Title IV. - SUCCESSION CHAPTER 1 GENERAL PROVISIONS Art. 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 to another or others either by his will or by operation of law. (n) Art. 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) Elements of succession according to 774:

Non-transmissible rights: purely personal, extinguished by death. (i.e. rights to oublic office, family rights, civil liberties, marriage, suffrage) General rule: obligations are transmissible (i.e. monetary obligations, obligation as surety or guarantor) except the following: 1. Obligations of the debtor which are personal since they require the personal qualifications and circumstances of the debtor are extinguished by death 2. Obligations which are made non-transmissible by the will of the testator or by express agreement of the parties 3. Obligations non-transmissible by provision of law.(i.e. criminal responsibility, legal support)

Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a) Property, rights and obligations retroact to the precise MOMENT of death. No bar to dispose share immediately after death (right of ownership). Provided made AFTER DEATH. But the alienation is limited to what is ultimately adjudicated to transferor heir. Admittedly changes the distribution as per testator s will. Heirs may do what administrators are authorized to do. The latter are merely representatives of the estate. Court can authorize administrators to sell/mortgage property but such cannot adversely affect substantive rights of heirs. Administrators are for the protection of creditors so as to preserve and manage estate and pay obligations before handling t heirs. Note: before partition co-ownership regardless of share. After partition exclusive ownership to adjudicated property

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It s a mode of acquiring ownership. It s a derivative mode. It is a gratuitous transmission (i.e. liberality), aka donation mortis causa. If it withholds right to dispose til donor s death it s mortis causa It s a transmission to the extent of the value of the inheritance transmissible provided it s not purely personal. May include obligations, but never to the excess of the value of inheritance By virtue of death - May be actual or presumptive death. Ordinary presumptive death - 7 years; extraordinary presumptive death 4 years; for purposes of succession 10 years unless 75 years old and above 5 years. Either by will or operation of law

Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. (659) Inheritance refers to the entirety of the property, rights and obligations. It is the objective element of succession, the totality of the patrimony. Succession is the legal mode by which inheritance is transmitted. Transmissible rights: not purely personal. (i.e. right to bring an action for forcible entry or unlawful detainer, to compel the execution of a document necessary for conveyance, continue a lease, etc)

Contracts involving Future Inheritance property or right not in existence or incapable of determination at the time the contract is made is considered future inheritance. Void for being wagering contracts that are against private policy. What is prohibited is a contract involving an inchoate right to inherit. Art. 778. Succession may be: (1) Testamentary; (valid will) (2) Legal or intestate; or (without a will or a void will)

(3) Mixed. (n) (partly distributed by will, partly by intestate) Art. 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) Art. 780. Mixed succession is that effected partly by will and partly by operation of law. (n) Other classifications of succession: 1. Contractual succession future individual 2. Freak succession 3. Death-less succession nullity of marriage, legal separation triggering delivery of presumptive legitime. Present in annulment of marriage (Art 45) and petition for declaration of nullity (Art 40) Art. 781. The inheritance of a person 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) Accessory follows the principal even after death. Purpose of provision is to protect the creditors of the deceased. Art. 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) Kinds of dispositions: a. Direct actual provision in the will wherein a person identifies a certain piece or certain percentage of property and gives it to a specified person. b. Indirect will disposes property by inference or implication, such as in cases of disinheritance (such inures to the benefit of other heirs) Characteristics of the making of a will (8): 1. Personal cannot be delegated the making/writing thereof 2. Free/ Voluntary any vice of consent such as fraud, undue influence or mistake invalidates the will 3. Revocable/ Ambulatory can change mind before death 4. Formal has solemnities prescribed by law. Notarial Arts 804 809; Holographic Art 810 5. Unilateral donee needn t participate 6. Effective Mortis Causa otherwise, it would be a donation and law on donations would govern 7. Individual can never be a joint undertaking. Joint wills prohibited 8. Statutory right provided by legislature. Congress may prescribe forms, etc Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. (670a) Pertains to the making of the will. Notarial wills must be in accordance with art 805 to be considered personally participated in by the testator. For holographic wills it must be personally written.

Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees (real) and legatees (personal) are persons to whom gifts of real and personal property are respectively given by virtue of a will. (n) Law considers naming of devisees and legatees preference over heirs merely given an inchoate share in the properties of the deceased.

CHAPTER 2 TESTAMENTARY SUCCESSION SECTION 1. - Wills

Art. 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) Prohibits the testamentary discretion from being given to third parties.

SUBSECTION 1. - Wills in General

Art. 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) Implementation discretion may be left to third parties. Inherent limitations class institution too broad law itself provides limits.

Steps to solve ambiguity: a. Inspect instrument and find the intent of the testator b. Resort to extrinsic evidence, except testimonies of the testator himself or oral declarations, if the intention of the testator is not readily ascertainable from a simple reading of the will. The extrinsic evidence referred to is circumstantial evidence that may help reveal testamentary intent. Kinds of Extrinsic Evidence:

Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. (n) Disposition may be: a. Unconditional immediately upon death b. Conditional happening of a condition or term as imposed by testator himself. Cannot be imposed by third person. Art. 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) Intent of testator must prevail in cases of ambiguity. Art. 789. 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; and 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) Types of Imperfect description: 1. Apparent/extrinsic appears on the face of the instrument (i.e. to the most intelligent Senator in the Philippines) 2. Non-apparent/ intrinsic when no person or property exactly answers the description and cannot be seen from mere reading but appears only upon consideration of the intrinsic circumstances (i.e. to my best friend in school which school? Grade school, high school, etc?)

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Documentary or written evidence Testimonial or oral evidence

Parole Evidence Rule and Dead Man s Statute preclude the admissibility of oral testimonies and testimonies of the decedent in interpreting or resolving ambiguities contained in a will. Parole Evidence Rule: anything reduced into writing is supposed to contain all such terms and conditions of that agreement. Whatever is contained is the totality of the agreement between parties. There is no evidence as to their agreement other than the written instrument itself. Before any introduction of oral evidence to supplement to complement a written instrument there must be preliminary evidence to show that it falls under any of the following exceptions: a. An intrinsic ambiguity, mistake or imperfection in the written instrument b. A failure of the written agreement to express the true intent and agreement of the parties c. The validity of the written agreement d. The existence of other terms agreed to by the parties after the execution of the written agreement Dead Man s Statute: when a claim is filed against the estate, where plaintiff is claimant and defendant is executor, both parties are prohibited to testify as to something the deceased said in his lifetime. Art. 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 he was unacquainted with such technical sense. (675a)

Rule on interpreting words: 1. 2. Ordinary words ordinary meaning unless testamentary intent provides otherwise AND such interpretation can be ascertained. Technical words technical meaning unless testamentary intent provides otherwise OR it can be proven that testator was unfamiliar with such technical word AND made the will unassisted by a person who would know such words.

Art. 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) Laws governing validity: a. Intrinsic validity law operating at the time of death b. Extrinsic validity law operating at the time of execution of the will Conflicts Rule as to form: a. Filipino can use - Nationality law (i.e. Philippine law because of our adherence to Art 16 of CC, aka the Nationality Rule) Contrary provision void - Law of execution - Law of the place where he dies - Law of the place the contract was celebrated (lex loci celebrationis) Non-resident alien with property in the RP - Philippine law - Law of the place the contract was celebrated (lex loci celebrationis) - Nationality law - Domiciliary law Alien residing in RP - Nationality law - Domiciliary law

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) Art. 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) General rule is each disposition is independent from each other. Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n) If the will states that the testator intends such will to cover future property he may acquire, it shall be so. Intent must be clearly expressed, i.e. All properties I may acquire after the execution of this will shall be given to X. Art. 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) General rule is that in the absence of a stipulation giving certain rights over devises and legacies to another person, the person/s bequeathed by such property likewise gets all proprietary interests over it.

