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SUCCESSION LECTURE NOTES SY 2020-21

TITLE IV
SUCCESSION (Arts. 774 to 1104)
 Succession Course (4 units, Mondays to Thursdays), 72 hours less 8 hours for anticipated
non-meeting days on mid-term and final examination weeks or net of 64 hours/meetings;
 330 Articles; 667 pages;
 6 articles per meeting; 11 pages per meeting;
 Note cases assigned for reading/class discussions; this will also take time from class
hours, so the reading plan can be 10 articles or 20 pages for each day of meeting;
 Grading

1st Half MT Grade 2nd Half Final Grade

MT Exam % Equivalent Final Exam % Equivalent Ave. of MT &
-100 pts. @ 50% passing -100 pts. @ 50% passing Final Exam
Eg.
100 100% 100 100% 100% or 1.00
50 75% 50 75% 75% or 3.00
Adjustment: possible adjustment of the computed grade by 1 or 2 grade levels up
considering class participation/recitation/attendance; quizzes; assigned works;
generally, there will be no downward adjustments except when the accumulated absences
require the student to be dropped or given a grade of 5.0;

 All students attending the course are held responsible for reading the assigned primary
reference book, the statutory provisions and all the commentaries/annotations contained
in the book on their own, outside of classes and in preparation for class discussions;

 Class seating plan;

 Students are advised to have printed copies of the book and make appropriate markings
on the book; digital/electronic copies can be helpful supplements as when they enable
reading under various circumstances but are not a substitute to a printed book;

 Primary reference: Civil Code of the Philippines Annotated by Edgardo L. Paras

(Associate Justice, Phil. SC), 18th Edition, 2016, Volume Three (Arts. 774 to 1105) Wills
and Succession; published by Rex Book Store; Copyright 1959;

o Volume Three
o Title IV – Succession
 Chapter 1 – General Provisions
 Chapter 2 – Testamentary Succession
 Section 1 – Wills
o Subsection 1 – Wills in General
o Subsection 2 - Testamentary Capacity and Intent
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o Subsection 3 – Forms of Will

o Subsection 4 – Witnesses to Wills
o Subsection 5 – Codicils and Incorporation by Reference
o Subsection 6 – Revocation of Wills and Testamentary
Dispositions
o Subsection 7 – Republication and Revival of Wills
o Subsection 8 – Allowance and Disallowance of Wills

 Section 2 – Institution of Heir

 Section 3 – Substitution of Heir
 Section 4 – Conditional Testamentary Dispositions and
Testamentary Dispositions with a Term
 Section 5 – Legitime
 Section 6 – Disinheritance
 Section 7 – Legacies and Devises

 Chapter 3 – Legal or Intestate Succession

 Section 1 – General Provisions
o Subsection 1 – Relationship
o Subsection 2 – Right of Representation
 Section 2 – Order of Intestate Succession
o Subsection 1 – Descending Direct Line
o Subsection 2 – Ascending Direct Line
o Subsection 3 – Illegitimate Children
o Subsection 4 – Surviving Spouse
o Subsection 5 – Collateral Relatives
o Subsection 6 – The State

 Chapter – Provisions Common to Testate and Intestate Successions

 Section 1 – Right of Accretion
 Section 2 – Capacity to Succeed by Will or by Intestacy
 Section 3 – Acceptance and Repudiation of the Inheritance
 Section 4 – Executors and Administrators
 Section 5 – Collation
 Section 6 – Partition and Distribution of the Estate
o Subsection 1 – Partition
o Subsection 2 – Effects of Partition
o Subsection 3 – Rescission and Nullity of Partition

CHAPTER 1
General Provisions
Succession, defined
 In general sense, it means “the placing of one person in the place of another”; “the
transmission of rights and properties, as well as obligations, from one person to another;
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in this sense, it may either be inter vivos (as in the case of ordinary donation) or mortis
causa (the subject of Title IV under the Civil Code);

 In its technical sense (as governed by Arts. 774 to 1105 of the Civil Code), the term
“succession” is restricted to succession mortis cause; denotes the transfer of title to
property under the laws of descent (term used in American law to refer to succession) and
distribution, taking place only on the death of a person;

 As defined under Art. 774,

Article 774. (note parsing of the provision)

Succession
is a mode of acquisition by virtue of which
the property,
rights
and obligations to the extent of the value of the inheritance,
of a person
are transmitted through his death
to another or others
either by his will
or by operation of law. (n)

 Kinds of succession

o As to effectivity (inter vivos or mortis causa – Art. 774);

o As to whether there is a will or not (testamentary; intestate or legal succession;

mixed);

o As to the transferees property, rights and obligations (compulsory succession with

regards to the legitime; voluntary succession with reference to the free disposal);

o As to the extent of the rights and obligations involved (universal succession which
covers all juridical relations involving the deceased; particular succession which
covers only certain properties of the deceased)

 Note that under the Family Code, “family relations” which serve as the primary basis for
succession excludes relations by affinity (Ining, p. 2);

Article 774. Succession
is a mode of acquisition by virtue of which
the property, rights and obligations to the extent of the value of the inheritance,
of a person
are transmitted through his death
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to another or others
either by his will or by operation of law. (n)

Comments
 Art. 774 defines the terms succession; it refers to succession mortis causa;
 Note the elements of the definition;
 Bases for succession
o Natural law which obliges a person to provide for those he would leave behind;
a consequence of family relations; recognition of relationship by blood and the
natural affection for those nearest him in relationship;
o Socio-economic concern to prevent wealth from being inactive or stagnant;
o Recognition of the attributes of ownership; allowing a person to dispose of his
property upon his death;

Article 775. In this Title,

"decedent" is the general term applied to
the person whose property is transmitted
through succession,
whether or not he left a will.
If he left a will, he is also called the testator. (n)

Comment
 When is the decedent called the testator; what do you call the decedent when he left no
will; (note, the term “intestate” as an adjective means not having made a will or not
disposed of by will; the term can also be a noun, meaning one who dies intestate,
without leaving a will;

Article 776. The inheritance

includes all the property, rights and obligations of a person
which are not extinguished by his death. (659)

Comment
 Inheritance is the property or right acquired; succession is the manner by virtue of
which the property or right is acquired;

 Note what inheritance includes;

 Administration refers to dealing which the property of the decedent according to law;
it involves gathering the assets of the estate, paying the decedent's debts, and
distributing the remaining assets to the heirs;

 Case - is a person obliged to pay for the debts of his stepfather; Nacar 19821208, p.5;
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 Property includes real and personal property; also accessions (involves the addition of
value to property through labor or the addition of new materials) from the moment of
death of the decedent;

 Is the human corpse a property; note law (RA 349 as amended by RA 1056) allowing
the grant of a person’s organs after death;

 Determination of which properties are included in the estate is important because only
those that are included are part of the inheritance;

 Case, proposed sale of properties of the estate where there is allegation of exclusive
property of the surviving spouse; Anderson 19610131, p. 6;

 Case, jurisdiction of the CFI (now RTC) to determine ownership of the properties
involved in probate proceedings; [In a probate proceeding, the court allows or
disallows the will, oversees the process of identifying the deceased person's property,
paying any debts, identifying the proper heirs, and distributing the property to them];
the probate court’s determination of issues on ownership is not conclusive, still subject
to a final decision in a separate action between the parties involved (Janguera
19670330, etc., p. 6);

 Case, probate court may also determine questions of title to property if the parties
voluntarily submitted to its jurisdiction and introduced evidence to prove ownership
(Cordova Vda. De Manalac 73 Phil. 661, p. 6);

 Note that some rights are extinguished by death, some are not and remains part of the
estate;

 Examples of rights that are extinguished by death; intransmissible personal rights

because of their nature (marital and parental authority, support, action for legal
separation, partnership, agency, life annuity, etc.); right to claim acknowledgment or
recognition as a natural child; right to hold public or private office or job;

 Examples of rights not extinguished by death and remain part of the estate; right to
bring or continue action for forcible entry or unlawful detainer; right to compel
execution of a document necessary for convenience (under contracts which are valid
and enforceable); right to continue a lease contract either as lessor or lessee (later the
obligation to pay rent becomes the obligation of the inheriting heir not that of the
decedent); vested right of a beneficiary in a life insurance policy (i.e. where the
designation as beneficiary is irrevocable);

 Case, Mabalot 19830328, p. 8; facts; issue; resolution; unlawful detainer case;

lessee’s lease of apartment as a result of inheritance; allegation that the issue became
one not capable of pecuniary estimation and hence not within the jurisdiction of the
city or municipal court; held- court has jurisdiction because the legal issue is only
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incidental in determining whether the petitioners are entitled to possession or not;

 Case, Noel 1995, p. 8; the rights of illegitimate children (not natural), born under the
Spanish Civil Code of 1889 (which disqualified such illegitimate children from
inheriting) are governed by said code;

Buyer of a parcel of land at a public auction to satisfy a judgment against a widow

acquires only ½ interest on the land corresponding to the share of the widow; the other
half to the heirs;

Prescriptive period for heirs to file action to recover their shares in the property sold to
a third person accrues from the date of the registration of the deed of sale with the
ROD, not from the moment of death of the decedent;

 Case, where children were substituted as defendants in a civil case when the father
died; can the children be held personally liable with their own individual properties;
[remedy of plaintiff is to proceed against the estate of the deceased father], Viardo
19620821 p. 9;

 Case, are the heirs obliged to deliver a parcel of land sold by the decedent father before
he died; [heirs also inherit the obligations of the decedent unless extinguished by
death; Pamplona 19800331 p.10;

 Case, A,B and C; A (in effect the grandfather of C), B (the father of C); B died with
unpaid creditors; Later A (the grandfather) died and C inherited from A; Is C obliged
to pay the creditors of B; Ledesma p. 11;

 Case of Montesa in p. 11; not understandable; to read to clarify; see notes on the case
of Montesa ;

 Judicial administration is not essential when the deceased left no pending obligations
(Vda. De Rodrigues 1952124, p. 12);

 Heirs inherit the decedent’s property subject to the decedent’s liabilities; if the
obligations are not monetary, they can be threshed out in an ordinary action despite the
lapse of the estate proceedings (De Guzman Vda. De Carillo 19520531, p. 12);

 Judicial administration is not essential when the decedent left no pending obligations
(Vda. De Rodriguez v. Tan L-6044, 19521124, p. 12); [see Rules on settlement of
Estate of Deceased Persons; see copy in files;); [administration involves gathering the
assets of the estate, paying the decedent's debts, and distributing the remaining assets to
the heirs];

 Note that the heirs shall inherit the property subject to the liabilities of the decedent;
the debts will need to be paid first before any distribution of the property can be made
to the heirs;
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 If the liabilities are not monetary, they can be threshed out in an ordinary action despite
the lapse of the estate proceedings (De Guzman Vda. De Carillo v. Salak de Paz, L-
4133, 19520531, p.12);

 The law allows the partition of the estate of a deceased person, extrajudicially or
through an ordinary action for partition, without the filing of a special proceeding and
the appointment of an administrator for the settlement of the estate in certain instances
(no debts are left; heirs are of age or minors are represented by judicial guardians,
Rule 74);

 Where the deceased dies without pending obligations, there is no necessity for the
appointment of an administrator to administer the estate for them, and to deprive the
real owners of their possession to which they are immediately entitled (Javier,
19541229, p. 12);

 Where the deceased left pending obligations, the obligations must be paid before the
estate can be divided; and unless the heirs reach an amicable settlement as to how such
obligations should be settled, the estate would inevitable be submitted to administration
for the payment of such debts;

When the rights to the inheritance are transmitted

Article 777. 
The rights to the succession
are transmitted
from the moment of the death of the decedent. (657a)

Note – it is actually the rights to the inheritance that are transmitted (not the rights to
succession); better if instead of the words “are transmitted”, the words used were “are made
effective”;

Comments
 Requisites for succession mortis causa;
o There has been death (actual or presumed);
o Rights or properties are transmissible;
o Transferee is still alive (no predecease), willing (no repudiation), and is
capacitated to inherit;

 Case, from the moment of death of the deceased, the estate is held in co-ownership by
the heirs; a co-heir may validly dispose of his share or interest in the property subject
to the condition that the portion disposed of is eventually allotted to said heir in the
division upon termination of the co-ownership (Vda. De Reyes, 19910726, p. 13);

T/F – From the moment of death of the deceased, the estate is held in co-ownership
by the heirs. A co-heir cannot validly dispose of his share in the property because it
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is not certain yet what properties shall be allotted until termination of the co-
ownership.

 Case – Suarez, 19920902, p. 13;

o Petitioners are brothers and sisters; their father died in 1955; estate remained
unliquidated or partitioned;
o In 1977, a judgment was made by a court in a case for rescission of contract
and damages against their mother; properties (5 parcels of land) belonging to
the estate were executed and sold by the sheriff in a public auction to the
highest bidder (respondent RCBC); certificate of sale was issued to RCBC;

o The petitioners filed a reivindicatory action against RCBC and the Sheriff
seeking the annulment of the auction sale and the recovery of the levied
properties;

o SC held, only one-half of the 5 parcels of land should have been the subject of
the auction sale; SC cited the following laws:

 Article 777. The rights to the succession are transmitted

from the moment of the death of the decedent. (657a);

the heirs become owners/co-owners of the property from the

moment of death;

 Art. 888 Article 888. The legitime of legitimate children and

descendants consists of one-half of the hereditary estate of the father
and of the mother.

The latter may freely dispose of the remaining half, subject to the
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rights of illegitimate children and of the surviving spouse as

hereinafter provided. (808a)

 Article 892, 2nd par. 

xxx

If there are two or more legitimate children or descendants, the

surviving spouse shall be entitled to a portion equal to the legitime
of each of the legitimate children or descendants.

[In both cases, the legitime of the surviving spouse shall be taken
from the portion that can be freely disposed of by the testator.]
(834a)

o The interest of the petitioners in the levied and auctioned property is different
and adverse to that of their mother; the petitioners became co-owners of the
property not because of their mother but through their own right as children of
their deceased father; the petitioners have the right to seek the annulment of the
sale to protect their own interest;

o Case was referred to the lower court to determine the portion that belongs to the
petitioners and to annul the sale with regard to said portion;

 Case – Nufable, 19990702, p. 16; decedent Esdras Nufable died in 1965; in 1966, his
son Angel mortgaged the entire property left by Esdras Nufable; there were three
other children; these three other children already acquired successional right over the
property mortgaged by Angel, from the moment of death of Edras Nufable; it does not
matter that the Last Will and Testament of Esdras Nufable was admitted after the
property was mortgaged or that the settlement of estate was approved months after the
mortgage of the property;

T/F – A died in 1965, leaving certain properties. In 1966, his son X mortgaged the
entire properties left by A. There were three other children who were not involved
in the mortgage. The last will and testament of A was probated only in 1970. The
three other children are bound by the mortgage executed by X.
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 Succession effects the transfer of ownership, not tradition or delivery of the property;
the effects of an acceptance retroacts to the moment of death; in case of repudiation, it
is as if the heir never owned or possessed the property;

 In the absence of an heir; the state inherits the property which will be considered
patrimonial property of the state;

 Under the law there is presumed death; there are 2 kinds of presumed death –

ordinary presumption (in the occasion of ordinary absence, disappearance under

normal conditions, without danger or idea of death);

and extraordinary presumption (caused by extraordinary or qualified absence

indicating great probability of death)

o Ordinary presumption because of ordinary absence; the person is presumed

dead for the purpose of opening his succession at the end of 10 years; or at the
end of 5 years if disappearance occurred after the age of 75;

Article 390. After an absence of seven years, it being unknown

whether or not the absentee still lives, he shall be presumed dead for all purposes,
except for those of succession.

The absentee shall not be presumed dead

for the purpose of opening his succession
till after an absence of ten years.
If he disappeared after the age of seventy-five years,
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an absence of five years

shall be sufficient in order that
his succession may be opened. (n)

o Extraordinary presumption because of extraordinary absence;

Article 391. The following shall be presumed dead for all purposes,

including the division of the estate among the heirs:

(1) A person on board

a vessel lost during a sea voyage,
or an aeroplane which is missing,
who has not been heard of for four years
since the loss of the vessel or aeroplane;

(2) A person in the armed forces

who has taken part in war,
and has been missing for four years;

(3) A person who has been in danger of death

under other circumstances
and his existence has not been known for four years. (n)

Note that in extraordinary presumption of death, the person is presumed dead at

the time of disappearance, not at the end of 4 years; but the division of the
estate will be made only at the end of 4 years; succession really took place 4
years before but actual division will be at the end of 4 years;

T/F – A was on board a vessel which was lost in its voyage. A had not been
heard of since the loss of the vessel. A will be presumed dead at the end of
four years after his disappearance, at which time his heirs will succeed to heir
inheritance.

o In case of presumption of death (ordinary and extraordinary), the presumption

is only of provisional character; there is always a chance that the person may
still be alive; the presumption is rebuttable, proof may be presented as to when
death actually occurred;

 Effect of absentee’s return or appearance; the person shall recover his property in the
condition which it may be found, the price of any property that may have been
alienated or the property acquired therewith; but he cannot claim either fruits or rent
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(consumption is made in good faith); recovery may not be made anymore if the
heir/devisee/legatee has acquired the property through prescription (extraordinary
prescription in view of the lack of just title due to their being no true succession);

See Article 396. Those who may have entered upon the inheritance shall appropriate the
fruits received in good faith so long as the absentee does not appear, or while his
representatives or successors in interest do not bring the proper actions. (198);

 Notes/Problem involving transitional provisions of the NCC;

o Under the old Civil Code, spurious children were not entitled to inherit even if
their filiation had been judicially decreed;

o Under the new Civil Code (effective Aug. 30, 1950), spurious children if
recognized voluntarily or by judicial decree are entitled to inherit;

o Problem – If a spurious child was born in 1938, but his father died in 1951, will
the child inherit?

Yes, the child will inherit so long as he can prove filiation (relationship of the
child to the parent) because the rights to the succession are effected from the
moment of death (1951); it is the father’s death that gives rise to the
succession; there is no vested right of the legitimate children that would be
prejudiced (Bulos, 19621031, etc., p. 19);

T/F – A spurious child, recognized by his father, was born in 1938. His
father died in 1951. The child will inherit from his father.

o If the father died before the effectivity of the new Civil Code, the spurious child
would not inherit; the legitimate children would have vested right upon death
of the father and this will be prejudiced; this is true even if there are settlement
proceedings in court and delivery of the property takes place after the
effectivity of the new Civil Code (Jayme, p. 19);
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o The Civil Code does not specify the period within which the action to
investigate spurious paternity should be brought; in the case of Lilia Juana
Barles (19600930, p. 20), the SC held that the investigation should take place
during the lifetime of the putative (generally believed) parent; only the parent
is in a position to reveal the facts about the claim; the action is similar to the
action for compulsory recognition of natural children; both are actions
whereby the child may prove that the defendant is in fact the mother or father
of the child;

 Under the Family Code there is no more distinction between natural children (born
outside wedlock with parents who were capacitated to marry each other) and spurious
children (where parents were not capacitated to marry each other, referred children to
in the Civil Code as illegitimate child other than natural);

 Prior to a person’s death, his heirs merely have an inchoate (not completely formed or
developed) right to his property; during his lifetime, the heirs have no right of
disposition or alienation over said property (Tordilla, p.21); upon death, the heirs own
the property (subject to the decedent’s liabilities) even if in the meantime the property
is under administration (Barreto, p. 21);

T/F – A is the only child of very rich parents. A can alienate a portion of the
properties of his parents even during their lifetime as long as the portion alienated
does not exceed one-half of said properties.

 After death of the decedent, an heir can sell whatever right, interest or participation he
may have in the property; the matter of sale by an heir of his interest in the property
comes under the jurisdiction of the probate court; if the seller-heir dies pending
probate proceedings, the validity of said sale should not be threshed out in a separate
action (Vda. De Gil, 19650730, p. 21);

 Declaration of heirs may be made even before all debts, expenses and taxes have been
paid; what is prohibited prior to such payment is the assignment or distribution of the
estate of the deceased (Ngo The Hua, 19630930, p. 21);

 Pending liquidation of the estate, the heirs are entitled to certain allowances for their
support, which in proper cases are chargeable against the estate (Vda. De Gil,
19650730, p. 21);

 Future inheritance (that which an heir may eventually receive from a person still alive)
cannot be sold; it is not yet in existence or not yet capable of determination at the time
a contract is made (Blas, 19610329, p. 22);

 It is valid for an heir, after the death of the decedent, to sell his share in the estate even
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pending its liquidation; after death, the inheritance is “present” and no longer “future”;
(Mondonido, 19540126, p. 21);

 Case – Felipe, 19830216, p. 22; wife sells a conjugal land without the husband’s
consent; the heirs may question the transaction only after the death of the husband;
the wife herself cannot sue for annulment because it she who had unlawfully alienated
the property; the heirs may question the sale only insofar as their inherited share of the
land is concerned;

T/F – A wife sells a conjugal land without the husband’s consent. The heirs of the
husband can only question the transaction only after the husband’s death.

