SUCCESSION entitled to exercise the right of legal

redemption as soon as another co-owner has

CHAPTER 1 sold his undivided share to a stranger. This
General Provisions right of redemption vests exclusively in
consideration of the redemptioner's quality of
Art. 774. co-owner, independently of the size of the
redemptioner's share which the law nowhere
Distinction Between Inheritance and takes into account.
Succession  When the heirship is undisputed, the
purchaser of hereditary property is not
Inheritance Succession deemed to have acquired directly from the
Decedent’s properties, Mode of acquisition decedent, because a dead man cannot
rights and obligations convey title, or from the administrator who
not extinguished by owns no part of the estate. He can only derive
death his title from the heirs, represented by the
administrator, as their trustee or legal
The object of the representative.
succession
Observations on Butte
Elements of Succession  Art. 1623: right of legal redemption should be
exercised “within 30 days from the notice in
1. Mode of Acquisition writing by the prospective vendor”
 Counting of the 30-day redemption period
Art. 721 – 6 Modes of Acquisition: OLDTIPS should have been counted from when Angela
1) Occupation Butte actually received the written notice of
2) Law Marie Garnier on 19 December 1958
3) Donation  Angela Butte exercised the right of
4) Tradition redemption on 15 January 1959. Clearly the
5) Intellectual creation redemption period had not yet expired
6) Prescription
7) Succession b. Transmission of Rights

Types:  Rights are either personal

1) Original – no previous owner (occupation
+ intellectual creation)
2) Derivative – has a previous owner who
transmits title to a transferee (law,
donation, succession, tradition,
prescription)
2. Transmission of an Inheritance
a. Transmission of Property – death
extinguishes juridical capacity,
hence dominion over his property
ends
i. Inheritance = assets and liabilities of a
person at the time of his death
ii. Without succession, assets would be
res nullius hence the necessity of
transmitting inheritance to heirs
Butte v. Manuel Uy& Sons Inc
 The rights to the succession of a deceased
person are transmitted to his heirs from the
moment of his death, and the right of
succession includes all property rights and
obligations that survive the decedent.
 A co-owner of an undivided share is
necessarily a co-owner of the whole.
Therefore, any one of the heirs of an
undivided estate, as such co-owner, becomes
(intransmissible) or transmissible.
 Ex. of personal right: right to hold public
office
 Ex. of transmissible right: contractual
rights, upon death of a buyer of a parcel of
land on installment basis, his rights and
interests over the property are transferred
to his heirs.
National Housing Authority v.
Almeida
The initial applicant’s death would transfer all her
property, rights and obligations to the estate
including whatever interest she has or may have
had over the disputed properties over which she
had been granted the right to buy—to the extent
of the interest that the original owner had over
the property, the same should go to her estate.
Verdad v. CA
 Private respondent, even if a mere relative by
affinity, has a right to the property in her
capacity as a legal heir of her husband, part
of whose estate is a share in his mother’s
inheritance.
 David Rosales, became a co-owner of his
mother’s estate upon the death of the latter,
who later upon his death, passed on to his
 widow, private respondent, his own estate
including his undivided interest over the
estate of his mother.
 “ART. 995. In the absence of legitimate
descendants and ascendants, and illegitimate
children and their descendants, whether
legitimate or illegitimate, the surviving spouse
shall inherit the entire estate, without
prejudice to the rights of brothers and sisters,
nephews and nieces, should there be any,
under article 1001. “Should brothers and
sisters or their children survive with the widow
or widower, the latter shall be entitled to one-
half of the inheritance and the brothers and
sisters or their children to the other half.”
Socorro and herein private respondents, along
with the co-heirs of David Rosales, thereupon
became co-owners of the property that
originally descended from Macaria.
c. Transmission of Obligations
 GR: Death of the obligor does not
extinguish his contractual obligations (Art.
1311)
 Art. 774 – successions transfers not only
rights but also obligations however limits
the liability of the heirs for the debts of the
decedent to the value of the inheritance
 “obligation” includes contingent liabilities
Estate of Hemady v. Luzon Surety
Co. Inc
 The most common example of the contingent
claim is that which arises when a person is
bound as surety or guarantor for a principal
who is insolvent or dead
 The binding effect of contracts upon the heirs
of the deceased party is not altered by the
provision in the Rules of Court that money
debts of a deceased must be liquidated and
paid from his estate before the residue is
distributed among said heirs (Rule 89). The
reason is that whatever payment is thus made
from the estate is ultimately a payment by
the heirs and distributees, since the amount
of the paid claim in fact diminishes or reduces
the shares that the heirs would have been
entitled to receive. The general rule,
therefore, is that a party’s contractual rights
and obligations are transmissible to the
successors.
 A solidary guarantor’s liability is not
extinguished by his death, and that in such
event Luzon Surety has the right to file
against the estate a contingent claim for
reimbursement
d. Transmission to the Heirs of the
Estate
 Before inheritance can be distributed to
the heirs, procedures must be completed:
o Payment of outstanding debts
o Estate tax
o Collation
o Final determination of ownership of
contested property
 According to NHA: the estate of a
decedent is a juridical person
Limjoco v Intestate Estate of
Fragante
Within the philosophy of the present legal system
and within the framework of the constitution, the
estate of P. O. F. should be considered an artificial
or juridical person for the purposes of the
settlement and distribution of his estate which, of
course, include the exercise during the judicial
administration thereof of those rights and the
fulfillment of those obligations of his which
survived after his death. One of those rights was
the one involved in his pending application before
the Public Service Commission in the instant
case, consisting in the prosecution of said
application to its final conclusion. An injustice
would ensue from the opposite course.
If by legal fiction the personality of P. O. F. is
considered extended so that any debts or
obligations left by, and surviving, him may be
paid, and any surviving rights may be exercised
for the benefit of his creditors and heirs,
respectively, there is no sound and cogent reason
for denying the application of the same fiction to
his citizenship, and for not considering it as
likewise extended for the purposes of the
aforesaid unfinished proceeding before the Public
Service Commission.
