Succession (Prelim)

8/10/2019 Succession (Prelim)

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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 to another or others either by his will or byoperation of law. (n)

Article 775. In this Title, decedent is the general term applied to the person whose property is transmitted throughsuccession, whether or not he left a will. If he left a will, he is also called the testator. (n)

Article 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by

his death. (!"#) Article 777. The rights to the succession are transmitted from the moment of the death of the decedent. (!"$a)

Successional rights of an heir are always based on the at the time of the death of the decedent.

So, important elements for the transmission of successional rights

◦ the first important element is DEATH. There will be no successional rights transmissible if there is no

death.

◦ Second, ALL P!PET"ES, "#HTS, A$D !%L"#AT"!$S "$ THE E&TE$T !' "$HE"TA$(E AE

TA$S)"SS"%LE. Li*e " said, it is not e+tinguished by death. These may be transmitted throughsuccession.

◦ And third is that THE HE" )ST $!T PEDE(EASE, ! "$(APA("TATED ! EPD"ATES"$HE"TA$(E.

◦ $ow, what therefore is the implication or the effects of transmission of rights from the moment of deathof a person.

▪ This is so resol-ed in the case of Tordilla -s Tordilla and %arretto -s Tuason. "n these cases,important elements or issues that were resol-ed in this cases is that prior to the persons death, his

heirs merely ha-e an inchoate right. Thus the heirs ha-e no right to dispose of or alienate the

property of a person still ali-e. /our share to the inheritance cannot also be disposed because of

article 000. Logically therefore, after the death of the person, his heir right has now ripen intoownership, and what is the implication here1

2hen it is ripen to ownership, then he has the right to sell. %ut not necessarily a concrete or

specific property of the estate because the partition has not yet been made. The only thing or

sub3ect matter of alienation is your share to the inheritance.

◦ 2hy1 %ecause, at the moment of death of a person, his inheritance is no longer a future

inheritance. "t is already ownership per se.◦ $ow, one of the most cardinal principles under the law on succession is that future

inheritance cannot be a sub3ect of sale, or encumbrance or donation, while the person is

still ali-e. The reason is because under article 000, all successional rights of a person canonly be transmitted at the moment of death of a person.

!ne of the most important elements for succession to occur of course is that there is death. There are two

*inds of death under our law.

◦ !ne is actual death, and the other is presumed death.

◦ $ow, actual death, we dont ha-e any problems with that. And how would you determine it1 %ycertificate of death. So from the moment the certificate of death has been issued, then the successional

rights of the heirs ha-e been transmitted.

◦ 2e ha-e a dilemma as with regard to presumpti-e death. $ow, there are two *inds of presumpti-e death

under articles 456 and 457 and the effects of presumpti-e death under 458.

◦ nder Articles 456, these are important articles in connection with your study of the law on succession.This tal*s about death, but death which are considered presumed.

▪ nder Article 456, this is an ordinary presumption of death because of ordinary absence. nder

Article 457, e+traordinary presumption of death because of e+traordinary or 9ualified absence.

▪ 2hy do we ha-e to *now this1 %ecause of a period of time and the effects of successional rights

transmission to an heir. So let us discuss article 456 and 457 and compare it, and well ha-e todiscuss how the significance of these pro-isions in connection with your study in the law of

succession.

Succession Notes 2013-2014 1



▪ All right first article 456: an absentee disappears under normal conditions there being no danger of

death shall deem presumed dead for all purpose and opening of succession. "t says there 76 years.At the end of 76 years or at the end of ; years if the person disappears 0; years old. That is a

presumed death by ordinary circumstance. $ow, what is the implication here. The implication hereis that death, is presumed to ha-e occurred at the end of the 76 year period, or at the end of the ;

year period as the case may be.

▪ /ou differentiate it with e+traordinary presumption of death under article 457. "t pro-ides that

9ualified absence occurs because there is great probability of death, this is 9ualified absence and ispresumed dead for all purposes. And what are these conditions as set forth under article 4571

"f a person is onboard a -essel or if you are a military person, you are e+posed to danger or

declared missing, and a person being in danger of death under other circumstances, and his

e+istence may not be *nown for < years.

◦ The significant point to remember in e+traordinary presumption of death is that in

e+traordinary absence, the person is presumed dead or ha-e died at the time of the

disappearance.

◦ Death of a person is not presumed at the end of < years but at the time of his disappearance.

▪ 'or e+ample, a member of the A'P was sent to )indanao to fight the Abu Sayaff, he wasdeclared missing in action on =anuary 8;, 8676. 'ollowing the law on e+traordinary

presumption of death, the person is deemed dead, presumed died, on =anuary 8;, 8676and not four years thereafter. And what is the significance here of *nowing when a

person is presumed dead1 "n matters of successional rights, it means that the heirs, atthe time of the disappearance of this military man ha-e already ac9uired his right to the

inheritance on =anuary 8;, 8676, which means that at the time of the disappearance,the heirs can now sell his share to a stranger because from the time of the moment of

death of a person his successional rights is been transmitted.

▪ "f you are going to compare this, if a person is presumed dead under ordinary

circumstances, the heir would ha-e to wait the end of 76 years or ; years for them to

-alidly sell or dispose of their share in the inheritance because in this point in time,

under ordinary absence, his inheritance is only considered as future inheritance.

◦ So what is really controlling here is that, first you ha-e to determine whether the presumption of death

is under 9ualified absence or ordinary absence in order to determine when the successional rights of theheir ha-e been transmitted. $ow, the 9uestion would be as*ed, what happened if its under

e+traordinary circumstance, can the heirs distribute or partition the estate1

▪ The answer is no. although the heirs right to the inheritance has already been transmitted but theycannot partition the estate until < years has passed, rec*oned from the time of disappearance. 2hathappened now if the person declared missing in action came bac* or returned, what will happen to

his estate1

"t is pro-ided under article 458. "t says there, if the absentee appears or without appearing, hise+istence is pro-en, he shall reco-er his property in the condition in which it may be found. %ut

he cannot claim the fruits and interests when he was away. %ut he can reco-er the price of anyproperty of his estate that may ha-e been alienated. AT THE )!)E$T !' H"S D"SAPPEAA$(E,

HE )ST %E 0;.

Article 778. Succession may be%

(&) Testamentary'

() egal or intestate' or

(*) +ixed. (n)

>inds of succession

◦ nder 00?@0?6, testamentary succession. 2hy testamentary1 /ou always ha-e to remember that when

we tal* about testamentary succession, there is an e+istence of a testament called a will.

◦ "f there is no will, succession becomes legal or intestate by operation of law. "f mi+ed, partly by will,partly intestate. "f all the properties are not written in the will, the remaining properties of the estate

shall descend by intestate succession.




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)

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

nder article 005, it says there that testamentary succession is that which consists of a designation of an

heir in a will and it has to be e+ecuted in the form or solemnities as pro-ided by law. This will may eitherbe notarial or holographic will. Testamentary succession.

Are non@cupati-e wills are sanctioned or admissible by our law on succession1

◦ $on@cupati-e meaning tape@recorded wills. "n our 3urisprudence, no. it is only holographic and

notarial will.

)i+ed succession occurs if the whole estate is not gi-en in the will. Part of the estate not gi-en in the will

shall descend by intestate succession unless of course the testator pro-ides otherwise. "f the testatorintends to gi-e the whole estate, and whole properties of the estate was not gi-en in the will itself,

intestate succession will not be applicable in this case because there is an intention of the testator to

gi-e the entire estate 1B.

◦ in relation to the scope of inheritance, we ha-e said that property whether real or personal and its

accruals are included in the inheritance.

Article 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)

Article 0?7 says that accruals should be gi-en to the legatee or de-isee but not after ac9uired properties.

After@ac9uired properties means properties ac9uired after the e+ecution of the will and at the moment of

death of the testator.

◦ %etween the time the will was made, and the time he dies.

◦ The rule is that after@ac9uired properties are not gi-en to the designated heir unless the contrary hasbeen pro-ided and it has to be e+pressly stated in the will.

▪ So, in the e+ample " ha-e gi-en you, " said " gi-e my condos to +. there is no mention of how manycondos but at the time of the e+ecution of the will, there are 8 condos. At the moment of death of the

testator, there were already < condos, 9uestion, how many condos should be gi-en to the heir1

2ould you consider the two more which were ac9uired after the e+ecution of the will an after@ac9uired properties1

/ESC So if your answer would be /ES, then your answer would not be <. %ecause we said theadditional two were ac9uired after the e+ecution of the will, that is considered after@ac9uired

properties.

/ou ha-e to differentiate it with accruals.

◦ The time to determine accruals is after the moment of death of the testator. And its not a

property or a specific property itself. This is an addition to the property, which is thesub3ect of a legacy or a de-isee.

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

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

Heir a person called to succession either the pro-ision of a will or by operation of law. "n both

testamentary and intestate succession, there are always heirs.

De-isees to whom gifts of real property are gi-en while legatees are persons to whom gifts of personalproperty are gi-en. Heirs maybe compulsory or -oluntary.

(ompulsory heirs are entitled to the legitimes of the decedent.

◦ These compulsory heirs are protected as with regard to the legitime the compulsory heirs, protected




by law so much so that if the heir, as compulsory heir inherits his legitime, this is not by -oluntary,

this is not by will but by operation of law because it is the pro-ision of the law that legitime isalways to be respected.

◦ (ompulsory heirs li*e legit children and their legit descendants, illegitimate children and theirdescendants whether legit or illegitimate. Then we ha-e legit parents and their legit ascendants.

And then we ha-e sur-i-ing spouse. These are the compulsory heirs and they are always entitled to

their legitime because the law protects the legitime for the compulsory heirs. So that is why we ha-e

what you call as preterition or impairment or pre3udicing the legitime. "t cannot be.

Lets mo-e on to -oluntary heirs. And when is that1 "f they are designate in the will li*e "ll gi-e you apiano, youre a legatee, house and lot, youre a de-isee. So these are -oluntary heirs because they are

designated in the will gi-en personal or real property.

◦ "nstituted heirs is different because instituted heir refers to those heirs who are gi-en an ali9uot

portion of the estate. So there is no specific property but only a specific portion of a property. So if "say " hereby institute % to 74 of my estate then % is considered as an instituted heir.

2hen is an heir en3oying a dual status1

◦ An heir is en3oying a dual status when an heir is a compulsory heir and hes entitled to his legitimebut hes also gi-en a share in the free portion. So hes entitled to the free portion.

◦ Thus, the heir will now be considered as a compulsory heir as to his legitime, and a -oluntary heir as

to the free portion. So it could be possible that a compulsory heir may be at the same time a-oluntary heir.

"mportant things to note here. 2hile there can be heirs in either testate, legal or mi+ed succession,legatees and de-ises cannot e+ist in intestate succession.

◦ The reason is because they can only e+ist if theres a will.

2hat then is the significance of *nowing the distinction between a compulsory heir and a -oluntary heir.

◦ "n matters of successional rights, if a person is a compulsory heir and he predeceases or is

incapacitated to inherit, then his heirs will inherit by representation, e+cept if he repudiatesF

◦ %ut if you are a -oluntary heir, if you predecease or incapacitated you will not transmit anything to

your heirs. "t will be re-erted bac* to the estate of the testator and it will descend by intestatesuccession. There is no right of representation if a -oluntary heir predeceases the testator.

◦ At this point in time, always remember, that if an heir predeceases or incapacitated to inherit, thereis a right of representation. %ut if an heir repudiates inheritance, there is no right of representation.

Lets go to the terms legatee, de-ises -is@G@-is instituted heir.

◦ 2hy do we ha-e to *now this1

▪ "f a person is a legatee or a de-isee, in matters of preterition, this early, preterition means totalomission of a direct compulsory heir.

"f one of the compulsory heirs is omitted, what will happen1 The effect would be that theinstitution of an heir is automatically annulled but the legacy and de-ise remains -alid as

long as it is not inofficious.

$ow in matters of -alid disinheritance, it has a different effect. "t means that the institution

of an heir may not be automatically -oided as long as it does not impair the legitime of theother compulsory heirs. "n matters of -alid disinheritance and preterition, one has to *now

the difference between a legatee and de-isee from that of an instituted heir.

Article 783. 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 tae effect after his death. (!!$a)

A will is an act whereby a person is gi-en or permitted with the formalities pro-ided by law to dispose of

his property to ta*e effect after his death.

◦ "f you dispose of your property during your lifetime, its not a will because its only a donation.

◦ So the 9uestion would be, are wills e+ecuted by a person immediately effecti-e upon the death of the

testator1

▪ The answer is no. why1 %ecause of the pro-ision of article ?4?. Article ?4? says that no will

shall pass either real or personal unless it is pro-en in accordance with the rules. $ow these




proceedings is called probate of the will.

▪ The will whether it is holographic or notarial must pass on for the appro-al of the court. So it isnot immediately effecti-e.

There are only two issues which has to be resol-ed in the probate proceedings.

◦ !ne is the testamentary capacity of the testator and the other is the e+trinsic -alidity ofthe will, which means that if the will is duly e+ecuted in accordance with the formalities

and solemnities of the law especially if it is a notarial will.

◦

And whether the testator has the capacity to e+ecute the will.◦ "f the court appro-es or admit the will of a person, that means that the will is authentic

and genuine.

▪ Thus, you could no longer raise the issue of forgery anymore because this goes intothe signature of the person in a will.

◦ The general rule is that all wills, whether notarial and holographic must be admitted in order to ta*eeffect.

▪ %ut the e+ceptions are the following:

'irst, A 0706, this is a person or a legacy of a human organs. " assigned this to you so itsup to you to determine why this is an e+ceptionC

Second, when the will does not in anyway dispose of any property. /ou dont ha-e to go to

the court and admit the will because after all there is no disposition of properties.

Third, if the will only appoints an e+ecutor, or administrator. Then you dont ha-e to submit

the will for probate.

Article 784. The maing of a will is a strictly personal act' it cannot be left in whole or in part to the discretion of athird person, or accomplished through the instrumentality of an agent or attorney. (!$/a)

The ma*ing of the will is a statutory right. "t is not a natural right.

2hy is it a statutory right1

◦ %ecause the ma*ing of the will is sub3ect to the limitation as pro-ided by the law. !nly to a certain

degree pro-ided by the law under articles ?6<@?6?.

◦ So the ma*ing of the will is not a natural right of a person. "f the ma*ing of the will is not inaccordance with the rules of the law, then youre will will not be admitted.

Second, it is a unilateral act. The ma*ing of a will is a unilateral act. There must be an intent on the part

of the testator to ma*e a will. "n order to -alidate the will, or to render it as -alid, you ha-e to follow, youha-e to show to the court that you ha-e the intention to ma*e a will.

And then the testator must ha-e testamentary capacity which has to be pro-en during probate

proceedings.

Strictly a personal act and the will must be effecti-e mortis causa, after the death.

Are the pro-isions of the will re-ocable1 /es of courseC "t is essentially re-ocable because it is

ambulatory in character.

"t should be free and -oluntary and it is to be made in only one instrument.

◦ A -ery important element in the -alidity of a will is that only one person shall ma*e one will.

▪ "n other words, not necessarily that he has to ma*e two persons in one 3oint will. That is why

our law in succession frowns 3oint wills.

2hat do you mean by 3oint will1

◦

=oint will is a will e+ecuted by two or more persons in one instrument and the law onsuccession does not admit such.

Are oral con-eyances -alid1

◦ nder our law, there is a leading case of lasam -s lasam 1B. in this case, 3urisprudence in the

Philippines recognies oral contracts as -alid pro-ided such partition of the estate does notpre3udice.

◦ Always remember that were tal*ing here only of oral con-eyances but if the 9uestion would be, areoral wills -alid1

▪ The answer would be no because there are only two *inds of wills: holographic and notarial.




Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which

they are to tae, when referred to by name, cannot be left to the discretion of a third person. (!$/a)

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. (!$&a)

Article 787. The testator may not mae a testamentary disposition in such manner that another person has to determine whether

or not it is to be operative. (n)

$ow the ma*ing of a will is a personal act but sometimes, you ha-e to as* the ser-ice of a lawyerespecially if it is a notarial will.

◦ That is not prohibited here as long as what the contents of the will is your own intention.

◦ $ow, since it is a personal act, delegations of the contents of the will is strictly prohibited. Thats

why under the law on succession, there is so called non@delegation in the e+ecution of the ma*ing ofthe will.

◦ $ow, this rule on non@delegation of the ma*ing of the will is found under the pro-isions of articles

0?;, and 0?0. $ow the e+ception to this rule is found under article 0?I. So ta*e note of this.

nder article 0?; and 0?0 you cannot delegate to a third person. "f you want to delegate to a third

person for the efficacy of the designation of an heir, it cannot be.

◦ "f youll say, " will gi-e piano to + as long as y will appro-e. So the efficacy of such designation isdependent upon the appro-al of y and that is not -alid.

◦ How about determinations of the portions to be gi-en to them1

▪ This is not also -alid. 2hy1

%ecause the determination of such portions is gi-en to the discretion of a third person, andthis cannot be admitted.

◦ The third is under article 0?;. Determination of another person whether or not is to be operati-e.

So these are the rules of non@delegation rule of the ma*ing of a will. The e+ceptions is found in thepro-isions under article 0?I.

◦ 2hat is this e+ception1

▪ "t says there that the testator may entrust a third person the distribution of specific property or

specific sums of money to a specific class or cause.

So 7) to be gi-en to a specific class lets say home for the aged to be determined by a thirdperson. That is acceptableC

!r the designation of a person or institution of establishments to which money or property

is to be gi-en. These are the two e+ceptions to the general rule on non@delegation in thema*ing of will to a third person.

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

Article 789. 0hen there is an imperfect description, or when no person or property exactly answers the description, mistaes 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 anyof its provisions, the testator1s intention is to be ascertained from the words of the will, taing into consideration the circumstances

under which it was made, excluding such oral declarations. (n)

Article 0??@058. these articles can only be applied if theres ambiguity in the will. "f theres no ambiguity

in the will then do not apply these articles.

2hat are these two *inds of ambiguities1 Latent or intrinsic and the other is patent or e+trinsic.

◦ Latent or intrinsic. The ambiguity does not appear in the face of the will thats why it is latent. And

that which does not appear in the face of the will and is only disco-ered after the death of the

testator.

▪ So if " say " institute my brother@in@law from the pro-ision in itself, this is -alid but ambiguitycomes in after the death of the testator when there are more than one brothers@in@law. So the




9uestion would be which brother@in@law is instituted.

"f the heir is not determinable, then the disposition in itself is already -oid because you

cannot pinpoint who is referred to in the will.

◦ How about patent or e+trinsic1 "t is actually found in the face of the will. =ust by reading the will, you

can already say that it is ambiguous.

▪ " hereby institute a few of my sisters. "f you ha-e 76 sisters, how do you determine the JfewK.

"n the contents of the will itself, the pro-ision itself is already -oid because it is -ery

ambiguous. $ow, if there is an ambiguity in the will, whether its latent or patent, what is the remedy then to show tothe court that this is the pro-ision, thats the intention of the testator in the will.

◦ 'irst, you ha-e to determine the e+amination of the will itself. The whole will in itself.

◦ And then you can introduce e+trinsic e-idence in court during the probate proceedings. %ut oral

declarations of testators are not admissible.

▪ !nly written declarations of the testator may be acceptable.

▪ 'or sometimes, you also ha-e to go around the circumstances during the e+ecution of the will.

'or e+ample there are two )ercy )ercy, "ll gi-e piano to )ercy. %ut at the time of thee+ecution of the will, you can pro-e that the other )ercy is an enemy of the testator and the

other )ercy is under his blessings so which )ercy was intended to be gi-en the piano1

◦ E-en if theres ambiguity but if you can pro-e surrounding circumstances at the time of

the e+ecution of the will, then the dispositions will not be -oid as long as the heir is

determinable.

Article 790. The words of a will are to be taen 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 taen 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. (!$"a)

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)

'or the interpretation of the will, if there is an ambiguity or none, usually, the general rule is that the

contents of the will should be interpreted in its grammatical sense. %ut if it uses technical sense or technical words, then it has to be interpreted in its technical sense.

nless of course the testator is not a doctor an hes using medical words then it would be open to doubtsif thats really the intention of the testator or the will of the testator.

So as a general rule, the words of a will shall be interpreted in its grammatical sense, if technical words,

in its technical sense unless there is a contrary intention appearing in the will.

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)

Sometimes in a will, there are pro-isions, different *inds of pro-isions and there is one pro-ision, whichis in-alid in a will. Probably because of ambiguity. So does it affect the whole will1 Article 058 says that

in-alid dispositions in the will do not affect all the -alid dispositions in the will. 2hether it is notarial orholographic.




Article 793. 2roperty acquired after the maing of a will shall only pass thereby, as if the testator had possessed it at the time of

maing the will, should it expressly appear by the will that such was his intention. (n) Article 794. 3very devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposedof, unless it clearly appears from the will that he intended to convey a less interest. (n)

Property ac9uired after the ma*ing of the will and properties still being ac9uired after the death. That isthe opinion of Pineda. %ut that is not the opinion of Paras. They seem to ha-e conflicting opinions.

◦

Pineda said that properties to be gi-en are only those already possessed and owned by the testatorat the time the will is made, not those ac9uired after the ma*ing of the will. That is the general rule .

▪ first e+ception, unless the testator e+pressly pro-ides otherwise in the will.

So if " say " hereby gi-e my condo to + and all condos that " may ac9uire before my death. "ts

no longer after@ac9uired properties because he intended to gi-e all the properties, condos

at the moment of his death.

▪ "f the will is republished or modified, thats another e+ception. "f you tal* about republication or

modification of a will, it means, that the will is as if its originally e+ecuted during republication.

So what actually happens is this, e+ecuted a will =anuary 8;, 8676, he has 8 condos. !n

=anuary 8;, 8677, republication. pon republication, he already has < condos. Death is 'eb8;, 8678, he has I condos.