 Where a co-heir sells the whole property without the consent of the other heir, can that
other heir ask for the cancellation of the sale insofar as his share is concerned?; Yes,
co-heirs become owners of their shares upon death of the decedent; There is no need
to wait for the result of the administration proceedings (Saturnino, 19560519, p. 22);

 Can an heir be sued after the decedent’s death with respect to his share in the
inheritance even without a formal declaration of heirship? Even if the precise extent of
the heir’s interest in the estate is still undetermined? - provided there is no pending
special proceedings whereby the estate of the deceased is to be settled (Gayon,
10701126, p. 23);

 When the heirs are all of legal age and there are no debts to be settled, there is
generally no necessity to appoint an administrator, and the heirs themselves may enter
upon the administration of the property; they may even decide to have a joint
administration or, by mutual agreement, partition the property among themselves
(Fule, p. 24); [also possible where there are heirs who are minor as long as they are
represented by judicial guardians];

 In case the heirs/legatees/devisees have already taken possession of the properties, are
they required to surrender them to a judicial administrator in case one is appointed by
the court? (Dale, p. 24); [Note, the administrator will be subject to orders from the
court (Dais, p. 24);

 If an administrator has been appointed, do the heirs still have the right to intervene in
judicial proceedings? [Yes if they have reasons to believe that the administrator’s
action are detrimental to their rights; (Dais, p. 24);

 The administrator must render an accounting; the court may take into account their
probability and the reasonableness of each and every item thereof (Pascual 10590323,
p.24); it is a duty to be performed and duly acted on by the court before the
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administration is finally ordered closed and terminated (Joson, 19610530, p. 24);

 The expenses of administration shall be borne by the properties under administration or

the income thereof; the administrator can be held personally liable only for any
malfeasance [illegal or dishonest activity especially by a public official, or by one
appointed as administrator of a property], maladministration or violation of any of his
duties as administrator; attorney’s fees are proper administration expenses; if the heirs
had already been given their shares, they should be held liable proportionately (Donata
Montemayor, 19620130, p. 25);

 Heirs may dispose of the property they inherited even while the property is under
administration; they may redeem redeemable properties despite presence of an
administrator; Paliete, 19870921, p. 25);

 The declaration of heirship can be made only in a special proceeding inasmuch as it

involves the establishment of a status or right; it must be made in an administration
proceeding, not in an independent civil action (Heirs of Guido and Isabel Yaptinchay,
1999, p. 25;

 Case - Silverio, 1999, p.25);

The order of preference in the appointment of an administrator depends on the

attendant circumstances. The probate court, in the exercise of its discretion, may
disregard the order of preference to the administration set forth in the Rule of Court;

The probate court is not vested with the power to order the special administrator to sell
real properties of the estate pending determination of the validity of the regular
administrator’s appointment;

See Sec. 6 of Rule 78, Rule of Court:

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Section 6. When and to whom letters of administration granted. —

If no executor is named in the will,
or the executor or executors
are incompetent,
refuse the trust,
or to give bond,
or a person dies intestate,
administration shall be granted:

(a) To the surviving husband or wife, as the case may be,

or next of kin,
or both,
in the discretion of the court,
or to such person as such surviving husband or wife, or next of kin,
requests to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be,

or next of kin,
or the person selected by them,
be incompetent or unwilling,
or if the husband or widow, or next of kin,
neglects for thirty (30) days after the death of the person
to apply for administration
or to request that administration be granted to some other person,
it may be granted to one or more of the principal creditors,
if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve,

it may be granted to such other person as the court may select.
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See Sec. 1 and 2 of Rule 80, Rules of Court:

RULE 80 - Special Administrator

Section 1. Appointment of special administrator. —

When there is delay in granting letters testamentary or of administration by any cause
including an appeal from the allowance or disallowance of a will,
the court may appoint a special administrator
to take possession and charge of the estate of the deceased
until the questions causing the delay are decided
and executors or administrators appointed.

Section 2. Powers and duties of special adminsitrator. —

Such special administrator shall take possession and charge
of the goods, chattels, rights, credits, and estate of the deceased
and preserve the same for the executors or administrator afterwards appointed,
and for that purpose may commence and maintain suits as administrator.
He may sell only such perishable and other property as the court orders sold.
A special administrator shall not be liable
to pay any debts of the deceased
unless so ordered by the court.

 Case – Lagonera, p. 26;

While the hereditary property is materially possessed by the administrator (in the concept
of holder or administrator), the heir is also possessor of the property as owner through the
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administrator;

For purposes of prescription (as when the deceased did not really own the property and
the heir claims ownership based on prescription), the time during which the property was
being administered should be counted in favour of the heir (being a possessor in the
concept of owner);

Heirs are not deemed stranger to a sale made by an administrator; the sale by an
administrator is really a sale of the heir’s rights and properties;

 In case a property that should be included in the estate is being kept by another person,
the administrator should file an ordinary action to recover said property; in case of
fraudulent conveyances, a separate action is necessary to recover such properties;
Chua, 2003, p. 27;

 If the heirs concealed the existence of other heirs and as a result of the concealment
The properties were awarded to the former, the prejudiced heirs can still file an action
to recover their shares, even if the settlement proceedings have been terminated; such
co-heirs acquired ownership of their shares automatically from the moment of the
death of the decedent; Quilon, p. 27;

 The right of an heir or other persons unduly deprived of his lawful participation in the
estate to compel the settlement of the estate in courts for the purpose of satisfying such
lawful participation is effective only for a period of two years; Carreon, 19610223, p.
27;

Section 4. Liability of distributees and estate. —

If it shall appear at any time within two (2) years
after the settlement and distribution of an estate
in accordance with the provisions of either of the first two sections of this rule
[i.e. Section 1. Extrajudicial settlement by agreement between heirs;
Section 2. Summary settlement of estate of small value]
that an heir or other person has been unduly deprived of his lawful participation in the estate,
such heir or such other person may compel the settlement of the estate in the courts
in the manner hereinafter provided
for the purpose of satisfying such lawful participation.
And if within the same time of two (2) years,
it shall appear that there are debts outstanding against the estate which have not been paid,
or that an heir or other person has been unduly deprived of his lawful participation payable in money, the court
having jurisdiction of the estate may,
by order for that purpose,
 19

after hearing,
settle the amount of such debts or lawful participation
and order
how much
and in what manner each distributee shall contribute in the payment thereof,
and may issue execution, if circumstances require,
against the bond provided in the preceding section
or against the real estate belonging to the deceased,
or both.
Such bond and such real estate shall remain charged
with a liability to creditors, heirs, or other persons
for the full period of two (2) years after such distribution,
notwithstanding any transfers of real estate that may have been made.

 Tax should be measured by the value of the estate as it stood at the time of the
decedent’s death, regardless of any subsequent contingency affecting the value or any
subsequent increase or decrease in value; Lorenzo, p. 27;

Article 778. 
Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed. (n)

Notes
 Mixed succession; where the decedent died partly testate and partly intestate;

 Other kinds of successions;

o Compulsory/necessary/forced succession; refers to succession to the legitime;

it is compulsory for the testator to give his compulsory heirs their legitime; but
it is not compulsory for such heirs to accept said legitime;

o Contractual succession; see Article 130 NCC. The future spouses may give each
other in their marriage settlements as much as one-fifth of their present property,
and with respect to their future property, only in the event of death, to the extent
laid down by the provisions of this Code referring to testamentary succession.
(1331a); this provision is no longer contained in the Family Code;
 20

Article 779. 
Testamentary succession
is that which results from the designation of an heir,
made in a will
executed in the form prescribed by law. (n)
Notes
 Some rules for testamentary succession;
o Testamentary succession may be by virtue of a will or a codicil;
o The will or codicil may be notarial; or holographic;
o In case of doubt, testamentary succession is preferred to legal or intestate
succession (Art. 791);

Article 780. 
Mixed succession
is that effected
partly by will
and partly by operation of law. (n)

Notes
 Where the will is void, the entire estate descends to the heirs by operation of law;

Article 781. 
The inheritance of a person
 21

includes
not only the property
and the transmissible rights
and obligations
existing at the time of his death,
but also those which have accrued thereto
since the opening of the succession. (n)

Notes
 Note what inheritance includes; obligations passed on to the heirs shall only be up to
the extent of the value of the property and rights inherited;

 The accretions or accessions are not strictly inherited because they form part of the
estate only after the heirs have become the owners the property left by the decedent,
hence, they are acquired by accretion as an incident of ownership under the law, not by
succession;

o Article 440. The ownership of property gives the right by accession to everything

which is produced thereby, or which is incorporated or attached thereto, either
naturally or artificially. (353)

o Article 457. To the owners of lands adjoining the banks of rivers belong the
accretion which they gradually receive from the effects of the current of the waters.
(336)

o Article 1015. Accretion
is a right
by virtue of which,
when two or more persons are called to the same inheritance, devise or legacy,
the part assigned to the one
who renounces
or cannot receive his share,
or who died before the testator,
is added or incorporated
to that of his co-heirs, co-devisees, or co-legatees. (n)

o Article 1016. In order that the right of accretion may take place
in a testamentary succession,
it shall be necessary:

(1) That two or more persons be called

to the same inheritance,
or to the same portion thereof,
pro indiviso; and
 22

(2) That one of the persons thus called

die before the testator,
or renounce the inheritance,
or be incapacitated to receive it. (928a)

 The property acquired by the testator after the will is made and until the time the
decedent dies is not given to the designated heir, unless the contrary has been expressly
provided in the will (Art. 793); Art. 781 refers to property acquired prior to the death,
not afterwards;

Article 782. 
An heir is a person called to the succession
either by the provision of a will
or by operation of law.

Devisees
and legatees
are persons to whom gifts
of real
and personal property
are respectively given
by virtue of a will. (n)

Notes
 Transferees in testamentary succession;
o Heirs; when they succeed by universal title, that is, to all properties, rights and
obligation (e.g., “T” institutes “Y” as heir) or a fractions or aliquot part of the
properties, rights and obligation (e.g., “T” gives “Y” 1/3 of his properties,
rights and obligation); heirs may be compulsory (if entitled to legitime) or
voluntary (where there is no entitlement to legitime);

There can be “heirs” in either testate, legal/intestate or mixed succession; but

 23

“legatees” and “devisees” can exist only in testamentary succession;

 Article 886. Legitime is that part of the testator's property which he cannot

dispose of because the law has reserved it for certain heirs who are,
therefore, called compulsory heirs. (806)

 Article 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate

parents and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with

respect to their legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in article 287.

[Article 287. Illegitimate children other than natural in accordance with

article 269 and other than natural children by legal fiction are entitled to
support and such successional rights as are granted in this Code. (n)]

[Article 269. Only natural children can be legitimated. Children born

outside wedlock of parents who, at the time of the conception of the
former, were not disqualified by any impediment to marry each other,
are
natural. (119a)]

[Article 89. Children conceived or born of marriages

which are void from the beginning
shall have the same status, rights and obligations
as acknowledged natural children,
and are called natural children by legal fiction.

[Children conceived of voidable marriages

before the decree of annulment
shall be considered as legitimate;
and children conceived thereafter
 24

shall have the same status, rights and obligations

as acknowledged natural children,
and are also called natural children by legal fiction. (n)]

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those

in; “ Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned,

shall inherit from them in the manner and to the extent established by this
Code. (807a)

o Legatees; if they succeed to particular personal properties (e.g., “T” gives “L”
this Lexus car; “T” gives “L” P5 million.)

o Devisees; if they succeed to particular real properties (e.g., “T” gives D this
piece of land);

 Importance of distinction between heirs as against legatees and devisees; the rules on
heirs and legatees and devisees in case of preterition of compulsory heirs in the direct
line and in case of disinheritance are different; see Arts. 854 and 918;

Article 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of
the
testator, shall annul the institution of heir; but the devises and legacies shall be valid
insofar
as they are not inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall be
effectual, without prejudice to the right of representation. (814a)

Article 918. Disinheritance without a specification of the cause, or for a cause the truth of
which, if contradicted, is not proved, or which is not one of those set forth in this Code,
shall
annul the institution of heirs insofar as it may prejudice the person disinherited; but the
devises and legacies and other testamentary dispositions shall be valid to such extent as
will not impair the legitime. (851a)
 25

 Transferees in legal succession; in legal or intestate succession, the transferees are

called legal or intestate heirs;

 Possibility of dual status of an heir; if in a will, a compulsory heir is given more than
his legitime, he is a compulsory heir insofar as his legitime is concerned, and he is a
voluntary heir insofar as the excess is concerned;

SEPTEMBER 10, 2020 THURSDAY SUCCESSION A

The distinction as to whether an heir is compulsory or voluntary is important because

of the following rules;

o If a compulsory heir dies ahead of the testator, the legitime of the compulsory
heir is inherited by his child;

o If a voluntary heir dies ahead of the testator, the child of the voluntary heir gets
nothing from the testator;

 “Sale of hereditary rights” as distinguished from “waiver of hereditary rights” (Acap,

19951207, p. 36);

In a “Sale of hereditary rights,” a contract or deed of sale between the parties exists;
one of the contracting party (the heir who sells his rights) obligates himself to transfer
the ownership of and to deliver a determinate thing, and the other party (the buyer)
obligates himself to pay a price certain in money or its equivalent;

A “waiver of hereditary rights” is technically a mode of extinction of ownership where

there is abdication or intentional relinguishment of a known right with knowledge of its
existence and intention to relinguish it in favour of other persons who are co-heirs in
the succession;

A declaration of heirship and waiver of rights involve intestate heirs adjudicating and
dividing the estate left by the decedent among themselves as heirs according to their
agreement, and where one or more heirs relinguish their shares in favour of one or
more co-heirs; it is in effect an extrajudicial settlement of estate among the heirs under
Rule 74 of the Rules of Court;
 26

 Read the case of Nelia A. Constantino v. CS, 19961113, p. 36; a case where a portion
of a property inherited by several heirs was sold prior to a survey of the property; a
deed of extrajudicial settlement of estate with sale was executed by the parties with
certain parts left in blank (specification of the metes and bounds) pending the conduct
of actual survey; the co-heirs later alleged and brought action for the annulment of the
sale registered by the buyer with the ROD because the area purportedly sold was much
bigger than that agreed upon by the parties; they claimed that they had not been
notified of the survey and subdivision of the lot;

certain procedural issues were also involved in the case;

note some of the significant rulings in the case;

o The petitioner was held to have waived its right to make a formally offer of
evidence considering a considerable lapse of time (about 3 months) before the
petitioner’s counsel made effort to formally offer the evidence;

o The validity of the deed was not affected by the fact that it was notarized in a
place other than where the subject matter of the deed was situated; what is
more important under the Notarial Law is that the notary public has authority to
acknowledge the document executed within his territorial jurisdiction; whether
the respondents indeed appeared before the notary public and signed the deed;

o It is not easy to believe that the petitioner and the 10 Torres heirs travelled all
the way to Manila to have their questioned document notarized considering that
they were residents of Bulacan where notaries public are easy to find;

o Apparently, the petitioner deceived the private respondents by filling the blank
spaces in the deed, having the lots surveyed and subdivided, and then causing
 27

the issuance of transfer certificates of title without the knowledge, much less
consent of the private respondents; all the elements of fraud vitiating consent
for the purose

o There was clear evidence that there was as yet no meeting of the minds on the
land area to sold since the private respondents were still awaiting the survey to
be conducted on the premises;

CHAPTER 2
Testamentary Succession

SECTION 1
Wills
SUBSECTION 1. Wills in General

Article 783. 
A will is an act
whereby a person is permitted,
with the formalities prescribed by law,
to control to a certain degree the disposition of this estate,
to take effect after his death. (667a)

Notes
 The making of a will is a statutory (not a natural) right; the making of a will is
subordinated to both the law and public policy; hence, where there is non-compliance
with certain requisites under the law, the will may be deemed invalid and the
disposition of the properties left by the decedent will not be disposed of according to
the will made by the decedent;
 28

 A will is a unilateral act; no acceptance by the transferee is needed;

 It is a solemn or formal act; meaning it is required to be executed in accordance with

the formalities prescribed by law (Art. 783);

 There must be animus testandi (intent to make a will); in a will where a testator “gives
a person a house effectively immediately,” the provision indicates absence of animus
testandi (the intention to dispose of his property upon his death); the act may be one of
donation (with the requirements for a valid donation – formal acceptance by the donee;
notarization of the document as a public instrument);

 The testator must be capacitated (Arts. 796-798);

 It is strictly a personal act in all matters that are essential (Art. 784);

 It is essentially revocable or ambulatory (Art. 828);

 It is free from vitiated consent (executed freely, knowingly and voluntarily), otherwise
it will be disallowed (Art. 839);

 It is an individual act (cannot be executed jointly) if executed by a Filipino, whether in

the Philippines or abroad (Arts. 818 and 819);

 “Last will” and “Testament”; common usage today makes no difference between the
two terminologies; but under Anglo-American law, a “testament” disposes of personal
property, while a “will” disposes of real property, (p. 45);

 Oral conveyance; conveyance of properties without executing a document (private or

public) to that effect; despite express codal provisions, jurisprudence has recognized
oral contracts as valid and efficacious to bring about partition of a decedent’s estate
among his heirs, provided such partition does not affect the interest of third persons
(Read – Lasam v. Lasam, CA, L-18184-R, March 29, 1962, 58 O.G. 7232, p. 46);
[study what is meant by “interest of third persons”; would this include the interest of
co-heirs as when their legitime is impaired;]

 Problem – execution of will by a criminal convicted of a crime which carries the

accessory penalty of civil interdiction;

SEPTEMBER 14, 2020 MONDAY SUCCESSION A

Article 784. 
The making of a will is a strictly personal act;
it cannot be left in whole or in part
to the discretion of a third person,
 29

or accomplished through the instrumentality of an agent or attorney. (670a)

Notes
 The mechanical act of drafting a will may be entrusted to another, as long as the
disposition itself expresses the testator’s desires and as long as the formalities required
by law are complied with; note the requirements for a notarial will; in case of a
holographic will, a testator may copy in his own handwriting a will drafted with the
assistance of another person; Castaneda v. Alemany, p. 47; Bagtas v. Paguio, p.47;

 It may be advisable to employ an attorney when making a will which in many cases
involves the disposition of a testator’s estate; when a lawyer drafts a bill and is present
at the time of its execution, there is a strong presumption that the will is regularly
made, p. 47;

Article 785. 
The duration or efficacy of the designation of heirs, devisees or legatees,
or the determination of the portions which they are to take,
when referred to by name,
cannot be left to the discretion of a third person. (670a)

Notes
 The provision reinforces the rule that the making of a will is strictly a personal act;

 Where a testator wrote in his will that he gives his land to X “as long as my friend Y
allows” is a case of an illegal delegation of testamentary power; the efficacy of the
designation of X as heir is left to the discretion of third person Y;

Article 786. 
The testator may entrust
to a third person
the distribution of specific property or sums of money
that he may leave in general to specified classes or causes,
and also the designation
of the persons, institutions or establishments
to which such property or sums are to be given or applied. (671a)

Notes
 In Art. 786, the particular names are not designated and what is specified is a class
(e.g., “the first ten topnotchers in the bar examniations) or cause (e.g., “charitable
institutions”) ; in Art. 785, the names of particular persons are given

Article 787. 
The testator
 30

may not make a testamentary disposition

in such manner
that another person has to determine
whether or not it is to be operative. (n)

Notes
 Remember the rule that the making of a will is a strictly personal act (Art. 784); Art.
787 reinforces the rule;
 Example – “I institute X as my heir provided that my friend Y will agree.” The
institution of X as an heir and the delegation of the power to Y are void for being
contrary to the rule;

Article 788. 
If a testamentary disposition
admits of different interpretations,
in case of doubt,
that interpretation by which the disposition is to be operative shall be preferred. (n)

Notes
 The provision applies only in case of doubt; if no doubt exists and the disposition is
clearly illegal, the disposition should not be given effect; if the intention and desires of
a testator is clearly expressed in the will, such intention constitutes the fixed law of its
interpretation (Vda. De Villanueva v. Juico, p. 49);

 Testate succession is preferred to intestacy;

 See also Art. 791 - “The words of a will are to receive an interpretation
which will give to every expression some effect,
rather than one which will render any of the expressions inoperative;
and of two modes of interpreting a will,
that is to be preferred which will prevent intestacy.” (n)

Article 789. 
[1] When there is an imperfect description,
or when no person or property exactly answers the description,
mistakes and omissions must be corrected,
if the error appears from
the context of the will
or from extrinsic evidence,
excluding the oral declarations of the testator as to his intention;
 31

and [2] when an uncertainty arises upon the face of the will,
as to the application of any of its provisions,
the testator's intention is to be ascertained
from the words of the will,
taking into consideration the circumstances under which it was made,
excluding such oral declarations. (n)

Notes
 Ambiguity in a will, 2 kinds (latent or intrinsic ambiguity) and (patent or extrinsic
ambuiguity);

 latent or intrinsic ambiguity (1st clause of Art. 789 -); does not appear on the face of
the will, and is discovered only by extrinsic evidence; the doubt or problem arises
because of things outside the will;

o e.g., “I institute by brother-in-law as my heir”; the provision is clear when

read from the written will; but when it is discovered that there are two
brothers-in-law, there will be an ambiguity; the ambiguity is not found in the
will itself;

o latent or intrinsic validity arises when there is an imperfect description of the

heir, legatee or devisee; when there is an imperfect description of the property
given; when only one recipient is designated but it turns out that there are two
or more persons who fit the description;

 patent or extrinsic ambuiguity (2nd clause of Art. 789); appears on the face of the will
itself; an examination of a provision clearly shows that it is not clear;

o e.g., “I hereby institute some of my seven brothers as my heir.”; it is clear from

the provision written that we do not know how many of the brothers are being
instituted as heirs;

see also Art. 844 –

“An error in the name, surname, or circumstances of the heir shall not vitiate
the institution when it is possible, in any other manner, to know with certainty
the person instituted.

“If among persons having the same names and surnames, there is a similarity of
circumstances in such a way that, even with the use of other proof, the person
instituted cannot be identified, none of them shall be an heir. (773a)

o in this case, extrinsic evidence, as well as the will itself may be examined (but
not the oral declarations of the testator) to ascertain the testator’s intent; but if
the doubt remains, not one of the seven brothers will get instituted as heirs;
under Art. 844, par. 2, the heirs will be considered as unknown persons;
 32

 Remedy in case of ambiguity (latent or intrinsic as well as patent or extrinsic);

examination of the will itself and examination of extrinsic evidence/circumstances
under which the will was made (except the alleged oral declaration of the testator);
allowing alleged oral declarations of the testator can result in fraud, confusion and
unfairness to the dead person whose words may be distorted or perjured;

 Case – Del Rosario, p. 52; if a legatee is pointed out by name in the will, the fact that
he is referred to as the natural son of a third person does not necessarily make the
legacy conditional upon proof of such relationship, the reference being deemed merely
descriptive; but if it had been clearly shown that the relationship indicated is to be a
condition such legatee will not inherit unless the relationship is established;

 Case – Johnny S. Rabadilla, 20000629, p. 52; a testatrix provided an obligation for the
instituted heir and his successors-in-interest to deliver a certain quantity of sugar to a
certain person; that in the event that the obligation is not respected, the property shall
be seized and turned over to the testatrix’ near descendants; held – the obligation is
clearly imposed on the instituted heir and the successors-in-interest; the sanction of
seizure of the property and reversion to the testatrix’ near descendants is upheld;

When an uncertainty arises on the face of the will, the testator’s intention is to
be ascertained from the word of the will, taking into consideration the
circumstances under which it was made (Art. 789); such construction as will
sustain and uphold the will in all its parts must be adopted;

SEPTEMBER 15. 2020 TUESDAY SUCESSION A

Article 790. 
The words of a will
are to be taken in their ordinary and grammatical sense,
unless a clear intention to use them in another sense can be gathered,
and that other can be ascertained.

