absence of
bad faith or fraud; the portion given to the third person should be given to the omitted
heir and there will be a corresponding obligation on the part of the heirs who
participated in the partition to proportionately contribute to the share of the omitted
heir.
 Viadonon vs Court of Appeals
End of the Lecture
SUPPLIMENTARY NOTES:
DISHINHERITANCE
 Could only deprived of compulsory his legitime thru a valid disinheritance
 Valid disinheritance only thru a valid will
 The cause of the disinheritance must me stated in the will and the cause is recognized
by law.
 Must be for a cause recognized by law
 The disinheritance must be based on an existing cause
 Disinheritance cannot be made conditional upon the happening of a certain event.
o But the revocation of the disinheritance may be made conditional
 A disinheritance cannot be partial
 The disinheritance is based on the offense committed against the testator
o The testator is either offended or he is not
o (The heir will still be able to inherit in case of partial disinheritance)
 Basis of disinheritance Article 919, 920, 921
 Burden of proof—the other heirs who wanted to uphold the disinheritance
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Grounds of Disinheritance
 Attempt to the life..
 Found guilty—implies an conviction by final judgment
 Mere attempt is sufficient
 If try to kill brother, father can disinherit you (found guilty)
 Absolute pardon by the president—can still be disinherited
 Does not erase the offense against the testator
 Attempt to kill father, not prosecuted—can still be disinherited because of
maltreatment.
 Maltreatment—word or deeds
 If testify…..
 If testify in a criminal case against your father and the later was acquitted by the
court because of reasonable doubt—CANNOT be disinherited
o Acquittal based on reasonable doubt means that the accusation is not entirely
groundless.
 When the child or defendant is guilty of adultery or….
o Not necessarily involved incest
 When a child refuses to support…
 Basis of Support—necessity and corresponding ability to give support
 Ground is not useless: win lotto
 Leading a dishonorable life…
 Requires the element of habituality, continuity
 Cannot be disinherited upon the testimony of a single act
 Mere conviction…with civil interdiction…provides sufficient basis for
disinheritance of a child
 The offense need not to have been committed against the testator or any close family
member.
 The offense may have been committed against a total stranger.
 Reason: civil interdiction is an accessory penalty attached to afflictive penalty—means
must have done something terribly wrong
 Having committed a serious offense, there’s seemed to appear a wide moral chasm
between the child and the parent.
 Child..by fraud, violence…
 Grounds for disinheritance of parent or ascendant
 Parent abandoned children,, lead a corrupt…
 Abandonment—applies to male and female member of the family, child and
grandchildren
 Inducement to lead a corrupt, against virtue—only against female
 Mere attempt of the parent against life of the other parent
o Give right to disinheritance of the parent
o Unless there’s a reconciliation
o Cannot be more popish than the pope
o Mother forgive father, you can no longer disinherit you father
 If however, the father was convicted, Dean submits that you can still disinherit you
father despite reconciliation between father and mother.
 Not on the basis of number 8 of article 920 but on the basis of number 2.
 Unless there has between the father and yourself: general rule of 922 will apply.
45
 Effect of reconciliation—deprive the offended the right to disinherit and those of
already previously made are ineffectual.
When there is reconciliation—more than mere pardon
 The pardon is extended to the offender and the latter accepts the pardon
 There is restoration of the former relations of the parties
Ground for disinheriting a spouse
 Spouse give cause for legal separation
 Article 55 of the Family code, alcoholism, repeated physical violence, grossly abusive
conduct
 Article 923—children of the disinherited heir will be able to receive the legitime.
Father must have been done something wrong. The child of the disinherited heir, to
be fair, must still receive the legitime.
 Double jeopardy if not allowed to inherit: unfortunate to have a bad father and no
legitime
 If an heir is imperfectly yet validly disinherited—usual answer, entitled to get his
legitime
o May even get more than his legitime—when the testator did not validly
disposed of his free portion
o The imperfect disinheritance heir will get not just his legitime but his entire
intestate share.
 Example X has 4 legitimate children (26:05)
 Imperfectly disinherited D, C preterited
 120 thousand pesos: D will get legitime and share with ABC by way of intestacy each
will get 30K
 IF: D was imperfectly disinherited (no cause specified), entire share to ABC; no
preterition—D will get only his legitime: ABCD—legitime 15K; 60 Free portion—will go
to ABC only: total: ABC = 30 K, D =15K
 IF D validly disinherited: will not get nothing
 Supposed D has children—his legitime will go to his children under article 923
LEGACY and DEVISES