◦ How many condos would + recei-e at the time of his death1 8. 2hy1 %ecause these are

considered as after@ac9uired properties. Supposing, he did not intend to gi-e the after@

ac9uired property but he republished it on 3an 8;, 8677, upon his death, how manycondos1 < why1 %ecause belongs to the e+ception to the general rule. 2hy ane+ception1

◦ The effect of a republication of a will is that it is as if the will was originally e+ecuted on3an 8;, 8677.

▪ $ow, supposing, he would say, all condos that " will get until my death will ha-e to be gi-en to +.so time of his death, he has to gi-e I. Another e+ception to the general rule on after@ac9uired.

At the time of the e+ecution of the will, the testator thought that he has 8 condos, and he

said " will gi-e these 8 condos to +. but he has no condos.

nder the rule, you cannot gi-e what you dont own. So what now happens to this legacy. "t

ma*es it -oid.

◦ %ut if before he died, he already has 8 condos, so can + demand1

▪ The answer is yes because she erroneously thought that it is his but he ac9uired itat the time of his death so + can demand the 8 condos. "t would be the other way

around if he did not ac9uire the 8 condos because first and foremost, upon the

e+ecution of the will it wasnt his condo. That is an e+ception to the general rule.

▪ Another e+ception. Legacy of credit or remission of debt.

This legacy of credit and remission of death is an e+ception because the basis of

determining the credit and the debt to be remitted is not at the time of the e+ecution of the

will but at the time of the death of the testator.

◦ So supposing, at the time of the e+ecution of the will, " say legacy of credit 4 persons + y

. + is the testator, he will gi-e to y the debt of .

◦ for e+ample "m the testator then let us say >ristina and >athleen. >athleen owes me766*. "ll gi-e *athleens debt to >ristina as a credit. So this is a legacy of a credit in my

will. $ow what happened now is that in my will at the time of the e+ecution. "t said that

" will gi-e a legacy of my credit of >athleen to >ristina but >athleen before " died paidme ;6*. so how much would >ristina get in my estate1

▪ The rule says the legacy of a credit should not be based at the time of the e+ecution

of the will but it should be based at the moment of death. So the determiningperiod of time is not at the e+ecution of the will but at the time of death.

2hen it comes to remission. "n the remission of debt, there are only 8 persons in-ol-ed.

>ristina and ". >ristina owes me money but " will remit. So 3ust dont pay me. 766* fore+ample. " put in my will, " will hereby gi-e a legacy of the remission of debt of >ristina from

my estate. 2hat happened1 Shes supposed to no longer pay the 766* anymore because "




already remitted it. %ut if you dont *now and you pay me ;6*, only the ;6* may be

remitted. So you could no longer demand the ;6* anymore. 2hy1

◦ %ecause you paid meC "ts li*e that. So thats an e+ception to the general rule on after@

ac9uired properties because the determining period of time to determine the credit isnot at the e+ecution of the will but at the time of death of the testator.

The interpretation of the will must be according to how it is stated. 2e ha-e already discussed the

concept of succession based on law, its definition of terms etc.

rticle $#". 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)

2 KINDS OF VALIDITY OF THE WILL

7. "ntrinsic refers to the legality of the pro-isions of the will. This actually refers to successional rights, orderof successional rights of the heirs.

◦ iewpoint of Place and (ountry $ational law of the decedent which shall go-ern the intrinsic-alidity of the will

◦ iewpoint of time @ at the moment of the decedentMs death, not at the time of the e+ecution of thewill

8. E+trinsic refers to the formalities and solemnities in the e+ecution of the will. "t depends actually in theobser-ance upon the law at the time the will was e+ecuted. Again, this only refers to the formalities and

solemnities of the will. "t may either be from the

-iewpoint of time must obser-e the law at the time of the e+ecution of the will -iewpoint of placecountry "T DEPE$DS:

◦ 'ilipino Philippine laws, where he is or where he e+ecuted the will Permissi-e so you ha-e to

ma*e a choiceB

◦ Alien if he e+ecutes the will abroad, the law of his domicile or his nationality or Philippine law or

where he e+ecuted the will, may go-ern the e+trinsic -alidity of the will

◦ Alien if he e+ecutes here in the Philippines, Philippine law will go-ern or the law of his nationality

2hat is really important for you to remember here is the rules on the e+trinsic and intrinsic -alidity of

the will.

P!%LE): A 'ilipino e+ecuted a holographic will in Switerland. At the time of e+ecution, holographicwill is recognied in Switerland. %ut this person is a 'ilipino. He e+ecuted the will in accordance to the

law where he e+ecuted the will, in Switerland. At the time of the e+ecution, Philippine law did notrecognie holographic wills. At the time of his death, the Philippines has already passed the $ew (i-il

(ode which recognies holographic wills.

▪ (an his will, which was e+ecuted in Switerland be admitted in probate here in the Philippines1

"f you will apply the rules, this will go into the e+trinsic -alidity holographicB. Lets go to the

-iewpoint of time. At the time of the e+ecution of the will, holographic will was notrecognied in the Philippines but it was e+ecuted in accordance with the laws of

Switerland which recognies holographic wills. %ut at the time of his death, holographicwill is already recognied in the Philippines.

The answer is $!. 'rom the -iewpoint of time, it is not e+trinsically -alid. 2hy1 %ecause it

was not recognied in the Philippines. This goes to the e+trinsic -alidity of the will. Thee+trinsic -alidity of the will in the -iewpoint of time states that it must be -alid at the time

of its e+ecution. At the time of its e+ecution, the Philippines did not recognie holographicwills. "t is immaterial when the testator dies or where he dies. 2hat is important here in the

-iewpoint of time is the law that is obser-ed at the time of its e+ecution. $ow the e+trinsic-alidity of the will in the -iewpoint of time is the pro-isions which is set forth under Article05;. "t may state that from the -iewpoint of place it is e+trinsically -alid but in the

-iewpoint of time it is not e+trinsically -alid because the will is not -alid in the Philippines

at the time of its e+ecution.

P!%LE): "n 7556, &, a 'ilipino, e+ecuted a will in Dubai. "n his will he ga-e all his estate in the

Philippines to his friend. He did not gi-e any to his wife and children. At the time of the e+ecution, Dubaidid not ha-e any laws regarding compulsory heirs and their legitimes. The Philippines also did not

recognie compulsory heirs at the same time. At the time of his death in 8666, he died in Dubai. At the




time of his death, Philippine law already recognies the legitimes of compulsory heirs. 2ill this will of &,

be considered to be intrinsically -alid1 (an the compulsory heirs of & in the Philippines demand theirrespecti-e legitimes1

▪ This now refers to the legality of the pro-isions of the will. "n the -iewpoint of time, the lawenforced at the time of the deah of the testator. At the time of his death, the Philippines already

recognied the legitimes of compulsory heirs. Therefore, the will is AL"D1 Pero it cannot be

intrinsically -alid because he did not gi-e anything to his compulsory heirs at the time of the

e+ecution, the Philippines did not recognie the compulsory heirsB. Therefore it cannot beprobated.

▪ 'rom the -iewpoint of placecountry, the will is not intrinsically -alid because it is the nationallaw of the testator that will go-ern, the national law of the testator is the Philippine law. At the

time of the death of the testator, the Philippine law already recognies the legitime ofcompulsory heirs.

4uestion &% -oes the will has to be both intrinsically and extrinsically valid for it to proceed to probate proceedings5

As you can see, probate proceedings are to determine the e+trinsic -alidity of the will. after determining its

e+trinsic -alidityB "t is only then the intrinsic -alidity of the will will be determined for the distribution of theestate of the testator. The probate courts has only limited 3urisdiction, and it is to determine the e+trinsic

-alidity of the will. That it is -oluntarily e+ecuted, the testator has the capacity to e+ecute it and its duee+ecution. As with regards to the legality of the pro-isions in the will, the probate court )A/ ha-e

3urisdiction, in some 3urisprudential e+ceptions, it may touch whether there is preterition in the sameproceedings. %T #E$EALL/, the 3urisdiction of the probate court is only limited to the determination of

the e+trinsic -alidity of the will.

4uestion % The viewpoint of country6place in both extrinsic and intrinsic validity always follow the respective time, liein the intrinsic validity, the country6 place should be limited to the execution of the will. re they the same5

Always refer to the law or rule regarding the intrinsic or e+trinsic -alidity of the will

To determine the intrinsic -alidity of the will, always refer to the nationality of the testator in accordance

with Article 7I and 70 of the (i-il (ode

A -ery interesting case on this is on the 'irst #entlemanMs brother, )iggy Arroyo.

4uestion *% 7ilipino executes his holographic will abroad at the time when the 2hilippines does not recogni8eholographic wills. t the time of his death, 2hilippines already recogni8ed holographic wills. -oes lex loci celibracionis

apply5 "n this case, we are determining the e+trinsic -aldity of the will. The said doctrine cannot be applied. Thesaid will cannot be submitted to probate since at the time of its e+ecution, holographic wills are not

recognied in the Philippines.

This will be discussed later for 3oint wills. Aliens who e+ecute 3oint wills abroad may be allowed probate herein the Philippines but 'ilipinos who e+ecute 3oint wills abroad, the said will cannot be probated here in the

Philippines. This prohibition " only applicable for 'ilipinos e+ecuting 3oint wills abroad. %T if aliens e+ecute3oint wills here, the said will will not be allowed probate here.

TESTAMENTARY CAPACITY AND INTENT

Article 796. ll persons who are not expressly prohibited by law may mae a will. (!!)

Article 797. 2ersons of either sex under eighteen years of age cannot mae a will. (n)

Article 798. In order to mae a will it is essential that the testator be of sound mind at the time of its execution. (n) 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 hismind be wholly unbroen, unimpaired, or unshattered by disease, in9ury or other cause.

It shall be sufficient if the testator was able at the time of maing the will to now the nature of the estate to be disposed of, the

proper ob9ects of his bounty, and the character of the testamentary act. (n)

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 maing his dispositions is on the person who opposes the




probate of the will' but if the testator, one month, or less, before maing his will was publicly nown to be insane, the person who

maintains the validity of the will must prove that the testator made it during a lucid interval. (n)

Article 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening

of capacity. (n)

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

Article 803. married woman may dispose by will of all her separate property as well as her share of the con9ugal partnership or

absolute community property. (n)

WHO CAN EXECUTE A WILL?

▪ Acti-e testamentary capacity refers to the capacity of the person to e+ecute a will

▪ Passi-e testamentary capacity refers to the capacity of the person as a recipient heir etc.B

◦ (an a member of a third se+ e+ecute a will1 /ES. Se+ #enderB does not matter.

◦ This perso !"s# o# $e %is&"'(i)ie% "%er #he ('* #o e+e,"#e ' *i(( i ' e+press !'er-

▪ Li*e a person who suffers ci-il interdiction, can he e+ecute a -alid will1 He is not e+presslyprohibited under the law, thus he can e+ecute a -alid will.

▪ A person who is a prodigal can also e+ecute a -alid will.

◦ So se,o% &"'(i)i,'#io *o"(% $e #he '.e/ 01 e'rs o) '.e- Se+ #enderB is immaterial here.

◦ Thir% &"'(i)i,'#io is #he perso !"s# $e o) so"% !i% '# #he #i!e o) #he e+e,"#io o) #he *i((-

2hat is important here is the person who e+ecuted the will, during the probate proceedings, must pro-eto the court that he was of sound mind during the e+ecution of the will. How about a person underguardianship1 %ecause this goes to the soundness of the mind of the person. /es.

▪ "t is not necessary that the testator possesses all the physical capabilitiesfaculties.

▪ Re&"isi#es o) so"%ess o) !i%3

7. Testator *nows the nature of the estate to be disposed of character, ownership of what heis gi-ingB

8. The testator *nows the proper ob3ects of his bounty by persons who for some reasone+pect to inherit something from himB

4. The testator *nows the character of the testamentary act that it is really a will, that it is a

disposition mortis causa, that is essentially re-ocableB

"f the person is suffering from senility1 Senile Dementia1 Nualified to ma*e a will but ssub3ect to

9uestioning during the probate

◦ Senile forgetfulness due to age

◦ Senile Dementia decay of mental faculties

▪ "f the person is suffering from disability, blindness, loss of speech, paralysis1

They can do so as long as they can communicate ad pro-e soundness of mind

◦ nder the law, a person is presumed of sound mind, but such presumption is disputable.

◦ "t is the oppositor to the probate of the will who shall ha-e the burden of pro-ing that the testator was ofunsound mind during the e+ecution of the will.

▪ E&(EPT"!$: 2hen the testator made the will after he has been 3udicially declared insane A$D thetestator, one month or less before ma*ing the will was publicly *nown to be insane.

▪ The petitioner shall pro-e that the will was made during the testatorMs lucid inter-al.

◦ The testator was of sound mind during the e+ecution of the will but the following day, he became insane.

(an this will be admitted to probate1 /ES. The super-ening incapacity of the testator will not in-alidatean effecti-e will nor the will of an incapable -alidated by the super-ening capacity. Article ?67B At the

time of the e+ecution of the will, the person was of sound mind. THE E(>!$"$# P!"$T !'AS(ETA"$"$# THE (APA("T/ !' THE TESTAT! "S AT THE T")E !' THE E&E(T"!$ !' THE 2"LL.




FORMS OF WILLS

Article 804. 3very will must be in writing and executed in a language or dialect nown to the testator. (n)

2hen you tal* about notarial will, its formalities, you ha-e to enumerate Articles ?6<@?6?. 'or holographicwills, enumerate Articles ?6<, ?76 and ?7<.

nder testamentary succession, there are #*o 4i%s o) *i((3

◦ $otarial

◦ Holographic

nder Article ?6<, which applies to both *inds, states that all wills must be in writing and e+ecuted in a

language or dialect *nown to the testator. !ral wills are not admissible as -alid wills in probate proceedings.'or e+ample, my language is Tagalog and " e+ecuted the will in %isaya, the said will will be opened to

9uestions since there is a presumption that " do not understand %isaya. "f there is this someone whointerpreted the %isaya will to me in Tagalog then it must be stated in the attestation clause for it to be

admissible in probate.

"s it re9uired for the witnesses to *now the contents of the notarial will1 $o. 2hat is important for thewitnesses is to *now the language in the attestation clause and it must be interpreted to the witnesses.

Article 805. 3very will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by thetestator1s 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 inletters 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 andevery 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 oneanother.

If the attestation clause is in a language not nown to the witnesses, it shall be interpreted to them. (n)

◦ Esse#i'( )or!'(i#ies

7. 2ill must be in writing

8. 2ill must be e+ecuted in a language or dialect *nown to the testator4. 2ill must be subscribed signedB at the end thereof by the testator ! by the testatorMs name

written by another person in his presence, and by his e+press direction

◦ "t is not the physical end of the will but it is the logical end of the will

◦ "f the will starts on page 7, continues on page 4, then on page 8 then the logical end is page 8and not page 4. "f the signature and the attestation clause are found in page 8 then there is

substantial compliance with the ma*ing of the will because the laws contemplates a situationwhere the signature must be found and subscribed at the end of the will.

◦ The testator must subscribe his signature. !r if it is another person, then it is possible, as long

as it is in his presence and under his direction. The said other person must not be one of the

witnesses.

◦ E'E to (ASE (!)PA"S!$ for 3urisprudence

◦ (ustomary signature -is@a@-is thumbra* -is@a@-is crossmar*

<. 2ill must be attested and subscribed by three or more credible witnesses in the presence of the

testator and of one another

◦ Attestation clause and Ac*nowledgement

◦ Subscription must be made in the presence of three witnesses and in the presence of oneanother, including the testator. "t may not be in the presence of the notary public.

◦ Subscription act of affi+ing the signature in a document in the particular places indicated bylaw

◦ Attestation act of certification to the effect that a memorandum of facts stated in the




attestation clause surrounding the e+ecution of the will whereby the witnesses attest the

following facts:7. $umber of pages used upon which the will is writtenF

8. The testator signed or e+pressly caused another to sign, the said fact must be indicatedB

the will and e-ery page thereof in the presence of the instrumental witnessesF

4. The instrumental witnesses witnessed and signed the will and all the pages thereof in thepresence of the testator and of one another.

SA)PLE: ATTESTATION CLAUSE (signed by the 0IT:3SS3S)

;0e, the undersigned attesting witnesses, do hereby affirm that the forgoing is the last 0ill and Testament of

<name of testator = and we certify that the testator executed this document while of sound mind and memory.That the testator signed this document in our presence, at the bottom of the last page and on the left hand

margin of each and every page, and we, in turn, at the testator>s behest have witnessed and signed the same in

every page thereof, on the left margin, in the presence of the testator and of the notary public, this <date= at

<city=.? Source% the net. %)

* leading experts: not part of the ill !"t for co#pliance for its $alidit%.

ACKNOWLED5EMENT 67OINT ACKNOWLED5MENT8

@epublic of the 2hilippines)

Aity of BBBBBBBBBBB ) s.s.

t the Aity of BBBBBBBBBB, on this BBB day of (month and year), personally appeared the Testator ;C?, and his three(*) instrumental witnesses to wit% D, DA and A-, all nown to me to be the same persons who executed and

attested, respectively, the foregoing ast 0ill and Testament, consisting (number of pages), including this pageon which this acnowledgment is written, and they all acnowledged to me that the Testator signed the will and

every page thereof on the left margin in the presence of the instrumental witnesses, that the latter signed andwitnessed the will on every page thereof on the left margin in the presence of the testator and of one another '

that all the pages of said will are numbered correlatively in letters placed on the upper part of each page, and

that the attestation clause is in 3nglish, a language nown to the instrumental witnesses' they further

acnowledged to me that the said will and attestation are their own free and voluntary act and deed. Thecommunity tax certificates and competent evidences of identities of the said Testator and three (*) instrumental

witnesses were exhibited to me, to wit%

0IT:3SS +E F:- :- S3 at the place and date first above stated. Source% the net %)

▪ Ac*nowledgement

)ust be ac*nowledged to the notary public by the testator and witnesses.

Ac*nowledging the presence and identity of the persons by the notary public

$otary public as witness1 $o because heMs there to ac*nowledge. So he will beac*nowledging himself1 Absurd. :B

◦ Who 're ,re%i$(e *i#esses?

▪ (redible when he possesses all the 9ualifications under ?86 and none of the

dis9ualifications under ?87.

A *i#ess !"s# $e3

◦of sound mind

◦ at least 7? years of age

◦ be able to read and write

◦ not be blind, deaf or dumb

◦ domiciled in the Philippines

◦ not ha-e been con-icted by final 3udgment of falsification of a document, per3ury orfalse testimony

▪ goes in to the honesty of the person




(an a blind person e+ecute a will1 /ES

(an he witness a will1 $o.

;. Testator or the person re9uested by him to write his name, and the instrumental witnesses of thewill shall sign each and e-ery page thereof e+cept the last, on the left margin

◦ There was this one case wherein thhe names of the witnesses appeared in the attestaion clause

but did not subscribe there. Howe-er, there signatures were subscribed at the left margin ofe-ery page e+cept the last page. The S( held that the will is in-alid. "t is important that the

witnessess also subscribe their signatures at the end of the attestation clause. "t rendered thewill fatally defecti-e.

I. All the pages shall be numbered correlati-ely in letters placed on the upper part of each page

◦ @!$E@ @T2!@ @THEE@

◦ )ust be stated in the Attestation clause number of pagesB

◦ There was a case wherein there was no mention in the attestation clause of the number of pages

but said number of pages were mentioned in tha ac*nowledgement part. S( held that the will isstill -alid as 3urisprudential e+ceptionB, the ac*nowledgement cured the defect.

rt. G/!. 3very will must be acnowledged 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 Hffice of the Aler of Aourt. (n)

A##es#'#io can only be made by the act of witnessing the e+ecution of the will, its acts must be attested bythe witnesses. The subscription by the witnesses and the testator, and the will which is notarial must always

be ac*nowledged before a notary public.

&ase: &r"' $s. (illasor 54 )&A 21

◦ This is a landmar* case. "t has been settled that notary public cannot be made as one of the subscribingwitness in a will, because a notary public cannot ac*nowledge his own act.

$ow as to 9uestion on whether it is necessary that the ac*nowledgment of the will of the testator must bemade in the presence of one another1

◦ Ac*nowledgment may be madeOis it necessary that all the witnesses when they signed the will, and thetestator, must they be present with each other1

◦ $ot necessarily, but the act of affi+ing their signatures is re9uired that all the witnesses must be present,as well as the testator at the time of affi+ing their signatures.

Ac*nowledgment -s. Subscription -s. Attestation

◦ Ac*nowledgment is different from that of subscription, and subscription is different from attestation.

◦ "n the attestation, at the end of the attestation clause, it is necessaryF it is the re9uirement under the law

that all the witnesses and testator must be present at the time of affi+ing their signature.

4% Is it required for the notary public to be present during the execution of the will5

◦ $o, because he is only re9uired during the ac*nowledgment.

"t is not also necessary that at the time of ac*nowledgment that ALL the witnesses and the testator must bepresent at the same day on the occasion that the will was e+ecuted.

&ase: +a$ellana $s. ,edes#a 97 -hils 25

◦"t is not necessary that ac*nowledgment of the will by the testator and the witnesses be made on thesame day, or same occasion when the will was e+ecuted.

4% Is a notari8ed will considered a public document5 Is this will duly acnowledged and subscribed to by the

witnesses a public document5

The answer may be yes because of the fact that it has been notaried. %ut strictly spea*ing it shall not be

considered a public document because the notary public is not re9uired to submit a copy of the last willto the court. $ormally, as a matter or procedure, if you are a notary public, all documents that you ha-e

notaried for the month should be submitted at the end of the month in the cler* of court. "n our case, in




the Palace of =ustice, to the (ler* of court, e+ officio.

%ut in the case of last will and testament, it is not a re9uirement for them to submit the copy of the

notarial wills. The reason is because this is a matter of personal recordsB, this last will and testament ofa person who is going to die, or shall ta*e effect upon his death, and it does not need to be announced to

the whole world, the contents of the last will and testament.