The Limjoco, Billings and NHA
Rules discussed
1) 2 types of persons:
a. natural
b. Artificial
i. Collection or succession of natural
persons forming a corporation
ii. Collection of property to which the law
attributes the capacity of having rights
and duties
2) In Billings, Estate of Morgan must be
considered a juridical entity since no one
could be prosecuted for forgery
3) Billings: estate of deceased person is a
juridical entity for limited purposes (justice for
forger)
4) Billings used in Limjoco – estate of a deceased
person is considered a person to avoid
injustice or prejudice resulting from the
impossibility of exercising such legal rights
and fulfilling such legal obligations
5) Neither did Billings nor Limjoco establish a  Succession of Faustina’s estate was
general rule: they created an exception. NHA opened at death, probate had nothing to
“to the extent of the interest that the original do with the opening of succession
owner had over the property, the same should  Probate – judicial proceeding that the law
go to the estate prescribes solely for the purpose of
determining:
3. The Object of Succession is the i. Testamentary capacity of the testator
Inheritance ii. Compliance with formalities prescribed
a. Future Property vs. Future by law
Inheritance iii. Identification of the purported will as
that of the testator
Future Property Future Inheritance iv. That the testator freely and voluntarily
Anything which a Contingent executed the will
person does not own universality or 2) The object of the contract forms part of the
at present but which complex of rights and inheritance
the person may obligations that are  9, 000 m2 property formed part of
acquire or proposes to passed to the heirs Faustina’s estate however, upon her
acquire in the future upon death of the demise the property became part of
grantor Faustina’s actual inheritance
Can be the object of a Cannot be the object 3) The promissor has, with respect to the object,
contract of a contract an expectancy of a right which is purely
hereditary in nature
b. Contracts Involving Future  Benjamin inherited property from Faustina
Inheritance in 1941
Blas v. Santos  Domingo and his mother inherited from
Benjamin in 1960
When agreement to transmit one-half of conjugal  Domingo sold the property in 1975 – his
share is a contract as to future inheritance.—-A right was not a mere expectancy but had
document signed by the testator's wife, promising inherited at least part of it from his father
that she would respect and obey all the
dispositions in the latter's will, and that she would 4. Death Triggers Succession
hold one-half of her share in the conjugal assets Death may be:
in trust for the heirs and legatees of her husband a) Actual
in his will, with the obligation of conveying the b) Presumed
same to such of his heirs or legatees as she might i. Ordinary
choose in her last will and testament, is a ii. Extraordinary
compromise and at the same time a contract with
sufficient cause or consideration. Circumstance Length of time Date of Death
(390 and 391) disappeared
Future inheritance is any property or right, not .in absentee 10 years Occurred at
existence or capable of determination at the time the end of the
of the contract, that a person may in the future 10 years from
acquire by succession. the
disappearanc
De Belen vda. De Cabalu v.Tabu e
If 75 years old 5 years Occurred at
Under Article 1347 of the Civil Code, “No contract at the time of the end of the
may be entered into upon future disappearanc 5 years from
inheritanceexcept in cases expressly authorized e the
by law.” Paragraph 2 of Article 1347, disappearanc
characterizes a contract entered into upon future e
inheritance as void. The law applies when the Person on 4 years Occurred on
following requisites concur: (1) the succession board a the date of
has not yet been opened; (2) the object of the missing the
contract forms part of the inheritance; and (3) the vessel, disappearanc
promissor has, with respect to the object, an airplane e of the
expectancy of a right which is purely hereditary in disappeared absentee,
nature. Person in although
armed forces presumption
Observations on vda de Cabalu taken part in only arises at
1) The succession has not yet been opened war
Person in the end of the effectivity causa
danger of 4-yr period As to the Testamentary, intestate or
death under existence of mixed
other the will
circumstances As to the Compulsory = succession of
transferees compulsory heirs to the
a. Succession Inter Vivos legitime
 Succession triggered by the annulment or Voluntary = succession of
declaration of nullity of marriage voluntary heirs, legatees and
 Art. 50. Final judgment shall provide for. . devisees to the disposable free
.delivery of their presumptive legitimes (to portion
common children) As to the Universal = entire estate
 Art. 51. Presumptive legitimes are computed extent Particular = specific property or
as of the date of final judgment of the trial portion
court
 Art. 52. Record of judgment of Art. 775
nullity/annulment and delivery of legitimes in Art. 782
the civil registry/ registries of
propertiesotherwise it shall not affect third Definitions of Heir, Legatee and Devisee
persons 1. Heir – person called to the succession in
 Art. 50 of the family code implicitly amends the testator’s will, who pursuant to the
Art. 774 such that succession may now occur terms will either receive the entirety or a
during the lifetime of a person fractional part of the inheritance
2. Legatee – person called to the succession
b. Contractual Succession in the testator’s will, who will receive
 Gratuitous disposition of future property MOVABLE property specifically identified
mortis causa made by one future spouse to by the testator
the other (or bilaterally) in the ante-nuptial 3. Devisee - person called to the succession
contract in the testator’s will, who will receive
 Art. 130 (CC). future spouses may give each IMMOVABLE property specifically identified
other as much as one-fifth of their present by the testator
property, and with respect to their future
property, only in the event of death Importance of the Distinction
 Art. 84 amended Art.130. future spouses are
expressly permitted to give donations of HEIRS LEGATEE/DEVISEE
present property to each other however, Preterition (not Preterition does not
donations of future property has two mentioning the name annul the legacy or
requisites: of the heir in a will) devise (must not be
o Donation mortis causa shall be governed annuls the institution inofficious)
by law on testamentary succession Annulment of Will still get gifts of
o The donor must comply with the institution is TOTAL movable or immovable
formalities of a will leaving nothing under property as long as