 Can give a legacy or device even of the testator is not the owner as long as he knows
that he does not own them
 If he erroneously knew that he owns them—legacy or device void
 Unless he subsequently acquire them by whatever title
 Subsequent acquisition cure the defect
 Cannot give something that belong to the recipient
 Even if the legatee or device subsequently alienates the thing
 Unless the thing was alienate it to the testator
o Subsequent acquisition, clear intention of validating the legacy or device
 Device house own by others, valid device—implicit order to the estate to acquire it; if
cannot get—will be given the value of the property
 One half interest house and lot—give the entire property—valid device—covers the
entire property—implied order to get the other one half
 But if before death, co-ownership was terminated—agreement with the other owner
that the entire property will belong to that owner—owner will pay the value part of
owned by the testator—testator died—property belong now to the owner—valid
46
device—yes—with respect to the one half original belong to the owner—NO VALID
device with respect to the part formerly belong to the testator due to revocation thru
alienation.
 Given by way of device—house, currently own by Mr. O. You did not know about the
will, but you bought it—your entitled to reimbursement; but if the property was
donated to you—no reimbursement because it was given thru gratuitous title
 If the property given is pledge/mortgaged to secure recoverable debt, regardless
whether the P/M was executed before or after the execution of the will, the rule is the
same; the estate is oblige to pay the debt and to free the property from the P/M; also
applicable in the case of anti-chresis pursuant to written agreement;
o Any other charge on property will go with it like easement.
o No obligation: Extinguishment of easement is not included
 Article 934—covers only those encumbrances instituted on the property to secure a
recoverable debt
 NEXT POINT: In case of legacy of a credit or condonation of debt:
 RULE: These legacies are rendered ineffective the moment the testator brings an
action for the recovery of the debt.
 (a) Legacy of Credit: There must be an actual or case filed; mere demand is not
sufficient.
 (b) Condonation of Debt: If bring an action—rendered ineffective
 If the testator is the debtor and he gives a legacy to his creditor—the creditor is
entitled to collect not only his credit but also the legacy
 I owe you 40K, and give you by will 30K—you will get 70K
 If say on my will I order that the legacy of 30K will be applied to your credit—you can
collect 40K: that’s the amount of you credit.
 NEXT POINT: Distinguish between the rules applicable to a Legacy of Generic
Personal Property and Device of Generic Real Property (39:57)
 If the testator gives by way of legacy generic personal property—after death, the
testator did not own of any of that kind—there’s still valid legacy—the estate will
simply acquire the thing and be given to the legatee.
 In the case of a device of generic real property—device is void if there is no real
property of that kind owned by the testator; none; Say give rice land; many land but
not rice land—device is void (article 941)
 Legacy of support/Legacy for education (41:35)
 Legacy of education last even beyond the age of majority; until the legatee is able to
finish a course provided he pursues his study diligently
 Legacy for support—last entirely during the lifetime of the legatee
 When does the legatee or devicee acquire a right with respect pure legacy and devices:
From the moment of death
 Ownership: Pure and simple and the thing belongs to testator—also at the moment of
death
 Article 911: free portion not sufficient
o Preferential legacy and devices
o All others pro-rated
 Article 950: other order of preference
o Remuneratory device or legacy
o Preferential legacy and devices
47
o Legacy for support
o Legacy for education
o Legacy and device of specific and determinate thing which form part of the
estate
o All others pro-rate
 When apply 950 and 911:
 Apply 950 when the conflict is exclusively among the legacy and the device; no
legitime to protected; no donation inter-vivos
 Apply 911: if there are legitime to be protected when there’s donation inter-vivos
 When a legacy or device considered remuneratory—if it intended to recompense
previous services which do not constitute demandable debt; libre, gratis
 NEXT POINT 957: three causes which would rendered legacy or device
ineffective
 Transformation, Alienation, Lost
 Transformation: Form—physical appearance
 Transformation: Denomination—the way by which is called
 Alienation: unless the alienation is temporary in character: right to repurchase:
 Did the testator intend to permanently part with the ownership of the thing? If yes,
forget about the legacy or device. Rendered ineffective
 LOST: if the lost took place during the lifetime of the testator, regardless of the cause
of the loss. Rendered it ineffective
 if the lost occurred after the death of the testator:
 lost due to caso fortuito without the cause of the heir--ineffective
 Lost due to the fault of the heir—can still recover the value of the property;
o Law impose solidarily liability
 LAST POINT: Article 959
 ONLY One rule: Rule of Proximity
 If say on the will—I give HL to those entitled thereto—do not apply 959
o Apply intestate succession, to those legally entitled thereto.
 If say I give my HL to my relative—apply 959
 If say I gave that property to my relatives (living: grandfather GF, uncle U 3, two
brothers AB, nephew N, wife W)
o 959 applicable
o In favor nearest in degree—grandfather 2 degrees and brothers 2 degrees
o No representation
o No preference within line
48
49

Notes in Succession Dean Navarros Lecture

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Notes in Succession Dean Navarros Lecture

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 Notes in Succession: Audio Notes

A. 05-06-10 (FIRST AUDIO)

BASIC PRINCIPLES IN SUCCESSION: PRIMACY OF THE WILL OF THE DECEDENT

TESTACY IS PREFERRED OVER INTESTACY:

