Succession TSN Atty. Espejo 2016

From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law

Other than that, the usufruct is not a clear transfer of ownership but more of the use of property so it does not violate the limitations provided by the Constitution.

June 20, 2016 (K.J.Du)

This is Wills and Succession. Practically, this is a very morbid subject because we always talk about death. The law on succession cannot apply without death.

Q: When you say succession under the Constitution, based on that case, what is the kind of succession being referred to? A: Intestate succession.

Why do we have the laws on succession? Basis of succession: Law – it is in the nature of man to really 1. Natural Law – provide for the ones whom he would leave behind Postulate – the purpose 2. Based on Social Economic Postulate – is to prevent the property from becoming idle. Once a person dies, his properties are not buried with him but are left. If we do not determine or provide to whom shall these properties go then these properties will be left idle. Ow ner ship sh ip – this is in relation to 3. As an Att ri bu te o f Owner Article 428 on the Law on Property:

Q: What do you understand by intestate succession? A: It is a form form of succession succession where the process process succession succession operates through law and not through will. In general, there are two kinds of succession (as to origin): 1. Testamentary or testate succession – it is made by virtue of a will 2. Legal or intestate succession – the distribution of the properties shall be by virtue of law, not by will Although there are different different ways by which there can be intestate succession, succession, but as a general rule, when a person dies without a will, then that is legal or intestate succession.

Ar ticl ti cl e 428. The owner has the right to enjoy and dispose of

a thing, without other limitations than those established by law. The owner has also a right of action against the holder and possessor of the thing in order to recover it. The right to dispose covers not only the right to d ispose inter vivos or during the lifetime, but also upon death. Because if we will limit the right only to transfers during the lifetime of the person, then his ownership will be hampered. Q: Have you encountered the term succession before? In first year? A: In Persons and in Constitutional Constitutional Law. Ar ticl ti cl e XII. Secti on 7 . Save in cases of hereditary

succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain. There is also a mention of succession in the Constitution. That mentions of hereditary succession. GR: No foreigners can own lands in the Philippines. It is prohibited under the Constitution. Exception: In cases of hereditary succession Ramirez vs. Ramirez (111 S 39 | GR L-27953 | Feb. 15, 1982)

Q: What did the SC say about succession being referred to under the Constitution? A: One of the issues in the case is that there was a specific specific provision in the will of the decedent that the usufruct of the properties will be transferred to a certain Wanda Wrobleski who the respondents in the case questioned because she is an Austrian who lives in Spain. They are questioning why a usufruct is transferred to a foreigner. The SC decided that even though she is a foreigner, the concept of succession operates not only to notarial wills but also intestate succession.

3.

[There is also mixed succession]

Q: Why is it that in our Constitution, the succession referred to is limited to legal or intestate succession? A: The limitation limitation is to make make sure that ownership ownership of properties is only within Filipinos by rule. If you put it through a will then you circumvent the reason to why you put a limitation based on the Constitution. Under our Constitution, foreigners cannot own lands in the Philippines. So if you cannot sell to them, or donate to them, but you can give to them by will, that would be circumventing our prohibition under our Constitution. Even if the testator, the one who dies, makes a will and gives the land to a foreigner, the foreigner would not be able to get it by succession because the succession being referred to is only by legal or intestate succession. succession. Take note that although the case of Ramirez says that the succession being referred to under our Constitution only means legal or intestate succession but actually, that will also include compulsory succession succession or what we call succession to the legitime. Here, even if there is a will but if the heir is a compulsory heir of the testator (such as a child, spouse or parent) even if there is a will, even if technically that is testate succession, but it does not foreclose inheritance by the compulsory heirs of their legitime. The legitime is the portion of the estate of the decedent which is reserved by law to the compulsory heirs. So that constitutional provision could also refer to the legitimes in testamentary succession. Basically, the case of Ramirez makes a distinction between testate and intestate succession. Under the Constitution, the exception refers to legal succession, and again, as I will add, this will not prevent succession by means of the legitime. There are other different kinds (classifications) of succession (as to effectivity e ffectivity): ):

Page 1 of 69 Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]


1.

Succession inter vivos (or even for donation inter vivos) – – it refers to a transfer made during the lifetime of

Synonymous to succession


inter vivos

mortis causa

the transferor 2.

Succession mortis causa – causa – the transfer happens or is

effective upon death of the transferor It is very important that you should know which is succession or donation inter vivos and which is succession or donation mortis causa.

It is easy to think that if it is during the lifetime then you follow donation and if it is mortis causa then you follow the formalities of the will. In reality, that is a difficult difficult question. In fact, several several cases reached the SC on that question alone, whether the document refers to a disposition inter vivos or mortis causa . There are certain cases where the title of the document is

Why is there a need to know the d istinction? Because there are different formalities involved. For example: If you want to transfer a property to your friend and you want to transfer it to her during your lifetime, immediately during the execution of the document she becomes the owner. So you donate to her the property. Donation, as you have learned in Property, is a formal contract so you have to observe the formalities of law in order for the donation to be valid: a. If the the donation donation is is personal personal property, property, the the donation donation would would be valid if there is simultaneous delivery, and acceptance b. If the the value value of the property exceeds Php5,000, then it has to be in writing, both the donation and the acceptance c. If the donation is is a real property, property, both the donation and the acceptance must be in a public instrument These are the requisites for a valid donation. That is of you want to transfer a property and you want it to be effective to transfer during your lifetime, you follow the form prescribed for a donation. But, if you want to transfer your property upon your death, that is actually mortis causa, that is governed by the law in succession. Here, it is not enough that the donation or the transfer is made in a public document, it must be in the form of a will. That is in Article 728 of the Civil Code: Ar ticl ti cl e 728. Donations which are to take effect upon the

death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules established in the Title on Succession.

“Donation inter vivos” vivos” but the SC said that it is actually a mortis causa disposition and therefore it should be in the form of a will.

Ganuelas vs. Cawed (401 S 447 | GR 123968 | Apr. 24, 2003)

Facts: Celestina Ganuelas executed a Deed of Donation in favor of her niece Ursulina. Years later, Celestina executed a document denominated as a revocation of the donation she previously executed purporting to set aside the do nation. A month later, she died. After she died, Ursulina now had been sharing the products of the property deemed to have been donated by Celestine to her. 24 years after the execution of the Deed of Donation, Ursulina was able to secure a tax declaration under her name. The respondents here now filed a complaint against Ursulina including Antonio and Manuel Ganuelas alleging that the donation made in favor of Celina was void. Q: What was the tenor of that Deed of Donation? A: The donation made was executed executed by Celestina out of love and affection. Q: Can you read that provision? A: “That, for and in consideration of the love and affection which the donor has for the donee, and of the faithful services the latter has rendered in the past to the former, the said donor does by these presents transfer and convey, by way of donation, unto the donee the property above, described, to become effective upon the death of the donor; but in the event that the donee should die before the donor, the present donation shall be deemed rescinded and of no further force and effect..”

Issue: Is the donation inter vivos or mortis mortis causa? So, for the transferee to effectively get the ownership of that property, wherein the transfer is e ffective upon death, the document where the transfer is embodied must be in the form of a will. Even if you followed all the formalities of a donation, that transfer will not be valid. In the same way that you want the transfer to be effective during your lifetime but you followed the formalities of the will, that will also not effectively transfer ownership to the supposed donee. [From 2015 TSN:] Donation inter vivos vivos

A gratuitous disposition disposition that takes effect during the lifetime of the donor Governed by the law on donation; you follow the formalities of a real donation

Ruling: The SC elucidated the distinguishing characteristics of a donation mortis causa The 3 distinguishing characteristics characteristics of a donation mortis causa: 1.

It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing, that the transferor should retain retain the ownership (full or naked) and control of the property while alive; alive;

Donation mortis causa

A gratuitous disposition disposition which takes effect upon the death of the donor Governed by the law on succession, particularly Article 728 of the the Civil Code; you follow the formalities of a will

It must not transfer title of ownership to the transferee prior to the death of the transferor. Q: What kind of ownership is being referred to here? A: Full or naked naked ownership. Q: Can you give us an example? A: For example, example, if property is to be transferred prior to the death of the transferor, the full ownership, then it is not mortis causa.



1.

Succession inter vivos (or even for donation inter vivos) – – it refers to a transfer made during the lifetime of



inter vivos

mortis causa

the transferor 2.

Succession mortis causa – causa – the transfer happens or is

effective upon death of the transferor It is very important that you should know which is succession or donation inter vivos and which is succession or donation mortis causa.

It is easy to think that if it is during the lifetime then you follow donation and if it is mortis causa then you follow the formalities of the will. In reality, that is a difficult difficult question. In fact, several several cases reached the SC on that question alone, whether the document refers to a disposition inter vivos or mortis causa . There are certain cases where the title of the document is

Why is there a need to know the d istinction? Because there are different formalities involved. For example: If you want to transfer a property to your friend and you want to transfer it to her during your lifetime, immediately during the execution of the document she becomes the owner. So you donate to her the property. Donation, as you have learned in Property, is a formal contract so you have to observe the formalities of law in order for the donation to be valid: a. If the the donation donation is is personal personal property, property, the the donation donation would would be valid if there is simultaneous delivery, and acceptance b. If the the value value of the property exceeds Php5,000, then it has to be in writing, both the donation and the acceptance c. If the donation is is a real property, property, both the donation and the acceptance must be in a public instrument These are the requisites for a valid donation. That is of you want to transfer a property and you want it to be effective to transfer during your lifetime, you follow the form prescribed for a donation. But, if you want to transfer your property upon your death, that is actually mortis causa, that is governed by the law in succession. Here, it is not enough that the donation or the transfer is made in a public document, it must be in the form of a will. That is in Article 728 of the Civil Code: Ar ticl ti cl e 728. Donations which are to take effect upon the

death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules established in the Title on Succession.

“Donation inter vivos” vivos” but the SC said that it is actually a mortis causa disposition and therefore it should be in the form of a will.

Ganuelas vs. Cawed (401 S 447 | GR 123968 | Apr. 24, 2003)

Facts: Celestina Ganuelas executed a Deed of Donation in favor of her niece Ursulina. Years later, Celestina executed a document denominated as a revocation of the donation she previously executed purporting to set aside the do nation. A month later, she died. After she died, Ursulina now had been sharing the products of the property deemed to have been donated by Celestine to her. 24 years after the execution of the Deed of Donation, Ursulina was able to secure a tax declaration under her name. The respondents here now filed a complaint against Ursulina including Antonio and Manuel Ganuelas alleging that the donation made in favor of Celina was void. Q: What was the tenor of that Deed of Donation? A: The donation made was executed executed by Celestina out of love and affection. Q: Can you read that provision? A: “That, for and in consideration of the love and affection which the donor has for the donee, and of the faithful services the latter has rendered in the past to the former, the said donor does by these presents transfer and convey, by way of donation, unto the donee the property above, described, to become effective upon the death of the donor; but in the event that the donee should die before the donor, the present donation shall be deemed rescinded and of no further force and effect..”

Issue: Is the donation inter vivos or mortis mortis causa? So, for the transferee to effectively get the ownership of that property, wherein the transfer is e ffective upon death, the document where the transfer is embodied must be in the form of a will. Even if you followed all the formalities of a donation, that transfer will not be valid. In the same way that you want the transfer to be effective during your lifetime but you followed the formalities of the will, that will also not effectively transfer ownership to the supposed donee. [From 2015 TSN:] Donation inter vivos vivos

A gratuitous disposition disposition that takes effect during the lifetime of the donor Governed by the law on donation; you follow the formalities of a real donation

Ruling: The SC elucidated the distinguishing characteristics of a donation mortis causa The 3 distinguishing characteristics characteristics of a donation mortis causa: 1.

It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing, that the transferor should retain retain the ownership (full or naked) and control of the property while alive; alive;

Donation mortis causa

A gratuitous disposition disposition which takes effect upon the death of the donor Governed by the law on succession, particularly Article 728 of the the Civil Code; you follow the formalities of a will

It must not transfer title of ownership to the transferee prior to the death of the transferor. Q: What kind of ownership is being referred to here? A: Full or naked naked ownership. Q: Can you give us an example? A: For example, example, if property is to be transferred prior to the death of the transferor, the full ownership, then it is not mortis causa.



Q: What if I donated to you a property and sa id that you can use and enjoy the property, you can harvest the fruits and cultivate it but the title retains with me. W hat is that? A: A usufruct. usufruct. Q: So that is inter vivos or mortis causa ? What kind of ownership is being transferred to you? A: Beneficial ownership. So I still retain the naked title. So when you say that the donor does not transfer ownership, whether full or naked, and that will only happen upon the death of the don ee, then it is a donation mortis causa. As long as there is reservation of ownership, whether full or only naked ownership and the entire beneficial use is already given to the donee, it is still a donation mortis causa. 2.

That before his death, death, the transfer should be revocable by the transferor at will, ad nutum; nutum ; but revocability may be provided for ind irectly by means of a reserved power in the donor to dispose of the properties conveyed; conveyed;

Q: Why should it be considered as mortis causa if the donation is revocable? A: [Since the revocability of the transfer means that there is a reservation of the power to dispose the property.] Since if it is a donation inter vivos, it may be revoked only on the grounds provided under the Civil Code. It is not really revocable at will unlike when it comes to Last Wills and Testaments where you can always revoke the will at any time even without a ground, even for an arbitrary or whimsical reason. If that is the tenor of the donation then it is really in the nature of a Last Will and testament, it is not a donation proper. 3.

That the transfer should be void if the transferor should survive the transferee.

The transfer should be void if the transferee dies ahead of the transferor.

In succession, the donee or the h eir should survive the donor, you cannot become an heir if you die ahead of the testator or the decedent. Q: What was the ruling of the SC? A: The donation made in favor of Ursulina Ursulina was a donation mortis causa. Q: What else was present in the Deed of Donation which the SC said confirmed that the donation as mortis causa ? A: First, there there is no mention mention in the said deed deed that indicated that the title or the right has already been transferred to Ursulina. Seco nd, the phrase that “to become effective upon the death of the donor” is already a clear indication that it is a donation mortis causa and admits no other interpretation.

And the most important one is that the provision in in the deed stating that “should the donee die before the donor, the donation shall be deemed rescinded”

Q: How about the phrase that the donation was founded by consideration of love and affection? Isn’t it that in a donation the consideration is love and affection? Can you not consider this as a Deed of Donation? A: The SC partly mentioned that the the basis or ground that that the donation is a donation inter vivos because it is founded in love and affection is erroneous because it could also be a ground of a transfer mortis causa. So it is irrelevant because both d onation and succession are actually founded on the same consideration: of love and affection. The SC also mentioned here the presence of the attestation clause in the Deed of Donation and confirmed that it was really intended to be a donation mortis causa . We will discuss later on what an attestation is. It is actually an essential part of a notarial will. Donations do not have attestation clauses, only wills. Villanueva vs. Spouses Branoco (GR 172804 | Jan. 24, 2011)

Q: Why should this be considered as donation mortis causa? A: The heir should not die ahead or else else there will be no succession. Q: In a real donation, what would happen if the donee dies ahead of the donor? If I give to you a property by way of real donation then you will die, what will happen to the property? A: If it is a real donation, the moment that you you have given the property and parted ownership with it, I will already be the owner. The moment that I will die then the property will be given to my heirs. So that is what happens in a real donation. So if you will provide that if the property upon the death of the donee will revert to the donor because it is essential that the donee should survive the donor, that is not donation proper. There is no requirement in a real donation that the d onee should survive the donor. As long as there is already a Deed of Donation, it is accepted by the donee, he becomes the owner of the property. If he dies, then the property shall be inherited by his own heirs. But if you say I am giving to you this property but if you will die ahead of me, the property will go back to me, that is not a real donation, that is actually the essence of a mortis causa disposition.

Facts: Gonzalo Villanueva, represented by his heirs, filed a case against Spouses Spouses Branoco. Villanueva claimed claimed that they owned the property in question from Vere who in turn purchased it from Rodrigo. The Branocos claim that they purchased it from Rodriguez to whom Rodrigo donated the property to. Basically, the other party was insinuating that they bought it to purchase and the respondents claim that they purchased it from someone who inherited it from Rodrigo. What is in question here also is a certain document written by Rodrigo. Q: What was the title of that document? A: It was a Deed of Donation written written by Rodrigo. She said that “because of that one Eufracia Rodriguez, one of my nieces who also suffered with our poverty, obedient as she was to all the work in our house, and because of the love and affection which I feel for her, I have one parcel of land… I give said land in favor of Rodriguez…”

Issue: Who holds the better title, the heirs of Gonzalo Villanueva (who claim they purchased it from Vere) or the



heirs of Branoco (who claim that Rodriguez inherited it from Rodrigo)? Ruling: The better title is with the Branocos since naked title passed from Rodrigo to Rodriguez.

4.

5.

Q: Who was the original owner of the property? A: Alvegia Rodrigo Q: What did she do first with respect to that property? Which came first, the donation or the sale? A: The donation came first. When Vere bought the property from Rodrigo in 1970, Rodriguez, the niece, was already in possession of the property from Rodrigo. Q: Why do we have to examine the Deed of Donation? A: To know whether it passed title to Rodriguez, to ascertain who has the better title to the land in question Q: Can you discuss what the nature of the Deed of Donation is? A: The SC said that this was a donation inter vivos Q: Was there an issue here as to the nature of that donation, whether it was mortis causa or inter vivos ? A: Yes, the respondents here were alleging that they had better title and that they a cquired it through prescription since they have been in possession of the land. Q: Let’s go back first to the question of who has the better

right to the land. You mentioned that the donation was made ahead of the sale. Here, insofar as the Deed of Donation is concerned, there was an allegation that it was actually a donation mortis causa. Why is it important? A: If it is a donation mortis causa, it has to follow the formalities of a will otherwise it will be void, but if it is a donation inter vivos, then it is immediately effective and just needs to follow the formalities required of donations. Q: What if, assuming for the sake of argument, that such document was in the form of a will, would that be sufficient now to say that it transferred ownership to Rodriguez? Assuming that such Deed of Donation was really intended to be a mortis causa disposition, and it was made in the form of a will, will it now transfer ownership to the transferee in the Deed of Donation? A: Not yet. Here, there was a question as to the nature of the donation, because according to the buyers that is a donation mortis causa. If it is really a donation mortis causa , it should be in the form of a will. Unfortunately that document was not in the form of a will. Assuming for the sake of argument that it was really in the form of a will, the subsequent sale or transfer of the property has the effect of revoking the mortis causa disposition, so that would still also defeat the right of the supposed transferee, assuming that the formalities of wills were followed. Q: You mentioned that the Deed of Donation was really a donation inter vivos and you also mentioned the 3 distinguishing characteristics, which we already discussed in the case of Ganuelas. What are the additional characteristics mentioned here?

6.

The specificati on in a deed of the causes whereby the act may be revoked by the donor indicates that the donation is inter vivos, rather than a disposition mortis causa; That the designati on of the donatio n is mortis causa, or a provision in the deed to the effect that the donation is “to take effect at the death of the donor” are not controlling criteria; such statements are to be construed together with the rest of the instrument, in o rder to give effect to the real intent of t he transferor; and That in case of doubt, the conveyance should be deemed donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership of the property subject of the deed.

Q: So applying that to the case? A: First, Rodrigo here stipulated that “if the herein donee predeceases me, the same land will not be reverted to the donor, but will be inherited by the heirs.” This signals the irrevocability of the donation. Second, Rodrigo also reserved herself beneficial title to the property. So she parted with the naked ownership of the property. Lastly, there was a phrase that this was done in consideration of the donor’s love and affection, which corroborates with the fact that this was a donation inter vivos. If you compare that with the case of Ganuelas, the SC said that such phrase is irrelevant to determine whether or not the transfer is inter vivos because both donation and succession are founded upon the same consideration. But here, the SC said that it corroborates the intention that it is really a donation inter vivos . Q: What else? A: The court basically said that based on those three mentioned, it can be said that the donation was inter vivos. Also, there are certain terms used in the deed. Q: How about the phrase “that ownership be vested on her upon my demise”? Can you not consider it as indicative of a mortis causa disposition?

A: The other aspects of the Deed of Donation should also be taken account. Q: So what could that phrase mean? A: It could mean that upon her demise, the full ownership would be given or transferred since she reserved for herself the beneficial right. She retained the beneficial right, the usufruct, but she gave the naked ownership to the donee. So this should only refer to the beneficial ownership, that it should only vest upon her death to the donee. Q: How about the fact that the donee, after the Deed of Donation, sold the property? Would it not show the intention of the donor to really consider it a donation mortis causa? A: No, even if they say that they bought the property from Rodrigo. So the court said that given that, for them to acquire the property, they had to be possessors in good faith in order for them to acquire just title. Here, they could not be held to be in good faith since they knew that Rodriguez, the donee, was already in possession of the property In other cases actually, when the donor after the execution of the Deed of Donation, transfers the property to some other



person, that could be indicative that he really intended that donation to just be a donation mortis causa. When you say mortis causa, it can be revoked anytime by the donor. So even after she already executed the Dee d of Donation, it really being in the nature of a donation mortis causa, she could sell the property subsequently and that sale would now render ineffective that donation mortis causa . Q: Was this applied in this case? A: No, it was already held that this was a donation inter vivos to immediately take effect during the lifetime of the donee so ownership has already vested with the donee. Q: What did the SC say here about that sale, that postdonation transfer? A: Rodrigo’s post-donation sale of the p roperty vested no title to Vere. Vere acquired no better right than him. Rodrigo cannot afterwards revoke the donation nor dispose the said property. So the post-donation sale had no effect. In fact it was criticized by the SC because according to them, the donor could not capitalize on the post-donation transfer of the property as proof of her intention of ownership. If such was the barometer in interpreting deeds of donation, not only will great legal uncertainty be visited on gratuitous dispositions, this will give license to rogue p roperty owners to set at naught perfected transfers of title, which, while founded on liberality, is a valid mode of passing ownership. The interest of settled property dispositions counsels against licensing such practice. In effect, you already donated the property, why did you sell the property subsequently? You are in bad faith, that is what the SC is in effect saying. Here, it was really a donation inter vivos. Q: In case of doubt what is the rule? Why? A: In case of doubt it is a donation inter vivos. In donations inter vivos, then there is certainty as to the ownership of property unlike in donations mortis causa . In donations mortis causa, even if there is already a will, you are not sure until the testator is dead because the will is essentially revocable.

are transmitted through his death to another or others either by his will or by operation of law. Please remember this definition. It gives us the elements of succession: 1. It is a mode of acquisition. Meaning, it is actually one of the different modes wherein ownership is transferred from one person to another. Remember Article 712 in your Law on Property: Art ic le 712. Ownership is acquired by occupation and by

intellectual creation. Ownership and other real rights over property are acquired and transmitted by law, by donation, by testate and intestate succession, and in consequence of certain contracts, by tradition. They may also be acquired by means of prescription. These are the different modes of acquiring ownership: 1. Original mode – there is no prior owner such as intellectual creation (you compose a song or a poem and have it copyrighted; copyright is property and in this case it is an original mode). Occupation is also an original mode since there is no prior owner. 2. Derivative mode – like succession, donation, there is a first or prior owner then by such means of succession, donation, or tradition like in sale, ownership is transferred by one person to another. So, succession is a derivative mode of acquiring ownership. [Only the first element was discussed.]

Elements of succession: [from Mison] 1. 2. 3.

June 23, 2016 (K.J.Du)

Recap: We already discussed the distinctions between donation or succession inter vivos and donation or succession mortis causa. To emphasize, it is very important to know the distinction because these different modes of transfer have different formalities. There are formal requirements wherein if you fail to follow the specific requirement for transfer, such as a donation, then the donation will be void. The same with wills. In the cases of Ganuelas and Villanueva, the SC explained the distinguishing characteristics of donation or succession mortis causa. Remember those very important distinguishing characteristics because that will guide you to determine whether or not a specific transfer is inter vivos or mortis causa .

Chapter 1: General Provisions Ar ti cl e 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

A mode of acquiring ownership as enumerated in

Article 712 of the Civil Code

4. 5.

It is a gratuitous transmission , sometimes referred to as a donation mortis causa It is a transmission of property, rights and obligations to another to the extent of the value of the inheritance The transmi ssion of property, rights, and obligations is by virtue of death The transmission occurs either by will or by operation of law

Ar tic le 775. In this Title, "decedent" is the general term

applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. The term “decedent” is applied if he or she is the person who

died and who left properties. If he left a will then he is called a testator, but he may also be called a decedent. If he did not leave a will he is called a decedent. Decedent is the general term.

Ar tic le 776. The inheritance includes all the property,

rights and obligations of a person which are not extinguished by his death.



Article 776 defines what inheritance is. Inheritance – it includes all property, rights and obligations of a

Q: What if you have 10 sacks of shabu in your warehouse, can you give that by will to your heirs? A: No, it is considered as illegal property.

person which are not extinguished by his death So, the subjects of succession, the ones which are transferred by death, by succession, are the properties, rights and obligations. You should be able to distinguish succession from inheritance: Succession

Under Article 774 It is the mode of acquisition of these properties, rights and obligations

Inheritance

Under Article 776 We are talking about the properties, rights and obligations themselves which are transferred by succession

We have these subjects of succession: I. Properties

Remember, for a property to be transmissible by succession, the property: 1. 2. 3.

Must be capable of approp riation Must be within the commerce of man; it must not be res nullus or res communes Must not be prohibited by law

So these are the requirements for property to be considered as proper subjects of succession. Q: We mentioned that as a general rule, the human body cannot be transferred by succession since it is not capable o f appropriation. Is there an exception? A: Yes, under the Organ Donation Act of 1991. In this act, a person may donate his organs when he dies to a specific recipient and in this case the organs may be considered as property to be transferred to another.

Q: What are the different kinds of properties that may be transferred by succession? What are these properties which you studied in your Property? A: We have real properties or immovable and personal properties or movables.

Q: Is donation the only mode? A: You can also transfer it by will.

Q: What else? Aside from the classification of real and personal? A: We also have intangible properties.

Again, as a general rule, the organs of the human body or parts thereof cannot be transferred by succession. These are the exceptions:

Intangible or incorporeal properties are those created b y legal fiction. They are those that have no physical existence but in legal contemplation may exist. Ex. Patent, copyright, franchise, goodwill Q: Can the human body be considered as property? A: Generally, no since it cannot be appropriated like other property. GR: The human body is not considered as property because it is incapable of appropriation. So you cannot sell your eyes, kidney, heart, brain, as a general rule.

So it is not only limited by donation but also by will or succession.

R.A. No. 7170 or the “Organ Donation Act of 1991” Section 6. Persons Who May Become Legatees or Donees. –

The following persons may become legatees or donees of human bodies or parts thereof for any of the purposes stated hereunder: (a) Any hospital, physician or surgeon - For medical or dental education, research, advancement of medical or dental science, therapy or transplantation;

Q: What do you mean by res nullus? A: It is not owned by anyone.

(b) Any accredited medical or dental school, college or university - For education, research, advancement of medical or dental science, or therapy;

Q: Can you give an example? A: The sun, stars, or the air

(c) Any organ bank storage facility - For medical or dental education, research, therapy, or transplantation; and

Q: How about the fishes while they are still in the ocean? A: They are still res nullus, they are not owned by anyone. While they are swimming in the ocean, you cannot sell them. But once caught, you can sell them.

(d) Any specified individual - For therapy or transplantation needed by him.

Q: How about res communes? A: Those properties which are considered to be owned by anyone. Ex. Public parks, municipal plazas, streets, sites Q: Can you transfer properties which are considered as res communes or res nullus ? A: No, you cannot transfer these by succession since they are not considered as illicit property which is the subject of succession.

Section 8. Manner of Executing a Legacy . –

(a) Legacy of all or part of the human b ody under Section 3 hereof may be made by will. The legacy becomes effective upon the death of the testator without waiting for probate of the will. If the will is not probated, or if it is declared invalid for testamentary purposes, the legacy, to the extent that it was executed in good faith, is nevertheless valid and effective. (b) A legacy of all or part of the h uman body under Section 3 hereof may also be made in any document other than a will. The legacy becomes effective upon death of the testator and shall be respected by and binding upon his executor or



administrator, heirs, assigns, successors-in-interest and all members of the family. The document, which may be a card or any paper designed to be carried on a person, must be signed by the testator in the presence of two witnesses who must sign the document in his pre sence. If the testator cannot sign, the document may be signed for him at his discretion and in his presence, in the presence of two witnesses who must, likewise, sign the document in the presence of the testator. Delivery of the document of legacy during the testator's lifetime is not necessary to make the legacy valid. (c) The legacy may be made to a specified legatee or without specifying a legatee. If the legacy is made to a specified legatee who is not available at the time and place of the testator's death, the attending physician or surgeon, in the absence of any expressed indication that the testator desired otherwise, may accept the legacy as legatee. If the legacy does not specify a legatee, the l egacy may be accepted by the attending physician or surgeon as legatee upon or following the testator's death. The physician who becomes a legatee under this subsection shall not participate in the procedures for removing or transplanting a part or parts of the body of the decedent. (d) The testator may designate in his will, card or other document, the surgeon or physician who will carry out the appropriate procedures. In the absence of a designation, or if the designee is not available, the legatee or other persons authorized to accept the legacy may authorize any surgeon or physician for the purpose. Take note of Section 6 on who may be legatees or donees. When you say legatees, these are the recipients by virtue of a will; and donees, those by donation. Under Section 6, these are the only acceptable purposes and only for these recipients. You cannot leave a will and leave your boyfriend or girlfriend your heart placed in a jar as your memory.

If an organ like a heart or kidney is given by will, do we have to wait for the probate of the will before the grant of the organ be effective? The law says no. The legacy becomes effective upon the death of the testator without waiting for the probate of the will (Section 8(a)). This is because probate proceedings take time. If there is an opposition, 10 years is already a short period. What will happen to the intended recipient? Therefore, prior probate is not required if the subject is an organ to be given for these purposes. That is one exception. Under the law on succession also, if the will turns out to be void, any legacy provided for in that will cannot be given effect. Because a legacy exists only in testamentary succession. Testamentary succession presupposes a valid will. If the will is declared void, then legal succession shall follow. What if you donated your heart and the will turns ou t to be void. Will the will for the legacy of the heart also be void? Under Section 8(a): If the will is not probated, or if it is declared invalid for testamentary purposes, the legacy, to the extent that it was executed in good faith, is nevertheless valid and effective. Under the Organ Donation Act, even if the will is not probated or even if the will turns out to be void, still, for as long as the legacy is made in good faith, it is valid, it can be given effect. Another requirement: 4.

As a general rule, the property that you are giving away by succession should be your own pr operty .

You cannot give what you do not own. There are also exceptions. [Exceptions not discussed].

As to the manner by which the organs of the human body or parts thereof may be transferred by succession, you exhibit a will. The grant is called a legacy.

II. Right s

Legacy – it is a gift of specific personal or movable property

Rights can also be transferred by succession as long as these rights are transmissible rights. They are those which are not extinguished by death, which survive the death of the decedent.

So when you give your heart of kidney by will, it is a legacy. It should be in a will or in a written donation under Section 8(a).

What are these transmissible rights?

Under the law on succession, when property is left by will, it is mandatory that the will should first pass probate. Probate – it is a special proceeding intended to determine the

genuineness and due execution of the will During probate, the will shall be submitted to the court and there will be witnesses who will testify as to the will and the court will examine whether the will is genuine or not forged, whether it was executed without the presence of vitiated consent, whether the formalities prescribed by law have been followed, whether it has not been revoked. So if these questions have been answered and the will is determined to be valid, then the will is said to be allowed probate. Even if you are given 1 million or a parcel of land in the will, that grant is not yet effective until the will is probated. The will without having passed probate cannot be the source or foundation of any right. That is the principle.

A.

Patrimonial rights

GR: Patrimonial rights are transmissible. These are rights which pertain to properties. They can be transferred by succession. Examples of patrimonial rights: 1.

Contract of lease

What is there in a contract of lease? The lessor who is the owner of the property leases the property to the lessee. What are the rights involved in that contract? The lessor has the right to demand lease rentals. The lessee also, as long as he pays the lease rentals, has the right to remain in peaceful possession of the leased premises. What if the lessor dies, will the lease contract be extinguished? Can his heirs still collect rentals from the lessee? Or what if the lessee dies, can the heirs of the lessee still continue possession



of the property? Is there a transmission of the rights of the lessor or lessee? Yes, as a general rule in a contract. Contractual rights are generally transmissible. So there, even if the lessor dies, his heirs can collect lease rentals; and if the lessee dies, as long as the heirs continue paying the rentals, they can enjoy the property, they still have the right to possess the property peacefully. 2.

insurance, if anything happens to Dr. Leuterio, Grepalife would pay DBP, the mortgagee, so that the debt would be settled. That should have been the arrangement. But because Grepalife did not pa y DBP, DBP foreclosed the mortgage. So eventually it was the estate of Dr. Leuterio which was affected. Naturally, the heirs can file a suit against Grepalife because they have an interest. They stepped into the shoes of their predecessor, the decedent Dr. Leuterio.

The righ t to insur ance

Great Pacific Life vs. CA (GR 113899 | Oct. 13, 1999)

Facts: A contract of Group Life Insurance was executed between Grepalife and DBP. Dr. Leuterio, applies for an insurance contract from Grepalife which was approved. Q: What is the purpose of that contract of insurance? A: In that the mortgagors would die during the pendency of the contract the insurance proceeds would answer for the mortgage debt. Later, Dr. Leuterio died during the pendency of the mortgage contract. DBP now asked from Grepalife the insurance proceeds to pay for the mortgage debt. However, Grepalife declined to give the insurance proceeds since according to them, Dr. Leuterio concealed his true state of health. The wife of Dr. Leuterio then filed a complaint for specific performance with damages against Grepalife. The RTC ruled in favor of Leuterio. However, there is an allegation of Grepalife that the widow cannot ask for the insurance proceeds because she is not a party in interest since she was not a party to the insurance contract entered into with Grepalife. Q: Who are the parties in the Group Life Insurance contract? A: Grepalife and DBP (there is another insurance contract entered into by Dr. Leuterio). It was Dr. Leuterio who applied for membership in that Group Life Insurance. Issue: WON the widow can receive the insurance proceeds Ruling: Yes, the widow can receive the insurance proceeds. Although it appears in the contract that the one who will receive the insurance proceeds, the designated payee, is DBP, the SC held that in a policy of life insurance upon life or health, it may pass by transfer of will or succession to any person whether he has an insurable interest or not. In this case, DBP actually has the right to receive the insurance proceeds. But under the facts of the case, it appears that after Grepalife declined to give the insurance proceeds to DBP, the DBP foreclosed the mortgaged lot. Since the insurance proceeds should be given, the one who should receive the insurance proceeds is the widow since DBP already foreclosed the lots mortgages. So, the rights in a contract of insurance are transmissible to the heirs. Take note here that supposedly under a contract of Group Life Insurance like this, it was in the nature of a Mortgage Redemption Insurance (MRI). Dr. Leuterio borrowed money from DBP, a housing loan. As a collateral for that loan, he mortgaged his house. But under the

Remember, the SC said that whether he has an insurable interest or not, a policy of insurance upon life or health may pass by transfer, will or succession to any person and such person may recover whatever the insured might have recovered. Dr. Leuterio was the debtor, and when he died his r ights under that insurance were transferred to his heirs. 3.

A right to file an action for forcible entry or unlawful detainer

If you are the owner of a land and somebody entered it by force, intimidation, strategy or stealth, that is a case for forcible entry. But before you filed the case or during the pendency of the action you died, then that action can be instituted by your heirs. The same for unlawful detainer 4. An ac ti on by h eir s to com pel t he execu tion of a public document under Article 1357 of the Civil Code: Art ic le 1357. If the law requires a document or other special

form, as in the acts and contracts enumerated in the following article, the contracting parties may compel each other to observe that form, once the contract has been perfected. This right may be exercised simultaneously with the action upon the contract. These are the contracts where form is required but merely for convenience. For example, you have the sale of a parcel of land. It is in a private document, it is not notarized. As buyer, you would like the property now to be transferred to your name so you go to the ROD. You show your Deed of Sale. The ROD cannot honor that private Deed of Sale. The ROD would require a notarized Deed of Sale. But the seller no longer wants to go to the notary public and have it notarized. [In reality, there are notaries who sign even if the parties do not go to them. But if it is an honest to goodness transaction, the notary public will not notarize unless such person or seller is in his presence.]

What should the buyer do? He can file an action. Also, if there is still no delivery of the land by the seller to the buyer, he can file an action for specific performance and in that same action, pray that the prior public instrument be executed. That right can also be transmitted. If the buyer dies then his right to file such an action can pass on to his heirs. 5.

Action to recover possession (accion publiciana)

What is the difference between an action to recover possession and an action for forcible entry and unlawful detainer? There are certain requisites for the filing of forcible entry. It must be within 1 year from forcible entry, from the discovery of the



stealth, etc. For unlawful detainer, also within 1 year from the date of last demand.

(2) by their nature; or (3) by provision of law.

If you will exceed then you can still recover but not under the law of forcible entry or unlawful detainer. An action to recover possession, that can also be filed. The right to file such an action can be passed on to the heirs.

In this particular lease contract, not only were there no stipulations prohibiting any transmission of rights, but its very terms and conditions explicitly provided for the transmission of the rights of the lessor and lessee to their respective heirs and successors.

6.

Right to enforce civil liability arising from a crime

If you are a victim of theft, then you have the right to recover the civil liability arising from the crime. If you die, then your heirs may also continue the action. 7.

Right to recover from tort or negligence

The same thing, if the victim dies whether before filing the action or during the pendency of the action, his rights may be transferred to his heirs. If he dies during the pendency of the action, there will be substitution of parties in that case. You apply your Rules in Civil Procedure as to the substitution of the parties. Again, the general rules is that patrimonial rights are generally not extinguished by death. They are transferred to the heirs by succession, either by will or by operation of law. There are also rights which, even if they are patrimonial, they are extinguished upon the death of the decedent. These are the exceptions. Exceptions: 1.

When there is a stipu lation in the contr act

GR: Contractual rights are transmissible. But if there is a stipulation in the contract that upon the death of the lessor or lessee the contract of lease is extinguished, here, there is no transmission. Inocencio vs. Hospicio de San Jose (GR 201787 | Sept. 25, 2003)

Here, a contract of lease was also the subject and there is a stipulation under Section 6: This contract is non-transferrable unless prior consent of the lessor is obtained in writing. This is the stipulation in controversy. Because what is the effect if the lessee, for example, dies? Here, the lessor contended that upon the death of the lessee, the contract was already extinguished because of Section 6 which says that the contract is non-transferrable unless prior consent of the lessor is obtained in writing. So the lessor said that they did not consent that the lease contract be now transferred to the heirs. So, upon the death of the lessee, the lease contract is already extinguished. The SC said that the general rule is that lease contracts survive the death of the parties and continue to bind the heirs except if the contract states otherwise. A lease contract is not essentially personal in character thus the rights and obligation therein are transmissible to the heirs, except when the rights and obligations are not transmissible: (1) by stipulation;

The death of a party does not excuse non-performance of a contract which involves a property right. And the rights and obligations thereunder pass to the successors or representative of the deceased. How about that provision in Section 6? Is it not a prohibition for the transmission of rights? The SC said no. Again, as a general rule lease contracts involve rights and obligations which are transferrable. What Section 6 seeks to avoid is for the lessee to substitute a third party in place of the lessee wit hout the lessor’s consent. This refers to transfers inter vivos and not to transmissions mortis causa. This cannot be construed to refer to transfers mortis causa because as a general rule, rights under a contract are transmissible. If your intention is to really end the contract upon the death of either party, you have to make it really clear. Such as stating that the death of either the lessor or the lessee extinguished the contract. Without mention of death, the SC said that this should only refer to transfers inter vivos and not mortis causa . 2.

Usufruct

Usually when you say usufruct that involves use of property. But under Article 603 of the Civil Code, when either party in a contract of usufruct dies, the usufruct is extinguished, unless otherwise stipulated. Art ic le 603. Usufruct is extinguished:

(1) By the death of the usufructuary, unless a contrary intention clearly appears; (2) By the expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct; (3) By merger of the usufruct and ownership in the same person; (4) By renunciation of the usufructuary; (5) By the total loss of the thing in usufruct; (6) By the termination of the right of the person constituting the usufruct; (7) By prescription. 3. Agenc y under Article 1919 of the Civil Code: Art ic le 1919. Agency is extinguished:

(1) By its revocation; (2) By the withdrawal of the agent; (3) By the death, civil interdiction, insanity or insolvency of the principal or of the agent; (4) By the dissolution of the firm or corporation which entrusted or accepted the agency; (5) By the accomplishment of the object or purpose of the agency;



(6) By the expiration of the period for which the agency was constituted. Ordinarily, in a contract of agency, the death of either the principal or the agent extinguished the agency, unless while it is an agency coupled with an interest. [This is discussed under BusOrg I]

4.

Tenancy under R.A. No. 3844

When you have an agricultural tenant in your land, the death of the tenant or the death of the owner does not extinguish the tenancy. If the tenant dies, he will be succeeded by his heirs in his right. The landowner will choose which of the heirs will succeed in the tenancy. 5.

Right to become a partner in a partnership under

Article 1830 of the Civil Code:

For example, you are paying premiums now and then after 5 years if you survive then you will continue receiving annuities. If you die, the annuity will also stop because it is based on the existence of the person entitled to r eceive the annuity. Even if it is patrimonial, it is not transmitted to the heirs. 7.

The righ t to revoke a donatio n by reason of ingratitude

(Even if this is a patrimonial right because this relates to a property) This right pertains only to the donor, it cannot be exercised by the heirs. Commodatum under Article 1939:

Art ic le 1939. Commodatum is purely personal in character.

(1) Without violation of the agreement between the partners: (a) By the termination of the definite term or particular undertaking specified in the agreement; (b) By the express will of any partner, who must act in good faith, when no definite term or particular is specified; (c) By the express will of all the partners who have not assigned their interests or suffered them to be charged for their separate debts, either before or after the termination of any specified term or particular undertaking; (d) By the expulsion of any partner from the business bona fide in accordance with such a power conferred by the agreement between the partners; (2) In contravention of the agreement between the partners, where the circumstances do not permit a dissolution under any other provision of this article, by the express will of any partner at any time; (3) By any event which makes it unlawful for the business of the partnership to be carried on or for the members to carry it on in partnership; (4) When a specific thing which a partner had promised to contribute to the partnership, perishes before the delivery; in any case by the loss of the thing, when the partner who contributed it having reserved the ownership thereof, has only transferred to the partnership the use or enjoyment of the same; but the partnership shall not be dissolved by the loss of the thing when it occurs after the partnership has acquired the ownership thereof; (5) By the death of any partner; (6) By the insolvency of any partner or of the partnership; (7) By the civil interdiction of any partner; (8) By decree of court under the following article. The death of a partner extinguishes or terminates the partnership. If A is a partner and his partners are B, C and D. If A dies, his child cannot succeed him in his right to become a partner because partnership is based on mutual trust and confidence. The heir of the partner may not necessarily enjoy the same trust and confidence from the other partners. The right to annuity under Article 2027 of the Civil

Code:

proving the existence of the person upon whose life the annuity is constituted.

8.

Arti cle 1830. Dissolution is caused:

6.

Art ic le 2027. No annuity shall be claimed without first

Consequently: (1) The death of either the bailor or the bailee extinguishes the contract; (2) The bailee can neither lend nor lease the object of the contract to a third person. However, the members of the bailee's household may make use of the thing loaned, unless there is a stipulation to the contrary, or unless the nature of the thing forbids such use. Because commodatum is purely personal in character. So the death of either the bailor or the bailee extinguishes the contract. 9.

In case of a gratuitous deposit under Article 1995 of

the Civil Code: Art ic le 1995. A deposit its extinguished:

(1) Upon the loss or destruction of the thing deposited; (2) In case of a gratuitous deposit, upon the death of either the depositor or the depositary. In case of a gratuitous deposit, it is extinguished upon the death of either the depositor or the depositary. So those are examples of patrimonial rights which are extinguished. Those are exceptions to the general rule. B.

Purely personal rights

When it comes to purely personal rights, the rule is that they are extinguished upon the death of the decedent. Purely personal rights cannot be transmitted to the heirs, they do not survive the decedent. GR: Purely personal rights are not transmissible. Examples: 1.

Parental authori ty

If the parents die, there is substitute parental authority but it is not by inheritance, it is provided for by law. 2. 3. 4.

Marital rights relating to persons or property Actio ns for legal separation Right to receive supp ort



5. 6.

Right to vote Guardianship

Absolute Sale by sending a check covering the amount. However, his request letters were unheeded.

These are examples of purely personal rights which do not survive the decedent. Upon his death, if he is entitled to support in his lifetime, his right is extinguished. His heirs cannot demand support. It cannot be transmitted. 7.

Teodoro then also sold one of the lots previously sold to Benito to Teresita Loy. Subsequently, he also sold the lot to Alfredo Loy. Teodoro died during the pendency of the proceedings. Milagros Vano succeeded as administratix of the Jose Vano Estate.

Right to hold public office

How about the right to hold public office? Issue: Which of the two contracts should prevail? For example, if a governor dies, will his children inherit? Of course not. There is another law on succession under the Local Government Code, not under this subject. Public office is a public trust. You cannot give it away just like any other property or right. In fact, it is just a privilege. III.

Q: Which 2 contracts are you referring to? A: The Contract to Sell between Teodoro and Benito Liu made during the lifetime of Jose and the Contract of Sale between Teodoro and the spouses Loy . Ruling: The Contract to Sell between Teodoro and Frank Liu should prevail.

Obligations

GR: Obligations are transmissible. Purely personal obligations are not transmissible. Just like rights, obligations are also transmitted to the heirs. Take note however that there is a limitation: Insofar as obligations are concerned, the transmission is only up to the extent of the value of the inheritance. If your parents left properties amounting to 10 million and they also left debt amounting to 12 million, what will happen is that you will be compelled to pay the debt because you inherited the debts, but only up to 10 million. In short, you will not receive anything because the assets that you receive will be paid for the debts. In fact, the rule is that prior to the distribution of the estate to the heirs, the debts and taxes should be paid first. How about the remaining 2 million? Who will pay for that? No more. Here, the heirs cannot be made personally liable for the debts of the decedent. [So if you are a creditor and you have a debtor whom you feel will already die and he offers to pay, then you might as well accept it especially if he still has a lot of other creditors. Because you cannot run after the heirs more than the value of their inheritance, especially if he has no properties. That is with respect to the obligation.]

Liu vs. Loy (GR 145982 | Sept. 13, 2004)

Facts: Jose Vano, the decedent, entered into a Contract to Sell 5 parcels of land thru his son and attorney-in-fact Teodoro, with Benito Liu. Benito Liu made a deposit of 1,000 and undertook to pay the balance in installments. Jose Vano passed away. Benito Liu continued to make payments until he discovered that Teodoro is unable to make the transfer of the title to Benito. In 1954, the SC pronounced Jose’s will valid. Teodoro

The SC held that while a Contract of Sale has greater force and effect than a Contract to Sell, the heirs of Vano should respect the Contract to Sell entered into between Teodoro and Frank Liu. The SC also ruled that a prior Contract to Sell made by the decedent prevails over the subsequent Contract of Sale made by the administrator without probate court approval. The administrator cannot unilaterally cancel a Contract to Sell made during his lifetime. It is immaterial if the previous contracts is a mere Contract to Sell and does not immediately convey ownership. Q: What is there in a Contract to Sell? A: There is no transfer of ownership until you pay the purchase price in full. Q: What is the obligation of the seller? A: It is to transfer the title or to execute a Deed of Sale in favor of the buyer upon the fulfillment of the obligation of the buyer. Here, even if it was just a Contract to Sell, nevertheless, it gave rise to an obligation on the part of the seller that when the condition is fulfilled then he is bound to execute the proper Deed of Sale and to convey the property subject of the sale to the buyer. So that obligation upon his death was transmitted to his heirs. His heirs cannot disregard that contract by entering into another contract after the death of the decedent, even if that contract is a Contract of Sale. Because again, they are bound by the prior obligation entered into by their predecessor. Alvarez vs. IAC (GR 68053 | May 7, 1990)

informed Frank Liu that he can now transfer the title upon the payment of the balance of 1,000. It appears that in 1996, Benito sold to Frank Liu the lot sold to him with Frank assuming the balance.

Facts: The real properties involved here are 2 parcels of land owned by Mr. Anecito Yanes who was survived by his heirs Rufino, Felipe and Teodora. The private respondents are the children of Rufino and Felipe.

9 years later, Frank responded that he was willing to pay the balance of 1,000 and requested the execution of the Deed of

The Yaneses filed an ex part motion of the issuance of an alias writ of execution. Siason opposed it. Q: What is the case filed by the Yaneses?



A: A civil case for recovery of possession of real property with damages

consideration of its performance by a specific person and by no other.

Q: Against whom? A: Against Siason, Laura, Flora, Alvarez, and the ROD.

Q: Can you explain that? What do you understand by that?

Q: Why was Siason included in the case? A: Because Alvarez sold the 2 lots and another lot to Siason. Siason succeeded in declaring the 2 lots in his name for assessment purposes. [Just limit your discussion to the topic in Succession. Do not include matters which are not relevant. How did the claims or how did that controversy arise?]

Q: Yaneses filed a case against Alvarez. Alvarez sold the lots to Siason, that is why he was included. After he sold the lots to Siason what happened to Alvarez? A: He died. Q: What happened to the case against Alvarez? Was it decided? Did the Yaneses win or lose? A: The Yaneses won the case. Q: How about against Alvarez, what was the ruling of the court? A: In that case, the court adjudged the case in favor of the Yaneses. The court ordered Alvarez to return the properties to the Yaneses or to pay the monetary value of the properties. You said that Alvarez already died. Can the court order that the heirs of Alvarez pay the monetary value of the property when in fact they did not receive the property because during the pendency of the case Alvarez died. So, at the time the case was decided, he died already and his heirs did not receive the property subject of the case as it was already sold before to Siason. Q: Can the heirs of Alvarez be ordered to pay the monetary value of the property when in fact they did not receive the property? A: Yes, they cannot escape the legal transaction contracted by their father. It transmits to them, the obligation. Q: How about the fact that they did not receive the property, that such property never formed part of the estate of their father? A: It is of no moment since the proceeds of the sale became part of the estate. It devolved into the mass of the her editary estate of their father. Even if they did not receive that property but it was sold, so there must be proceeds and that proceeds formed part of the estate, and the estate was inherited by the heirs. Q: But what is the limitation of this liability of the heirs? A: The heirs may only be liable to the extent of their share in the estate. It is only up to what they inherited. Q: What about the progressive depersonalization of patrimonial rights and duties? What do you mean by that? What did the SC discuss? A: It is a Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuit personae, in

When you say “from a relation from person to person, the obligation has evolved into a relation from p atrimony to patrimony, with the persons occupying only a representative position,” how do you explain that? Expound.

A: For example, if you have a debt and if your heir will represent you, the representation is transmitted to your heir so he will also be liable for it. With respect to properties, if there are rights and obligations attached to the property, and whoever is the new owner of that property, also assumes the rights and obligations of that property. So if you are the owner and you have properties a nd then you die, that does not mean that the rights and obligations die with you. Because again, the relation is not from person to person but from patrimony to patrimony. If you are still alive and you are the owner of that pr operty, then you have the rights and obligations pertaining to that property. If you die, whoever succeeds you in that property, also assumes the rights and obligations with respect to that property. In our jurisdiction, the person merely occupies a representative position. If he dies, he loses his representation but he is succeeded by another. And again, that who succeeds has the corresponding right and obligations pertaining to the property which he now owns. So that is the meaning of the progressive depersonalization of patrimonial rights and duties. Meaning, it has now been depersonalized, it is no longer with re spect to the person but with the patrimony. Genato vs. Baylon (GR 171035 | Aug. 24, 2009)

The SC also mentioned here that same concept of depersonalization of patrimonial rights and duties. This also refers to a loan obligation which is subject to a mortgage. The SC said that the obligations of the decedent were transmitted to the heirs. Here, during the pendency of the case, the mortgagor died. So does the death of the mortgagor extinguish the claims? No, because his obligations are transmitted to his heirs who now succeed him in the property which is the subject of the mortgage. But what is the effect of his death? There will be substitution of heirs. The rule here for the substitution is discussed under Section 20 of Rule 3 of the Rules of Court: Section 20. Action and contractual money claims . —

When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall n ot be dismissed but shall instead be allowed to continue until



entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person. So, the case will be continued, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment, because there was already a pending case. A favorable decision or judgement obtained by the plaintiff shall be enforced in the manner provided in the rules for prosecuting claims against the estate of a deceased person. [You don’t have your Special Proceedings yet?]

What will happen? If there is already a pending case for collection of sum of money or foreclosure of mortgage and then the defendant dies? Pursuant to the principle that his obligations are transmitted to his heirs, so the case will not be dismissed but it will be continued but the heirs will now substitute him.

So you have been convicted and sentenced to be imprisoned for 10 years but you died in your fifth year, can your children be compelled to serve the remaining sentence? No, because criminal liability is personal. 6.

The obli gation to pay taxes

Whose obligation is that? With respect to taxes and debts, there are two views on the matter: 1. First view: It is not passed on to the heirs. Why? Because prior to the distribution to the heirs, the taxes and debts will be settled first so the heirs will only receive the residue. 2.

Second view: That obligation is passed on to the heirs because the payment of the debts and the taxes will diminish the shares that will be distributed to the heirs. So ultimately, the burden of the taxes and the debts are shouldered by the heirs because of their reduced shares.

This is also discussed in the case of Alvarez. If there is already a judgment in the case, what will happen? The favorable judgment shall be presented in the settlement of the estate of the deceased person, whether testate (there is a will) or intestate (there is no will). That d ecision you will present that in the intestate or testate court as a claim against the estate. So all claims against the estate will be prosecuted in that same proceeding for the settlement of the estate of the deceased person. That is under your Special Proceedings. It is not like an ordinary civil action because under an ordinary civil action, if there is a final decision, the debtor, if he is still alive, will be ordered to pay. If he does not pay, a motion for execution will be filed by the prevailing party. The court will issue a writ of execution. The sheriff will go to the debtor and demand from him the payment. If he does not pay, then his properties will be levied upon in execution. That is if he is alive. If he is dead then there is a different procedure- the judgment will be presented in the settlement of the estate of the deceased person. So that was also discussed in this case. Purely personal rights and obligations, as we have discussed, are not transmitted upon the death of the decedent. They are extinguished. So what are these purely personal obligations? 1. 2. 3.

Parental obli gations Marital obli gations Contracted to do a piece of wor k

Ex. You have been contracted to paint a portrait of A but you were not able to finish it because you died. Can your children be compelled to finish the painting? No because that obligation is also p urely personal. It takes into account the qualifications of the painter. It cannot be assumed by the heirs of the painter. 4.

Obligation to give or pay support

If the person obliged to give support dies, that cannot be passed on to his heirs. 5.

Crimin al liabili ty

The second view is the prevailing view. Debts and taxes are assumed, are obligations which are transmitted to the heirs. But again, the liability of the heirs would only be up to the extent of the value of their inheritance. They cannot be held liable for more than their share.

Ar tic le 777. The rights to the succession are

transmitted from the moment of the death of the decedent. The law says death is the operative fact which gives rise to succession. Actually, this should be read as: The rights of the succession are “made effective” from the moment of the death of the decedent. Because you do not transmit you r ights to the succession. Your rights you can transmit but your rights to the succession are not transmitted. The rights to the succession pertains to the heirs themselves. So that right is made effective upon the death of the decedent. So it is death that operates to transfer properties by succession. GR: Without death, there can be no succession. So while the decedent is alive, what rights do the heirs have over his properties? Example: You parents are billionaires. Can you claim any right to a property? If your parents will like to sell their properties, can you question the sale? If they donate can you impugn the donation? Or can you yourself sell their properties on the expectation that you will be the only heir? No. Without death, the rights of the heir will only be an inchoate right, a mere expectancy. So even if your parents would like to sell their properties or if they like to donate, you cannot question that. There is the concept of inofficious donation in succession, you cannot give by donation more than what you can give by way of support, because you are obliged also to retain property for your support and for your children.



There is also a concept of inofficious donation wherein you cannot give away something which will pre judice the legitimes of your compulsory heirs. Compulsory heirs, like children, they are reserved a legitime under the law. This means that they have a minimum share which they will receive upon the death of the decedent. For children, one-half of the estate is reserved for them. Ex. If the father donated several of his properties worth 8 million out of his 10 million estate. Then he died so he had in his estate the 2 million. Under the law on succession, that 8 million will be collated, meaning it will be returned to the estate. 2 million + 8 million is 10 million. That will serve as the basis of the legitime of the children, so it will be 5 million, one-half of the estate. So if there will only be 2 million left, that donation is now inofficious because it prejudices the legitimes of the compulsory heirs. To prevent the circumvention on the law on legitimes, that is why there is a need for collation because there are instances when a decedent does not want to give to an heir or a child, so he will disinherit such heir (because he is ugly? That is not a ground for disinheritance) and just donate the property so the heir will not receive anything. So again, we have collation. Can the children say that the donation is inofficious and question it because it prejudices his legitime? Still, you cannot do that during the lifetime of your parents. Why? You do not even know if you will survive your parents. What if you die ahead? You will not have any legitime. So that is why any disposition or any alienation made by the predecessor during his lifetime cannot be questioned by the successors. They only have an expectancy or an inchoate right. It is only when one dies when you can question the sale or the donation. Upon death, it is when the right of the heirs become vested. That is the effect of death. June 27, 2016 (K.J.Du)

lifetime. The buyer Felipe, on his part, contested that the sale was already effective. Q: When did the sale happen? When did the buyers acquire possession of the property? A: It happened on 1951, before the death of Felipe. Q: When did Felipe die? A: On April 26, 1959 Q: In that case, what was the contention of the defendants Felipe? A: First, that when the right was transmitted, prescription already started counting. Second, that the children of Aldon has no legal standing given that they do not have the right over the properties so they cannot sue for a complaint to recover ownership of properties. Q: So how did the SC resolve the case? A: The SC said first that prescription will not operate in this case because the death of Aldon in 1959 is the reckoning period for the count of the time of prescription. Q: Why would it be counted from the time of death of Aldon? A: In accordance with Article 777, the right is transmitted upon the moment of death of the decedent Aldon. Since he died in 1959 and prescription operates until 30 years after the death, while the case was filed in 1976, it is still within the prescriptive period. Q: Why couldn’t the children file duri ng the lifetime of their father? A: Because they have not yet obtained the right as to the properties because the rights to succession only arises upon the death of the decedent. Q: What rights did they have during the lifetime of their father? A: They merely have an inchoate right or a mere expectancy.

Recap: We already discussed the subjects of inheritance: rights, properties and obligations.

So they could not have possibly questioned the sale because their rights accrued only upon the death of their father. The period of prescription should be counted from that time.

Again, we have to emphasize that it is death which opens succession. Without death there can be no transfer of properties, right and obligations by succession. While the decedent is still alive, his heirs only have inchoate rights or an expectancy. As a consequence, the heirs cannot question any disposition made by the decedent of his properties; they cannot impugn any sale, donation or conveyance.

Q: How about the second issue? A: The second contention by the buyers Felipe is that the heirs of Aldon did not have a right or legal standing.

That was also illustrated in the case of: Felipe vs. Heirs of Aldon (GR L-60174 | Feb. 16, 1983)

Fact: The wife of Maximo Aldon performed a transfer of part of the properties of her husband without the consent required by law. Since under the law, the consent of the husband must be obtained prior to any sale or conveyance or transfer of conjugal properties. So the wife of Aldon made the transfer to Felipe. Upon the death of the Aldon, his heirs should receive the property. They filed for reconveyance of title of the properties on the basis that the transfer was improperly done since the wife failed to obtain the consent of Aldon during his

Q: Do they have legal standing? A: Yes, because they already possess the right over the properties upon the death of the decedent. Again, that illustrates the principle that during the lifetime of the decedent, the heirs only have an inchoate right. Here, he SC counted the prescriptive period only, insofar as the children are concerned, from the time of the death of their father. Locsin vs. CA (GR 89783 | Feb. 19, 1992)

Facts: Dona Catalina was married to Mariano. Mariano died and she inherited certain properties from him. During her lifetime, Catalina donated certain properties to her nieces, the Locsins. 4 years before her death, she executed a will affirming these transfers to her nieces.



The other nieces, the Jaucians, filed an action after her death questioning the donations she made during her lifetime alleging that these donations will prejudice their legitimes. Issue: WON these nephews or nieces has good standing to question the donations made during her lifetime Ruling: No, the nephews and nieces here are not compulsory heirs. When Catalina died, she does not have compulsory heirs. Only compulsory heirs have legitimes that may be prejudiced. Although these nephews and nieces are legal heirs, they are not compulsory heirs. Even during Catalina’s lifetime, they did not have standing to sue since what they had was only an inchoate right. Hence, they do not have standing to question. Q: Did she execute a will in this case? A: Yes, 4 years before her death.

Q: What would comprise the estate at the time of her death? A: Only the properties remaining at the time of her death. Q: How about those donations, transfers and assignments? A: They no longer form part of her estate. Because she was well within her right to dispose of those properties. She had every right because she was the owner of those properties. The nephews and nieces cannot question because they will only be entitled to whatever property would remain at the time of death of the decedent. Q: How about the fact that those donations, transfers and assignments supposedly reduced the estate and their legitime? A: They cannot question it because they do not have legitimes that can be prejudiced since they are not compulsory heirs.

Q: How about if she did not execute a will, could these legal heirs question? A: No, they are only nephews and nieces.

They could not question even on the ground that those donations are inofficious. The question of inofficiousness would only come into play when you are a compulsory heir, because you have a legitime.

Q: If they are nephews and nieces that means they are heirs, could they not question the donations, assignments, transfers made by Dona Catalina during her lifetime? A: I think yes they can question.

Nephews and nieces do not have a legitimes. Therefore, they cannot question those donations as being inofficious. So whatever would be left at the time of death of the decedent, that would be her estate.

Q: They could question? On what basis? A: Because if she died intestate, all her properties will devolve to her legal heirs.

They cannot question because: a. They only had inchoate rights. b. They are not compulsory heirs.

Q: How about the donations made during her lifetime, what would be the status of those donations, transfers and assignments? A: They will be valid. Q: So you said they could question? A: Yes, they could question after their death, because during her lifetime they only have an inchoate right. Q: So are you saying that if she died intestate, those donations may be annulled? Those sales? A: Yes, if they are inofficious.

Without the intervening effect of death, we cannot distribute the properties of the person by succession. There has to be death first. The rights to the succession are made effective from the moment of death of the decedent. What is death? When do we know that the person is already dead so that we can already distribute his properties by succession? 2 kinds of death recognized under the law on succession: 1.

Take note, if there is a will then a person has no compulsory heirs so she can just dispose of her properties in any way and to anybody she wants during her lifetime. She is only obliged to reserve for her compulsory heirs.

Actual death

In layman’s understanding, you know what death is. If the

person is already buried, he is dead. It is also defined under the Organ Donation Act of 1991:

The compulsory heirs are the children; in the absence of children and descendants, you have the parents and ascendants; the spouse; and the illegitimate children. So if there are none, you can give away by will your proper ties. You can even deprive your legal heirs, your brothers and sisters, nephews and nieces. Here, she died with a will so it was within her right to dispose her properties to any person she wanted. Q: If she died intestate here, those sales, transfers and assignments made, you said the legal heirs can question it? Q: If a person dies without a will and she has no compulsory heirs so the estate will go to the legal heirs? A: Yes.

Section 2. Definition of Terms . – As used in this Act the

following terms shall mean: (j) "Death" - the irreversible cessation of circulatory and respiratory functions or the irreversible cessation of all functions of the entire brain, including the br ain stem. A person shall be medically and legally dead if either: (1) In the opinion of the attending physician, based on the acceptable standards of medical practice, there is an absence of natural respiratory and cardiac functions and, attempts at resuscitation would not be successful in restoring those functions. In this case, death shall be deemed to have occurred at the time these functions ceased; or (2) In the opinion of the consulting physician, concurred in by the attending physician, that on the basis of



acceptable standards of medical practice, there is an irreversible cessation of all brain functions; and considering the absence of such functions, further attempts at resuscitation or continued supportive maintenance would not be successful in resorting such natural functions. In this case, death shall be deemed to have occurred at the time when these conditions first appeared. It is either confirmed by the doctor or confirmed by us, we know when a person is dead. [There is not much confusion when it comes to actual death. In the first place, before you bury, the doctor must declare that the person is dead. You will not just decide by yourself to bury a person.]

2.

Because of the circumstances, a shorter period is required for the presumption to set in. Eastern vs. Lucero (124 S 326 | GR L-60101 } Aug. 31, 1983)

Facts: We have Julio Lucero Jr who was appointed by Easter Shipping as the captain of MV Eastern which plies the HKMNL route. On one of its voyage from HK-MNL, Eastern received 3 messages from Lucero: 1. “encountered boisterous weather with strong 2. 3.

Presumed death

We have 2 kinds of presumption: 1.

Isn’t it 2 years if there is danger of death?

Ordinary presumption

northeastern winds” “vessel rolling and pitching violently” “vessel laboring violently” “jettison cargo” “need immediate assistance” “seawater was entering inside hatch vessel” “preparing to abandon anytime”

There were no more messages after that.

Arti cle 390. After an absence of seven years, it being

unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

Subsequently, Lloyds of London, the insurer of MV Eastern, declared that the ship had already sunk and confirmed the loss of the vessel. Eastern now paid the corresponding death benefits of the crew members including Lucero. However the wife of Lucero, Josephine, alleged that instead of the death benefits, she should receive the payment for the accrued monthly allotment which her husband should receive in view of the fact that the voyage was on a voyage-basis which should only terminate when the vessel arrived in Manila.

For purposes of succession, if he disappears for a period of 10 years (we don’t know if he is still alive), he can be presumed

Issue: When will the presumption of Lucero’s death arise?

dead. Again, we have no idea of his whereabouts because even if we have no communication with him but he is abroad, we cannot presume him as dead.

Ruling: The presumption of death under Article 391 should not overwrite the facts established in this case.

But, the law provides that if he disappeared after the age of 75, an absence of 5 years would be sufficient. The law presumes that when a person is already over 75, he has lesser chances of survival.

The SC ruled that after the 3 messages received by Eastern, no other messages were received. It is also undisputed that the boat had sunk and the members of the crew, including Lucero, perished.

2.

Qualified or extraordinary presumption

Arti cle 391. The following shall be presumed dead for all

purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.

In view of that, there is enough evidence to show that the circumstances attending the loss and disappearance of MV Eastern, is sufficient to lead us to a moral certainty that at the time the vessel sunk, the persons aboard thereon also died. Q: So what is the principle with respect to the rule on presumption? A: The rule on presumption should yield to the rule on preponderance of evidence. If there are facts known or knowable from which a rational conclusion can be made, the presumption does not step in and the rule on preponderance of evidence should control.

Under the qualified or extraordinary presumption, there is danger of death.

Q: So here, do we have to wait for 4 years? A: No, because of the presence of danger of death.

So how many years do we need before he can be presumed dead? The law says 4 years.

There are facts, there are pieces of evidence which would lead to a moral certainty that Captain Lucero already perished in that calamity.

If you notice, the circumstances mentioned here are the same as in the purposes of remarriage. How about for remarriage, how many years before the absent spouse can be presumed dead and the absence spouse can remarry?

Here, we do not need to wait for 4 years. SC held that the death benefits should be received by the spouse because there is no more reason to continue giving the monthly allotment. He already died.



[Actually, this case was asked in the bar exam last year, 2015.]

When will the moment of death be counted? When do we start counting the time of death? a.

When it is actual death, there is no problem, it is at the time of his actual death.

Insofar as presumptive death is concerned, we have to make a distinction: b.

Insofar as ordinary presumption is concerned:

For example, a person disappeared in 1990. Then you waited for 10 years but he did not reappear. After 10 years, which is 2000, he can be presumed dead already. He is presumed dead as of the year 2000. The time of death will be counted from year 2000. Here, whatever properties which accrued to his estate from 1990 to 2000 will be part of his estate. Whatever will be the value if his properties in 2000, that will be the basis for the computation of the estate tax. Whatever properties which accrue after year 2000 will go to the respective heirs. We will discuss that when we go to Article 781 on after-acquired properties. If he disappeared after the age of 75, then you also count after 5 years. c.

Insofar as qualified or extraordinary presumption is concerned:

For example, he participated in the war in 1990 and he disappeared, there was no news of him whatsoever. So we wait for 4 years, up to 1994. So after 1994 we already presume him as dead.

Time of death is counted after 10 years or 5 years, as the case may be, when the presumption arises

Time of death is counted at the time of disappearance, or when there is danger of death

Let’s go to the rights of the heirs upon the death of the

decedent. Again, prior to the death, it is only an inchoate right, an expectancy. Upon death, what is the right of the heirs? Emnace vs. CA (370 S 431 | GR 126334 | Nov. 23, 2001)

Facts: Emnace, Tabanao and Jacinto were partners and decided to dissolve their partnership. Before Tabanao die d, the partners failed to submit to Taban ao the statements of assets and liabilities and they were not able to give him his shares in the partnership. After Tabanao died, the widow filed against Emnace for accounting, payment of shares, liquidation of assets and damages. The contention of Emnace is that the wife has no legal capacity to sue since she was never appointed as administratix or executrix of his estate. Issue: WON the wife has legal capacity to bring action for accounting, payment of shares and damages Ruling: Yes, pursuant to Article 777 of the Civil Code. The SC rules that from the very moment of Tabanao’s death, his

rights, insofar as the partnership was concerned, was transmitted to his heirs for rights to the succession are transmitted from the moment of death of the decedent. The prior settlement of the estate, or even the appointment of Salvacion Tabano as executrix or administratix is not necessary for any of the heirs to acquire legal capacity to sue since a successor who steps into the shoes can commence any action originally pertaining to the decedent.

When do we start counting the time of death? Should it be in 1994, after 4 years? Take note that in qualified presumption, the reason for the presumption is that he disappears and there is danger of death. That is why the period is shorter because of the danger of death.

Q: Did we not discuss before in subject in succession that the right to become a partner in a partnership cannot be transmitted? How can you reconcile that with this case? A: Tabanao has the right to receive his share in the partnership. As a successor of Tabanao, then the wife also had the right to receive the shares of Tabanao.

Now when do you think the danger o f death occur, 1990 or 1994? In 1990, when he disappeared.

Q: Does this involve succession to become a partner? A: No, merely the shares of Tabanao in the partnership.

So when he went to war and he was wounded, do you think he would survive for 4 years then die? He must’ve died in 1990, only that you have to be sure since if he reappears after 4 years then he did not die. But if he did not appear at all then certainly he died in 1990, at the time of war. So here, the counting should start from the date of disappearance. The 4-year period is only need to give an opportunity for him to appear. Maybe he will appear. But since he did not, then he really died in 1990. It is at the time of disappearance or at the time when there is danger of death when you count the time of death. Ordinary presumption

Under Article 390

Qualified or extraordinary presumption

Under Article 391

Q: When was the partnership terminated here? A: In 1986, when they decided to dissolve the partnership. Even before the death of the husband, there was already dissolution of the partnership. This is not a case of acquiring the rights to become a partner, but just asserting the rights of the deceased partner to demand for liquidation, accounting, inventory and distribution of the partnership assets and profits. Q: As you said, was there a settlement proceeding already in this case? A settlement of the estate of Tabanao? A: There was none yet. The heirs, based on this case, had already stepped into the shoes of their predecessor from the moment of death. The wife had legal personality because as heir of the husband, she acquired the right of the husband to demand for that



accounting, distribution, etc. There is no need for her to be appointed as administratix or executrix. Q: What do you understand by an executrix or an administratix? A: The administratix is the one appointed by the court. When you say executrix, she is the one who is appointed in the will. She will administer the estate of the decedent. If there is no will, or even if there is a will but there is no appointed person mentioned, that person will be called an administrator. If a woman, administratix. Here, there was still no administration proceedings, but the heirs do not have to wait for that. They can institute actions for and in behalf of the estate, again, from the moment of death of the decedent. Rioferio vs. CA (GR 129008 | Jan, 13, 2004)

Facts: This involves the properties of Alfonso. The ones fighting over his properties are Esperanza (his wife) and children; and the petitioners, Teodora (his paramour) and children. Alfonso died intestate leaving several properties and left them with his wife and also to his paramour. It was later on discovered that Teodora and her children actually executed an Extrajudicial Settlement of the Estate of the Deceased Person with Quitclaim involving the properties of Alfonso in Dagupan. The wife and the children assailed the action of the paramour stating that it was improper because they are not actually the legal heirs of Alfonso. There was still no administrator appointed, yet the wife Esperanza already instituted the said action against the paramour. Issue: WON the heirs may bring a suit to recover the property of Alfonso’s estate p ending the appointment of the administrator Ruling: Yes, although there was no appointment yet of the administrator, the mere fact of the death of Alfonso made effective the succession. Hence, their right over the properties already accrued at the time of the death of Alfonso. It is of no moment that there is already an administrator appointed by the court or none. Q: Was there already an administrator appointed here? A: None yet, but there was already a proceeding for the appointment of an administrator. In the case of Emnace, it is clear that even without a proceeding yet instituted, the heirs already can step into the shoes and institute actions for and in behalf of the estate. Here, there was already a proceeding brought for the settlement of the estate, so there was a pending administration proceeding, but still the heirs can institute actions, even if they have not yet be en appointed as administrator. Q: What if there was already an appointed administrator, can the heirs still sue in behalf of the estate?

A: Yes, it will not matter because we go back to the principle that succession takes effect at the time of the death of the decedent. Q: So if there is already an appointed administrator the heirs can still file? A: Yes, as an exception. GR: If there is already an administrator, actions for and in behalf of the estate should be instituted by the administrator. Because here, the authority is now concentrated on the administrator. Exceptions: When the heirs can still institute actions for and in behalf of the state even if there is already an appointed administrator: 1. If the executor or administrator is unwilling or refuses to bring suit Of course, if the administrator is unwilling, the heirs cannot be deprived of their right to institute. 2.

When the administrator is alleged to have participated in the act complained of and he is made a party defendant

If the suit would be against the administrator himself, he cannot be expected to file a suit against himself, so the heirs can file. Those are the two exceptions. Remember, upon the death of the decedent, the rights to the succession are already made effective. The heirs can bring suit in behalf of the estate even if there is no administration proceeding instituted but from the moment of death, they step into the shoes of the decedent. Once there is already a proceeding instituted, as long as there is no administrator appointed yet, then the heirs can still file actions. But, when there is already an appointed administrator then he should file the action, except when the two situations mentioned are present. That is the rule. When shall the heirs step into the shoes of the decedent? It is from the moment of death. What if they executed an extrajudicial partition 5 years from the death of the decedent? When are they considered to have succeeded to the property? Still, from the moment of death. If there is a will and the will is probated 10 years from the death of the decedent, still, the rights of the heir shall start from the moment of the death. It is not the appointment as executor or administrator, it is not the execution of the extrajudicial settlement, and it is not the probate of the will that confers rights upon the heirs. The rights, again, start from the moment of the death. Art ic le 392. If the absentee appears, or without appearing

his existence is proved, he shall recover his pro perty in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents.



Under Rule 131 of the Rules on Evidence, there are also presumptions there.

Is there a situation when there is succession even without death? There is one exceptional circumstance when there can be

For example, we have the presumption of survivorship. If 2 person perished in a shipwreck and you do not know who died ahead. It is presumed that the one who is older survived. But that is not applicable to succession. For succession, we have Rule 131 Section 3 (kk) of the Rules on Evidence: Section 3. Disputable presumptions. — The following

presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: (kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. In succession, there is no presumption of survivorship. Presumptions on survivorship will apply to other situations but not for the purpose of distributing the estate of the deceased. For example, a father and a son are on board a plane. The father is 50 and the son is 17. The plane crashed and both of them died. We do not know who died first. Whoever alleges that the father died ahead of the son must prove it, with facts. If we cannot prove who died ahead of the other, the presumption is that they died at the same time and there is no succession from one to the other. Why is it relevant since both of them are dead anyway? Will it make a difference?

“succession” even without death. That is the concept of freak succession .

Freak means unusual, uncommon, strange. It is freak because it is out of the ordinary. When will this happen? If you still remember your Family Code, in cases of declaration of nullity of marriage or in annulment of marriages, part of the decree will be the delivery of the presumptive legitimes of the children. When you say presumptive legitimes, the estate of the spouses upon the declaration of nullity or annulment will now be liquidated. There will now be a computation, based on the estate what will be the legitimes of the children. Based on that, you deliver to the children their legitimes. That is the delivery of the presumptive legitime. Why is there a need of delivery of that presumptive legitime? When the marriage is annulled or declared null and void, the spouses can already remarry. If they can remarry, they will have a new spouse and their properties will now be merged into the properties of the other spouse. To protect the children from that possibility of merging of properties upon remarriage, the law requires that the presumptive legitimes of these children be delivered. That will not form part of the property of the spouse when he or she will remarry. That is the concept of freak succession. Even if the spouses are still very much alive, they have to deliver to their children their presumptive legitimes. Ordinarily, legitimes are distributed only upon death of the predecessor. But here, even if the parents a re still alive, the children already get their presumptive legitimes.

For example, A is married to C and they have a child B. A’s

estate is 10 million. A and B were in the plane which crashed. If we say that A died ahead of B, it means B inherited from B. How do we distribute the estate assuming it is legal succession? 10 million divided by 2. So 5 million will go to B and the other 5 million to C. Because B also died, upon his death, the 5 million will also go to his heirs. Let’s say he has a son Y then it will go to him. How about C? She is excluded by the child of B. Parents are excluded by the presence of children. If B died ahead of A, B will not receive anything, unless he has a child by right of representation [will be discussed later on]. The entire 10 million of A will go to C. If we do not know and cannot prove who died first, then there is no succession under the rules since they are presumed to have died at the same time. Even if B has a child Y, and we cannot prove who died ahead of the two, then the entire 10 million will go to C since there is no succession between them. If A died, his heir will now be his wife C. We cannot say that B will inherit because if they died at the same time, B will not inherit from A. If B survived even for a few seconds, he can inherit and pass on something to Y but if they died at the same time, there is no inheritance from each other. Everything will go to C. 

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Art ic le 1083. Every co-heir has a right to demand the

division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime. Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the co-heirs.

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We can also apply this when we go to Article 891 on reserva troncal. We will discuss that later on.

What if the dece dent in his will says that “upon my death, my properties will only go to my heirs 10 years after my death, ” can we say that the rights to the succession here are transmitted only after 10 years from the death of the decedent? Take note that the law says from the moment of death. However, the testator may actually prohibit the partition of his estate, even the legitime, or he can declare that it should remain intact, but only for a period not exceeding 20 years. That is the limitation. Again, we are only talking about the partition. The inheritance itself, the transfer of ownership happens upon the death of the decedent.

Ar tic le 778. Succession may be:



A: It was in March 4, 1963, almost a month after Fr. Rodriguez died.

(1) Testamentary; (2) Legal or intestate; or (3) Mixed. Article 778 gives us the different kinds of succession. What is testamentary succession? It is defined under:

Ar ti cl e 779. Testamentary succession is that which

results from the designation of an heir, made in a will executed in the form prescribed by law. Testamentary succession is when a person or decedent leaves a will. When a person leaves a will, he is called a testator. While he may also be called a decedent, it is more technical to call him a testator if there is a will. This is also called voluntary succession. Take note, as defined under Article 779, testamentary succession happens when: 1.

There is a will

Of course, if there is no will, then automatically the property will be distributed by legal succession. 2.

There is a designatio n of an heir

Without the designation of an heir, we cannot distribute the properties according to the will. As we will discuss also, there can be a will providing for only for a disinheritance. In that case, there is no designation of an heir. But here, there will be no testamentary succession. The probate of the will shall be done only to determine whether or not the will is valid so we can give effect to the disinheritance. But after that, still the property will be distributed by legal succession because there is no distribution of the properties in the will, there is no designation of an heir. Again, you follow the will only for the disinheritance but you follow legal succession thereafter. 3.

Observance of the form prescribed by law

The will must be in the form prescribed by law for there to be testamentary succession. Because if the will is not valid, even if you have a designation of heirs in that will, it will not be given effect. As a consequence, the properties will be d istributed by legal succession. So these are the conditions for testamentary succession as defined under Article 779. There can be testamentary succession when there is a will or a codicil. Codicil – an addition or supplement to an existing will; it is

termed as a little will Testamentary succession is preferred over legal succession. Rodriguez vs. Borja

In 1963, four days after, the Rodriguezes filed a petition for the examination of the alleged L ast Will and Testament but thereafter they contended that there was no valid will so they filed an intestate proceeding before the court. Q: What happened to the will? Before March 12 something happened. A: Before the courts could decide on the merits on the case, they withdrew their petition on the examination of the will and thereafter, they filed these intestate proceedings contending that there was no valid will and that Fr. Rodriguez died intestate. Q: They filed that when? At what time? At what court? A: March 12 at around 8am at the CFI of Rizal. At around 11am of the same day, the respondents who previously submitted the will filed for a proceeding for the probation of the will contending that there is a valid will. Q: Same day? In what time? In what court? A: Yes, at around 11am at the CFI of Bulacan. There were two petitions, the first one is a Petition for the Settlement of the intestate Estate filed at 8am in Rizal; and the second was for the probate of the will filed at the same day at 11am at Bulacan. It was contended by the petitioners that since they first filed the intestate proceedings, this should be prioritized over the testate proceedings. There is also the rule that the first court which first acquires jurisdiction over the case shall exclude all the other courts respecting the same issue. The SC ruled that with respect to testacy and intestacy, the testate proceeding should prevail because it is the intention of the law to favor what has been contained in the will. Even if in the probate proceedings later on it will be decided that it is void then it should still be prioritized over intestate proceedings. So the first reason is that testacy is favored over intestacy. As long as there is a will, it has to be probated. Q: What is the other reason? A: The SC held that the will should be given as much as possible in order to give effect to the wishes of the testator. The wishes of the testator must be given such preference first. Probate of the will is needed in order to determine whether or not the will was really valid, whether or not the wi ll was executed in observance with the formalities of the law. Q: That is still pursuant to the reason that testacy is favored over intestacy. There is another reason given b y the SC based on the Rules of Court. A: With respect to Rule 76 Section 3 of the Rules of Court:

(17 S 41 | GR L-21993 | June 21, 1996)

Section 3. Court to appoint time for pr oving will. Notice thereof to be published. — When a will is delivered to, or a

Facts: Sometime in 1963, Fr. Rodriguez died. There was a purported will submitted by Apolonia Pangilinan and Adelaida Jacalan.

petition for the allowance of a will is filed in, the court having jurisdiction, such court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause n otice of such time and place to be published three (3) weeks successively,

Q: When did they submit the will?



previous to the time appointed, in a newspaper of general circulation in the province. Q: Meaning? Technically, which was instituted first here if you follow Rule 76 Section 3? A: It was actually the testate proceeding. Q: Why? When will the probate court acquire jurisdiction? A: Two ways by which the probate court may acquire jurisdiction: 1. Delivery of the will 2. By filing of a petition Q: When was the will delivered? A: It was delivered as early as March 4, 1963. Q: What is the consequence of that delivery? A: It gives the court the jurisdiction over the probate proceedings. If we are to be very technical about it, which was instituted ahead, it was really the probate proceeding also, because at the time when the will was delivered at March 4, 1963, that is already equivalent to the filing of the petition, that is one way by which the court acquires jurisdiction over the proceedings. Technically, the probate was filed first. Even assuming for the sake of argument that the probate was not filed earlier, then testacy is favored over intestacy.

When can this happen? a. If the testator did not dispose of all his properties in the will For example: He left properties amounting to 20 million but in the will he only distributed 10 million. What will happen to all those not disposed in the will? Those will be governed by the law on legal succession. But for those disposed by the will, by testamentary succession. b.

If he disposed of everything in his will but there are void provisions, those void provisions, if there is no substitution, representation, accretion, it will go by way of legal succession. Those which cannot be given effect because they are illegal but there are still other valid provisions, and the provisions can be separated, the void provisions will be governed by legal succession, the properties affected by the void provisions. The properties which are not affected by the void provisions, since they are valid, they can be distributed by the will. As for legal succession, there is actually no direct definition of what it is under the New Civil Code. However, under Article 960, there are enumerations of those instances of when there is legal succession. Art ic le 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the i nheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code.

Q: In that case, you said that the probate proceeding should be given priority over the intestate proceeding, what will happen to the intestate proceeding? A: It will be suspended. There will be ni intestate proceeding if there is actually a will. So in the meantime, it will be suspended. If the will turns out to be valid, the n you distribute the estate according to the will. Here, there will be no room for the intestate proceeding to proceed. But if the will turns out to be void, then you can continue the intestate proceeding. [Actually, I also experienced this kind of dilemma. Before I had a client who were disinherited in the will and their brother was instituted as an heir but their brother did not want to probate the will. He just said he will give them some properties even if they were not in the will. He did not probate the will and the will is very defective. But you cannot say that it is void if you do not probate it. They also do not want to file a petition for allowance of the will since they did not want to allow it. What we did, we just delivered a copy of the will to the court and the court did not act. So I asked and referred this case of Rodriguez that even if there is no petition, you can just fix the time and the date for the hearing so that the oppositors can appear. Eventually, they were convinced since this was the first time in Davao that there is such case. They called a hearing and that was the time we filed our opposition.]

Just by the delivery of the will to the court, the court can already fix the time and the place for the hearing. So if you are the oppositor, you do not need to file a petition for the allowance of the will since you do not want the will to be allowed; but you can file an opposition once the court fixes the place and date and time for the hearing. [The case of Balanay will be discussed later in the interpretation of wills.]

Ar ti cl e 780. Mixed succession is that effected partly by

will and partly by operation of law.

If the testator disposed of all his properties in his will but some provisions turn out to be void

Again, when you say legal succession, it is when there is no will; or even if there is a will but the will is void, so the distribution of the properties will be by law, based on the provisions of the New Civil Code on succession. Classifications of succession: I.

As to effectivit y a. Succession inter vivos b. Succession mortis causa II. As to origin a. Testamentary successi on b. Legal or intestate succession c. Mixed successio n III. As to extent a. Universal successio n

This is inheritance by the heirs, who are instituted to the entire estate, to an aliquot portion, to an ideal share, to a spiritual share of the estate. Here, the shares are not particularized or specified. Ex. “I hereby give to A my entire estate.” Ex. “I hereby give to A ¼ of my estate.” (an aliquot share)



A here is an heir by universal succession. He is not instituted to a specific property in the estate. b.

Particular succession

This is succession to a specific or particular property in the estate. This is the succession of legatees and devisees. Legacy – gift of specific personal or movable property Devise – gift of specific real or immovable property IV. As to part of property transmi tted a. Forced or compulsory succession

This is succession to the legitime. Forced meaning the testator cannot avoid this. He must give to the heirs their legitimes. He can only deprive his heirs of their legitimes if there is a valid ground as provided by law, the grounds for disinheritance. b.

How about the rentals which will be earned from that building starting from the time of death in 1990 onwards? That is part of Article 781. Because the devisee A is already the owner of the building, starting from the time of death, he also owns whatever is owned from that building. This is also in relation to your Law on Property on accession. The owner of the principal also owns the accessories, the accession, those which are added to or incorporated. So the rental incomes from that building from that time onwards should also be owned by the devisee. That is the first concept of after-acquired properties. In Article 781, we are referring to those which are added to, or incorporated or which are earned from the property transmitted starting from the moment of death onwards. Remember that because under Article 793, we have another concept of after-acquired properties.

Voluntary succession

This is succession to the free portion. The estate of the testator in testamentary succession is actually divided into two: 1. Legitime – there is compulsory or forced succession 2. Free portion – there is voluntary succession In the free portion, he is not obliged to give. He can give it to anybody he wants- his friends, neighbors or even to some of his children. The children can receive more than their legitimes but insofar as to the excess, that is already voluntary succession, as long as they are not disqualified to inherit. Again, forced succession is succession to the legitime while voluntary succession is succession to the free portion.

How about those rentals which accrued? Same example: The will was executed in 1985. The testator devised to A the building. This building is being rented out. From 1985 to 1990 there are uncollected rentals amounting to 100,000. Then he died in 1990. So the property will now go to A as his devise, and also the rentals from the building starting from 1990 will also go to A. What if the lessees decide then to pay those rentals which accrued from 1985 to 1990, before the death of the testator? Who is entitled to the 100,000? Can A claim that? Pursuant to Article 781? Article 781 refers to those which accrued from the moment of death. These did not accrue from the moment of death but before death. Article 781 only apply to accruals or earning or interests earned or additions after death.

We also have contractual succession .

Instead, these would pertain to the estate. It will be governed by Article 793, the other concept of after-acquired properties, which we will discuss later.

These will be governed not by the law on donation but by the law on succession, it is governed by the formalities of wills.

Again, when we talk about Article 781, 1990 onwards, as an incident of ownership.

Donations of future property between spouses by reason of marriage shall be governed by the provision of testamentary succession and the formalities of wills.

Strictly speaking, these properties are not really inheritance anymore because they are incidents of ownership. As an owner of the principal, he also owns the accessories and the accessions.

Ar ti cl e 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. What does the inheritance include? It includes not only the property given by the decedent but it also includes all other properties, income, rent which accrue to that property starting from the moment of death. For example: The testator owned a particular building which is being rented out to third parties. The testator during his lifetime was receiving rental income from the building. Then he devised the building to A. Then he died in 1990. So what will A receive in 1990? The building, because it was devised to him.

Ar tic le 782. An heir is a person called to the

succession either by the provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. An heir can exist whether in testamentary succession or in legal succession.    

Testamentary heirs – if there is will Compulsory heirs – if they are in the legitime Voluntary heirs – if they are instituted in the free portion Legal or intestate heirs – if there is no will



In testamentary heirs, we have compulsory heirs or forced heirs who are entitled to their legitimes. If there is no will, these same compulsory heirs are entitled to inherit by legal succession. So all compulsory heirs are actually legal heirs. Can we also say that all legal heirs are compulsory heirs? No, because there are more legal heirs than compulsory heirs. Compulsory heirs (4 groups): 1. Children and descendants 2. Parents and ascendants 3. Spouse 4. Illegitimate children Legal heirs: 1. The 4 groups under compulsory heirs 2. Brothers and sisters 3. Nephews and nieces 4. Uncles and aunts 5. Other collateral relatives up to the 5 th degree of consanguinity Voluntary heirs cannot inherit if there is no will since they only inherit based on the will of the testator, they are instituted to the free portion. Devisees and legatees are those who are given specific properties.

for and in behalf of the estate. They are already entitled to the estate; their rights are already vested. Take note, they acquire the generality of the properties, right and obligations (only up to the value of the inheritance). The heir succeeds to the remainder of the state after all the have been paid. When it comes to compulsory heirs, in the distribution, you pay first the debts, taxes and charges then the legitime. If you are a voluntary heir, the legacies and devisees will also be paid first before you.

They only acquire properties or rights, they do not acquire obligations unlike heirs. Legatees and devisees will be given their shares after paying the taxes, debts and the legitimes.

Therefore, the order of distribution is as follows: 1. Taxes, debts and other charges 2. Legitime of the compulsory heirs 3. Legacies and devises given to legatees and devisees 4. Those given to a voluntary heir July 4, 2016 (M.Acosta)

Heirs

Legatees and devisees

They succeed by general right or universal title; or to all or a fraction or an aliquot share. The term heirs exists in both testamentary and legal succession.

They succeed by special or particular title; they are given specific properties

Recap: Why do we need to know the distinction between an heir, a devisee, and a legatee?

The term legatee or devisees exist only in testamentary succession, not in legal succession. Only succeed by reason of the will of the testator

Because there are provisions in the Civil Code relating to succession which are applicable only to heirs or applicable only to legatees and devisees wherein the rights of the heirs, devisees, and legatees will be affected.

We can already identify the specific property; it can be determined already with certainty.

And also in article 854. Pretirition. So basically you say there is preterition when a compulsory heir in the direct line is omitted in the will. The effect of preterition is that the institution of heirs in

The heir, if compulsory, succeeds to the inheritance regardless of the will since it is mandated by law. The quantity cannot be determined until after the liquidation of the properties of the estate. Prior to the delivery of the inheritance of the heirs, the taxes, debts and other charges will have to be paid first. So before that, we will never know yet the quantity or the exact amount to be given to the heirs. The heir represents the juridical personality of the decedent, acquiring his property, rights and obligations. That is why in our discussion, from the moment of death of the decedent, the heirs already step into the shoes of the decedent, they can already institute actions

For example in article 793 and 781. So the value of your inheritance or legacy or devise will also differ.

the will shall be allowed but if you’re a legatee or d evisee you

can still receive your legacy or devise for as long as it is not inofficious. If you are an heir, an instituted heir and a voluntary one at that, when there is pretirition, you get nothing. Examples: I give to A, ½ of my cash in Metrobank, what do you call A? A, is a legatee because the property is specified –cash in Metrobank. Even if only ½ will not affect such legatee. ½ of my estate? Heir, even if the entire estate consists only of cash. My land in Matina, Davao City? Devise, even if you say 

They do not represent the juridical personality since they only acquire specific property.

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½ of my land in Matina, still it’s a devise.

Chapter 2: Testamentary Succession Section 1: Wills Subsection 1: Wills i n General



Ar ti cl e 783. A will is an act whereby a person is

permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. Article 783 defines what a will is; it says it is an act- meaning it is the manner by which a person disposes his property to take effect upon his death. The will may also be defined as the instrument where the disposition of a property is embodied, because in our jurisdiction, when we say will, it must be in writing. So the will can be the act of disposition or the document in which the disposition is embodied. The definition of a will shall be discussed along with the essential elements and characteristics of a will. So what are the essential elements and characteristics of a will? Meaning without this elements and characteristics the act cannot be considered a will. So if the act cannot be considered a will, it does dispose of a property after death and it does not require the formalities of a will. So to consider an act as a will these following characteristics must be present: Essential elements and characteristics of a will: (Remember: PASS U C FRIDM) Personal

Will making is a personal act, meaning it has to be done by the testator himself, the provisions of the will must that o f the testator, he cannot let another person write for him, he cannot let another person decide whether his will is valid. Can the testator delegate to a 3rd person the mechanical act of drafting his will? We have to make a distinction as there are two kinds of wills: notarial will and holographic will. When it comes to notarial wills, the mechanical act of drafting the will can be delegated, in fact it is usually practice because notarial wills are complicated, and you need to be knowledgeable of the requisites and formalities, so usually it is being referred to a lawyer- the drafting of the will. But the contents of the will of course must be that of the testator. He should decide how his property shall be dispose of, to whom shall these properties be given, what are the conditions needed. But when it comes to holographic wills, even the mechanical act of drafting the will cannot be delegated, because the holographic will must be entirely written, dated and signed in the hands of the testator. Another consequence is that the will is confidential, so even if the notarial will, the law requires that the notarial will be acknowledged by a notary public. So in your evidence what are public documents, one example are those documents acknowledged before a notary public, nut the law explicitly exempts a will. So even if wills are notarized, acknowledged they still remain to be private and not public documents. And also under the NCC the lawyer who notarized the will is not required to keep a copy of the will or to submit a copy of the will to the clerk of court. Under the notarial law, lawyers are required to keep two copies of the document

notarized; one for his file and the other to be submitted to the clerk of court. So a will, because it is personal it is not readily available to the public, it is only for the eyes of the testator. Even the witness of a notarial will does need to know the contents of the will or to have a copy of the will. Even the lawyer before whom the will is acknowledged is not required to know the contents of the will as a general rule. Ani mu s Test and i

Intent to make a will, so meaning the testator should know the nature of the act, so this is a last will and testament, the purpose of this document is to dispose of my properties, and this will be effective upon my death. So the testator should understand that. That is why one requirement for testamentary capacity is that soundness of mind. You cannot have animus testandi if you are not of sound mind. Montinola vs. Herboza Court of Appeals Case

Montinola filed an action against the heirs of Jose Rizal for recovery of possession of personal property (Rizal relics) allegedly sold to him by Trinidad Rizal. The trial court held that neither party is entitled to the possession, relying on the fact that in Rizal’s Mi Ultimo Adios, there is a line where Rizal

bequeathed all his property to the Filipino people. Q. what specific provision of the poem that was allegedly an evidence of a testamentary intent? A. to you I give all of my … Q. is this a will? A. not a will but merely a poem, as there was no animus testandi, no intention to make a will Q. is there any disposition of property in this poem? A. none Q. what is the nature of the document? What specific word was erroneously translated according to the court? A. should have been leave not give So it was just a declaration of parting, of his last wishes. There was no disposition of property. So here Jose Rizal, at the time that he made the poem he did not in h is mind the disposition of property. He could’ve not given his parents and relatives to the

Filipino people. So this is not a will. Statutory

So will-making is actually a creation of law, it is not an inherent right, it is merely a privilege. Here in the Philippines we have the NCC which allows the creation of wills. Take note that there are countries wherein people there are not allowed to make wills, so it is really dependent upon the law. In fact if you look on the provision – a person is permitted so meaning his just allowed by law to execute a will. That is why the will must be subordinated to law and public policy. So even if as we discussed before that testacy is preferred over intestacy as to give effect to the wishes of the testator, if the wishes of the testator is also against the law , then his wishes cannot be given effect. So his right of disposition is not absolute as it is limited by law. Solemn



Meaning, will-making requires certain formalities and solemnities, if you fail to follow such solemnities- the will be void and be disallowed. So failure to comply would be fatal to the will.

The will must be the act of only one person, we cannot allow joint wills, primarily because of public policy. You cannot have one will which is the will of two or more persons. Disposition of property

Unilateral

Meaning, the testator cannot conditioned the making of the will upon the consent or act of another; he cannot subordinate that to the decision or approval of another. He cannot make a bilateral condition wherein he condition testamentary disposition; Example. I give to A my land if A will give me his house. So in bilateral, both parties have their own undertakings. A will is not a contract so it cannot be bilateral. That is why also when we go to legacy and devise, there is what we call disposition captatoria, a provision wherein give an heir and the h eir also give to him. So this are prohibited.

For a document to be considered a will, it should contain a disposition of property. 2 ways of disposing properties in a will: 1. Direct disposition-where a property is specified to be given person. Ex. I hereby give to A my house and lot in Jacinto St Davao City. 2. Indirect disposition-when there is no designated heir to receive a specific property but instead the testator specifies an heir who is excluded from his estate, so that is a disinheritance Seangio vs. Reyes (GR 149753 | Nov. 27, 2006)

Capacity

At the time when the testator makes a will he must possess testamentary capacity so 2 requirements: of legal age and of sound mind. Without any of those capacities, the will would be void. Both must be present at the time when the testator made the will Freedom from vitiated consent

The testator must make his will voluntarily, intelligently, of his own volition. In contracts what is the effect if there is vitiated consent – voidable contract. In wills, the present of vitiated consent will invalidate the will, there is no voidable will. When the testator was just forced, it is aground for the disallowance of his will. So the will is void. Revocable, or ambulatory

Wills are essentially revocable even if the heirs have already accepted the disposition in his favor, the testator can a lways revoke that. Nobody can prevent the testator form cancelling or revoking his will. Are there grounds for revocation of wills? No. even for the most arbitrary or whimsical reason the testator can revoke his will. Is there a situation wherein the testator cannot revoke his will? There is only one, when the testator becomes of unsound mind. During that state, he cannot revoke his will because revocation requires animus revocandi (intent to revoke). When he becomes insane he cannot possibly have animus revocandi. That’s the

only reason, other than that he can always revoke his will at any time. What if his will was probated? What is probate? When a person dies with a will or if he executes a will, that will is not automatic, it has to be submitted before the court. So there has to be petition for probate of a will. The court will determine the genuineness and due execution of the will. If the court is satisfied that all the requisites are present then the court decrees that the will is allowed. That can be done by the testator during his lifetime or by his heirs upon his death. So even if the testator had already probated his will, he can still revoke his will.

SC ruled that document containing only disinheritance can also be considered a will because disinheritance is also considered a disposition of property (indirect). Q. Are there heirs instituted in that document? A. none Q. Is that document valid? Can it be considered as a will? A. Yes. Although it appears that it is an instrument which disinherits, it conforms to the formalities of a holographic will. While it does not make an affirmative disposition of certain property, the disinheritance nonetheless is an act of disposition. So the disinheritance is an act of disposition of property in favor of those who will succeed except Alfredo, who was disinherited. A document containing only disinheritance can still be considered a will because disinheritance is also a way of disposing ones property, it is an i ndirect disposition. Being a will, to be effective, it has to comply with the formalities of will otherwise the disinheritance will not be given effect. What if the document is entitled l ast will and testament and then “I Juan de la Cruz of legal age of sound mind leave this

document as my last will and testament, it is my fervent desire that my family would also love my illegitimate child Pedro. Signed. But he did not comply with the other formalities; can that document be given effect? The title is last will and testament providing for the recognition of an illegitimate child but it is not in the form of a will. Now, Pedro upon the death of his father files an action seeking to participate in the settlement of the estate. Can he use that document as evidence? Is it a will? No because it does contain a disposition of property. For that document to be valid, does it have to be in a form of a will? No, because it is not a will. To be considered as an evidence of acknowledgement, what are the pieces of evidence allowed under the family code? Birth certificate or a private document subscribed…so that is

Individual

sufficient as evidence of acknowledgement. Since no disposition of property it does not have to be in the form of a will to be valid. Page 25 of 69 Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]


A document appointing an executor or administrator of the estate, is that a will? Is there a disposition of property? When you say administrator, he does not dispose the property, but merely manages and administers the property, he is not given any property. So again on that premise- that document is a valid appointment it does not have to be in the form of a last will and testament to be valid. Mortis Causa

When a document transfers ownership only upon the death of the testator or alleged donor-that is a will. Therefore for that document to effectively transfer ownership upon death, it has to comply with all the formalities of wills. Now in the same manner, wherein the transfer is within the lifetime of the donor, then it does not have to be in the form of a will to be valid. It suffice that it complies with the formalities of donation. So a will needs death in order to be effective Vitug vs. CA (183 S 755)

This case inlvolves the wills of Dolores Vitug who died in NY naming Corona as executrix. Vitug (petitioner) filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate, which h e claimed, were personal funds. Corona opposed on the ground that the same funds withdrawn from a savings account were conjugal partnership properties and part of the estate, and hence, there was allegedly no ground for reimbursement. However, Vitug insists that the said funds are his exclusive property having acquired the same through survivorship agreement executed by his late wife and the bank. Q. what is the tenor of that survivorship agreement? A. Ha? I cannot hear. Q. Upon the death of either spouse what would happen to that savings account? Dili ko kadungog. Pwede ka magpaduol.i cannot hear. There’s a provision in the survivorship agreement as to what

would happen to joint savings account if either of the spouses dies. – The balance shall belong to the one who survives. Q. what kind of property can be disposed of in the will? Q. what is a personal property? You can only dispose of your own or separate property. You cannot dispose of properties that as in this case a joint holding. So here the SC said the will ….the delivers one’s property in

favor of another. Here in the savings account they merely agree in the survivorship agreement that the balance of the savings account shall belong to the one who survives. So this is not a will because the account is their joint ho lding. Q. So when you say the survivorship agreement is not a will, what would now be the consequence? A.it will not form part of the estate of the deceased wife Q. Did the balance inure to the husband after the death of the wife? A. yes, because that is the tenor of the survivorship agreement

Now if that agreement is considered a will, ordinarily it will not go to the husband yet, he cannot withdraw that after the death of the wife. What would happen? Without the survivorship agreement, it will be frozen until liquidation; either extrajudicial settlement among the heirs or if it can be considered a will, it has to be probated first before any distribution. But because it is not a will, so no need o f a probate of that document. The balance by the tenor of the survivorship agreement inures to the husband. Because that is not a will that disposes the separate property of the wife.