the will these do not impair
 Donations mortis causa between future
the legitime
spouses now require the execution of wills
Art. 918. Invalid Invalid disinheritance
5. Succession is Governed by the Will or disinheritance annuls does not annul the
by Law the institution of heirs devises or legacies
Succession may be governed by: insofar as it prejudices and they shall be valid
1) The rules of testamentary succession, if there the invalidly to the extent they d
is a will disinherited heir not impair the
2) The rules of intestate succession, if decedent legitime, although
died without a will, a void will or with a will gifts of movable or
that has subsequently lost its validiy immovable property
3) Combination of the rules of testate and may be reduced or
intestate succession if the decedent executed abated if total
a valid will which did not completely dispose annulment is
of the inheritance insufficient to make
whole the legitime of a
compulsory heir
Succession may be classified as: Are not given specific Given specific
As to Either inter vivos ormortis property by the movable or immovable
testator but only properties
fractional parts
Art. 776
Art. 781
The Inheritance
 Art. 781 – accruals to the hereditary estate
are liable for the payment of the outstanding
obligations of the decedent
 The inheritance of a person includes
properties, rights and obligations which are
not extinguished by his death, however,
accruals thereto, while not forming part of the
hereditary estate, are liable for the payment
of the claims of the creditors of the decedent
Exclusion to Inheritance
1. FIDEICOMMISSARY SUBSTITUTIONS
 Art 863. Testator simultaneously institute two
heirs to one and the same inheritance
 First heir receives inheritance at death of the
testator, however, must preserve and
transmit to second heir
 Property does not form part of inheritance of
the first heir
2. RESERVA TRONCAL
 Art. 891. Ascendant who inherits from his
descendant any property which the latter may
have acquired gratuitous title from another
ascendant, or a brother or sister IS OBLIGED
TO RESERVE SUCH PROPERTY for the BENEFIT
OF RELATIVES WITHIN THIRD DEGREE and
WHO BELONG TO THE LINE FROM WHICH THE
PROPERTY CAME
3. MATTER OF VLID ALEATORY CONTRACTS
 Contracts where by two or more persons pool
their resources in a joint investment and
stipulate that the survivor among them shall
take absolute title over the entirety of the
investment upon the death of one of them
Macam v. Gatmaitan and Gatmaitan
Exhibit C is an aleatory contract whereby,
according to article 1790 of the Civil Code, one of
the parties or both reciprocally bind themselves
to give or do something as an equivalent for that
which the other party is to give or do in case of
the occurrence of an event which is uncertain or
will happen at an indeterminate time.
Leonarda and Juana reciprocally assigned their
respective property to one another conditioned
upon who might die first, the time of death
determining the event upon which the acquisition
of such right by the one or the other depended.
Rivera v Peoples’ Bank and Trust
Company
Is the survivorship agreement valid? Prima facie,
we think it is valid. It is an aleatory contract
supported by law a lawful consideration — the
mutual agreement of the joint depositors
permitting either of them to withdraw the whole
deposit during their lifetime, and transferring the
balance to the survivor upon the death of one of
them.
But although the survivorship agreement is per
se not contrary to law, its operation or effect may
be violative of the law. For instance, if it be shown
in a given case that such agreement is a mere
cloak to hide an inofficiousdonation, to transfer
property in fraud of creditors, or to defeat the
legitime of a forced heir, it may be assailed and
annulled upon such grounds. No such vice has
been imputed and established against the
agreement involved in the case.
Vitug vs. CA
 In this case, the monies subject of savings
account No. 35342-038 were in the nature of
conjugal funds. There is no showing that the
funds exclusively belonged to one party, and
hence it must be presumed to be conjugal,
having been acquired during the existence of
the marita. relations.
 Neither is the survivorship agreement a
donation inter vivos, for obvious reasons,
because it was to take effect after the death
of one party. Secondly, it is not a donation
between the spouses because it involved no
conveyance of a spouse's own properties to
the other.
 The validity of the contract seems debatable
by reason of its "survivor-take-all" feature, but
in reality, that contract imposed a mere
obligation with a term, the term being death.
Such agreements are permitted by the Civil
Code.
 The fulfillment of an aleatory contract
depends on either the happening of an event
which is (1) "uncertain," (2) "which is to occur
at an indeterminate time."
 Survivorship agreements are valid and
binding, not only between the parties
but also their respective successors
provided that the operation of such
agreements do not violate the law such as:
(1) When used to conceal and inofficious
donation
(2) When used to transfer property in fraud of
creditors
(3) When used to defeat the legitime of
compulsory heirs
Art. 777
Time and Death of the Decedent
 Ownership of inheritance passes to heirs
at the time of death of the decedent
 Physical delivery, however, may be
delayed by legal formalities such as:
o CPA statement on itemized assets
and deduction from estate
o Estate tax returns,
o Execution of deed of partition
o Publication requirements
 Time of death of decedent determines:
i) Law applicable to the substantive
validity of his will
ii) Composition of the decedent’s assets
and their valuation
iii) Compulsory heirs who are to succeed
the decedent and their testamentary
capacity to succeed
iv) Determination of issues relating to
preterition
v) Testamentary capacity of the testator
vi) Timeliness of acceptance or repudiation
of the inheritance and the effects
thereof
Consequences of Art. 777
1. Death, the Defining Moment
Bonilla vs. Barcena
The moment of death is the determining factor
when the heirs acquire a definite right to the
inheritance whether such right to be pure or
contingent. The right of the heirs to the property
of the deceased vests in them even before
juridical declaration of their being heirs.
2. Distribution Subject to the Existence of a
Residual Estate
Salvador v Sta. Maria
The right of the heirs to specific distributive
shares of the inheritance does not become finally
determinable until all the debts of the estate are
paid.
Final distributive shares are inchoate until death
of decedent and cannot be enforced. Residual
estate after payment of decedent’s death
determines distribution.
3. Automatic Transmission of the
Hereditary Estate
Ramirez v Baltazar
The rights to succession are automatically
transmitted to the heirs from the moment of
death of the decedent. While, as a rule, the
formal declaration or recognition to such
successional rights need judicial confirmation, the
court has protected these rights from
encroachment made or attempted before the
judicial declaration.
4. Recognition of Ownership by Reason of
Succession
GR: rights to succession are transmitted from the
moment of decedent’s death. However,
recognition of the ownership of the inheritance by
reason of succession is not self-executory in the
case of the transfer of ownership of shares of
stock of a corporation. Heirs do not automatically
become stockholders of a corporation. Art. 63 of
the Corp. Code – no transfer of shares shall be
valid until transfer is recorded in the books of the
corporation.
Puno v Puno Enterprises, Inc.
Upon the death of a shareholder, the heirs do not
automatically become stockholders of the
corporation and acquire the rights and privileges
of the deceased as shareholder of the corporation
—the stocks must be distributed first to the heirs
in estate proceedings, and the transfer of the
stocks must be recorded in the books of the
corporation; During such interim period, the heirs
stand as the equitable owners of the stocks, the
executor or administrator duly appointed by the
court being vested with the legal title to the
stock.
Reyes v. Regional Trial Court of Makati
The status of heirs as co-owners of shares of
stocks prior to the partition of the decedent’s
estate does not immediately and necessarily
make them stockholders of the corporation—
unless and until there is compliance with Section
63 of the Corporation Code on the manner of
transferring shares, the heirs do not become
registered stockholders of the corporation
Comments on Reyes
No law requires succession to be declared. The
right of an heir to inherit arises from the moment
of death of the decedent, although his right to
specific distributive is inchoate. The process of
liquidating the estate does not reduce the
successional rights of the heir to a mere
expectancy. The “right to inherit” is not
synonymous to “the right to specific distributive
share”.
5. Disposal of Hereditary Share of
Inheritance
There is no legal bar to a successor to dispose of
the hereditary share immediately after such
death, even if the actual extent of such share is
not determined until the subsequent liquidation
of the estate. Effect of such alienation is deemed
limited to what is ultimately adjudicated to the
vendor heir.
De Borja v. Vda. De Borja
As owner of an undivided hereditary share, an
heir can dispose of it in favor of anyone. Such
alienation is recognized by Art. 1088 of the Civil
Code, “Should any of the heirs sell his hereditary
rights to a stranger before the partition, any or all
of the co-heirs may be subrogated to the rights of
the purchaser by reimbursing him for the price of
the sale. . . “
6. Sale of an Undivided Share of the
Inheritance
An heir may only sell his ideal or undivided share
in the estate, not any specific property therein.
An heir can only alienate such portion of the
estate that may ultimately be allotted to him in
the division of the estate by the probate or
intestate court after final adjudication, after all
debts have been paid or the devisees or legatees
shall have been given their shares.
Lee v. RTC of Quezon City (GR 146006)
Where the appropriation of estate properties is
invalid, the subsequent sale thereof to a third
party without court approval is likewise
invalid.The sale of the property of the estate by
an administrator without the order of the probate
court is void and passes no title to the purchaser,
and any unauthorized disposition of estate
property can be annulled by the probate court,
there being no need for a separate action to
annul the unauthorized disposition.
7. Court Approval for Disposition of the
Hereditary Estate
A stipulation requiring court approval of any
disposition does not affect the validity and the
effectivity of the sale as regards the selling heirs.
Heirs of Sps. Sandejas v. Lina (141634)
Court approval is required in any disposition of
the decedent’s estate, but reference to judicial
approval, cannot adversely affect the substantive
rights of heirs to dispose of their own pro indiviso
shares in the co-heirship or co-ownership. Where
other heirs did not consent to the sale of their
ideal shares in the inherited property, the sale will
only be limited to the pro indiviso share of the
selling heir.
8. Co-ownership during the Period of
Indivision
Co-owner has no right to sell or alienate a specific
or determinate part of the thing owned in
common. The sale is not void but is valid on with
respect to the aliquot share of the selling co-
owner. It is subject to the results of the partition.
Santos v. Lumbao (169129)
Even while an estate remains undivided, co-
owners have each full ownership of their
respective aliquots or undivided shares and may
therefore alienate, assign or mortgage them, and,
in any case, the mere fact that the deed purports
to transfer a concrete portion does not per se
render the sale void.
Heirs are bound by contracts entered into by their
predecessors-in-interest—whatever rights and
obligations of the decedent have over a property
are transmitted to the heirs by way of succession,
a mode of acquiring the property, rights and
obligations of the decedent to the extent of the
value of the inheritance of the heirs
Summary of Jurisprudence on Art. 777
(1) Hereditary estate passes in ownership to the
heirs from the moment of decedent’s death.
Heirs become co-owners
(2) Right of heirs to specific distributive shares of
the inheritance does not become final until all
debts of the estate are paid
(3) Pending partition, each co-heir may convey
the whole or a portion of his undivided
interest in the inheritance. If co-heir sells his
share, other co-heirs are entitled to exercise
the right of redemption under Art. 1088.
(4) Pending partition, co-heirs may enter into a
compromise agreement even if such
compromise alters the distribution of the
estate as prescribed by the will of the testator
(5) Court approval is required in any disposition of
specific property forming part of the
decedent’s estate. Heirs can sell their rights,
interest or participation in the estate under
administration
(6) Upon death of shareholder, heirs do not
automatically become stockholders of the
corporation but is merely an equitable owner
of the stocks, pending the distribution and
registration of the transfer of shares.
Art. 778
Art. 779.
Art. 780.