4% Is it necessary for the notary public to read the contents of the will that he acnowledged5

The notary public need not ha-e to read through the contents of the will, unless of course he was the one

who prepared the notarial will. %ut if you are ac*nowledging the witnesses and the testator, you neednot read the contents of the will. "t is more than enough that the person appeared personally before you

and he attest to the fact that he has -oluntarily e+ecuted his signature in the will, -oluntarily, without

undue pressure.

There is a presumption of regularity if the document has been duly notaried by an accredited notary

public. $ot all lawyers are notary public, but all notary public are lawyers. /ou ha-e to get a specialcommission to be a notary public.

Another important re9uisite of a notarial will is about the witnesses. 2itnesses should not only sign at

the end of the attestation clause, but also they ha-e to sign in each and e-ery page at the left margin of

the will, e+cept at the last page.

4% 0hy do you thin the law requires the signing of the will on each and every page except the last page5 what

is the purpose of the law in requiring the witnesses to sign on each and every page of the will5 So that the other pages of the will cannot be substituted with another page. "n order to pre-ent people

or third persons to substitute a page in the will.

Ta*e note that a sheet is different from a page. Sheet means front and bac*. The law re9uires that thesignature would only ha-e to be affi+ed in the page, in the front page.

5eer'( R"(e3 The general law adhered to under the law, is that the failure of the witness, e-en one witness

to sign any page of the will is considered as a fatal defect. This is the general rule.E+,ep#io3 =urisprudential e+ception:

&ase: casiano $s. casiano 11 )&A 422

The facts of the case is that one of the witnesses failed to sign page 4 of the will, because it was actuallyconcealed by the seal of the notary public. $ow in sealing the document, the notary public should couple

the pages together, in this case, there were 8 pages that were pasted, because of the seal. So because of

this, one of the witnesses was not able to sign on the left margin of page 4. As a rule generally adhered to is that e-en one witnesses who failed to sign his signature on the left

margin in one of the pages of the will, it is fatally defecti-e, rendering the whole will -oid, therefore it isnot admitted by the court. %ut in this particular case, the court ta*es e+ceptions to the fact that there is

an unusual circumstance surrounding the facts of the case, because the court cited the ground ofinad-ertence or o-ersight on the part of the witness, and second because of the notarial seal which was

not the fault of the witness that he was unable to sign the page.

E-en the general rule adhered to by our law can ha-e an e+ception, in the form of 3urisprudentiale+ception rendered by the court.

Supposing that the testator is a deaf@mute, or the testator is blind. Aside from these 9ualifications orre9uisites of the e+ecution of the notarial will, there are additional re9uirements for a person physically

disabled to ma*e a notarial will.

rt. G/$. If the testator be deaf, or a deafmute, 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)

"t is -ery clear in Art. ?60. That if the testator is deaf of deaf mute, first if he is literate, he must personallyread the contents of the will. >ay ngano man1 Di man siya blind, so basahon niya. %ut if he is illiterate, unya

deaf pa gyud siya, or deaf mute pa gyud siya, then unsa may re9uirement sa law1 "t says there that it should




be read to him by two persons and these two persons need not be one of the subscribing witnesses, nor a

notary public. That is the re9uirement, it should be read to him twice, or it must be communicated to theperson through any sign language, or any other way. So communication of the will is really important to

show that the contents of the will are really the desire of the testator.

$ow if a person who is going to e+ecute is a blind person, naturally dili siya *abasa, so it must be read to himand the law is E/ (LEA on the PES!$S who are going to read to him the will. !$L/ !$E !' THE

S%S("%"$# 2"T$ESSES A$D $!TA/ P%L"( which notaried the will.

rt. G/G. 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 acnowledged(n)

4% Is it mandatory that these persons must read the contents of the will to the blind person5

◦ The answer is /ES, because of the word shall. %ut with regards to the deaf or deaf mute, it must be read

to him by any two persons under article ?6?.

SU9STANTIAL COMPLIANCE rt. G/#. 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 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 rticle G/". (n)

2hen there is substantial compliance of the law where the purpose sought by the attestation clause is

obtained, the same should be considered as -alid.

The rule says, in the absence of fraud, improper pressure and influence, defects and imperfections in theform of attestation or in the language used therein shall not render the will in-alid if it is pro-ed that the will

was in fact e+ecuted and attested in substantial compliance with all the re9uirements of Article ?6;.

&ase: oxas $s. /e +es"s 143 )&A 245

"t is a holographic will, but the law says that it must bear the complete date. $ow in this particular

case, the date is only 'ebruary I;. So it is not a complete date since there is no daydate. The S(considered this on the ground that there is a substantial compliance of the law as regards to the

e+ecution of a holographic will. As long as one can pro-e that there is no presence of bad faith orfraud.

The law mandates that the strict compliance of the formal re9uirements of the will is mandatory. %utin some 3urisprudential rulings, the S( had in a way liberalied the strict posture of the law applyingliberal construction of the law in se-eral cases.

%ecause of this substantial compliance, or when the purpose of the law has been achie-ed, then

substantial compliance may be admitted in order to consider the -alidity of the will.

So in the following cases, these are e+amples of substantial compliance.(ases:

ey -s. (arta3ena ;I Phil 8?8

Sebastian -s. Panganiban ;5 Phil I;4

odrigue -s. /ap I? Phil 78I

Sano -s. Nuintana <I Phil ;I6

These cases refer to the 3urisprudential e+emptions on the mandatory application of the law on the formal

re9uirements of the will. This is a notarial will referring to the document she is holdingB, it contains the body of the will, and then the

signature of the testator, followed by attestation, and followed by the signature of the three witnesses. Ta*e

note that the three witnesses are re9uired, not only mere witnesses but witnesses who are considered as(!)PETE$T and (ED"%LE. %ecause it may be possible that there are three witnesses but only two are

credible witnesses rendering your will as -oid. After the attestation, there is the subscription, the affi+ing ofsignatures by the witnesses and the testator. After the attestation, then follows the 3oint ac*nowledgment. All

of them ac*nowledge before the notary public that their act is their own due act. Another re9uirement is that

signatures should be affi+ed on the left margin of the will e+cept on the last page and it must be numbered.




$ow it says there that it must correlati-ely numbered in words. %ut the mere fact that there is only 8 or page8, it would render the will as -alid. There are 3urisprudential e+ceptions to this. So e-en if there is only 8, 4 or

<, it is still considered as -alid.

HOLO5RAPHIC WILL

Ar#i,(e 10:- A person may e+ecute a holographic will which must be entirely written, dated, and signed by the hand of the

testator himself. "t is sub3ect to no other form, and may be made in or out of the Philippines, and need not be witnessed. I0?,

I??aB

Ar#i,(e 100- "n the probate of a holographic will, it shall be necessary that at least one witness who *nows the handwriting and

signature of the testator e+plicitly declare that the will and the signature are in the handwriting of the testator. "f the will iscontested, at least three of such witnesses shall be re9uired.

"n the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, e+pert

testimony may be resorted to. I75aB

Ar#i,(e 102- "n holographic wills, the dispositions of the testator written below his signature must be dated and signed by him inorder to ma*e them -alid as testamentary dispositions. nB

Ar#i,(e 10;- 2hen a number of dispositions appearing in a holographic will are signed without being dated, and the lastdisposition has a signature and a date, such date -alidates the dispositions preceding it, whate-er be the time of prior

dispositions. nB

Ar#i,(e 10<- "n case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the

same by his full signature. nB

A holographic will is -ery easy document to ma*e because it is entirely written in your handwriting, entirely

dated and signed by the hand of the testator. The law says that it must be signed, dated by the hand of thetestator, -ery clear, hand. 2hat if the person has no hands, can he ma*e a -alid holographic will1 Are you

going to interpret the word hands literally1

The law says hands would mean the usual way of affi+ing the signature by way of an instrument. So *ungwala *ay hand, foot or *ung wala *ay foot, then mouth, or *ung wala gyud, then ears.

So "ll gi-e you a scenario here, it says that a holographic will must be written, dated, and signed by the hand

of the testator. $ow supposing a person li-es in a -ery remote area, say i*apitong bundo*, and he wants to

e+ecute a will. So what he did was to write the will, gi-ing all his properties to his son, on the wall of the

house, duly dated and signed by the hand of the testator.

4% Aan this holographic will be admitted to probate5 0ould you consider this as a valid holographic will5 7irst

is the will a valid holographic will5

◦ A: yes, because its entirely handwritten, dated and signed by the hand of the testator.

4% -oes it matter where the will is written5 Is it necessary that the will is written in a clean bond paper5

◦ A: "n the re9uirements of the law, it mentions that the will must be written by the hand of the testator,

but it does not mention where the will must be written, so it can be written in the paper, lea-es, or onthe wall, as long as it complies with the re9uisites of a -alid will.

$ow, there is no 9uestion that the will is -alid. "t is a -alid holographic will as long as it complies with all there9uirements of the law. %ut we ha-e a re9uirement on how to admit the will. "f you go to court and file a

petition for probate of the will, if the will itself cannot go to court, then the court will go to the will.

So the 3udge here will assign personnel of the court to go to the site of the will. So a will that is written on thewall is a -alid will, and the will can be probated by the court.

So what is really important here to *now is that a holographic will must be E$T"EL/ 2"TTE$. Thus, if you

started with the e+ecution of your holographic will in your own handwriting, and you followed it up with asecond page which is printed, then this will is not -alid. "t is not -alid as a holographic will, and at the same

time it is not -alid as a notarial will, because it does not comply with the formalities of the notarial will. "nthe same manner that all the contents of the will is in your handwriting, but if the date is printed, it is not

also a -alid holographic will, why1, because this goes into the pro-ision of the law which is -ery clear that the




holographic will must be E$T"EL/ 2"TTE$ , DATED A$D S"#$ED %/ THE HA$D !' THE TESTAT!.

Another re9uisite of a holographic will is that it must be written in a language *nown to the testator and if

there are insertions, cancellations, or obliterations, or alterations in the will, it is re9uired that in aholographic will, these alterations must be authenticated by the full signature of the testator.

The full signature does not mean to say that it must be the first name, the middle name and the last name.

%ut it is still possible, it can be -alidated by the signature which does not contain a middle name, as long asyou can pro-e to the court that that is your usual full signature. Definitely in a holographic will when there

are erasures, initials are not acceptable. So if you ha-e erasures there, and at the top you put only yourinitials, then such is not -alidated by your signature. 2hich means to say that if there are erasures in the will,

it does not follow that the whole will is -oided, only that particular pro-ision which is not authenticated bythe full signature is -oided. E+cept of course if there is only one disposition in the will, because if there is

only one disposition in the will and there is an alteration which is not authenticated by the full signature ofthe person of the testator, then the whole will is therefore -oided.

As a general rule, there are dispositions contained in the holographic will and only one disposition is not

authenticated by the full signature of the testator, only that disposition is considered as -oid.

As regards to a holographic will, its a -ery delicate document, why1 %ecause it is open to fraud, it is open toforgery. So any alterations in the holographic will must always be authenticated by the full signature of the

testator, especially if the erasures or omissions go into the date and signature of the will. 2ithoutauthentication therein, the whole will is -oided, not only the dispositions, but he whole will. %ecause the

substance of the holographic will depends on the date and signature of the will.

So if the signature of the will is omitted or erased, and cancelled without authenticating them, then thewhole will is -oided, not only the dispositions of the will.

2e ha-e said that in a holographic will, all erasures should be authenticated. This pro-ision, you ha-e toobser-e, is only applicable to a holographic will.

4% Is this provision on authentication applicable to notarial wills5 In other words, if there are erasures in the

notarial will do you have to authenticate it to retain the validity of the will5 Decause it has not been explicitlystated under the law that if there are erasures, it needs the authentication by the full signature of the testator.

A: "t can be said that authentication in a notarial will can be done. Let us remember that the purpose of

the will is to safeguard the desire and intentions of the testator. Let us ta*e note that the law has nopro-isions on the alterations in the notarial will, but by implication, because of the fact that safeguarding

of the wishes and desires of the testator is the first priority in the ma*ing of the will. Thus, the

pro-isions with regards to erasures and authentication, although it is not pro-ided in the law, in

analogous cases, this can also be applied in the ma*ing of a notarial will. $gano man1 >ay si bisan *insanalang diay diha ang mo@ilis sa notarial will nimo, ilisan ug legacy, from & to /, unya walay authentication

from the testator. That cannot be, so the pro-ision can also be applied in a notarial will.

Probably the pro-ision of the law is -ery clear, it is -ery e+plicit on holographic will *a yang holographic

will dali ra ma forge, it is open to fraud. That is why they did not e+plicitly pro-ide for the notarial will*ay after all there are three witnesses who can attest to the e+ecution of the will, and as a matter of fact,

there is what you call the attestation clause, to show to the court that the witnesses attest to the fact that

all the surrounding circumstances happen during the e+ecution of the notarial will. %ut not as withregards to a holographic will, it is not safeguarded, that is why there is no point of protecting the

testator, as long as it is authenticated by him, not necessarily by the other witnesses, because aholographic will has no witnesses.

Holographic will is not sub3ect to any formalities, as long as the three re9uisites are complied with.

So how is that probated1 The law says that you should file a petition for probate of a holographic will. 2howill do that1 "t may be probated by the testator himself during his lifetime, or it may be probated or admittedto court by the heirs, the legatee or de-ises. They will go to court and file for probate of a holographic will.

This is a *ind of special proceedings.

The law is -ery clear that if it is not contested, nobody contested the holographic will, ne-ertheless, one

witness must still be presented. "f there are contestants of the probate of a holographic will, three witnesses

must always be presented in court.

Ta*e note that these three witnesses, if there are contestants is mandatory. The law does not say maybe, but

the law pro-ided that it SHALL be presented. So the word shall is synonymous to mandatory.




"f there are no witnesses a-ailable, then you can resort to e+pert witness.

(an a lost or destroyed holographic will be admitted to probate1

◦ /es, by parole e-idence, naa siguroy tawo nga na*a hibaw unsa ang imong gibutang sa will. (an this

statement by a witness be sufficient in order to admit probate of the will1

2ell settled in our 3urisprudence that a lost or destroyed holographic will, as a general rule cannot beadmitted to probate. As you can see *anang holographic will *ay imong handwriting, so the best e-idence is

the document itself. >ung walay copy, there is no point of comparing the handwriting and signature of the

testator. &ase: an $s. ap 104 -hil 509

◦ "t cannot be pro-en by parole e-idence since the document itself is the best e-idence of the e+istence ofthe will. %ut as an e+ception, is the case of:

&ase: odelas $s. Aran'a 119 )&A 16

◦ A photostatic copy of the will was presented in lieu of the lost or destroyed holographic will, and thecourt admitted the same for probate.

◦ $ow there some obser-ations of this case, some of the 3urists would contend that the wisdom of thedecision in the case of odelas -s. Arana as a 3urisprudential e+ception to the rule is doubtful because

according to them the penlips, an instrument used by handwriting e+perts to determine or to discernthe similarity of the handwriting cannot be made a-ailable and cannot distinguish in a photostatic copy.

%ut this 3ust a mere obser-ation. The fact is that the admissibility of the photostatic copy of theholographic will was put to 9uestion because of the applicability of penlips used by the e+perts.

$ow in a holographic will, you state that:

" hereby gi-e my piano to &.

" hereby gi-e my house and lot to /.

" hereby gi-e my condominium to .

S#D.

$ow sometimes, after the signature, you put another pro-ision.

" hereby gi-e my piano to &.

" hereby gi-e my house and lot to /.

" hereby gi-e my condominium to .

S#D.

" will gi-e my car to /.

After that, you put another dispositions.

"s there a -alid disposition1 "f after the signature, there is another disposition, and it is not signed and dated,

only the disposition after the signature is considered as null and -oid, but all other preceding dispositions

which contained the date and the signature are considered as -alid.

%ut sometimes, there are dispositions which are dated and signed, and there are succeeding dispositions

which are not signed and dated, all succeeding dispositions are considered as -oid.

%ut sometimes there are dispositions which are signed but not dated, and the last dispositions are signedand dated, what is the effect1

The effect is that it -alidates all the dispositions which are signed.

E+:




" gi-e my condo to /.

" gi-e my house to &.

" gi-e my car to .

S#D Q dated

" gi-e my hairpin to $ancy.

S#D

" gi-e my -olleyball to %ulit.

Dated

" gi-e my Hermes bag to Pac9uiao.

S#D Q dated

The general rule is that, if the dispositions contained in the holographic will are signed and dated, they areconsidered -alid. After the dispositions, naa say gibutang J" gi-e my hairpin to $ancyK. $ow we said it must

be signed and dated, now what is the effect of this1 "t is -oid because it is not dated. $ow another, J" gi-e my-olleyball to %ulitK, no sign, 3ust dated. And the last J" gi-e my hermes bag to Pac9uiaoK, signed and dated.

The law says, which of these dispositions after J" gi-e my car to K are -alidated by the disposition J" gi-e my

Hermes bag to Pac9uiao.

5eer'( R"(e3 The general rule is that, if there is no signature and date, the disposition is -oid.E+,ep#io3 The e+ception is that, if the last disposition is signed and dated, it -alidates the dispositions

before it. This disposition J" gi-e my -olleyball to %ulit is not -alidated by the last disposition which is signed

and dated, since only those dispositions which are signed but not dated are -alidated.

$ow supposing ang last disposition, signature lang, walay date, unsa may effect ani1 All thedispositions preceding it are -oid. !nly the first three dispositions are considered as -alid.

(ASES for D"S(SS"!$

son $. /el osario

'A(TS:

This is an action for reco-ery of the ownership and possession of fi-e ;B parcels of land in Pangasinan, filed

by )aria son against )aria del osario and her four illegit children. )aria son was the lawful wife of

'austino $ebreda who upon his death in 75<; left the lands in-ol-ed in this litigation. 'austino $ebreda leftno other heir e+cept his widow )aria son. Howe-er, plaintiff claims that when 'austino $ebreda died in75<;, his common@law wife )aria del osario too* possession illegally of said lands thus depri-ing her of

their possession and en3oyment. Defendants in their answer set up as special defense that son and herhusband, e+ecuted a public document whereby they agreed to separate as husband and wife and, in

consideration of which son was gi-en a parcel of land and in return she renounced her right to inherit anyother property that may be left by her husband upon his death. ('" found for son. Defendants appealed.

"SSE:7. 2$ son has a right o-er the lands from the moment of death of her husband.

8. 2$ the illegit children of deceased and his common@law wife ha-e successional rights.

HELD:

/es. There is no dispute that )aria son, is the lawful wife of 'austino $ebreda, former owner of the fi-e

parcels of lands litigated in the present case. There is li*ewise no dispute that )aria del osario, was merely

a common@law wife with whom she had four illegitimate children with the deceased. "t li*ewise appears that'austino $ebreda died in 75<; much prior to the effecti-ity of the new (i-il (ode. 2ith this bac*ground, it is

e-ident that when 'austino $ebreda died in 75<; the fi-e parcels of land he was seied of at the time passedfrom the moment of his death to his only heir, his widow )aria son Art 000 $((B.As this (ourt aptly said,

RThe property belongs to the heirs at the moment of the death of the ancestor as completely as if the

ancestor had e+ecuted and deli-ered to them a deed for the same before his deathR. 'rom that moment,therefore, the rights of inheritance of )aria son o-er the lands in 9uestion became -ested. The claim of the

defendants that )aria son had relin9uished her right o-er the lands in 9uestion because she e+pressly




renounced to inherit any future property that her husband may ac9uire and lea-e upon his death in the deed

of separation, cannot be entertained for the simple reason that future inheritance cannot be the sub3ect of acontract nor can it be renounced.

$o. The pro-isions of the $(( shall be gi-en retroacti-e effect e-en though the e-ent which ga-e rise to them

may ha-e occurred under the prior legislation only if no -ested rights are impaired. Hence, since the right ofownership of )aria son o-er the lands in 9uestion became -ested in 75<; upon the death of her late

husband, the new right recognied by the new (i-il (ode in fa-or of the illegitimate children of the deceasedcannot, therefore, be asserted to the impairment of the -ested right of )aria son o-er the lands in dispute.

2rinciples of Succession%

The successional right of a wife is vested on the moment of the testator>s death.

The intrinsic validity of the will would follow the law at the moment of death of the testator.

s to the agreement as with regards to the renunciation of the wife, his future inheritance cannot be a sub9ectof renunciation.

A, $s. - e!r"ar% 27 1953

'A(TS:

Leonard died in =une 75<I lea-ing his sur-i-ing spouse, (atalina, and some minor children as his heirs.

(atalina sold an entire parcel of land, which is a con3ugal property, to spouses (anoy. "t was then sold to

"barle. The Deeds of Sale were not registered. "n 75<?, (atalina sold of the said land to Po, which portionbelongs to the children.

HELD:

The moment of death is the determining factor when the heirs ac9uire a definite right to the inheritance,

whether such right be pure or contingent. "t is immaterial whether a short or long period of time lapsesbetween the death of the predecessor and the entry into possession of the property of the inheritance

because the right is always deemed to be retroacti-e from the moment of death. 2hen (atalina sold the

entire parcel of land to the (anoy spouses, of it already belongs to the children. Thus, the first sale was

null and -oid in so far as it included the childrens share. !n the other hand, the sale to the Po ha-ing beenmade by authority of the competent court was undeniably legal and effecti-e.


sale of a coowner of an entire property, not necessarily invalidate the sale, but only to the extent of the

proportion of the share.

) ,- / $s. ,- e!r"ar% 26 1926

'A(TS:

The testator made a will. )anuel Torres, one of the e+ecutors, which was also named in the will, presented itfor probate. )argarita Lope, contended that the testator lac*ed mental capacity because at the time of the

e+ecution of the will, he had senile dementia and was under guardianship. E-idences were presented, sincethe will was made in the hospital, the physicians said that the testator was in his right mind when he made

the will, has the testamentary capacity in ma*ing it, and was aware of the nature of his estate.HELD:

The testator may ha-e been of ad-anced years, may ha-e been physically decrepit, may ha-e been wea* in

intellect, may ha-e suffered a loss of memory, may ha-e had a guardian, and may ha-e been e+tremely

eccentric, but he still possessed the spar* of reason and of life, that strength of mind to form a fi+ed intentionand to summon his enfeebled thoughts to enforce that intention, which the law terms Jtestamentarycapacity.K !nly complete senile dementia will result to testamentary incapacity. S( held that the will should

be accepted for probate.


Testator must have testamentary capacity in maing a will Testamentary Aapacity includes%




a. Sound +ind. bility to comprehend what he is doing, same as soundness of mind

for contracts.b. t least &G yrs or over.

c. +ust not expressly disqualified under the law

Ale;andrino $s. &A

'acts:

The late spouses Ale3andrino left their si+ children named )arcelino, #regorio, (iriaco, )auricia, Laurencia

and Abundio a lot in (ebu (ity. pon the death of the spouses, the property should ha-e been di-ided among

their children, howe-er, the estate of the Ale3andrino spouses was not settled in accordance with the

procedures.

Petitioner )auricia one of the childrenB allegedly purchased portion of the lots from her brothers,#regorioMs, (iriacoMs and AbundioMs share. "t turned out, howe-er, that a third party named $i9ue, the pri-ate

respondent in this case, also purchased portions of the property from Laurencia, Abundio and )arcelino.

Howe-er, Laurencia the alleged seller to $i9ueB later 9uestioned the sale in an action for 9uieting of titleand damages. The trial court Nuieting of title caseB ruled in fa-or of $i9ue and declared him the owner of

the lots. Laurencia appealed the decision to the (ourt of Appeals but later withdrew the same.

$i9ue filed a motion for the segregation of the portion of the property that had been declared by the trialcourt Nuieting of title caseB as his own by -irtue of purchase. The trial court segregated the property on the

basis of the E+tra@=udicial Settlement between )auricia and Laurencia."ssue: 2hether or not partition of the lot was -alidly made

Held: /es.

Although the right of an heir o-er the property of the decedent is inchoate as long as the estate has not beenfully settled and partitioned, the law allows a co@owner to e+ercise rights of ownership o-er such inchoate

right. Laurencia was within her hereditary rights in selling her pro indi-iso share. The legality of LaurenciaMsalienation of portions of the estate of the Ale3andrino spouses was upheld in the Nuieting of title case which

had become final and e+ecutory by LaurenciaMs withdrawal of her appeal in the (A. 2hen $i9ue filed amotion for the segregation of the portions of the property that were ad3udged in his fa-or, he was in effect

calling for the partition of the property. Howe-er, under the law, partition of the estate of a decedent may

only be effected by 7B the heirs themsel-es e+tra3udicially, 8B by the court in an ordinary action for

partition, or in the course of administration proceedings, 4B by the testator himself, and <B by the thirdperson designated by the testator.

E+tra3udicial settlement between )auricia and Laurentia became the basis for the segregation of the

property in fa-or of $i9ue. Howe-er, e-idence on the e+tra3udicial settlement of estate was offered before thetrial court and it became the basis for the order for segregation of the property sold to $i9ue. )auricia does

not deny the fact of the e+ecution of the deed of e+tra3udicial settlement of the estate. She only 9uestions its-alidity on account of the absence of notariation of the document and the non@publication thereof.

A partition is -alid though not contained in a public instrument. )oreo-er, the e+ecution of the deed of

e+tra3udicial settlement of the estate reflected the intention of both Laurencia and )auricia to physically

di-ide the property. %oth of them had ac9uired the shares of their brothers and therefore it was only the two

of them that needed to settle the estate. The fact that the document was not notaried is no hindrance to itseffecti-ity as regards the two of them. The partition of inherited property need not be embodied in a public

document to be -alid between the parties.


Hver the right of an heir over the property of the decedent is inchoate, as long as the estate has not partitioned.

aw allows the coowner to exercise his right of ownership over such inchoate right because it is pending partition. Dut because of rticle $$$, the moment of death of the testator, there is already that right of theinheritance.

Le'%i. ,'ses o #he si.'#"re o) #he #es#'#or i ' o#'ri'( *i(( 's *e(( 's #h'# o) #he *i#esses-




Solar v -iansing(5) and -e Jala v Jon8ales now these particular cases, the Supreme (ourt held that a

thumb@mar* which was affi+ed in a will is a recognied mode of signature, pro-ided that one can pro-e that,that thumb@mar* is the usual customary signature of the testator as well as that of the witnesses. "n these 8

cases, the court allows the thumb@mar* of the testator to be -alid signature. During probate of the will one

has to pro-e that this thumb@mar* is the usual customary signature of the testator and that would suffice for

the grant of or admission of the will.

"n Jarcia v aquesta the signature of the testator resembles a mere sign of the cross. $ow the 9uestion iswhether a mere sign of the cross is considered to be a -alid signature of the testator. "n this particular case,

the court ruled that the signature in the form of a cross is not a customary signature and cannot be a -alidsignature of the testator, unless it can be pro-en that it is his normal way of signing. As a general rule, a mere

sign of a cross is not a -alid signature. 2hy1 %ecause its easy to falsify. %ut as long as one can pro-e that thecross is the customary signature or the normal way of signing on the part of the testator, that can be

admitted to probate as a -alid signature.

"n Darut v Aabacungan in this particular case the testator directs another person to sign in behalf of the

testator. Howe-er, that third person did not write the name of the testator but only the name of the person

who was directed to sign. Supreme (ourt held e-en in the presence of the testator, e-en at his e+press

direction, if the name of the testator does not appear in the will itself, then it cannot be -alidated as a -alidwill, as a -alid signature, e-en if the circumstance of the fact that it has been signed by another person is

found as stated in the attestion clause does not in any way suffice the solemnities or formalities of the law as

with regards the signature of the testator. 2hy1 %ecause of the fact that name of the person that wasdirected to sign appear without the name of the testator appearing.

$ow in the case of :era v @emando and Kaboneta v Justilo this is about the true test of the presence of the

testator witnesses man siguro niB. "n the notarial will, we ha-e said that the signature of the testator as wellas the witnesses must be made in the presence of each other, of one another. Thats a mandatory

re9uirement of the law. Howe-er, there was a 9uestion as with regards to the issue of the physical presenceof each other. "n these particular cases, one of the witnesses was at a distant away from the other witnesses

when they affi+ed the signature. %ut according to the Supreme (ourt, it says there it is not the physicalpresence at the time of signing which is in compliance re9uired by the law, but it is the fact that they might

ha-e seen each other sign had they chosen to do so. So e-en at the time the other witnesses affi+ed their

signatures in the will, but the other witness was in the other side of the room and he could loo* bac* and see

others sign their names in the will. $ow in this particular case, the true test of determining whether thesignature was affi+ed in the presence of one another is not the physical presence nor the closer distance

between each other but the fact that at the time of the signing, the other witnesses are there in a distancethough they might ha-e seen each other sign e-en if they are not close or in pro+imity with the other

witnesses who signed. Theres another case where the other witness was in the other room and there was adi-ision. "n this case, the S( ruled that the re9uirements of the presence of one another is not complied with,

the fact that there was a curtain, so they cannot see the other witnesses sign.

$ow the re9uisites of a holographic will, naturally it must be in writing. "t must be a language *nown to the

testator, and it must be completely dated, signed and written by the hand of the testator. "nsertions,cancellations, erasures, or alterations must first be authenticated by the full signature of the testator, this is a

-ery clear pro-ision with regards alterations or omissions in a holographic will. %ut you cannot find anypro-ision li*e this in a notarial will.

So " address this 9uestion to you: "s this re9uirement for the authentication of any alterations or omissions in

a holographic will applicable to notarial will1 " ha-e already as*ed that 9uestion to you right1 And we ha-esaid, what1 2hat is your conclusion1 "s it applicable to a notarial will1 So if a notarial will has already beensigned and ac*nowledged, if there are alterations of omissions in that notarial will, is it re9uired for the

testator to authenticate the same1 The law is silent with regards to this. %ut as with regards to holographicwill, the law is -ery clear. That it has to be authenticated.

"f you cannot authenticate any alterations or omissions in a notarial will, it means that there is doubt as to

whether the notarial will is -alid or not. Thus oppositions will ha-e to be filed during the probate of anotarial will. %ecause if you are a practitioner, it would be best if you would ha-e to do it yourself, you ha-e




to instruct the testator to authenticate with the full signature. "t does not in any way affect the -alidity of a

notarial will.

:ow, it says there, by the hand of the testator. -oes it mean to say that if the testator, if the person does not have

hands, he cannot mae a holographic will5

◦ $o. The law interprets the word hand as the customary way of writing of a person. So if a person does

not ha-e a hand, he may be able to write through his mouth, or ear, or foot, or nose. So if anyone canpro-e that this is his usual way of writing, then the holographic will may be admitted in a probate

proceeding.

$ow, substantial compliance says, as long as the purpose of the law is achie-ed, then there is substantial

compliance.

"n the case of o+as - de =esus in the will, the date indicated there was 'ebI7. "n this particular case, court

allows the admission on the principle of substantial compliance. So e-en if its not a complete date, but if itsachie-ed that you can interpret it as a date, 'eb, the month, and the year. "f its only 'eb. 7;, no year, can you

identify1 $o. %ut if you can identify 'ebI7 that is actually the month of 'ebruary and the year 75I7. "f only'eb. 7; cannot be admitted because there is fatal defect.

:ow furthermore, it says that insertions, cancellations must be authenticated by a full signature. 0hat do you

mean by full signature5◦ Legally we interpret a full signature as comprising of %renda, thats the first name, and then the middle

name, and then the family name. %ut there are 3urisprudential e+ceptions to this rule which states that

the first name and the family name may suffice. "t may be sufficient in order to comply with the so@calledfull signature.

If there are omissions therefore, or alterations, erasures in a holographic will and is not authenticated, does itaffect the validity and efficacy of the whole will5

◦ $ot necessarily, unless of course that disposition is the only disposition in the will.

:ow, supposing there are alterations or omissions in the dispositions of the will and the other dispositions

remain as valid. :ow what if the erasures and alterations goes into the date and the signature in a holographicwill without authenticating them, does it affect the whole will or only the signature5

◦ $ow this time, it affects the whole will itself. So all the dispositions contained in the will, if the signatureor the date is not duly authenticated, then it affects the whole will rendering it as -oid.

$ow if the signature and the date is altered and authenticated, what is the effect as with regards to theauthentication of the same1 2ould it -oid the whole will or render it inefficient or ineffecti-e or remains

-alid1 2hat do you thin*1

"f the will is witnessed by two or more witnesses can it affect the -alidity of a holographic will1

2hat is the notarial will is not witnessed by 4 but only 8, does it affect the whole will1 "f it is witnessed by ;competent and credible witnesses1

◦ So what is really important here to *now is that in a holographic will, there are no witnesses needed or

re9uired. "n a holographic will, there is no form re9uired. As long as it is completely dated, signed andwritten by the hand of the testator. So as with regards to erasures, it must be authenticated in a

holographic will. "n notarial will, it is silent with regards the application of such, but in order to be safe, it

has to be authenticated by the testator in order to pre-ent oppositions during the probate.

$ow the probate of a holographic will, only one witness has to be presented.

4uestion% 0hy would there be a witness to be presented, when, as a matter of fact you don>t need witnesses in your holographic will5 0ho is going to be presented as a witness if there are no oppositions5

◦ All right, we said that the probate of a will may be made ante mortem or post mortem. $ow, probate wasmade ante mortem by the testator during his lifetime, because the testator can do so, go to court and




probate his own will. So, do you need a witness to attest to the fact that this handwriting is a holographic

will in the handwriting of the testator1 How about if there are oppositions1 Present 4 witnesses1 nderthe law, you need to present one witness to attest that, that is your handwriting. And if there are

oppositions, then you present 4 witnesses.

So, we as* the usual 9uestion, can a lost or destroyed notarial will be pro-ed by parol e-idence1 /es.

(an a lost or destroyed holographic will be presented e-en in the absence of the original holographic will1(an a lost holographic will be probated1

◦ As a general rule: no. "t cannot be pro-en by parol e-idence the reason is because holographic will is thebest e-idence to show the handwriting signature of the testator. Howe-er, that is the general rule and

admits of e+ceptions: e+ceptions in the form of 3urisprudential e+ceptions.

◦ So in the case of Jan v Eap, this is the general rule: a lost or destroyed holographic will cannot be

admitted to probate.

▪ %ut the 3urisprudential e+ception in the case of @odelas v ran8a where a photostatic copy of the

holographic will was presented in court and it was admitted by the court.

There are some 3urists who 9uestioned the wisdom of the decision in Arana case. 2hy1

%ecause the instrument usually used by the e+pert witnesses called penlifts cannot discern the

authenticity of a handwriting of a person in a photostatic copy. So how would we be able totestify as to the authenticity of the handwriting when penlifts cannot e-en distinguish it is the

authentic handwriting of the testator. %ut ne-ertheless it becomes a decision in the @odelas v ran8a as an e+ception to the rule in the case of Jan v Eap.

Article 815. 0hen a 7ilipino is in a foreign country, he is authori8ed to mae a will in any of the forms established by the law of thecountry in which he may be. Such will may be probated in the 2hilippines. (n)

Article 816. The will of an alien who is abroad produces effect in the 2hilippines 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 Aode

prescribes. (n)

Article 817. will made in the 2hilippines by a citi8en or sub9ect of another country, which is executed in accordance with the law

of the country of which he is a citi8en or sub9ect, and which might be proved and allowed by the law of his own country, shall havethe same effect as if executed according to the laws of the 2hilippines. (n)

Article 818. Two or more persons cannot mae a will 9ointly, or in the same instrument, either for their reciprocal benefit or for the

benefit of a third person. (!!#)

Article 819. 0ills, prohibited by the preceding article, executed by 7ilipinos in a foreign country shall not be valid in the 2hilippines,even though authori8ed by the laws of the country where they may have been executed. ($**a)

Article ?7; tal*s about e+trinsic -alidity of a will. 2hen you tal* about e+trinsic -alidity, this refersto the forms and solemnities of a will. $ow ta*e note that in summary, you ha-e to differentiate the

pro-isions of Article ?7; to ?75.

?7; refers to the rule to determine the e+trinsic -alidity of a will e+ecuted by a 'ilipino abroad. So a'ilipino e+ecuted, whether a notarial or holographic will, abroad.

$ow Article ?7I refers to a case where the will is e+ecuted by an alien abroad. This alien may either

be a resident or non@resident in the Philippines.

$ow Article ?70, this refers to the e+ecution of a will by an alien in the Philippines. So, not abroad.

So, an alien e+ecuting a will here in the Philippines. Article ?7? refers to prohibition of a 3oint will. Prohibition as to the institution of a 3oint will.

Article ?75 in summary: TH"S =!"$T 2"LL "S APPL"(A%LE !$L/ T! '"L"P"$!S 2H! E&E(TED A 2"LLA%!AD A$D EE$ "' THE/ E&E(TED A 2"LL "$ THE PH"L"PP"$ES. As you can see Article ?75 therefore,

is an e+ception as to the rule as pro-ided under Article ?7;. Article ?7; pro-ides, to determine the e+trinsic-alidity of the will e+ecuted by a 'ilipino abroad. "t has to be e+ecuted in any way , in any form established in

the country where he may be. $ow this is -ery e+plicit in Art. ?7; but this is merely permissi-e. As you ha-e




studied before, it is not only the law that go-erns the e+trinsic -alidity of the will on the country where he

may be, it could also be go-erned by Philippine law, or it could be go-erned by the country where he may be,where he e+ecutes the will. So all these are 3ust permissi-e. "t could either be Philippine law, or could either

be the place of domicile, or it could be either the place where he e+ecutes the will in order to determine the

e+trinsic -alidity of the will from the -iewpoint of place or country.

$ow, if the will is probated abroad, the will of the alien or the will of the 'ilipino is probated abroad. (an thisstill be re9uired to be probated here in the Philippines if it in-ol-es properties in the Philippines1

◦ $ow we said that his will e+ecuted abroad has been admitted outside the Philippines, but it cannot beimmediately admitted here in the Philippines because it has to undergo a proceeding. All right, so this

*ind of proceeding is called EP!%ATE !' A 2"LL.

▪ 2hich means that there are already conclusions and issues on the testamentary capacity of the

testator as well as that of the due e+ecution of a will because it has already been probated abroad. Sothat is what my 9uestion is.

▪ 2hat then are the issues to be resol-ed in a probate proceeding when this issue on testamentary

capacity and due e+ecution of a will has already been resol-ed outside1 2hen the court admits the

will, it means that there is a conclusi-e resolution as with regards to the due e+ecution of the will. Soyou dont need to pro-e it anymore to court, because it has already been pro-en in a foreign tribunal.

So why do you need to pro-e it here1 So in other words, what are the fi-e issues to be resol-ed in areprobate proceeding1 2hich means, probated na sa gawas, diri, reprobate. %ut if you ha-e to file

probate of a will originally here in the Philippines , d parehas ug proceedings. 2hy1 /ou ha-e topresent witnesses. And they need 4 witnesses if there are oppositions, you ha-e to follow

publications, posting, follow as with regards to the procedure of notices to be considered in a specialproceeding. %ut in reprobate proceedings, you dont ha-e anymore to go through presentation of

e-idence. 2hy1 %ecause its already been resol-ed in a probate court abroad.

= iss"es #o $e reso(>e% i ' pro$'#e pro,ee%i.3

7. Due e+ecution of the will in accordance with the foreign laws, you ha-e to show it in courtF8. The testator has his domicile in the foreign country and not in the PhilippinesF

4. That the will has been admitted to the probate of such countryF<. The fact that that foreign tribunal is a probate courtF

;. The fact that the laws of a foreign country on procedure on allowance of wills ha-e been pro-en alsoin that proceeding.

So these are the ; e-idences to be presented in a reprobate of a will. The landmar* case is enunciated in the

case of de 2ere8 v Tolete. So as to the 9uestions on whether if the will is probated abroad, does it ha-e to be

probated again here in the Philippines in order for the will to be effecti-e here, the answer is no. 2hy1%ecause of the doctrine of processual presumption.

$ow what is the DOCTRINE OF PROCESSUAL PRESUMPTION1 "t says there, it is presumed that our laws on

probate are the same as that of the laws in the foreign country. That is the doctrine of processual

presumption. Howe-er, there must be a proceeding. And this proceeding is called a reprobate of a will toshow proof of its probate in the foreign tribunal.

As to aliens who e+ecuted wills abroad, usually the law that go-erns as to the e+trinsic -alidity is that of hisown country or nationality. "f the foreigner is an "talian, then its the law of "taly that will go-ern the e+trinsic

-alidity of a will. %ut merely permissi-e because it may be the law in the Philippines, or it may be the law ofthe place of e+ecution. So if youre an "talian, you can ma*e use of the rule as to the e+trinsic -alidity of the

will by "talian law, or in Switerland if he e+ecuted it in Switerland, or he may ma*e use of the law in the

Philippines, as with regards to the e+trinsic -alidity of his will. This is an alien who e+ecuted his will abroad.

$ot in the Philippines.

$ow under Article ?70 this is an alien e+ecuting a will here in the Philippines. So "talian a, nag e+ecute ag




will sa 2ilipinas, so unsa may , naturally Phillippine law, or his country. All right.

Article ?7? refers to the prohibition as to the ma*ing of 3oint wills. 2hat is a 3oint will1 How do you

differentiate it with reciprocal wills or mutual wills1 The -ery difference here is that 3oint wills are

prohibited in our Philippine law. %ut reciprocal wills or mutual wills is recognied here. The 3oint wills arethose, which contain in one instrument, the will of two or more persons 3ointly signed by them. There is only

one instrument and in the same instrument, the wills of both are contained in the same instrument and

signed in the same instrument. "t could either be for the benefit of each other or it could be for the benefit ofa 4rd person. "t does not matter as long as they sign or ma*e their own will in one instrument. 2hat is thedifference between mutual or reciprocal wills from that of a 3oint will1 This mutual reciprocal will is

admissible in our 3urisdiction because this is not contractual in nature. There are two wills here, onee+ecuted by one and one is e+ecuted by another. E-en if in the disposition of the wills of both, there is a

reciprocity. eciprocity character in the dispositions of the will, it is not prohibited here because it is not

considered a 3oint will. !ne will *ay &, second *ay /, in the will of & he would say " will gi-e my entire estate

to /. "n the will of /, he would say " would gi-e my entire estate to &. This is not prohibited. 2hat isprohibited is when they e+ecuted one instrument.

All right. " say that Article ?75 is an e+ception to ?7; because as with regards to 3oint will, this is only

applicable to 'ilipinos who e+ecute abroad or in a foreign land. Thus, apparently, because of ?75, if such 3oint

will were made and e+ecuted by foreigners abroad and -alid in accordance with the place of e+ecution or

?7I, the same should be considered as -alid here in the Philippines. So if " would say & and /, naturaliedAmerican citiens, e+ecuted a 3oint will in America, where 3oint will is considered as -alid, can this will beadmitted in the Phils1 /es. 2hy1 %ecasuse, naturalied American citiens. %ecause at the time of the

e+ecution of the will they were already considered as foreigners, aliens.

%ut if " say & and /, 'ilipinos, e+ecuted a will in 7556 and became naturalied American citiens 7557. (an

this 3oint will be admitted in the Philippines1 The answer is no because at the time of their e+ecution of thewill they were still considered as 'ilipinos. And 3oint wills are prohibited only for 'ilipinos e+ecuting 3oint

wills abroad.

2hat if 'ilipinos e+ecuted 3oint will here in the Philippines, is this prohibited1 Prohibited 3ud. %ecause 3oint

wills per se is prohibited. E+ception is when foreigners e+ecuted 3oint will abroad. %ut, e+ception to thee+ception is when the foreigner or alien e+ecuted the 3oint will here in the Philippines. This time, this 3oint

will is now prohibited in matters of public policy.

Article 820. ny 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 G/" of this Aode. (n)

Article 821. The following are disqualified from being witnesses to a will%

(&) ny person not domiciled in the 2hilippines'

() Those who have been convicted of falsification of a document, per9ury or false testimony. (n)

As you ha-e obser-ed, the 9ualifications of a person to be a witness to a will is broader and restricti-e thanthat of a person who is 9ualified to e+ecute a will.

$ow 9ualifications of a person who attests to a will, as a witness to a will must be of sound mind, at least 7?

years of age, able to read and write, should not be blind, deaf and dumb. )ust be domiciled in the Philippinese+cept if the wills are e+ecuted abroad, then you need not ha-e to be domiciled here.

And a -ery interesting, a -ery intriguing 9ualification is that a person should not be con-icted of falsification

of a document, per3ury or false testimony. 2hy do you thin* only these *inds1 2hy not murder or rape,

arson1 Supposing there is a con-iction in the lower court of &, con-icted of falsification of documents and on

appeal and then he was made a witness to a will, and he was made as one of the 4 witnesses, will it in anyway affect1 Suppose this witness is gi-e in legacy in the will, is he 9ualified to inherit despite that he was

con-icted of falsification1 Supposing he is a creditor1 "s he 9ualified to inherit1 Nualified to be a witness1




(annot inherit the legacy but can be 9ualified as a witness.

Ta*e note, you ha-e to obser-e that in the boo* of Paras it mentions final con-iction. "n the boo* of

Pineda it does not mention final con-iction, which means that if he is con-icted in the lower court,he is incapacitated to be a witness.

%ut if you submit to the opinion of Paras that there must be a final con-iction, then final con-iction is

re9uired in the cases of falsification of documents, per3ury and false testimony for a person to bedis9ualified to be a witness to a will.

So in the meantime, pending, on appeal, what happens on appeal, he is con-icted1 2hathappens to the -alidity of the will1

Paras: it seems that the will is still -alid, because at the time of the e+ecution of thewill he was not yet con-icted by final 3udgment.

Pineda: he does not mention of a final con-iction, which means that at the time he is

con-icted, he is dis9ualified to be a witness to a will, thereby affecting the -alidity ofthe will. So which one1

'inal con-ictionC 2hy1 %ecause there is a principle here, you ha-e to respect the

wishes and desires of the testator. "n the will, the tendency is to interpret the will inaccordance with what is pro-ided in the will. To gi-e the will the -alidity it needs.

(onstruction is more to the -alidity of the will. So its more of by final con-iction.

rticle G. 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)

So, the principle here is that what is important to determine the 9ualifications of a witness is at the time of

attesting in the e+ecution of the will. So if the witness is sane at the time of attesting, but he became insanethe day after, the will is still considered as -alid. As long as at the time of attesting the will, he was sane. He

can be pro-en as a sane person.

(an a foreigner be made a witness to a will1

◦ /es. There is no prohibition for a foreigner or an alien to be a witness to a will as long as he is a resident

here in the Philippines. Sometimes also, if the will is e+ecuted abroad, then a foreigner can be made awitness to a will.

rticle G*. 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 bysuch 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.Fowever, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n)

"s a compulsory heir 9ualified to be a witness to a will he inherits1

◦ /es, there is no prohibition.

%ut, if the son is gi-en a legacy in the same will in which he witnessed, can he inherit the legacy or de-ise1

◦ $o. He is dis9ualified to inherit.

◦ There are two 9uestions here:

7. (an a compulsory heir witness a will1 /es.8. "s he 9ualified to inherit in the same will1 Depends.

◦ "t depends because he is a compulsory heir. "f he is a compulsory heir, he could either be acompulsory heir and a -oluntary heir. $ow the answer would be to 9ualify.

◦ /es, he is dis9ualified to inherit from the free portion, if there are only 4 witnesses.◦ %ut no, he is not dis9ualified to inherit from the legitime. So the legitime can ne-er be imposed

any burden at all. So a compulsory heir may inherit the legitime, but not as to the free portion,as a -oluntary heir. "f the case would be that there are more than 4, other than the son, then he

is 9ualified to inherit both the legacy and his legitime.

"s the legatee, de-isee or instituted heir 9ualified to witness in a will1

◦ /es. %ut if they are gi-en any legacy or de-ise in the same will, they forfeit their legacy and de-ise, but

they are 9ualified to witness the will.




◦ There are two different things there. 2hat actually is the effect of this1

▪ The witness, de-isee, legatee, instituted heir is 9ualified to witness the will but dili sila ainherit as

an heir.

So under Article ?84, it refers to witnesses that cannot inherit. Some points to ponder here:

◦ 2hat if, there are < witnesses to a will. A is gi-en a legacy and D is gi-en a de-ise. Supposing, assumingthat A%(D are all competent. The 9uestion is: A and D, are they 9ualified to inherit their corresponding

legacy and de-ise1 Possible answers here: that either will recei-e, or that both will not recei-e, D will

recei-e his A will not recei-e his, or A will recei-e his D will not. So which is which1◦ $ow, there are 8 possible answers:

7. They will be gi-en the legacy and the de-ise at the same time. 2hy1 %ecause from the -iewpoint of

A, if gi-en the legacy, there are 4 remaining witnesses, %(D. !n the -iewpoint of D, A%(F

8. $one of them will inherit.

2hy1 /ou cannot sacrifice the effecti-ity or -alidity of a will 3ust because of the legacy or de-ise.

They are dis9ualified to inherit. 2hat if both of them are dis9ualified to inherit, then you stillha-e the remaining < witnesses. So actually, there is no write or wrong answer in this case.We((/ I s"$!i# !ore #o .i>i. e))e,# #o #he >'(i%i# o) #he *i(( #h' #o s',ri)i,e #he >'(i%i#

o) #he *i((-

$ot only the witness which is dis9ualified to inherit, but the spouse, the parent and the child and anyoneclaiming, in behalf of the witness. And who are these persons, Janyone claiming in behalfOK1 (reditors.

So if there are only 4 witnesses, and a legacy is gi-en to the brother of A, is the brother 9ualified to inherit

the legacy1

◦ The answer is yes. 2hy1 %ecause the brother is not included as heirs dis9ualified to inherit.

%ut what if " say a legacy is gi-en to the spouse of A, is he 9ualified to inherit assuming that there are only 4

witnesses1

◦ $o.

$ow ta*e note if " say grandchild. So let us say (7. :aay ana si (, grandchild ni A. legacy of piano to (7.

There are only 4 witnesses, A%(. "s the legacy gi-en to (7 -alid1

◦ /es. 2hy1 %ecause (7, e-en if there are only 4 witnesses, (7 is not among those dis9ualified to inherit.

◦ "n the same manner, brother of (, (4. "f a legacy is gi-en to (4, is he dis9ualified to inherit1

▪ /es. %ecause hes a child of A.

Legacy gi-en to % parent@in@lawB, parent of SS spouse ni AB, witness is A, assuming that there are only 4witnesses.

◦ $o. "n@law is not dis9ualified to inherit.

A%(, can a creditor be made 9ualified to witness a will1

◦ The answer is yes.

◦ Nualified to inherit the legacy gi-en in the same will1 Assuming that there are only 4, legacy to (. (an the

legacy to ( gi-en in the same will1

▪ Dis9ualified to inherit because there are not more than 4 competent witnesses.

How about if there are < witnesses A%(D, all competent, can the creditor be 9ualified to inherit the legacy1

◦ /es.

Supposing ( is also the creditor of D, and D was gi-en a piano. The creditor wans to recei-e the piano inbehalf of D. (an the creditor recei-e the piano gi-en to D1 " am trying to point this out to you, if you are going

to read through the pro-isions of the law, it seems that all those creditors not only limited to the witnesshimself, is dis9ualified. Also creditors of other witnesses and creditors of the spouse, the child, and the

parent of the witness is also prohibited or dis9ualified to inherit unless, there are more than 4 otherwitnesses. So dis9ualification, not only the witness dis9ualified, but also the parent, the child and then

spouse and anyone claiming as creditor of the spouse, etc.

rticle G". codicil is supplement or addition to a will, made after the execution of a will and annexed to be taen as a part thereof,




by which disposition made in the original will is explained, added to, or altered. (n)

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

2hy are codicils considered as small wills1 !r little will1 (an a codicil be e+ecuted ahead of a will1

◦ "t cannot be e+ecuted ahead of a will because it is merely a supplement. "t is an addition to a will. "t was

made after a will has been e+ecuted.

◦And this codicil may be made as anne+ed to the original will and to be ta*en as an integral part of thewill itself. %ut we ha-e said that original wills may be re-o*ed by the e+ecution of another codicil. An

original will may either be re-o*ed by another codicil.

◦ $ow in the same manner, a will may either be a notarial will or a holographic will. A notarial will may be

re-o*ed by a holographic codicil or a holographic will may be re-o*ed by a notarial codicil.

◦ 2HAT "S EALL/ ")P!TA$T HEE T! >$!2 "S THAT A (!D"("L )ST %E E&E(TED 2"TH THE

'!)AL"T"ES !' A 2"LL. That is why it is called a little will. "t if is a notarial codicil, it must beac*nowledged, witnessed, and must contain an attestation clause, all those re9uisites of a notarial will is

applicable to a notarial codicil.

rticle G$. If a will, executed as required by this Aode, 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%(&) The document or paper referred to in the will must be in existence at the time of the execution of the will'

() The will must clearly describe and identify the same, stating among other things the number of pages thereof'(*) It must be identified by clear and satisfactory proof as the document or paper referred to therein' and

(L) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous boos of account orinventories. (n)

Sometimes there are documents that you want to be part of the will pero it is so -oluminous that you cannot

put e-erything or the substance of the documents in the will itself, thus the law recognies incorporation of a

document as part of the will.

"s this incorporation for reference also applicable in a holographic will1

◦ Paras: /es. As long as these papers and documents are handwritten in the hand of the testator or if the

holographic will happens to ha-e 4 witnesses, then the witnesses can be presented during probateproceedings that would attest to the handwriting or to the e+istence of the documents, which are

incorporated by reference. 2ith regards to holographic will, the law is silent. So its a matter of arguing

in court that these documents maybe a part of the holographic will because you ha-e to comply with allthe re9uisites of the -alid incorporation of the documents.

At this point in time you ha-e to *now the difference between re-ocation and republication and re-i-al.

All right, if you tal* about E!(AT"!$, the presumption is that there is a -alid will you want itineffecti-e-oid.

"n EP%L"(AT"!$ -oid or re-o*ed will you want it to be effecti-e -alid.

E"AL -oid re-o*ed -alid.

2hen you tal* about republication, there is a presumption of e+istence of a -alid will and you want to re-o*e

it, ma*ing it ineffecti-e and -oid.

%ut if you tal* about republication, there is a -alid re-o*ed will, you want to republish it.

$ow, so this republication is an act of testator while re-i-al is by operation of law.




rticle GG. will may be revoed by the testator at any time before his death. ny waiver or restriction of this right is void. ($*$a) Article 830. :o will shall be revoed except in the following cases%

(&) Dy implication of law' or

() Dy some will, codicil, or other writing executed as provided in case of wills' or

(*) Dy burning, tearing, cancelling, or obliterating the will with the intention of revoing it, by the testator himself, or bysome 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 inaccordance therewith, if its contents, and due execution, and the fact of its unauthori8ed destruction, cancellation, or

obliteration are established according to the @ules of Aourt. (n)

There are only 4 legal ways of re-o*ing a will. $aa na +ay -alid will, muingon *a, ganahan *o mawa iya

effecti-ity, what am " going to do1 "f you put it in your will, " hereby prohibit that this will be re-o*ed at anytime before my death, this particular disposition in the will is -oid. 2hy1 %ecause of Article ?8?.

The purpose of re-ocation is to render a -alid will as ineffecti-e or -oid. $ow this particular pro-ision ?8? is

also true in the case where the testator has already filed for probate of his will during his lifetime, but he canstill re-o*e it any time e-en if its admitted already in court.

; (e.'( *'s o) re>o4i. ' *i((3

7. by implication or operation of law. "t may either be total or partial re-ocationF

8. is by an o-ert act by burning, tearing, cancelling, or obliterating the original willF4. by e+ecution of a re-o*ing will, codicil, totally, partially, e+pressly or impliedly.

$one other acts of re-ocation is acceptable under the law. So these 4 ways of re-o*ing a will are E&(LS"E.

So when is a will deemed re-o*ed by operation of law1

◦ sually the disposition in a will by the act of the testatorO ga-e shares of stoc* to &, later on, sold my

shares of stoc* to / tantamount to me changing my mind of gi-ing the stoc*s to &. This act of alienatingor selling the same is an implied act of re-o*ing your legacy to be gi-en to &.

◦ !r " would say " hereby gi-e my swimming pool to &, but before " die " con-ert the swimming pool to abas*etball court. This is a way of transformation of the legacy, which tantamount to an implied

re-ocation of my legacy of swimming pool to &.

◦ Another e+ample is when an heir committed an act of unworthiness, or in a legal separation. So what is

the presumption here1 The re-ocation made by the testator change of mind and heart to gi-e the sameto the person concerned.

$ow, another interesting way of re-o*ing a will is by o-ert acts. %ut only e+clusi-e to < acts: %T(!.

◦ So if " say " ha-e an original will here, " want to re-o*e my original will " tear 7 page, but " taped it bac*.

So there are 8 9uestions here: is there a -alid re-ocation, and is there a republication of1 Act: tearing and

pasting it bac*. $ow tearing, is that enough to effect re-ocation1

▪ /es, but it has to comply with the following rules:

7. There must be an o-ert actF

8. (ompletion of the sub3ecti-e phase of the o-ert actF4. That there must be an intent to re-o*eF

<. The testator at that time must ha-e the capacity to e+ecute a will.

So the capacity to re-o*e a will is also the same as the capacity to e+ecute a will. And the re-ocation may bedone by the testator himself or by another by his e+press direction, and in his presence.

"t says there that mere tearing if it is coupled with an o-ert act and with the intent to re-o*e can re-o*e anoriginal -alid will. %urning, is it necessary that the entire will should be burned1

◦ $o. As long as there is intent to re-o*e, an o-ert act of burning and has completed the sub3ecti-e phase.




This is the scenario: " want to re-o*e my will, so, *nowing for a fact that early in the morning, the maid will

come to my room and burn the garbage, so " crumpled my original will and throw it in my garbage, thin*ing

that the maid will come in the morning and burn the garbage. %efore it was burned, a son of mine who is a3epro+ saw the will. 2hen he saw the will na tagaan xa ug car, iyang gitaguan ang will. So paghuman na ana

iya na gipa probate ang will. Maron, is the will re-o*ed1

◦ $o.

◦ (an my son inherit the car1

▪ $o. :gano man1 E-en his legitime he cannot inherit. "t is an act of unworthiness. 2hat if " changed the facts of the case, " would say, " tore into < pieces aong will, and threw it in the garbage

*nowing that the made will come and burn it in the morning, would your answer be the same1

◦ $o. "s there an act of re-ocation here1 /es. $ow there is.

◦ 2hy1 %ecause there are 8 acts here, tearing and burning, although burning is not an o-ert act because itdoes not undergo the sub3ecti-e phase. %ut when " tore it into <, definitely there is an act of tearing

coupled with intention to re-o*e.

◦ So what is really important here is you cannot do acts which is not within the recognied form of

re-o*ing by the o-ert acts.

Nuestions:

=udgment rendered by a competent court of 3urisdiction renders 3udgment a -oidable 3udgment. "n matters

of probate proceedings, which part is considered to be a competent 3urisdiction o-er the said proceedings1 Do you *now the difference between -enue and 3urisdiction1 =urisdiction is the authority of the court to try

and decide case. So in matters of probate proceedings, which court1

(an you e+pound on the principle which states that an in-alid re-o*ing will does not re-o*e but an

ineffecti-e re-o*ing re-o*es1

Distinction between the -oid will, -alid1 2hen is a will rendered ineffecti-e1

So in matters of probate proceedings, which court1 How about outside metro )anila1

(an a concei-ed child be -alidly instituted in a will1

So at the time of the e+ecution of the will, the testator pro-ides that " will institute the third child of myeldest son. Should this be -alid when at the time of the e+ecution of the will, the eldest child had not been

married and no child1 Should this institution of the unborn child be regarded as -alid1

2hat if at the time of the death of the testator, the child had already been concei-ed1 "s the institution of thechild -alid1

)ay an unborn child be -alidly instituted in a will1 (oncei-ed child concei-e at the time of the death of the testator. So it may be possible that a concei-ed child

instituted at the time of the e+ecution of the will... %ut what is the rec*oning point in time to determine the-alidity of the institution of the concei-ed child1

(oncei-ed child should be concei-ed at the time of the death of the testator but sub3ect to the conditions as

pro-ided under Art. <6 and <7 of the $ew (i-il (ode:

rt. L/. Dirth 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.

rt. L&. 7or civil purposes, the fetus is considered born if it is alive at the time it is completely delivered

from the mother>s womb. Fowever, if the fetus had an intrauterine life of less than seven months, it isnot deemed born if it dies within the twentyfours after a complete delivery from the material womb.

State the rule on the freedom of disposition of the estate of the person effecti-e mortis causa1

State the rule on e9ual di-ision and its succession1

2hat are the e+ceptions to the general rule that heir of not designated properly will recei-e e9ual shares1

o T3 The e+ception is if one of the e+ecuted designated heir is a compulsory heir, there is no e9ual

di-ision yet. 2hy1 %ecause the compulsory heir recei-es as && to his proportion, so he would ha-eto recei-e greater than that of the designated heirs

"f in the will, you define what is preterition1 Does it apply to all *inds of compulsory heirs1

"f a grandparent is omitted in the will, would there be preterition1 "f a parent is omitted in the will, would

there be preparation1 How about brothers and sisters1 How about sur-i-ing spouse1




"f there is a total omission or preterition, what is the effect as to the institution to the heirs and legacy de-icegi-en on the will1 (ompulsory heir to the direct line1

o 2ould the answer be the same if the omitted heir predeceases the testator1

2hat is the effect if the omitted heir predeceases the testator with regard to the institution of the heir1o There is an omitted heir, the effect is the institution will be automatically -oid or annulled. 2ould

the effect be the same if the omitted heir predeceases the testator with regard to the institution ofthe heir1 "s it still annulled1

ules on re-ocation of wills

Article 829. revocation done outside the 2hilippines, by a person who does not have his domicile in this country, is valid when it is

done according to the law of the place where the will was made, or according to the law of the place in which the testator had hisdomicile at the time' and if the revocation taes place in this country, when it is in accordance with the provisions of this Aode. (n)

"f a re-ocation is done outside the Philippines, by a person who does not ha-e a domicile in this country,

what law go-erns1

◦ Law of the place where the will was e+ecuted or law of the place in which the testator had his domicile atthe time at the of the re-ocation and at the time of the ma*ing of the will.

◦ This is separate from determining the e+trinsic -alidity of the will.

Always remember that the act of re-ocation means the act of rendering a -alid will is re-o*ed. So in order tore-o*e a will which is considered as a -alid will you ha-e to follow the three ways of re-o*ing a will.

◦ Howe-er, the rules for re-ocation of will must follow in accordance where the act of re-ocation was

made and whether the testator who re-o*ed the will is domiciled in the Philippines or not.

$ow under the rules for re-ocation of wills, if not domiciled in the Philippines then the re-ocation should be

done outside the Philippines.

◦ /ou ha-e to follow the law of the place where the will was made or follow the place where the domicile

of the testator was at the time of the e+ecution of the will.

▪ So in other words it is the ex oci Aelebraciones of the e+ecution of the will.

"f the re-ocation of the will made outside the Philippines and the one re-o*ed or the testator is domiciled at

the Philippines at the time of re-ocation which law will go-ern in the act of re-ocation1

◦ "t is -ery clear. 'ollow the law of the place where the testator was domiciled at the time of the

re-ocation, follow the place of re-ocation or follow the Philippine law because he is domiciled in thePhilippines at the time of the re-ocation but the re-ocation was made outside of the Philippines.

"f the re-ocation was made in the Philippines naturally you ha-e to follow Philippine law whether the onewho re-o*es is domiciled in the Philippines or not.

"n a case were a re-ocation was made outside the Philippines and the one who re-o*es is a domiciled in thePhilippines. "f done outside the Philippines by a person not domiciled in the Philippines, "ll gi-e you an

e+ample.

◦ & is an "talian national who e+ecuted a will in the Philippine. At the time of the e+ecution, he was

domiciled in (hina. Act of re-ocation was done in London.

▪ 2hich law go-erns the act of re-ocation1

At the place of the e+ecution of the will Philippines or

the place where he was domiciled (hina.

◦ !utside of the Philippines meaning re-ocation was done in London but it was e+ecuted in thePhilippines. He is an "talian national but he was domiciled in (hina at the time of the e+ecution of the

will.

◦ Another scenario: & is a 'ilipino national and domiciled in the Philippines. He e+ecuted a will in "taly. "n"taly, oral re-ocation is not recognied. Act of re-ocation in London which recognies oral re-ocation.

Philippine law does not recognie oral re-ocation.

▪ 2hich law shall go-ern the act of re-ocation1 Since the place of e+ecution is in "taly, the answershould be either in the place where the will was e+ecuted in "taly or the Philippine law where he was

domiciled.

▪ "s there a -alid re-ocation of the will in London1 Since Philippine law and "talian law does not

recognie oral re-ocation, there was no -alid re-ocation and the will stands.




"f you ha-e to ta*e note of the boo* of Paras, it seems that there is a conflicting -iew with Pineda. 2hy1

◦ %ecause according to Paras, it is the law where the act of re-ocation was made that should go-ern

following Le+ Loce (elebraciones. Howe-er, in Pinedas opinion, it is the place where the will wase+ecuted that go-erns the act of re-ocation.