Ar tic le 784 . The making of a will is strictly personal

act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. Will is a personal act it cannot be left in whole or in part on the discretion of a third person or accomplished through the instrumentality of an agent or attorney. Although as we have discussed already, when it comes to notarial wills- you can delegate to another the mechanical act of drafting the will –that is discussed in the case of Castaneda vs Alemany. Again if notarial will, drafting can be d elegated but the contents thereof must be of course dictated by the testator. But in holographic will, even the mechanical act of drafting cannot be delegated

Ar tic le 785 . The duration or efficacy of the designation

of heirs, devisees, or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. So this is another consequence of that characteristic that the will is personal. So what cannot be delegated under article 785? First, the duration of the designation of heirs, legatees, or devisees- I hereby give to A B and C this car and X will decide the duration of the use of the car by A B and C. This cannot be delegated. Second, the efficacy of the designation of heirs, legatees, and devisees- I hereby instituted A B and C as my heirs subject to the approval of X. This cannot be allowed because if you will subject the approval of the institution then it is as if the person approving is the one who makes the disposition, it should be the testator. Third, the determination of the portions which they are to take when referred to by name, take note that the heirs here are referred to by name. I hereby give to A B and C my cash in Metrobank and X will decide how much A B and C will get. That cannot be d one. 

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Ar tic le 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. Article 786 on the other hand speak of allowable delegations. What can the testator entrust to a third person under article 786? First, the distribution of specific property or sums of money 


From the lectures of Atty. Lielanie Yangyang-Espejo, CPA | Ateneo de Davao College of Law 

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Second, which is left in general to specified classes or causes Third, designation of the persons, institutions or establishments to which such property or sums of money are to be given or applied

For example, I hereby give 1M to the top 5 o f III Manresa and X will determine how much would be the share of each. Is it valid? Does it conform with article 786? Distribution of specific property or sum of money, did that specifies a specific class? Yes it specifies a class and the designation of the persons institutions or establishments to which such property or sums of money are to be given or applied. How do you distinguish this from a rticle 785, the third prohibition? Article 785.xxx the determination of the portions which they are to take, when referred to by name. I hereby leave my 1M to A B and C a nd X will determine how much would be the share of each. So here the persons are specified in names and the x is the person delegated who will determine the portions. So that’s 785.

Now how to we distinguish 785 and 786? 1.) In 785, the heirs, devisees, or legatees are referred to by name in the will whereas in 786, they are not named 2.) In 785, there is no class or cause specified whereas in 786, the class or cause is specified 3.) In 785, what the delegate does is the determination of the portions only however in 786, the delegate determines the persons, institutions, or establishment s Articl e 785

HLD referred to by name in the will No class or cause It is the 3 rd person who determines the portion to be given

Articl e 786

HLD not named There is class or cause specified What the 3rd person does is to determine the persons, institutions or establishment

Ex. I hereby give such sum of money as X may determine to the top 5 of III Manresa and he will also decide how much would be the share of each. Is this valid? No because there is no specific property or sum of money left as article 786 requires that there should be a specific property or sum of money.

Ar ti cl e 787. The testator may not make a testamentary

disposition in such manner that another person has to determine whether or not it is operative. So here, I hereby give to A my land in Calinan Davao City subject to the approval of X. This is not valid. Again because it should be the testator ’s decision not of the delegate.

interpretation shall be followed? Under 788, it is the interpretation which will make the disposition operative. Balanay vs. Martinez (64 S 452 | GR L-39247 | June 27, 1975)

Q. what was the ground for the opposition? A. Balanay Sr contended that he did not denounce his hereditary rights over the estate of his wife. And further argued that the said affidavit was void. Q. With respect to that disposition of the wife of the conjugal land in the will, what was the opposition to that? Aside from the alleged invalidity of the renunciation, what was the contention with respect to that provision? A. it was alleged that she has devised the land as if it was all owned by her. As we have learned before in the case of Vitug Vs CA, in your will you are supposed to dispose only of your own separate property .So here she made a partition and disposition of the conjugal lots. Legally that should not have been done because that is not her separate property. Q. so what is the ruling of the Supreme Court with respect to that in relation to article 788? A. SC said that there is no doubt that the testatrix intended to partition the estate in the manner set forth in the will. While it is true that she can only dispose of by will only half of the estate but since the husband here had already renounce his conjugal share in the estate. Such partition had already become valid ruling that the will may be probated. Ordinarily one cannot dispose of the conjugal estate in his or her will because taken as a whole the conjugal estate is not your separate property but, so it can actually be that will, provision in the will can actually be interpreted in two ways: it can be interpreted as void because it compose of the conjugal estate but it can also be interpreted as valid taking into account the renunciation of the husband. Q. What is the rule with respect to interpretation? A. Where there is a doubt in the interpretation of the will, it should be resolved in favor of the testacy where there will be, or where the will shows that there is intention on the part of the testator testatrix to dispose his or her own estate. In short we follow the interpretation which will give effect to the wishes of the testator. Q. Now assuming that such provision is really void would it affect the entire will? A. No. Q. what is the ruling of the SC with respect to that? A. Even if some provision of the will is void, it does not follow that the entire will be void. And if the valid provisions can be separated from the void provisions then the provisions which are valid can still be given effect.

Ar ti cl e 788. If a testamentary disposition admits of

different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. Provision admits of different interpretations; interpretations can be that the will or provision is valid or not valid. Which

You do not invalidate the entire will. Assuming that such provision is void, but again the SC ruled that the same can be interpreted as valid because again there is already renunciation made by the husband. Dizon-Rivera vs. Dizon


(33 SCRA 554)


The testatrix, Agripina Valdez was survived by seven compulsory heirs (6 children, 1 grandchild). In her will there is a provision which provides that she devised and bequeathed specific real properties comprising practically the entire bulk of her estate among her six children and eight grandchildren. When Marina; the executrix filed her project of partition adjudicating the estate, it was opposed by the other heirs who also made their own counter project of partition stating that the project partition submitted by Marina reduce their legitime since as provided in the last will they are considered to be devisees other than heirs. Issue: WON the document is a will or is it a devise which bequeathed properties to the heirs? Q. so what specific phrase in the will was in question? A. devised and bequeathed Q. what would be the consequence if we really interpret it as a devise? When you say I devised- you are giving a devise when you say I bequeathed you are giving a legacy A. If interpreted as devise or legacy, it will be taken from the free portion rather than from the legitime of the heirs. So in effect the property that will be inherited by the heirs will be much more than that provided by Marina in the project of partition she submitted. Ruling: SC ruled that it was in the nature of a will and that the heirs here are not devisees. In this case the SC ruled that in case of doubt, the interpretation by which the disposition is to be operative shall be preferred pursuant to Article 788 and 789. The will must be interpreted in its entirety in order to give rise to testacy rather than intestacy. In this case it was clear that the document is a will wherein it provide that “it is my wish and I command that my property be divided according to the dispositions. With respect to the counter project partition, it would give rise to intestacy rather than testacy.

while alive and she does not contract a second marriage, otherwise, the properties sh all pass to the testator’s grandniece. Q. Did the wife remarry? What would happen if she remarry? A. usufruct would be terminated So it was clear here that it was only use and possession with respect to the property. Remarriage here is just a condition for her not to forfeit the property. If she remarries, she’ll forfeit the

property. If she did not remarry and she died, the property will go to her estate because only the usufruct was given. Take note here that this condition is made to apply only to the free portion because with respect to the legitime of the spouse, you cannot impose any condition. Remember that this Article 788 would apply only if there is doubt because if there is no doubt, there is no room for interpretation. So you apply the provision literally as they ar e written.

Ar tic le 789 . When there is an imperfect description, or

when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provision, the testator’s

intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations Article 789 talks of ambiguities in a will. Kinds of Ambiguit ies in a Will Latent or Intrinsic – it is an ambiguity that does not appear

A.

in the face of the will. So meaning, even if you read the will, there is no error, you cannot say that there is wrong here. You will only discover that there is something wrong or an ambiguity in the will when you start looking for the properties mentioned in the will or the persons instituted in the will.

When we talk of legacy and devise that only applies to the free portion which is usually half of the estate. So when you interpret the document as a devise or legacy, then limited only to the half but if we interpret it as inheritance, it will cover the entire estate. Q. What specific phrase in the will shows that what was really intended was for them to heairs and devisees or legatees? A. The use of the phrase “my heir in this testament” which

Four kinds of latent or intrinsic ambiguity

1.

provides that Agripina considered the heirs not as devisees or legatees. In the interpretation of wills, we should look into the intention of the testator, and by the use of the words “my heir in this testament“ then that intention to constitute the persons not

2.

merely as devisees but as heirs. Vda.de Villanueva vs Juico

3.

(4 SCRA 550)

The issue here is how to interpret the provision in the will of the testator. He bequeathed in favor of his wife properties for her use and under the condition that she should not remarry. Intention was to vest only with usufruct. Q. Did the testator leave a will here? What did he leave to his wife? A. In the will of the testator, he bequeathed in favor of his wife ½ of her certain properties for her use and possession

4. B.

Imperfect description of the heir, legatee, or devisee Ex. I hereby give my land in Samal to my bestfriend Juan. So walay mali sa will but when you start looking for that bestfriend , wala kay nakita nga n aa siyay bestfriend na si Juan. So kinsa man diay ni siya, this person being referred to? Imperfect description of the property given Ex. I hereby give my favorite bed to my bestfriend juan and then wala siaya bed sa iyang estate When two or more persons meet the description Ex. I hereby give my land in Samal to Juan, niya duha kabuok iyang bestfriend na Juan. When two or more things meet the description Ex. Duha iyang land so asa man didto Patent or Extrinsic - This is an ambiguity that is very clear,

apparent upon the face of the will. By just reading the will you will readily know that there is something wrong in the provisions



Ex. I hereby leave to some of my classmates my house in Jacinto St. Davao City . So what is wrong in that provision? Some of my classmates, who are these classsmates , pila ka buok? So here there is an apparent ambiguity. Now based on 789 how will we correct these ambiguities? What kinds of evidence can be used to correct these ambiguities? 2 kinds of evidence to cure the ambiguities in the will: 1. Intrinsic Evidence- evidence that is found in the will itself.by reading the will, you do not have to go beyond the will. If notarial will, maybe you can find it in the body of the will, in the attestation clause or even in the acknowledgement, as long as it is in the will itself it is considered as intrinsic evidence Ex. I hereby give my house and lot in Samal to my bestfriend Juan, and when you start investigating,wala siyay bestfriend na Juan but mayabe somewhere in the will nay narration si testator na “ I still remember when we were in grade 2 xxx” . so kinsa

mani siya? So that is a description, so if you can find the person who fits that description in the will, then that description is actually an intrinsic evidence , you can use that. 2.

Extrinsic Evidence - evidence which is not found in the will,

that is evidence gathered by looking be yond the will by investigating, interviewing,

Exception; however, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: a. An intrinsic ambiguity, mistake or imperfection in the written agreement b. The failure of the written agreement to express the true intent and agreement of the parties thereto c. The validity of the written agreement; or d. The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term agreement includes wills. What article 789 prohibits is the oral declaration pertaining to the testator’s intention. You cannot call a witness and testify “

ah kana si Juan/Joan, ako jud to, nanong kabalo man ka nga ikaw? Mao may giingon sa akoa sa testa tor tung buhi pa siya” how sure are we na it was really stated by the testator and of course you cannot ask the testator as he is already dead. So there is no way of verifying the truth of that declaration. So anything that will pertain to the supposed to that oral declaration of the testator-that cannot be allowed un der article 789. Death had already sealed the lips of the testator. So to place the parties in equal position, the law likewise seals the lips of the person alive- he cannot say anything regarding what the testator supposedly said during his lifetime. Ok lang kung nay gibilin na letter si testator at leat you can verify pero kung

Ex. I hereby give my house and lot in Samal to Juan, nya walay nakabutang sa will at all, wlaay description of Juan, wala pud kay nakita sa iayng mga bestfriend na Juan. But one of them nay letter, given to her by the testator during his lifetime nga promise jud bestfriend inig mamatay ko ihatag nako s aimo ang akong Samal property, but that person is not Juan, actually Joan siya. So the letter is an extrinsic evidence. Wala siya sa will but you can supply.

muingon kag “giingon jud ni testator” kana di jud na siya

How about testimonies of persons? Can we use that oral evidence? Yes.

July 7, 2016 (M.Acosta)

Rule 130 Section 9. Evidence of written agreements. When

the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed u pon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: a. An instrinsic ambiguity, mistake or imperfection in the written agreement; b. The failure of the written agreement to express the true intent and agreement of the parties thereto; c. The validity of the written agreement; or d. The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term agreement includes wills. General Rule, when you have an agreement and it is reduced into writing, you cannot introduce oral evidence to vary the terms of the written agreement. You have to rely on what is written because, it contained all terms and conditions agreed upon. So that is the parole evidence rule

maverify. So again you can correct latent or intrinsic ambiguity as well as patent or extrinsic ambiguity by either intrinsic evidence or extrinsic evidence. Extrinsic evidence may include oral evidence but again except those which pertain to those supposed oral declarations of the testator.

Recap: So again in Article 789, there are two types of ambiguitiesextrinsic ambiguity and intrinsic validity. And they can all be cured by extrinsic evidence or intrinsic evidence. When we say intrinsic evidence- evidence which is found in the will itself; whether in the provisions of the will or in the attestation clause or in the acknowledgement portion as long as within the four corners of the will. Extrinsic evidence may be documents, writings, made by the testator during his lifetime even oral evidence except the evidence pertaining to the supposed oral declaration of intent of the testator. So that is not allowed. Now, talking again about ambiguity, you remember in your obligations and contracts that if the contract does not express the true intention of the parties but there was meeting of the mind, what is the remedy for that? Reformation. If the other party does not want to voluntarily execute a new agreement correcting the mistake, then you have to file an action for reformation. How about a last will and testament? For example the testator said “ I promise kay ikaw man akong favorite na pag -umangkonI promise that I will give you 10 ha of my land in Samal, so happy kayo kay naa tagaan kag 10 ha and then now there is the last will and testament- ang nakabutang didto 1.0 unsa mana siya ten? It’s one diba. Ana ka karon nga di mani mao ang



giingon, and then giignan nimo imong uncle, cle 10 ha gud to imong giingon. Can you file an action for reformation? No. Arti cle 1366. There shall be no reformation in the ff:

1.) Simple donations inter vivos wherein no condition is imposed; 2.) Wills; 3.) When the real agreement is void. So it is clear under article 1366. Now take note of the first two, these acts involved acts of liberality or generosity. So, you cannot ask for reformation because if the donor or testator will insist na mao na to then you should only be thankful. At least gani gitagaan ka diba. So walay remedy of reformation na available. And of course when the real agreement is void, cause of course useless na magpareform ka to reflect the true agreement which is void. So that is also in connection to wills, so wills cannot be reformed. But you can use the different rules on interpretation to determine the true intention of the testator. But not to reform the will. Now we also have Rule 130 section 23 in relation also to oral evidence Rule 130 Section 23. Disqualification by reason of death or insanity of adverse party. –Parties or assignors of parties to a

case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. Again, this refers to testimonial evidence, meaning oral. For example, you have a claim against the e state of the deceased or the person and then he died and your claim is not in writing, and so he died, this time to whom or against whom shall you file? So against the estate, if there is executor or administrator so against them. The law says you cannot testify against or to any matter of fact occurring before the death of the deceased person, why? Because he cannot anymore dispute again your testimony. You cannot say the promise that he will pay within 10 days , unya kuan, again you cannot dispute that anymore as purely verbal. Ok lang kung naa moy written, you can prove that. So that is the survivorship disqualification rule. Again the same reason as that death seal the lips of the deceased person then to place the parties in equal footing the law will also base the, the law will also seal the lips of those who survive. Ok so they cannot testify, as to those facts occurring before the death.

Ar ti cl e 790. The words of the will are to be taken in

their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in the will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. Okay, so the rule here is ordinary terms in the will are to be given their ordinary meaning. Technical terms are also given their technical meaning. So what are ordinary terms? Those

terms which are understood in layman’s term. What is a table, a

chair. Technical terms are word which has their own meaning as defined in the rules or laws in a certain subject, discipline, science and the like. Example, when you say adopted, what do you mean by adopted? It’s a technical term. In law, when you say adopted – one who undergone the process of adoption.

When you say legacy, it is a gift of personal property. So these are technical terms. Ordinary terms as a general rule again are to be given their ordinary meaning. Technical terms are also to be interpreted in their technical signification. Now there is exception however, for ordinary terms again general rule given its ordinary meaning, except: When it is clear that there is an intention to give it another meaning Example. My favorite bed, but actually it’s a table but it has

been use by the testator as his bed, since day 1 until his death, so obviously you shall that a different meaning because the intention is that the table is considered as a bed, okay so based on the intention Technical terms given technical meaning unless 1. there is a contrary intention 2. when the testator prepared his will by himself and it is clear that he is unacquainted with the technical meaning of the terms So for example, the word adopted, kung naa ka sa bukid, ang axdopted sa imoha kanang gisagop, not necessarily having gone the process of adoption. So if there is a testator who made a will and provide that I hereby given ½ of my property to my adopted son A. how do you interpret the word adopted? Should you insist na no because he’s not legally adopted, he cannot

receive the inheritance because the testator said adopted. But in that case the intention is really is not the use of the technical meaning of the word adopted. But the intention is to give it to the person described, regardless of whether or not his legally adopted. Especially iof the person is unacquainted with the technical meaning. So ikaw lang man buhat2x sa will, I hereby give a legacy to x, and legacy refers to personal property and it is to be taken from the free portion. But what if the intention of the testator was to constitute the person as an heir, not really as a legacy as what we discussed before so you refer to the intention of the testator and whether or not he is really acquainted with the technical meaning.

Ar tic le 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. So another rule on construction of wills. Actually 791 is divided into 2 parts: First, 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- in other words the will must be interpreted as a whole Second, and of two modes of interpreting a will, that is to be preferred which will prevent intestacy- or as what we have already learned before testacy is favored over intestacy. 

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So these are the rules under 791. When we discussed the case of Balanay vs Martinez, the SC there interpreted the will as a whole not merely piece by piece or in isolation it even included



in the interpretation an act which is outside of the will, the renunciation made by the husband so as to give effect to that certain provision of the will distributing the conjugal properties. And also that of testacy over intestacy is discussed in Balanay vs Martinez. And also in Rodriguez vs Borja. So even if the intestate proceeding had already commenced ahead of the testate proceeding but still because there is a will the court has t0 exhaust all possible remedies to determine whether or not the will is valid. So the intestate proceeding cannot commence or even proceed if there is a will. If the will is found to be valid then there is no more room for the intestate proceeding to commence because the property will now be distributed according to the will. If the will is found to be void, then that is the time that intestate proceeding may continue. Yambao vs. Gonzales (1 SCRA 157)

This case involves the will of one Maria Gonzales - wherein a pertinent provision thereof provides “ dapat din naman

malaman ng dalawa kong taga-pagmana na sila Maria Pablo at Angelina Gonzales na sila ay may dapat tungkulin o gampanan gaya ng sumusunod: 2) Pahihintulutan nila na si Delfin Yambao ang makapagtrabaho ng bukid habang panahon, at ang nasabing bukid ay isasailalim sa pamamahala ng Albasea samantalang ang bukid ay nasa usapin at may urtang pa.”

Relying on the said provision, Yamabo now went to Gonzales to request that he be placed as tenant of the land, however, the latter refused. Q. so what is the issue with respect to that provision in the will? A. what would be the import of the word pahihintulutan; whether it be mandatory or merely discretionary Q. what did they do which gave rise to the controversy? What was the demand of plaintiff? A. that he be made tenant pursuant to the provision of the will Q. so what was the contention why they rejected the plaintiff? Where did they get the idea that it was merely a suggestion? A. Pahihintulutan as used in the will only means to permit or to allow but not to direct to appoint Yambao. So it connotes discretion. Q. so what was the ruling? A. The Supreme Court ruled that the will contains a clear directive to employ Yambao as may be seen from the words preceding the word pahihhintulutan which say dapat din naman malaman ng dalawa kong taga-pagmana na sila Maria Pablo at Angelina Gonzales na sila ay may dapat tungkulin o gampanan gaya ng mga sumusunod. The words dapat tungkulin o gangpanan mean to dio or to carry out as mandate or directive and having reference to the word pahihintulutan, can convey no other meaning than to impose a duty upon Gonzales and Pablo. Ok so here, the word pahintulutan has to be understood in relation to the words which preceded –tungkulin o gampanan. So which connote to carry out as directive. It does not imply discretion ok. So you cannot just interpret that certain provision in the will in isolation. The word pahintulutan should not be interpreted on its own. It has to be interpreted in relation to the opening sentence which says tungkulin o gampanan. And with

that when you reconcile those provisions, you interpret the will as a whole, it can be deduce that the intention of the testator is to constitute that as a directive. So the testator did not give the heirs the discretion even if the word pahintulutan was used cause again it was preceded by the word tungkulin o gampanan.

Ar tic le 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. So even if assuming some provisions of the will are void, as long as you can give effect to the other provisions they can separated. So just disregard those invalid dispositions. Unless of course the other provisions are dependent on the invalid provision, in that case you cannot give effect to the entire will.

Ar tic le 793 . Property acquired after the making of a

will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. 793, I mention this before when we discussed 781. As I said, article 781 is a rule on after acquired property that is one. Another is article 793. The law says “property acquired after the

making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will” what is the meaning

of this? First, this provision applies to properties acquired by the testator after he made the will but before his death. So this provision covers that situation where the testator executes a will “ I hereby give to A this parcel of land in Calinan

davao City covered by tct#14344 assuming that title has 10 ha what is that? That is a devise of a parcel of land. So assuming he made the will in year 2000 so kato nga land has 10 ha and then in year 2005 because of accretion the land increase in size, you learn before in land registration that accretion belongs to the owner of the land to which it is attached. So because of accretion nahimo siyang 11 ha ujpon the death of the testator in year 2010. Now can the devisee demand the 11 ha property? Can he demand the property including the accretion? Pursuant article 783-no. Only that property which exist at the time of the execution of the will. So unsa man ang existing as of year 2000 10ha lang now you ask what about the principle of accession? Does the owner of the principal acquired the accession? Actually yes, upon the owner of the land. So the testator owned that land. That is not included in the devise. Upon the death of the testator, the devisee can get the 10ha, how about the 1ha? It goes to the estate, kung walay nataagan sa will to the legal heirs of the testator. How is this different from article 7 81? Which says that the inheritance not only includes the property but also those which accrue after the opening of the succession? Well, 781 apply to those which accrue after the death of the testator. Had the accretion occurred after the death then that accretion will belong to the devisee. Assuming the testator die in the year 2010 wala pa to nag accretion so diba na land now by the devisee assuming that in 2011 di ha pa nag occur ang accretion, then it would belong to the devisee. Pursuant to article 781.



Why? Because from the moment of de ath, the devisee already became the owner of the land and as woner of the land he also owns whatever is added to or incorporated top the land or whatever accrues form the land. So in 2011 siya na ang tag iya pursuant to the principle of accession, principal owns the accession. Since he was already the owner at that time then he owns the accretion.

entire land. now, under the rules on legacies and devises actually, if the testator did not know that he only owned ¼ , so he thought that he owned everything and he give the property to the devise, then in that case- the devise will only be limited to the interest , so ¼ lang he cannot give what he did not own.

Take note 793 apples only to legacies and devisees. Ok so kato kung tagaan kag specific parcel of land and thre is an accretion that devise only includes the specific parcel of land not the accretion. When you say inheritance diba we have to distinguish devise, legacy and inheritance. Devise or legacy involves a specific personal or real property. Inheritance you have universality or the aliquot share or ideal share.

only the owner of ¼, I’m giving everthing. Is that possible? Yes,

The testator made a will in year 2000 in that will he said I hereby institute A as heir to ¼ of my estate, assuming in year 2000 the value of the estate was 10M over time kay dugay man namatay si testator nadugangan iyang estate, pagkamatay niya nahimo ng 20M iyang estate,. How much can the heir claim? Should it be 10M the value at the mtime of the execution of the will or 20M the value at the time of death? Take note ha ang heir is not limited to a specific property he succeeds to the universality of the properties, rights, and obligations. So if you are an heir article 793 cannot apply to you. Because again universal ang imohang succession. So whatever will be the value of the state at the time of death- that is the property that you get. Kung niingon si testator na to all alnagn naman na imong makuha lang kay katong 10M sa will. To all gyud at the time of death. The value at the time of death. So again this is one of the reason why we need to know the distinction between inheritance, devise, and legacy. What are the exceptions to article 793, where even those properties acquired after the execution of the will are included in the legacy or devise? 1. One exception is from the article itself, if it expressly appears by the will that it was the intention of the testator to also give the pr operty which is acquired after the execution of the will. So if the testator says I hereby give to A my parcel of land and whatever may be added to that property etc..then, clearly the devise includes the accession 2. Articles 930 and 935

But if he knew that at the time that he made the will that he is not the owner of the entire land but still he gave - although I’m how? In that case, there is now an implied order on the estate upon time of death of the testator to acquire the other portions form their owners so that the entire property can be given to the legatee or devisee. What if the owners refuse to give or sell the property to the estate? In that case the estate will give the devisee or legatee the share of the testator which is ¼, the remaining ¾ kay di man makuha sa tag-ya; then the estate would have to give the just value of the said portion to the legatee or devisee. So mao na xa. Unless it clearly appears from the will that he intended to convey a less interest. July 11, 2016 (K.Tongo)

Ar tic le 795 . The validity of a will as to its form depends

upon the observance of the law in force at the time it is made. Article 795 talks of the validity of a will as to its form. Actually when you speak of validity of a will there are two kinds. 2 kinds of validity: 1. Extrinsic validity - That refers to the forms and solemnities

that must be observed in the execution of a will. There are different forms, like, if you are already executing a holographic will you have to follow the formalities, for example the will must be entirely written, dated and signed in the hands of the testator. If it is a notarial will it has to have an attestation clause, it has to be acknowledged before a notary public, it has to have three witnesses, paging, so there are several requirements. So these are the r equirements referring to extrinsic validity, the forms, the appearance of the will. 2. Intrinsic validity - when you say intrinsic we are referring to

the legality of the provisions of the will. It refers to the substance. Extrinsic refers to the form while the intrinsic refers to the substance. Whether or not the properties disposed of in the will are owned by the testator, ownership of the properties. Whether the heirs to whom the properties are given are qualified, so that is capacity to succeed. Whether or not there is impairment of the legitime. Whether or not there is a valid disinheritance 

Ar tic le 794. Every devise or legacy shall cover all the

interest which the testator could devise or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest.

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Ok so rule on devises and legacies, it shall cover all the interest which the testator has over the pro perty. I hereby devise to A this parcel of land, so what is the understanding of that devise? Is it limited only to the usufruct? Limited only to a specific period? The law says whatever interest the testator may have over the property that is included in the devise or legacy. If the testator is the owner of the entire area then a ll the interest of the testator to that area shall go to the devise upon the death of the testator. So everything. Now how about if the testator only owns ¼ of that property, and in his will “I hereby give to A the entire parcel of land .so what is the effect of that? ¼ lang iyang ownership but he is giving the

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Those are matters pertaining to the intrinsic validity of the will. These are the two kinds of validity. Article 795 talks of extrinsic validity. This is actually the third time that you have heard of the word extrinsic. 1. Extrinsic ambiguity- an ambiguity that is clear and apparent from the face of the will. 2. Extrinsic evidence- that is not found in the will but is beyond the will. 3. Extrinsic validity- refers to the forms and solemnity that must be observed in the execution of wills.



It is the same thing with intrinsic ambiguity, evidence and validity. Again article 795 talks about extrinsic validity. Both kinds of validity, Extrinsic and Intrinsic can be viewed from two points. 1. From the view point of time 2. From the view poi nt of place and countr y I. FORMAL OR EXTRINSIC VALIDITY

1. View point of time: The time when the will is executed.

executed the will in 1923. Since at that time the Old Civil Code was in effect disallowing holographic wills therefore the Father Abadia’s will should not be allowed for probate. So here, 1923 is the time when the will was made and the Old Civil Code was still in effect specifically the Code of Civil Procedure. Actually even before that holographic wills were allowed, that was in 1907, but during the effectivity of the Code of Civil Procedure until August 30 1950 holographic wills were not allowed. So during the effectivity of the New Civil Code that was only when holographic wills were again recognized.

How do we know whether that will made in the year 2000 is valid as to form. Or that will made in 1935 is valid as to form. We have Article 795. The law says “It depends upon the

Principle: The legislature cannot validate a void will.

observance of the laws enforced at the time of execution of the

If it was void at the time when it was made, the subsequent changes of the law could not render that will effective. So take note again the extrinsic validity shall be governed by the law

will.”

So to determine whether or not the will is valid as to form as of the time when the will is made or executed, we have to look into the provisions of the law enforced at the time of the execution of the will.

enforced at the time of execution.

Abada vs. Abaja (GR 147145 | Jan. 31, 2005)

If the will was made in 1935, in order to know if it is formally or extrinsically valid then look at the provisions of the law in 1935. If it is made in year 2015 then look at the provisions of the law in 2015. So it is at the time when the will is made. Why? The formalities prescribed by law in the execution of the will are actually intended to prevent forgery and vices of consent in the execution of the will. It is to assure that the will is authentic. That it was really executed by the testator.

Q: What will was executed and what form? A: Last will and testament and in the form of notarial will.

Now these risks which are being guarded against by the law in providing for this provisions are present at the time of execution. The danger of forgery is present at the time o f the execution. Vices of consent of course should be p resent at the time of the execution. It cannot be for example you made a will and then the next day diha pa ang vitiated consent, it should be the time when the will is made.

Q: When did he executed the will? A: June 30 4 1932

It is for this reason that the testator has to o bserve the laws at the time of the execution of the will. What If the laws are changed? For example he made a will in 1935 and then in 1950 diba we had the New Civil Code? What if there are changes in the law? Should the testator comply again with those formalities prescribed by the new law? It is sufficient that the testator at the time when he made the will complied to the laws enforced. He cannot be expected to know what laws will govern in the future. That is the rule.

Q: There was a contention here that the will was not acknowledged in a notary public Why did it become an issue? A: Because at the time when the will was effected the law enforced was the Old Civil Code.

Q: What was the law enforced? A: the Old Civil Code and the law governing the execution of wills is the Code of Civil Procedure. Q: Is the acknowledgment before a notary public required in the Old Civil Code? A: Yes. But the Code of Civil Procedure repealed the provision requiring the acknowledgement of the notary public and it was provided in the Code of Civil Procedure that intervention of the Notary public is not necessary in the execution of the will. Therefore the will executed by Abada did not require the acknowledgment of the notary public. Q: What If he died after the effectivity of the New Civil Code? A: Still the Old Civil Code will apply pursuant to Article 795.

Enriquez vs. Abadia (GR L-7188 | Aug. 9, 1954)

Q: What formality of the will here is in question? A: The form of the will itself being a holographic will. So before August 30 1950 holographic wills were not allowed and even then the old civil code prescribed formalities which the will in this case did not comply. Such as the numbering of pages. Q: So what is the ruling of the Supreme Cour t here? A: The Supreme Court held that the holographic wills should not be allowed to probate because the law in effect during the time of probate, the New Civil Code which states that Article 795 The validity of a w ill as to its form depends upon the observanc e of the law in forc e at the time it is made. So here the Court looked at the time when Father Abadia

Here, even if subsequent to the execution of the will the New Civil Code took effect and required the intervention of the notary public in the execution of wills, even if he died during the effectivity of the New Civil Code and the will is presented for probate during the effectivity of the New Civil Code, because his will comply in the laws enforce at the time it was made then that would be sufficient Principle: Legislature cannot invalidate a valid will.

Here at the same manner if the will is relevant at the time of execution, the legislature cannot invalidate a valid will. 2. View point o f place or countr y Now let’s go to the view point of place or country in so far a s

extrinsic validity of the will is concerned. We are confronted with the question if for example the testator is in the Philippines what



law shall be followed? What if he is a foreigner in the Philippines? What if he is a Filipino abroad and he makes a will. What law should he follow, what country? For example he is a Filipino is he bound to follow the Filipino law when he is in Germany? Will he follow the law of Germany so far as the form is concerned? These are the questions pertaining to the extrinsic validity of the will from the view point of the place or the country. There are several situations with respect to what law shall govern. You should remember all of these situations.

celebracionis. Law of the place of celebration. Law of the place

of execution. If you are a Filipino and you execute the will in the Philipp ines then obviously Philippine Law will apply because it is the law of the place of execution. That is the general rule. You should remember article 17 because in all other cases this would also apply. Even if you have already forgotten all the other laws that would apply at least you can answer article 17. 2.

Abroad before the diplomatic or consular official of the Republic of the Philippines.

Arti cle 17. The forms and solemnities of contracts, wills, and

other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by law or judgments promulgated, or by determination or conventions agreed upon in a foreign country. Testator

Filipino

Alien

Place of Execution

Governing Law

Philippines Abroad before the diplomatic or consular official of the Republic of the Philippines. Abroad no longer within the diplomatic or consular office

Philippine Laws (Article 17) Philippine Laws (Article 17)

Abroad

Philippines

Follow Philippine laws as provided under Article 17. Even if the testator is in China but before the diplomatic or consular official of the Republic of the Philippines in China, he is still considered in Philippine soil. Because our consular and diplomatic offices are considered as extension of the Philippine Territory. 3.

Abroad no longer within the diplomatic or consular office

Article 17. Lex loci celebrationis . Law of the place of the execution. If he is in China then he can comply with the law of China. Art ic le 815 . When a Filipino is in a foreign country, he is

authorized to make a will in any of the forms established by law of the country in which he may be. Such will may be probated in the Philippines. Under Article 815 he can also follow the forms established by the law of the country or the place where he may be. Kung asa siya.

Lex loci celebrationis . Law of

the place of the execution. (Article 17) Or the law of the country or the place where he may be (Article 815) 1. The law of his residence Where he resides 2. Law of his country or nationality - National law 3. Philippine Law (Article 816) 4. Law of the place of the execution (Article 17) National law (Article 817) Law of the place of execution (Article 17)

A. When the testator is a Filipino:

Which is also the same as Article 17 because the law of the place of execution is the place where he may be. You cannot separate yourself in that situation. So if you are in China and you execute the will there you can also follow the law of China because it is the place where he may be and the place of execution. If you notice Article 815 it says he is authorized to make a will. Meaning, he is allowed to make a will following the formalities of the place where he may be. The use of the word ‘authorized’ actually signifies that it is just a

secondary law. It is not a primary law. He has to follow a set of laws but he has also authorized to follow the law of the place where he may be. Pursuant to Article 815 what is that primary law which that Filipino has to follow insofar as to the formality of his will is concerned? Philippine law. Because he is a Filipino. So, those are the laws which the testator as a Filipino can comply with when he executes his will abroad.