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SUBSECTION 2. - Testamentary Capacity and Intent Art. 796. All persons who are not expressly prohibited by law may make a will. (662) Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n) Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n)

Art. 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 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) Testamentary capacity: a. b. Age Soundness of mind not necessarily complete possession of all reasoning and mental faculties. Sufficient that he has the ability to know: 1. nature of his estate he knows what belongs to him which he intends to bequeath; he also knows the extent of his liabilities if any, which will affect his net estate 2. proper objects of his bounty those he will make dispositions in their favour of 3. character of the testamentary act understands that the will involves dispositions affecting his property Lack of express prohibition

Art. 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)

SUBSECTION 3. - Forms of Wills Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n) Presumption that language used is known to the testator if the will was executed in a locality where the testator is residing. No statutory requirement that the will state that the language used therein is known to the testator. However, it must be proven by clear evidence aliunde especially when there are inconsistencies in the will. Art. 805. 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. 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, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. 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. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n) Requisites of a Notarial Will:

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Art. 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) Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n) Art. 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n)

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Subscribed at the end (logical end end of dispositions) by the testator or by the testator s name written by some other person in his presence, and by his express direction Attested and subscribed by three or more credible witnesses in the presence of the testator and of one other All the pages numbered correlatively in letter placed on the upper part of each page Every page except the last must be signed by the testator and by the instrumental witnesses on the left margin Acknowledged before a notary public by the testator and by the three witnesses Must have an attensation clause with contain the following: - Number of pages upon which the will was written - The fact that the testaot signed the will the every page thereof or caused some other person to write his name under his express direction in the presence of the instrumental witnesses - The fact that the witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another

dispositions above are that of and by the testator

witnesses as to the due execution of the will

Presumption of regularity when the attestation clause is signed cannot be defeated by negative testimony which does not enjoy equal status with the positive assertion and convincing appearance of the signature of the testatrix but also the proper execution of the will. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. 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) Covers on notarial wills. No specific time required to notarize the will nor is it required that the witnesses and the testator acknowledge the will before a notary public. Acknowledgement ensures that the signatories to the deed declare before an officer of the law that they had executed and subscribed to the Deed as their own free act or deed. Under oath and under pain of perjury. Jurat part of a document where the notary certifies that before him the Deed was subscribed and sworn to by the signatory. Art. 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) Art. 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) Special formal requirements - failure to comply invalidates the will. Substantial compliance sufficient provided the purpose of the law to prevent fraud has been satisfied. Blindness not just literally blind but incapable to reading. Art. 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

Signatures a. b. Need not be complete. A thumb mark would be sufficient if the testator cannot affix his own signature. Person writing testator s name on his behalf needn t place his own signature. Testator s is enough. Subscribing Signature Act of the hand, mechanical To subscribe is only to write on the same paper the names of the witnesses for the sole purpose of identification Can be found anywhere on the page, ideally on the left margin

Attesting Signature An act of the senses, mental To attest is to know that the will was published as such, and to certify that the facts required to constitute an actual and legal publication For the testator - below the dispositions otherwise the will is void For the witnesses at the end of the attestation clause otherwise the will is void To attest, declare and confirm that the

Cannot be considered attestations of the

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. (n) Doctrine of Liberal Interpretation: applies only to the form of the attestation clause or the language used therein. Such defects will not invalidate the will provided that there is no bad faith, forgery, fraud or undue influence. Doctrine only permits an exploration within the cofines of the will to ascertain its meaning or to determine the existence of absence of the required formalities of law. Total number of pages and whether all persons required to sign did so in the presence of each other must be substantially appear in the attestation clause, being the only check against perjury. Other parts of the will cannot reveal compliance. No need to resort to extrinsic evidence. Contents of the attestation clause: 1. 2. Number of pages upon which the will is written 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 witnesses witnessed and signed the will and all of the pages in the presence of the testator and of one another

Art. 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) Sole issue for probate of a holographic will is the genuiness of the handwriting. Rule on witnesses in relation to testator s handwriting: a. b. c. One witness rule in uncontested wills Three witness rule in contested wills. Expert testimony may be resorted to in either case upon the court s discretion.

Art. 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) Additional dispositions below the testator s signature: a. b. Permitted in holographic wills provided they are dated and signed by the hand of the testator. Not permitted in notarial wills. Additional dispositions void the entire will.

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Art. 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) Requisites of a holographic will: 1. 2. Executed in the language or dialect known to the testator Entirely written, dated and signed by the hand of the testator.

How to add dispositions in holographic wills: 1. 2. 3. As per Art 812 Insert additional matters or cancel dispositions provided that the same are written and signed by the hand of the testator. Needn t be dated. Execute a valid codicil which may either be notarial or holographic

Purpose of the date in the holographic will is to determine testamentary capacity of testator at the time of the creation of the will and whether it was prepared after August 30, 1950 the time the New CC took effect.

Art. 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)

Article presumes various dispositions done on different dates which are signed but not dated. If the last disposition is signed AND dated, all dispositions before it is valid. Art. 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) Amendments must be authenticated by testator s FULL SIGNITURE of the testator himself. DATE IS NOT REQUIRED as they are presumed made on the date of the execution. Cancellation, additions, erasures or cancellations: 1. 2. 3. 4. 5. 6. Made by testator s hand and AUTHENTICATED amendments recognized and will is valid. Made by testator s hand BUT NOT AUTHENTICATED amendments NOT recognized but will is valid. Made by testator BUT NOT by his hand (i.e. typewritten) regardless whether AUTHENTICATED or not ENTIRE will is INVALID. Made by stranger and AUTHENTICATED by testator ENTIRE will is INVALID. Made by stranger BUT NOT AUTHENTICATED by testator amendments INVALID and the will is VALID as before. HOWEVER, if the cancellation is not authenticated but results in the revocation of the entire will, the revocation is valid.

country, shall have the same effect as if executed according to the laws of the Philippines. (n) Conflicts rule when conflicts arise from place of will s execution AND probate proceedings are done in the Philippines. If probate is conducted in a foreign jurisdiction, such jurisdiction s conflicts rule applies. Art. 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) Joint will authored by two or more persons and signed by them as co-makers. It may also one that is made by two or more persons in one instrument. Mutual will authored by two or more persons for their reciprocal benefit. Wills violate the nature of a will as a purely personal or individual act. No one can validly determine the extent of one s generosity except the testator. However, when the joint will is presented for probate, it may happen that same becomes operative with respect to one but not with the other testator such as when one is incapacitated and lacks testamentary capacity. Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (733a)

Art. 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) Art. 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) Art. 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

Why? Because the intrinsic validity of wills is governed by the national law of the testator. SUBSECTION 4. - Witnesses to Wills Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of this Code. (n) may permissive qualifications Art. 821. The following are disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony. (n) mandatory qualifications During probate proceedings, a witness will have to testify on matters material to the admission or denial of the will. The prohibition against blind, deaf and dumb witnesses exist because witnesses are required to identify the will, certify that certain formalities were complied with, attest to the due execution and communicate what they saw and heard during its execution. The literacy requirement is to as to have some level of assurance that witnesses will be credible and reliable as to his account of what happened during the execution of the will. Art. 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. (n) Competent witness one who has the organs of perception i.e. sense of hearing, sight, taste smell and touch AND not legally impaired. Credible witness credibility is the sum total of a person s character and their general reputation as a member of the community. Credibility is not quantifiable. It is directed at the sound discretion of the probate judge. The qualifications/disqualifications are so that the issue of competence and credibility do not arise. Failure to comply with all does not mean the will is invalid. It only means that it will be more difficult for the will to be allowed for probate. Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n)

Persons disqualified to inherit under Art 823: 1. 2. A witness to the will and at the same time an heir, devisee or legatee in the same will The spouse (unless there s legal separation); parent; child of the witness; any person claiming against the witness, his spouse, parent or child

Exceptions: 1. 2. Such witness is a compulsory heir but only to the extent of his legitimes There is a substitute witness

Art. 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. (n) Charge referred is a debt of the estate which will be paid even without a provision in the will during the liquidation. SUBSECTION 5. - Codicils and Incorporation by Reference Art. 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) Art. 826. In order that a codicil may be effective, it shall be executed as in the case of a will. (n) A codicil is ALWAYS made after the original will. Although it s considered an independent document, it is always a supplement or annex of the will itself. Requirements of a valid codicil: 1. 2. 3. 4. 5. It s a supplement or addition to a will It s made after the execution of the will It s to be annexed and taken as part thereof It explains, adds or alters the original will It s executed following the formalities of a will