Technical words in a will

are to be taken in their technical sense,
unless the context clearly indicates a contrary intention,
or unless it satisfactorily appears that the will was drawn solely by the testator,
and that he was unacquainted with such technical sense. (675a)

Notes
 Rules for interpretation of words; ordinary words have their ordinary meanings (unless
there is a clear intention that another meaning was used and that other sense can be
determined); technical words have technical meanings (unless there is a contrary
intention; or the will was drafted by the testator alone who did not know the technical
meaning);
 33

 E.g., a layman may use “natural child” to mean a legitimate child as distinguished from
an adopted child; the term’s ordinary sense allows the reference to a legitimate child
as distinguished from an adopted child; the term has a technical sense – that born out
of wedlock with the parents not incapacitated to marry each other;

 An idiomatic expression is preferred to literal translation since the former expresses

more clearly the testator’s desires (Dionisio, p. 54);

 If the testator’s intention is manifest from the context of the will and surrounding
circumstances but is obscured by inept and inaccurate modes of expression, the
language will be subordinated to the intention (Rodriguez, 19690328, p.54);

Article 791. 
The words of a will are to receive an interpretation
which will give to every expression some effect,
rather than one which will render any of the expressions inoperative;
and of two modes of interpreting a will,
that is to be preferred which will prevent intestacy. (n)

Notes
 The will must be interpreted as a whole;

 The rule that testacy is preferred over intestacy is true only if the will has been validly
made;

 Case – Vda. De Villaflor, 19620228, p. 55; the testator gave certain properties to his
wife for her “use and possession while still living and does not remarry, otherwise the
properties will pass to my grandniece”; the widow lived for 34 more years and never
remarried; upon her death, the grandniece wanted to get the properties; it was
contended that since the widow never remarried, the grandniece cannot get the
properties;

Held – what had been granted to the widow were only the “use and possession” of the
properties while living and do not remarry; the clear intent of the testator is only to
grant a life interest or usufructuary interest which would have ceased even in her
lifetime had she remarried; it would have been different if “ownership” had been given
to the widow; each word of the will must be given some effect (Art. 791);

 Case – Vicente Uriarte, 19700529, p. 55; if in the course of intestate proceedings

pending before the court it is found that the decedent left a will, proceedings for the
probate of the will should replace the intestate proceedings (in the same court), even if
 34

an administrator had already been appointed; the estate shall be turned over to the
executor named; testate proceedings take precedence over intestate proceedings for the
same purpose;

Article 792. 
The invalidity of one of several dispositions contained in a will
does not result in the invalidity of the other dispositions,
unless it is to be presumed
that the testator would not have made such other dispositions
if the first invalid disposition had not been made. (n)

Notes
 Notes an exception – when the various dispositions are indivisible in intent or nature;

Article 794. 
Every devise or legacy
shall cover all the interest which the testator could device or bequeath*
in the property disposed of,
unless it clearly appears from the will that he intended to convey a less interest. (n)

* [to say in a will that one’s property will be given to a person]

Notes
 General rule, the entire interest of the testator in the property is given (not more not
less); if the testator is the owner of the property transferred, he transfers the ownership
of the entire house; if he were a mere co-owner, he conveys only his share; if he has
mere usufruct [the legal right of using and enjoying the fruits of something belonging
to another], he only conveys that usufructuary rights, no more, no less;

 The testator can convey a lesser interest if such intent clearly appears in the will (Art.
794); e.g., where the testator who own a house, mere conveys the usufruct of the
house;
 35

 The testator can convey a greater interest; see Arts. 929 and 931;

Article 929. 
If the testator, heir, or legatee
owns only a part of, or an interest in the thing bequeathed,
the legacy or devise shall be understood limited to such part or interest,
unless the testator expressly declares that he gives the thing in its entirety. (864a)

Article 931. 
If the testator orders
that a thing belonging to another be acquired
in order that it be given to a legatee or devisee,
the heir upon whom the obligation is imposed
or the estate
must acquire it and give the same to the legatee or devisee;
but if the owner of the thing refuses to alienate the same,
or demands an excessive price therefor,
the heir or the estate shall only be obliged to give the just value of the thing. (861a)

 The testator can convey property which he very knows does not belong to him; see
Arts. 930 and 931;

Article 930. 
The legacy or devise of a thing belonging to another person is void,
if the testator erroneously believed that the thing pertained to him.
But if the thing bequeathed,
though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title,
the disposition shall take effect. (862a)

Article 931. 
If the testator orders
that a thing belonging to another be acquired
 36

in order that it be given to a legatee or devisee,

the heir upon whom the obligation is imposed
or the estate
must acquire it and give the same to the legatee or devisee;
but if the owner of the thing refuses to alienate the same,
or demands an excessive price therefor,
the heir or the estate shall only be obliged to give the just value of the thing. (861a)

Article 795. 
The validity of a will as to its form
depends upon the observance
of the law in force at the time it is made. (n)

Notes
 Art. 795 refers to extrinsic validity of the will from the viewpoint of time (Bona, p.63,
In Re Will of Riosa, p. 63; a testator cannot be expected to know what the rule in the
future may be, hence it is enough that he follows the law in force at the time he makes
the will;

 Two kinds of validity with respect to will; extrinsic validity (refers to the forms and
solemnities needed); intrinsic validity (refers to the legality of the provisions in a will);

 Rules on extrinsic validity; from the viewpoint of time – must observe the law in force
at the time the will is made; from the viewpoint of place or country –

o If the testator is a Filipino; he can observe the Philippine laws (Arts. 804-814);
or those in the country where “he may be” (Art. 815); or those in the country
where he executes the will (Art. 17; lex loci celebrationis or locus regit actum);

o If the testator is an alien who is abroad; he can follow the law of his domicile
[a person’s fixed, permanent, and principal home for legal purposes]; or his
nationality or Philippine laws (Art. 816), or where he executes the will (Art.
17);

o If the testator is an alien in the Philippines; he can follow the law of his
nationality (Art. 817); or the laws of the Philippines where he executes his
will;

 Rules on intrinsic validity; from the viewpoint of time – successional rights are
governed by the law in force at the time of the decedent’s death (Art. 2263); from the
viewpoint of place or country - the national law of the decedent (the law of his country
or nationality) (Art. 16), regardless of the place of execution or the place of death
 37

(Miciano, p.63);

a provision in the will that a testator’s properties shall be governed by the laws of the
Philippines and not his own national laws is void (this contravenes Art. 16, par. 2
*NCC, Bellis 19670608, p. 63);

*[Article 16. Real property as well as personal property is subject to the law of the
country where it is situated.

However, intestate and testamentary successions, both

with respect to the order of succession
and to the amount of successional rights
and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person
whose succession is under consideration,
whatever may be the nature of the property
and regardless of the country wherein said property may be found. (10a)

 If the conflict rules under the national law of the deceased refer the matter to the law
of the domicile and the foreigner was domiciled in the Philippines at the moment of
death, our courts will have to apply the Philippine internal law on succession (Testate
Estate of Christensen, 19630131, p. 63); This is an instance where we accept the
renvoi which is the referring back to the forum of the problem;

September 22, 2020 Tuesday

 The legislature cannot validate a will is void (extrinsic invalidity) at the time it was
made by changing the formalities required (Enriquez, p. 63); otherwise, the testator
would be deprived of property without due process of law (in effect, his properties will
be disposed of in accordance with a will that was void when it was made);

 Change in successional rights or intrinsic validity may be done even after the will is
made, as long as the testator is still alive (matters of successional rights and intrinsic
validity of the will are governed by the law existing at the time of the death of the
testator); no rights are yet vested in the heirs until the testator’s death comes; rights to
the property accrue only at the moment of death (Art. 777);

 Case (BAR question); Vda. De Enriquez v. Miguel Abadia, 19540809, p. 64 – in

1923, when holographic wills were not allowed under the law, the testator made a
holographic will; the will was presented for probate in 1946; in 1952, the trial court
 38

allowed the will considering that under the NCC which took effect on August 30, 1950
holographic wills have been allowed; was the trial court correct?

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 held – the will should not be allowed; the extrinsic validity of will should be
determined based on the law existing at the time of the making of the will; although a
will becomes operative only after the testator’s death, still the wishes are given
expression at the time of the execution of the will;
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 Problem – T died in 1949 without legitimate descendants or ascendants or wife;
however, he had a recognized spurious child; T made a will instituting a friend as heir
without giving anything to the spurious child; is the spurious child entitled to inherit?

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 39

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 Ans. – No, the intrinsic validity of the will is governed by the law in force at the time
of the testator’s death (Art. 2263); the new right granted to spurious children under the
NCC (effective Aug. 30, 1950) cannot be accorded a retroactive effect; a new right
cannot be granted a retroactive effect if it will impair a vested right; the right of X as
instituted heir became vested at the time of the death of the testator;

 Problem – the testator, a Chinese, made a will in the Philippines giving all his
properties to his friend X; the testator has a legitimate child; the properties are in the
Philippines; what issues are pertinent in relation to the validity of the will? How will
you resolve the issues?

Answer:
o Is the will extrinsically valid? If the testator is an alien in the Philippines; he
can follow the law of his nationality (Art. 817); or the laws of the Philippines
 40

where he executes his will;

o Is the will intrinsically valid? The intrinsic validity of the will is governed by
the law of the nationality of the testator;

o Can the testator give all his properties to friend X and not give his legitimate
child anything? It will depend on the law of the nationality of the testator;

o What will be the rule considering that the properties are in the Philippines?

 the national law of the decedent (the law of his country or nationality)
(Art. 16), regardless of the place of execution or the place of death
(Miciano, p.63); if under the Chinese law, a child is not a compulsory
heir, then the testator may property disregard him;

 this is true even if the properties are in the Philippines; see Art. 16
NCC;

[Article 16. Real property as well as personal property is subject to the law

of the country where it is stipulated[situated?}.

However, intestate and testamentary successions, both

with respect to the order of succession
and to the amount of successional rights
and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person
whose succession is underthe consideration,
whatever may be the nature of the property
and regardless of the country wherein said property may be found. (10a)

 Read Paula T. Llorente v. CA and Alicia F. Llorente, GR 124371, Nov. 23, 2000, p.70;
[case originated from RTC, Iriga City, involving parties residing in Nabua;
the deceased testator Lorenzo joined the US Navy in 1927, came back to the
Philippines and married Paula in 1937, went back to US before the outbreak of the
Pacific War, became US citizen in 1943, visited wife in 1945 and discovered that wife
was pregnant and was living in and having an adulterous relationship with testator’s
brother; Lorenzo refused to forgive Paula; in 1952, obtained a divorce in US; in
1958, married Alicia and had 3 children; made a will in 1981 giving all his properties
to wife Alicia and 3 children; in 1983, filed a petition for probate and allowance of his
will; in 1984, will was admitted to probate; in 1985, before the proceedings could be
terminated, Lorenzo died; 1985, Paula filed petition with the same court for letters
administration and contended she was surviving spouse and claimed her legitime and
share in the conjugal property; in 1987, RTC decision found divorce decree void and
held Lorenzo’s will intrinsically invalid and declared Paula entitled to her share and
heir to Lorenzo’s properties; 1987, appeal to CA which affirmed/modified the RTC
decision; Alicia filed petition with SC, appealing CA’s decision;
 41

SC held
o Undisputed facts -Lorenzo became an American citizen before the divorce with
Paula; marriage to Alicia after Lorenzo was divorced from Paula; execution of
his will in 1981; Lorenzo’s death in 1985;

o The issues arising from the incidents of the case are governed by foreign law;
see Arts. 15 and 16 NCC:

o There is no such thing as one American law; each state of the union has its
own law applicable to its citizens and in force only within the State; the law of
the State of which the decedent was a resident is the applicable law; in the
case, there was no showing that the application of the renvoi doctrine is called
for or required by the New York State law;

o On the validity of foreign divorce; under the nationality principle in Art. 15

NCC, only Philippine nationals are covered by the policy against absolute
divorces, the same being contrary to our concept of public policy and morality;
aliens may obtain divorces abroad, provided they are valid according to their
national law (citing Van Dorn v. Romillo, Jr. case);

Once proven that the person is no longer a Filipino citizen when he obtained the
divorce, the ruling in Van Dorn would become applicable (citing Quita v. CA
case);

o For failing to apply the aforesaid doctrines, SC reversed the decisions of the
CA and the RTC; held Lorenzo’s divorce valid; case was remanded to the trial
court to determine the effects of the divorce as to the succession to the estate of
Lorenzo;

See Paula T. Llorente v. CA and Alicia F. Llorente, GR 124371, Nov. 23, 2000 case, see copy
posted in BB Platform;

See Unson v. Abella, 19220612, gr 17857 case, see copy posted in BB Platform;

SEPTEMBER 24, 2020 WEDNESDAY INSURANCE A

SUBSECTION 2. Testamentary Capacity and Intent

 Testamentary capacity; the right/ability to make a will provided certain conditions are
complied with; the testator is not prohibited by law to make a will (Art. 796); at least 18
years old; of sound mind at the time of the execution of the will (Art. 798);
 42

Note, soundness of mind is present when the testator knows the nature of the estate to be
disposed of, the proper objects of his bounty, and the character of the testamentary act
(Art. 799);

Testamentary capacity may be active testamentary capacity (the capacity to make a will
or codicil) or passive testamentary capacity (the capacity to receive by virtue of a will);

 Testamentary power; the statutory right (privilege granted by law) to dispose of property
by acts effective mortis causa; the right is given usually as a consequence of ownership
and in consideration of family relations;

Article 796. 
All persons
who are not expressly prohibited by law
may make a will. (662)

Notes
 Capacity is the general rule; incapacity is the exception;

 To have capacity or ability to make a will, a person (natural person not juridical
person) must not be expressly prohibited by law to make a will; must be at least 18
years of age; and must be of sound mind at the time of the making of a will;

 A convict under civil interdiction is allowed to make a will; civil interdiction prohibits
a disposition of property inter vivos, not mortis causa (Art. 34, RPC);

 Spendthrifts or prodigals, even if under guardianship, are not disqualified by law from
making a will provided they possess the qualifications required by law;

Article 797. 
Persons of either sex
under eighteen years of age
cannot make a will. (n)

Notes
 Must have passed his 18th birthday, following the concept under the Spanish Law
(American law allows the making on the day just before the 18 th birthday); at age 18, a
person is generally no longer subject to fraud, influence or insidious machinations;

Article 798. 
In order to make a will
it is essential that the testator
 43

be of sound mind at the time of its execution. (n)

Notes
 Soundness of mind must exist at the time of the making of the will; not before or after;

 Question - What does the court consider in whether a will has been duly executed?

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 What due execution of a will includes (Doroteo, 1999, p. 75);
o That the testator was of sound mind at the time of the execution of the will;
o That he had freely executed the will and was not acting under duress, fraud,
menace or undue influence; [note the ruling in Icasiano case regarding fraud
and undue influence not going together; get copy of case];
o That the will is genuine and not a forgery;
o That he is a person not expressly prohibited by law from making a will;
o That he was of proper testamentary age;
o [can add - That the will complies with the solemnities and formalities required
by law];

Article 799. 
To be of sound mind,
it is not necessary
that the testator be in full possession of all his reasoning faculties,
or that his mind be wholly unbroken, unimpaired, or unshattered
by disease, injury or other cause.

It shall be sufficient
if the testator was able
at the time of making the will
 44

to know
the nature of the estate to be disposed of,
the proper objects of his bounty,
and the character of the testamentary act. (n)

Notes
 The first par. indicates what is not required to be possessed of sound mind – i.e. full
possession of all reasoning faculties or a mind that is wholly unimpaired by disease,
injury or other cause;

 The following had been ruled as not meaning that a person is not possessed of sound
mind as contemplated in Art. 799, p. 76 – paralysis and loss of speech; cholera;
insomnia; diabetes; sleeping sickness or Addison’s disease; cerebral hemorrhage
affecting half of the body; deafness, blindness, poor memory;


SEPTEMBER 28, 2020 MONDAY

 Senility (infirmity arising out of old age) should be distinguished from “senile
dementia” (decay of mental faculties); the latter when advanced or absolute
may produce unsoundness of mind resulting in testamentary incapacity (Crisostomo, p.
77);

 Instances where unsoundness of mind may be manifested, p. 77;

o religious delusion resulting in the unsettling of judgment;
o blind extraordinary belief in spirits while executing a will;
o monomania (insanity on a single subject), if this happens to be on the subject of
wills or succession;
o insane delusions, beliefs in things which no rational mind would believe to
exist;
o drunkenness if this results in failure to know the nature of the testamentary act;
o idiocy, congenital intellectual deficiency;
o comatose stage, resulting from hypertension and cerebral thrombosis, and
preventing the testator from talking or understanding);
o state of delirium;

 The 2nd par. provides for when is there the presence of soundness of mind contemplated
in Art. 799;

 Question – what does soundness of mind require?

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 45

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 Ans. –

o That the testator knows the nature of the estate to be disposed of (character,
ownership of what he is giving);
o That the testator knows the proper objects of his bounty (persons who for some
reason expect to inherit from the testator);
o That the testator knows the character of the testamentary act (that it is really a
will, that it is a disposition mortis causa, which is essentially revocable);

Article 800. 
The law presumes
that every person is of sound mind,
in the absence of proof to the contrary.

The burden of proof

that the testator was not of sound mind
at the time of making his dispositions
is on the person who opposes the probate of the will;
but if the testator,
one month, or less,
before making his will was publicly known to be insane,
the person who maintains the validity of the will
must prove that the testator made it during a lucid interval. (n)

Notes
 The law presumes soundness of mind; he who alleges insanity has the burden of
proving it; note when the presumption does not exist;
 46

 Two instances when soundness of mind is not presumed; the person alleging validity
of the will must prove that the testator made the will during a lucid interval;
o If the testator, one month or less before making the will was publicly known to
be insane;
o If the testator made the will after he had been judicially declared insane, and
before such judicial order had been set aside (Torres, p.78);

 Case (Testate Estate of Valeriano Raymundo, 1941, p. 79) – the insanity of the parents
and children of the testator does not indicate absence of presumption of soundness of
mind;

 Evidence of soundness of mind; The testimony of the attesting witnesses as to the

mental condition of the testator should be given great weight (Unson*, p. 79) and
should prevail over that given by a non-attending physician (Samson, p.79); however,
the physician should be believed if he was constantly near the testator and he actually
saw the testator on the date of the execution of the will (Gonzales, 1951, p. 79);

*See copy of case – #succession case Unson v. Abella;

Article 801. 
Supervening incapacity
 47

does not invalidate an effective will,

nor is the will of an incapable
validated by the supervening of capacity. (n)

 The issue is whether or not that the testator was of sound mind at the time of the
making of the will;

Article 802. 
A married woman may make a will
without the consent of her husband,
and without the authority of the court. (n)

Notes
 Note that the woman must have capacity to make a will (at least 18 years of age and
must be of sound mind at the time of the making of the will);

 Note the commentary on “contractual succession”; “contractual succession” has been

done away with under the Family Code;

Article 803.
A married woman may dispose by will
of all her separate property
as well as her share of the conjugal partnership or absolute community property. (n)

Notes
 Problem – A wife disposed by will of the husband’s capital or his share in the conjugal
partnership (say a conjugal house); what issues or question may arise? How will you
resolve the issues?
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 48

 Ans. –
Is the wife’s disposition of the husband’s capital or share in the conjugal partnership
valid?
Can a testator dispose by will a property not belonging to the testator?
What rights will the other compulsory heirs of the wife have?
o The wife cannot dispose of her husband’s capital or share in the conjugal
partnership in her will; unless she knows that the same is not hers and her
intention is for her executor to purchase the properties in order that they may be
given to her heirs (Arts. 930 and 931);
o Ordinarily, the husband gets half of the conjugal properties; but if in the
liquidation/distribution proceedings, the house is awarded to the estate of the
wife and the husband receives some other property, the heirs of the wife can
get the whole house;

SUBSECTION 3. Forms of Wills

 Two kinds of wills recognized under the NCC; ordinary or notarial will and holographic
will; the NCC does not recognize the validity of “nuncupative wills” [the word
“nuncupative” does not appear in the dictionary] which are wills orally made by the
testator in contemplation of death, and before competent witnesses;

 Acdg. to the Code Commission, the law has the view of giving the testator more freedom
in expressing his last wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon
the testator; this is in accord with the modern tendency in respect to the formalities in the
execution of the wills, p. 81;

Article 804. 
Every will must be
in writing
and executed in a language or dialect known to the testator. (n)

Notes
 Art. 804 does not recognize oral wills;

 Evidence on handwriting;
o The handwriting of a person may be proved by any witness who believes it to
the be the handwriting of such person because he has seen the person write, or
has seen writing purporting to be his upon which the witness has acted or been
charged, and has, thus, acquired knowledge of the handwriting of such person
(Batulanon, 2006, p. 81);

o Handwriting experts are usually helpful in the examination of forged

 49

documents, but resort to these experts is not mandatory or indispensable to the

examination or comparison of handwriting; the judge must conduct an
independent examination of the questioned signature in order to arrive at a
reasonable conclusion as to its authenticity (De Jesus, 2006, p. 82);

o The opinions of handwriting experts, although helpful because of the technical

procedure employed in the analysis, are not binding upon the courts (G & M
Philippines, Inc., 2006, p. 82; Gulam, 2006, p. 82);

 It is an accepted fact that it is very rare that two specimens of a person’s signature are
exactly alike (Club Filipino, Inc., 2006, p. 82);

SEPTEMBER 29, 2020 TUESDAY

 Notes on the Electronic Commerce Act (RA 8762), approved on June 14, 2000;
o "Electronic commerce” (not defined in the law) is explained as “the process of
buying and selling goods electronically by consumers and from company to
company through computerized business transactions, p. 73;

o In the interpretation of the law, due regard is accorded to its international origin
(UNCITRAL Model Law on E-commerce); and considers the need to promote
uniformity in the application of the law alongside the observance of good faith
in international trade relations, as well as the generally accepted principles of
international law, p. 83;

o Sec. 7[a] of the ECA provides that “where the law requires a document to be in
writing, that requirement is met by an E-document if said document maintains
its reliability and integrity and can be authenticated so as to be usable for
subsequent reference,” p. 83; [note the concerns on how this provision can be
reconciled with NCC provisions that require certain documents to be put in
writing (Arts. 1403[2], 1874, 1874, 1955, 804;

o On the other hand, Sec. 7(c-ii) of the ECA provides that “no provision xxx shall
apply to vary any and all requirements of existing laws and formalities required
in the execution of documents for their validity;” note the concern on apparent
conflict in the existing laws, including provisions in the NCC, Rules of Court,
etc.

o It appears that contractual agreements entered into may be deemed valid and
enforceable even if it is in the form of an E-document, except in the execution
of a will;

o Note also the comments and discussion regarding “electronic/digital signature;”

an E-signature is not a handwritten signature that is scanned or graphically
 50

imprinted on the E-document, p. 84; in SC Resolution Re Rules on Electronic

Evidence, an authenticated E-signature (Rule 2, Sec. 1(j), AM 01-7-01, SC
Resolution, effective Aug. 1, 2001) or a digital signature (also authenticated)
[Rule 2, Sec. 1(e) is admissible in evidence as the functional equivalent of the
signature of a person on a written document (Rule 6, Secs. 1 and 2, id.);

Article 805. [Memorize]
Every will, other than a holographic will,
[so the provision refers to ordinary or notarial will]
must be subscribed [i.e. signed]
at the end thereof [at the end of the will (the logical end)]
by the testator himself
or by the testator's name written by some other person
[1] in his presence,
and [2] by his express direction,
[requirements where the testator’s name is written by some other person]
and attested
and subscribed
by three or more credible witnesses
[referred to as the instrumental witnesses to the will]
in the presence
[1] of the testator
and [2] of one another.]
[in whose presence must the instrumental witnesses
have attested and subscribed the will]

The testator or the person requested by him to write his name

and the instrumental witnesses of the will,
shall also sign, as aforesaid,
each and every page thereof,
[note who are required to sign each and every page of the will]
except the last,
on the left margin,
[SC decisions indicate that it is sufficient even if the signature is not on the left margin]
 51

and all the pages shall be numbered correlatively in letters

[SC decisions hold that the will can be valid even if the paging is not in letters (i.e. Page One,
Two, etc.) but is done in Arabic numbers (e.g. Page 1, 2, etc.) or in letters (e.g. Page A, B etc.)
placed on the upper part of each page.
[SC decisions rule that it is sufficient if paging appears on each page even if not on the upper
part of the page.]