When the place of execution is: 1. In the Philippines

B. When the testator is an alien:

Follow Philippine laws as provided under Article 17. The general rule here is the law of the place of the execution. The law of the place where the will is made. Lex loci

When the place of execution is: 1. In the Philippines



Arti cle 817 . A will made in the Philippines by a citizen or

subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed to the laws of the Philippines. If he is an American and he makes his will in the Philippines, he can actually follow the law of his nationality- US Laws, insofar as the form of his will is concerned. They can follow his national law pursuant to Article 817. In addition to that is Article 17, the law of the place of execution. So as I’ve said he is a testator who is a foreigner and he

executes his will in the Philippines, the Philippines being the place of execution, he can also comply with Philippine laws in addition to his National law. 2.

Abroad

Arti cle 816 . The will of an alien who is abroad produces

effect in the Philippines If made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this code prescribes. Under Article 816 he can comply with: 1. The law of his residence - Where he resides 2. Law of his country or nationality -- National law 3. Philippine Law So those are the three choices he may comply with in so far as the extrinsic validity is concerned. In addition to that is Article 17: 4. Law of the place of the execution.

1. From the Viewpoint of time: The law in force at the time of death

How do we know if the will is intrinsically valid? Kung valid ba ang provisions sa will, legal ba siya, naa ba siyay preterition, invalid disinheritance etc. What law governs the intrinsic validity of the will from the view point of time. Art ic le 2263 . Rights to the inheritance of a person who dies,

with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore legitimes, betterments, legacies and bequest shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. Art ic le 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 is will or by operation of law. Based on these two articles what law shall govern the intrinsic validity of the will? 2263 says if the person dies before the effectivity of the New Civil Code, testate or intestate the rights to the inheritance shall be governed by the Civil Code of 1889 and other pre vious laws. If he died during or after the effectivity of the New Civil Code, testate or intestate, the rights to the in heritance shall be governed by the New Civil Code.

So he has actually four choices. In short, the Intrinsic validity shall be based on the law So if the testator is an American Citizen but he resides in Japan and he makes his will in Germany, so what law can be followed insofar as the extrinsic validity of the will is concerned? Any of those laws. If you noticed when a will is made in the Philippines, the testator has lesser choices compared to when the will is made abroad. When a will is made by a Filipino he has lesser choices compared to a will made by a foreigner. The one who has the least number of choices is the Filipino who makes his choice in the Philippines. One choice lang ang Filipino. And the one who has most number of choices is a foreigner-testator who executes his will abroad if you noticed the laws governing the extrinsic validity. Those are the laws which the testator as a Filipino can comply with when he executes his will abroad.

enforced at the tim e of death of the testator.

For example in 1925 the testator executed a will. In that will he omitted an illegitimate child. Take note that under the New Civil Code the illegitimate children have legitimes. They cannot be deprived of their legitime without a valid ground. If you omit illegitmate children, for example, you did not mention them in the will, you did not give anything to them in the will and there are not given some donation and you have exposed your property in the will, we have that situation of preterition. We will discuss that under Article 854 but the effect of preterition is that the institution of heirs in the will shall be annulled. In short, the will cannot be given effect because the institution of heirs is annulled. So when you omit an illegitimate child in the will there is preterition under the New Civil Code. But before the New Civil Code illegitimate children were not given successional rights.

II. INTRINSIC VALIDITY

We are talking of the substance, the legality of the provisions in the will. Whether it is a holographic will or a notarial will. When you say intrinsic validity as I have said we have to contend with two viewpoints: 1. View point of time 2. View point fro m the place or countr y

What if this testator in 1925 made a will completely omitting his illegtimate child? Is that will intrinsically valid? Can you say for sure that it is intrinsically valid? It depends. It depends when will the testator die. Because the intrinsic validity shall be governed by the laws enforced at the time of death. Dili pa kaingon na valid siya or void. If he died before the effectivity of the New Civil Code then that will will be perfectly valid because there will be no preterition. If that testator would die after the effectivity or during the effectivity of the New Civil Code then obviously that



will cannot be given effect because of preterition. Again it is the time of death. Why is it the time of death? Why is it the law that will determine the intrinsic validity? Remember when you say intrinsic validity we are referring to legality of the provisions. The transmission; Whether that person can validly receive, whether the omission is valid, so intrinsic validity actually would refer to the transmission, the capacity of the heirs to succeed, the validity of the provisions of the will. It is the time of death because as we have already discussed in Article 774 transmission happens upon death. So it is the time when we should measure whether or not the transfer is valid because again it is when transmission happens, at the time of death. So there is only one with respect to the intrinsic validity from the view point of time- The law enforc ed at the time of death! 2. From the viewpoint of place or countr y Arti cle 16. Real property as well as personal property is

subject to the law of the country where it is stipulated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found The general rule here in Article 16 is lex situs . Real property as well as personal property is subject to the law of the country where it is situated. However, when it comes to succession whether testate or

Q: How about the provisions on his will when he stated that the estate shall be distributed according to the Filipino laws? A: According to the SC , the said stipulation in the will cannot be given effect since it is considered void being contrary to law since Art 16 of the NCC provides that the National law of the decedent shall govern with respect to the order of succession, the amount of successional rights and the intrinsic validity in the testamentary provisions. So even if in succession the testator’s wishes constitutes the primary and principal law of succession. But if those wishes is against the law, in that case, we cannot give effect to those wishes however expressed it might be. Q: With respect to the issue on legitime you have mentioned article 17. We have that provision under Art. 17 wherein if the law involves public policy considerations, they cannot be rendered nugatory by conventions, laws promulgated outside the Philippines. How will you relate that to legitime? Because legitime is admittedly a matter of policy here in the Philippines. A: Whatever public policy and good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. It has specifically chosen the decedent’s national law to govern,

inter alia, the amount of successional rights. Furthermore it is provided that Article17 is more of a general type of provision compared to Article 16 which provides that the National law shall govern the intrinsic validity of the testamentary provisions. Specific provisions must prevail over general ones. It is very clear under Article 16 that when it comes to foreigners the intrinsic validity of their will shall be governed by their national law.

intestate the law says ‘both with respect to the order of

succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said p roperty may be found’

Whatever may be the nature whether real or personal property and wherever that property might be situated. It doesn’t matter.

It is always the national law of the decedent. So that is the law which governs the intrinsic validity of his will. Bellis vs. Bellis (GR L-23678 | June 6 1967)

Cayetano vs. Leonidas (GR L-54919 | May 30, 1984)

It has the same ruling as Bellis with respect to the system of legitimes not being extended to succession insofar as the estate of foreign nationals are concerned. In this case even if preterition was alleged you have to look into the national law of the decedent. If his national law recognizes the system of legitimes thereafter he omitted in his will the compulsory heirs then his will would not be valid. But if his national law does not recognized the system of legitimes therefore he can just omit in his will the compulsory heir. So it depends upon the national law.

Q: When you talk of distributions of properties and legitimes what aspect of the will’s validity would that be?

A: Legitimes and distributions, these matters pertain to the intrinsic validity of the will. Q: So what is the ruling of the Supreme Court? A: The SC said that Texas law should be applicable following the rule stated under Article 16 of the Civil Code which provides that the order of succession, the amount of successional rights and the intrinsic validity in the testamentary provisions shall be governed by the National law of the decedent. Bellis is a citizen of Texas, the law that should be followed would be the Texas law. Since the Texas Law does not recognize the concept of legitimes, the oppositors are not entitled to what they are trying to take.

Llorente vs. CA (GR 124371 | Nov. 23, 2000)

When he died he was already a naturalized citizen of US. In that case, upon his death with respect to the distribution of his estate which is a matter pertaining to the intrinsic validity of his will, that should be governed by his national law. Q: What if he made a will before he became a US citizen. Would that affect his will? A: No ma’am. Because when he later acquired US

citizenship, his national law will govern. Q: For example when he was still a Filipino and he made a will and then he omitted certain compulsory heirs in the will. But he was naturalized then he died. Would the will be valid? (he died when he was naturalized)



A: Yes Ma’am because what would govern is his National

law. If the question is if the will is extrinsically valid, that would depend on his compliance of the law enforced at the time he made a will. What were his options? If the will is made in the Philippines then he should comply with Philippine laws insofar as the extrinsic validity is concerned. If he made a will abroad he can follow either the Philippine laws or the law of the place where he may be or the law of the place of execution.

Our courts do not take judicial notice of foreign laws Except: 1. When the said laws are already within the actual knowledge of the Court as when it shall be known 2.They have been actually ruled upon in other cases before the Court and not the parties concerned claim otherwise In that case, the same law was already made an issue with the same court before so obviously the Court has already knowledge with that particular law. It can take judicial notice. Miciano vs. Brimo

Insofar as intrinsic validity of the will is concerned wala ta kabalo. That would be determined at the time of his death. But because when he died he was already an American so the intrinsic validity of his will should be governed by his National law. Whether or not the omission of certain compulsory heirs is valid would depend on what American laws would provide.

(GR 22595 | Nov. 1, 1924)

Q: What particular provision he opposed? A: He opposed the provision that the estate should be disposed in accordance to the Philippine laws because according to him it should be based on his nationality —the Turkish law.

If he did not become naturalized definitely it would not be intrinsically valid because we recognized system of legitimes under the Philippine law. That is, if he died during the effectivity of the New Civil Code. If you are referring for example to a legitimate children, before the effectivity of the New civil code dili pud tanan compulsory heirs are entitled to legitimes like illegitimate children.

Q: So anyone who would oppose that provision would be excluded, he opposed so can he be excluded? A: No Ma’am . According to the Court he cannot be excluded because the condition imposed in the will is void being contrary to law because as provided in

So you really have to be familiar with the extrinsic validity from the view point of time and from the view point of place or country. And intrinsic validity from the view point of time a nd from the time of place and country.

good morals shall be considered as n ot imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise

So just remember there he was naturalized and it should be his national law at the time of his death

Said condition is contrary to law because i t expressly ignores the testators national law when, according to Article 10 of the Civil Code above quotes, such national law of the testator is the one to govern his testamentary dispositions.

PCIB vs. Escolin

Article 792 of the CC “impossible conditions and those contrary to law or

provide”

(56 S 266 | March 29, 1974)

However all other provisions in the will not contrary to Q: So what law shall govern here with respect to the distribution of the estate? A: The law of Texas based on Article 16, his national law. Q: In that case he was a resident in the Philippines but a citizen of U.S. As you said pursuant to Article 16 the distribution of his estate shall be governed by his national law. How do we know what are the provisions of his national law? A:The provisions of his national law must proven and alleged by presenting authentic copy of their civil code or jurisprudence and works of experts and authorities. So we do not take judicial notice of foreign laws. Our courts do not assume what are the laws of Texas, California, Mexico etc because we do not study foreign law. Nagkalisud lisod na gani mog study ug Philippine laws tapos nag expect pa ta na kabalo mog foreign laws. Grabe napud na siya. Those laws have to be alleged. It means that in your pleading you have to allege what are these laws and then prove the existence of these laws like any other fact. You should introduce evidence as to what are these laws because again we present there; what would be there civil code, rules of court, jurisprudence in the matter, expert testimony. So those are visible pieces of evidence to prove the existence of these foreign laws.

testator’s national laws are perfectly valid and effective.

In short because that provision of the will is void, anyone who opposes that does not lose inheritance. Because it shall be considered as just not written. Q: With respect to the issue on the partition because it was allegedly against the provisions of Turkish laws, you said that the oppositor was not able to present what are the laws of turkey on the matter. So what would be the consequence of that? A: The approval of the scheme of partition which was submitted by the judicial administrator of the estate is considered as proper. Q: Why would it be considered as proper? A: Because of the doctrine of processual presumption that in the absence of evidence that the laws of turkey are not the same with PH then it would be presumed to be the same as in the PH. Q: How would you apply that to the partition made? A: Since it is not shown that the partition which was submitted by the judicial administrator violates the Philippine laws on the matter then they are admitted. So here the Supreme Court applied the Doctrine of processual presumption. Although under the case of PCIB vs



ESCOLIN our Courts do not take judicial notice of foreign laws they have to be alleged and proved like any other fact. But if there is no evidence presented, the presumption is that, those foreign laws are the same as Philippine laws. It is the doctrine of processual presumption.

[That is actually the first question in the bar exam last year, the reprobate.] So it has to be reprobated here in the Philippines.

So there being no evidence that the partition made in the Philippine contradict Turkish laws, the presumption is Turkish laws are the same as Philippine laws. Upon examining the partition made in relation to Philippine laws there appear no contradiction so, the Court approved the partition.

Q So what are the matter that must be proved during reprobate? 1. The foreign court is a probate court 2. The law of country and the procedure of the probate Court has been complied with 3. The legal requirement for the execution of a valid will is complied with in that Country.

So this is a case where even if supposedly the national law of the decedent should govern the intrinsic validity of his will, like the partition of his estate, the distribution, in the end, the Court applied the Philippine law using the doctrine of processual presumption.

Q: So what If those matters are not proved during reprobate in the Philippines? A: The reprobate shall be disallowed.

Ancheta vs. Guersey-Dalaygon (GR 139868 | June 8, 2006)

We cannot apply the doctrine of processual presumption here. The Court said that being a foreigner, the intrinsic validity of his will should be governed by the law of the State of Maryland and that while foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them; however, petitioner, as ancillary administrator of Audrey’s estate, was duty bound

to introduce in evidence the pertinent law of the State of Maryland.

In case of reprobate proceeding we cannot just presume that the Rules of Court in China are the same as the Rules of Court in the Philippines that, in the absence of proof the will shall be allowed. No. Those are technical matters and procedural ones which must be proved in the Philippine Courts. In the absence of proof then the reprobate proceeding shall be dismissed and the will shall be disallowed. So that is the difference with the reprobate proceedings. We cannot apply here the doctrine of processual presumption. In The Matter Of The Testate Of Christensen vs. Garcia (GR 16749 | Jan. 31, 1963)

Atty. Anchetta contended that he had no knowledge of the Philippine laws and pursuant to the doctrine of processual presumption if he cannot present evidence as to what are the foreign laws in issue then it is presumed that these laws are the same as Philippine laws. But in this case the lawyer cannot just rely on the doctrine of processual presumption.

Q: What was the citizenship of testator at the time of his death? A: An American Citizen residing in California.

1. He actually participated in the probate proceedings in the US. So they have actual knowledge on the laws apply during the proceeding. 2. They had a big library. They have a big law firm and they have access to those foreign laws to search those foreign laws. So it is not an excuse for him to rely on the presumption that the laws of the US are the same as the law of Philippine under the doctrine of processual presumption.

There are two laws here. The California probate code it states that the testator may may dispose of his property by will in the form and manner he desires. That is the internal law.

Suntay vs. Suntay

Q: What law shall govern the distribution of his estate? A: National law—California.

But there is another law, Article 946 which states that If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile.

(GR 3087 3088 | July 31, 1954)

Q: If for example there is really that will which was probated in China can that will already probated in China be automatically implemented in the Philippines, to distribute the properties located in the Philippines? A: No Ma’am. It must be proved that the municipal district

court of Amoy is a probate court and also the law of China in the procedure or probate of wills must also be proved. And the legal requirements for execution of a valid will in China. Q: What do you call that proceeding? A: Reprobate proceeding. There is already a probate in China and our courts do not automatically recognize that probate. The properties in the Philippines cannot be distributed based solely on the probate abroad. So there has to be another proceeding in the Philippines and that is reprobate proceedings.

Q: So what will govern? A: Article 946 because it specifically applies to him. He was a resident of another country but a citizen of California. The other one, the California p robate code applies only to those who are citizens and residents of California. So you apply article 946. The California Probate Code is what you call their internal law and Article 946 is what you call the conflicts of law rule. In the Philippines we have also our conflicts of law and internal law. Article 16 is our conflicts of law rule. Now pursuant to referring back made by the California law we do not go back anymore to Article 16. We already refer to or internal law on succession, in that case our laws on legitime.



The referring back is called the renvoi doctrine. Actually this is the first case when the renvoi doctrine was discussed by the Supreme Court. This person Christensen actually live in Davao Del Sur. I was able to talk to one of the heirs here in one of the case. She said: ‘are you familiar with the renvoi doctrine?’ ‘yes Ma’am’ ‘you know in the case, that is actually my father, Lucy”

This is another exception to the r ule. Supposedly when the decedent is a foreigner, we follow his national law not the law of the Philippines. But because of the renvoi doctrine ultimately here we apply the Philippine law. So there are two cases: the application of the doctrine of processual presumption and the application of the renvoi doctrine. Why is it that in referring back the matter to the Philippines we already apply our internal law? It is because if we refer back it to California such action would leave the issue incapable of determination because the case will then be like a football, tossed back and forth between the two states, between the country of which the de cedent was a citizen and the country of his domicile. The courts shall take cognizance of the situation and a pply its internal law. July 18, 2016 (I.J.Abad)

Recap: So we already discussed Arti cle 795 . Article 795 merely deals with the extrinsic validity from the viewpoint of time. But we also discussed extrinsic validity from the viewpoint of place and country, as well as intrinsic validity from the viewpoint of time and from the viewpoint of place and country. So if you’re asked, what laws govern the validity of wills, the n

your answer must be Comprehensive. You must discuss both intrinsic and extrinsic validity from both the viewpoint of time and place or country. Subsection 2: Testamentary Capacity and Intent

Ar ti cl e 796. All persons who are not expressly

prohibited by law may make a will. Testamentary Capacit y. General Rule : As long as you are not

prohibited by law, then all persons can execute wills. Now, we are talking here of testamentary capacity. What constitutes testamentary capacity? How do we know if a person has testamentary capacity? So when we say Testamentary Capacity, generally speaking, it refers to the qualifications of a person to execute wills. What are those qualifications? We will discuss that. Authorities also mention Testamentary Power . Testamentary capacity is discussed in the New Civil code, but testamentary power is not mentioned. Are they the same? Loosely speaking, they both refer to the same thing which is the qualifications of a person to execute wills.

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But strictly speaking, there is a difference. When we say testamentary capacity that is the one referring to the qualifications of a person to execute wills. When we say testamentary power that is the privilege or the authority given by the State to the citizens or subjects to execute wills.

So, a person can have testamentary capacity if he has the qualifications prescribed, but may not have testamentary power if he lives in a place or in a country where the citizens or subjects are not allowed to execute wills. Or a person can have testamentary power but no testamentary capacity. Like he lives in the Philippines where we are allowed under the NCC to execute wills. But if the person is insane, he does not have testamentary capacity, he does not have soundness of mind which is one of the qualifications prescribed by law. So strictly speaking, testamentary capacity is not synonymous testamentary power. And it doesn’t follow t hat if you have testamentary capacity, you have testamentary power, or vice versa.

Ar tic le 797 . Persons of either sex under eighteen

years of age cannot make a will. Here, persons of either sex, male or female or those in between, they can execute wills but should be at least 18 years old. Q: When we say 18 yo, what are the different theories in the meaning of 18 yo? A: Under the Spanish law, the 18th birthday should have passed before one can make a will. Q: So if my birthday is today, I cannot yet execute a will and have to wait for tomorrow? A: No. On the day of your 18th birthday you can now already make a will. Q: What if I was born 1 pm and so today is my 18 th birthday, assuming it is 9 am now, can I already make a will or do I have to wait for 1 pm? A: Under the Spanish Theory, you can already make a will as long as the day of your birthday has come. Okay, so as long as the 18 th birthday has already passed or commenced, you don’t have to wait for t he exact hour, you can already make a will. Q: What is the other theory and explain? A: The American Law which states that if the day preceding your 18th birthday has already commenced, then you can already make a will. If today is today is your birthday, then yesterday, you can already make a will. So the day before your 18 th birthday you can already make a will. Q: What is the third one? A: Under the New Civil Code, which states that 4 days prior to your 18th birthday, then you are already considered 18 yo, therefore you can already make a will. Q: Why are you considered 18 yo already? A: The NCC took note of the fact that there are leap years. Since there are a leap year once every 4 years, then they arrived at a conclusion that 4 days before your birthday you may be considered 18 years old already.



Q: in 18 years, how many leap years are there? A: 4 leap years

disposed of, the proper objects of his bounty, and the character of the testamentary act.

Q: What do you mean by leap year, how many days are there in a year in the NCC? A: There are 365 days in a year and if it is leap year, there are 366.

The first paragraph gives us the negative definition of soundness mind, it is not necessary that the testator be in full possession of his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other causes.

Okay, that is the theory under the NCC. Because there are 4 leap years, so there are 4 years there containing 366 days. Under the NCC, there should only be 365 days in a year, therefore you may be considered 18 four days before your birthday.

Even if the person is actually suffering of something, he could still be considered of sound mind in so far as succession is concerned. So bisag naa kay gamay actually, pwede gihapon as long as the requisites under the 2 nd paragraph are present.

Q: What is the theory followed under our jurisdiction? A: We follow the Spanish law theory. As long as it is already your 18th birthday, you can execute wills. Q: Can you think of an example where the NCC theory would be relevant? In contracts, for example, you are the lawyer of the other contracting party and he entered into a contract with a person who allegedly is not yet 18. He signed the contract 2 days before his 18 th birthday, so now he alleges that the contract is voidable because he was a minor at that time. So being a lawyer under the defendant, you can allege that under the NCC, at the time he entered into the contract he was already 18 yo. Because there are 18 365 days in the NCC for you to attain the age of majority, technically you can argue that. -

Or may be in criminal law, when your client has been accused of seduction kay 2 days before the 18 th birthday, something happened. So you can say na she was already 18, 2 days or even 4 days before her birthday following the principle under the NCC. So those would be relevant situations.

Okay, so 18 means if today is your 18 th birthday, you can already execute a last will and testament. Obviously, all of you here are qualified in so far as Article 797 is concerned. Let us go to Articl e 798.

Ar ti cl e 798. In order to make a will it is essential that

the testator be of sound mind at the time of its execution. Okay, Artilce 798 is another qualification. Article 797 says at least 18 years old, and Article 798 is soundness of mind, both at the time of the execution of the will. The qualifications of age and soundness of mind must be present at the time of the execution of the will. What do we mean by Sound Mind?

Ar ti cl e 799. To be of sound mind it is not necessary

that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be

The second paragraph gives us the positive definition. The law says “It shall b e sufficient if the testator was able at the time of making the will to know: 1. 2. 3.

the nature of the estate to be disp osed of, the prop er objects of his boun ty, and the character of the testamentary act

These are actually the requisites of a sound mind. You should memorize this. If you are asked whether in our exam or in the bar exam, and there is a problem given which calls for the determination of whether the testator is of sound mind, you should measure it based on the 3 requisites. Nature of the estate to be disposed of .

So he must have a sufficient recollection of his properties. He must be able to comprehend the kind, quality and character in general. So at the time when the person makes a will, he should know that he still has properties. He should say, know that he has lands in Calinan, he has cars, well he might not be able to know exactly tungod sa kadaghan. Or that he has several cash in his bank accounts, no need to know the exact amount, as long as he knows in general their kind or character, that is sufficient. Proper objects of his bounty . He must be aware of the proper

persons who would naturally be supposed to have a claim upon him. Kabalo siya at the time that he made a will that he had a spouse, children, brothers for he affirms when asked. Pero if muiingon siya na wala, pero naa diay, wala na siya kaila na naa diay siyay mga anak , then in that case he would not be

considered on sound mind. Must know t he character of the testamentary act . We

discussed this before when we mentioned about the essential characteristics and elements of wills. A testator must have animus testandi. He must have the intent to make a will. And he can have this when he knows the character of the testamentary act, primarily. When he makes a document, he should understand the meaning of such document. That it d isposes his properties to those persons mentioned in that document after death. He should know that basically. Because if he did not know at the time of the execution of the will, the consequences of the act, then he cannot comply with the 3 rd requisite. That is why he cannot have a sound mind, then the will would not be valid. Soundness of mind is also the reason why only natural persons can execute wills. Because, again, a juridical person cannot have a sound mind. It does not have physical existence. So this is only peculiar to natural persons having a sound mind. Based on the requisites under Article 799, can a person suffering under the penalty of civil interdiction be allowed to



execute wills? The consequence of civil interdiction is actually mentioned in Article 34 of the RPC:

the requisites under 799. The SC said that the fact that she had Addisons disease, she even benefitted from that for it afforded her physical and mental rest.

Articl e 34. Civil interdiction. Civil interdiction shall deprive the

offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos. So what does this mean? He can execute wills because he is only prohibited to execute intervivos. When we say wills, the properties here are disposed mortis causa, hence, he is qualified to execute a will. Spendthrifts or prodigals also, they are qualified. Again, just go back to 799. If the person is able to require the 3 re quisites under the 2nd paragraph, then he is of sound mind. Now, the degree of mental capacity to constitute testamentary capacity or incapacity will be discussed in several cases. What happened in the case of Torres of Lopez? Torres vs. Lopez Q:What was the specific condition of the testator here and what is the consequence of which? A: Senile Dementia. When one has senile dementia, there is degeneration of the mental capacity. Q: What is the issue here? A: W/N the testator has a sound mind when he executed the will. The SC said that senile dementia is not a reason that a person would be considered of unsound mind. One must have a complete senile dementia to be of unsound mind. Here, it was not a complete dementia. So, the fact that the testator had senile dementia did not automatically mean that he did not have soundness of mind.

Bagtas vs. Paguio Even if one is suffering from paralysis, his head was tilted to one side and saliva was dripping from his mouth, still the SC said he was of sound mind, basing on the first definition of soundness of mind in Article 799 and he complied with the 3 requisites. His body may be broken by disease or injury but if he knows the nature, object and the character of the testamentary act, that would be sufficient. Baltazar vs. Laxa Q: What were the specific instances cited by the SC here showing that she still complied with the 3 requisites? - The SC said that a scrutiny of the case shows that she was aware of the nature of the document she executed. Because in the will she expressly requested that the customs of her faith be observed upon her death. So she knows that those properties in her will will be disposed of after her death. - She knew that these properties were acquired by her through her parents, so she knew the nature of the properties to be disposed of. - And she said, she bequeathed the property to Lorenzo, his wife and his children. So the testatrix here knew the proper objects of her bounty. Being magulyan or forgetful is not equivalent to being of unsound mind. Also, in the case of Avel in o vs. Dela Cr uz, the SC said, blindness is not equivalent to an unsound mind. Because in fact, under the NCC, we have this new provision applying to a person who is blind but he wants to execute a will under Article 808. They are recognized to have testamentary capacity.

Q: How about the fact that he was placed under guardianship? As long as he could still comply with the requisites under 799. Being placed under guardianship is not conclusive as to the unsoundness of mind. A person can be placed under guardianship, not only for that reason. There are several reasons why a person may be placed under guardianship, such as if one is a minor, a spendthrift, a prodigal, under civil interdiction, advanced age, insane.

Insomnia, under the case of Caguia vs. Calderon , so that will not affect the soundness of mind. a. TB or Tuberculosis, in the case of Yaptu…. , b. DM in the case of Samson vs. Corrales Tan c. Old age in the case of Hernaez vs. Hernaez

The SC said, each case rests on its facts and must be decided by its own facts. It really is a case to case bases.

Q: How did the testator sign the will? A: Lying down and assisted as her thumbmark was printed on the will.

How about unsoundness of mind? What would be those situations where a person would be considered to be on unsound mind? When we say that a perfectly balanced mind is not essential for one to possess a sound mind, actual insanity or unsoundness of mind is also not n ecessarily required to constitute testamentary incapacity. So even if you are not insane, you can still be considered o f unsound mind and therefore disqualified to execute a will.

Q: So, her hand was guided, will this affect the validity of the will? A: No.

We discussed before in the case of Torres vs. Lopez that senile dementia is not equivalent to unsoundness of mind, unless it is complete. Or you are already in an advanced case of

Neyra vs. Neyra

So again, to be considered on sound mind, a perfectly balanced mind is not essential. When you made the will you are able to comply with the requisites mentioned in Artilce 799.

Alzheimer’s disease, you are not insane in that case but you are

Even if the body was weak, even if she was lying in bed, she could not stand, her hands were guided, the only effect there would be on the body and not on the mind. We are talking here of soundness of mind. As long as she could comply with

of unsound mind. State of unconsciousness, for example, at the time when you allegedly made the will, you were unconscious or you were in a



coma, of course you are not insane when you are in a coma, but how can you possibly execute a will in that condition, that is equivalent to unsound mind. When a person is under excitement or stress in such a way that he could no longer recall intelligently the extent of his property, etc. Sa sobrang kalipay kay nakadaog kag lotto and then pataka nalang kag panghatag, that is equivalent to unsound mind, even if you are not really insane. Drunkenness or drug addiction. D ili mana siguro sila buang, pero kung nagbuhat ka og will sa imong kahubog, or sa imong ka high, will the will be valid? Of course not . Dili ka of sound mind.

As to the IQ, what would be the threshold for a person to be considered of sound mind and therefore can make a will? We have 3 groups: 1. Idiots – IQ average of 25. They are congenitally and intellectually deficient. They cannot take care of their bodily needs and they cannot be trained. In so far as succession is concerned, they are of unsound minds and therefore they cannot execute wills. 2. Imbeciles – IQ average of 26-50. They are mentally deficient because of disease, but they can be trained to take care only of their bodily needs. Under succession, they are of unsound minds and therefore they cannot execute wills. 3. Morons – IQ average of 50-70. They can learn reading, writing, simple math, they can be self-supporting. Under succession, they can execute wills. These are the groups where the IQ is made as a threshold as to whether or not a person can make wills. What is the effect if a person is proved to be of unsound mind when he made the will? Of course the will would not be valid, that is a ground for disallowance of wills. Again, we only have 2 requisites for testamentary capacity (if you forget that, forget about taking the bar exam), age and soundness of mind. That is very easy to remember.

Ar ti cl e 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 mindat the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. Under Article 800, the presumption is every person is of sound mind. General Rule: Soundness of mind or sanity. What is the consequence of this presumption? The p roponent of the will does not have to prove that the testator was of sound mind at the time when he made the will. He does not have to present evidence that the testator was of sound mind because that is already presumed. If the oppositor alleges that the testator was of unsound mind at the time when he made the will, then he has the burden o f proof to present evidence showing that the testator was n ot of sound mind. And the burden of proof here is higher which is clear and convincing evidence. This is the second to proof beyond reasonable doubt. Under the hierarchy in evidence:

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Proof beyond reasonable doubt Clear and convincing evidence Preponderance of evidence Substantial evidence

However, on the second paragraph, we also have that reverse presumption noh. But again, because of the general rule, it would be safe to answer na at the time he made the will, the testator was of sound mind. Of course, after citing all the requisites under 799. But, again, in the second paragraph, the testator was not of sound mind at the time when he made the will. Under 800, we have the following situations: 1.

2.

The testator is presumed to be of unsound mind. When the testator is publicly known to be insane, 1 month or less before making the will.

Take note, publicly known to be i nsane, dili siya secret. Kabalo tanan halos sa community na siya insane, it is general knowledge. From the time he made the will, 1 month or less, 1 month is 30 days or less. Pero pag 2 months before he was publicly known to be insane upon making the will, that presumption will no longer apply. Here, the period of time, because of the proximity, it is presumed that when he made the will, he was not yet cured. Here, the presumption is he is not of sound mind. But ofcourse, if cured na jud diay siya on the time when he made the will, or he had lucid intervals, the you can present proof of his soundness of mind when making the will. But again, because of this presumption, the burden of proof shifts to the proponent of the will, and again it is by clear and convincing evidence. Another situation when the presumption is on the unsoundness of mind. In the case also of Torres vs. Lo pez, when there is a judicial declaration of insanity before the execution of a will, then the presumption is at the time when he made the will, the testator was still insane. When can there be a judicial declaration? Example in Guardianship, you file a petition for guardianship on the ground that the person is insane, of course the court will still make an investigation on the mental condition and if the court is satisfied na insane gyud siya, then the court will appoint a guardian. So in that case you have a judicial declaration. Under Special Proceedings, petition for the hospitalization of insane persons, here, for example naa kay nahibal-an na insane and then the family doesn’t want na ipahospital siya and you think that there is danger to the lives of the people in the community because of this insane person, you can file for such. After the court makes a determination of his mental condition, then the court may grant. Even though not public, even though not 1 month or less basta merong judicial declaration, the person is presumed to have made that will in an unsound mind. 3.

That is Under th e Rules of Court. Rule 131, section 3(ee):

(ee) That a thing once proved to exist continues as long as is usual with things of that nature; This is on the provision relating to Presumption in evidence.



Here, insanity of a general or permanent in nature, shown to have existed in 1 time is presumed to have continued. Like for example, this person, he was born with a mental defect, he is an “abnormal” all throughout his life he had that condition then suddenly mawala siya sa general public, wala na ka kabalo kung asa siya, sa States ba etc. and then nahibal-an nimo na namatay siya and then naa siyay last will and

testament. What is now the presumption? Can we apply the first situation as publicly known within 1 month or less, pero wala man kay news sa iyaha since 2 years ago. So you cannot apply that. He was not also judicially declared insane. But he was of that mental condition since birth? Can you presume that he was cured and of sound mind when he made the will? NO. Once his condition was proved to exist, the pr esumption here is it continues because it is usual in so far as he is concerned. So, insanity of a general or permanent in nature, shown to have existed in 1 time is presumed to have continued. The presumption is he made that will in an unsound mind. Anyone who files a petition when he made the will has to prove that at the time when he made the will he was of sound mind. So these are the 3 instances when the presumption is the reverse, that the testator was not of sound mind. Other than that, the general rule is on the soundness of mind. Going back to this, what if you will have to prove the mental condition of the testator, either you are the oppositor or you are the proponent of the will, what are the pieces of evidence admissible to prove the mental condition? Ramirez vs. Ramirez Q: So, who were presented as witnesses to testify the mental condition of the testatrix? A: 2 physicians and the notary public Q: In so far as the notary public is concerned, what is the nature of his testimony? First, when a document is acknowledge by a notary public, what is now the consequence of that? And being such, what pre sumption is being accorded to that document? A: The document becomes a public document, accorded with great weight. It has the presumption of regularity. Q: Here, was the testimony of the notary public given great weight? Why? A: He was evasive thus not given great weight. So, when he was asked as to whether or not when the will was acknowledge to you, was he of sound mind, he did not categorically answered. He just said, yeah because that is what is stated in the acknowledgement. He could not directly and fully commit as to the status and mental condition. Here, the testimony of the notary public, in general ha, during the probate of the will is entitled to great weight. That is the general rule. However in this case, it was not applied because the notary public was evasive, tends to bend the issue, he could not commit as to the mental condition of the testator.

So as we have mentioned also, the physician can be a witness to prove the mental condition of the witness, now in the case of Samson vs . Corales-Tan.

Samson vs. Corales-Tan Q: Who testified in so far as to the mental condition? What did the doctor say? What is the ruling of the SC with respect to the will? Was the testimony of the doctor given weight? Was he the attending physician? So here, the doctor who has given the testimony was not the attending physician, therefore, the SC said, what he had was merely a speculation compared to the testimony of the other witnesses, the SC gave more weight to the other witnesses’

testimony. But again, remember, if he is the attending physician, then his testimony is entitled to great weight. Aside from that who else can testify? Take note we have 2 types of wills: Notarial and Holographic. when it comes to Notarial wills, aside from the acknowledgement by the notary public, we have also the testimony of at least 3 credible witnesses. During the probate of the will, if the notarial will is not contested, the testimony of 1 subscribing witness is sufficient. But if the will is contested, then all the witnesses plus the notary public must testify. So we already mentioned of the acknowledging notary public, the attending physician, then the attesting witnesses can also testify. The attending witnesses were present during the execution of the will. They witnessed the demeanor of the testator when he signed the will based on their observations, even if they are not doctors. What if it is a holographic will? Wala may attesting witnesses sa holographic wills? Then again, you can p resent the doctor who must be the attending physician, other witnesses like iyang mga kauban sa balay, so they can testify as to his mental condition.

Ar tic le 801 . Supervening incapacity does not

invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. So the Principle of Supervening Capacity or Incapacity . Again, just remember, what is important is the testator must be of sound mind at the time when he made the will. If he was insane before, it doesn’t matter, or even after 2 hours he made

the will, would it invalidate the will? Still no. As long as when he made the will he was of sound mind. The supervening incapacity will not invalidate a valid will. What if when he made the will he was not of sound mind, later on naayo na siya,and then nakita niya iyang will ( aahh gwapoha diay sa akong will oi, Im sure if tarong ko og panghuna huna dili ko kabuhat og ingon ani na will) and he decided to adopt the will kay impress kaayo siya. Taguan niya hangtud sa namatay siya,

is that will valid? He was able to read that when he was of sound mind, would that now cure the defect? Supervening capacity also will not validate a void will. When he was not of sound mind when he made the will, technically the will is not valid, even afterwards he was already of sound mind. So unsa iyang buhaton? Because he really wants that will and he wants to give it effect. We have a procedure for that, that is what we call as Republication of Wills. He should republish that.



So, supervening capacity will not validate an void w ill, in the same way na supervening i ncapacity will not invalidate a valid will. The same lang siya sa atong gidiscuss before sa

extrinsic validity of wills, the legislature cannot validate a void will, they cannot also validate a void will.

Ar tic le 802 . A married woman may make a will without

the consent of her husband, and without the authority of the court. Here, the law says a married woman. She can make a will even without the consent of the husband and even without the authority of the court. Let us discuss this with Article 803.

Ar tic le 803 . A married woman may dispose by will of

all her separate property as well as her share of the conjugal partnership or absolute community property Again a married woman may dispose in her will her separate property and also her share in the conjugal or absolute community property. How about a married man, can he execute a will without the consent of his wife? Can you find a specific provision with respect to that? I will give you 100 if you can find. So are we saying that a married man cannot kay wala man sa Civil Code? Well, of course you know that the married man can. This is just written precisely to make it clear that the married woman does not lose her separate personality to execute a will just because of marriage. Just to make it very clear kay with respect to men, there was really no doubt that they could execute wills or dispose without the consent of the wife etc. This is just to clarify the rights of a married woman. We have already discuss before that she or he cannot dispose of the conjugal partnership, but only his or her share. Because a will should dispose only o f ones separate properties. So ownership must be by the testator or testatrix.

tong gitatuan, asa ka mangita og proof as to the content of the

will. It may be short hand, long hand, 1 page or more, as long as in writing. The other requirement under 804 “executed in a language or dialect known to the testator” so this requirement again applies

both to notarial wills and holographic will. Because how will we be sure that the will contains the wishes of the testator if the does not know the language of the will. How about interpretation? The will was in French unya ang testator kay bisaya, giexplain sa iyaha, would that be sufficient? The law says in a languor or dialect known to the testator. Explanation or interpretation will not cure the defect that it should be in a language or dialect known to the testator. Why is it not sufficient that it was explained? First, how do we know that the explanation was correct or even if the explanation was correct, how do we know that it was understood by the testator? We cannot ask the testator if he understood it because he is already dead. The only guaranty that the will is understood by the testator is that it should be in a language or dialect known to him. Now with respect to the language requirement, is it possible that there are several languages used in the will? Yes for as long as all those languages are known to the testator. There is no requirement na only in 1 langauge. What is important in this language requirement is there is a presumption that the will is in a language or dialect known to the testator. What then are the consequences of this presumption? -

First, it is not required to write in the will that this will is in a language or dialect known to the testator, it is not required although it is advisable.

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The fact that the will is in a language or dialect known to the testator can also be proved by extrinsic evidence. You can prove that, even by parole or oral evidence

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Third, no need to state in the attestation clause of a notarial will that the will is in a language or dialect known to the testator. Because under 805, there are matters there that must be stated in the attestation clause. If those matters there are not stated, generally the will is not valid.

Subsection 3: Forms of Wil ls Ar tic le 804 . Every will must be in writing and executed

in a language or dialect known to the testator. We are now in the formalities of will. We have 2 types of wills in the Philippines. With respect to 804, this provision applies to both wills, notarial or ordinary wills and holographic or holograph wills. Every will must be in writing. Oral wills are not recognized here in the Philippines even if you have 1 thousand witnesses, that is not valid. We have what we call as Non-Cupative wills. These are wills orally made by the testator in contemplation of death and before competent witnesses. Are this wills valid? NO. The law says must be in writing and that is mandatory. Kanang mga nasa tv na oral lang, kanag mga sa teleserye na wala giresearch og tarong, dili na siya valid. We cannot have an

oral will. Even if nakavideo siya, dili manka sure gihapon. What if nakaatubang diay siya og armalite while ginavideohan? So, only written wills. When we say written, how? There is no specification, pwede siya computerized, encoded, handwritten, giukit sa bato. How about gipatattoo? Well you can argue kay written man ang tattoo, ang problema lang mamatay

Abangan vs. Abangan The will was written in a Cebuano dialect. So the testatrix here was a resident of a neighbouring locality. The presumption here was that the language was known to the testatrix. In fact, it is the presumption. You don’t have to

present evidence for that presumption. It is also very logical, because for example, bisan pa og naa ka sa Davao unya nagbuhat ka og will in Cebuano sa Cebu, pare par eha lang man ag language, specially if neighbouring, kung sa Bohol ka. The presumption is kabalo nana sila. In fact, ang mga taga Cebu nakaadto og Bohol and vice versa. There is a connection. July 21, 2016 (I.J.Abad)

Recap:



Last meeting we discussed the language requirements: The will has to be in a language or dialect known to the testator.

Q: How then will we prove that the will is in the language or dialect known to the testator? A: Through Extrinsic evidence.

This is a mandatory requirement. As we have discussed, there is a Presumption that the will is in a language or dialect known to the testator. As consequence of this presumption: 1. No need to state this in the will 2. There is no need to state it in the attestation clause 3. The fact that the will is in a language or dialect known can be proved by extrinsic evidence or evidence alliunde. Reyes vs. Vidal Q: Were there witnesses here who testified that the testatrix knew the Spanish language? A: None. However circumstances here provide that she is knowledgeable about the Spanish language as evidenced by her letters, her marriage to a Spaniard, she being a mestiza etc. Q: Was there an application of the presumption? A: Yes. Okay, just remember that there is a presumption that the will is in a language or dialect known to the testator. And it is not the burden of the proponent of the will to prove, it is the burden of the oppositors to prove that the language of the will is not known to the testator. So even if, as you said, there were no witnesses here who testified that the will was in a language or dialect known to the testatrix, still, the presumption was not rebutted. Because first, the records of the case would show that the testatrix was a Spanish mestiza, married to a Spaniard, had several trips to Spain and made letters in Spanish, so definitely she knows the Spanish language.

Q: What is extrinsic evidence or evidence alliunde as distinguished from intrinsic evidence? What is its nature? A: These are evidence which not found in the will, these are gathered when you go out of the will. Like the letters in the case of Reyes, they are not found in the will. But it can still shed light on whether or not the testatrix knew the Spanish language. Q: Aside from Extrinsic evidence, what else? In the first place, does the proponent of the will have to prove that the will is made in the language or dialect known to the testator? A: No, because there is a Presumption. We can rely or invoke the presumption that it is made in a language or dialect known to the testator. But in this case the presumption was not applied. The testator was a Bisaya residing in Manila. No relation between the Spanish language in the will and the testator. So based on the cases, although again we have the presumption, but before the presumption can even arise, you have to take note of the facts of the case. If there is nothing in the circumstances of the testator which would suggest that he knew the language used in the will or there was a connection between his circumstances and the language used in the will, then it is either the presumption did not arise, or even if the presumption did arise, such was contradicted and destroyed. So if you are given a problem, if you can see lang based on the facts that the will was in French, pero ang testator nagpuyo sa Sigaboy sa tunga-tunga sa island didto, wala gyuy anything na nakaadto siya og France or n agskwela siya of French, so here,

we could not say na French is the language of Sigaboy. You can say that the presumption did not arise, or even if the presumption did arise, such was contradicted and destroyed. Just read the case of Abada vs. Abaja, we will discuss that in another topic.

Acop vs. Piraso Here, although we have the presumption, the SC said na it did not arise. Q: But what if it really did arise, what would be the consequence given the circumstances in this case? A: It will be defeated by the facts that controverted the presumption. Okay, the SC said the presumption would still be wholly contradicted and destroyed because of the contrary evidence. He primarily knows the Igorote language with a smackering of Ilocano. Take note in this case, it is either: 1. The presumption did not arise because of the contrary evidence, or 2. It did arise but it was wholly contradicted and destroyed. Javellana vs. Javellana The language of the will here was Spanish. There was nothing in the will which states that the testator knows the language used in the will. There is also nothing in the attestation clause stating the same.

NOTARIAL WILLS

Ar tic le 805 . Every will, other than a holographic will,

must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental



witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. It says every will other than a holographic will, it means this article applies only to notarial wills. You have to memorize this article, not word per word, but all the requirements for notarial wills for absent compliance with any of these requirements will be a cause for the disallowance of the will. You have to know everything, you can summarize the specific requirements. The requirements mentioned in Article 805 are of equal importance. Dili ka makaingon nga you can just do away with the others, they must be all complied with. Except of course, there are certain situations when the SC said that the failure to comply could be excused on the ground of substantial compliance, but we will discuss that under Article 809. General Rule: Formalities in the execution of wills are to be

strictly construed. Failure to comply would be a fatal d efect. What are these specific requirements? 1st . The will must be subscribed at the end by th e testator himself, or the testator’s name is written by some other person, in the presence and under the express direction of the testator . 2nd . The testator or the person r equested by him to sign his name, and the credible witnesses of the will shall sign each and every page of the will on the left margin except the last page. 3rd . All the pages shall be numbered correlatively in letters and such is placed on the upper part of each page. 4th . The will must be attested and subscribed by 3 or more credible witnesses in the presence of the testator and of one another.

For the 1 st requirement: 1st . The will must be subscribed at the end by th e testator himself, or the testator’s name is written by some other person, in the presence and under the express direction of the testator .

“JDC?” Pwede gihapon, if it is a notarial will. So how about if he

stamps, thumbmark, cross or a smiling face? When it comes to signature in a notarial will, these marks would be allowed if: 1. 2.

That is his custom ary sign ature, or Even if not his custo mary signatu re but he intended that mark to be his sig nature.

In those cases, it would be a valid signature in a notarial will. Leano vs. Leano So the name of Christina Valdez was written by a third person and she intended the cross to be her signature, so that is acceptable. That is a valid signature in so far as a notarial will is concerned. Garcia vs. Lacueste Q: Who was the testator here? Who signed or who wrote the name of the testator? A: Antero Mercado was the testator while a third person, Atty. Florentino Javier signed I behalf of the testator as alledged. Q: With respect to the will itself, was the will valid? A: Not valid. Q: Was it because of the cross? If the cross was not the usual signature of the testator or i f there was no evidence that it was the intention of the person to constitute it as his signature, would that already make the will void? A: No, that alone could not invalidate the will because a third person can also sign in behalf of the testator. Q: But would that now make the will valid because it was signed by the lawyer Atty Javier? What is the requirement? Because here, the SC said we disregard the cross, and this is as if the will was signed by the third person in behalf of the testator. What is the requirement in that case? A: It should be stated in the attestation clause that Atty. Javier was caused by Antero Mercado to sign for him. Q: Was it written in the attestation clause? A: No. Q: What is now the consequence of that? A: It made the will void.

Here, this talks about subscription – pirma. Who will subscribe? The law says the testator will subscribe the will. Or the will can also be signed or subscribed by another person but such signing by the other person must be in the presence of the testator and under his express direction.

Okay, so here the fact alone that the will was signed by means of a cross and the cross was not the valid signature of the testator, would not invalidate the will because it could be a will signed by a third person in behalf of the testator. But there is an additional requirement for that, it has to be stated in the attestation clause, that is the problem in this case.

With respect to the signing, what should be affixed in the will? What should be signed? Of course, the signature of the testator. How about if it is done by another person, what should he sign? He should still affix the name of the testator, not his name because he is not the testator. He is merely signing for and in behalf of the testator. He should write the name of the testator.

Here, the attestation clause failed to state that the will was signed by the testator in behalf of a third person. That omission made the will void, not because the will was signed by means of a cross which was not the customary sign of the testator. Again, it would still be valid.

Now, with respect to the testator as we said, he should affix his sign, how? If his name is Juan dela Cruz and signs with the

Now, with respect to a third person signing in behalf of the testator, who can be this person? Is there a limitation as to who can be this person? In a notarial will, there are attesting witnesses.

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same “Juan dela Cruz” then that is his full signature. What if he signs “JD Cruz?” Meaning, not his full name? That is also

allowed if it is his customary signature. What if he signs with Page 46 of 69 Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]


Question : Can one of the attesting witnesses sign in behalf of

the testator? In the case of Barut vs. Cabacungan , 21 Phil 61, it was held that anybody may sign for the testator even one of the subscribing witnesses. In the case, however, of In re Will of Tandico 45 Phil 807, the SC said that okay for one of the witnesses to sign, so long as there are other witnesses, I mean 4 witnesses na apil didto ang nagsign . Because the minimum requirement for a notarial will is at least 3 witnesses. Kung 4 witnesses and isa didto ang nagsign sa will in behalf of the testator, that would be sufficient. Going back to the case of Barut vs. Cabacungan , even in this case where the SC allowed if there were 4 witnesses. We can say that, a witness can sign the will in behalf of the testator so long as there are more than 3 witnesses. ￫

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Signing by a third person, in the presence and under the express direction of the testator. Presence. When we say that the signing of a third person is in the presence of the testator, what d o we mean by “presence?” ￫

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Ideally, this third person should be able to see this 3 rd person signing in his behalf. ( Test of Visio n ) But, jurisprudence would tell us, that even if the testator would not see the signing, it would be sufficient also. Even if he did not actually see the signing, but he was in the position to see. That would be the Test of Position . Katong isa, test of vision.

How about if the testator is blind? So he cannot see and he would not be in the position to see because he is blind. We apply here the Test of Availabl e Senses. Even if he did not see, but the fact that his will was being signed is within his available his senses, like he heard ang pagkuris-kuris sa ballpen kay kusog kaayo ang pagsign . Or na smell niya ang ink sa ballpen. Or touch. As long as within the range of his available senses. Or the Test of Mental Apprehension . Even if he did not see, but at the back of his mind he already knew that his will was being signed. We can apply this also to the signing of the witnesses. Under his Express Direction . The signing must be expressly

authorized by the testator. When we say expressed, that is different from implied. Here, the instruction must come from the testator. The testator shall by word of mouth or action, clearly indicate to the proxy an instruction to have his name signed to the instrument. So silence here does not mean yes. There must be a word, instruction or direction that must precede the act. It is not mere acquiescence. Again, when it comes to the signature by the testator in a notarial will, he can sign whether by his full signature, his initials, stamp, smiley, or cross for as long as it was his customary signature or he intended that mark to be his signature. Even if the name is misspelled, that would not be a problem. What if he signed using his alias? Okay lang. pwede man gani ang smiley face. How about electronic signature or digital signature under the ECommerce Act? Pursuant to the present law, these signatures are attached in pursuance to transactions or contracts. Dili pa recognize na i-apil sa will, because a will is not a ￫

transaction, it is not a contract. As of now, e-signatures is not valid. Where should the testator sign in the will? The law says at the end. So for example, if the will’s provisions is only up to half of the sheet of paper, do you mean to say na the testator should sign sa iwitan jud sa papel sa pinakaubos? The law only means

the Logical end, not the physical end. What is the purpose for putting the signature on the logical end? To prevent unauthorized insertions. The end here means the logical end, that portion after the testamentary provisions and before the attestation clause. ￫

What if, after the will, signature, a ttestation clause, then there are some insertions or additional provisions. Nakalimot siya, tagaan diay niya si X, iyang neighbour, so nagbuhat siya og

additional provision, what is the effect of such additions? Are those valid? Or should we just disregard these additional provisions and give effect to the will? Or invalidate the whole will? That would invalidate the whole will, why? Because if you add some more provisions after the signature, then the signature would no longer be the logical end. That is a matter of form but it is important. That would now invalidate the entire will, because the form which says the will should be signed at the end is no longer complied with. This is only for a notarial will. ￫

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Unsa may buhaton sa testator kung gusto jud siya naay idugang? ￫

He can make a codicil or a new will, that is the proper procedure.

2nd requirement under Article 805: 2nd . The testator or the person requested by him to sign his name, and the credible witnesses of the will shall sign each and every page of the will on the left margin except the last page.

We are talking here of signing in the marginal signatures located at the left hand side of the will. Halimbawa 3 pages iyahang will, and the testamentary

provisions ended in the second page. W e have the attestation clause signed by the witnesses and the acknowledgement signed by the notary public. The law says, there should be marginal signatures. These should be on the left side, how about kung nisulat siya sa right? Well, gahi siyag ulo because the law says left, but it does not invalidate the will. Jurisprudence would tell us that marginal signatures could be written on the left hand, right, bottom or the top. But, ideally sa left margin. Somebody asked me nganong sa left? Maybe because if magsulat ka mas dako og margin sa left as compared to the other sides. The law says, except the last, why? Because ordinarily, the last page would already contain all the signatures. Again, even if the law says: each and every page of the will must be signed in the left margin by the testator and the witnesses, tan-awon lang na nimo if the page already has



signatures, you don’t need to sign in the margins (i.e., if the end of the will is on the same page sa attestation clause). The

purpose of the marginal signatures is for identification. So that later on when the will is being presented for probate, the witnesses could identify that it is the very same will to which they attested to some 20 years ago. W herever the signatures may be located, it doesn’t matter because that would also serve the purpose of identification. Maidentify man gihapon basta naa lang ang pirma. Sa exam still valid if, even if there are no signatures in the

margins but there are still signatures in the attestation clause. How about sa last page with the acknowledgement? You don’t

even have to sign the margin here. Remember, even if attestation clause lang, as long as signed by witnesses, even if the page containing the attestation clause is not signed in the margin by the testator, that would still be valid. Because technically speaking, the attestation clause is not the will. The will is the act of the testator. The attestation clause is the act of the witnesses. If you only have a one page will, andun na lahat yung disposition and attestation clause (the acknowledgement is signed only by the lawyer) do you still have to put marginal signatures? No more, because you already have all the signatures in the page. No need to place marginal signatures. Again, as long as the pages of the will are already complete in the signatures, you don’t need to put

marginal signatures. But for example the attestation clause continues in the 3 rd page where the acknowledgement is and in the second page the testator has signed already in the logical end of the will, of course you would still need marginal signatures of the witnesses in the second page but no need for the testator to again sign in the margin. Again, when we talk of marginal signatures, we are referring to the signatures of the testator and the 3 credible witnesses. Now the law says credible witnesses. What do we mean by credible witnesses? What happened in the case of Gonzales vs. CA? Gonzales vs. CA We are talking here of the credibility of the witnesses during probate. It is during probate that the witnesses will testify. During probate proceedings, the witnesses who attested to the execution of the will, will be called to testify in court for purposes of the will. But there was an objection here saying that prior to presenting the witnesses in the witness stand, there should be separate and independent evidence to prove that they are competent and credible. That was the contention. Q: When we say he must have all the qualifications in Article 820 and none of the disqualifications in Artilce 821, what do you call that witness technically? A: Competent witness. Q: What did the SC say about being credible? A: That would depend upon the appreciation of the court on the testimony of the witness.

disqualifications, and you must testify based on truth and not hearsay. Q: Why is that there is no need to present prior independent evidence for credibility? To what proceeding did they likened the probate such that these prior evidences are needed? A: Naturalization proceedings. Q: What do you call the witnesses in naturalization proceedings? A: They are called character witnesses, they testify as to the character of the alien wanting to be naturalized. But in probate proceedings, the witnesses are not character witnesses. They do not testify as to the character o f the testator, even if the testator was a rapist, a criminal, he can execute a will. The witnesses in probate pr oceedings only testify as to the facts attendant during the execution of the will. As to credibility, again, we go to Article 820 and 821 – competence. There is no need to present prior and independent evidence. So, the witnesses in the execution of n otarial wills are called: 1.

Credible witn esses.

2. Att est in g w it nesses - because they attest the execution of the will. 3. Instrumental witnesses - because they are witnesses to the instrument. 4. Marginal witnesses - because they sign in the margin. These witnesses should be the same persons, they should be identical. Let us go back to the signing of the margins. How about if the will is contained in 1 sheet of paper pero back to back. Do they still have to sign in both the front and back pages? Yes because the law does not say sheet but pages. 1 sheet may have 2 pages. As I have mentioned before, if the last page contains only the attestation clause, the testator need not sign in the margin, that is in the case of Fernandez vs. De Dios. Taboada vs. Rosal The will here contains 2 pages. The first page contains the entire disposition of the testatrix while the second page contains the attestation clause and acknowledgement. In the first page, the testatrix signed at the end of the will while the witnesses signed at the left margin. Oppositors alleged that the will was not valid saying that it is not enough that the testatrix sign at the end of the will, the 3 attesting witnesses should also sign at the end of the first page. Q: Why is it that according to them there is still a need to sign at the bottom by the 3 witnesses? A: Because they contend that the witnesses not only attest to the genuineness of the dispositions but also to the genuineness of the signature of the testatrix. Q: So what is the ruling of the SC? A: The 3 witnesses fully complied with the law. Q: What would be the significance of the signatures of the witnesses in the margins? A: For the identification of the signature of the testatrix as well as the genuineness of the testamentary dispositions.

So when we say credible witnesses, you must be competent, must possess all of the qualifications and none of the Page 48 of 69 Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]


So the purpose covers not only for the execution of the will itself but also the genuineness of the signature of the testator. And again, as we have discussed, the signatures can be placed at any portion, left, right, top, bottom, for as long as there are signatures that would be sufficient to constitute as marginal signatures. So marginal signatures, again, every page must be signed at the margin by the testator and the 3 witnesses, but if there are already signatures appearing on that page, there is no more need for that person whose signature appears in the will to also sign in the margin, for as long as every page contains signatures. But again, if it is just the attestation clause, no need for the testator to also sign in the margin because it is not the will, it is not part of the will, although it is required for wills. What is the effect if one signature is omitted in the page of the will, walay signature? The GR, that defect is fatal, that would invalidate the will. Icasiano vs. Icasiano There were 4 copies of the will, only in the original copy that there was one omission of signature in a page. In the other copies, all the signatures were complete. Here, the SC said, the omission of the marginal signature of 1 witness in the original copy was excused. We should not blame the testator for the inadvertence or negligence of 1 witness. Take note in this particular case, there were other copies. But if isa lang ni siya , only 1 orginal copy and 1 was not signed and there are no other copies, there would be a different ruling. The will will not be valid. But in this case daghang copies, the principle of substantial compliance was actually applied by the SC. Take note of the facts, dili nagpasabot na kay naay isa ka omission, okay lang. Katong dire lang kay naay laing copies, which copies are signed. Let us go to the 3 rd requirement of Article 805. 3rd . All the pages shall be numbered correlatively in letters and such is placed on the upper part of each page.

What is the purpose of the numbering? 1. To guard against fraud. 2. To forestall any attempt to suppress or substitute any of the pages 3. To prevent any increase or decrease in the pages 4. To afford means of detecting the loss of any of its pages Kay kung walay page number it would be easy to add a page or

to get 1 page. So here, the true wishes might not be re ally expressed in the will. Now, the law says numbered correlatively in letters, “PAGE ONE” you have to spell out. How about you just used Roman

numerals or letters? In different cases it is acceptable: Unson vs. Abella : Arabic numerals Aldaba vs Roque: Letters (A,B,C) Nayve vs Mojal : Numbers (1,2,3)

Okay lang as long as you can identify the first, the second, the

third, of course consecutive. The law says on the upper part, what if sa bottom nimo gibutang ang page number? Okay lang gihapon it doesn’t matter as discussed in the case of Fernandez vs. de Dios. The paging may be placed on the top, bottom, left, right or even in the text itself. Please discuss this case in relation to the paging requirements. Fernandez vs. de Dios The will has 4 pages, but the 4 th has no number, the first 3 were numbered. The attestation clause itself, the 4 th page, contains a statement saying that it consists of 3 sheets beside this sheet. The defect was cured by such statement in the 4th page, though it was not numbered. It is now evident that such page was the 4 th. Q: What kind of evidence is that? A: It is an intrinsic evidence. Although there is an omission because they should have written the page number, but it was cured, because of the statement in the 4 th page. It supplied the omission that it was actually the 4 th page. It is intrinsic evidence because it is found within the will. You don’t have to go out of the will to

know that it is the 4 th page and that is allowed. If for example, there are several pages and the first page is unnumbered. Walay nakasulat sa page 1. Is it valid? In the case of Lopez vs. Liboro , Yes. How would you be mistaken that such was the first page nga naa naman dira ang title. That is not a fatal defect. In the case of Abang an vs. Ab ang an, isa lang jud ka page, if there is only 1 page, 1 sheet, naa na tanan didto tapos walay nakabutang na page? Would it be fatal? No. The purpose of paging is to guard against the loss of the pages. Kung mawala ang isa ka page, wala na kay will. There is no need to put the page number in the will if it is only a 1 page will. It is also not necessary to put the page number in the 1 st page because it will be obvious na it is the first page. Let us go to the 4 th requirement: 4th . The will must be attested and subscribed by 3 or more credible witnesses in the presence of the testator and of one another.

So, we already discussed that the notarial will requires at least 3 credible witnesses. What would these witnesses do? Before, we discussed that they should sign in the margin. That is what we call as the Subscription – the signing in the margins and also the signing in the attestation clause. Signing means subscription. Aside from that, of course they Att est. What the witnesses do is to attest and subscribe. What do we mean by attest? And how do we distinguish that from subscribe? When we say attest, meaning they witness the execution of the will, aside from it is the mental act, they sign which is also a physical act. Both attestation and subscription must be done by the witness. It is not enough that the witness only attest, they must also subscribe. It is not enough that they only subscribe, they must also attest. To distinguish: Att estati on

In Re Pilapil : Partly in letters and partly in figures Page 49 of 69 Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]

Sub scri pt ion


Consist in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of the will and that the signature of the testator exists as a fact. A mental act, an act of the senses The purpose of attestation is to render available proof of authenticity of the will and its due execution To attest a will is to know that it was published as such and to certify the fact required to constitute an actual or legal publication

The signing of the witnesses names upon the same paper for the purpose of identification of such paper as a will executed by the testator

Yes, based on the test of position. He could have easily cast his eyes in the proper direction when he wanted to do so. There was no physical obstruction. Therefore, the will was considered valid. Maravilla vs Maravilla Q: What were the positions of the testator and the witnesses? A: They sat next to each other in a round table, Ma’am.

A mechanical, an act of the hand The purpose of subscription is identification. Thus, indicates that the will is the very instrument executed by the testator and attested to by the witnesses To subscribe a paper published as a will is only to write on the same paper the names of the witnesses for the sole purpose of identification

Take note, both the acts of attestation and subscription by the witnesses must be done in the presence of the testator and of each and every one of them.

Okay, so according to the Supreme Court, there was no need for the witness to positively identified the signature. Q: When was the execution of the will here? A: It was executed 14 years ago, Ma’am. Q: So that witness, before he testified, how many times did he see the signature of the testator? When? A: Only once Ma’am. During the actual signing of the will.

Okay. So it would also be incredible if that witness who only saw the signature of the testator once, fourteen years ago, would still positively identify that “yes that would be the signature of the testator”. It is not necessary for him to

identify as long as he testify that he was in a position to see the signing. Again, that satisfies the “in the presence” test. 3. Test of Available Senses

July 28, 2016 (J.Mortejo)

When subscribing and attesting the execution of the will, the law says “The attestation and the subscription must be d one in the presence of the testator and of each and every one of the witnesses”. What do we mean by “in the presence”? We have four tests : 1. Test of Vision 2. Test of Positio n

Jaboneta vs. Gustilo Q: So when he (Isabelo Jena) was about the leave, what was his position at that time? A: According to Jena, the last witness (Javellana) was already in a position ready to sign. Q: Did he see? A: He did not actually see the actual signing of the will. Q: Why? A: Because he is in the act of leaving and he turned his back already when Javellana signed the deed. Q: So he had his back turned?

Q: How about if the testator is blind? Would he be in a position to see? A: No, Ma’am.

So he could not satisfy the test of vision. He could not also satisfy the test of position. Q: Unsaon man na siya? Would the will be valid? A: The will would still be valid through the test of available senses. Okay. So the would still be valid if the signing was within the gauge of his other available senses. Q: What if the witness is blind? A: The witness should be disqualified, Ma’am.

Q: Why? What if the blind witness was really there and he was present during the execution of the will? And he said during probate that “I did not see but I use my other available senses”

A: It will not satis fy the requirements of the law, Ma’am. The Court said that the test would be not the actually seeing the instrument signed but whether they might have seen each other signed. Q: So what’s the status of the will?

A: Yes, Ma’am.

A: It would be void.

Q: So what test was used here? A: Test of presence and position, Ma’am.

Okay, so the issue here was when one of the witnesses was in hurry to leave and he had h is back turned, obviously he was not able to see when the document was signed.

Okay. It would be void because one of the witnesses is disqualified. Take note that the “Test of Available Senses” can

be (mode a way?) in so far as the testator is concerned, if he is blind, but not if the witness is blind. Because under ( Articl e 821? 820 man gud ang n ag-mention abou t blin dness sa witness), the witness who is blind is disqualified.

Q: But did he satisfy the test of presence?

Nera vs. Rimando

A: Yes, Ma’am.

There was just a discussion by the Supreme Court here that, for example if there was a curtain separating the testator and Page 50 of 69 Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]


some witnesses from the other witnesses, the test of presence would not be satisfied. Why? Because if there is a curtain, then there is now a physical obstruction. So, they cannot see. But here of course, we are assuming that the curtain was ___, dili gyud na maklaro. But what if it is only a glass? Can you say that the will is void? Glass partition? In that case, they can still see if they wanted to see. So in that case, the will would still be valid. Here, the SC, in so far as the curtain was concerned, the will is void because again of the physical obstruction. Is there a requirement that the witnesses should sign ahead of the testator? Or that the testator should sign ahead of the witnesses? In the case of Gabriel vs Mateo , the SC said it does not matter. As long as the signing was sufficiently contemporaneous and made on one occasion and as part of a single transaction. So if the witnesses signed first before the testator, it’s not a problem.

As long as on that occasion itself, they all signed the will, including the margins and the attestation clause. Why is there a requirement that the signing and the attestation must be made in the presence of the testator and of each and every one of the witnesses? To prevent false testimony. Because if you are witnesses of one another, it would be v ery difficult for you to invent that “I was there” but the other witnesses would say “I did not see you”. So that’s the reason. To make it more difficult the invention of false

testimony by the witnesses since they are made witnesses of one another.

What is important in the attestation clause? Those matters in Articl e 805. So memorize what are these matters which MUST be stated in the attestation clause: 1. The number of pages used upon w hich the will is written.

Take note that before, we discussed that the will must be numbered or that it would be in letters. So there must be pages. Aside from the fact that there is a page number in each page of the will, the total number of pages used must also be mentioned in the attestation clause. Ex. “This will consist of 5 pages, including this attestation clause.”

So there is ___ if what is really the total number of pages of the will. Because if there is no such statement, even if there are page numbers in each sheet or page of the will, we still don’t know how many pages really composed the will. To prevent increase and decrease in the pag es, again that’s another

requirement; to state in the attestation clause the total number of pages in the will. Azuela vs. CA Q: What was the kind of will executed here? A: A notarial will, Ma’am.

Q: And then, in the attestation clause? A: In the attestation clause Ma’am, there was a blank space

where the number of pages should have been inserted. Q: What was that specific statement in the attestation clause?

4. Test of Apprehension

A: “Ang kasulatang ito, na binubuo ng ____ dahon pati ang

ATTESTATION CLA USE

huling dahong ito, na ipinahayag sa amin ni Eugenia E. We have illustrated this before so first; we have the testamentary dispositions. Below that, the signature of the testator. After that, the attestation clause and then the signature of the three witnesses. After that, we have the acknowledgement and the signature of the notary public. So aside from the fact that the witnesses attested or witnessed the execution of the will, that fact of witnessing must itself be produced into writing. This is what we call the attestation clause. The attestation clause recites the attendant facts during the execution of the will. There are matters that must be stated in the attestation clause. If in reality the will was witnessed and attested but there is no attestation clause, then the will would not be valid. So the fact of attesting + the attestation clause, the act and the written document preserving in written form what happened during the execution of the will. So as defined, an Att estati on Cl aus e is that clause of an ordinary or notarial will, wherein the witnesses certify that the instrument has been executed before them and the manner of the execution of the same. It is a separate memorandum or record of facts surrounding the conduct of execution. And once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by the law has been observed. The purpose is to preserve in a permanent form a record of the facts attending the execution of the will. So that in case of death, absence or failure of memory of the subscribing witnesses or other casualties, the due execution of the will may still be proved. It is the best evidence of the facts attendant during the execution of the will.