Types of Succession
1. TESTAMENTARY – testator dies with a
valid and operative will which must be
valid in two ways:
a. Extrinsic – compliance with the formal
requirements of a will
b. Intrinsic – substantive validity of
testator’s dispositions contained
therein
2. LEGAL OR INTESTATE – without valid
and operative will, distribution of estate is
controlled by law
3. MIXED:
a. Will does not distribute the entire
estate or there is no provision as to
 how the residual property is to be
disposed
b. Provisions are not considered
testamentary/property dispositions
i. Ex. provision of the will relates to the
appointment of an administrator,
payment of debts or
acknowledgment of an illegitimate
child
c. Beneficiaries are incapable to accept or
enter into inheritance and there being
no substitution, representation or
accretion
Rodriguez, et al. v Borja, et al. (L-21993)
Intestacy is subsidiary to testacy.—Intestate
succession is only subsidiary or subordinate to
the testate, since intestacy takes place only in
the absence of a valid operative will. Only after a
final decision as to the nullity of testate
succession could an intestate succession be
instituted. The institution of intestacy
proceedings in one court may not thus proceed
while the probate of the purported will of the
deceased is pending in another court.
CHAPTER 2
TESTAMENTARY SUCCESSION
Section 1 – Wills
Subsection 1 – Wills in General
Art. 783.
Characteristics of a Will
1. Statutory Right– conferred solely by law, not
a natural right
2. Unilateral Act – unlike contracts, consent of
the beneficiaries to the execution of the will is
unnecessary; beneficiaries merely accept of
repudiate
3. Formal Act – failure to comply with statutory
requirements results in nullity of the will. Form
is either:
a. Notarial Will (Art. 804-806)
b. Holographic Will (Art. 810)
4. Personal Act – exercise of testator’s
judgment or discretion in determining the
testamentary dispositions is NON-DELEGABLE;
mechanical act of drafting and finalizing will
may be delegated to third party, agent or
attorney
5. Effective Mortis Causa–will becomes
effective after testator’s death; exception:
payment of presumptive legitime in FC Art. 50
6. Essentially Ambulatory – testator may
revoke his will at any time before death, any
waiver or restriction of this right is void;
testator must have testamentary capacity at
the time of revocation (ex. cannot be insane)
7. Free Act – Notarial will:notary public
knowledges that will is free and voluntary;
Holographic will: no need for notary public
however, Art. 839 denies probate if:
a. procured by undue pressure by
beneficiary or other
b. signature of testator was procured by
fraud
c. testator acted by mistake in signing
the will
Limitations on the Power to Control
Limitations of testator in executing a will are:
1. Legitime – part of testator’s property which
he cannot dispose of because the law has
reserved it for certain heirs who are called
compulsory heirs; may be deprived through
disinheritance
2. Reservable Property– Art. 891. Ascendant
who inherits from hid descendant any
property which the latter obtained by
gratuitous title from another ascendant,
brother or sister must reserve such for the
benefit of relatives within the third degree and
who belong to the line from which said
property came
3. Mistress – forbidden by public policy
4. Fideicommissary Substitution – 2 heirs,
related to each other within the first degree of
consanguinity
5. Condition Not to Marry – absolute condition
not to contract a first marriage is void and
deemed not written; subsequent marriage
valid only if imposed on widow or widower by
deceased spouse or ascendants/descendants
6. DispocicionCaptatoria–condition that heir
shall make some provision in his will in favor
of the testator or any other person is void
7. Dispositions in Favor of Incapacitated
Persons –Art. 1027 (priest, relative of such
priest, guardian, attesting witness, physician,
others not permitted by law to inherit) and
1028 (guilty of adultery/concubinage, guilty of
the same criminal offense, public officer to
wife, Des/Asc)
Necessity of Conveyance of Property
A will must convey property over which testator
has some degree of control, otherwise the
document is not a will. A document is not a will if
its only disposition is recognition of an illegitimate
child. However, it is a will if it relates to the
disinheritance of a compulsory heir.
Seangio v. Reyes (140372-72)
For disinheritance to be valid, Article 916 of the
Civil Code requires that the same must be
effected through a will wherein the legal cause
therefor shall be specified; Maltreatment of a
parent by a child presents a sufficient cause for
the disinheritance of the latter.
A holographic will must be entirely written, dated,
and signed by the hand of the testator himself—it
is subject to no other form, and may be made in
or out of the Philippines, and need not be
witnessed.
Observations on Seangio
If SC already ruled on the extrinsic validity of the
will, why did it remand the case to the probate
court? The only thing left to do is to liquidate the
estate and distribute the proceeds.
Art. 784.
Non-Delegability of Testamentary
Discretion.
 Testamentary dispositions  discretion of
testator
 Mechanical act of preparing notarial will 
attorney
TEST OF DETERMINING TESTEMTARY CHARACTER
OF A DISPOSITION:
Does it answer the question:
(1) Who will inherit? (i.e. Nothing for Alfredo)
(2) What or how much will be inherited?
(distribute by intestacy)
Art. 785
Art. 786.
Strictly a Personal Act
If heirs, legatees or devisees are identified in the
will by name, testator may not delegate to third
person:
(1) Duration of designation of heirs, legatees
or devisees
(2) Efficacy of their designation
(3) Portions or property to be given to such
heirs, legatees or devisees
Implementation of testamentary disposition is
DELEGABLE.
Class Institution
Testator may entrust to a third person the
distribution of the property that he left by will to
such class or cause:
Art. 1030. Testamentary provisions in favor of the
poor in general . . . shall be limited to the poor
living in the domicile of the testator at the time of
his death, unless intention was otherwise.
Designation of the persons who are to be
considered as poor and the distribution of the
property shall be made by the person appointed
by the testator for that purpose (in lieu, executor,
justice of the peace, mayor, municipal treasurer)
Art. 787.
Prohibited Delegation– discretion to determine
whether or not a testamentary disposition would
be operative; gives person the power to
countermand his testamentary directive
Art. 789.
Defective Testamentary Dispositions
(1) Imperfect description of a property to be
given to a particular recipient
(2) Imperfect description of a person who is to
receive the property
(3) Uncertainty as the face of the will on the
application of any of its provisions
Classification of Defects
1. Patent Defects– apparent merely by
reading it
“To some of my brothers I bequeath one-
half of my estate”
2. Latent Defects – ambiguity appears
when disposition is examined in light of
extrinsic facts
“To my friend Joe” however testator has
two friends named Joe
Remedial Measures – determine the true
intention of the testator by
1. Examine the will in its entirety
2. Use extrinsic evidence (except oral
declaration of the testator) either
testimonial or domentary
Art. 788
Rationale – rules of interpretation must be used
to ensure that the testamentary directive is given
effect; exercise of control should be respected
Art. 790. Ordinary and Technical Sense
De Roma v. CA (L-46903)
Fact that a donation is irrevocable does not
necessarily exempt the donated properties from
collation as required under Art. 1061, Civil Code;
Given the precise language of the deed of
donation the decedent-donor would have
included an express prohibition to collate if that
had been the donor's intention.Intention to
exempt donated properties from collation should
be expressed plainly and unequivocally as an
exception to the general rule in Art. 1062, Civil
Code; Absent such a clear indication of that
intention, the rule not the exception should be
applied.
Art. 791
Dizon-Rivera v. Dizon (L-24561)
Thetestator's wishes and intention constitute the
first and principal law in the matter of
testaments, and to paraphrase an early decision
of the Supreme Court of Spain, when expressed
clearly and precisely in his last will amount to the
only law whose mandate must imperatively be
faithfully obeyed and complied with by his
executors, heirs and devisees and legatees, and
neither these interested parties nor the courts
may substitute their own criterion for the
testator's wiIl.
The repeated use of the words "I bequeath" in the
testamentary dispositions acquire no legal
significance, such as to convert the same into
devises to be taken solely from the free one-half
disposable portion of the estate where the
testator's intent that his testamentary
dispositions were by way of adjudications to the
beneficiaries as heirs and not as mere devisees,
is clear and that said dispositions were borne out
by the use of phrase "my heirs in this testament"
referring to the "devisees."
Vda de. Villafolor v. Juico (L-15737)
The intention and wishes of the testator, when
clearly expressed in his will, constitute the fixed
law of interpretation, and all questions raised at
the trial, relative to its execution and fulfillment,
must be settled in accordance therewith,
following the plain and literal meaning of the
testator's words, unless it clearly appears that his
intention was otherwise.
Observations on vda. De Villaflor
Villaflor was a “reversionary legatee” such that
legacy did not give her ownership over properties
but merely a lifetime usufruct. Upon death of
decedent, usufruct was extinguished.
Art. 792.
Separability Clause – nullity of one of the
testamentary dispositions does not invalidate the
others, unless the valid dispositions depend upon
the void disposition.
Balanay, Jr. v. Martinez (L-39247)
The rule is that “the invalidity of one of several
dispositions contained in a will does not result in
the invalidity of the other dispositions, unless it is
to be presumed that the testator would not have
made such other dispositions if the first invalid
disposition had not been made”
Art. 793
Purpose of the Law–permits a testator to
dispose of property acquired after the making of
a will without having to execute a new will;
minimizes partial intestacy; testator simply
indicates an intention to dispose all properties
acquired after the making of the will and how
Distinguished from the “Future Property” in Art.
781
781 793
Accruals to the Property acquired by
inheritance after the testator after
death of the testators execution of the will
Belong to the heirs by
right of accession
To pay for the
testator’s debts
General Rule and Exceptions
GR: a will can only distribute properties owned by
testator at the time of the execution of the will
Exc: 793: testator may dispose future property if
he indicates so (“I hereby bequeath all other
property which I have not otherwise disposed in
this will, as well as all property which I may in the
future acquire by any title, to X and Y in equal
shares.”)
Art. 794.
General Rule – every legacy or devise is
presumed to convey to the beneficiary the
entirety of the testator’s interest in the specific
property subject matter thereof (if entire, then
entire, if aliquot , then aliquot only); no one can
give what he does not have
Grant of Less then Full Interest – testator
may grant to one a naked title and to another
usufruct; may grant one-half pro indiviso interest
or bequeath a car to two persons jointly
Grant of Greater Interest – testator may
convey interest in property that exceeds his
rights thereto; may be that 3rd party interest be
acquired so as to give the thing in its entirety to
the beneficiary
Art. 795. Formal Validity of a Will
Two kinds of validity of a will: formal and
substantive
Rules as to Formal Requirements
1. As to Time – formal validity of a will is
governed by the law in effect at the time
of its execution; even if the formal
requirements are amended subsequent to
its execution (for substantive – law at the
time of death of testator)
2. As to Place – testator may choose the
law that will govern the formal validity of
his will; Filipino testator abroad may use
foreign law or Philippine law; likewise with
foreign national in the Philippines
Conflict Rules as to Formal Requirements
Choice of Law as to Place of Execution
Filipino a) Philippine law
Testator b) Law of country where will is
executed
c) Any form established by the
law of the country in which
he is; may be probated in
the Phil
Resident and a) Law of country where will is
Non-Resident executed
Alien b) Will of an alien executed imbecility disqualify a person from executing a
Testator abroad is effective in the Phil will
if made with formalities
prescribed by the law of the Art. 799.
place where he resides, Soundness of Mind
observed in his country, or GUIDELINES TO DETERMINE WHETHER TESTATOR
in conformity with Phil law IS OF SOUND MIND:
(1) Should know the nature of the estate to be
disposed
Conflict Rules as to Substantive Requirements (2) Should know the proper objects of his
Choice of Law as to Substantive Validity bounty
As to Time Law in force at time of death of (3) Conscious of the nature of the
the testator testamentary act
As to Place Art. 16 – national law of the
person whose succession is De Guzman v. Intestate Estate of Francisco
under consideration, whatever Benitez (61167-68)
the nature of the property, Benitez was confined in the National mental
regardless of the country where Hospital for varying periods of time before
property is found executing his will. Trial court ruled that he was
not of sound mind at the time he executed his
will.