The attestation
[Note the meaning of attestation as used in this part of the provision - …
shall state
the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction,
in the presence of the instrumental witnesses,
and that the latter witnessed
and signed the will and all the pages thereof
in the presence
of the testator
and of one another.

If the attestation clause

is in a language not known to the witnesses,
it shall be interpreted to them. (n)

:
Article 805 - Rewritten.

 Signed by the testator; of by the testator’s name written by some other person (in the
presence of the testator and by his express direction); at the end of the will;
 Attested and signed by 3 or more credible witnesses in the presence of the testator and
of one another;
 The testator (or the person requested by him to write his name) and the instrumental
witnesses shall also sign each and every page of the will (except the last) on the left
margin;
 All the pages shall be numbered correlatively in letters placed on the upper part of each
page;
 Attestation [clause] shall state
 The number of pages used upon which the will is written;
 The fact that the testator signed the will and every page thereof (or caused some
other person to write his name, under his express direction), in the presence of
the instrumental witnesses;
 The instrumental witnesses witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another;
 If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.
 52

 Mnemonic – SAPNAL
S – signed;
A – attested and signed;
P – page (sign each and every page);
N – numbered (all pages numbered correlatively);
A – attestation clause;
L – language.

Notes
 Read the case Azuela - #successioncase – 20060412 – azuela v. ca – gr 122880 – rc
20200926 (Posted in the Blackboard platform); SEÑAR, JOHN OLIN HERNANDEZ

Azuela v. Castillo April 12, 2006

OCTOBER 1, 2020 THURSDAY

 Note that Art. 805 provides for these two distinct requirements, among other
requirements:
 That the instrumental witnesses sign each page of the will; and,
 That the will be attested and subscribed [signed] by the instrumental witnesses;

 Thus, an unsigned attestation clause results in an unattested will. Even if the

instrumental witnesses signed the left-hand margin of the page containing the
unsigned attestation clause, such signatures in the left-hand margin cannot
demonstrate the undertakings required to be stated in the attestation clause, since
the signatures that do appear on the page serve a different purpose (Azuela, p.
86);

Note what is contained in the attestation clause –

“The attestation
shall state
the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express
direction,
in the presence of the instrumental witnesses,
and that the latter witnessed
and signed the will and all the pages thereof
in the presence
of the testator
and of one another.”

 Requirements for a notarial or ordinary will

 Note the fundamental requirements that the testator must be at least 18 years
 53

old and possessed of a sound mind;

 The will must be in writing (could be handwritten, typed or printed); even if
written in a poor stationery, or not prepared by a lawyer;
 The will must be executed in a language or dialect known to the testator; a
testator residing in a certain locality can be presumed to know the language or
dialect of the locality (Abangan, p.86), but the presumption is only prima facie
and the contrary may be proved (Acop, p. 86); the fact that the testator knew
the language of the will need not be stated in the will itself and extrinsic
evidence is allowed to prove that the testator knew the language;
 The will must be subscribed (signed) at the end thereof by the testator himself
or by the testator’s name written by another person in the presence of the
testator and by the express direction of the testator;
o If the will is not signed at the end of the will but somewhere else, the
will is not valid (Paras, p. 87 citing foreign case);
o If after the signature there are additional provisions, the whole will is
void (Paras, p. 87 citing foreign jurisprudence
o “End” of the will means the logical end of the will, not the physical end
of the will; note the example cited by Paras, if a will starts on the 1 st
page, continues on the 3rd page, but is concluded on the 2nd page, the end
of the 2nd page is the logical end;
o A will signed only with the first name of the testator (without the
surname) is valid (Yap Tua, p. 87);
o It is all right if the testator’s name is misspelled, abbreviated or by
nickname, or by “Father” or “Mother”, or in an assumed name, provided
the testator intended the same to be his signature (Paras, p. 87); true
even if the name signed by testatrix after a 2nd marriage is the name she
had borne under her former marriage (Paras, p, 88);
o A testator can sign with his thumbmark (Solar, etc. p. 88) or with his
initials (Yap Tua) or even with a rubber stam or an engraved dye,
provided the testator intends the same to be his signature (Paras, p. 88),
or even if the testator’s hand is guided by another when the signing or
marking is made (Amata, p. 88);
o A testator can sign with a mere cross if he intends that to be his
signature (Abaya, etc., p. 88);
o Case (Garcia, p. 88) – somebody else writes the testator’s name, the
mere placing by the testator of a cross after the written name, without
there being a statement in the will that another person had signed for the
testator, the will is void because of the failure to state the signing of the
testator’s name by another person; in the case of La Cuesta, the SC said
that it would have been different had it been proved that the cross was
the usual signature of the testator, or was one of the ways by which he
signed his name; he would have been considered to have signed the
will himself and the absence of statement that the testator’s name was
written by another person would have been immaterial;

o Even if a person knows how to write his name, he can still sign by the
 54

use of a thumbmark (Paras, p. 88);

o In case the testator’sname is written by another person, such person

must not be one of the 3 instrumental witnesses, unless there be more
than 3 witness (Tan Diuco, p. 89);

o The signing by another person for the testator may be done in various
ways – “For the testator, Mr. Ty by Miss Ty;” or “Mr. Ty, by Miss Ty”
(Arcenas, p. 89);

o Person signing for the testator does not need to put is own name (Barut,
etc. p. 89); if he puts his own name and omits the testator’s name, the
will will be invalid (Guison, etc. p. 89);

o If the person who signs the name of the testator is one of the subscribing
witnesses, this is all right (Barut, p. 90)
[See p. 89, In Re Will of Tan Diuco; need to reconcile; assign a student
to study the matter]

o The requirement that the person asked to write the testator’s name in the
will must sign in the presence of the testator – this does not necessarily
mean that the testator must actually see the signing; it is enough that he
could have seen it so, or felt it (as when the testator is blind) without
any physical obstruction, had the testator wanted to (Jaboneta, p. 90;
Jaboneta vs. Gustilo 5 Phil. 541/ NOBLE, NEIL WINFRED BELMONTE);

o Regarding express direction, this means the delegate must be expressly

authorized to do so; may be done by clear gesture or motion or conduct,
such as the nodding of head (Paras, p. 90); mere knowledge that the
will is being signed in his behalf or acquiescence to such an act is not
sufficient;

o See Taboada, p. 90; 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 law requires for the execution of the will and
that the signature of the testator exists as a fact; subscription is the
signing of the witnesses’ name upon the same paper for the purpose of
identifying such paper as the will which was executed by the testator
(Paras, p.90);

OCTOBER 5, 2020 MONDAY SUCCESSION A

 55

Assignment for Ms. Denise Sendico; for take up on Oct. 5, 2020 Monday;

o In case the testator’s name is written by another person, such

person must not be one of the 3 instrumental witnesses,
unless there be more than 3 witness (Tan Diuco, p. 89);

o If the person who signs the name of the testator is one of the
subscribing witnesses, this is all right (Barut, p. 90)
[See p. 89, In Re Will of Tan Diuco; need to reconcile;
assign a student to study the matter]

 The will must be attested and subscribed by 3 or more credible witnesses in the
presence of the testator and of one another;

o 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
law requires for the execution of the will [i.e. that the things required by
law to be done in the execution of wills are actually done] and that the
signature of the testator exists as a fact (Taboada, p. 90);

o this requirement is distinct from the requirement for an attestation

clause; the attestation clause is proof of the fact of such attesting;

o “In the presence” does not necessarily require actually seeing, but
possibility of seeing without any physical obstruction (Jaboneta, p. 91);
if there is a curtain separating the testator and some witnesses from the
other witnesses, there would be physical obstruction and the will will
not be valid (Nera, p. 91); in case the testator is blind the “presence”
may be complied with if the signing or action is within the range of the
other senses like hearing, touch, etc. of the testator; what is important is
that the testator realizes what is being done - test of available senses
(Paras, p. 91);

o If the will has been previously signed by the testator and is subsequently
presented to the witnesses, the requirement that the will be signed in the
presence of witnesses is not complied with; but as long as the signing is
done within the presence of one another, it really does not matter much
whether the witnesses signed ahead of or after the testator, as long as the
signing is sufficiently contemporaneous, the will is valid (Gabriel, p.
92);

o Note that while the attesting must be done in the presence of all, the act
 56

of acknowledging before the notary public does not have to be

contemporaneous; the acknowledgment does not even have to be done
in the presence of all of them, since the law does not mention this as a
requirement; neither does the law require that execution and
acknowledgment of a will be made on the same day (A. Ledesma, p.
92);

 The testator or the person requested by him to write his name, and the
instrumental witnesses of the will shall sign each and every page of the will
except the last on the left margin;

o The law says “page” not sheet; a sheet has two pages (the front and the
reverse sides); if both are used, both must be paged (Saguinsin, p. 92);

o The last page need not be signed on the left margin because the
signatures are required to be made at the end of the will;

o If the last page contains only the attestation clause, the testator need not
sign on the margin (Fernandez, p. 92); it is the instrumental witnesses
who are required to sign the attestation clause, not the testator;

o The requirement for the marginal signatures on the left margin is served
even if the signatures are on the right, top or bottom margin; the
purpose for the requirement is to identify the pages used, and thus
prevent fraud (Avena, p. 93);

o Failure to have the marginal signatures of the testator and the witnesses
is a fatal defect (Tampoy, p. 93);

o Case (Estate of Tampoy [read the case], p. 93) – the first page of a will
bore the signatures of the three instrumental witnesses but not the
signature or the thumbmark of the testator; the will is not valid, the
absence of the signature of the testator is a fatal defect;

o Case - Icasiano vs. Icasiano 11 SCRA 423/ PARAFINA, VINCENT JOEREL

ENRILE;

o A credible witness is one possessed of the qualifications imposed by

law (Art. 820) and is not disqualified from being a witness to a will
(Art. 821)

Article 820. 
Any person
of sound mind
 57

and of the age of eighteen years or more,

and not blind, deaf or dumb,
and able to read and write,
may be a witness to the execution
of a will mentioned in article 805 of this Code. (n)

Article 821. 
The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted
of falsification of a document,
perjury or false testimony. (n)

 All the pages shall be numbered correlatively in letters placed on the upper part
of each page;

o to guard against fraud, prevent substitution or afford means of detecting

the loss of any of the pages of the will (Lopez, p. 94);

o correlative numbering in letter means “One,” “Two,” “Three” etc. but

“A,” “B,” “C” etc would be sufficient (Aldaba, p. 94); Page 1, Page 2,
Page 3 is sufficient (Nayue, p. 94); plain 1, 2, 3 would be substantial
compliance with the law (read Lopez v. Liboro 81 Phil. 429, p. 94 to
clarify/understand the commentary);

o not necessary to number the first page (Lopez, etc., p. 95); nor the last
page if it contains solely the attestation clause (Fernandez, p. 95);

 The attestation clause shall state

(1) The number of pages used upon which the will is written;
(2) The fact that the testator signed the will and every page thereof (or caused
some other person to write his name, in his presence and under his express
direction), in the presence of the instrumental witnesses;
(3) The instrumental witnesses witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another

o Case (Taboada, p. 95) – attestation clause failed to state the number of

pages but it is discernible from the entire will that it really consists of
only 2 pages (the first containing the provisions and the 2nd containing
the attestation clause and the acknowledgment; also the
ascknowledgment states that “This Last Will and Testatment consists of
two pages including this page;” the will was allowed in probate; the
Court said the matter should be approached liberally;
o The absence of the attestation clause is a fatal defect (Neumark, p. 96);
if the attestation clause is not signed by the attesting witnesses at the
bottom of the attestation clause, the will is void since the omission
 58

negates the participation of said witnesses (Cagro, p. 96);

o Failure of the attestation clause to state the number of pages is a fatal

defect (Andrada, p. 96); however, even if the number of pages is not
stated in the attestation clause but it is written somewhere else in the
will, as long as no evidence aliunde is required, there is deemed
substantial compliance with the law (Singson, etc. p. 96);

o The attestation clause is not part of the will itseilf but it may be
incorporated into the will itself, or it may be written on a separate page
(Villaflor, p. 96);

o The testator need not sign the attestation clause; the attestation clause is
an act of the witnesses; if the testator’s signature, it will be treated as
mere surplusage (Abanga, etc., p. 97);

o Note that while the testator is required to know the language of the will,
the witnesses are not required to know the language of the attestation
clause; it is sufficient that it be translated to the witnesses (Art. 805, last
par.);

o Purposes of the attestation clause

 To preserve in permanent record form a record of the facts

attending the execution of the will so that in case of failure of
the memory of the witnesses, or any other casualty, they may
still be proved (Leynes, p. 97);

 To render available proof that there has been a compliance with

the statutory requisites for the execution of the will;

 To minimize the commission of fraud or undue influence;

o Case (Caneda, p. 98) – the defects in the attestation clause can be cured or
supplied by the text of the will or a consideration of matters apparent
therefrom which would provide the data not expressed in the attestation
clause or from which it may necessarily be gleaned or clearly inferred that
the acts not stated in the omitted textural requirements were actually
complied with in the execution of the will;

SOCTOBER 6, 2020 TUESDAY SUCCESSION A

The attestation clause does not form part of the testamentary disposition, it
need not be written in a language or dialect known to the testator;
 59

o Note that while the witnesses are required to participate in the

acknowledgment before the notary public, what they will acknowledge
is not the will but the attestation clause; the witnesses

o Purposes of the attestation clause

o Ions are not required to know the contents of the will (Paras, p. 99);

o Error in the date of the notarial will will not defeat a notarial will since the
law does not even require it to be dated (Padilla, p. 99); but a holographic
will is required to be dated, otherwise it is null and void;

o It is not essential to state the place where the will is made or executed
(Dionisio, p. 99);

o It is not essential to state in the attestation clause that the person delegated
by the testator to sign in his behalf did so in the presence of the testator; it
is enough that it be proved in court that this was what happened (Jallores, p.
99);

o Note – when asked in the BAR for the essential requisites for notarial wills,
Arts. 804 to 809 (inclusive) must be indicated in your answer;

o Donations mortis causa partake the nature of testamentary provisions (Art.

728) and must be executed with the requisites on the solemnities of will
under Art. 805 and 806;

Article 806. 
Every will must be acknowledged
before a notary public
by the testator and the witnesses.
[Note that the testator will be acknowledging the will
and the witnesses will be acknowledging the attestation clause]
The notary public
shall not be required to retain a copy of the will,
or file another with the office of the Clerk of Court.(n)

Notes
 While Art, 806 says “Every Will,” but the requirement for acknowledgment before a
 60

notary public applies only to notarial or ordinary wills; note that it makes reference to
witnesses, and a holographic will needs no witnesses;

 The provision requires an acknowledgment, not merely subscribed and sworn to; the
acknowledgment coerces the testator and the instrumental witnesses to declare before
an officer of the law that they had executed and subscribed to the will as their own free
act or deed (Azuela 2006, p. 100); if a will is duly acknowledged before a notary
public, there is, in its favour, the presumption of regularity (Gonzales 19790525, p.
100);

 Case (Maglasang* 20020605, p. 101) – court deemed a deed of donation to be a

donation mortis causa; and since it was not executed in the manner provided under
Arts. 805 and 806, the same was declared null and void;

Note that the deeds expressly provide that the donation shall be rescinded in case the
donor should survive the donee; SC noted that the donor would not have expressed
such provision if the donor intended that the donation should take effect during the
donor’s lifetime ;

 Even if a will is subscribed and sworn to before a notary public (jurat), if it is not
acknowledged before a notary public, the will is fatally defective (Azuela 2006, p.
101);

 Acknowledgment, def., it is an act of one who has executed a deed in going before
some competent officer or court and declaring it to be his act or deed; it involves an
extra-step undertaken whereby the signor actually declares to the notary that the
executor of the document has attested to the notary that the same is his own free act
and deed (Azuela 2006, p. 102);

 Jurat, def., that part of an affidavit whereby the notary certifies that before him, the
document was subscribed and sworn by the executor (Azuela 2006, p. 102);

 History of the provision; under the Spanish Civil Code, notarial intervention was
required; under the Code of Civil Procedure, the requirement for acknowledgment was
eliminated; under the NCC, the requirement was restored to insure authenticity and to
minimize fraud; if the requirement is not complied with, the notarial will shall be
disallowed (In Re Testate Estate of Alberto 19590429, p. 102);

 The notary public is not required to be present at the execution of the will; he cannot
be one of the three instrumental witnesses; his presence is required for the
acknowledgment;

 The notary public is not required, not even allowed, to read the will or know the
contents of the will, unless the testator permits him to do so; the notary public is not
the person acknowledging the will, it is before whom that the will is acknowledged;
the only instance when the notary public is required to read the will is in the case
 61

contemplated in Art. 808 regarding a testator who is blind;

 The testator and the instrumental witnesses do not have to make the acknowledgment
in the presence of one another, Testate Estate of A. Ledesma 19550630, p. 103;

 Persons other than the subscribing or attesting witnesses cannot make the
acknowledgment;

 A notarial will is not a public instrument, although acknowledged before a notary

public; unlike in the case of public instruments, the notary public shall not be required
to retain a copy of the will or file a copy of the will with the Office of the Clerk of
Court;

 The documentary stamp is required to be affixed on the document at the time the
taxable document is presented in evidence (Del Castillo, p. 103);

Article 807. 
If the testator
be deaf,
or a deaf-mute,
he must personally read the will, if able to do so;
otherwise, he shall designate two persons
to read it and communicate to him,
in some practicable manner,
the contents thereof. (n)

Notes
 The two persons designated to read the will need not be the attesting witnesses; [?
May it be the attesting witnesses?]

Article 808. 
If the testator
is blind,
the will shall be read to him twice;
once, by one of the subscribing witnesses,
and again, by the notary public before whom the will is acknowledged. (n)

 That the requirement under Art. 807 has been complied with must be proved in the
probate proceedings (extrinsic or parol evidence is allowed); stating the compliance
with Art. 807 in the notarial acknowledgment or in the attestation clause is not required
(although it would seem wise), but it must be sufficiently proved in the probate
proceedings; this also applies to Art. 808 (blind testator);
 62

 Case (Mascarin 19480630, p. 104) – in a case involving an illiterate testator, SC held

that the fact that the will had been read to him need not be stated in the attestation; it is
sufficient if such fact is proved in the probate proceedings; this applies also to Art. 808
(blind testator);

Article 808. 
If the testator
is blind,
the will shall be read to him twice;
once, by one of the subscribing witnesses,
and again, by the notary public before whom the will is acknowledged. (n)

Notes
 The law does not provide that the will be signed and executed in the presence of the
notary public but this may be advisable so that the blind testator may have the benefit
of the participation of the notary public even before he signs the will;

 If a testator is a deaf-mute and also blind, may he still make a will? Paras suggests the
answer is no, unless in some way, the contents of the will may be properly
communicated to him in accordance with legal requirement;

 Art. 808 applies also to those who, for one reason or another, are incapable of reading
their will (Alvarado 1993, p. 105);

 The notary public before whom the will is acknowledged cannot be one of the three
witnesses to said will, in view of the absurdity of one person acknowledging something
before himself (Cruz, 19731126, p. 105);

Article 809. 
In the absence of
bad faith,
forgery,
or fraud,
or undue and improper pressure and influence,
defects and imperfections
in the form of attestation
or in the language used therein
[note that the provision refers to defects and imperfections in the form of attestation of in the
language used in the attestation)
shall not render the will invalid
 63

if it is proved
that the will was in fact executed and attested
in substantial compliance with all the requirements of article 805. (n)

NOTES
 The article provides the rule for substantial compliance, i.e. as long as the purpose
sought by the attestation clause is obtained, the will should be considered valid;

 In the case of Alvarado v. Gaviola 1993, p. 106, SC explained, substantial compliance

is acceptable where the purpose of the law has been satisfied, the reason being that the
solemnities* surrounding the execution of a will are intended to protect the testator
from all kinds of fraud and trickery but are never intended to be so rigid and inflexible
as to destroy the testamentary privilege; formal** imperfections should be brushed
aside when they do not affect its purpose and which, when taken into account, may
only defeat the testator’s will;

*solemnities, [solemn, dict. meaning –very serious or formal in manner, or done or

made sincerely; solemnities – serious or formal conditions];

**formal, [relating to or involving the outward form rather than content; following
established rule];

 Art. 809 speaks not of defects of substance but defects in the form of attestation, or in
the language used therein [in the attestation];

OCTOBER 7, 2020 WEDNESDAY SUCCESSION A

 Case (In the Matter of the Petition for the Probate of the Will of Dorotea Perez
(deceased); Apolonio Taboada v. Hon. Rosal, 19821105, p. 106;

Facts – In a notarial will consisting of two pages, the first contained the entirety of the
will, and the second page contained both the attestation clause and the
acknowledgment. The signature of the testator was placed at the end of the first page,
but the signatures of the attesting witnesses were placed at the left-hand margin of said
page. Can the will be admitted to probate?