◦ "f you are going to adopt the opinion of Pineda it seems that there is no -alid re-ocation because it is theplace where the will was e+ecuted at the time of re-ocation and since it is e+ecuted in "taly and it does

not recognied oral re-ocation then there is no -alid recognition.

◦

%ut then if you are going the adopt the opinion of Paras the place of re-ocation then it seems that thereis a -alid re-ocation in this case because the act of re-ocation was made in London which recognies oralre-ocation.

◦ 2hich is which1 "n my opinion, " submit to the opinion of Pineda where it should be the law of the placewhere the will was e+ecuted and not the law of the place where the act of re-ocation too* place.

▪ So if the act of re-ocation was done in the Philippines, there is no doubt the Philippine law should beupheld whether or not the one who re-o*es is a domiciled in the Philippines or not.

Ta*e note that act of re-ocation is different with the e+trinsic -alidity and intrinsic -alidity of the will as well

as to the ambiguity e+trinsic -alidity and ambiguity intrinsic -alidity of the will. Suffice to ma*e a differenceon this is to memorie the rulesact of re-ocation and determining the e+trinsic -alidity of the will.

Article 831. Subsequent wills which do not revoe 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)

Article 832. revocation made in a subsequent will shall tae effect, even if the new will should become inoperative by reason of theincapacity of the heirs, devisees or legatees designated therein, or by their renunciation. ($L/a)

"mplied re-ocation of wills

◦ That is when there is no e+press statement of re-ocation and the pro-isions on the subse9uent will are

incompatible with the first will.

So there is an implied re-ocation of a disposition which contain:

"n the first will, " hereby gi-e my piano to &. "n the second will he e+ecuted, " hereby gi-e my piano to /.

◦ There is an implied re-ocation of the disposition in fa-or of & to / because it is incompatible withthe disposition in the first will. %ut there is no e+press statement that whole will was rendered

re-o*ed.

◦ "t may be possible that in the original will " gi-e my piano to & but in the second will " gi-e my piano

to /. "mplied re-ocation it is.▪ %ut supposing that / refuses or renounced his share to the piano since he is a -oluntary heir.

2ould that affect the whole will1

$o. "t is only the disposition in itself which the heir renounced is considered ineffecti-e sothe other dispositions contained in the subse9uent will remains -alid.

2hich means to say that an ineffecti-e will re-o*es an original will. 2hy1 %ecause it is ineffecti-e only as

to the parts of the dispositions contained in the second will, the second remains as -alid. Thereby,because of its -alidity, it hereby re-o*es the original.

The second will now is called ineffecti-e. That is why the rules say that ineffecti-e will re-o*es the first

will 3ust because the legatee here refuses does not in any way affect the -alidity of the second will. "f he

renounced the first will, the second will still remains.

An in-alid will does not re-o*e the first will because in the first place, the second will is -oid. So that is

the rule which says that an ineffecti-e will re-o*es but an in-alid will does not re-o*e.

Do,#rie o) Depe%e# Re('#i>e Re>o,'#io-

◦ which ma*es the re-ocation of the will dependent upon the efficacy of the second will which means

that if the second re-o*ing will is considered as -oid, it does not re-o*e the original will. The effectis the original will subsist. And if there is an ineffecti-e will, the will may be -alid though ineffecti-e

because of the incapacity of the heir to inherit or by reason of heir renouncing his inheritance.




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

"f a testator re-o*ed his will gi-ing his estate to A upon hearing that somebody told him that A is already

dead but it turns out that A is still ali-e. There was a false cause so he re-o*ed his will and changed it to %but he doesnt *now the real story that A is still ali-e.

◦ $ow at the time of his death which of the heirs is entitled to the inheritance or legacy1

▪ "t will be A. Therefore re-ocation is considered null and -oid thus A remains the heir of the testator.

Article 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should

be revoed. ($L&)

Sometimes the testator will also state the recognition of a child as his illegitimate child, if the will is re-o*ed,

this statement with regard to his ac*nowledgement with the illegitimate child is still -alid, e-en if the will isdeemed re-o*ed.

e-ocation is different from republication. The latter presumes that there is -oid or re-o*ed will.

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)

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)

Article 837. If after maing a will, the testator maes a second will expressly revoing the first, the revocation of the second will

does not revive the first will, which can be revived only by another will or codicil. ($*#a)

There are two ways on how to republish a re-o*ed will

◦ by copying all the statements in the original will -erbatim and comply with the defects as to form

▪ "f there is defect as with regard to the formal re9uisites as for e+ample the original will lac*s three

witnesses re9uired so only two were present, there is an e+trinsic defect.

"n order to cure the defect, you ha-e to copy -erbatim all the dispositions in the original will

-erbatim and comply with the three witnesses rule.

◦ Another type of republication is by reference, it would only be true if by reference.

▪ 'or e+ample, is the original will is e+trinsically -alid meaning it conformed to all the solemnitiesre9uired of a notarial and holographic will but because of the presence of -ices consent for e+amplefraud, tric*ery, improper pressure, improper influence the -alidity of the will open to 9uestion.

"n order to correct this you need ha-e to copy all the contents in the original will but you only

ha-e to e+ecute another will ma*ing reference to the original will.

This Art. ?4I with regard to reference of the original will in the act of republishing the same is what youcalled implied republication.

◦ "t can only be made if the original will is considered -alid as to its form but because of the e+istence of-ices of consent li*e intimidation , improper pressure and improper influence, the will will be rendered

-oid.

So differentiate it with what is the effect of republication1◦ "f a will is republished the law states that the date of republishing a will is deemed the date that the will

was e+ecuted so if the original will was e+ecuted on 'ebruary 86, 8677 and it was republished in'ebruary 86, 8678, the date of the will is now 'ebruary 86, 8678.

◦ e-i-al of a -oid re-o*ed will can be made only by operation of law, this is not an act of a testator. Therule is that if the testator ma*es a second will e+pressly re-o*ing the first will and the second will is

re-o*ed by a third will, the re-ocation of the second will by the third will does not re-i-e the originalwill.




'irst will. E+ecuting a first will, -alid and then re-o*ed. E+ecute a second will which e+pressly re-o*ed firstwill and later re-o*ed the second will.

◦ Nuestion: is the re-ocation of the second will by the third wheel re-i-es the first will1

▪ $o because the law says if the first will is re-o*ed by a second will e+pressly which means to say

that if it is re-o*ed impliedly then the re-ocation of the second will re-i-es the first will.

◦ Points to ponder:

▪ "s it necessary the third will must be in e+press re-ocation of the second will in order to re-o*e the

first will or is it only necessary that it would only impliedly re-o*e the second will to re-i-e the firstwill.

▪ 2hat if the fourth will re-o*es the third will impliedly does it re-i-e the first will or the second will1

So the law does not deal with this.

Rep"$(i,'#io >s Re>i>'(

◦ epublication is the act of the testator thus to republish you ha-e to e+ecute another will or re@e+ecutethe will ma*ing reference to the original will

◦ but re-i-al is by operation of law automatically the original will is re-i-ed of the third will re-o*es thesecond will e+pressly and the second will re-o*es the first will in the same manner there is no re-i-al

but if the second will re-o*es the first will impliedly then the re-ocation of the second will re-i-es thefirst will.

◦ Second, the republication corrects the e+trinsic and intrinsic -alidity of the will because if the will is

intrinsically in-alid then you ha-e to re@e+ecute the same will and comply with the formalities◦ 2hile re-i-al restores only a re-o*ed will.

Article 838. :o will shall pass either real or personal property unless it is proved and allowed in accordance with the @ules of Aourt.

The testator himself may, during his lifetime, petition the court having 9urisdiction for the allowance of his will. In such case, the

pertinent provisions of the @ules of Aourt for the allowance of wills after the testator1s a death shall govern.

The Supreme Aourt shall formulate such additional @ules of Aourt as may be necessary for the allowance of wills on petition of the

testator.

Sub9ect 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)

pon the death of the testator or the person he left the will the heirs cannot immediately ta*e o-er his

estate, it has to undergo probate proceedings. This probate proceedings is a special proceeding, it is a

proceeding in rem.

How do you define probate1

◦ "n laymans term, allowance and disallowance of a will whether the court will allow or shall not allowthe terms.

◦ "t is defined as the act of pro-ing before a competent court the due e+ecution of a will, the testamentarycapacity of the testator and the appro-al or admission of the court by the will.

(an a testator pro-ide in its will that a will may not be submitted to probate to be effecti-e1

◦ $o because of the pro-ision in Art. ?4?.

▪ So in the case of )endoa -s Pilapil, there was a pro-ision in the will of )endoa which states that

the will should not be presented for probate.

The court ruled that such disposition or pro-isions in the will is -oid in -iolation of Art. ?4?. Therefore, by this pro-ision, the probate of the will is mandatory whether the will is e+ecuted outside or

within the Philippines, whether holographic or notarial, it is immaterial.

"n the case of Lasam -s !megan, it enunciated the principle that if the will had been probated, the will has no

effect whatsoe-er and thus it cannot be the basis of any claim or right of possession by the heirs.

"n a probate proceedings, once admitted due e+ecution of the will is conclusi-ely presumed. The allowance ofthe will either during the lifetime or after the testators death shall always be conclusi-e as to the due

e+ecution of the will






=urisdiction -s enue

◦ enue relates to the place where you will file your case but 3urisdiction as a matter of substanti-e law is

the matter of 3urisdiction that lies with the court.

◦ %efore %P 785, you ha-e to obser-e all probate proceedings are an action incapable of pecuniary

estimation. Thus it was only e+clusi-e with the T( but because of the %P 785 which increases the -alueor the 3urisdictional amount of the courts it is now the T( or the )T( depending on the -alue of the

gross estate of the person.

"s there prescripti-e period in instituting probate proceedings1◦ $one. At any time, any interested person may file for a probate proceedings. This has been enunciated in

the case of #ue-arra -s #ue-arra et al. "n the same manner, the rule of estoppels is not applicable inprobate proceedings because it is demmed in-ested with public interest.

rt. G*#. The will shall be disallowed in any of the following cases%

(&) If the formalities required by law have not been complied with'

() If the testator was insane, or otherwise mentally incapable of maing a will, at the time of its execution'

(*) If it was executed through force or under duress, or the influence of fear, or threats'

(L) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other

person'

(") If the signature of the testator was procured by fraud'

(!) If the testator acted by mistae or did not intend that the instrument he signed should be his will at the time of affixinghis signature thereto. (n)

2hat are the grounds for denying probate by the court1

There are other grounds. $ot an e+clusi-e list.

An T( or an )T( 3urisdiction o-er probate proceedings is merely there to hear and decide probate of a will.Thus they are only there sitting as a probate court. T( of general 3urisdiction can sit as probate court unless

the petition had been file before the T(. As well as the )T(.

Probate proceedings doesnt only mean testamentary successions can also mean intestate settlement ofestate. "f the will is deemed denied then succession becomes intestate.

Is#i#"#io o) Heirs Points to remember for the -alid institution of a will:

◦ "nstitution of an heir refers only to -oluntary heir

◦ "t can only e+ist in testamentary succession

◦ The rules are applicable to legacies or de-ices

◦ "n instituting an heir, this heir must be certain or ascertainable. 2hen an heir is instituted it must notpre3udice the legitimes of compulsory heirs.

◦ 2hen instituting an heir, may a concei-ed child be instituted -alidly on a will1

▪ "n 7557, & e+ecuted a will instituting the first child of his eldest son. At the time of the e+ecution of

the will, the eldest child was single. 2hen he died in 755;, the son was already married and the wifeconcei-ing the first child.

(an the child demand a share on the estate of the testator1

◦ The institution is -alid but sub3ect to the conditions set forth by Art. ?<7.

▪ The mere fact that the child was concei-ed at the date of the testator does not guaranty

him the inheritance unless he was born, completely deli-ered from the maternal wombof the mother e+cept if the child has an intra@uterine life of less than se-en month he is

not deemed born for ci-il purposes if he dies within 8< hours.

◦ "f the case problem was that if the child has intra@uterine life of ; months. "t died within 4I

hours. "s the institution of the child -alid1

▪ /es because he li-ed more than 8< hours.

◦ 2ould your answer be the same if in 7557 when & e+ecuted the will e+ecuting the first child




of the eldest son and at the time of the e+ecution of the will the li-e@in partner of the eldest

son has already been concei-ing the first child and at the moment of his death the child wasborn. "s the institution of child -alid1

▪ Since it does not specify whether legitimate or illegitimate so the institution is -alidbecause at the moment of his death the child was born.

◦ " institute the first child of my eldest son, At the time of the death the wife of both of my

eldest son had been concei-ing their first child. )y first son, one legitimate the other

illegitimate, had the same date na@born.

▪ 2hich of the particular child will inherit the estate1

"f you cant identify which of this child then none. So the intstitution of heir must be

ascertainable because if not he cant accept the inheritance.

◦ 2hat then is the proper manner of designating an heir1

▪ The proper manner of instituting an heir is that.. J" hereby institute=onathan (apanas to ha-e U of my estateK

▪ Supposing there are two persons with the same names, it shall state

additional description or circumstances.

▪ "f the name is omitted but identifiable, the institution is still considered

-alid.

▪ J" institute my sister@in law who is a practicing lawyerK

▪ E-en if you ha-e two sisters@in@law still can be identified because of the

description that she is a practicing lawyer.

▪ J" institute my classmates in the college of law of S= who graduated cum

laude in 7556K is it -alid1 "t is identifiable1 "dentifiable if theres only oneclassmate who graduated cum laude but wont apply if theres are two or

three classmates in this case nobody will inherit.

▪ "f theres a mista*e in the spelling name or in the circumstances of the heir,

is the institution -alid1

▪ "t depends. "t shall not in-alidate the institution of the identity of the heir

can be ascertained.

▪ Ambiguity or non@identification of the heir by reason of similarity of

names, surnames or circumstances cannot be identified then the

institution is -oid.

▪

E+: " institute my two mestio loo*ing cousins Henry Sy, Henry Sy. %utwho point of -iew of mestio1

▪ Since you cant identify, the institution of such is -oid and nobody caninherit.

Article 840. 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)

Article 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the

entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed.

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)

Article 842. ne 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.ne who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this !ode with regard to thelegitime of said heirs. (76"a)

"nstitution of an heir is different from substitution of an heir.

◦ "nstitution of an heir set forth under article ?<6 to ?;I and we ha-e discussed this that a concei-ed child

may be the sub3ect of a -alid institution but the conception of a child must always be rec*oned from themoment of death of the testator, it is immaterial whether it was concei-ed aor not at the time of the




e+ecution of the will as long as the child has been concei-ed at the time of the moment of death of the

testator but sub3ect to the pro-isions of Article <7 of the (i-il (odeF

▪ s we have said that for civil purposes, a fetus acquires civil personality when he is completely

delivered from the maternal womb but a fetus which has an intrauterine life of less than seven monthscan only be considered as having a civil personality if he does not die within L hours from the

complete delivery. (rt. L&)

Article 843. The testator shall designate the heir by his name and surname, and when there are two persons having the samenames, he shall indicate some circumstance by which the instituted heir may be nown.

3ven 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. ($$)

Article 844. n error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in anyother manner, to now 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 useof other proof, the person instituted cannot be identified, none of them shall be an heir. ($$*a)

Article 845. 3very disposition in favor of an unnown person shall be void, unless by some event or circumstance his identity

becomes certain. Fowever, a disposition in favor of a definite class or group of persons shall be valid. ($"/a)

How do you properly institute an heir in the will1◦ The proper institution of an heir usually in-ol-es the indication of the name, family name.

▪ +ay a name or family name suffice5

Sometimes there is no name, but there is a descripti-e circumstance as with regards to theperson. So it boils down to the rule which says in the institution of an heir, as long as the heir

can be recognised or can be identified therewith, then the institution is -alid.

▪ Aan a person or unnown person be validly instituted in the will5

Answered in article ?<;, e-ery disposition in fa-or of an un*nown person is always -oid but if

there are some e-ents or circumstances that he can be identified then the institution is -alid.

E+ample: " say in my will R" institute the first child of my eldest son.R un*nown, the child was notyet born when " instituted the child @ un*nown person. %ut at the moment of death he was

concei-ed and he was born after the death of the testator and he can be identified, meaning thathe is the eldest child of the eldest son, then the institution is -alid.

Article 846. Feirs instituted without designation of shares shall inherit in equal parts. ($!")

Article 847. 0hen the testator institutes some heirs individually and others collectively as when he says, I designate as my heirs

and D, and the children of A, those collectively designated shall be considered as individually instituted, unless it clearly appears

that the intention of the testator was otherwise. ($!#a)

Article 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, theinheritance shall be distributed e#ually unless a different intention appears. (77$a)

Article 849. %hen the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively. (77&)

How about heirs, without designation of shares1 How are they going to inherent1

◦ Article ?<I, this is the rule on e9ual di-ision. "f the institution of an heir has no specific share, this meansthey will e9ually recei-e or entitle to the inheritance.

Institution and substitution is only applicable to a voluntary heir applicable to the free portion. It is neverapplicable to the legitime. 0hy5

◦ %ecause the legitime is always reser-ed by law for the compulsory heir.

◦ "f a compulsory heirs is gi-en something in a free portion. 2hich means to say that the testator wants

this compulsory heir to get more than the other compulsory heirs, he will get his legitime but heMs also




gi-en a piano,if he is gi-en more than his legitime then he becomes a compulsory heir and a -oluntary

heir as to the piano.

◦ The r"(e s's i) #he heirs is#i#"#e% *i#ho"# %esi.'#io o) sh'res sh'(( iheri# e&"'( p'r#s , it

admits of exceptionsF

7. 2hen those who are substituted are instituted to the will is one of the compulsory heirs, then there is noe9uality in the di-ision.

0hy is it so5 %ecause he will get his legitime plus his share in the free portion. E+ample: !ne instituted was a compulsory heir A and the other two friends % and (. "f the estate is

466,666. How much will each one get1 There is only one compulsory heir, you ha-e to di-ide the estatein order to get the legitime of the compulsory heir, because this is testamentary. So in order to get the

legitime of the compulsory heir being the son of the testator, then 466,666 di-ided by 8 e9uals 7;6,666.This goes to the legitime of A. $ow because there others also instituted, we ha-e the free portion of

7;6,666. $ow because this free portion is sub3ect to institution di-ided by three A, % and (, they will get;6,666 each.

This is an e+ception because by then, A who is a compulsory heir will get the legitime of 7;6,666 plus his

share in the free portion of ;6,666, then you will get a total of 866,666. 2hile % and ( will only get;6,666 because he is not a compulsory heir. E-en if the testator did not specifically indicate the share of

the institution of A, % and (, it is still an e+ception to the general rule on e9ual di-ision because A isentitled to it.

8. 2hen there is a specific share gi-en by the testator to each of the instituted heir. E+ample: "f the testator gi-e 776 to A, while the rest of the 576 will ha-e to be di-ided between % and

(. So there is no e9ual di-ision.

4. 2hen the testator pro-ides for cash money pro indi-iso between A, % and (. %ut it does not specify howmuch each will get.

This is an e+ception because if the testator pro-ides that they ha-e to be instituted in the free portion of

his estate but % was gi-en a piano worth ;6,666and ( was gi-en a car worth ;6,666. How much will eachget1 They will not get in e9ual shares. %ecause the ;6,666 will ha-e to be deducted from the share of %

and (. So they will no longer get a cash money because this has been deducted in the form of a car. 2hileA who was not gi-en anything will get 866,666.

U%er Ar#i,(e 1</ #he r"(e s's i) #he #es#'#or is#i#"#e% so!e heirs i%i>i%"'(( '% so!e

,o((e,#i>e( i# !e's #h'# #he 're ,o((e,#i>e( %esi.'#e%, unless it appears that the testator shouldnot have instituted them in the same equal share.

So if " say, " institute A, % and the three children of ( to my estate of ;66,666, how much will each get1They are collecti-ely and indi-idually instituted when they are collecti-ely designated.

"f the testator institutes his brothers and sisters to his estate, some sisters and brothers are full and

other are half@blood. How much will each get1

◦ This is testamentary succession, not intestate. Saying in my will that " institute my brothers and

sisters but it turned out that some of my brothers and sister are half@blood, how much will each get1

/ou will not apply the pro-ision under intestate succession, it means they are e9ually instituted tomy estate, because in intestate succession, if the inheritance co-ers, inheritance of collateral

relati-es and the brothers and sisters which are half and full blood, the share of the full bloodbrothers and sisters are double that of the half@blood, but this is testate. "f they are collecti-ely

designated in my will, you will not apply the ratio of 8:7, you will apply that pro-ision Article ?<?which is e9ual distribution.

No* i) #he #es#'#or ,'((s #o s",,essio ' perso '% his ,hi(%re/ i# !e's #h'# #he 're

si!"(#'eo"s( is#i#"#e% '% o# s",,essi>e(-

◦ So if " say " hereby institute A, % and the children of (,or " hereby institute A,% and (, and thechildren of (, it means that they are simultaneously instituted and indi-idually instituted. So A,%, (

and the three children of (, so it will ha-e to be di-ided into si+.

◦ %ut if they are designated collecti-ely li*e A, %, and then institutes A,% and ( as substitutes, the




institution here is only as with regards to A, %. %ut ( as substitute and it will not be simultaneously

instituted. %ut if you will say A, % and ( are instituted then that means to say that they aresimultaneously instituted.

Article 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears fromthe will that the testator would not have made such institution if he had nown the falsity of such cause. ($!$a)

#: Sometimes thereMs a statement of false cause. nder Article ?;6, it says there a statement of a false causeor legal cause the institution of heirs shall be considered as not written.&P$: nless it appears from the will that the testator would not ha-e made such institution if he had *nown

the falsity of such cause.

So in my example, I hereby institute my favorite student for having topped the bar exam of //", but in

actuality he was not able to top the bar exam in //". Aan my student demand for his share in my estate5

◦ So thereMs a false cause for the institution.

2hat is the purpose of instituting my fa-orite student, is it because of generosity1 or is it because he topped

the bar e+am1 when in truth he did not pass the bar e+am. He does not *now about that, can this student of

mine demand for his share of the institution1

◦ YES- %ecause the topping of the bar e+am is not the main cause although it is a wrong cause but it is the

main cause for instituting the student of mine he being a fa-orite student of mine.

Dut compare it to this, I love A2 topnotcher, I should have instituted but because I love a A2 topnotcher Ihereby institute D, because he topped the A2 exam of //". If he did not actually topped the A2 exam of //",

would the institution be valid5

◦ ThereMs a false cause here. 2hat is the false cause1 he did not top. %ut the main reason of instituting thatperson is because " lo-e (PA topnotcher. So which means to say that if he did not actually top the (PA

e+am, then the institution is !"D.

Fow about if it is illegal5 If the real motive is illegal, for example, I hereby institute C, because I want him to ill

my political rival E. 0hat is the purpose of instituting C5

◦ %ecause " want him to *ill my political ri-al /. Thus, if he was able to *ill my political ri-al /, is the

institution -alid1 "f he did not *ill my political ri-al /, is the institution -alid1 So either way, !"D.%ecause the main consideration is illegal.

Dut if I say I hereby institute my sister who helped me get through my law studies because she helped me cheatin the beauty contest (5N5) If she did not cheat in the beauty contest, would my sisters institution be valid5

◦ /ES, because there is generosity and *indness for what her sister has done to her e-en if the cause of her

institution is cheating which is against morals. "n other words, it boils down to whether the purpose orthe aim of consideration of instituting an heir is because of generosity or *indness e-en if itMs based on a

false cause it means that the institution is -alid, unless it is illegal.

rticle G"&. If one heir instituted is given an aliquot part of the inheritance, legal succession taes 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)

This article actually contemplates of a situation where the testator ha-e no intention of gi-ing the entire

estate. :ow my question is this, would this provision of rticle G"& applicable to a situation of testamentary succession

where the testator has no compulsory heir or has compulsory heirs5

◦ " would say it co-ers both.

◦ 'or e+ample, you are spinster, you ha-e no descendants, you ha-e no line, descending and ascending

heirs, you only ha-e collateral relati-es. /our colateral relati-es they are not considered as intestateheirs, but if you gi-e, for e+ample our estate is 766,666 and you gi-e half of your estate to &, that is the

first paragraph of article?;7, thereMs a remaining half portion. And if youMre spinster you can do so




because of the freedom of institution, you ha-e no compulsory heirs. 2hat happens to this1 According to

Article ?;7, a part will proceed intestate, why1 because this presupposes that there is no intention onthe part of the testator to gi-e e-erything to the only one heir.

◦ Supposing, the second paragraph says, more than one heir, so se-eral heirs were gi-en an ali9uot portionof his estate, so not only A but gi-en to %, (, D. There is a remaining half portion here, this is the second

paragraph of article ?;7, this remaining portion of his estate will descend by intestate succession which

means that this part will ha-e to go to the brothers and sisters, nephews and nieces of the testator who

is a spinster.

The first paragraph of this article refers to one heir and instituted to the estate, but itMs not the whole estatethat was instituted. So thereMs a remaining balance of the estate.

The second paragraph of the same article, refers to se-eral heirs, and the se-eral heirs share or institution

does not co-er the whole inheritance, there is no intention to gi-e the whole inheritance.

Onder rticle G", exception to this rule, because this presupposes that the testator will give everything the

entire estate to the instituted heirs, so what does this say5 s to the question whether it is applicable to a casewhere there is a compulsory heirs or noncompulsory heirs5

◦ " would say yes, because it may be possible that there is a compulsory heir the legitime here isconsidered legitime. %ut if thereMs only one heir and he is gi-en only one half portion, the one half@

portion refers only to the free portion, this legitime is set aside to the compulsory heirs. "f he hascompulsory heirs of three children for e+ample, their share will ha-e to be co-ered under this, because

they ha-e half of the estate of the testator but since A is instituted to one half of the free portion there isa balance remaining in that free portion. 2hich means to say that this pro-ision will also be applicable

in a case where there is compulsory heir or there is no compulsory heir. "f there are no compulsoryheirs, the whole entire estate. %ut if there are compulsory heirs, only the free portion because the

legitime must always be set aside for the compulsory heirs.

Article 852. 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 partstogether do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n)

nder Article ?;8, simply put, it says there if there are no compulsory heir for e+ample, 7< goes to

A, 7< goes to %, 7< goes to (. There is ' i#e#io o #he p'r# o) #he #es#'#or #o .i>e #he e#ire

es#'#e #o #he is#i#"#e% heirs-

0hat will happen now to the balance of the estate of &6L which has to be given5

◦ "f there is an intention in the part of the testator to gi-e the entire estate it will not descend by

intestate it will go bac* to A,% and (. 2hich means that the share will be gi-en in addition to A,%, (. Supposing this is an e+cess, under Article ?;4, it says there, if all that was gi-en e+ceeds the

entire estate, the law says, their share shall be ta*en proportionately from the shares of A, %, and( in order to co-er the e+cess.

rt. G"&. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legalsuccession taes 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)

"nstitution of Heirs to ali9uot partparts of the estate without co-ering the entire disposable portion.

This is the scenario, there is no intention of the testator to gi-e the entire portion of the free portion of the

estate. Thus if there is a remaining balance after gi-ing all of the shares of the instituted heirs, the remaining

balance will be distributed by intestate succession.

The fact that the testator has no intention of gi-ing the entire estate or the entire disposable portion to theinstituted heirs must be e+pressly stated in the will.

'irst paragraph of the same article says this refers to the institution of only one heir to a part of the

inheritance, remainder shall be disposed of in accordance with the rules on legal succession or intestacy.




2e ha-e illustrated that in the board, where the disposable portion is the entire estate as the remainingbalance after subtracting the share of the instituted heirs, and the remaining balance shall go to the intestate

heirs of the testator.

legitime

So if this is the estate, this part here may be a legitime and the sub3ect of the institution would be the

free portion. $ow in order to apply article ?;7, one heir is only gi-en of the free portion. The9uestion is, what will happen now to the remaining balance1 Article ?;7 says the intention to gi-e,

thus this remaining balance will be distributed by intestate succession.

Paragraph 8 of the same article says there, 8 or more gi-en to the instituted heirs, U each, what willhappen now to the remaining free portion1 Again, it will be by intestate succession.

rt. G". 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)

rt. G"*. 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)

Howe-er, articles ?;8 and ?;4 are the e+emptions. This contemplates a situation where the testator

intends to gi-e the entire estate or the free disposable portion. "t means that all the instituted heirs aregi-en by the testator, either to the entire estate or to the free portion of the estate.

The situation of article ?;8 is this, each heirs is gi-en an ali9uot portion of the inheritance, and the

ali9uot portion ta*en together do not co-er the whole of the inheritance, whether the free portion or theentire estate. 2hat will happen now1 "f there is a remaining balance, and there is an intention of the

testator to gi-e e-erything, or the entire free portion, the entire estate to the instituted heirs, then eachali9uot part must be increased proportionate to their share in the institution. This is the principle. %ut

in the e+am, " will let you do the application of the principleB

So the principle is, if there are more than 7 heir, and you are instituted to the ali9uot portion of theestate, and the totality of the share of the instituted heir does not co-er the whole inheritance, whether

the testator intends the whole inheritance to the instituted heirs, the rule is that each of their share in

the ali9uot portion shall be increased, in proportionate to their share in the inheritance. So " ha-e an illustration here, try to practice this.

◦ The testator instituted A, %, (, and D, sole heirs to the estate of 7), gi-ing each of them 7; share. Toget the share of each heir, you ha-e to multiply 7) to 7; 7) 7;B, so 866,666 each heir

multiplied by < of them 866,666 + <B, so it would only total to ?66,666. %ut the estate is 7), thusthere is a balance of 866,666. The 9uestion is, this balance of 866,666 after subtracting the total

inheritance of the instituted heirs to the -alue of ?66,666 and the total estate is 7), there is aremaining 866,666. 2hat would happen to the remaining 866,666, would this be distributed


½

'ree portion to be distributed

¼

¼ ¼

A

B C

balance



through intestate succession or would it go the instituted heirs1

◦ 'irst you ha-e to determine if the testator had the intention to gi-e the total free portion or the totalestate. "f not, if there is no intention to gi-e, then the remaining balance must be distributed by

intestate succession. %ut if there is an intention to gi-e e-erything, the entire estate, or the entirefree portion, then all the ali9uot shares of the instituted heirs must be increased proportionately.

◦ $ow ta*e note and you ha-e to obser-e, under article ?;4, it is the other way around. )eaning if

that is 7), there is intention to gi-e e-erything, but the totality of the shares e+ceed the total

inheritance which is 7), the rule is that their share should be decreased proportionately, inproportion to their share in the estate. So what do you mean by this1 /ou ha-e no problem if the

institution is e9ual, but you ha-e a problem on how to decrease the share in proportion to theirrespecti-e shares.

'or e+ample, the share of A, %, ( and D are not the same, one is instituted to 74, the other is to 7;, the

other is instituted to U. $ow the rule is that, the cardinal principle is this: "f the heir is instituted ine9ual proportions, they will inherit the remaining portion in proportion to their proportionate share in

the institution.

So if you say that A is instituted to 74, b is instituted to 7;, which is bigger1 74. So in matters of

reducing the 74 portion, it would be bigger reduction than that of 7;. %ut if it would be the other way

around, if it would be in addition to, because there is a remaining balance which is not co-ered by theinstitution of the heirs, what will happen1 The 74 portion will also be increased bigger than that of the

7;.

2hat is really important here is the principle of the rule, the ali9uot portion and the instituted heirs ifthere is an intention to gi-e the entire estate or the entire free portion of the estate, so article ?;7, ?;8

and ?;4.

rt. G"L. 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 pre9udice to the right ofrepresentation. (G&La)

Preterition

"n the institution, what is really important for you to remember is the concept of preterition. "f you tal* aboutsubstitution, the most important concept for you to remember is fedeicommissary substitution, they usually

come out in the bar e+ams. And in matters regarding the legitime, the most important concept is reser-a

troncal.

How do you define preterition1 ery important elements are the following:

There is an omission

!mission must be total

Those who are omitted are 7 or more compulsory heirs

"n the direct line

$ow it says there, whether li-ing at the time of the e+ecution of the will, or born after the death of the

testator. So it may be possible that an heir, who is a compulsory heir in the direct line may be concei-ed

at the time of the e+ecution of the will, concei-ed at the time of the death of the testator, but born

thereafter. $ow if this compulsory heir in the direct line is born thereafter, and if he is not gi-en anythingin the will1 2ould there be preterition1

%ecause if you ha-e to define preterition, preterition is the omission of the compulsory heir in the direct

line, whether li-ing at the time of the e+ecution of the will or born after the death of the testator. So saato pa, nagbuhat siya ug will, wala pa na concei-e ang compulsory heir, ang wife wala pa na*a concei-e

sa child, at the moment of his death, the wife has already concei-ed but when he e+ecuted the will, he didnot lea-e anything to his child1 /es, because you ha-e to loo* into the definition on what preterition is.

"t may be concei-ed at the time of the e+ecution of the will or li-ing at the time of the e+ecution of the

will or born thereafter. An institution is deemed -alid if the child is concei-ed, not at the time of the

e+ecution of the will, which is immaterial, but at the moment of death of the testator.

So if the case problem would say, at the time of the e+ecution of the will, the testator is instituting the

third child of his wife, but died of miscarriage. At the moment of his death, the child is no longer ali-e.




$ow if the child is not gi-en anything in the will, would there be preterition1 The 9uestion would be,

does the child ac9uire ci-il personality1 At the time of the e+ecution of the will, nag concei-e ang iyahangwife, but this child who is in the womb of the mother was not gi-en anything, the entire estate is gi-en to

all, but not the child. "f the child dies, na*uhaan ang iyang wife, pag*amatay niya, patay na ang child,

would there be preterition if the child was not gi-en anything1

$o, because the child did not ac9uire ci-il personality, sub3ect to article <7. 2hat is effect1 2hy do we

ha-e to *now if there is preterition1 The effect is that if there is preterition of a compulsory heir in thedirect line, testamentary succession will be con-erted to intestate succession, total intestacy, e+cept of

course if there is a pro-ision on a legacy or de-ise, because it would not be total, but partial intestacy.

2hy1 %ecause the effect of preterition is that, it shall annul the institution of the heirs, but the legacies

and de-isees remain as long as it is not inofficious.

"n order to determine if there is preterition or not, you ha-e to differentiate it from -alid disinheritanceor in-alid disinheritance.

Preterition -s. Disinheritance

PRETERITION DISINHERITANCE

)ay be intentional or not.sually done by the testator himherself which means

that disinheritance is intentionalB

There need not be any grounds, in order to -alidate thepreterition of a compulsory heir in the direct line.

"n in-alid or ineffecti-e disinheritance, disinheritance in

this case is not based on trues and e+isting legalgrounds, as enumerated by law.

The omission is applicable only to the compulsoryheirs in the direct line.

"t is settled in 3urisprudence that the sur-i-ing spouseis compulsory heir but not in the direct line.

Disinheritance is applicable to all. That is why there is

what you call disinheritance of the illegitimate children,the descendants, ascendants, and the sur-i-ing spouse.

e9uisites of Preterition:

7. There is omission.8. !mission must be one, some or all of the compulsory heirs in the direct line.

4. This may be intentional or unintentional.<. The compulsory heir omitted must be in the direct line, whether ascending or descending.

$ow as to the 9uestion if the parent is not pro-ided for in the will of hisher child, would there be

preterition1 (ompulsory heir in the direct line, ascending line is a direct line, now would there be preterition1

/ou ha-e to 9ualify, because if the parent or ascendant is not considered as compulsory heir in thepresence of legitimate children, but it depends of the testator is a legitimate or illegitimate child.

"f the testator is an illegitimate child, and the parent is an illegitimate parent, and there is presence

of an illegitimate child, the illegitimate parent will not be allowed to inherit, therefore, in thepresence of illegitimate child, the illegitimate parents cannot inherit.

"f the testator is an L(, parent is LP, it defers if the testator is an "(.

T- legitimate child (LC)

(LC) A B illegitimate child (!C)

C (LC)

A is the legitimate child of T, % is an illegitimate child of T. L(, "(, so in this particular case, in the


Parents legitimate parents LPB



presence of A and %, L( and "(, LP will not inherit. 2hy1 %ecause there is a presence of a legitimate

child.

$ow supposing the legitimate child A has a child (, can the parent inherit in the presence oflegitimate descendants1 $ow supposing namatay si A, so ( can inherit by right of representation,

now, in the presence of descendant, can the LP inherit1 $o. "n the absence of legitimate children andlegitimate descendants, the parents cannot inherit.

$ow supposing A died and he has no descendants, only % remains, can the LP inherit1 "f T is a

legitimate child, therefore LP can inherit e-en in the presence of % who is an "(.

"# illegitimate child (LC)

(LC) A B illegitimate child (!C)

"f the T is an illegitimate child, and there is the presence of A L(B and %"(B, can the illegitimate

parent "PB inherit1 $o. (an the parent inherit in the absence of a legitimate child1 The answer is no,

which means to say that if you 9ualify, if the testator is a legitimate child, the parents are consideredas compulsory heirs only in the absence of legitimate children and descendants. So if the parent is

omitted in the will, then there is preterition, and the effect is, there is annulment of the institution of

heirs.

$ow supposing the testator is an illegitimate child, the parents sur-i-ed together with % "(B, can

the parent inherit1 $o, because the parent can only inherit in the absence of both, legitimatedescendants and illegitimate descendants.

So as to the 9uestion, if the parent is the sur-i-ing heir, can there be preterition if heshe is not gi-enanything in the will1 The answer would always be 9ualified. "t should be 9ualified if the parent is in

the direct line and heshe is the only sur-i-ing relati-e if the testator is an illegitimate child. "f the

testator is a legitimate child, if the sur-i-ed by illegitimate parent and illegitimate child, thenomitting the parent would cause preterition.

Summary:

Testator legitimate childBLegitimate parents can inherit in the absence of legitimate child and legitimatedescendants

Testator illegitimate childB"llegitimate parents can inherit in the absence of %!TH legitimate andillegitimate children and descendants

Ta*e note that on the second paragraph of article ?;<, it says there, that if the omitted compulsory

heir should die before the testator, the institution shall be effectual without pre3udice to the right ofrepresentation. This means that if an heir in the direct line is omitted, but he died before the

testator, he has descendants, there is preterition, but the effect is that there is no annulment of theinstitution of heirs. This could not be con-erted into intestate succession because the institution of

heirs remains effecti-e, and the legacies and de-isees remain -alid as long as it is not inofficious.

So it is important to remember that in attac*ing the problem, try to see for yourself if the omittedheir dies before the testator, is there an annulment of the institution of heirs1

◦ $o. it would be the other way around if the omitted heir dies after the testator dies. %ut if theomitted heir dies before the testator, though there was an omission, it would not affect, or it

would not annul the institution of heirs.


$a%ent& illegitimate 'a%ent& (!$)



(ASE "LLSTAT"!$:

T

'acts: T instituted his children, A, %, and ( to his estate of 466,666.

S,e'rio I3 T pre%e,e'ses A/ 9 @ C

egitime Institution Total

A ;6,666 ;6,666 766,666

% ;6,666 ;6,666 766,666

( ;6,666 ;6,666 766,666

"n scenario ", T predeceases all, meaning A, % and ( sur-i-ed T. 2hat will happen now1 $ormal, there is no

preteritionF all of them are instituted heirs. So first, you ha-e to get the legitime since this is a testamentarysuccession. /ou di-ide the estate of 466,666 to 8, 7;6,666, di-ided by the number of legitimate children,

di-ided by 4, so each will get ;6,666 as their share in the legitime. Since they are instituted to the freeportion, the free portion is 7;6,666, instituted e9ually, no designation of shares, so they are instituted in

e9ual di-ision, so each one will get ;6,666, so total is 766,666 each. "f its testamentary succession, you mustsee to it that the legitime must always be gi-en beforehand, and you determine the free portion which will be

the sub3ect of legacies, de-isees and institution of heirs.

S,e'rio II3 C is o!i##e%

3ffect% institution is annulled, descend intestate

A 766,666

% 766,666

( 766,666

"n scenario "", ( is omitted, what is the effect if there is preterition or omission1 "nstitution is annulledF

therefore the whole estate will descend by intestate succession. "t is total intestacy because there is no

presence of legacies or de-isees, so each one will get 766,666.

S,e'rio III3 I) C is o!i##e% $"# %ies ')#er T

Effect: Same answer as Scenario ""

E+cept: (@7 inherits by right of representation

"n scenario """, if ( is omitted but dies after T, so you will get the same answer as scenario "". 2hy1 %ecausehe did not predecease T, he died, but only after T, because there is no annulment of institution of heirs, only

intestate succession.


A B C

A#1 C#1

300 000 3



S,e'rio IV3 C is o!i##e% $"# pre%e,e'ses T- Is#i#"#e A @ 9 #o #he *ho(e es#'#e

Effect: Preterition occurs but institution of A Q % remains effectual as long as it is not inofficious.

egitime Institution Total

A ;6,666 0;,666 78;,666

% ;6,666 0;,666 78;,666

(@7 representati-e of (B ;6,666 ;6,666

466,666 TotalB

"n scenario ", this is different, ( is omitted but he predeceases T, that is the 8 nd paragraph of article ?;<,

it says there, if the preterited heir predeceases the testator, institution remains effectual. )eaning therewill be no annulment of institution of heir as long as it is not inofficious or when it impairs the legitime,

when it will pre3udice the legitime of the compulsory heirs. Since the institution remains effectual, thenthe succession would not be intestacy. /ou ha-e to gi-e the legitime of A, % and (, ( being represented by

(@7, (@7 will get the legitime by right of representation. A -ery important principle of the right ofrepresentation si that in testamentary succession, the right of representation only co-ers the legitime.

There is no right of representation as to the free portion of the -oluntary heirs.

There is no right of accretion as regards with the legitime of the compulsory heirs but there is a right of

accretion as to the -oluntary share of -oluntary heirs. "n intestate succession, the right of representation co-ers all the inheritance of the compulsory heirs.

◦ Thus in this particular case, (7 will only inherit the legitime of ( by right of representation. ( is notinstitued in the free portion but only A and %. the institution of A and % will remain effectual thus

they will get more than (.

This is total intestacy.

There will be a partial intestacy if legacies or de-isees are gi-en.

◦ SCENARIO V

◦ 'or e+ample:

◦ 'acts:

▪ Estate V P 466,666

▪ A legacy was gi-en

▪There are 4 children, one is omitted preteritionB. The two children are instituted to the wholeestate.

"f the legacy is P 766,666, the said legacy shall be first deducted from the P 466,666. the

remaining will ha-e to go to the children, so di-ide the P 866,666 to 4. This will not resultdirectly to total intestacy. 2hy1 "t is the wishes of the testator to gi-e the legacy of P

766,666, which must be subtracted.

:ow, according to the law, it states there that except if the legacy or devise is inofficious or pre9udices the legitime of the compulsory heirs.

This time you ha-e to determine. "f the legacy now is P 866,666. "s it inofficious1 /es. "f your

estate is P 466,666, in order to get the legitime of the compulsory heirs, you ha-e to di-ide

the estate into two P7;6,666B and now the legacy gi-en is P 866,666. 2hat is the rule

here1 The rule is not to annult the institution of the legacy as a whole but it will only bereducible to co-er the free portion which is P 7;6,666.

2hen a compulsory heir, omitted in the will, it is immaterial as to whether or not he was mentioned in

the will as long as he is a compulsory heir in the direct line. He is not gi-en anything in the will and the

will co-ers the entire estate. %ecause e-en if it is not gi-en in the will but there are remaining balance inthe estate which will be distributed by intestate succession, in which case he becomes an intestate heir

then there is no preterition.