Art. 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)

the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (n) Conflict rules on revocation: a. b. c. If revocation takes place is the Philippines, Philippine laws apply regardless of testator s domicile If revocation takes place outside the Philippines by a testator domiciled in the Philippines, Philippine laws apply If revocation takes place outside the Philippines by a testator NOT domiciled in the Philippines, either the law of the testator s domicile at the time of revocation or the law of the place the will was made applies.

Art. 830. No will shall be revoked except in the following cases: Incorporation by Reference is done merely by mentioning in the will that a certain document is referred thereto. It may not necessarily be attached to the will. The requisites for incorporation by reference are: 1. 2. Document/paper referred to exists at the time of the execution of the will. Statement to this effect is unnecessary Will must clearly describe and identify the document, stating among other things the number of pages thereof. This requires a cear identification which must be stated in the will. Also ideal would be to describe the document by indicating the title and/or its nature Document referred to must be identified by clear and satisfactory proof as being that which is referred to in the will The required signatures (testator and witnesses) on every page of the document except in the case of voluminous books of account or inventories. Purpose is to prevent insertions or deletions of pages. (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) Only specific provisions may be revoked by operation of law. Some examples: SUBSECTION 6. - Revocation of Wills and Testamentary Dispositions a. Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a) Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of b. Art 957 regarding nullity of legacies or devises by transformation, alienation, or loss of the subject matter of the legacy or devise. Art 1032 regarding the incapacity of certain individuals to succeed by reason of unworthiness (i.e. abandonment or corruption of children, conviction of an attempt against the life of the testator, false accusation of a crime for which the law prescribes imprisonment for 6 years or more,

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f.

g.

those persons who should cause the testator to make a will or to change one made through fraud, violence, intimidation or undue influence and those who shall forge a supposed will Art 936 in re Art 935 concerning the legacies of remission against third persons. The legacy of credit or remission of a debt shall lapse if the testator, after having made it should bring an action against the debtor for payment, even if such payment should not have been effected at the time of death Preterition which annuls the institution of an heir but not the devises and legacies insofar as they are not inofficious Articles of the Family Code re decree of separation (Art 63) and termination of marriage (Art 43) shall disqualify the offending spouse who contracted the subsequent marriage in bad faith to inherit from innocent spouse Art 44 of FC, both spouses of the subsequent marriage acted in bad faith, all donations by reason of marriage and testamentary dispositions made in favour of the other is revoked. Art 50 disqualifies to inherit between those whose marriages are declared void ab initio or annulled by final judgment under Art 40 and 45.

4.

Intent to revoke or animus revocandi (alone not sufficient)

Presumption of revocation when the will was last found to be in the testator s possession and such can no longer be found despite diligent search. Art. 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 latter wills. (n) Implied revocation based on irreconcilable inconsistencies. Art. 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. (740a) Basically the revocation of the first will is dependent on the validity and the admission to probate of the second will or the codicil. The second will or codicil needn t be operative as long as it s valid. Even if the subsequent will/codicil is inoperative it is sufficient to a revocation of the first will. Art. 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n) Revocation based on a false cause - revocation by subsequent will or codicil and overt acts are invalid because the testator s consent is vitiated by mistake. Had he known the truth, there would have been no revocation by the subsequent will, codicil or overt act. The following are not considered as false cause. Revocation made under them is absolute: a. Testator only alleges the belief as a reason for revoking, intending to revoke absolutely, whether such belief were true or false Revocation is dependent merely upon information received or upon testator s opinion although he was misinformed or formed his opinion based on misapprehension When facts alleged by the testator were peculiarly within his knowledge or the testator must have known the truth of the facts alleged by him, it doesn t matter whether they are true or not

Revocation by the execution of a subsequent document: 1. 2. Subsequent will must be valid Subsequent will must either contain a clause expressly revoking the previous one or some irreconcilable provisions a. Express revocation the revoking document, will or codicil has an express provision (revocatory clause) which revokes the previous one. Express revocation may depend on a future event (i.e. if i survive the operation, Will A is operational, otherwise, Will B) b. Implied revocation the revoking document or will contains dispositions or provisions inconsistent with those of a previous will such that the later provision is the one given effect.