 64








Held – Yes. There is nothing in the law [Art. 805] which requires that the
attesting witnesses should also sign at the end of the will or at the end of the
attestation clause [re-check this!]. The law is to be liberally construed. While
perfection in drafting is to be desired, unsubstantial departures ought to be ignored.

*Get copy/read cases; In the Matter of the Petition for the Probate of the Will of
Dorotea Perez (deceased); Apolonio Taboada v. Hon. Rosal, 19821105, p. 106;

The commentary says that “There is nothing in the law [Art. 805] which requires that
the attesting witnesses should also sign at the end of the will.”

See Art. 805 –

“Article 805. [Memorize]
Every will, other than a holographic will,
must be subscribed
at the end thereof
by the testator himself
or by the testator's name written by some other person
in his presence,
and by his express direction,
and attested
and subscribed
by three or more credible witnesses
in the presence
of the testator
and of one another.

xxx."

 How substantive defect can be cured;

 Paras (p. 107) submits that defects of substance can be cured only by evidence within
the will itself, not by extrinsic evidence; the phraseology of the article is misleading
(“defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article 805”);

Note the following observation of J.B.L. Reyes – “I submit that the rule* [in Art. 809]
 65

is so broad that no matter how imperfect the attestation clause happens to be, the same
should be cured by evidence aliunde [extrinsic evidence, evidence outside of the will
itself]. The rule must be limited to disregarding those defects that can be supplied by
an examination of the will itself; whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these facts that the will itself can
reveal, and defects or even omissions concerning them in the attestation clause can be
safely disregarded. But the total number of pages, and whether all persons required to
sign did so in the presence of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate proceedings.”; p. 107;

Article 810. 
A person may execute a holographic will
which must be entirely
written,
dated,
and signed
by the hand of the testator himself.
It is subject to no other form,
and may be made in or out of the Philippines,
and need not be witnessed. (678, 688a)

Notes
 Holographic will, def.; one entirely written, dated, and signed by the hand of the
testator;

 Advantages of a holographic will; easier to make, revise and keep secret;

 Disadvantages of a holographic will; could be forged by expert falsifiers; subject to

misunderstanding since the testator may have been faulty in expressing his last wishes;
no guaranty that there was no fraud, force, intimidation, undue influence; and no
guaranty regarding the testator’s soundness of mind;

 Note JBL Reyes’s comment on holographic wills; particularly dangerous in case of

persons who have written very little; their validity depend exclusively on the
 66

authenticity of the handwriting, and if writing standards are not procurable, or not
contemporaneous, the courts are left to the mercy of the mendacity [lack of honesty] of
witnesses; the simplicity is an invitation to forgery, specifically in case the text is
extremely short (“All to X” or “Free part to X”); such short wills can defy real experts
in handwriting;

 Formalities for a holographic will;

o The language must be known to the testator (Art. 804); interpreting the will to
the testator as in the case of notarial wills is not sufficient for holographic will;

o The will must be entirely written in the hand of the testator himself; a
typewritten or printed will intended as a holographic will is void; but a testator
who cannot write with his hand can write with his foot if he can do it; what the
law requires is “personal distinctiveness”;

o The will must be dated; a mandatory requisite, thus, if undated, the will is void;

 In case of a revision of the will, the will of later date shall be preferred;
 Date must be complete, containing the year, month, and day;

- Case (Roxas 19850128, p. 111); when there is no appearance of

fraud, bad faith, undue influence and pressure and the authenticity of the
will is established and the only issue is whether or not the date “Feb.
61” written in the will is a valid compliance with Art. 810, SC held that
the probate of the holographic will should be allowed under the
principle of substantial compliance;

- Case (Ajero v. CA 1994, p. 11, see #sucessioncase 19940915 ajero

v. ca gr 106720);

Unless the unauthorized alterations, cancellations or insertions were

made on the date of the holographic will [i.e. the date itself had been
altered etc.] or on the signature of testator, such alterations,
cancellations or insertions do not invalidate the whole will but only
the matters altered without authorization;

In a petition for the probate of a holographic will, the only issues to

be resolved by the probate court are the following matters:
1. Whether the instrument submitted is indeed the decedent’s last
will and testament;
2. Whether the will was executed in accordance with the
formalities prescribed by law;
3. Whether the decedent had the necessary testamentary capacity at
 67

the time the will was executed; and,

4. Whether its signing was the voluntary act of the decedent;

 Date must be true; an incorrect date as long as it was made in good

faith does not invalidate the will (Paras, p. 111); if the wrong date is
inserted intentionally, the will is void;

o The will must be signed by the testator himself; the full or customary signature
is needed; the testator’s habitual signature even if not the fully name of the
testator is sufficient; the signature must appear at the end of the will (additional
dispositions can be written below the testator’s signature but must be
authenticated with the testator’s full signature;

o There must be an animus testandi; a will in the form of a letter (with the
formalities required for holographic wills) may be valid as long as the intent to
leave a will is clear; but a letter that incidentally contains probable dispositions
of properties cannot be considered a valid holographic will;

o The will must be executed at the time that holographic wills are allowed under
the law; note that under the old law, holographic wills were not allowed; the
time of the death of the testator is immaterial (Art. 796);

 Case (Vda. De Enriquez 195540809, p. 112) – Under Art. 795 NCC, the
extrinsic validity of a will should be judged by the law eXisting at the
time of the execution of the will, not by the law existing at the time of
the testator’s death nor by the law existing at the time of probate of the
will;

o Other features of a holographic will;

 No witnesses are required; in case there are witnesses or there is an

attestation clause, these will be considered as mere surplusage (Re
Varela Calderon, p. 113);

 No marginal signatures on the pages are required;

 In case of any insertion, cancellation, erasure or alteration, the testator

must authenticate the same by his full signature (Art. 814);

 May be made in or out of the PHilipines, even by Filipinos (Art. 810);

 May be made even by a blind testator, as long as he is literate, at least

18 years old and is possessed of a sound mind;

 The drafting of a will may be left to some other person but the testator
himself must copy the draft in his own handwriting, dates it and signs it
 68

(Art. 810);

Article 811. 
In the probate of a holographic will,
it shall be necessary
that at least one witness
who knows the handwriting and signature of the testator
explicitly declare
that the will and the signature are in the handwriting of the testator.
If the will is contested,
at least three of such witnesses shall be required.

In the absence of any competent witness referred to in the preceding paragraph,

and if the court deem it necessary,
expert testimony may be resorted to. (619a)

Notes
 Probate means the allowance of a will by the court after its due execution has ben
proved; note that a will may be contested or uncontested;

OCTOBER 8, 2020 THURSDAY SUCCESSION A

 The duty of the court is to exhaust all available means of inquiry; the state is very
much interested in carrying into effect the true intention of the testator (Azaola
19600805, p. 115);

 If a holographic will has been lost or destroyed without intent to revoke it, and no other
copy is available, it cannot be probated because the best and only evidence of the will
is the handwriting of the testator of said will; evidence of sample handwritten
statements of the testator cannot be admitted because there would be no handwritten
will with which to make a comparison; Paras (p. 116) believes that a photocopy of the
holographic will may be allowed because there can be a comparison;

 The probate of a lost or destroyed will under the 3rd paragraph of Art. 830 refers only to
notarial wills not holographic wills;
 69

See Art. 830 -

No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of
revoking it, by the testator himself, or by some other person in his presence, and
by his express direction. If burned, torn, cancelled, or obliterated by some other
person, without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith, if its contents, and
due execution, and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court. (n)

 Case (Codoy 19990812, p. 116), in relation to the probate of contested wills requiring
at least 3 witnesses explicitly declaring that the signature of the testator is genuine, is
the requirement mandatory or permissive –

SC held that based on the language used, Art. 811 is mandatory; the word “shall” in a
statute commonly denotes an imperative obligation and is inconsistent with the idea of
discretion; the presumption is that the word “shall” when used in a statute is
mandatory;

 Note that through a holographic will as well as a notarial will, the filiation may be
established (Potenciano 2003, p. 117);

Article 812. 
In holographic wills,
the dispositions of the testator
written below his signature
must be dated
and signed by him
in order to make them valid as testamentary dispositions. (n)

Notes
 The invalidity of the dispositions not so authenticated by the testator as required under
Art. 812 shall not make the entire will invalid;
 70

Article 813. 
When a number of dispositions appearing in a holographic will
are signed without being dated,
and the last disposition has a signature and a date,
such date validates the dispositions preceding it,
whatever be the time of prior dispositions. (n)

Notes
 If the last disposition is signed and dated, previous provisions which are signed but not
dated are validated;

 Preceeding disposition which are not signed but dated are void;

 Preceeding dispositions which are not signed and not dated are void (unless it appears
that such preceeding dispositions are written on the same date and occasion that the
latter dispositions are made;

Article 814. 
In case of
any insertion,
cancellation,
erasure
or alteration in a holographic will,
the testator must authenticate the same
by his full signature. (n)

Notes
 Full signature means the full or usual or customary signature (not necessarily the full
name) of the testator; Paras opines that if both the first and the 2 nd names are merely in
initials, it will be contrary to the intent of the law (but note what if that is the
customary signature of the testator?);

 In case there is an alteration not authenticated as required by law, only the alteration is
void, not the entire will; but if what is altered is the date or the signature of the
testator, the whole will will be void; Ajero case 1992

 Note the effect of E-commerce law on the issue of signature, subject to SC’s study;
 71

Article 815. 
When a Filipino is in a foreign country,
he is authorized to make a will
in any of the forms established
by the law of the country
in which he may be.
Such will may be probated in the Philippines. (n)

Notes
 Under Art. 815, a Filipino in California can make a will in accordance with the forms
prescribed under the law of California, or in accordance with the law of the Philippines
(even if the formalities under the Philippine law are not recognized under the
California law);

 Note that under Art. 819, a Filipino cannot execute a joint will, even if done abroad
where said form is valid;

 Bar question;

“Carlos Reyes, a Filipino citizen residing temporarily in Oregon, State of Washington

(US), executed a will in accordance with the laws of said state. Assuming the testator
returns to the Philippines and dies here without modifying or executing a new will in
accordance with Philippine laws, how shall his estate be dealt with, testate or intestate?
Explain your answer mentioning the pertinent legal provisions and authorities.

















 Answer – The succession will be testamentary, since under the Philippine law, he is
allowed to make a will in any of the forms allowed in the foreign state where he may
 72

be. The will executed in Washington may be probated in the Philippines. (Art. 815).

Of course, the intrinsic validity of the provisions of his will, the amount of successional
rights, and the order of succession will have to be governed by his national law, that is,
the Philippine law on succession (Art. 16 NCC).

 Question - If a will has been probated abroad, does it have to be probated again in the
Philippines?







 Answer – There is no need of an ordinary or usual probate here. What is required
however is that there must be a proceeding here to prove that indeed the will had
already been probated abroad. The rule is the same as in proving the existence of a
foreign judgment. (Yu Chengco v. Tiaoqui, p. 121);

 SC held - In the absence of contrary proof, foreign laws on the formalities of a will are
presumed to be the same as those existing in the Philippines (Miciano p. 121);

 SC held – if there is no proof regarding the foreign law of probate procedure and no
proof that the foreign court that approved the will is indeed a probate court, it will be
presumed that the proceedings in the matter of probate in said court are the same as
those provided for under Philippine laws (Testate Estate of Suntay, 19640731, p. 121);

Article 816. 
The will of an alien who is abroad
produces effect in the Philippines
if made with the formalities prescribed by the law
of the place in which he resides,
or according to the formalities observed in his country,
or in conformity with those which this Code prescribes. (n)

Notes
 An alien abroad may make a will in accordance with the formalities (extrinsic validity)
prescribed by the law of
o The place of his residence or domicile;
o His own country or nationality;
o The Philippines;
o The law of the place of execution (Art. 17, par. 1);
 73

 Question – A Chinese, domiciled in Argentina, is on his way to Manila. The boat

where he is, is staying for one day in Japan. In Japan, can he make a will? If so, what
country’s formalities should be observed?








 Answer – This is a case of an alien abroad. He can make a will in accordance with the
testamentary formalities of
o Argentina (his domicle);
o China (his nationality);
o Philippines;
o Japan, under Philippine law which recognize lex loci celebrationis (the law of
the place of execution;

Note that Art. 816 speaks only of extrinsic validity; intrinsic validity is governed
by Art. 16;

Article 16. Real property as well as personal property is subject to the law of the country
where it is stipulated.

However, intestate and testamentary successions,

both with respect
to the order of succession
and to the amount of successional rights
and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person
whose succession is under consideration,
whatever may be the nature of the property
and regardless of the country wherein said property may be found. (10a)

Article 817. 
A will made in the Philippines
by a citizen or subject of another country,
which is executed
in accordance with the law of the country of which he is a citizen or subject,
and which might be proved and allowed by the law of his own country,
shall have the same effect as if executed according to the laws of the Philippines. (n)
 74

Notes
 If a Chinese lives in Manila, what law on the formalities of his will must he comply
with; China (lex nationalii, Art. 817); or Philippines (lex loci celebrationis, Art. 17);

Article 17. The forms and solemnities of contracts, wills, and other public instruments
shall be governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the
Republic of the Philippines in a foreign country, the solemnities established by
Philippine laws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs shall not be rendered
ineffective by laws
or judgments promulgated,
or by determinations or conventions agreed upon
in a foreign country. (11a)

Article 818. 
Two or more persons
cannot make a will
jointly,
or in the same instrument,
either
for their reciprocal benefit
or for the benefit of a third person. (669)

Notes
 Joint wills are those which contain in one instrument the will of two or more persons
jointly signed by them;

 Reciprocal or mutual wills, def.; those that provide that the survivor of the testators
will succeed to all or some of the properties of the decedent; e.g. A made a will
making B his heir. B also made a will making A as his heir;

Mutual wills or reciprocal wills by themselves are valid, but if made in one instrument,
they are void; not because they are reciprocal but because they are joint;

 Why are joint wills made void under the law;

o To allow as much as possible the secrecy of a will; a will is purely a personal

act;
o To prevent undue influence by the more aggressive testator (Dacanay, p. 124);
o In case of death of the testators at different times, probate will be harder;
o It militates against the right of a testator to revoke his will at any time; a
 75

testator would be prevented from revoking by an overt act, like tearing or

burning, because the other may not agree;
o In case of a husband and wife, one may be tempted to kill the other (In Re Will
of Bilbao, 19600802, p. 124);

 Case – Bernabe de la Cerna 1964, p. 125; a joint will was executed by a husband and
his wife; the will was erroneously probated by the RTC; no appeal was made on the
judgment and the judgment became final and executory; can the joint will be given
effect?

The will, being a joint will, should have been disallowed but in the case, the judgment
had already become final. Acdg. to the SC, What is involved in the case is not lack of
jurisdiction but simply an instance of an erroneous but valid judgment, merely an error
in law and not an error in jurisdiction;

Note that in the case, both testators were already dead at the time of the probate. If
only one was dead and error occurred in the judgment and it became final, when the
will (a joint will) is presented again for probate, the same must be adjudged as invalid
and the succession will be intestate;

Note also a similar situation where a notarial will with only 2 attesting witness had
been wrongly allowed and the judgment became final and executory; it appears that
the same principle in the case of de la Cerna may get to apply;

 Where 2 wills are made on the same page, with or without a dividing line between
them, but neither combining the signature of both together, there will really be 2 wills
independent of each other and can be valid; Paras, p. 125;

 Some countries also prohibit a joint will; in Germany, a joint will is allowed but only a
married couple;

OCTOBER 12, 2020 MONDAY SUCCESSION A

Article 819. 
Wills,
prohibited by the preceding article [joint will],
executed by Filipinos in a foreign country
shall not be valid in the Philippines,
 76

even though authorized by the laws of the country

where they may have been executed. (733a)

Notes
 Art. 819 is an expression of public policy, and is an exception to the rule of lex loci
celebrationis; see Art. 17 NCC;

Article 17. The forms and solemnities of

contracts, wills, and other public instruments
shall be governed by the laws of the country
in which they are executed.
[Art. 819 on joint will provides an exception to this rule.]

When the acts referred to are executed before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country,
the solemnities established by Philippine laws
shall be observed in their execution.

Prohibitive laws
concerning persons, their acts or property,
and those which have for their object
public order, public policy and good customs
shall not be rendered ineffective
by laws
or judgments promulgated,
or by determinations or conventions agreed upon
in a foreign country. (11a)

 The prohibition refers only to Filipinos; if made by foreigners abroad, and valid in
accordance with Art. 816 (formalities for wills executed by foreigners abroad), the
same should be considered as valid in the Phil.; [note the case of Llorente (citing other
jurisprudence) where a Filipino who became an American citizen obtained a divorce
after obtaining his American citizenship and the SC held the divorce to be valid];

 Joint wills executed by foreigners in the Phil. should be considered void; they are
apparently allowed under Art. 817 (formalities of wills executed by aliens in the Phil.),
still Art. 819 which specifically refers to joint wills, and which should be considered as
an expression of public policy, should prevail; see Art. 817;

Article 817. 
A will made in the Philippines by a citizen or subject of another country,
which is executed in accordance with
the law of the country of which he is a citizen or subject,
and which might be proved and allowed by the law of his own country,
shall have the same effect
as if executed according to the laws of the Philippines. (n)
 77

SUBSECTION 4. - Witnesses to Wills

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

Notes
 Art. 820 provides for the qualifications of witnesses to wills; Art. 821 provides for the
disqualifications of witnesses to wills;

 In wills, a credible witness must have all the qualifications prescribed under Art. 820
and none of the disqualifications under Art. 821;

 Note that “capacity to witness a will” is different from “capacity to witness in court”;
to be a witness in court, it is sufficient that a person be “possessed of organs of
perception, and perceiving can make known what he has perceived;” e.g., a 15 year
old person may be a witness in court but cannot be a witness to wills (which requires
the witness to be at least 18 years of age;

Article 821. 
The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted
of falsification of a document,
perjury or false testimony. (n)

Notes
 Being a citizen of the Phil. is not required, but domicile in the Phil. is required;
domicile refers to the place of habitual residence (Art. 50 NCC); see Art. 50 NCC;

Article 50. For the exercise of civil rights and the fulfillment of civil obligations,
the domicile of natural persons
 78

is the place of their habitual residence. (40a)

 Reasons for the requirement of Philippine domicile; the assurance that the witness will
be available at the time the will is presented for probate; the likeliness of personal
acquaintance with the testator, hence greater credibility as a witness, for example on
the soundness of the mind of the testator;

 Note that Art. 821 mentions only 3 crimes; by implication, conviction for other crimes
such as murder or arson or rape cannot be said to be a disqualification; Paras, 128;

 Effect of pardon;
o If pardon was given because of the person’s innocence (as when somebody else
had been proved to be the guilty person), he can act as a witness to a will; there
is no mental dishonesty in his case;

o If the absolute pardon was an act of executive grace of clemency, Paras (p.129)
submits that the disqualification remains; even an absolute pardon does not
remove civil consequences; the person still has a taint of mental dishonesty;

e.g, an absolute pardon granted to a wife, after she has committed the crime of
adultery, the husband can still institute a suit for legal separation (as long as the
action has not prescribed);

 While the instrumental witnesses to a will must be shown to have the qualifications
under Art. 820 and none of the disqualifications under Art. 821, it is presumed that
they are trustworthy and reliable, unless the contrary is established (Gonzales,
19790525, p. 129);

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

Notes
 If the witness if incapacitated to testify at the time of the probate, he cannot testify as
witness; but the subsequent incompetence of the witness shall not impair the validity
of the will;

Article 823. 
If a person attests the execution of a will,
to whom or to whose spouse, or parent, or child,
a devise or legacy is given by such will,
 79

such devise or legacy shall,

so far only as concerns
such person, or spouse, or parent, or child of such person,
or any one claiming under such person or spouse, or parent, or child,
be void,
unless there are three other competent witnesses* to such will.
However, such person so attesting shall be admitted as a witness
as if such devise or legacy had not been made or given. (n)

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

Article 821. 
The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted
of falsification of a document,
perjury or false testimony. (n)

Notes
 Note that the persons named in Art. 823 are incapacitated to inherit, but not
incapacitated as witnesses;

 Only the part pertaining to the persons named should be considered void; not the
entire will;

 Question – T made a notarial will with A, B and C as witnesses. In the will, A was
given a piece of land as a devisee. The will contained other testamentary dispositions.
Is the will valid?









 80








 Answer – The will is valid. There were 3 credible witnesses, including A. While A is
capacitated as a witness, but he is incapacitated to receive the devise. The provision
regarding the devise in favour of A should be disregarded, the rest of the will is valid.