Article 906. ny compulsory heir to whom the testator has left by any title less than the legitime belonging to him may

demand that the same be fully satisfied. (G&")

"f the heir is not gi-en the complete share of his legitime, the compulsory heir is only entitled to thecompletion of his share. There is no preteretion, meaning there is no annulment of institution of heirs.

"f the compulsory heir is not gi-en anything at all in the will but he was gi-en a donation, the donation

will be considered an ad-ance legitime and there will be no preterition. $ow, if we tal* about donations,

it is a donation gi-en during the lifetime of the testator. "f we tal* about succession, then it is effecti-emortis causa, by -irtue of a will or by operation of law.

◦ 'or e+ample: "f the son has a debt with P$% for P 7) and he cannpot pay. He as*s his mother to pay

the said debt.

▪ The payment of such by the parent is considered a donation which means that it is an ad-ance

to the legitime of the compulsory heir which shall be deducted from the moment of death of theparent. The said P 7) will be deducted to the legitime of the son .

Supposing in this case, the parents acted as a guarantor. Since the son cannot pay the P 7)

then the parent paid the P 7), is this a donation which was gi-en gratuitously1

◦ $!. i"t is the duty of the parent as a guarantor to pay the obligation without pre3udice to

reimbursement from the son.

▪ %ut if the parent as*ed for the reimbursement from the son, then this may be

considered a donation which is considered as his ad-anced legitime.

2hy do we ha-e to *now if there is preterition1◦ "n order to determine if the institution of the heirs are -alid.

"f grandparents are omitted, will there be preterition1

◦ "t depends.

▪ "f the grandparents are the only sur-i-ing compulsory heirs who are entitled to the inheritanceof their grand child.

▪ "f the parents of the testator are still ali-e then there is no preterition. THE (L!SE E&(LDESTHE 'ATHE P"$("PLE

"n the case of =ulian and %onghanay -s. )artine, the court ruled that a sur-i-ing spouse, though a

compulsory heir, is not considered a compulsory heir in the direct line. They do not ha-e blood relations.

"f brothers and sisters are omitted, will there be preterition1

◦$o. They are only collateral relati-es. !nly considered as heirs in intestate succession collateralrelati-es up to the ;th degreeB.

Article 855. The share of a child or descendant omitted in a will must first be taen 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 taen proportionally from the shares of the other

compulsory heirs. (&/G/a)

"f indeed there is preterition, what is the effect1 The share of the compulsory heir will be gi-en and ta*en

from the free portion if there is sufficient balance from the free portion. "f there is none, the share shallha-e to be ta*en from the compulsory heirs, pro@rata.

"f we tal* about proportionate sharing, you will as*, if it will be ta*en from the legitime of the

compulsory heirs, then their legitime will be pre3udiced. %ut this was interpreted by Paras. He said that

actually we are tal*ing about a compulsory heir who is at the same time a -oluntary heir. The share shall

be ta*en not directly from the legitime but from the share as a -oluntary heir.






Article 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs

should die before him, or should not wish, or should be incapacitated to accept the inheritance.

simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding

paragraph, unless the testator has otherwise provided. ($$L)

Article 860. Two or more persons may be substituted for one' and one person for two or more heirs. ($$G)

Article 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir

who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are morethan one substitute, they shall have the same share in the substitution as in the institution. ($$#a)

Simple "nstituted heir W substituted heir W condition P"BB

◦ " institute A as heir but if A predeceases me then % shall substitute A. There is a specific pro-ision for its

condition.

◦ Scenario: "f A, instead of predeceasing the testator, renounces the inheritance. (an % inherit as a

substitute1

▪ $o. because the condition of predeceasing the testator is e+pressly pro-ided

▪ %ut if there is no e+press pro-ision as to the condition, then % may substitute A and inherit.

%rief @ two or more persons substitutes for one heir

(ompendious one person substitutes for two or more heirs

eciprocal the instituted heirs themsel-es are the substitute sof each other◦ T institutes A to 74 and % to 84 of his estate. "f A predeceases, incapacitated or renounces the

inheritance P"B then % shall inherit e-erything and -ice -ersa.

Scenario:

◦ A was -alidly instituted and % was the substitute. % predeceased the testator. pon death of A, can be

inherit1

▪ $o. Substitution is already e+tinguished

"nstances where substitution is e+tinguished

Substitute is P" Predeceases the testator, "ncapacitated, enounces inheritanceB F

"nstitution of the heir was annuledF ThereMs no one to substituteF

Substitution is re-o*edF

The will was declared -oid in its entirety.

Article 862. The substitute shall be sub9ect to the same charges and conditions imposed upon the instituted heir, unless and testatorhas expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted. ($G/)

As a general rule: The substitute must fulfill the conditions imposed on the original instituted heir.

◦ E+ample: " institute )artin $ie-era as my heir with the condition that he shall ha-e a concert in my

name before " die. And if )artin shall predecease me, then Anne (urtis shall substitute him.

▪ )artin predeceases the testator. So Anne shall conduct the concert.

E+ception:

◦ "f the testator pro-ided for the contrary and

◦ "f the conditions are personally applicable only to the instituted heir.

▪ Anne (urtis cant sing and ha-e a concert for the testator.




Article 863. fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to

preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall tae effect, provided such

substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heirand the second heir are living at the time of the death of the testator. ($G&a)

Article 864. fideicommissary substitution can never burden the legitime. ($Ga)

Article 865. 3very fideicommissary substitution must be expressly made in order that it may be valid.

The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from

legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise. ($G*)

Article 866. The second heir shall acquire a right to the succession from the time of the testator1s death, even though he should diebefore the fiduciary. The right of the second heir shall pass to his heirs. ($GL)

Article 867. The following shall not tae effect%

(&) 7ideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing

upon the fiduciary the absolute obligation to deliver the property to a second heir'

() 2rovisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in

article G!*'

(*) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in

article G!*, a certain income or pension'

(L) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the

same according to secret instructions communicated to him by the testator. ($G"a) Article 868. The nullity of the fideicommissary substitution does not pre9udice the validity of the institution of the heirs first

designated' the fideicommissary clause shall simply be considered as not written. ($G!)

Article 869. provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct,

shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of article G!* shallapply. ($G$a)

Article 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void. (n)

• 'S is considered as an indirect substitution.

• "t is defined as the substitution by -irtue of which, the testator institutes a first heir called a fiduciary,charges the first heir of fiduciary with the obligation to preser-e and then deli-er or transmit the whole or

part of the inheritance to the second heir, called the fidicoumisary.

• "t is -alid, pro-ided that both the first and the second heir are ali-e at the time of the death of the testator

and one degree apart from each other. E/ ")P!TA$TC

◦ So there are two elements here:

▪ 7B both of them, the first and the second heir must be ali-e at the time of the death of the testator,

▪ 8B the first and the scond heir must always be one degree apart.

• So there are ? legal re9uirements:

7. the e+istence of the first heir

8. an obligation imposed upon him to preser-e and to deli-er to the second heir4. there must be a second heir

<. the first and the second heir must be one degree apart ;. both heirs must be ali-e or at least concie-ed at the time of the death of the testator

• So it may be possible that the substitute has not yet been born at the time of the

testatorMs death1 "s the institution -alid1 "s the substitution -alid1 At least concie-ed at the time ofthe testatorMs death. )ay be born after his death.

I. must be made in e+press manner0. must not burden the legitime

?. and must not be conditional




• 2hat is the nature of the right of the first heir now1

◦ The right to en3oy and possess.

◦ Property possession and en3oyment belongs to the first heir, the fiduciary, but he is obliged to preser-e

the property for the fidicoumisary. So the first heir en3oys the use and the fruits of the property whilethe second heir is considered as a na*ed owner. %oth property is still in the possession of the first heir.

• The na*ed owner is -ested on the second heir.

•

So in thr meantime that the property is in the hands of the first heir, the second heir has ownership o-er theproperty, only na*ed owner.

• (an the first heir therfore alienates the property sub3ect of an 'S1 2hile it is still in his possession1 "n as

much as the second heir or the fidicoumisary, right of ownership to the property is -ested upon him at the

moment of death of the testator, can he ha-e the right to sell or alienate the property while still the propertyis in the hands of the fiduciary1

◦ The second heir is more li*e of a usufruct, he en3oys the right of usufruct o-er the property. The only

difference here is that he is not also called a trustee.

▪ %ecause a trustee could only manage the property while the first heir en3oys possesion of the

property.

• Howe-er it is different from the right of a usufructuary because the first heir is not re9uired to

put up a bond and the fiduciary has the right to as* for reimbursement of any usefulimpro-ements or e+penses or the maintenance of the property or if the propertyMs -alue hasincreased. He could as* for reimbursement. These are the nature of the function of the first heir

to the property.

• So the time of deli-ery from the fiduciary to the fidicoumisary institution,

◦ if there is no specified time fi+ed by the testator of the deli-ery, it means upon the death of the first heir.

◦ %ut if the testator specifically pro-ides for the deli-ery, 86 years after my death, then whether he is li-ing

or dead, it has to be deli-ered after when the 86 year period has lapsed.

▪ "f the testator pro-ides for the deli-ery should be made 86 years thereafter, but the fiduciary dies

before the 86 year period. Pangutana, asa mana mapunta ang property1 So muingon *ag 86 years,

stipulated, testator institute A and % as substitute, this is an 'S, 86 year period deli-ered to %, A7, %7.

A died on the 7;th year. There is a stipulation that A shall ta*e possession of the property, en3oy itfor 86 years and deli-er it to % but before the determination of the 86 year period, A died on the7;th year. Nuestion: Asa mana mapunta ang property1

• "t would go directly to % as the fidicoumisary, the reason is that the property is sub3ect to an 'S.

$o matter what, upon the death of the first heir, this right of the first heir who is a fiduciary is

not transmissible, but it will go directly to the fidicoumisary !r the second heir. So e-en if the 86year period has not lapsed, upon the death of A, A must or the estate of A, this particular

property sub3ect of the institution to the fidicoumisary and not to the heirs under Art. ?I0.

• Effect of alienation of property sub3ect to 'S

◦ "f the property is alienated such as by deed of sale by the first heir in fa-or to the third person.

▪ The effect is that, upon the death of the first heir, the buyer is obliged to deli-er the property to the

second heir, irregardless of the good faith or the bad faith of the buyer, that is the general rule.• 2hich means to say that the deed of sale or the sale that was entered into by the first heir with

the third party is not -oid per se. "t is sub3ect, it is -alid but sub3ect to the condition that at the

time of the first heirMs death, this property must be deli-ered to the fidicoumisary. "t doesntmatter howe-er, whether the third party *nows or the buyer is in good faith or bad faith.

◦ The reason is because,he ac9uired merely the rights of the first heir or fiduciary which is

merely that of a usufructuary.

▪ $ow in the case of )orale3o -s )a*iXano, alienation may be sub3ect to 'S, if the




property is co-ered by a torrens titled, the second heir should cause the registration of

his right to the property to warn innocent buyer of the e+istence of such 'S, otherwisethe second heir might lose the property in the hands of other subse9uent transferies in

good faith.

• The remedy here, which means to say that if the sub3ect property, co-ered sub3ect

of an 'S is a land, real estate co-ered under torrens title. "n this particular case,wherein the land was registered by the father in the name of the father and the

second heir did not oppose during registration of the land. $ot of a mereopposition but in order to annotate his right of an 'S to that parcel of land and he

failed to do so. Thus, the preference is now gi-en to the buyer in good faith. 2hichmeans the buyer did not *now about the e+istence of 'S.

• nless of course, this is called Sleeping on his rights. So therefore, unsa mn dy na,

the 9uestion woild then be, i*aw second heir maam unsa mn diay imong buhatonpara to protect the property. "mong father for e+ample mangwaldas, and iya lang

*uanon ang property sub3ect of an 'S, unsa man imong protection.

◦ "f the property is co-ered under torrens title and the property is sold to a third

person or a buyer in good faith and for -alue, there are only two remedies that

the second heir can do.

▪ He would go after the assurance fund, get it from the asurance fund of the

torrens title or

▪ he must get reimbursement from the estate of the first heir.

▪ $ow supposing the sub3ect matter of an 'S, is a personal property, a car,

unya imong father g*uha na ang manibela, g*uha na ang airconditioning

unit, murag iya nang gdamage ang property. nsa man imong mahimo anaas a second heir mao nay 9uestion1 /ou cannot go to LT! to annotate your

right as a fidicoumisary, there is none.

• /ou can go to court, compel your father to put up a security or a bond

in order to protect your interest on the property, while property is stillin the possession of the first heir.

• 2hat then the effect of an in-alid 'S1

◦

"f the 'S is in-alid, the rule says, it does not affect the -alidity of the institution of heir. So the annulmentof an 'S or a substitution for that matter does not pre3udice the -alidity of the institution of the heir.

◦ The effect would be, that the 'S close is merely considered as not written, as pro-ided therefore under

Art. ?I?.

◦ So the first heir is no longer obliged preser-e and transmit inheritance to the second heir if the 'S is

in-alidated.

◦ (onse9uently, for a property sub3ect of an 'S forms part of his estate and upon his death, the first heir

will ha-e to transmit his right to the property to his heirs. 2hy1 %ecause the 'S is considered as not

written, its institution remains -alid. The right of the first heir with respect to the property, li*e that ofa usufruct. %ut the rule says, the law says, you cannot alienate the property. "t is -ery clear. %ut as to

regards the 3urisprudential ruling in the case of )a*iXano, he was able to alienate the property. Andthere was a 9uestion whether the buyer is in good faith or bad faith, basta ang property is in the

co-erage of torrens system.

• $ow under Art. ?06, as a general rule, the disposition of the testator declaring all or part of the estate

inalienable is -oid.

◦ The e+ception to this is when there is 'S under Art. ?I0. $gano man1 $iingon man ang 'S, ang first heir

in possession of property and disposition will not go beyond 86 year period. 2hich means to say that hecan still possess the property e-en beyond the 86 year period because after all it will go to the

fidicoumisary and not to third person.

▪ 'urthermore, this prohibition as to regards to 86 year period, inalienability of a property does not




apply to the legitime of the compulsory heir. "t is only applicable to -oluntary share in the free

portion. 2hy1

• %ecause of the pro-ision which says that Rno one can impose a burden, conditions, or

impositions on the legitime of compulsory heirsR.

◦ "nalienability not e+ceeding 86 year period may be acceptable prohibited to alienate with

86 year peiod is only applicable to a share in a free portion and not to the legitime of thecompulsory heirs.

▪ E+ception: there is a prohibition to di-ide. The prohibition to di-ide is different fromthe prohibition to alienate. The prohibition to di-ide may be applicable to the legitime

of the compulsory heirs but it should not e+ceed the 86 year period.

• The prohibition to di-ide may be imposed upon the legitime of compulsory heirs

but not e+ceeding 86 year period.The prohibition to alienate should not e+ceed the86 year period but could only be applicable only to the share in the free portion

and not to the legitime.

• =ust ha-e to remember the substitute will only inherit in a simple substitution, in simple substitution the

substitute will only inherit in the presence of ; preconditions, that in an 'S, they will inherit both at the same

time of the testator at the moment of his death but both must be li-ing or ali-e at the testatorMs death andshould be one degree apart from each other.

• E+ample on the *ind of 9uestions to be as*ed:

◦ T institutes A as first heir and % as second heir. $ow A is the first son of T, while % is the second son of T.

$ow, T died 8666, A died 8667, % died 8668. A has a son, A7 and % has a son %7.

7. "f this is simple substitution, can substitute % inherit the property upon the death of A1eason.

8. "f this an 'S, can %, a substitute, inherit the property upon the death of T1 eason.

S'!p(e "es#ios3

8678 %A Nuestions for Succession

• Atty. %>!, a 'ilipino, e+ecuted a will while he was in Spain. The attestation clause of the said will does not

contain %u*oMs signature. "t is -alid under Spanish law. At its probate in )anila, it is being opposed on the

ground that the attestation clause does not contain %>!Ms signature. "s the opposition correct1 (hoose the

best answer.aB /es, because it is a fatal defect.bB /es, the will is not -alid under Philippine law.

cB $o, attestation clause is not an act of the testator.dB $o, the go-erning law is Spanish law.

• amon, a 'ilipino, e+ecuted a will in )anila, where he left his house and lot located in %' Homes Parana9uein fa-or of his 'ilipino son, amgen. amonMs other children = and amona, both Tur*ish are disputing the

be9uest to amgen. They plotted to *ill amgen. amon learned of the plot, so he tore his will in two piecesout of anger. 2hich statement is most accurate1

aB The mere act of amon Sr. is immaterial because the will is still readable.

bB The mere act of tearing the will amounts to re-ocation.cB The tearing of the will may amount to re-ocation if coupled with intent of re-o*ing it.

dB The act of tearing the will is material.

• "f a will is e+ecuted by a testator who was born a 'ilipino citien but became a naturalied =apanese citien at

the time of his death, what law will go-ern its testamentary pro-isions if the will is e+ecuted in (hina and the

property being disposed is located in "ndonesia1aB (hinese law

bB Philippine lawcB "ndonesian law

dB =apanese law




A =apanese national and a 'ilipino national entered into a contract for ser-ices in Thailand. The ser-iceswill be rendered in Singapore. "n case of breach, what law will go-ern1

aB Thailand lawbB Philippine law

cB Singapore lawdB =apanese law

Pedro 'ilipinoB and his wife =ane AmericanB e+ecuted a 3oint will in (anada, where such 3oint will is

-alid. "n case the 3oint will is probated in =apan, what law will go-ern the formalities of the 3oint will1aB American law

bB Philippine lawcB (anadian law

dB =apanese law

A 'rench national re-o*es his will in =apan where he is domiciled. He then changed his domicile to thePhilippines where he died. The re-ocation of his will in =apan is -alid under =apanese law but in-alid

under Philippine law. The affected heir is a )alaysian national residing in the Philippines. 2hat law willapply1

aB =apanese lawbB Philippine law

cB 'rench law

dB )alaysian law

The will of a 'ilipino e+ecuted in a foreign country@@@

aB cannot be probated in the PhilippinesFbB may be probated in the Philippines pro-ided that properties in the estate are located in the

PhilippinesF

cB cannot be probated before the death of the testatorF

dB may be probated in the Philippines pro-ided it was e+ecuted in accordance with the laws of theplace where the will was e+ecuted.

KO@-H /&& AIPI 0 @3PI303@

&, a Spanish (itien but a resident in San 'rancisco, (alifornia, e+ecuted a will in To*yo, =apan. )ay such

will be probated in the Philippines and his estate in this country be distributed in conformity with thepro-isions of the will1

◦ A$S2E: /ES, the will may be probated in the Philippines and his estate in this country be

distributed in conformity with the pro-isions of the will, pro-ided that said will was e+ecuted inaccordance with the formalities prescribed by any of the ff. laws:7. Law of the place in which & resides

8. Law of his own country4. Law of the Philippines

<. Law of the place where the will was made

)r. eyes e+ecuted a will which is completely -alid as to form. A wee* later, howe-er, he e+ecuted

another will which e+pressly re-o*ed his first will, following which he tore his first will. pon the deathof )r. eyes, his second will was presented for probate by his heirs, but was denied probate due to

formal defects. Assuming that a copy of the first will is a-ailable, may it now be admitted to probate andgi-en effect1

• A$S2E: /ES, Doctrine of Dependent elati-e e-ocation.

•2hen the testator tore the first will, he was under the mista*en belief that the second was perfectly-alid and he would not ha-e destroyed the first will had he *nown that second will is not -alid. The

re-ocation by destruction is therefore dependent on the -alidity of the second will. Since it turnedout that the second will was in-alid, the tearing of the first will did not produce the effect of

re-ocation.




& died in 7506, sur-i-ed by his 8 legitimate children, A and %, and by his 4 grandchildrenF D, E, ', thelegitimate children of (, a legitimate child of & who predeceased him. "n his will, he instituted A, %, Jthe

children of (K, and a friend ) as heirs without designating their shares. The residue of his estate is P7?6,666. How shall the distribution be made1

◦ A$S2E: Satisfy the legitime of the compulsory heirs then the free portion in e9ual parts nodesignation, so di-ision in e9ual partsB so:

A P 46,666 as compulsory heirP 7;,666 as -oluntary heir

% P 46,666 as compulsory heirP 7;,666 as -oluntary heir

D P 76,666 as right of representation

P 7;,666 as -oluntary heir

E P 76,666 as right of representationP 7;,666 as -oluntary heir

' P 76,666 as right of representationP 7;,666 as -oluntary heir

) P 7;,666 as -oluntary heir

A instituted % his sonB and his brothers ( and D as his heirs to an estate of P I66,666. Distribute theestate.

◦ A$S2E: Satisfy the legitime of the compulsory heir then the free portion in e9ual parts nodesignation, so di-ision in e9ual partsB so:

% P 466,666 as compulsory heirP 766,666 as -oluntary heir

( P 766,666 as -oluntary heirD P 766,666 as -oluntary heir

A died with a will in 7506. "n the will, he instituted his legitimate son, %, as sole heir, omitting $, anac*nowledged natural son, completely. "n 75I6, howe-er, A had donated to the latter a parcel of land

worth P 86,666. "s there preterition1 2hat is the remedy of $1

• A$S2E: There is no preterition in this case. $ is a compulsory heir in the direct line, yet he

had recei-ed a donation inter -i-os of P 86,666 from the testator. "n order that there will be

preterition as contemplated under Art ?;<, it is indispensable that the omission of the heirshould be total and complete in such a way that he has not recei-ed anything from the

testator by any title or whatsoe-er. The omitted heirs must be totally depri-ed impliedly of

his legitime. "n this case, there is no total depri-ation.

• "f there is an impairment of his legitime, his remedy is found in Art 56I. He can demand for

its completion.

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