Bellis v. Bellis (L-23678)
The doctrine of renvoi is usually pertinent where
Baltazar v. Laxa (174489)
the decedent is a national of one country and is
domiciled in another. It does not apply to a case
Art. 800
where the decedent was a citizen of Texas and
Presumption of Sanity – may be controverted
was domiciled therein at the time of his death. So
by competent evidence; burden of proof with
that, even assuming that Texas has a conflicts
person opposing probate
rule providing that the domiciliary law should
govern successional rights, the same would not
Exceptions to the Presumption of Sanity
result in a reference back (renvoi) to Philippine
(1) One month or less, before the execution of
law, but it would still refer to Texas law.
the will, testator was publicly known to be
Nonetheless, if Texas has a conflicts rule,
insane
adopting the rule of lex rei sitae, which calls for
(2) Prior judicial declaration of testator’s insanity,
the application of the law of the place where the
unless such declaration has been set aside
properties are situated, renvoi would arise, where
prior to execution of the will
the properties involved are found in the
(3) Prior judicial appointment of a guardian over
Philippines.
the person/property of a person by reason of
having been found to be insane
Subsection 2 – Testamentary Capacity and
Intent
To maintain validity of the will in these
circumstance, one must prove that testator was
Art. 796.
i. In a lucid interval
Art. 797.
ii. Regained his sanity
Art. 798.
Elements of Testamentary Capacity
Testator:
Art. 801
(1) Is a natural person
Determination of Testamentary Capacity – at
(2) Is at least 18 yrs of age at the time of the
the time of the execution of the will
execution of the will
(3) Must be of sound mind at the time of the
Art. 802. Married woman without consent of
execution of the will
husband
(4) Is not expressly prohibited by law from
Art. 803. Married woman – sep. property
making a will
and conj property
Age Requirement– to ensure that the testator
Subsection 3 – Forms of Wills
possesses sufficient discretion, emotional and
intellectual maturity
Art. 804
Art. 805
Capacity to Act – power of a person to perform
Art. 806
an act with legal effect; not an element of
Forms of Wills
testamentary capacity; minority insanity and
1. Notarial (attested)
2. Holographic (handwritten
no other form is recognized
The Purpose of the Formalities
“to close the door on bad faith and fraud, to avoid
substitution of wills and testaments, and to
guarantee their truth and authenticity.”
 A testator can no longer confirm or explain his
testamentary dispositions, hence strict
conformity is required for distribution of the
estate to be executed according to his intent
Formal Requisites of a Notarial Will
1. A will must be in writing
 To evidence compliance with the
formalities prescribed by law
 To serve as exclusive proof of its contents,
avoiding reliance on the memory of man
Must likewise be presented to the court during
probate so that:
 A visual inspection to determine
compliance with formalities
 After verifying compliance, opportunity to
examine the testamentary dispositions
2. A will must be written in a language or
dialect known to the testator
 to ensure that testator understand
contents of his will, protection against
fraud
a. Circumstances Indicating lack of
knowledge of the language
Suroza v. Honrado (AM 2026)
Testatrix did not know English, yet the will was
written in English and was affixed with her thumb
mark. In the opening paragraph of the will, it was
stated that English was a language “understood
and known” to the testatrix. In its concluding
paragraph it stated that it was read to the
textatrix “and translated into Pilipino language”
b. Circumstances indicating knowledge of
the language
Reyes v. Vda de Vidal (L-2867)
Deceased was a mestiza Española married to a
Spaniard, made several trips to Spain. Letters of
deceased were written in Spanish.
c. Presumption of knowledge of the
language – where it is proved that
testator resides in a particular locality, a
presumption arises that he knows the
language or dialect spoken therein
3. The testator must sign at the end of the
will
a. Purpose – indicate the logical end of the
testamentary dispositions
o additional disposition appearing after the
signature of the testator compromises the
genuineness of the will
b. Bottom signature does not apply to the
witnesses – they may sign at any other
place to identify the pages of the will and
to prevent fraudulent substitution
Taboada v. Rosal (L-36033)
The signatures of the instrumental witnesses on
the left margin of the first page of the will
attested not only to the genuineness of the
signature of the testatrix but also the due
execution of the will as embodied in the
attestation clause.
It must be noted that the law uses the
terms attestedand subscribed. Attestation
consists in witnessing the testator’s execution of
the will in order to see and take note mentally
that those things are done which the statute
requires for the execution of a will and that the
signature of the testator exists as a fact. On the
other hand, subscription is the signing of the
witnesses’ names upon the same paper for the
purpose of identification of such paper as the will
which was executed by the testator.
c. Sufficiency of the customary signature of
the testator – may affix his initials if that
is his customary signature, may be thumb
mark, if an X must be proved that this is
his usual signature
d. Facsimile signature is not acceptable –
risk of unauthorized stamping
e. Requisites for third person signing on
behalf of the testator
i. Testator makes an express directive to
the third person
ii. Third person should write the name of
the testator and not his own name
iii. Third person writes the testator’s name
in the will in the presence of the
testator and of each of the
instrumental witnesses
(hence, an illiterate person, may execute
a notarial will)
Balonan v. Abellana, et al. (L-
15153)
The name of testatrix AnacletaAbellana, does not
appear under the will by said Abellana or by Dr.