(Note that if it happened that there were three other witnesses, excluding A, A will be
entitled to the devise.);

 If the witness concerned is a compulsory heir, said heir is still entitled to the legitime;
the prohibition refers only to the free portion;

 Art. 823 should be understood to refer also to the institution of an heir (voluntary);
also to compulsory heir insofar as he has been given the free portion or an excess of his
legitime;

Article 1027. The following are incapable of succeeding:

(1) The priest who heard the confession of the testator during his last illness, or the
minister of the gospel who extended spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gospel within the fourth degree, the
church, order, chapter, community, organization, or institution to which such priest or
minister may belong;
(3) A guardian with respect to testamentary dispositions given by a ward in his favor
before the final accounts of the guardianship have been approved, even if the testator
should die after the approval thereof; nevertheless, any provision made by the ward in
favor of the guardian when the latter is his ascendant, descendant, brother, sister, or
spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any
one claiming under such witness, spouse, parents, or children; [There is no distinction
made between “heirs” on one hand and the devisees or legatees on the other hand.]
(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator
during his last illness;
(6) Individuals, associations and corporations not permitted by law to inherit. (745, 752,
753, 754a)

Article 824. 
A mere charge on the estate of the testator
for the payment of debts due at the time of the testator's death
does not prevent his creditors
from being competent witnesses to his will. (n)
 81

Notes
 A creditor who acts as a witness is disqualified to inherit, but he is qualified to receive
his credit which after all cannot be considered a gift;

SUBSECTION 5. Codicils and Incorporation by Reference

Article 825. 
A codicil
is supplement or addition to a will,
made after the execution of a will
and annexed to be taken as a part thereof,
by which disposition made in the original will
is explained,
added to,
or altered. (n)

Notes
 Art. 825 defines a codicil;

 In case of conflict between a will and a codicil, it is understood that the latter should
prevail, it being the later expression of the testator’s wishes, p. 132;

Article 826. 
In order that a codicil may be effective,
it shall be executed as in the case of a will. (n)

Notes
 There can be a notarial or ordinary codicils and holographic codicils;

 A notarial will may be revoked by a notarial codicil or by a holographic codicil; a

holographic will may be revoked by a holographic will or by a notarial will;

 A codicil not executed with the formalities of a will is void;

 A valid will cannot be revoked (expressly or impliedly) by an invalid codicil;

 82

T/F – There can be a notarial or ordinary codicils and holographic codicils. A notarial will
may be revoked by a notarial codicil or by a holographic codicil. A holographic will may be
revoked by a holographic will or be a notarial will. A codicil not executed with the
formalities of a will is void.

Article 827. 
If a will, executed as required by this Code,
incorporates into itself by reference
any document or paper,
such document or paper shall not be considered a part of the will
unless the following requisites are present:
(1) The document or paper referred to in the will
must be in existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same,
stating among other things the number of pages thereof;
(3) It must be identified
by clear and satisfactory proof
as the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses
on each and every page,
except in case of voluminous books of account or inventories. (n)

Notes
 The purpose of Art. 827 is to provide for those cases where a testator wishes to
incorporate to his will certain document or paper (e.g., inventory of properties, books
of accounts) only by reference, without needing to copy the whole document or paper;
the testator is able to save time and energy;

 In case of voluminous books of account or inventories where the testator and the
witnesses are not required to sign each and every page of the document or paper, the
will must clearly describe and identify said document and paper and must state the
number of pages of said document and paper; still it is believed that there must be a
signature on at least several pages thereof for the purpose of identifying the same as the
document or paper referred to;

 Art. 827 speaks of “witnesses” making it reasonable to believe that as a rule, only
notarial wills can have the incorporation by reference;

It is believed that if a holographic will happen to have at least 3 credible witnesses

 83

(although not required under the law), there can be a proper incorporation by reference;

Also, where a holographic will (with no witnesses) refers to a document entirely

written, dated and signed in the handwriting of the testator, it is believed that there can
be a proper incorporation by reference;

SUBSECTION 6. Revocation of Wills and Testamentary Dispositions

Article 828. 
A will may be revoked by the testator
at any time before his death.
Any waiver or restriction of this right is void. (737a)

Notes
 The heirs do not acquire any vested right to the disposition in a will until after the
testator’s death;

 Until the death of the testator, a will is ambulatory and revocable; after all, a will
involves disposition of the testator's properties effective after death;

 Note the situation where there are provisions in a will ordering the immediate
disposition of properties, during the testator’s lifetime; they could be valid as
donations but the requisites for a valid donation must be complied with; they are not
really testamentary dispositions;

 Case- Macam v. Gatmaitan, p. 136; codicil was presented for probate after there a
been a final and executory judgment on the probate of the will; may the codicil still be
probated [yes, the codicil may have revoked the will]; are the will and the codicil
required to be probated at the same time [not essential]; may opposition to the codicil
be allowed even when the oppositors did not oppose the will [yes, the codicil to the
opinion of the oppositors might be defective] ;

T/F – A codicil may be presented for probate even after there had been a final and
executory judgment on the probate of the will.

Article 829. 
A revocation done outside the Philippines,
by a person who does not have his domicile in this country,
is valid when it is done
according to the law of the place where the will was made,
 84

or according to the law of the place in which the testator had his domicile at the time; and if
the revocation takes place in this country,
when it is in accordance with the provisions of this Code. (n)

Notes
 Conflicts rules for revocation of wills
o For revocation done outside the Philippines
 If not domiciled in the Philippines
- Follow the law of the place where the will was made [note – not
where the revocation was made, apparently disregarding the rule of
lex loci celebrationis (Paras commentary)] ;
- Or follow the law of the place where the testator was domiciled at
the time of the revocation;
 If domiciled in the Philippines
- Follow the law of the Philippines (since his domicile is here)
- Or follow the general rule of lex loci celebrationis of the revocation;
o For revocation done in the Philippines – follow the law of the Philippines,
whether the testator is a domicile or not of the Philippines;

OCTOBER 13, 2020 TUESDAY SUCCESSION A

Article 830. 
No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it,
by the testator himself, or by some other person in his presence, and by his express direction.
If burned, torn, cancelled, or obliterated by some other person,
without the express direction of the testator,
the will may still be established,
and the estate distributed in accordance therewith,
if its contents,
and due execution,
and the fact of its unauthorized destruction, cancellation, or obliteration
 85

are established according to the Rules of Court. (n)

Notes
 Three ways of revocation of wills
o By implication or operation of law (totally or partially);
o By virtue of an overt [def., easily seen, not secret or hidden, manifest or open to
view] act (like burning, tearing, cancelling, or obliterating the will totally or
partially);
o By virtue of a revoking will or codicil (totally or partially);

 Revocation by implication of law

o Kind of revocation produced by operation of law when certain acts or events
take place after a will has been made, rendering void or useless either the whole
will or certain testamentary dispositions in the will;

o Revocation of a legacy does not operate to revoke the entire will; only total
and absolute revocation of the entire will will prevent the probate of the
revoked testament (Dionisio Fernandez, p. 138);

o Reason for allowing revocation by implication of law; there may be certain

changes in the family or domestic relations or in the status of his property, such
that the law presumes a change of mind on the part of the testator;

o Some instances of revocation by implications of law

 When after the testator has made a will, he sells or donates the legacy or
devise (Art. 957);
 Provisions in a will in favour of a spouse who has given cause for legal
separation shall be revoked by operation of law the moment a decree of
legal separation is granted (Art. 106, No. 4);
 When an heir, legatee or devisee commits an act of unworthiness under
Art. 1032;
 When a credit that had been given as a legacy is judicially demanded by
the testator (Art. 936);
 When one, some or all of the compulsory heirs have been preterited or
omitted, the institution of heir is void (Art. 854);

o In case the testator never intended to change his mind, the testator should
manifest his unchanged mind by executing a new will or codicil;

 Revocation by an overt act, requisites

o There must be an overt act specified by the law;
o There must be a completion at least of the subjective phase of the overt act;
o There must be animus revocandi or intent to revoke;
 86

o The testator at the time of revoking must have capacity to make a will;
o The revocation must be done by the testator himself, or by some other person in
his presence and by his express direction; ratification of an unauthorized
destruction is permissible, provided sufficient proof of this is presented (Paras,
p. 140);

o The overt act of burning;

 It is sufficient even if a small part of the instrument itself be burned,

even though the entire writing itself be left untouched, p. 140;

 If thrown into the fire with intent to revoke, and it was burned in three
places without scorching the writing, there is already a revocation even
if, unknown to the testator, somebody was able to snatch it from the fire
and thus saved it, p. 140;

 Case – A wanted to revoke his will, so he threw it into a stove so that it

would be burned later on when a fire would be lighted in the stove.
However, the will was later removed by another person from the stove
before the stove was lighted;

Held – there never was the overt act of burning; the person who
prevented the revocation (if an heir, legatee or devisee ) will not inherit
because of revocation by implication of law, said person being
incapacitated to inherit by reason of unworthiness (Art. 1031);

 If a will is burned accidentally, there is no revocation in view of the lack

of intention;

o The overt act of tearing;

 Even a slight tear is sufficient; as long as the subjective phase is passed;
as long as the testator considers the will already revoked;

 Tearing includes cutting; a clause may be revoked by cutting it from

the will;

 Mere act of crumpling does not constitute a revocation even though

there is animus revocandi; crumpling is not one of the overt acts
provided for by the law (citing American jurisprudence, p. 142); note
that in Roxas v. Roxas, p. 142, SC impliedly allowed cumpling as one
of the overt acts, provided there is animo revocandi;

 Tearing off of the signature alone constitutes revocation; the signature

goes to the very heart of the will, p. 142;

o The overt act of obliterating or cancelling; obliteration render the word

 87

illegible; cancellation is the drawing of lines across a test, but the words
remain legible; either of the two revokes a will, totally or partially;

 All parts are cancelled or obliterated, or if the signature is cancelled or

obliterated, the whole will is revoked;

 Cancellation or obliteration of non-vital part leaves the other parts in

force;

 If a will is mutilated by error, there being no animus revocandi, there is

no revocation (Santos, p. 142);

 Revocation by the execution of another will or codicil;

o Revocation in this manner may be express or implied; implied revocation
consists in complete inconsistency between the two wills;

o Revoking will must itself be a valid will (Samson, p. 143);

o There is nothing wrong in making the revocation conditional; the revocation

takes place only if the condition is fulfilled; referred to as doctrine of
conditional revocation or dependent relative revocation, p. 143;

o Problem (Paras, p. 144); Testator made Will No. 1. After one week, he wanted
to revoke it, so he executed Will No. 2, expressly revoking Will No. 1. In the
belief that he had already accomplished what he wanted, he then tore into two
pieces Will No. 1. On his death, it was discovered that Will No. 2 had not been
validly excecuted.

Can Will No. 1 be considered revoked?

In the case of Diaz v. De Leon, p. 144, SC held that there was revocation
through an overt act (tearing or destruction) with animus revocandi;

In a subsequent case (De Molo v. Molo, p. 144), SC ruled that there was no
revocation either by subsequent will because said will was invalid or based on
overt act since the act of destruction or tearing the first will was prompted by
the false belief that the second will had been validly executed; (see Art. 833
which provides that a revocation of a will based on a false cause or illegal cause
is null and void);

The doctrine of “dependent relative revocation” --- the revocation by

destruction or overt act was good only if this condition is fulfilled, namely that
the; the condition was not fulfilled, therefore the revocation by overt act did
not really materialize;
 88

OCTOBER 14, 2020 WEDNESDAY SUCCESSION A

 Probate of lost or destroyed wills; wills lost or destroyed without intent to revoke may
still be proved by
o Oral or parol evidence;
o Carbon copies (Borromeo, p. 145); carbon copy signed by all concerned is as
good as the original (Lugay, p. 145); a duplicate original (a signed carbon copy
or duplicate executed at the same time as the original) is as good as the original,
and may be introduced in evidence without accounting for the non-production
of the other copies (Maria Malilum, p. 145); read the case of Icasiano to
understand the commentary of Paras in p. 145;

Holographic wills, which have been lost or destroyed without intent to revoke,
cannot be probated; if no copy is available, it can never be probated because
the best and only evidence of the will is the handwriting of the testator in said
will; evidence of sample handwritten statements of the testator cannot be
admitted because there would be no handwritten will with which to make a
comparison;

The probate of lost or destroyed will referred to in the last paragraph of Art.
830 (“…If burned, torn, cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still be established,
and the estate distributed in accordance therewith, if its contents, and due
execution, and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court.”) can only refer to
a notarial will and not to a holographic will (p. 116);

Case (Ricardo B. Bonilla, p.145) – lost or destroyed will can be proved by

means of a photostatic or Xerox copy of said will; the authenticity or the
handwriting of the deceased can by determined by the probate court;

Implied revocation of wills

Article 831.
Subsequent wills
which do not revoke the previous ones in an express manner,
annul only such dispositions in the prior wills
as are inconsistent with
or contrary to those contained in the later wills. (n)
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Notes
 The revocation may be total or partial;
 The law does not favour revocation by implication; efforts to reconcile the wills or
their provisions must be made;

A valid although ineffective will can revoke a previously executed will

Article 832. 
A revocation made in a subsequent will
shall take effect,
even if the new will should become inoperative
by reason of
the incapacity of the heirs, devisees or legatees designated therein,
or by their renunciation. (740a)

Notes
 Note the difference between an “invalid will” and a “valid but ineffective will;” an
invalid will cannot revoke the previous will; but a valid although ineffective will can
revoke a previously executed will;

Revocation based on false or illegal cause; revocation made under a mistake;

Article 833. 
A revocation of a will
based on
a false cause
or an illegal cause
is null and void. (n)

Notes
 Problem – T made a will making A his heir. T then learned that A was dead, so he
made another will instituting B as heir. If A turns out to be still alive, who inherits?
Answer – A will inherit because the revocation was based on a false cause.

 The fact that the cause for the revocation was a false belief or a mistake must be found
on the face of the will or codicil itself (Paras, citing foreign jurisprudence, p. 147);

 Problem – if the testator states in his second will: “I am not sure whether A is dead or
alive. However, I hereby revoke the legacy to him which I made in my first will.” In
this case it cannot be said that the testator was proceeding upon an error;

When in a will a recognition of an illegitimate child is made, and said will is revoked, what
effect will the revocation have on the recognition of the illegitimate child; is the recognition
also deemed revoked?

Article 834. 
 90

The recognition of an illegitimate child

does not lose its legal effect,
even though the will wherein it was made should be revoked. (741)

Notes
 Under Art. 172 FC, the filiation of legitimate children is established by any of the
following: (1) The record of birth appearing in the civil register or a final judgment;
or (2) An admission of the legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or (2) Any
other means allowed by the Rules of Court and specials laws. (265 a, 266a, 267a).

 Under Art. 175 FC, Illegitimate children may establish their legitimate filiation in the
same way and on the same evidence as legitimate children. xxx.

 While a will is essentially revocable, a recognition is irrevocable unless there be

vitiated consent; the rule in Art. 834 applies only if the recognizing will is extrinsically
valid;

SUBSECTION 7. Republication and Revival of Wills

Where an executed will is void as to its form, and the testator wants to republish the
dispositions contained in the extrinsically invalid will, what does the law require the
testator to do to republish the dispositions contained in the previous extrinsically invalid
will?

How can a testator republish in a subsequent will the dispositions contained in a previous
will that is void as to its form?

Article 835. 
The testator cannot republish,
without reproducing in a subsequent will,
the dispositions contained in a previous one
which is void as to its form. (n)

Notes
 Republication, def.; the process of re-establishing a will which has become useless
 91

because it was void, or had been revoked;

 How is republication made; (1) by re-execution of the original will where the original
provisions are copied; (2) by execution of a codicil (also known as implied
republication (Art. 836);

 Case (Cua, p. 149; heirs who actually participated in the execution of the extrajudicial
settlement, which included the sale to a third person of their pro indiviso shares in the
property, are bound by the same while the co-heirs who did not participate are given
the right to redeem their shares pursuant to Art. 1088;
Article 1088. 
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,
provided they do so
within the period of one month
from the time they were notified in writing
of the sale by the vendor. (1067a)
the procedure outlined in Sec. 1 of Rule 74 of the Rules of Court is an ex parte
proceeding --- persons who do not participate or had no notice of an
extrajudicial settlement will not be bound thereby;

a notice via publication of the settlement does not constitute constructive notice
to the heirs who had no knowledge or did not take part in it; acdg. to the SC,
that publication is notice after the fact of execution;

What is the effect of the execution of a codicil referring to a previous will?

Article 836. 
The execution of a codicil
referring to a previous will
has the effect of republishing the will
as modified by the codicil. (n)

Notes
 Requisites and limitations of republication;

(a) to republish a will that is void as to its form, all the dispositions must be reproduced
or copied in the new or subsequent will;
* [see the example/commentary in Paras, p. 150, 1 st par.; read the last 3 sentences and
see if it is understandable;]
 92

(b) to republish a will valid as to its form but already revoked, the execution of a
codicil which makes reference to the revoked will is sufficient; mere reference is
enough, without the necessity of reproducing all the previous dispositions; though,
there would be nothing wrong with a re-execution;

T/F – A will valid as to form but already revoked may be republished by the
execution of a codicil which makes reference to the revoked will without the
necessity of reproducing all the provisions in the will that had already been revoked.

 Case – In Re Engles’ Estate; T made a will in Feb. 1921 which he revoked in Aug.
1921; in june 1925, he made a codicil to the Feb. 1921 will [valid as to form but
already revoked] describing the will, giving its date, with a formal statement that he
was declaring it to be his last will and testament; the will of Feb. 1921 would be given
effect, without need of reproducing it;

 The old will which is republished is republished as of the date of the codicil;

 A will republished by codicil is governed by a statute enacted subsequent to the

execution of the will, but which was operative when the codicil was executed p. 151;

OCTOBER 15, 2020 THURSDAY SUCCESSION A

 Problem: A testator revoked his will by cutting out his signature in the will, with
animus revocandi. Later he changed his mind and pasted back his signature in its
previous position. Does the revocation remain or has there been a republication?

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 93


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 Answer: The will remains revoked. The attempted republication is not valid because
it had not complied with the legal requirements for the republication of a will.

 Note Paras query (par. 4) in p. 152;

When a subsequent will expressly revokes a previous will, and the second will is itself
revoked, will the previous will be revived?

How can the previous will be revived?

Article 837. 
If after making a will,
the testator makes a second will
expressly revoking the first,
the revocation of the second will
does not revive the first will,
which can be revived
only by another will or codicil. (739a)

Notes
 A will that is void or already revoked is devoid of any effect and is useless; the only
way to give it effect will be (1) by republication (previously discussed) or (2) by
revival; other than these, there is no way to restore the effectiveness of the will;

T/F - A will that is void or already revoked is devoid of any effect and is useless.
The only way to give it effect will be by republication or by revival.

 Revival is defined as the restoration or re-establishment of a revoked will or revoked

provisions to effectiveness by virtue of legal provisions;

 Examples of revival;
o Omission of a compulsory heir in the institution of heirs annuls the institution;
but if the preterited heir dies ahead of the testator, the institution is revived,
without prejudice to the right of representation (Art. 856);
 94

o If after making a will, the testator makes a second will impliedly revoking the
first, the revocation of the second will revives the first will (Implication from
Art. 837, note that in Art. 837, the second will “expressly” revokes the first
will; if the second will is revoked, it does not revive the first will; but if the
second will only “impliedly” revokes the first will, the revocation of the second
will operates to revive the first will which was only impliedly revoked by the
second will);

T/F – A made a first will. Later, he executed a second will that impliedly revoked
the first will. If the second will is revoked, the first will will be revived.

 Explain the principle of INSTANTER relating to the revocation of wills;

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 Answer: The revocatory clause of a subsequent will takes effect immediately or at the
instant the revoking will is made. The theory is that death does not have to come
before giving effect to a revocatory clause. While a will is a disposition mortis cause, a
revocation takes effect inter vivos, p. 154;

 Problem: T made three wills. Will No. 2 is completely inconsistent with Will No. 1,
and therefore impliedly revokes Will No. 1. Later Will No. 3 revokes Will No. 2. Is
Will No. 1 revived?

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 95


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 Answer: Yes, Will No. 1 is revived. Art. 837 provides a rule against revival in cases
where the second will expressly revokes the first will. It is inferred that it does not
cover cases where the second will only impliedly revokes the first will. An implied
revocation is ambulatory, the inconsistency being truly and actually apparent only
mortis causa, when the properties are distributed.

 Problem: A made Will No. 1, then made Will No. 2 expressly revoking the first will.
Then A destroyed Will No. 2, and orally expressed his desire that his first will be
followed. Is Will No. 1 revived?

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 Answer: No, the oral expression of desire to revive Will No. 1 cannot be given effect.
 96

A should have made a new will or codicil (as provided in Art. 837).

SUBSECTION 8. Allowance and Disallowance of Wills

Article 838. 
No will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of Court.
What is required under the law before any property may pass according to the dispositions
made in a will (notarial or holographic will)?

The testator himself

may, during his lifetime,
petition the court having jurisdiction
for the allowance of his will.
May the testator himself present his own will to the court for probate during his lifetime?

In such case [when the testator himself petition the court for the allowance of his will],
the pertinent provisions of the Rules of Court
for the allowance of wills
after the testator's a death
shall govern.
What rules shall govern the probate of a will?

The Supreme Court

shall formulate such additional Rules of Court
as may be necessary
for the allowance of wills
on petition of the testator.
What duty is imposed by law on the SC regarding the allowance of wills on petition of the
testator?

Subject to the right of appeal,

the allowance of the will,
either during the lifetime of the testator
or after his death,
shall be conclusive as to its due execution. (n)
What rule is provided by the law [Art. 836 NCC] regarding the issue on the due execution
of the will once judgment is rendered by the court allowing the will?
May the decision of the court allowing the will be appealed?

Notes
 Probate is the act of proving before a competent court the due execution of will by a
person possessed of testamentary capacity, as well as the approval thereof by the court;
 97

 Probate of a will is distinct from determination of the validity of the testamentary

provisions in the will; probate decides the execution of the will and the testamentary
capacity of the testator; determination of the testamentary provisions deals with
descent and distribution (Sumilang, 19671226, p. 155);

 A final judgment on probated will is binding on the whole world, although it may be
erroneous (Doroteo, 1999, p. 155);

 Probate may be done during the lifetime of the testator or after the testator’s death; the
probate of the will during the lifetime of the testator does not prevent the testator from
revoking the probated will or from making another one;

T/F – The probate of a will may be done during the lifetime of the testator or after
his death. After the will is probated during the lifetime of the testator, the will can
no longer be revoked.

 Even if there is only one heir instituted, there must still be the judicial order of
adjudication (Lopez, 19640131, p. 156);

 Probate proceedings; tasks of the court in probate proceedings; Timbol, 19610429, p.

156;
o Orders the probate proper of the will;
o Grants letters testamentary or letters with a will annexed;
o Hears and approves claims against the estate;
o Orders the payment of the lawful debts;
o Authorizes the sale, mortgage, or any other encumbrance of real property;
o And, directs the delivery of the estate or properties to those who are entitled
thereto;

Case – Briefly discuss the tasks of the court in probate proceedings

Ca

 Case – Pastor, 19830624, p. 156; Where the testator is survived by his wife and his
children, there is a need, aside from liquidating the conjugal partnership, to set apart
the share of the surviving spouse in the conjugal partnership, preparatory to the
administration and liquidation of the estate of the deceased;

 Case to read–#successioncase Reyes, 19670125, p. 157; the judgment of the court

distributed the estate of the deceased erroneously but the decision was not appealed
and it became final; the distribution remains because the judgment had become final
and can no longer be attacked, EXCEPT for lack of jurisdiction or extrinsic fraud;
 98

 Probate is essential even if the testator provided in his will that “the will shall not be
presented before the courts;” the provision is void; a person cannot by his actuation
deprive a competent court of its jurisdiction (Mendoza, p. 157);

T/F – Where the testator himself provided in his will that “the will shall not need to
be presented before the court, said will not be required to be probated.

 Probate is essential; #successioncase Ventura, 19590924, p. 158;

o Firstly, because the law expressly requires it;

o Secondly, probate is a proceeding in rem (requiring publication among other
things) and, therefore, cannot be dispensed with or substituted by any other
proceeding, judicial or extrajudicial without offending public policy;
o Thirdly, the right of a person to dispose of his property by virtue of a will may
be rendered nugatory;
o And, fourthly, because legatees and devisees who are absent, or such of them as
may have no knowledge of the will could be cheated of their inheritance
through the collusion of some of the heirs who might agree to the partition of
the estate among themselves to the exclusion of others;

Note the observation of Paras that the Ventura case tend to modify or even reverse
the dictum in Manalo v. Paredes (i.e. that the heirs concerned may extrajudicially
agree to partition the property among them, even though such partition is not in
accordance with the provisions of the will);

Note that no judicial approval can be given to an extrajudicial partition based on a

will unless the will is first probated; neither may an unprobated will be presented
as evidence of an act of partition among the co-heirs (Guevarra, p. 157);

 To read case of #successioncase Chua v. CFI, 78 SCRA 412, p. 158; the commentary
says that “[e]ven if a will is never probated, property may be transmitted if a partition
agreement is entered into, the provisions of which are based on the will;” see what
happened in this case; was judicial approval of the partition sought; in Paras
commentary, p. 157, it is stated that no judicial approval can be given to an
extrajudicial partition based on a will unless the will is first probated” (#successioncase
Guevarra, p. 157);

 A void will or a will that has been refused probate may in certain cases give rise to a
natural obligation; see Art. 1430, “When a will is declared void because it has not been
executed in accordance with the formalities required by law, but one of the intestate heirs,
after the settlement of the debts of the deceased, pays a legacy in compliance with a
clause in the defective will, the payment is effective and irrevocable”; the said intestate
heir must have knowledge of the defect in the will, otherwise there will be no natural
 99

obligation but a case of solution indebite and recovery may be made;

 The distributive shares cannot be given unless the state tax is first paid, or unless there
be a sufficient bond given for the payment of the tax; in the case of Vera v. Navarro,
19771018, p. 158, a trial judge lifted a writ of garnishment obtained by the CIR on the
properties of the decedent for unpaid taxes on the supposition that the estate had
enough assets to pay the taxes and ordered a partial distribution of the estate; the act of
the judge was held as improper and considered a grave abuse of discretion;

 Where a part of estate is not distributed yet, the recourse is not to reopen the probate
proceedings (long closed); a motion for execution or an action for reconveyance may
be filed; the probate judgment long closed cannot be attacked by a mere motion for
reconsideration; Heirs of the Late Jesus Fran v. Salas, 1992, p. 159;

 [To read the commentary, 2nd par. re Heirs of the Late Jesus Fran v. Salas, 1992, p.
159; is it understandable?]

 Case for reading, Intestate Estate of the late Don Mariano San Pedro y Esteban,
19961218, p. 159; probate court’s jurisdiction is not limited to the determination of
who the heirs are and what shares are due them as regards the estate of a deceased
person. Neither is it confined to the issue of the validity of wills;

Questions of title pertaining to the determination prima facie of whether certain

properties ought to be included or excluded from the inventory and accounting of the
estate subject of a petition for letters of administration, may be resolved by the probate
court;

 As a general rule, courts in probate proceedings are limited only to passing upon the
extrinsic validity of the will sought to be probated and the compliance with the
requisites or solemnities prescribed by law (Nufable, 1969, p. 160);

 Ante mortem probate; reason for allowing ante mortem probate; to prevent or
minimize fraud, intimidation, and undue influence; also to enable the testator to
correct at once the failure to observe legal requirements (p. 160); whenever the will
falls short of the required formalities, the remedy would be to correct the will
immediately and not to proceed with the probate of the will (Longcop, 19630611,
p.161);

 Procedure for ante mortem probate; the testator himself petitions the competent court
for the probate of his will; he them follows the procedure for the post mortem probate
of ordinary probate, except insofar as the SC may impose additional rules for ante
mortem probates (note Paras, p. 160 – up to the time of writing, no additional rules
have been formulated);

 Procedures for Past-Mortem probate; two parts – (a) probate proper which deals with
extrinsic validity of the will; deals generally with extrinsic validity; (b) inquiry into
 100

intrinsic validity and distribution itself of the property;

Anytime after the testator dies, the will may be presented for probate by any executor,
devisee, legatee, or interested person (Rule 76 RC); court can motu propio set the time
and place for proving the will delivered to it (MIrasol, 19590429, p. 161);

Probate proceedings may be initiated whether or not the petitioner (proponent of the
will) has possession of the will or with somebody else, or even when the will has been
lost or destroyed without animus revocandi, p. 161;

an expressly revoked will is not admissible to probate, but a revoked will may be
admitted to probate if the subsequent revoking will is proved to be void and is
therefore disallowed, p.161;

Even if a will has already been probated, if later on, a subsequent will is discovered,
the subsequent will may still be presented for probate (Arancillo, p. 162);

Even if the discovered will had been made earlier than the probated will, the
discovered will can still be probated as long as the two will can be reconciled, if there
are portions in the first will which had not been revoked in the second will;

The petition for probate must among other things state:

o That the testator is dead, and the place and time of the death; there must be
proof of death (actual or presumed);
o That the deceased left a will, copy of which is attached to the petition; note that
probate is possible even when possession of the will is with a third person (such
third person can be ordered by the court to present the will in court) or is lost
without being revoked;
o That the will was executed in accordance with legal requirements;
o Names, ages, address orfthe executor and all interested parties or heirs;
o The probable value and character of the property of the estate;
o The name of the individual whose appointment as executor is being asked for;
o If the will has not been delivered to the court, the name of the person who is
supposed to have the will in his custody (Salazar, p. 162; Rule 76, Sec 2 RC);

Publication of the notice of hearing is required, and the compliance of all the
formalities required by law;

The necessary witnesses must be produced; their absence must be satisfactorily

explained (Aldanese v. Salutillo, p. 163; Unson v. Abella, p. 163);

Case – there is still a chance for the court to allow the will if the court believes that all
the legal requirements have been complied with, even if an attesting witness does not
remember attesting (Rule 76, Sec. 11); even if a witness or all the witnesses testify
against the validity and due execution of the will; Testate Estate of Reymundo,
 101

19410318, p. 163; Cuyugan, p. 163; Barrera, 1954, p. 163; it is error for the court to
deny allowance just because of contradictions among the witnesses (Fernandez v.
Tantoco, Tolentino v. Francisco, p. 163); as a rule, the testimony of the attesting
witnesses should prevail over expert evidence (Roxas, p. 163);

The provisions of a lost will, after being proved, are to be certified by the judge under
seal of the court; the certificate must then be filed and recorded as in the case of other
wills (Rule 76, Sec. 6 RC):

To be able to; intervene in an administration proceedings, it is necessary for him to be

interested in the estate; an interested party is one who would be benefited by the
estate, such as an heir or a creditor (Ngo The Hua, p. 164, etc. p. 164);

 Final judgment in probate proper; if the period for filing of petition for relief from
judgment without such petition being filed, the judgment allowing the will is binding
upon the whole worl,d (being a proceeding in rem) in so far as testamentary capacity
and due execution of the are concerned (including all formalities and absence of any
ground for disallowance);

the judgment is not interlocutory and is immediately appealable before the finality of
the judgment;

in no case is the judgment conclusive on matters such as ownership of property, p. 164;

persons who are neither compulsory heirs, voluntary heirs, legatees, or devisees cannot
anymore question the validity of distribution that has long become final Coloma, 1965,
p. 65;

Distribution, the division, by order of the proper court, among those entitled
of the estate of the decedent, after the payment of debts and charges (Carson
Pertrolelum Co., p. 165); the proceeding for distribution of the properties is not in rem,
and cannot affect those who were not personally served with summon, p. 165;

 RTC has jurisdiction on probate proceedings; RTC of the province where the decedent
had real estate (in case of non-resident); RTC of the province where the decedent
resided at the time of his death (if a resident);

All RTCs have jurisdiction; the residence or domicile of the testator affects only the
venue but not the jurisdiction of the court; the rule grants jurisdiction to the court
where jurisdiction is first invoked (Read Angela Rodriguez, 1966021, p. 165);

 Case – Fule, 19761129, p. 166; the term “residence” (Rule 73 RC, Sec. 1) should be
understood in its popular sense, physical presence in a place where a person actually
stays, not in the legal sense which is “domicile”; decedent was domiciled in Calamba,
Laguna, but his actual residence was in Quezon City; proper venue is Quezon City;
 102

 Case – Cuenco, 19731026, p. 166; Sen. Cuenco was survived by his children of the
first marriage and by his second wife and two minor sons;

One of the children of the first marriage (Lourdes Cuenco) alleged in CFI (now RTC)
Cebu that the decedent died intestate and asked that she be appointed administratrix;

A week later, the widow filed with CFI Quezon City a petition for the probate of the
decedent’s will and for her to be appointed as executrix;

Lourdes opposed the petition in CFI QC, alleging the pendency of the intestate
proceedings in CFI Cebu;

CFI QC denied the motion to dismiss filed by Lourdes and decided to admit the will to
probate and allowed the widow to act as executrix; the court also ruled that the
residence of the decedent at the time of his death was in Quezon City;

Where the rulings of CFI QC correct?

SC held that CFI QC acted regularly within its jurisdiction; SC is not inclined to annul
proceedings regularly had in a lower court (even if the latter is not the proper venue) if
the net result would be to have the same proceedings repeated in some other courts of
similar jurisdiction;

 SC can reverse the RTC, and disallow a will, because after all, there is no final
judgment yet (the decision having been appealed); the law speaks of a conclusive
judgment, subject to the right of appeal (Art. 838)

Had there been no appeal and no petition for relief from judgment and the periods for
said remedies have already expired), not even the SC can reverse the ruling of the
probate court regarding testamentary capacity and due execution;

 Petition for relief from judgment; where judgment is entered against a party through
FAME (fraud, accident, mistake or excusable neglect), he may file a petition in the
same court and in the same case, asking that the juedgment be set aside;
The petition has to be filed with 60 days after the petitioner learns of the judgment and
within six months after such order or judgment was entered (Re Estate of Johnson, p.
168);

 Case – Castaneda, p. 169; probate court cannot pass upon the validity of the
appointment by the testator of his wife as guardian of his children’s properties; it does
not concern the extrinsic validity of the will; note, not even the SC, during the appeal
of the probate order, should pass upon the forvalidity of the appointment of the
guardian;

 Case – Nacar, 19821208, p. 169; a creditor of the decedent for credit because of
contract must filed the claim in the settlement or administration proceedings of the
 103

estate of the decedent, not sue in a separate action against the administrator;

 Matters affecting intrinsic validity should not be included in the probate order; they
may be brought in different or later proceedings, not in the probate proper proceedings;
even if passed upon, they cannot be res judicata (Montano, p. 170); such matters can be
raised even after the will has been authenticated (Palacios, 19591224, p. 171);

A deed of partition approved in the course of settlement of estate proceedings cannot

bar on the ground of resjudicata an accion reivindicatoria over the properties involved
(Bacani, 19620425, p. 171);

As a rule, questions as to title to property cannot be passed upon in testate or intestate

proceedings, except where one of the parties prays merely for the inclusion or
exclusion from the inventory of property, in which case the probate court may pass
provisionally upon the question without prejudice to its final determination in a
separate action (Alvarez, 19659814, p. 171);

However, when the parties interested are all heirs of the deceased, it is optional to them
to submit to the probate court any question as to title to property, and when so
submitted, said probate court may definitely pass judgment thereon;

With the consent of the parties, matters affecting property under judicial administration
may be taken cognizance of by the court in the case of intestate proceedings, provided
interests of third persons are not prejudiced;

Where the matter in controversy was the question of ownership of certain properties,
whether or not they belong to the conjugal partnership or the husband alone, the matter
was held as within the jurisdiction of the probate which needed to liquidate the
conjugal partnership in order to determine the estate of the decedent to be distributed
among the heirs who are all parties to the proceedings, including the widow (then
substituted by her heirs), Bernardo, 19630228, p. 172;

It is permissible to annul a judgment in a probate court, within the statutory period of

prescription on the ground of extrinsic fraud, especially so, if the subsequent case
contests the title to the property adjudicated in the probate proceedings, and the
adjudication took place without the participation of the aggrieved party (Pacensia Lim
Vda. Serrano, 19700630, p. 172);

 Case – Pedro Ermac, 19750619, p. 172; it is not proper to delay the summary
settlement of the estate just because an heir or a third person claims that certain
properties do not belong to the estate but to him; adverse claims of ownership must be
ventilated in an independent action; for the protection of the claimant, the appropriate
 104

step is to have the proper annotation of lis pendens; in this Ermac case, a third person
sought to prevent the distribution of the estate on the ground that certain properties did
not belong to the estate but to him;

 Case – Bolisay, 19780831, p. 173; lots registered with Torrens Title under the names
of certain heirs should be excluded from the estate of the deceased; the presumptive
conclusive of the Torrens Title must be accorded great weight, particularly so when the
registered owners are also the possessors of the lots;

 Case - Valero Vda de Roriguez, 19790720, p. 175; an order of the probate court
excluding certain properties from the inventory despite allegation that they belong to
the estate is merely interlocutory and cannot be appealed; the issue can be taken up
later when the entire case is elevated on appeal;

 Case – Barreto, 19560131, p. 176; when the issue involved is revocation, it is the
function of the court to examine the words of the will; Two will were executed by the
testatrix;

Will No. 1 instituted her legitimate child and another person (an extrajudicially
adopted child) though referred to in the will not as an adopted child but as one of the
children;

Will No. 2 (executed later) named as heir only the legitimate child; later the testatrix
died; then both the legitimate child and the adopted child died;

The heirs of both children presented the conflicting will for probate; the court passed
upon the filiation of the adopted child, declaring him not to be a lawful child, and
approved Will No. 2;

On appeal, the heir of the adopted child contended that the probate court cannot
determine the filiation of the adopted child because all that the probate proceedings
could do was to ascertain the extrinsic validity of the will;

SC held that the general rule that probate proceedings are limited to questions on the
due execution of the will and the testamentary capacity of the decedent cannot be
applied to the case; in the case, two successive inconsistent wills were presented for
probate; the issue of filiation was squarely raised by the pleadings and had to be
decided in order to determine whether or not the testatrix intended to revoke Will No.
1; when the issue involved is revocation, it is the function of the court to examine the
words of the will;

 In probate proceedings, proof of filiation may be allowed if it is essential to establish

which of the two will has been revoked (Barreto case); and to prove prima facie
whether or not an oppositor or intervenor who claims to be related to the testator can be
 105

allowed to intervene in the probate proceedings for the purpose of protecting his rights
(Reyes, p. 177); the final decision on the matter of relationship can threshed out either
in another case, or even in the later stages of the settlement proceedings (the stage
when the declaration of heirship is made and only after the probate order is made); it is
not wrong for the court to postpone the presentation of evidence on filiation until later
on in the distribution proceedings, as distinguished from the probate proceedings
(Reyes, p. 177);

 Two alternatives for an acknowledged natural child to prove his status and interest in
the estate of the deceased; a) to intervene in the probate (or intestate) proceeding if it
is still open; or b) to ask for the reopening of the case (if already closed), as in the
when extrinsic fraud (like omission of heir) has been made in the judicial partition
(even if approved by the court), Vda. de Marbella, p. 178;

 Case – Emma Velez y Bato, 19730131, p. 178; it is necessary to allege in a child’s

claim for inheritance his having been recognized as such child; it is recognition of
filiation that is important, not filiation itself; otherwise, said child has no cause of
action in the inheritance case, the action is one of compelling recognition which
generally cannot be brought after the death of the putative father;

 Case – Intestate Estate of the Late Emilito T. Lopez, 19700928; intestate heirs omitted
in the partition presented by the judifical administratrix and already approved by the
court are not bound by the partition; SC remanded the case to the court of origin for
further proceedings;

 Case – Guevarra, p. 179; a will was presented for probate 12 years after the death of the
testator; it was claimed that the right to institute the proceedings had already
prescribed;

SC held that the will may still be probated; prescription does not apply; the Statute of
Limitations fixes time limits for the filing of “civil actions” and not for “special
proceedings” (like probate proceedings); probate proceedings are not exclusively
established in the interest of the surviving heirs but primarily for the protection of the
testator’s expressed wishes that are entitled to respect as an effect of ownership and the
right of disposition; if the probate of validly executed wills is required by public
policy, the State could not have intended the Statute of Limitations to defeat that
policy; the will may still be admitted to probate;

 The rule of estoppel does not apply to probate proceedings because they are invested
with public interest, and if estoppel would be applied, the ascertainment of the truth
may be blocked; it should be avoided because the primary purpose of a probate
proceeding is not the protection of the interest of living person; [read the case for the
circumstances in this case] (Obispo, p. 179);

 Issues in probate proceedings are fixed by law and not by the parties; the general rule
 106

is that the issues are fixed from the pleadings and no evidence can be introduced in
support of allegations not found in the pleading, in probate proceedings, it is the law
that fixes the issues which are the grounds for disallowance; every ground of attack on
the validity of a will may be used; Vano, p. 179;

 Requirements before distribution of properties; there must be a decree of partition

allocating property to each heir; payment of the estate tax; then the distributive shares
may be delivered;

The probate court may still modify or even set aside the order approving the partition if
later, especially within a reasonable period after the approval of the partition, it is
proved that in obtaining approval, fraud had been practiced (Yusay, p. 180);

 Termination of probate proceedings; probate proceedings are considered terminated

upon the approval by the probate court of the project of partition, the granting of the
petition to close the proceedings, and the consequent issuance of the order of
distribution directing the delivery of the properties to the heirs in accordance with the
adjudication made in the will (Santiesban, p. 181;

SECTION 2

Institution of Heir

Article 839. 
The will shall be disallowed in any of the following cases:
[the grounds enumerated are exclusive and no other grounds can serve to disallow a will,
Pecson, p. 190]
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane,
or otherwise mentally incapable of making a will,
at the time of its execution;
(3) If it was executed through
force or under duress,
or the influence of fear, or threats;
(5) If it was procured
by undue and improper pressure and influence,
on the part
of the beneficiary
or of some other person;
(6) If the signature of the testator was procured by fraud;
(7) If the testator
acted by mistake
or did not intend
 107

that the instrument he signed

should be his will at the time of affixing his signature thereto. (n)

Notes
 Grounds Nos. 1 and 2, previously discussed;

 If it was executed through force or under duress, the influence of fear, or threats; these
ground connote the idea of coercion, mental or physical; there presence in a will
renders the will void (note that in the law on contracts, they render the contract
voidable, susceptible of ratification);

 If it was procured by undue and improper pressure and influence, the part of the
beneficiary or of some other person;

o Undue influence connotes the idea of coercion by virtue of which the judgment
of the testator is displaced, and he is induced to do that which he otherwise
would not have done; it is present when he does something because of fear or
desire for peace or from other feeling which he is unable to resist (Torres, p.
191);

o Art. 1337 NCC; Article 1337. There is undue influence when a person takes
improper advantage of his power over the will of another, depriving the latter of a
reasonable freedom of choice. The following circumstances shall be considered:
the confidential, family, spiritual and other relations between the parties, or the fact
that the person alleged to have been unduly influenced was suffering from mental
weakness, or was ignorant or in financial distress. (n)

o He who alleges undue influence must prove his allegation (Macapinlac, p. 191);

o Case – Coso, p. 191; no undue influence just because a testator has made his
mistress, or his illegitimate child by her, the heir to the entire free portion of the
estate; mere affection, even if illegitimate, is not undue influence as long as the
giving was voluntary; (note that although the will may be admitted to probate
because of the absence of undue influence, still under the law, a mistress is
incapacitated to inherit (Art. 1028; Art. 739);

o Instances were no evidence of undue influence were found, p. 192;

- mere inequality, not matter how great, in distributing the estate;
- mere presence of favoured relatives at the time of the S of the will;
- a daughter tries by earnest persuasion and entreaty to make her mother make a
new will

o Suppose after the exercise of alleged undue influence, the testator has
opportunity to revoke or change his will but he did not, can the will be allowed?
See p. 192;
 108

 Several American cases; ratification cannot cure the defect;

 CA decision; failure to revoke when there was opportunity to so, is
proof that indeed there was really no undue influence;
 Dissenting opinion in Cuyugan case, p. 192, will can be allowed as the
effect of the undue influence has been destroyed;

o If undue influence has vitiated only some of the dispositions, the rest should be
valid, p. 193;

o See In Re Turner’s Estate, p. 198; certain facts were found to reveal presence
of undue influence; case of the second wife and henpecked illiterate and weak
husband;

o See Bugnao, p. 193; case of religious quarrel; testator gave all his property to
his widow, and left nothing to his brothers and sisters who opposed the will,
alleging undue influence for what they claimed was an unnatural, unreasonable
will; court noted the bitter religious quarrel , so bitter that they did not even
attend the funeral of the deceased, despite the fact that they were full-grown
men and women;

o See Pascual, p. 194; case of participation by a beneficiary in the drafting or

execution of a will (a lawyer who was nephew of the beneficiary drafted the
will); SC found this of no consequence;

 Fraud, the use of insidious [causing harm in a way that is gradual or not easily noticed]
machinations to convince a person to do what ordinarily he would not have done;
there must be intent to defraud; the intent and the nature of the fraud must be proved
(Pecson, p. 194);

 Note that in a contract, fraud renders the contract voidable; in a will, fraud is cause for
disallowance because the will is void; p. 194;

 Note that when a beneficiary is the person who prepared or drafted the will, a suspicion
is created that fraud or undue influence was exercised (Buenaventura, p. 195); but
such suspicion can be thrown aside, if the court is fully convinced that the document
expresses the true will of the testator (Magpantay, p. 195);

 Mistake or lack of testamentary intent insofar as the document is concerned; example,

signing a document not believing it to be a will, this mistake is a ground for
disallowance;

 Revocation differentiated from disallowance; revocation is a voluntary act of the

testator, may be with or without cause, may be partial or total; disallowance is given
by judicial order, must be for a legal cause, and, as a rule, is always total (except, for
example, when the ground of fraud or undue influence affects only certain portions of
the will), p. 195;
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Article 840.
What is meant by “institution of heir” ?