Requirements of revocation by overt acts: 1. 2. 3. Testamentary capacity at the time of revocation Burning, tearing, cancellation or obliteration of the will by the testator or by another in his presence and by his express direction The completion of the subjective phase of the act (presenting proof of circumstances to show the he believed his act already revoked the will)

b.

c.

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Art. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. (714) Recognition is not a testamentary disposition. Takes effect upon the execution of the will and not upon the death of the testator.

1.

2.

If a second will EXPRESSLY REVOKES the first, the revocation of the second will WILL NOT REVIVE THE FIRST. The first will can only be revived by another will or codicil. If the second will IMPLIEDLY REVOKES the first either by a new will or by overt acts, the FIRST WILL IS REVIVED. Republication An act of the testator Applies to wills expressly and impliedly revoked

SUBSECTION 7. - Republication and Revival of Wills Art. 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) Art. 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. (n) Republication method by which the testator RESTORES TO VALIDITY as his will a previously executed will INVALID FOR WANT OF PROPER EXECUTION either as to form or as to substance. The republished will shall speak as of date of republication and shall be governed by the formalities required by law at the time of republication. Types of republication: 1. Express republication aka re-execution. If an original will if void as to form it can only be republished through re-execution or express republication. The whole document must be re-written. Implied republication if original will is valid as to form but void in other aspects it can be republished by republication through reference which means the execution of a codicil which contains sufficient reference to a previous will.

Revival Takes place by operation of law Only applies to impliedly revoked wills

SUBSECTION 8. - Allowance and Disallowance of Wills Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for 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) Probate is a special proceeding to establish the validity of a will. It is a proceeding in rem hence binding on all persons in interest. If probate order has been issued and no timely appeal has been filed, it becomes final and binding upon the whole world. It may no longer be opened on a petition for annulment of judgment. It may be post-mortem or ante-mortem. It seeks to prove:

2.

Art. 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)

Rules on revivial:

1. 2. 3.

The instrument is indeed the will of the testator Such was executed according to the formalities prescribed by law Testator had testamentary capacity at the time of its making

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Stages of a probate proceeding: 1. 2. Probate proper determination of the extrinsic validity of the will. (i.e. the 3 items above) If proven, the court shall issue an order allowing the will Distribution stage the will is enforced according to its provisions as long as it doesn t violate law. (i.e. law on legitimes, qualification of beneficiaries, etc)

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (n) Fraud occurs when there is deception either through words or machinations. Such fraudulent scheme must be the proximate case for the testator to make a will. Special fraud based on confidential relations with another. (i.e. physician or lawyer) such confidant is required to disclose facts that will affect the decision of the testator to make a will. It is also fraud when such expert gives an opinion which was relied upon due to such expertise. Misrepresentation is generally not sufficient to nullify a will. Normally dependent on good faith which implies the lack of intentional design to do a wrongful act. Undue and improper pressure or influence influence or pressure must be undue to nullify a will. It occurs when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. It s a substitution of the testator s will with another, depriving the testator of a reasonable freedom of choice. There must be some form of moral ascendancy, otherwise no undue and improper influence or pressure can exist. Undue influence or pressure can also exist when a testator is mentally weak, ignorant or in financial distress.

Once the extrinsic validity of the will is established and the court issues a probate order allowing the will into probate, the court has limited jurisdiction to determine what may or may not be included in the inventory. Issues or ownership of properties may be determined provisionally by the court in order to give effect to the will. The parties may still file an action for reconveyance in order to settle issues of ownership. Ordinary action Seeks to address a wrong or a violation of a right Adversarial in nature; plaintiff v defendant Victor to those who provide preponderance of evidence Special proceeding Seeks to establish a right, status or fact Non-adversarial in nature No victor

Art. 839. The will shall be disallowed in any of the following cases: (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; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud;

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