Igsolo, xxx” So there was a blank space in the attestation clause Ma’am.

Q: What was the contention of the proponent of the will? A: The proponent of the will Ma’am contends that this

requirement in the attestation clause was merely a d irectory provision and not mandatory. Q: So what kind of requirement is this? A: It’s a mandatory requirement, Ma’am.

Q: How about their invocation of the rule on substantial compliance? Because there was an honest intention to comply, in fact there was a blank, there was a line but it was not filled out. Could it be excused on the ground of substantial compliance? A: There was no substantial compliance in this case, Ma’am. Because in the other cases that we discussed before where the attestation clause was deemed to have been substantially compliant, those attestation clauses contained statements that referred to the number of pages in the will. However, that cannot be applied in this case, because as described the attestation clause here merely had a blank. Q: How about in the other pages of the will? Did you find anything that would suggest the number of pages? A: No, Ma’am. As the SC said, there was no other reference to the number of pages. Okay, so there is nothing in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will. That cannot be excused on the ground of substantial compliance. There was nothing at all saying



what’s the total number of pages. And this is a MANDATORY

requirement and not just directory. Here, the will was declared void. In the Matter of the Petition for Probate of the Last Will and Testament of Enrique S. Lopez There is nothing in the attestation clause in this case which states the number of pages. Q: How about in the acknowledgement portion? Was it not sufficient? A: It was actually stated in the acknowledgment portion that the will consist of 7 pages but the will actually has 8 pages. So it said, “this will consist of 7 pages including the page on which the ratification and acknowledgement are written”.

2. The fact that the testator sign ed the will and every page thereof, or caused some other person to write his name, under his express direction.

These MUST be stated in the attestation clause. Ex. “This will was signed by Juan dela Cruz, in behalf of the testator, under his e xpress direction”.

When we discussed before the signing by a third person in behalf of the testator, the requirement is that the signing should be in the presence of the testator and under his express direction. But take note, as to the statement in the attestation clause, the law does not mention about the word “presence”. It only mentions direction. So even if the statement as to the signing of a 3 rd person did not mention about the presence but mentions “under the express direction of the testator”, that

would be sufficient.

Q: Isn’t that sufficient to satisfy the absence in the attestation

Garcia vs. Lacuesta

clause? A: No, Ma’am. The SC said in this case that for substantial

compliance to apply, there must be no need to present evidence aliunde.

The testator here was Antero Mercado. The name Antero Mercado was written in the will by his lawyer. Above the name of Antero Mercado, he himself wrote a cross. The

So despite the fact that there was a statement in the acknowledgment, that statement was wrong. Because in reality, there are 8 pages including the acknowledgement portion. And how do you explain the discrepancy? Then you would need to present extrinsic evidence and that cannot be allowed under the rule on substantial compliance.

question here is that ‘Would that cross be a valid signature of the testator?’

We will discuss later on what are the limitations insofar as the application of the principle of substantial compliance is concerned. NOT ALL DEFECTS CAN BE EXCUSED ON THE GROUND OF SUBSTANTIAL COMPLIANCE. So here, the SC did not apply the principle of substantial compliance because you cannot see anywhere in the will the total number of pages. There was a statement but it was wrong and you need an explanation for that from relevant persons or witnesses why is there a discrepancy and that cannot be allowed anymore. Taboada vs. Rosal Q: What was the statement in the acknowledgment? A: "This Last Will and Testament consists of two pages including this page". So based on that statement, it is clear that there were two pages in the will and that page is the second page. Whatever omission was there in the attestation clause; the omission was cured because of that statement in the acknowledgement portion.

There was no proof in this case that the cross was his customary signature or that he intended that cross to be his signature. Therefore, the cross was disregarded as a signature. The ____ now became a will, signed by a 3 rd person in behalf of the testator. That would be valid if the attestation clause would state the fact that this will was signed by the lawyer, Atty.Blah blah, in behalf of Antero Mercado, under his express direction. But there was no such statement in this case so that is the reason why the will was disallowed. It did not comply with the requirement of the statement in the attestation clause. Tayag vs. Tolentino Here, the will was thumbarked by the testator. The SC said there is no need for the attestation clause to state that the will was signed by a third person. Even if the name was written by a 3rd person because it was thumbarked by the testator. There is no need for the attestation clause to state that the will was signed by a 3 rd person under the express direction of the testator because that will thumbarked by the testator was considered to be signed by the testator himself. I mentioned that there is no need to state the word in presence insofar as signing by a 3 rd person in behalf of the testator is concerned. That was discussed in the case of Jallore vs

So that is the difference between the case of Taboada vs Rosal and of Lopez. In Lopez, there was no statement in the attestation clause as to the total number of pages. But there was a statement in the acknowledgement portion. The problem is the statement is wrong because it stated 7 pages but the will actually has 8 pages.

Interino (L-42463). So only “signed by Juan dela Cruz, in behalf of the testator, under his express direction”. No need to state the phrase ‘in the presence’. That is not required by law.

In the case of Taboada, the attestation clause also did not state the number of pages but there was a statement in the acknowledgement portion too. The statement was correct and so the omission in the attestation clause was cured by that statement in the acknowledgement portion.

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

3. The signing by the testator or by the person requested by him in th e presence of the instrumental witnesses.



What is the effect if any of these matters are not mentioned in the attestation clause? General Rule: The will would not be valid because the attestation clause is defective. With respect to the signing in the attestation clause, we have:

It would be difficult to i nsert a belated attestation clause if the signatures would be at the bottom of the attestation clause. According to the SC, it would be easy to add such clause to the will on subsequent occasion and in the absence of the testator and any or all of the witnesses. Because when you have an attestation clause, the signing of the same should be made in the presence of the testator and of the witnesses.

Azuela vs. CA Q: What was the appearance of the attestation clause?

Q: What if there are no signatures in the margins but there are signatures at the bottom, would the will be valid?

Assuming this is the attestation clause *Ma’am drew

A; Yes, Ma’am.

something on the board*, where did the witnesses signed? So there was nothing? No signature at all in the page where the attestation clause was written? Who signed in the acknowledgement portion? A: There were signatures on the left-hand margin of both

Q: Why? A: Even if the signatures are only at the bottom of the attestation clause, they could still serve a double purpose.

pages of the will, Ma’am.

So, they can serve to avow or own the recitals in the attestation clause and they could also serve to identify the

So instead in the attestation clause, the witnesses signed in the left-hand margin.

page. In fact, the SC said “The Court may be more charitably

Q: Is that valid?

page containing such clause”. Because again, these

A: No, Ma’am.

Q: Why? Diba we discussed before the signatures could appear in the left side, right side, top or bottom, it doesn’t matter. Why can’t we allow that in this particular case?

A: The SC said that the signatures on the left-hand margin signify that the witnesses are aware that the document signed forms part of the will. On the other hand, the signatures after the attestation clause mean that the witnesses are adhering to the statement of facts in the attestation clause. The witnesses do not sign the will. They sign in the left-hand margin of the will. But insofar as the attestation clause is concerned, what is the portion where they sign? The will is the act of the testator, while the attestation clause is the act of the witnesses. So as you said, the presence of the signatures of the witnesses at the bottom of the attestation clause signify that they avow, they own the statements mentioned in the attestation clause which preceded their signatures. Q: Why can’t we not c onsider the signatures on the margin

as having the same effect as the signatures at the bottom of the attestation clause? Q: What is the purpose of the marginal signatures? A: For identification. Okay, so that is the purpose. It doesn’t matter where thes e

marginal signatures be located. They would still serve the same purpose of identifying the will. But insofar as the signatures of the witnesses in the attestation clause are concerned, their purpose is to avow the statements in the attestation clause. And that cannot be done when the signatures are in the margins. So here, the SC said the marginal signatures are directed on the wholly different avowal. Only for identification. But when you own, you avow the statements in the attestation clause, you must sign at the bottom. Q: What was the other reason given by the SC aside from that? A: To prevent the belated insertion of an attestation clause.

disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand margin of the signatures at the bottom could already serve as marginal signatures. But the marginal signatures could not serve the same purpose as the attesting signatures. Remember this case, this was also a reiteration of the case of Cagro vc Cagro, same facts. With respect to the attestation clause, what should be the language used in the attestation clause? Preferably, in a language or dialect known to the witnesses. Does the testator have to know the language in the attestation clause? No because again the attestation clause is the act of the witnesses. What if the attestation clause is in the language or dialect not known to the witnesses but was e xplained to them, would it be valid? Yes, under Article 805. But the language used should be explained or interpreted to the witnesses. Unlike in the will, it really has to be in the language/dialect known to the testator. No amount of explanation or interpretation could cure the defect if in the first place the will is not in the language or dialect known to the testator.

Ar t. 806. Every will must be acknowledged before a

notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. Q: What do you mean by ‘acknowledgment’?

A: It means to avow; to attest to the truthfulness of the statements therein. It is also to state that all the witnesses voluntarily signed and that the testator voluntarily executed the will. Q: In this case of Azuel a vs CA, what was the phrase in the will which was supposed to be in lieu of the acknowledgement? A: “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila”.

Q; Can that be considered as a valid acknowledgement?



A: The SC said here Ma’am that it cannot be consi dered as a

valid acknowledgment. The statement in the acknowledgment, it says “before me, a

notary public in the City of Davao, has personally appeared to Juan dela Cruz and he acknowledged to me that the deed of sale xxxx”. So that is the statement in th e acknowledgment. Q: So why this cannot be considered as a valid acknowledgment? A: Nowhere in the acknowledgement was it stated that the will was really executed by the testator. So, it is very important that the notary public should get a statement that the testator and the witnesses really acknowledge that the document was freely and voluntarily executed by the them. Q: What is the difference between the acknowledgement and this statement? What is the nature of the statement in the will? This stateme nt: “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila”. What is this? A: It only stated a jurat, Ma’am.

Q: What is a jurat? A: A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor. A ju rat is actually a statement under the oath. So if there’s a jurat, meaning it is under oath subscribed and sworn to before a notary public. But again acknowledgment is not only the taking or swearing an oath before a person authorized to administer oaths. It takes an extra step on the part of the notary public in (coercing?) from the testator and the witnesses a statement that they voluntarily and freely executed the document. Q: What’s the effect of an invalid acknowledgement? A: The will is invalidated.

Take note that everything in the will is VERY important. If the lawyer commits a mistake, without error on the part of the testator, the will would still be void. I remember a case I’ve han dled before; it is about probate of a

will. We the oppositors and of course, there was an acknowledgment. I discovered that the person who notarized the will at the time when he notarized the will, he did n ot have a license. He had no notarial commission. Kana gud magpa-notaryo mo diha sa City Hall, diha sa kilid2, okay lang siguro na kung affidavit. But if it is a will, ayaw jud mog kumpyansa kay mahal baya nang will tapos wala diay toy commission na nagbutang sa last will and testament. So it is still void. In effect, the will is not acknowledged before a notary public. Now, Article 806 says every will must be acknowledged before a notary public. However, this should apply only to notarial wills. Holographic wills are not acknowledged before a notary public. There is no requirement under the law. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court.

Again, we discussed this before. Wills are supposed to be personal and confidential and under the Rules of Courts, even if

a ____ document is defined as one which was being acknowledged before a notary public. But the Rules of Courts is also very explicit in exempting a will. So even if wills are acknowledged before the notary public, wills do not come ____ documents. Under the Notarial Law, when you notarize a document, you’re supposed to retain 2 copies of a document: 1

copy for your file and the other to be submitted to the Clerk of Court. As a consequence of any person who goes to the Clerk of Court can get a copy of the document because it is a public document. Can the notary public be one of the attesting witnesses to the will? Cruz vs. Villasor If you are a witness, you will face the notary public and say that “I avow that I sign the document freely and voluntarily”. And then the notary public will say, “Are you sure?”. So you cannot say that to yourself. And also, the reason why there’s

a notary public is to ensure really that there was no coercion. If you are a witness and at the same time the notary public, there would be a conflict of interest. You’re a witness, you’d be interested in sustaining your act. If you’re a notary public,

you have to make sure that he really was not coerced. So it would be a conflict in that case. Q: What would be the effect here if the notary public is one of the attesting witnesses? How many witnesses were there in that will? A: Three (3) Ma’am.

Q: How about if there are 4 witnesses, one of them is the notary public before whom the will was acknowledged? A: I think there will be substantial compliance. Q: Why? A: Because what is required is at least 3 witnesses. Q: Is the person who is the notary public and at the same time, the witness, is he disqualified to be a witness or to act as a notary public? Remember he is disqualified as a witness so that if there are 3 witnesses and one of them is a notary public, the notary public would be disqualified to become a witness, in effect there will only be 2 witnesses left. And therefore, the will would not be valid. But if you have 4 witnesses, one of them is the Notary public, even if you disqualify the witness who is the notary public, as a witness, there would still be remaining 3 witnesses. Remember, he is not disqualified as a notary public. He’s just disqualified as a witness. Gabucan vs. Manta The issue here is the failure to affix the documentary stamp tax in the acknowledgement. It is required that documents acknowledged before a notary public should be affixed with a doc stamp. Would it affect the will? No. Just affix the Doc stamp. The will would still be valid. Javellana vs. Ledesma Is it required that the acknowledgement should be done in one occasion? Should the testator and all the witness go to



the notary public together and swear before him that the testator executed the will freely and voluntarily and the attestation clause was also executed by the witnesses freely and voluntarily?

How do we know that indeed the requirements mentioned in Art. 807 was complied with? This can be proved during the probate. They can present intrinsic evidence or extrinsic evidence. Intrinsic evidence like you will write in the wil l itself ‘that because

The SC said no. The testator and the witnesses can separately go before the notary public o n different occasions. Take note that what is only required is that the signing of the will and the attestation clause and the margins should be done in a single occasion. Although there is no requirement that the testator should sign first before the witnesses. As long as in the presence of each and every one of them. In the acknowledgment, the only requirement under the notarial law is that the person who acknowledges must appear before the notary public; so personally appears. What is the notary public is related to the testator? Would the will be valid? In the case of _____ (11 CA 945), it would still be valid. How about under the present notarial law? The notary public cannot be related within the 4 th degree of affinity or consanguinity to the parties in the document. But as to question of the validity of the will, it is still valid. But the notary public may be subject to certain sanctions. Because the New Civil Code does not disqualify him. Sanctions only. Echavez vs. Dozen Construction and Dev’t Cor p First, the law itself has separate provisions on attestation clause which Article 805 and the acknowledgment under Article 806. That alone would tell us that the purpose of the law is to separate them. They have different purposes. You cannot merge them in a single paragraph or statement. Q: Aside from that, were the statements required by the attestation clause present in this case? A: No. In short, the statements required by Article 805, paragraph 3 to be stated in the attestation clause are also not present there. Definitely, that cannot be considered as compliance with the legal requirement for notarial wills. Again, first you cannot merge the attestation clause and the acknowledgment. Assuming that you can merge, there was no complete statement as to the r equirement of the law insofar as the attestation clause is concerned, those matters which are required by Article 805.

the testator was deaf or deaf mute xxx..etc.’ or testimony of

witnesses that [the two witnesses] was really complied with

Ar tic le 808 . If the testator is blind, the will shall be read

to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. Here we are talking of a blind testator. As we have discussed before, a blind person can be a testator. In so far the test of presence is concerned then we can follow the test of available senses. Diba there was a requirement that “the will was attested and subscribed by the witnesses in the presence of the testator.” So if the testator is blind how you can say that the

witnesses attested and subscribed in his presence. It is by means of his other available senses. Now, what are the additional requirements if the testator is blind? 1. Two reading s under Art icle 808. a. One of the subscribing witnesses - so it was really specified that it should be one of the subscribing witnesses b. Notary public - before whom the will was acknowledged. So these are the persons required by law to read the contents of the will. Actually, going back to the acknowledgment by notary public, there is no requirement that the notary public should know the contents of the will. As long as in the acknowledgment he made sure that the testator voluntarily signed the will and the witnesses voluntarily signed the attestation clause. But in so far as the blind testators are concerned, of course the notary public before whom the will was acknowledged has to know the contents because the law says he should read to the testator the contents of a will. That is the exception. Before we can apply Article 808 we have to know whether or not the testator is blind. There are cases when even if the testator could still see, the Supreme Court considered the testator as blind therefore he should comply with Article 808. Garcia vs. Vasquez (GR L-26884 | April 30, 1970)

August 1, 2016 (K.Tongo)

Ar ti cl e 807. If the testator be deaf, or a deaf-mute, he

must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. Article 807 mentions of requirements if the testator is deaf or deaf mute. Here, there is a requirement that he should read the will if he cannot hear. But if he is not able to d o so because of his disability, he shall designate another two persons to read the will to him and the contents. So here the two persons designated by him need not be the attesting witnesses. It can be another person.

She was able to see. She could even see distant objects but she could not read prints. Q So is she blind under the contemplation of Article 808? A. Yes Ma’am. The Supreme Court said that there was a

requirement that the provisions of Article 808 should be complied with. Q. Were this requirement complied with? A. The Supreme Court said that Article 808 was not complied with since it was proved that the will was read silently by the testatrix before signing it. She could not have o bjected the provisions. Q. How did the Supreme Court described the appearance of the will?



A. The testamentary provisions, the attestation clause and acknowledgment were crammed together into a single sheet of the paper, so much so that the words had to be written very close to the top, bottom and two sides of the paper, leaving no margin whatsoever; the word “and” had to be written by the symbol “&”, appa rently to save on space.

Plainly, the testament was not prepared with any regard for the defective vision of Dona Gliceria. There were typographical errors. The will itself was untidy and informal. Had the testatrix been able to read that, she would have made some corrections made in the will. The Supreme Court said that it would be very impossible that a person would make his last wishes in that kind of document. Imagine, you will be disposing all of your worldly possessions unya ing-ana lang ka hugaw na papel imong gamiton. So it was not believable. So being that, there was really no compliance with the reading requirements. The circumstances proved indeed that the testatrix was not able to read the will. The will should have been read to her and Article 808 should have been complied with because even if she could see, in legal contemplation she is actually blind. Alvarado vs. Gaviola (GR 74695 | Sept. 14, 1993)

Q.What happened after the lawyer read the will? A. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only did the signing and acknowledgement take place.

Take note here there was a substantial compliance so the will was not disallowed.

Ar tic le 809 . In the absence of bad faith, forgery, or

fraud or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. This is the direct provision of law regarding substantial compliance. You have encountered this before when you studied different cases. In some cases the Supreme Court applied the principle of substantial compliance and in some cases the Supreme Court said there cannot be substantial compliance. So how do we know whether or not the defect can be excused on the ground of substantial compliance? Now we have Article 809. Requisites in Article 809: 1. There are defects and imperfectio n in the form of the attestation clause or in the language used therein; 2. There is absence of bad faith, perjury or fraud or undue improper pr essure and in fluence; 3. The will was executed and attested in sub stantial compliance with the requirements; and 4. The fact of such execution and attestation is proved.

Q. Was the testator blind? Is article applicable to her? A. He is not blind but Article 808 is applicable to him.

What is not clear here is number 3. Again we go ba ck to the

It is clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or

defects are excusable?

another, are “incapable of reading the (ir) will(s).” Since

Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his “poor,” “defective,” or “blurred” vision,

there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term ;blind”

as used in Art. 808 Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so conformable with his instructions.

question ‘When do we consider the will as having deemed executed and attested in substantial compliance?’ What kinds of

Here even if you read Article 809, actually the law doesn’t seem to distinguish. It just says ‘in substantial compliance.’ So how do

we know? Actually it was discussed in the case of which we’ve already discussed. So what did the Supreme Court say about the rule on substantial compliance or the rule on ‘liberal construction’?

Abada vs. Abaja The Supreme Court said “The so called liberal rule does not

Q. Was there compliance under Article 808? A. Only substantial compliance. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, the notary public and one of the three i nstrumental witnesses and the testator’s

physician asked the testator whether the contents of the documents were of his own free will. Brigido answered in the affirmative. Q. Strictly speaking was the letter of the law followed? A. No Ma’am. But according to the Supreme Court, the Spirit

offer any puzzle or difficulty nor does it open the door for serious consequences. The later decisions do tell us when and where to stop. They draw the dividing line precision. They do not allow evidence alliunde or extrinsic evidence to feel a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration within its confines to ascertaining its meaning or to determine the existence or absence the requisites formalities of law. This clear sharp limitation eliminates uncertainty and ought to banish any fear of dire result.”

behind the letter was followed although the letter was not. Here even if technically speaking the will was not read twice, but it was as if the requirements were complied with because the witnesses as well as the lawyer before whom the will was acknowledged had their own copies of the will and they also read the will following the reading made by the lawyer who drafted the will.

In short we apply the rule on substantial compliance if the defect can be cured by intrinsic evidence. What do we mean by intrinsic evidence? Evidence which are found in the will itself. Example in this case, insofar as this issue is concerned, it was alleged that the attestation clause was defective because it failed to state the number of witnesses who attested and



subscribed the will. The Supreme Court said that he can easily determine the number of witnesses by just counting the number of signatures or persons who attested and signed in the will that is found in the will itself. That is an example of intrinsic evidence. The fact that there were three witnesses that can be easily be verified from the will itself.

the attestation clause or acknowledgment that would state the total number of pages. So the Supreme Court said that could not be excused even in the ground of substantial compliance.

But if you failed to state that the witnesses signed in the presence of the testator, for example, the witnesses attested

HOLOGRAPHIC WILL S

and subscribed the will’ in the attestation clause. There is nothing here that states ‘in the presence of testator and each and of each and everyone of them’. So how can we prove then

that indeed the witnesses attested and subscribed in the presence of the testator and of each and everyone of them if there is nothing in the will to that effect. You would need the testimony of the witnesses saying that “I was really present. I

saw and I was in the position to see when the testator signed the will, attested and subscribed the will.” But that is not allowed anymore because that would be introduction of evidence alliunde or extrinsic evidence. In the case of Cagro vs. Cagro and later on Azuela, remember that case when the witnesses signed in the margins of the attestation clause but not in the bottom? How can we explain that the witnesses did not sign at the bottom and that they really intended their signatures in the left margins to be their signature also in the attestation clause? We have to ask the witnesses and that would be again extrinsic evidence or evidence alliunde. So that cannot be allowed under the rule on substantial compliance or liberal construction. Taboada vs Rosal diba it is required to state the total number

of pages used in the will. In that case the attestation clause failed to state the number of pages. But in the acknowledgment portion it says that “This will contain two pages including this acknowledgment.” That is an intrinsic evidence. That is

something in the will itself that would shed light as to the total number of pages. You don’t have to go outside of the will. You don’t have to ask witnesses. You need only to read the

acknowledgement and determine that the will really has two pages and the acknowledgement page is the second page. In the other case which we discussed also, the attestation clause failed to state the number of pages. In the acknowledgement portion there was a statement that the will includes 7 pages including the page where the acknowledgment was written. But in counting the total number of pages, the will has actually a total of 8 pages. So the Supreme Court did not allow the will in that case. Why? Because there is nothing in the will which would explain why is there a discrepancy. It could have been cured had the acknowledgment stated the number of pages as stated in the case of Taboada vs Rosal. But in that case, even if there was a statement in the acknowledgment portion it was also wrong and you would need extrinsic evidence to explain why there is a discrepancy and that could no longer be allowed. Again in those cases which we have discussed you will notice that those defects curable by intrinsic evidence are excused on the ground of substantial compliance. Those defects which would need the introduction of extrinsic evidence or evidence allunde, the Supreme Court said that the defect is not excusable. If you remember in one case, it was alleged that the will was defective because the attestation clause states ‘this will is consist of __ pages’ ang blank wala na fill out. It was contended na directory lang daw. But there is nothing at all in the will or in

If the defect can be cured by intrinsic evidence it can be allowed on the ground of substantial compliance.

Ar tic le 810 . A person may execute a holographic will

which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines. Article 810 talks of holographic wills. Based on the article, a holographic will is entirely written, dated and signed by the hand of the testator himself. So no other form. It is not required that there should be an attestation clause. An acknowledgment is not also required. Witnesses are not a lso required. The requirement is only that it is entirely written, dated and signed in the hands of testator. What are the advantages of executing a holographic will? Even now you can execute a holographic will. It is very easy to execute and it is easier to revise. Why? Because if you have corrections or if there are admission that you would like to include you can just do that. Unlike in a notarial will that if the testator would like to add some more provisions after he signed the will, he cannot just type additional provisions after his signature after his signature. What he can do is to execute another will or a codicil In holographic will kung naa kay idugang puwede nimo isulat after the signature. You just put the date and the signature again. That would be easier to revise and easier to keep secret because there are no witnesses. Unlike in a notarial will, although we say na wills are confidential pero imong witness chismoso diyud siya, wala diyuy maka pugong sa iya kung basa basahon niya ang will while naga prima siya sa sides

because diba she is required to sign in each and every page in the margins. So it is really easy to know that content of the Notarial will. But in a holographic will there are no witnesses are required. Only the testator knows the contents of the will. What are the disadvantages? 1. It is easier to forge because there are no witnesses. There is no notary public who would ensure that the will was freely and voluntarily executed by the testator. 2. It is easier to misunderstand because the testator might have been faulty in expressing his last wishes because Notarial wills are usually drafted by lawyers but ang holographic will ofcourse, ang testator lang gyud na because it is his own handwriting. So kung dili lawyer ang testator niya magpataka taka ra siyag storya didto and mali diay to naay mga technical terms basi mamali ang interpretation.

3. There is no guaranty that there is no fraud, intimidation, force, violence or vices of consent intervened in the execution of the will. 4. There is also no guarantee as to the soundness of mind of the testator. Again siya lang isa nagbuhat buhat sa will so you don’t have witnesses. History of Holographic wills So let’s go to the history of the holographi c wills. It is important

to know the history because sometimes it would matter in determining whether or not the will is extrinsically valid.



The Spanish Code permitted the execution of holographic will. So katong una pang panahon puwede ang holographic wills. But under the Code of Civil Procedure Act. 190, which was approved August 7 1901, holographic wills were repealed. So at that time starting August 7 1901 di na puwede ang holographic wills, only notarial wills. When the New Civil Code took effect on August 30 1950 holographic holographic wills were were revived along of course course with the notarial will. So if we have a holographic will which is dated January 1, 1930 is that will extrinsically valid? No, because we learned in Article 795 from the view point of time the will would be valid if it complies with the laws enforced at the time of its execution. At the time of its execution in 1935 (1930 iya giingon) were holographic will allowed? No. Remember from August 7 1901 and before August 30 1950 holographic will were not allowed. Any holographic will will executed at that time would not be extrinsically valid. Requisites Requisites for the execution of Holographic w ills:

1. The will must be written in a language or dialect known to the testator. 2. It must be written entirely by the testator. 3. It must be dated by the testator 4. It must be signed by the testator. Testandi (intent to make a will) 5. It must be made with Animus Testandi In dealing with the language written it must be entirely written by the testator .

When you say entirely written by the testator it should be the hand written. It may be cursive, short hand. If the testator has no hands, or has mastered writing using his foot or mouth, as long as it is the writing of the testator it is valid. The mechanical act of drafting the holographic will cannot be entrusted by the testator testator to another. The holographic will has to be in his hand writing that is why he cannot delegate to another person the mechanical act of drafting the will. In a notarial will the mechanical act of drafting may be entrusted to a third person. If you, for example, seek an advice to your lawyer in drafting a will, he drafted one and you copied it is still valid. What is important is that the contents of the will must be the wishes of the testator. If for example the first paragraph is typewritten and the second paragraph is hand written all by the testator, the whole will would be invalid because the holographic will must be entirely written by the hands of the testator. Another situation is when a testator drafted the holographic will in his hand writing but he typed the attestation clause. Here, even if the attestation clause is typewritten it will not affect the validity of the will. Because strictly speaking, in a holographic will attestation clause is not needed nor acknowledgment. That would be merely a surplusage. That would be disregarded. Insofar as the date of the will is considered, is the date important in a will? We have to distinguish. If it is a notarial will even if the date is not written it will not invalidate the will. But in a holographic will, date is a major part of the will. Without the date indicated in a holographic will the will would be void. The date is very important in a holographic will. What are the purposes of the date?

Again, in a notarial notarial will even if the date is not written written it will not affect the will because the will can still be determined. There are witnesses and we also have the notary public. They could easily identify the date of the execution of the notarial will. But holographic wills have no witnesses as a general rule. So nobody can actually testify as to the date of the execution of the will other than what is written in the will itself. So without a date written in the will we cannot be assured that this will was really executed on a certain date. So why is the date very important in a holographic will? There are three reasons : 1. To prov ide against against conti ngencies as that of two competing wills executed executed on a same day on different places. There are two wills, the testator left two holographic will. One will says I hereby leave all my properties to A. The other will says I hereby leave all my properties to B. Now how do we know which will to follow ? Kay A nako I hatag? O kay b? patay na sa testator you cannot ask him . So, under the law on revocation actually, the later will is the latest expression of the wishes of the testator. So it will be followed. The later will which is totally inconsistent with an earlier will is deemed to have revoked the earlier will because they cannot be reconciled. You B ’ because cannot say na ‘bahinun nalang nato kay A ug kay B’ the intention here of the testator is to give only to one. To A or to B. So we should know which is the first will and which is the second will and we will know that by looking at the date. If there is no date in both will we will n ot know which will revoke the other. That is one reason the date is very important in a holographic will. 2. To To determine the mental cond itio n of the testator at the time of the execution of the will .

Remember it is required under the law that the testator must be of sound mind at the time of the execution of the will. What if we have a testator who is at times insane and at times has lucid intervals? So puwede siya mag execute ug will at the time when he is in a lucid interval puwede siya . So we have to know kanus a siya naay lucid interval. Kanus a siya dili sane. And if he made a will and the will will is not dated we will not know if val. We cannot say ‘ ay that will is executed during a lucid inter val. gwapo man kayo ang will . It must have been made during lucid interval.’ Wala ka kabalo naay uban baya kung musu on sila mas hawod sila. sila. We don’t know that. So a date is important. 3. To determine if the will is extrin sically valid b ecause there was was a point in time that holographic will are not allowed.

Again from August August 1 1907 to August August 30 1950. So if we have an old person, ibutang nato 200 years old na siya then he has a will, niya iyang will lukot lukot na kaayo. Puwede to niya gi execute in 1935, 1953, so wala may date , so how do

we know when he made a will? How do we know if the will is extrinsically valid. That is another of reason why the date is important in a holographic wills. That is not an issue in notarial wills because notarial wills have always been recognized by our laws. The law provides that it should be written with the date, the month and the year. Like August 1 2016.It can also be by implication. For example, the testator can say ‘My birthday in



2005’ or the testator say ‘Valentines day of 2014’ because there is only one valentine’s day in 2014. Unless everyday is valentines day. So kana di na na siya succession. It can also be

So Feb/61. There was only one will. No question of revocation and in 1961when the will was m it as already during the effectivity of the New Civil Code. So here applying the principle of liberal construction construction or substantial substantial compliance, the will was allowed.

So we already discussed before that a document containing disinheritance can be considered a will because disinheritance is also a kind of disposition although indirect. With respect to the intent of the testator as expressed in the will, the Supreme Court said that as much as possible if there is a document purporting to be the testamentary disposition of a person, it must be given effect. Because that document constitutes the last wishes of a person. All rules of construction construction are designed designed to ascertain and give effect to that intention. intention. It is only when the intention intention of the testator is contrary to law morals or public policy that it cannot be given effect.

Q. where should the date be written in a holographic will? A. So anywhere in the will. will. It can can be at the top of the will, bottom of the will or even at the signature of the testator.

With respect to holographic wills the Supreme Court said that because it is usually prepared by one who is not learned in the law, holographic w ills are more liberally construed

Christmas of 2006, it can be by implication. Roxas vs. De Jesus (GR 38338 | Jan. 28 1985)

than notarial wills.

The will must be signed by the testator . Can he sign using his thumbmark in a holographic will? NO. Thumbmark cannot be affixed as a signature because it is not the writing of the testator. But it can be allowed in the notarial wills. It is because in Notarial wills there are a re witnesses diba? They can testify that the testator was still alive when he affixed his thumb mark. Kung

Here taking to account the circumstances surrounding the execution of the instrument and the intention of the testator. Compared to notarial will mas relax ang rules of construction sa holographic wills. That is the ruling in this particular case with respect to interpretation or construction of holographic wills.

holographic will wala ka kabalo patay na diay to tapos gi ana ana lang. (gipilit sa papel ang thumb) So thumb marks, stamp,

Here, the Supreme Court says “Clearly under the circumstances

crosses are not allowed.

this document was really intended to be the last testamentary act of the testator” and it was also executed by him in the form

The signature in the holographic will must be the signature of the testator. If his name is Juan Dela Cruz then “Juan Dela Cruz’. What if he signs as J.D Cruz? Yes it is allowed as long as

it is full and customary signature. What if he customarily signs in his initials? J.D.C. mao na iyang full customary signature? No. That is the exception to the general rule. It is not allowed. Initials are not allowed. Why? Because the initials are easy to forge. Even if it is the full customary signature. Again anything which which is not the the hand writing of the signature signature cannot be allowed. It must be his full signature or full customary signature. Cross, smiley face, thumb mark, stamp and all those other kinds of signatures are not allowed. Location of the signature,w here should the signature be located? At the end of the testamanentary dispositions. But can the testator add some more provisions after his signature in a holographic will? Yes. There is a specific provision allowing that. There are only requirements but that is allowed under Article 812. How about a blind person? Can a blind person execute a holographic will? It depends if he can write his will. If he can make a will in his handwriting, handwriting ha. Handwriting! If he can do that and comply with all other requisites then the will would be valid. Seangio vs. Reyes (GR 140371-72 | Nov. 27, 2006)

Here a holographic will was executed. It was a d ocument. “Kasulatang Pag aalis ng Mana”. Mana ”. And then there there was only

one provision that can be called as a disposition. That is the disinheritance of an heir here. It was questioned here whether or not this is a will. Whether or not it is an act of disposition. Whether or not there was intent here to constitute the document as a will.

prescribed by law for holographic will.

Ar t ic le 811 . In the probate of a holographic will, it shall

be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. Here it talks about probate of holographic wills. There is no specific provision in the New Civil Code in the probate of notarial wills. But you will encounter that in your special proceedings in second semester. So the rule in the probate of holographic wills is actually substantive law because it is provided in the New Civil Code. What do you mean by probate? Again when you say probate it is the proceeding intended to determine the genuiness and due execution of the will. So if a person dies leaving a will whether notarial will or holographic will, that will has to pass probate before the contents of the will can be given effect. So there is a petition filed in court for the probate of the will. And then the court will determine if this will was validly executed by the testator. And only when the will is allowed to probate can the provisions of the will be now given effect. Even if the will you have been given a house and lot, you cannot demand from the house of that occupant to vacate based only on the will without probate. You have that will probated first. first. Kung muingon si court ‘okay allowed ang will’ then you have the decree of the probate court. That is when you can say na ‘hawa na dira I am the owner.’



But of course that insofar as the ownership of the house is concerned, that becomes vested not at the time of probate but at the time of death because again, the rights of the succession are transmitted from the moment of death of the decedent. There are two scenarios here. 1. If the probate is uncontested 2. If the probate is contested 1. Uncon Uncon tested

At least one witness witness who knows knows the handwriting and signature of the testator. And that witness should explicitly declare that this handwriting and the signature are those of the testator. So when you say explicitly he must categorically declare and unequivocally, positively declare that the will, the handwriting and the signature are those of the testator.

Q. What is the reason why the presentation of three witnesses in this case is not mandatory? A. The court even said that ‘if the genuiness of the

holographic will were contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted interpreted as to require the compulsory presentation of thee witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, new civil code), it becomes obvious that the existence of witnesses possessing possessing the requisite qualification is a matter beyond control of the proponent.

2. Contested

Take note again in a holographic will there are no witnesses and the law requires not just witnesses but witnesses who will explicitively declare that the will and signature are those of the testator then it would be very difficult to produce those kind of witnesses.

The law says at least three of such witnesses. Meaning, witnesses who will explicitly declare that the will and the signature are that of the handwriting of the testator.

You are not just to produce any witnesses but witnesses with those requisite qualifications.

What if there are no witnesses? Because in the execution of the holographic wills witnesses are not required. So there might be a possibility that there are no such witnesses. The law says in the absence of any competent witnesses and the court deems it necessary expert testimony may be resorted to. So handwriting of experts may be used. Even the Court on its own determination can rule whether or not the will is in the handwriting of the testator.

So here it says that it is not the object of the law to restrain and curtail the exercise of the right to make a will. In that case the Supreme Court says it is not mandatory. Codoy vs. Calugay (GR 123486 | Aug. 12, 1999)

Rivera vs. IAC

Here the Supreme Court said that the presentation of the three witnesses is mandatory (aside from the reason that the

(GR 75005-06 | Feb. 15, 1990)

provision use the word ‘shall’) because if you are not going to

Here the oppositor was considered to be not an interested party. Therefore he had no personality to oppose. Q. What is the consequence of that? A. Being a mere stranger, he had no personality to contest contest the wills and his opposition thereto did not have the legal effect of requiring the three witnesses. The testimony of Zenaida and Venacio Rivera, Jr., who authenticated the wills a shaving been written and signed by their father, was sufficient. So his opposition, since he had no direct interest, he had no personality, did not make the will contested in legal effect. Even there was an opposition but in reality by legal contemplation the will was not contested. So there is no requirement to present three witnesses. That would be required if the will was contested. So here there was an opposition, contest, but legally that contest was not the kind of contest that would require three witnesses because in the first place he was a stranger to the case. That is the meaning of contested. The one who contested must have personality otherwise that contest would not have the legal effect of requiring three witnesses. The probate would still be considered as uncontested. Let us go to the case where the will was really contested. So it is really mandatory to present three witnesses? We have two conflicting cases. Azaola vs. Singson Singson

require the presentation of the three witnesses there is a possibility that the document not being presented is not the true last will and testament of the testator, that it was just forged. In that case you are actually defeating the last wishes of the testator. Why is this case different from Azaola vs Singson? So as we have discussed in the case of Azaol a the grounds for opposition is 1.The execution of the will was procured by undue and improper influence on the part of the petitioner and his wife. 2. The testatrix did not seriously intend the instrument to be her last will. In Codoy vs Calugay the opposition was that the holographic will was a forgery and that the same is illegible. In the case of Codoy the authenticity of the will was really in question. Although the Supreme Court also discussed in the case of Azaol a na even if the genuiness of the will were in issue but it was just a theoretical discussion. discussion. It was not really the issue that was confronted there. In the case of Codoy mao jud na siya ang issue -- Forgery. The court even noticed that there were differences in the handwritings in the other documents and in the last will. It is as if the third hand intervened in the execution of the will. In that case the Supreme Court deemed it proper to apply in its strict sense the provisions of 811 the word ‘shall’ that it should be mandatory.

So again what case would prevail? If we follow the latter case then it would be Codoy vs Calugay because it is more recent than the case of Azaola. But if you are asked in the exam na ang facts gyud identitcal identitcal sa Azaola vs Singson Singson obviously ang examiner ana naga tan aw sa case ni Azaola vs Singson . You can answer the ruling there but you can add ‘ but in the recent case of Codoy vs Calugay it is mandatory’. Kung lahi jud ang

(GR L-14003 | Aug. 5, 1960) Page 60 of 69 Abad, Acosta, Du, Gumboc, Mortejo, Tongo [3 Manresa A.Y.2016-2017]


facts sa duha you follow the case of codoy because it is the

latter one. August 8, 2016 (K.Gumboc)

Recap: We are still in the probate of holographic wills.

Q: How about if another person saw the will and he memorized

the contents of the will and he is willing to testify that this is really the content of the ho lographic will of the testator? Can that be allowed? A: No, such cannot be allowed. The best way to determine the validity of the will is to compare the handwriting of the testator. Q: The SC cited here the case of Gan vs. Yap . What did the SC

Rodelas vs. Aranza (GR L-58509 | Dec. 7, 1982)

Facts: Ricardo Bonilla executed a holographic will. Marcela Rodelas filed for the probate of the will. Amparo Aranza opposed alleging that the alleged holographic will itself, and not an alleged copy thereof, must be produced in the probate proceedings. A lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. Issue: W/N a holographic will which was lost or cannot be found can be proven by means of a photo static copy. Ruling: Yes. If the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photo static copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. As to the testimony of a witness: In the case of Gan vs. Yap , the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photo static copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photo static or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. Q: What does the best evidence rule provide? A: The best evidence rule provides that:

GR: When the contents of a document are the subject of in quiry, no evidence shall be admissible other than the original document itself. So as a general rule, we have to present the original. As an exception, a photocopy or a photo static copy can be presented because the court can still determine the authenticity of the will by comparing the strokes, the signature, the handwriting of the testator in the photocopy of the will or other copies of the will. Q: How about if there is n o copy at all? Not even a photocopy? A: The alleged will cannot be admitted to probate because there

is no way of validating the authenticity of the will as to the handwriting of the testator.

say? A: The SC said that the contents of the holographic will cannot

be proved by mere testimony of witnesses who may have seen or read such will. Under Article 838, the SC hesitated to accept that the testimony of the witness is sufficient to prove the validity of the will. So take note, a photocopy of the will can be allowed. It is the exception to the best evidence rule. But if no copy at all is presented and even if there is testimony presented, that cannot be allowed because in holographic wills, the will itself is its best safeguard. So in holographic wills, we have to know whether of not the will is genuine. And how do we know? By comparing the strokes of the handwriting of the testator in the will and with other documents. So how can we compare if testimony lang. “Your Honor ang iyahang agi kay pakilid-kilid gamay.” You cannot do that. You cannot prove the authenticity of the will if it’s just a

bare testimony. So if no copy of the will is presented at all, then the probate shall be denied. Even if it is proved that there was really a will, it will be disallowed probate. So that is in case of a holographic will.

Ar tic le 812. In holographic wills, the dispositions of the

testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. Q: Can the testator add some more provisions after his

signature in a holographic will? A: Yes. It is actually a codal p rovision.

Requisite for additional dispositions to be valid: 1.

He shou ld sign them and place a date

In notarial wills, as we have already discussed, what is the effect if the testator places additional provisions after his signature in a notarial will? The entire is invalidated. It is not just the additional disposition but the entire will because the law requires under Article 805 that he must sign at the logical end of the will. So if he adds provisions after his signature in a notarial will, the form prescribed by the law is no longer observed. So in a holographic will, it is actually allowed. So “ I also want to give to A my house and lot in Calinan, Davao City. Signed by the testator and his signature.” So that is how you add additional

provisions. Now what if dated lang, walay signature. Or walay date pero may signature? GR: The additional disposition is not valid. It is to be disregarded. Okay, disregard the additional disposition. However, we qualify that with Article 813.



Ar ti cl e 813. When a number of dispositions appearing

in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. So under Article 810, the will must be dated and signed by the testator. Then under Article 812, additional provisions must also be signed and also dated by the testator. Now, under Article 813, if he has other dispositions which are not dated but of course signed, and the last one is signed and has a date, what is the effect of this? All the preceeding dispositions are also valid. Pero kung ang last wala, then walay labot na ang tanan. But when the last is complete, naay date og signature, then valid. So what is the effect of this last provision? It is as if all the provisions, which are dated but not signed, are executed as of the date of the last disposition. So this is the effect under Article 812. So as long as signed, even if not dated but the last one has a signature and a date. Now, the testator made a will, he signed it and then after his signature, there are additional provisions not written by him but written by a third person, what is the effect of those additional provisions written by a third person? Do we just disregard those additional provisions? Is the entire will invalidated because diba under Article 810, the holographic will must be entirely written, dated and signed by the hands of the testator? But the additional disposition was written by a third person and not by the testator. How will this affect the holographic will of the testator? Let us qualify. Let us make a distinction: 1.

2.

If the additional disposition written by a third person is signed by the testator, it means that he has the intention to own, to incorporate those provisions into his will. And because of that we now have a will that is not entirely written in the hands of the testator. So the entire will is invalidated. But if those additional provisions are not signed by the testator, then you just disregard those additional p rovisions. Because if we allow that to affect the validity of the will, i t would be very easy to invalidate the will of the testator by the simple expedient of writing something in the will. “ Ah, wala diay ni apil. Sige, butangan nako na diri.” And then

invalid na sya kay di man sya handwriting sa testator. So if it is not signed. Because signing the additional disposition is a manifestation of the testator that he intends it to incorporate in his will those additional disposition. So again, remember: 1. If signed the entire will is void. 2. If not signed by the testator, just disregard those additional provisions which are not written by him.

Ar ti cl e 814. In case of any insertion, cancellation,

erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. So we are talking here of insertions, cancellations, erasures, or alteration in a holographic will.

Can you do these things? Yes because it is stated under Article 814. Like, “I hereby give to A and B my house and lot in Calinan, Davao City.” And then giusab nimo. Gi erase nimo ang Calinan, gibutangan nimo Matina so that’s cancellation. The cancellation

of the word Calinan plus the insertion of the word Matina. So you have to authenticate them with your signature. Now the law says signature, full signature. So if your name is Juan Dela Cruz, does it have to be Juan Dela Cruz? How about if you just sign J.D. Cruz? Well, as long as it is your full customary signature. But then again, all initials are n ot allowed in holographic wills. What is the effect if the insertion, cancellation, erasure or

alteration is not authenticated? GR: Just disregard the insertion, cancellation, erasure or alteration in the holographic will. It is as if the will has not been inserted, cancelled, erased or altered. So we read the will prior to the cancellation as it was originally written if the insertion, cancellation, erasure or alteration is not authenticated. That is the general rule. The reason is to prevent fraud because it would be easy to cancel and replace like instead of X kay gibutang nimo imong pangalan. So to make sure it is really done by the testator, he has to authenticate that. Now we have certain exceptions to this general rule. What happened in the case of Kalaw vs. Relova? Kalaw vs. Relova (GR L-40207 | Sept. 28, 1984)

Facts: Natividad Kalaw executed a holographic will. Gregorio Kalaw, claiming to be the sole heir of the testatrix, filed for the probate of the will. Rosa Kalaw opposed alleging that in the holographic will, she was named first as the sole heir of the testatrix. She further alleged that the holographic will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the CC. She contended that the holographic will, as first written, should be given effect and probated. Issue: W/N the holographic will should be admitted to probate although the alterations and/or insertions or additions were not authenticated by the full signature of the testatrix pursuant to Article 814. Ruling: Yes. As a general rule, when a number of erasures, corrections, and interlineations made by the testator in a holographic will litem not been noted under his signature, the will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. However, when the holographic will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire will is voided or revoked for the simple reason that nothing remains in the will after that which could remain valid. To state that the will as first written should be given efficacy is to d isregard the



seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature. The general rule must be held confined to such insertions, cancellations, erasures or alterations in a holographic will, which affect only the efficacy of the altered words themselves but not the essence and validity of the will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude. Q: How many heirs were instituted? A: Only one. Initially it was Rosa then later on it was changed to

Gregorio. Q: What is the effect of this unauthenticated cancellation and

insertion? A: The will is invalidated.

In this case, the name of Rosa was cancelled. But the cancellation was not authenticated. So can we not give the property to Rosa because the cancellation of her name was not authenticated? The mere fact that Rosa’s name was cancelle d, it shows the

intention of the testator to remove her from being her sole heir. Hence, we should lean towards the intention of the testator which is not to give the properties to Rosa. However, since it was not fully authenticated we cannot also give the properties to Gregorio. So here, this is an exception to the general rule. Usually without authentication, we just disregard the insertion, cancellation, erasure or alteration. But here, there’s only one provision. And

we cannot give the property to Rosa also because there was really a change in the mind on the part of the testator. So actually, even it was not mentioned in this case, but if you analyze the case, when the testator cancel the n ame of Rosa with the intent to remove her as an heir, that actually amounts to a revocation to the institution of Rosa an heir. When we go to revocation, there are different modes of revocation. One of them is by overt act. What are the overt acts of revocation? We have burning, tearing, cancelling, obliterating. And for revocation to be effective, the overt act plus the intent to revoke must concur. So if you revoke by cancelling, as long as you made the overt act of cancelling with the intent to revoke, that is sufficient. There is no need of signing the cancellation. So actually the act here of the testatrix amounted to a revocation. And there is no need for authentication. So it still revoked the institution of Rosa. Ajero vs. CA (GR 106720 | Sept. 15, 1994)

Facts: Annie Sand executed a holographic will. Ajero filed for the probate of the will. Clemente opposed alleging that the testatrix did not comply with Articles 813 and 8 14 of NCC because certain dispositions in the will were either unsigned and undated, or signed but not dated, and that the erasures, alterations and cancellations made on the will was not authenticated by the testatrix.

Issue: W/N the failure of the testatrix to authenticate the erasures, alterations and cancellations made on the will renders the will void. Ruling: No. A reading of Article 813 of NCC shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes. So the SC discussed here the GR. But it mentioned about insertion, cancellation, erasure or alteration done in the signature or in the date. So what is the effect? If there is insertion, cancellation, erasure or alteration it will invalidate the whole will because the signature goes into the essence of the will. If the insertion, cancellation, erasure or alteration are done in the signature and the date even if not authenticated, they will produce the revocation or the disallowance of the will because again, they go to the very heart of the will. SUMMARY: The testator places additional provisions in the holographic will Dated only but no signature Additional dispositions not dated but signed but the last additional disposition is signed and dated Additional provisions were written by a third person Insertion, cancellation, erasure or alteration Insertion, cancellation, erasure or alteration is not authenticated


Must be dated and signed under Article 812 Additional disposition is not valid. It is to be disregarded under Article 812 All the preceding dispositions are also valid. It is as if all the provisions which are dated but not signed are executed as of the date of the last disposition under Article 813 1. 2.

If signed, the entire will is void If not signed by the testator, just disregard those additional provisions which are not written by him Testator must authenticate by his full signature under Article 814 Just disregard the insertion, cancellation, erasure or alteration in the holographic will. It is as if the will has not been inserted, cancelled, erased or altered. Exceptions: 1. The insertion, cancellation, erasure or alteration refers to a substantial provision (Kalaw vs. Relova)


2.

The insertion, cancellation, erasure or alteration are done in the signature and the date even if not authenticated (Ajero vs. CA)

Ar ti cl e 815. When a Filipino is in a foreign country, he

is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. Ar ti cl e 816. The will of an alien who is abroad

produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. Ar ti cl e 817. A will made in the Philippines by a citizen

or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. We already discussed Articles 815 to 817 before when we discussed extrinsic validity of a will. [From 2015 TSN:]

In Re: In the Matter of the Petition to Approve the Will of Ruperta Palaganas (G.R. No. 169144 | Jan. 26, 2011)

Facts: Ruperta Palaganas was a Filipino citizen who later became a naturalized US citizen. She executed a last will and testament in the US. Ernesto Palaganas filed for the probate of the will. Manuel and Benamin Palaganas opposed alleging that Ruperta’s will should not be probated in the Philippines but in

the US where she executed it. He contended that an unprobated will executed by an American citizen in the US cannot be probated for the first time in the Philippines. They insist that local courts can only allow probate of such wills if the proponent proves that: (a) The testator has been admitted for probate in such foreign country; (b) The will has been admitted to probate there under its laws; (c) The probate court has jurisdiction over the proceedings; (d) The law on probate procedure in that foreign country and proof of compliance with the same; and (e) The legal requirements for the valid execution of a will. Issue: W/N a will executed by a foreigner abroad may be probated in the Philippines although it has not been previously probated and allowed in the country where it was executed. Ruling: Yes. Our laws do not prohibit the probate of wills executed by foreigners abroad although such will ha s not been probated and allowed in the countries of their

execution. A foreign will can be given legal effects in our jurisdiction pursuant to Article 816. Our rules require merely that the petition for the allowance of a will must show, so far as known to the petitioner: (a) The jurisdictional facts; (b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; (c) The probable value and character of the property of the estate; (d) The name of the person for whom letters are prayed; and (e) If the will has not been delivered to the court, the name of the person having custody of it. Jurisdictional facts refer to the fact of death of the decedent, his residence at the time of his death in the province where the probate court is sitting, or if he is an inhabitant of a foreign country, the estate he left in such province. The rules do not require proof that the foreign will has already been allowed and probated in the country of its execution. On reprobate: Reprobate or re-authentication of a will already probated and allowed in a foreign country is different from that probate where the will is presented for the first time before a competent court. Reprobate is specifically governed by Rule 77 of the Rules of Court. Contrary to Manuel’s stance, since

this rule applies only to reprobate of a will, it cannot be made to apply to the present case. In reprobate, the local court acknowledges as binding the findings of the foreign probate court provided its jurisdiction over the matter can be established.

Ar tic le 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. Article 818 talks about joint wills. What is a joint will? A joint will is one where the same testamentary instrument is made the will of two or more persons and jointly executed and signed by them. So for example if there is a last will and testament signed by A and B, all their testamentary dispositions are merged in one instrument. So that is a joint will and such is not allowed for reasons of public policy. How about if we have a d ocument: August 14, 2016 Last Will and Testament I hereby give to C my land in Calinan, Davao City. Signed, A August 14, 2016 Last Will and Testament I hereby give to D my land in Matina, Davao City. Signed, B

Is this a joint will? It is not a joint will. Although they made it in one paper but this is not jointly executed by them. When you say joint wills, these are wills which are attributing the dispositions of two testators.



But here, they just used one paper. Siguro wala silay paper that time because na stranded sila in one island . They can easily cut that. So it is not a joint will.

and if he burns his will, he will also be burning the will of B. So it’s very difficult for him to revoke. But usually when you say revocation, it’s also an absolute right

Now a joint will has to be distinguished from a mutual or reciprocal will. A mutual or reciprocal will or twin will is the separate wills of two persons which are reciprocal in their provisions giving the separate property of each testator to the other. They are executed with the common intention on the part of the testators, irrespective of whether there is a contract between them although the contractual element is often involved. So A, he made a will, I hereby give all my properties to B. B also made a will, I hereby give all my properties to A. So there’s a

reciprocal benefit given to each other. Are mutual or reciprocal wills prohibited? Generally, mutual or reciprocal or twin wills are not prohibited. Unless: 1.

They are made in the form of a join t wil l.

Gi isa ra nila ang ang provisions. Ang first paragraph, “I, A give all my properties to B” then sa second paragraph, “I, B give all my properties to A” then jointly signed by them. That now becomes a joint will. So this is prohibited. 2.

Even if they made these will s in separate documents but they are in the form of or they constitute disposition captatoria

on the part of the testator. But it is a joint will. Mag duha -duha pa sya sunog kay mahal baya kaayo magpa notary. Maayo unta kung imuha ra na pero ato baya na duha. 4.

It may subj ect one to undue infl uence and may induce parricide if reciprocal.

This is the most commonly given reason. Diba husband and wife, joint will. Wife, I hereby give to my husband my favorite blanket. I hereby give to my wife my 10M estate. And then of course kakitanga ang isa na ay akoa na diay tanan kung mamatay ang akong husband. So ma excited na sya mamatay ang iyang husband. So that is inducing parricide. 5.

It makes probate more diff icult in case of death of testators in d ifferent times.

Halimbawa there are five testators in a joint will. Obviously, dili na sila mamatay og dungan. So namatay ang isa, gi probate ang will. Dapat original and i-present. And then namatay napud ang isa then same will gikuha napud ang original then gi present then another napud. So the same will has to be presented for probate and subject the same to stress kanang kumot2 na ang will, nahugaw na ang will so hangtud mura nag scratch paper ang will sa pagkapatay sa ika fifth na testator. So difficult and probate sa will. And then halimbawa naa pa sa isa ka court wa pa nahuman ang proceeding hiramin napud sa pikas na court so mag motion2 pa didto para makuha ang original na copy. So it’s difficult.

Disposition captatoria is also not allowed under the New Civil Code. When you say disposition captatoria , the testator is giving something to another in condition of that other person’s act of

So these are the reasons given why joint wills are prohibited. Let’s go to the case of Dela Cerna vs. Potot .

giving something to the testator or another person. Dela Cerna vs. Potot Example: I will give to B my land in Calinan, Davao City provided that B will also give to his house and lot in Calinan. That is now a disposition captatoria. That is void not because it is a mutual or reciprocal will but because of the nature of the provision. So per se again, mutual wills are not prohibited. Only if they become joint will or they constitute disposition captatoria. What are the reasons for p rohibiting j oint wills?

1.

It destroys the character of the will as strictl y as a personal act

This is because there are two or more persons, so pwede ten persons in a joint will. So dili na sya personal kay daghan na nakabalo sa content sa will. 2.

It tends to convert a will into a contract.

Usually kung joint, there is an agreement between them and again as we have discussed before, one essential element of a will is that it is unilateral. So when you have dispositions tending to convert that into a contract, it becomes bilateral. And that is not allowed. And that is the tendency when you executed a joint will. 3.

It runs count er to the idea that will are essentially revocable.

This is because if we have the joint wills of A and B, and A changed his mind, “I hate my heirs now, I want to burn my will”

(GR L-20234 | Dec. 23, 1964)

Facts: The spouses Bernabe and Gervasia Dela Cerna executed a joint last will and testament in the local dialect. They willed that the two p arcels of land they acquired shall be given to their niece Manuela. The husband Bernabe died. On October 1939, Manuela and Gervasia filed for the probate of the joint will. The probate was granted. Later on, Gervasa (wife) also died. On November 1952, another petition for the pr obate of the same joint will, insofar as Gervasia was concerned, was filed. The CA ruled that the will was void being a joint will. However, the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. Issue: W/N the previous allowance of the will for probate bars another petition for probate of the same will. Ruling: No. The final decree of probate, entered in 1939 by the CFI of Cebu has conclusive effect as to Bernabe’s last

will and testament despite the fact that joint will are invalid under the CC. The error committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world. Being such,



the heirs and successors of the late Bernabe, are concluded by the 1939 decree admitting his will to probate. Nevertheless, the probate decree in 1939 could only affect the share of the deceased husband, Bernabe. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the NCC, a will could not be probated during the testator's lifetime. The validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the CFI of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question. Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia. In this case, the first petition filed was for the probate of the will of the husband in 1939 while the probate of the will of the wife was filed in 1952. At the time the probate of the husband’s will, the wife was still alive Q: Diba that very same will was allowed probate in 1939 and

that decree became final and executory. So is it not already conclusive as to the validity of the will? A: It will only be conclusive as to the husband. Now, when two or more persons execute a joint will, even if in the document they are joint, but essentially and in reality, they are really the separate wills of two or more persons only executed in one document. So what was probated in 1939 was the will of the husband jointly executed with the wife. So when the wife died, what will happen now?

Article 819 provides that joint wills are not valid in the Philippines although authorized in the law of the country where they may have been executed if executed by Filipinos. Now, remember when we discussed before the laws governing the extrinsic validity of the wills from the viewpoint of place or country? Diba, under Article 17, the law on lex locci celebrations, if the will is valid in the place of execution then the will is also valid in the Philippines. Art ic le 17 , first paragraph. The forms and solemnities of

contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. xxx So that’s the general rule. The exception is the law on joint wills.

When we say joint wills, we are referring to the extrinsic validity of the will because we are only referring to the form of the will. How it looks. So even if the testator executes his will, like for example, abroad in Argentina where joint wills are allowed, diba under Article 17, supposedly if the will is recognized in the place where it is made, katong formal validity, then the will is also valid here in the Philippines. But if it is a joint will, it is void even if it is executed in a country where joint wills are allowed. So wherever the joint will may have been executed by a Filipino it is not valid. Bisag sa moon pa sya, di gihapon na valid. So remember ha, Filipino citizens, absolutely prohibited from executing joint wills. Void gyud na sya. Walay question ana. Void as to Filipinos. How about if the will is made by a foreigner? Is the will valid? Well, Article 819 talks only of Filipinos. So when we talk of foreigners we apply what we have discussed before. If a foreigner executes his will abroad, what laws can he comply with? 1. National law 2. Law of his domicile 3. Law of the place where he executed the will 4. Philippine law

Upon the death of the wife, there is no impediment for the court to take cognizance whether or not that will is valid because there should be a new trial, trial de novo, insofar as the will of the wife is concerned. So in that trial, you can actually assail that the will is not valid because it is a joint will. Because again the will of the wife is different from the will of the husband although again it is executed in one document.

Now if he made the will in Argentina and the will is valid there, then the will is valid here also in the Philippines. It is recognized.

So that’s the nature of a joint will. Even if two or more persons

So kung abroad, basta valid based on the place of the execution, or according to his national law if he is a foreigner, the will would be valid.

but actually these are separate wills of the persons involve in a joint will.

Ar ti cl e 819. Wills, prohibited by the preceding article,

executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. Article 819 talks of joint wills referring to Article 818.

Even if he did not make the joint will in a place where it is recognized but his national law allows him to execute a joint will, it is also one of the laws which he may comply with diba. So the will would be valid.

So if he made a joint will and he disposes certain properties located in the Philippines so if that will should be presented for probate in the Philippines, that will is extrinsically valid. Now what if the foreigner himself executed the joint will in the Philippines, diri sya nagbuhat og joint wills is that will valid? Can it be recognized here in the Philippines? There are two views on the matter:



1.

Under Article 817 what laws may the foreigner comply with if he made the will in the Philippines with respect to the extrinsic validity of his will?

He can comply with Philippine laws, the law of his country or the law of his nationality. If the law of his country or his national law allows joints wills, then the will is valid. 2.

The other view, the will is not valid. Because even if his country or his nationality may allow joint wills but under the third paragraph of Article 17.

Arti cle 17, third paragraph. xxx Prohibitive laws concerning

persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Meaning, the prohibition against joint wills is a matter of public policy here in the Philippines. So even if his national law recognizes joint wills, our laws should not be made subordinate to his national law especially when he executes the will here in the Philippines. It’s different ha if he executes the will here in the Philippines and

when he executes the will abroad even if that will executed abroad will be probated here in the Philippines. So these are the tow views. One view valid sya pursuant to Article 817. The other view void sya pursuant to the third paragraph of Article 17 of the NCC, that is if the will is made in the Philippines by a foreigner. If the will is executed by a foreigner abroad, isa lang ka view. Wala nay two views ha? Kung valid according to the law of his country or his national law or in the place where he executed the will, the valid. What if the will is jointly executed by a Filipino and a foreigner?

Is the will valid? SITUATION: A and B are husband and wife. A is Filipina while B is from Brazil. They went to Brazil where joint wills are allowed. They made a will jointly and then they own properties in the Philippines and they dispose of their properties in the Philippines in the joint will. They died. The will was presented for probate in the Philippines. Is the will valid? Again you have to remember the basic rule. Even if it is a joint will, it is the will of two or more separate persons. So we have to tackle that issue separately, from the viewpoint of the Filipina wife and the viewpoint of the husband foreigner. In so far as the wife is concerned because she is a Filipina, the will is void even if in Brazil joint wills are allowed. It is void pursuant to Article 819. With respect to the husband because he is a Brazilian citizen and Brazil allows joint wills, then the will is extrinsically valid as to him. Okay, so depende sa law sa husband and sa wife. So there can be two applicable laws in that single joint will.

Subsection 4: Witnesses to Wills Ar ti cl e 820. Any person of sound mind and of the age

of eighteen years or more, and not bind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of this Code.

We are talking of notarial wills because no witnesses are required for holographic wills. These are the qualifications. Take note, a witness has more required qualifications than the testator. The testator duha lang dba? Sound mind and 18 years old. This is because if we require more qualifications, basig gamay nalang na tao ang maka execute og will. So duha lang ka qualifications. While as to witnesses daghan and you can choose your witnesses. Now let us discussed first the disqualifications under Article 821.

Ar tic le 821 . The following are disqualified from being

witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony. Merging the two articles, these are now the qualifications of witnesses: 1.

Sound mind

We can still follow the standard used insofar as soundness of mind of the testator is concerned. He may be suffering from forgetfulness or other injury but he can still be considered of sound mind under Article 799. So the same standard. 2.

18 years old

The same also insofar as the testator is concerned. 3.

Not blin d

A blind person can’t be a witness to a will because he cannot

see. Diba attestation is an act of witnessing. How about if we use the test of position? Well, how many persons are there in the earth noh? Why would you choose a blind person to witness your will? So maglisod-lisod pa ka. The law disqualifies a blind person. He cannot witness. But a blind person again can be a testator. 4.

Not deaf

A deaf person can see diba? So why can’t he be a witness to a

will? Yes, he can see but it would be very difficult to get his testimony during probate proceedings. “Did you see in January 1?” Wa sya kadungog. Musyagit nalang ka. Nasuko ka? So difficult sya. Pabasahon nimo sya sa imong question. So ayaw nalang. Again, daghang tao na pwede nimo kuhaon na witness. Ayaw na nang bungol. 5.

Dumb and illi terate

He cannot read and write. They can see and they can hear but cannot give intelligent testimonies during p robate proceedings. That’s the reason. 6.

Domicil ed in the Philipp ines

What do we mean by domiciled in the Philippines? We follow the rule under Article 50 of the NCC. Art ic le 50 . For the exercise of civil rights and the fulfillment of

civil obligations, the domicile of natural persons is the p lace of their habitual residence.



What are the requisites or the elements? 1. The fact of residing or physical presence in a fixed place; and 2. The intention of remaining there permanently or the animus manendi even if for the time being he was not there but he has the intention to return. Domicile can exist without actually living in the place as long as the residence is established in one place and there is intention to stay there permanently. Why is there a need that the witnesses should be domiciled in the Philippines? Because after the execution of the will, after the death of the testator, the witnesses can be called to testify. So if they are not domiciled in the Philippines, it would be very difficult to reach them. There are court processes which are only effective within the Philippines. So para dali lang sila ma reach during probate proceeding for them to testify, they should be domiciled in the Philippines. Take note also that this requirement is applicable only if the will is executed in the Philippines. Because if you execute abroad, halimbawa naa ka sa Argentina, magita ka pag domiciled in the Philippines didto para mag witness sa imong will so very difficult. So only if the will is made in the Philippines. Besides if you are in Argentina you can follow the law of Argentina insofar as the execution of the will is concerned. 7.

Not convi cted of falsifi cation of a docu ment, perjury or false testimony

It has to be by final judgment. The conviction to disqualify the witness is that he must be convicted by final judgment. And take note also the case to which he is convicted. These are: 1. Falsification of a document; 2. Perjury or false testimony. What is common among all these crimes? Liar sya. Diba, he cannot be trusted. He is not trustworthy. If he has that reputation, how sure are we that tinood jud to iyang ginaingon when in some point in time he was already convicted of lying. So dili pwede. But if your witness is a murderer, rapist, a drug addict, okay lang na sya. At least dili sila bakakon. They can be witnesses because they are not disqualified.

For example the pardon is an executive clemency, it doesn’t change the fact that he lied and that he was

2.

Q: What is the effect if the notary public is one of the witnesses? A: If there are three witnesses only, the will is void because he is disqualified as a witness and there are only two left. But if there are four witnesses, one of them is a notary public before whom the will is acknowledged, the will is valid because even if he is excluded as a witness, naay pay tulo left.

Ar tic le 822 . If the witnesses attesting the execution of

a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. Article 822 talks about the effect of subsequent incompetency of the witnesses. Q: What if the witness has all the qualifications when the will

was made but later on the witness became insane, is the will valid? A: Yes. What is important is the witnesses are qualified at the time of the execution of the will. The same thing as the testator diba. As long as qualified at the time of the execution of the will even if he was not qualified before or if he becomes disqualified subsequently he does not lose his qualification so long as at the time of the execution. Q: What happens now if one of the witnesses became insane

after the execution of the will? A: Valid gihapon ang will but he cannot be called upon to testify during the probate. So other witnesses may be called upon to testify. Take note also that these are not the qualifications of witnesses in a holographic will. In holographic wills, we do not need witnesses during the execution of the will. W e need witnesses during the probate of the will. Diba if the will is uncontested, one witness. The qualification is that he must be able to explicitly declare that the signature in the will are those in the handwriting of the testator. Mao na sya ang qualification. If the will is contested, at least three witnesses having requisite classification.

Ar tic le 823 . If a person attests the execution of a will,

What is the effect of pardon? There are two situations: 1.

A: No, he cannot be a witness because it is a physical impossibility and there would be a conflict of interest on his part. Witness then swearing on his part cannot be done.

dishonest. He is still disqualified. If the pardon is because he was really innocent.

There are cases that are like that noh. He has already served his sentence and then naay bag-ong evidence lisod na jud na sya i-overturn so i-pardon nalang at least act nalang na sya sa executive. In that case, pwede pa na sya mahimong witness because innocent man diay sya in the first place. So when you draft will for your clients noh, be sure also kung kinsa na ilahang witnesses kay basig mga convicted diay to sila. NOTARY PUBLIC

Q: A notary public before whom the will is acknowledged, can he be a witness to a will?

to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. Here, the witness to a will is also a legatee, devisee or a voluntary heir. Is the will valid? What if one of the witnesses is also an heir, for example he has been given a 10M estate and he is also a witness? The law says the will is still valid but the witness forfeits his legacy, device or inheritance. What is the reason? Obviously because if you are a witness, and if you know that you will receive 10M of course you will attest na valid gyud ang will. So conflict of interest. To prevent


Succession TSN Atty. Espejo 2016

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