Institution of heir
is an act by virtue of which
a testator designates in his will
the person or persons who are to succeed him
in his property and transmissible rights and obligations. (n)

Notes
 The institution should not impair the legitime;

 In general, the provisions on “institution” are applicable to devisees and legacies;

 There can only be an “instituted heir” only in testamentary succession; in intestate

succession, the heir is called “legal or intestate heir”;

 A conceived child may be instituted, if the conditions in Arts. 40 and 41 are present;

Article 40. 
Birth determines personality;
but the conceived child shall be considered born
for all purposes that are favorable to it,
provided it be born later with the conditions
specified in the following article. (29a)

Article 41. 
For civil purposes, the foetus is considered born
if it is alive at the time it is completely delivered from the mother's womb.
However, if the foetus had an intra-uterine life of less than seven months,
it is not deemed born if it dies within twenty-four hours
after its complete delivery from the maternal womb. (30a)

 Requisites for valid institution; will must be extrinsically valid (testator is capacitated,
formalities are observed, no vitiated consent, will is the personal act of the testator,
duly probated); intrinsically valid (legitime is not impaired, heir must be certain
ascertainable, no preterition); effective (no predecease, no repudiation by the heir, no
incapacity of the heir);

 Note mention of Art. 130 NCC (institution in a marriage settlement); this is no longer
found in the Family Code;
 110

 Note that under the rules, an heir of the decedent’s entire estate may adjudicate to
himself the entire estate by means of an affidavit only if he if he is the sole heir of the
estate (Delgado Vda. de Dela Rosa v. Heirs of Marciana Vda. de Damian , 2006, p.
198);

In The Matter Of The Intestate Estates Of

The Deceased Josefa Delgado And Guillermo Rustia Carlota Delgado Vda. De
De La Rosa And Other Heirs Of Luis Delgado, Petitioners, V.
Heirs Of Marciana Rustia Vda. De Damian, Respondents.
G.R. No. 155733.       January 27, 2006.

Facts:

On May 8, 1975, Luisa Delgado, the sister of Josefa, filed a Petition on Letters of

Administration of the estate of deceased spouses
Josefa Delgado and Guillermo Rustia (died 1972 and 1974 respectively). Such letter
was opposed by Marciana Rustia, a sister of Guillermo, claiming that they should be
the beneficiaries of the estate. The trial court then allowed Guillerma Rustia, a
legitimate child of Guillermo, to intervene in the case as she claimed that she
possessed the status of an acknowledged legitimate natural child, hence, she should
be the sole heir of the estate. Later, Luisa Delgado said that the spouses were living
together without marriage. Luisa Delgado died and was substituted dela Rosa (herein
petitioner) in this case. The RTC appointed dela Rosa as the administrator of
the estates of the deceased.

Issue:

Whether or not dela Rosa should be the sole administrator of the estate noting that
Josefa and Guillermo did not contract marriage.

Ruling:

The Court held, through the testimonies of the witnesses, that marriage between
Josefa and Guillermo never occurred. Although it is presumed that a man and a
woman deporting themselves as husband and wife have entered into a lawful
contract of marriage, such testimonies shall prevail. Since, no marriage had occurred
between the two, the estate must be settled in different proceedings. Therefore, dela
Rosa cannot be appointed as the sole administrator of the estate of the deceased.
 111

 Co-heirs who did not participate in the execution of the extrajudicial settlement (which
included the sale to a 3rd person of their pro indiviso shares in the property) are not
bound by said settlement and sale; they are given the right to redeem their shares
pursuant to Art. 1088 NCC (Cruz, 2006, p. 198);

Article 841. 
Will the will be valid if no heir is instituted in the will?
Will the will be valid if the institution of heir does not comprise the entire estate?
Will the will be valid the instituted heir does not accept the inheritance or is
incapacitated to succeed?

A will shall be valid even

though it should not contain an institution of an heir,
 A will is valid even if the only provision in the will is for the appointment of an
executor, or the disinheritance of a compulsory heir;

or such institution should not comprise the entire estate,

 Mixed succession is allowed under the law;

and even though the person so instituted should

not accept the inheritance
or should be incapacitated to succeed.
 The law has provisions for said cases;

In such cases
the testamentary dispositions made in accordance with law
shall be complied with
and the remainder of the estate shall pass to the legal heirs. (764)

Notes
 112

Article 842. 
What rules are provided by law for disposition of the free portion of the estate?

One who has no compulsory heirs

may dispose by will of
all his estate
or any part of it
in favor of any person
having capacity to succeed.
One who has compulsory heirs
may dispose of his estate
provided he does not contravene the provisions of this Code
with regard to the legitime of said heirs. (763a)

Notes
 Liberty to dispose of one’s estate by will, if there are no compulsory heirs, is granted
expressly by law;

 A testator may make only niece as the only heir even if there are other nieces and
nephews, as long as there are no compulsory heirs (Abutan, 194806, p. 200);

 Necessity of judicial adjudication; even if there is only one heir, there must still be a
judicial order of adjudication; the order is the judicial recognition that in instituting the
heir, the deceased did not contravene the law , and that the heir was not disqualified to
inherit (Lopez, 19640131, p. 201);

Article 843. 
 113

How is designation of heir made?

The testator shall designate the heir

by his name and surname,
and when there are two persons having the same names,
he shall indicate some circumstance
by which the instituted heir may be known.

Even though the testator may have omitted the name of the heir,
should he designate him in such manner
that there can be no doubt as to who has been instituted,
the institution shall be valid. (772)

Notes

Article 844. 
What is the effect of error (in the name or circumstances) in the designation of heir?
What is the rule if the heir instituted cannot be identified?

An error in
the name, surname, or circumstances of the heir
shall not vitiate the institution
when it is possible,
in any other manner,
to know with certainty the person instituted.
If among persons having the same names and surnames,
there is a similarity of circumstances
in such a way that, even with the use of other proof,
the person instituted cannot be identified,
none of them shall be an heir. (773a)

Notes
 Misdescription may be corrected by extrinsic evidence (“any other manner”) but not by
alleged oral declaration of the testator (Art. 789);

Article 845. 
What is the effect if the heir designated is an unknown person?
Can the disgnation of a definite class or group of persons be valid?

Every disposition
in favor of an unknown person
shall be void,
unless by some event or circumstance
 114

his identity becomes certain.

However, a disposition
in favor of a definite class or group of persons
shall be valid. (750a)

Notes
 Those belonging to a designated class or group who are incapacitated to inherit shall
not inherit;

 The determining event or circumstances may occur before or after the death of the
testator; but note, where the designated heir is “the first child of my sister Susan” if the
child had not even been conceived shall not be valid (Art. 1025);

“Article 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be
living at the moment the succession opens, except in case of representation, when it is
proper.

“A child already conceived at the time of the death of the decedent is capable of
succeeding
provided it be born later under the conditions prescribed in article 41. (n)”

 Special kinds of class designations;

o the poor in general (Art. 1030 - Article 1030. Testamentary provisions in favor of

the poor in general, without designation of particular persons or of any community,
shall be deemed limited to the poor living in the domicile of the testator at the time
of his death, unless it should clearly appear that his intention was otherwise.

The designation of the persons who are to be considered as poor and the
distribution
of the property shall be made by the person appointed by the testator for the
purpose; in default of such person, by the executor, and should there be no
executor,
by the justice of the peace, mayor, and the municipal treasurer, who shall decide
by
a majority of votes all questions that may arise. In all these cases, the approval of
the Court of First Instance shall be necessary.

The preceding paragraph shall apply when the testator has disposed of his property
in favor of the poor of a definite locality. (749a)

o relatives of the testator (Art. 959- Article 959. A disposition made in general
terms in favor of the testator's relatives shall be understood to be in favor of those
nearest in degree. (751)).

o a person and his children (Art. 849 – Article 849. When the testator calls to the
succession a person and his children they are all deemed to have been instituted
simultaneously and not successively. (771)
 115

o brothers and sisters of the full and half-blood (Art. 848 - Article 848. If the
testator should institute his brothers and sisters, and he has some of full blood and
others of half blood, the inheritance shall be distributed equally unless a different
intention appears. (770a)

o the institution of descendants or relatives of a legatee; the rule of :nearest

excludes the farther” will not apply here; all the descendants and relatives will
inherit per capita (Belen, 19601031, p. 205);

Article 846. 
Heirs instituted
without designation of shares
shall inherit in equal parts. (765)

Notes
 The term “issues” or “descendants”, unexplained by anything in the text of the
instruments, means all persons descending lineally from another, to the remotest
degree, and includes persons so designated, even though their own parents are still
living, and such descendants take per capita (per person) and not per stirpes (by
groups); Belen, 19601031, p. 206;

 Case – Onesima De Belen v. BPI, 19601031;

In the codicil of Benigno Diaz, he gave a trust – legacy to Filomena Diaz “or her
legitimate descendants”; Benigno died in 1944; Filomena died in 1954, leaving 2
children, one of whom had 7 children of her own and the other did not have any;

Who will get the legacy given be Benigno to Filomena?

o Only Filomena’s 2 children?
o Or the 2 children together with the 7 grandchildren since they are also
descendants?
SC held the 2 children together with the 7 grandchildren, each one inheriting per
capita since they are substitutes in a simple or vulgar substitution; the legacy
will be divided into 9 parts, applying Art. 849; Art. 959 which limits the
distribution to those nearest in degree (i.e. the 2 children) because Art. 959
speaks of the “relatives of the testator” not those of the legatee;

Note the observation of Paras – that Filomena inherited the legacy from Benigno,
therefore the legacy should be considered as belonging to the estate of
Filomena and not to the estate of Benigno; that the Filomena could then dispose
of the legacy through her own will and if she died intestate, it will be inherited
by her heirs through intestate succession;
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but note that in the case, what had been given to Filomena was a trust, in which
case the SC decision would be correct, but only if the substitution is considered
a “fideicommissary substitution” (where upon the death of the testator the
property goes to a first heir, and upon the subsequent death of the first heir, the
property goes to the second heir) instead of a “vulgar substitution” (where, in
case of the predecease, incapacity, or repudiation of the original heir, the second
heir or substitute inherits);

 Exception to Art. 846 ( that “Heirs instituted without designation of shares

shall inherit in equal parts); the rule cannot be applied absolutely in case one of those
instituted is a compulsory heir, inasmuch as institution in general refers merely to the
free portion (free disposal); hence, the legitime must first be removed and what
remains will be divided equally); (free disposal); hence, the legitime must first be
removed and what remains will be divided equally), p. 207;

 Special cases;
o All are voluntary heirs, but the shares of some are designated, while the shares
of the others are not;

o All are voluntary heirs but specific properties of the estate have been given to
them as part of their share;

 Problem – A, B, C, and D are instituted, but A is given specifically a share of 1/10

only. What should be done with the remaining 9/10?

Ans. The remainder will be divided equally among the remaining 3 (B, C, D);

 Problem – A, B, and C were instituted heirs to an estate totally valued at P300,000 but
it was specifically provided that the piano (part of the estate) worth P10,000 should go
to A, and a diamond ring (also part of the estate) worth P30,000 should go to B. How
will the entire estate be divided?

Ans. – A gets the piano worth P10,000 plus P90,000; B gets the ring worth P30,000
plus P70,000; C gets P100,000;

Article 847. 
What is the rule in case of combination of individual and collective institution? (e.g., I
designate my heirs A and B, and the children of C.)

When the testator institutes

some heirs individually
and others collectively
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as when he says,
"I designate as my heirs A and B, and the children of C,"
those collectively designated
shall be considered as individually instituted,
unless it clearly appears
that the intention of the testator was otherwise. (769a)

Notes
 Problem – “I institute as my heirs A, B, and the 3 children of C to my estate of
P100,000. How much will each of the 3 children (designated collectively) get?

 Problem – “I institute A, B, and my 3 children to an estate of P300,000.” How much

will each child get?

Article 848. 
What is the rule in case of institution of “brothers and sisters” and there are brothers
and sisters of full blood and of half-blood?

If the testator should institute his brothers and sisters,

and he has some of full blood and others of half blood,
the inheritance shall be distributed equally
unless a different intention appears. (770a)

Notes
 Note that the rule in the NCC (same shares) is different from the rule in the Old Code
(brother of full blood gets double the share of a brother of the half-blood);

 Compared with intestate succession; the rules under the NCC and the Old Code are the
same; the brother of the full-blood gets double the share of the brother of the half-
blood (Art. 1006 NCC);

 Bar question - If the testator should institute all his brothers or sisters as his heirs, and
he has some of the full blood and others of the half-blood on the side of the father or
mother, how is the inheritance to be distributed among them? Ans. – Equally, by
express provision of the law (Art. 808).
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Article 849. 

When the testator calls to the succession

a person and his children [i.e children of the person instituted as heir not of the testator]
they are all deemed [presumed, subject to contrary evidence] to have been instituted
simultaneously and not successively. (771)

Notes

Article 850. 

The statement of a false cause

for the institution of an heir
shall be considered as not written,
unless it appears from the will
that the testator would not have made such institution
if he had known the falsity of such cause. (767a)

Notes
 “I hereby institute my student X as my heir for having topped the 2003 Bar exams.” IF
x was not the topnotcher, X will still inherit. The false cause or reason is considered
as not written. What is disregarded is the false cause not the institution.

 Evidence of the intent (that the testator would not have made the institution if he had
known the falsity of the cause) must appear in the will itself; proof outside the will is
not admissible in proving such intent;

 Note opinion of Paras regarding the effect of institution because of an illegal cause; if
the real motive was illegal, the institution should be void (e.g., because the testator
want the instituted heir to kill a certain person); if the real motive is generosity,
liberality or affection and the illegal cause is only incidental, the institution should be
considered valid;

 Case – Capotle v. Elbambuena, 2006, p. 213; mere estrangement is not a legal ground
for the disqualification of a surviving spouse as an heir of the deceased spouse;
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Article 851. 
What is the effect of institution of heir/s only to a part of the estate?
What will happen to the part of the estate not disposed of?

If the testator has instituted only one heir,

and the institution is limited to an aliquot part of the inheritance,
legal succession takes place with respect to the remainder of the estate.
The same rule applies
if the testator has instituted several heirs,
each being limited to an aliquot part,
and all the parts do not cover the whole inheritance. (n)

Notes
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Article 852. 
What is the rule where the instituted heirs are intended to become sole heirs to the whole
estate or the whole free portion but the heirs were given aliquot parts and the total do
not cover the whole estate or whole free portion?

If it was the intention of the testator

that the instituted heirs should become sole heirs to the whole estate,
or the whole free portion,
as the case may be,
and each of them has been instituted to an aliquot part of the inheritance
and their aliquot parts together do not cover
the whole inheritance, or the whole free portion,
each part shall be increased proportionally. (n)

Notes
 Note that the intent must be to give all only to the instituted heirs, otherwise legal
succession will take place as to the remainder;

Article 853. 
What is the rule if each of the instituted heirs had been given aliquot parts and the the
parts put together exceed the whole inheritance?

If each of the instituted heirs has been given an aliquot part of the inheritance,
and the parts together
exceed the whole inheritance, or the whole free portion, as the case may be,
each part shall be reduced proportionally. (n)

Notes


Article 854. 
What is preterition?
What is the effect of preterition on the institution of heirs?
What is the rule if the omitted compulsory heirs die before the testator?
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The preterition or omission

of one, some, or all of the compulsory heirs in the direct line,
whether
living at the time of the execution of the will
or born after the death of the testator,
shall annul the institution of heir;
but the devises and legacies shall be valid
insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator,
the institution shall be effectual,
without prejudice to the right of representation. (814a)

Notes
 Preterition is the omission, whether intentional or not, of a compulsory heir in the
inheritance of a person; there must be a total omission in the inheritance; the omission
must be of a compulsory heir; and the compulsory heir omitted must be in the direct
line;

 If the omission is not total, the heir is entitled only to the completion of his legitime; if
the omitted heir has been given a donation from the testator, there is no preterition
(donation to a compulsory heir is considered an advance of the inheritance or legitime);

 Note the case of parent under different situations; where the testator institutes his own
children omits his parents, there is no preterition because the parents are not
compulsory heirs where there children of the testator; where there are no children of
the testator, the parents become compulsory heirs and their omission will constitute
preterition;

 The preterition must be of a compulsory heir in the direct line; hence, strictly and
literally, the omission of a surviving spouse is not preterition because she is not in the
direct line, but note the following:

o Case – In Re Will of Leodegaria Julian, 19750627, p. 218; SC ruled that since

the surviving spouse is not in the direct line, her omission in the will does not
constitute preterition; hence the omission of the surviving husband in the will
did not annul the institution of heirs in the will;

o Note the discussions of Paras in pp. 217-218 on reasons why there is reason to
consider the omission of the surviving spouse as preterition;

 Preterition shall annul the institution of heir/s but the devises and legacies shall be
valid insofar as they are not inofficious (Ventura, 19880427, p. 220);

20191024 THURSDAY
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Article 855. 
Where must the shares of omitted heir be taken?

The share of a child or descendant omitted in a will

must first be taken from the part of the estate not disposed of by the will, if any;
if that is not sufficient,
so much as may be necessary
must be taken proportionally
from the shares of the other compulsory heirs. (1080a)

Notes
 Art. 855 can apply both to cases when there is preterition and when there is no
preterition;

 If a child had not received anything by virtue of a donation or by virtue of the will, still
if anything is left of the inheritance which he may get by intestacy, there is no
preterition; if what is left him by intestacy is less than his legitime, he is entitled to its
completion, p. 224;

Article 856. 
What is the effect of predecease?

A voluntary heir
who dies before the testator
transmits nothing to his heirs.
A compulsory heir
who dies before the testator,
a person incapacitated to succeed,
and one who renounces the inheritance,
shall transmit no right to his own heirs
except in cases expressly provided for in this Code. (766a)

Notes
 A voluntary heir cannot be represented;

 Problems illustrating the effects of predecease:

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A B

A and B are legitimate children of T; C is legitimate child of A; the estate is

P100,000; A and B were instituted as heirs;

o Case A. If A dies before T (predecease), how much, if any, will C and B get?

Answer – A was a compulsory heir to the legitime* of P25,000**. Therefore,

C will get only P25,000 (the legitime of A) in representation*** of A. The
remaining P75,000 will all go to B. A compulsory y heir who dies before the
testator shall transmit no right to his own heirs except in cases expressly
provided for in this code, [as in the case of legitime] (Art. 856).

*Legitime is that part of the testator’s property which he cannot dispose of

because the law has reserved it for certain heirs who are, therefore, called
compulsory heirs (Art. 886);
**The legitime of legitimate children and descendants consists of ½ of the
hereditary estate of the father and of the mother (Art. 888);
***Article 970. Representation is a right created by fiction of law, by virtue of
which the representative is raised to the place and the degree of the person
represented, and acquires the rights which the latter would have if he were living
or if he could have inherited. (942a)

o Case B. If A is incapacitated, same answer as in Case A.

Answer – A was a compulsory heir to the legitime* of P25,000**. Therefore,

C will get only P25,000 (the legitime of A) in representation of A. The
remaining P75,000 will all go to B. A compulsory heir who is incapacitated to
succeed shall transmit no right to his own heirs except in cases expressly
provided for in this code, [as in the case of the legitime] (Art. 856).

- Art. 972, the right of representation takes place in the direct descending line;
- Art. 698; [Article 698. Lapse of time cannot legalize any nuisance, whether
public or private.] not relevant; reference must be to some other article;

- Art. 1031; Article 1031. A testamentary provision in favor of a disqualified

person, even though made under the guise of an onerous contract, or made
through an intermediary, shall be void.
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o Case C. If A renounces the inheritance, C gets nothing since a person who

renounces an inheritance cannot be represented. [Art. 997?*] Therefore,
everything goes to B. (Art. 968**).

*Article 997. When the widow or widower survives with legitimate parents or

ascendants, the surviving spouse shall be entitled to one-half of the estate, and
the legitimate parents or ascendants to the other half. [not relevant to the case;
Paras’ reference must be to some other article, should be Art. 977]; Article
977. Heirs who repudiate their share may not be represented.

** Article 968. If there are several relatives of the same degree, and one or some
of them are unwilling or incapacitated to succeed, his portion shall accrue to the
others of the same degree, save the right of representation when it should take
place.

o Note that in testate succession, the right of representation covers only the
legitime [Arts. 856*, 1035**]. In intestate succession, it covers the entire share
of the person represented. The whole would descend by the rules of instestate
succession.

*Art. 856, 2nd par. - A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the inheritance, shall transmit
no right to his own heirs except in cases expressly provided for in this Code.

**Article 1035. If the person excluded from the inheritance by reason of incapacity
should be a child or descendant of the decedent and should have children or
descendants, the latter shall acquire his right to the legitime.

The person so excluded shall not enjoy the usufruct and administration of the
property thus inherited by his children.

 The first paragraph of Art. 856 [“A voluntary heir who dies before the testator
transmits nothing to his heirs.”] applies also to a legatee or devisee; case – a legacy of
P2,000 to a brother who dies ahead of the testator cannot be rightfully claimed the
legatee’s heir for there is no transmission of any right (Resurrecion, p. 227);

 Note the observation of J. JBL Reyes, p. 227; that the first paragraph of Art. 856 [“A
voluntary heir who dies before the testator transmits nothing to his heirs.”] also applies
to a compulsory heir; a compulsory heir who predeceases the testator transmit no right
(although there is the right or representation); Paras points out that under the law, “The
representative [the person inheriting by right of representation] does not succeed the
person represented , but the one whom the person represented would have succeeded.”
The same observation is made on an incapacitated compulsory heir as well as on a
repudiating compulsory heir (but in the latter, there is no right of representation);

Additonal notes:
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1. Pay attention to cases particularly discussed in class as indicated/noted in the lecture

notes? And,
2. Read carefully one of the cases assigned to you and be able to state the significance
of the case in the study of succession law, able to state the particular significant
holdings/resolutions of issues made by the Supreme Court in said case.

END OF COVERAGE OF MIDTERM EXAMINATION – AS OF OCTOBER 16, 2020