Juan Abello, hence failure to comply with
requirement that testator must himself sign the
will or some other in his presence with her
express direction
4. A will must be attested and subscribed
by three credible witnesses
Functions of witnesses:
 i. Attesting the due execution of the will
- Declare compliance with formalities
which law requires to be confirmed in
the attestation clause
ii. Subscribing thereto
- Signing of witnesses’ names upon the
same paper for identification of such
as the will executed by the testator
b. Effect of a missing signature – witnesses
should sign the will ON THE LEFT MARGIN
OF EVERY PAGE except the last
- if one page was missed but the other
pages signed, the formal defect is
cured and will be admitted to probate
Icasiano v. Icasiano (L-18979)
Failure of witness to sign one page is cured by
complete set of signatures in the duplicate copy.
c. Credible witness – credible is “worthy of
belief”; cannot be legislated
d. Competent witness– Art. 820 enumerates
qualifications of a witness to a notarial
will, 821 enumerates disqualifications
5. The testator and witnesses must sign in
the presence of one another
Nera v. Rimando (5971)
The position of testator and of the witnesses to a
will, at the moment of the subscription by each,
must be such that they may see each other sign
if they choose to do so.The question whether the
testator and the subscribing witnesses to an
alleged will sign the instrument in the presence of
each other does not depend upon proof of the
fact that their eyes were actually cast upon the
paper at the moment of its subscription by each
of them, but whether at that moment existing
conditions and the position of the parties, with
relation to each other, were such that by merely
casting their eyes in the proper direction they
could have seen each other sign.
6. The testator and witnesses must sign on
the left margin of each page
 Fully met when instrumental witnesses signed
at the left margin of the sole page which
contains all the testamentary dispositions
to prevent substitution of pages
7. Each page of the will must be numbered
correlatively
 Safeguards against possible insertion
 Location of the page number is not material
for as long as there is pagination
 Pagination need not be in letters and may be
in Arabic numerals
 If the first page is not numbered, omission
does not necessarily invalidate the will
Lopez v Liboro (L-1787)
The purpose of the law in prescribing the paging
of wills is to guard against fraud, and to afford
means of preventing the substitution or of
detecting the loss of any of its pages. The
omission to put a page number on a sheet, if that
be necessary, may be supplied by other forms of
identification more trustworthy than the
conventional numeral words or characters.
8. The will must contain in an attestation
clause
Attestation clause = part of a will where
witnesses certify:
1) The number of pages used upon which the
will was written
2) That the testator signed the will or caused
another to write his name by his express
direction and in his presence and present
of the witnesses
3) That the testator and the witness signed
the will in the presence of one another
a. Attestation clause fails to state the
number of pages – not necessarily a fatal
defect if the number of pages is readily
discernible
Tabaoada v. Rosal (L-36033)
b. Error in indicating the actual number of
pages – not necessarily a fatal error
Samaniego-Celeda v. Abena (145545) -
While it is true that the attestation clause
is not a part of the will, the court, after
examining the totality of the will, is of the
considered opinion that error in the
number of pages of the will as stated in
the attestation clause is not material to
invalidate the subject will.
 If notarial acknowledgment indicates pages
different from number of pages in actuality,
Court disallowed probate
Lopez v. Lopez(189984) - The law is clear
that the attestation must state the
number of pages used upon which the will
is written. The purpose of the law is to
safeguard against possible interpolation
or omission of one or some of its pages
and prevent any increase or decrease in
the pages.
c. Attestation clause fails to state the
number of witnesses – not a fatal error
Testate Estate of the Late AlipioAbada v.
Abaja (147145)
 d. Attestation clause fails to state that the
testator’s name was written by a third
person – fatally defective
Garcia v. Lacuesta (L-4067) – signature
page says that testator requested lawyer
to write his name, however, the
attestation clause did not say so hence,
denial of probate
e. Attesting witnesses did not sign at the
bottom of the attestation clause
Cagro v Cagro (L-5826) - signature of the
witnesses do not appear at the bottom of
the attestation clause although were on
the left hand margin  fatally defective
f. Fatally defective attestation clause
Azuela v CA (122880) – attestation clause
does not contain number of pages, is not
signed by the instrumental witnesses,
does not contain an acknowledgment
(only a jurat)
g. Conflicting testimonies of the witnesses
Vda. De Ramos v. CA (L-40804)
Observations onVda. De Ramos v.
CA
 Witness does not merely attest to the
signatures of the testatrix, but also to the
proper execution of the will
 Witnesses testified against the validity of the
will because it was not signed by the testatrix
before their presence
 If they indeed did not see the testatrix sign
the will, they committed perjury when they
signed the attestation clause
 If the testatrix signed the will in their
presence, they committed perjury when they
testified falsely on the witness stand
9. The will must be acknowledged before a
notary public
a. Definition of acknowledgment – act of one
who has executed a deed in going before
some competent officer and declaring it
to be his act or deed
- Witness and testator need
acknowledge the will at the same time,
however, must be before the same
notary public
b. Acknowledgment must be made by
testator and witnesses
3 Components of a notarial will:
1) Testamentary dispositions of the
testator
2) Attestation of the witnesses:
a. Actual number of pages used
upon which the will was written
b. Testator signed the will on every
page thereof or caused some
other to write his name, under his
express direction, in the presence
of instrumental witnesses
c. The instrumental witnesses
witnessed and signed the will and
all the pages thereof in the
presence of the testator and of
one another
3) Notarial acknowledgment
Garcia v Gatchalian (L-20357) – document
was acknowledged before a notary public
by the testator but not by the
instrumental witnesses hence cannot be
probated
c. Role of the Notary Public
- GR: not necessary to be present in the
execution of the will
- Ex: blind testator
d. Disqualifications of a Notary Public
iii. Notary public must be duly
commissioned
- Outside of his territorial jurisdiction,
a notary public has no authority to
perform the notarial functions
Guerrero v. Bihis (174144) – Atty.
Directo was not a commissioned notary
public for and in Quezon City, hence,
he lacked the authority to take the
acknowledgment of the testatrix and
the instrumental witnesses.
iv. Notary public must not be an
instrumental witness
Cruz v. Villasor (L-32213) – To allow the
notary public to act as a third witness,
would have the effect of only having
two attesting witnesses in
contravention of Art. 805