BASIS OF SUCCESSION: THEORIES OF SUCCESSION

What is succession—to is a mode of acquisition by virtue of which, property, rights

SUCCESSION IS A SEPARATE DISTINCT MODE OF ACQUIRING OWNERSHIP:

IMPORTANT PROVISION: SEE ARTICLE 777

THERE CAN BE SUCCESSION OVER THE BASIS OF PRESUMPTIVE DEATH:

EXTRAORDINARY ABSENCE—involves situation under circumstances of great danger or risk

 Those on board of plane or ships that disappeared;

SUCCESSION MAYBE TESTATE, INTESTATE, OR MIXED:

HEIRS VS. LEGATEE OR DEVISEE:

A PERSON I CONSIDERED AN HEIR IS HE IS GIVEN THE ENTIRE ESTATE OF FRACTIONAL OR ALIQUOT

A PERSON IS A LEGATEE IF HE IS GIVEN, BY WILL, A SPECIFIC OR DETERMINATE ITEM OF PERSONAL

A PERSON IS A DEVICEE IF HE IS GIVEN, BY WILL, A DETERMINATE ITEM OF REAL PROPERTY:

IT IS ADVANTAGEOUS TO BE AN HEIR IN CASE OF AFTER ACQUIRED PROPERTY REFERRED TO UNDER

CERTAIN FUNDAMENTAL CHARACTERISTICS OF A WILL:

1. IT IS A STRICTLY PERSONAL ACT—is it something each one of us would have to do

TWO GENERAL TYPES OF AMBIGUITY:

Latent Ambiguity—ambiguity which is not obvious.

GIVE THE WORDS OF THE WILL THEIR ORDINARY GRAMMATICAL SENSE:

B. 05-07-10 (SECOND AUDIO)

TESTAMENTARY CAPACITY AND INTENT

BASIC REQUIREMENT BEFORE A PERSON CAN VALIDLY MAKE A WILL:

2. MUST BE OF SOUND MIND: see Article 799, second paragraph;

All wills must be in writing, no oral wills

BASIC REQUIREMENTS FOR A VALID NOTARIAL WILL:

ON PARAGRAPH 2 OF ARTICLE 805:

SUPPOSE IT IS A 5-PAGE WILL, PERFECTLY EXECUTED EXCEPT THAT ON THE PAGE

IF THE ATTESTATION CLAUSE IS IN A LANGUAGE NOT KNOWN TO THE WITNESSES, IT MUST BE

THE WILL MUST BE ACKNOWLEDGED BY A NOTARY PUBLIC:

See Article 809: Doctrine of Liberal Interpretation.

C. 05-07-10 (THIRD AUDIO)

THE DATE MAY BE PLACED ANYWHERE IN THE WILL;

THE REQUIREMENT WHEN IT COMES TO THE NUMBER OF WITNESSES IN THE PROBATE OF

Article 812 and 813

WHERE SHOULD THE TESTATOR SIGN HIS HOLOGRAPHIC WILL?

THIRD PERSON MAKING ALTERATION IN A HOLOGRAPHIC WILL:

If in a holographic will there are some provisions which contain alterations

WITNESS TO WILLS (28:39)

THE ENUMERATION OF THE PERSONS IN ARTICLE 823 IS EXCLUSIVE:

CODICIL AND INCORPORATION BY REFERENCE:

REQUISITES FOR VALID INCORPORATION BY REFERENCE: 38: 08

CAN THERE BE INCORPORATION BY REFERENCE IN A HOLOGRAPHIC WILL?

VARIOUS WAYS OF REVOKING A WILL:

I. BY OPERATION/IMPLICATION OF LAW (LPC-TU-44-50)

II. BY ANOTHER WILL EXPRESSLY REVOKING THE PREVIOUS WILL OR IF

III. PHYSICAL ACT OF REVOCATION:

BUT IF IS STILL IN THE PROCESS OF REVOKING THE WILL:

DOCTRINE OF DEPENDENT RELATIVE REVOCATION:

VDA. MOLO VS MOLO

SOMETIMES REVOCATION MAY BE PRESUMED DEPENDING ON CIRCUMSTANCES:

Article 834—the recognition of an illegitimate child is not essentially a testamentary

REPUBLICATION—IS BROUGHT ABOUT BY THE ACT OF THE TESTATOR:

REVIVAL—IS BROUGHT ABOUT BY THE LAW:

Two inconsistent will—we have then two valid wills

Allowance and Disallowance of wills

Article 854: PRETERITION:

FIDEICOMMISSARY SUBSTITUTION CANNOT IMPAIR OR BURDEN LEGITIME:

E. 05-08-10 (FIFTH AUDIO)

X instituted A as fiduciary and C, A’s son, as the fideicommissary substitute; the

IFTHERE IS IMPLIED AUTHORITY TO DISPOSE REMAINING PROPERTY GIVEN TO THE FIDUCIARY,

CRISOLOGO VS. SINGSON: