Succession Midterms

SUCCESSION REVIEWER LAW
UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM

However, Philippine procedural law, as influenced by the common-law system, lays down a different method for the payment of money debts, as found in Rules 88 to 90 of the Rules of Court. It is only AFTER the debts are paid that the residue of the estate is distributed among the successors.
CHAPTER 1 GENERAL PROVISIONS
ART. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law.
The Code has simplified the concept of succession and treats it simply as one of the 7 Modes of Acquiring Ownership as enumerated in Art712 of the NCC. 7 MODES OF ACQUIRING OWNERSHIP 1. Occupation 2. Intellectual Creation 3. Law 4. Donation 5. Estate and Intestate Succession 6. Tradition 7. Prescription Overlap of Codal Definition with Art776 Article 774 talks of property, rights and obligations to the extent of the value of the inheritance. Article 776 talks of the inheritance as including all the property, rights and obligations of a person which are not extinguished by his death. For clarity and better correlation, Prof. Balane opines that Art774 should rather read: Succession is a mode of acquisition by virtue of which the inheritance of a person is transmitted through his death to another or others either by his will or by operation of law. And the inheritance which is transmitted through a persons death is defined by Article 776 to include all the property, rights and obligations of a person which are not extinguished by his death.
Rule 90, Sec1 provides for the When the Order for the Distribution of Residue is made. According to the rule, when the debts, funeral charges and expenses of administration, the allowance to the widow and the inheritance tax have all been paid, that is the only time that the court shall assign the RESIDUE of the estate to persons entitled to it. The rule also provides that there shall be no distribution until the payment of the obligations enumerated above, have been made or provided for. However, if the distributees give a bond for the payment of the said obligations within such time and of such amount as fixed by the court, the distribution may be allowed. In our system therefore, money debts are, properly speaking, not transmitted to the heir nor paid by them. The estate pays them and it is only what is left after the debts are paid [residue] that are transmitted to the heirs.
ART. 775. In this Title, decedent is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator.
Decedent general term, person whose property is transmitted Testator specific term, person who transmits his property via a will. It is unfortunate that the Code does not use the term Intestate to refer to a decedent who died without a will, This would have prevented the ambiguity now inherent in the term decedent
What are Transmitted by Succession? Only Transmissible Rights and Obligations. General Rule if the right or obligation is strictly personal [intuitu personae], it is intransmissible; otherwise it may be transmitted. Rule Regarding Pecuniary Obligations A literal construction of Art774 appears to imply that money obligations of the deceased would pass to the heirs, to the extent that they inherit from him. Seemingly, this article mandates that the heirs receive the estate, and then pay off the creditors.
ART. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.
Overlap of Codal Definition with Art776 Article 774 talks of property, rights and obligations to the extent of the value of the inheritance. Article 776 talks of the inheritance as including all the property, rights and obligations of a person which are not extinguished by his death. For clarity and better correlation, Prof. Balane opines that Art774 should rather read: Succession is a mode of acquisition by virtue of which the inheritance of a person is transmitted through his death to another or others either by his will or by operation of law.
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And the inheritance which is transmitted through a persons death is defined by Article 776 to include all the property, rights and obligations of a person which are not extinguished by his death.
ART. 777. The rights to the succession are transmitted from the moment of the death of the decedent.

Time of Vesting of Successional Right Prof. Balane says the terminology used in this article is infelicitous because the right to the succession is not transmitted; but rather vested. To say that it is transmitted upon death implies that before the decedents death, the right to the succession was possessed by the decedent [which is absurd]. To say that it vests upon death implies that before the decedents death the right was merely inchoate [which is correct]. THE LAW PRESUMES THAT THE PERSON SUCCEEDING 1. Has a right to succeed by a) Legitime [compulsory succession], b) Will [testamentary succession], or c) Law [intestate succession] 2. Has the legal capacity to succeed, and 3. Accepts the successional portion The vesting of the right occurs immediately upon the decedents death; i.e. without a moments interruption. From this principle, the following consequences flow 1. The law in force at the time of the decedents death will determine who the heirs should be New Civil Code August 30, 1950 2. Ownership passes to the heir at the very moment of death, who therefore, from that moment acquires the right to dispose of his share. 3. The heirs have the right to be substituted for the deceased as party in an action that survives. Because the heir acquires ownership at the moment of death and become parties in interest.
ART. 778. Succession may be: (1) Testamentary (2) Legal or Intestate, or (3) Mixed ART. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. ART. 780. Mixed succession is that effected partly by will and partly by operation of law.
3 KINDS OF SUCCESSION ACCDG TO ART. 778: 1. TESTAMENTARY That which results from the designation of an heir, made in a will. 2. LEGAL OR INTESTATE Lost definition: takes place by operation of law in the absence of a valid will. 3. MIXED That effected partly by will and partly by operation of law. Some observations Enumeration cannot satisfactorily accommodate the system of legitimes. Legal or intestate succession operates only in default of a will [Arts960 and 961], while the legitime operates whether or not there is a will, in fact prevails over a will. There are instances where the rules on legitime [Arts 887..] operate, to the exclusion of the rules on intestacy [Arts 960..] It is therefore best for clarity, to classify succession to the legitime as a separate and distinct kind of succession, which, for want of a better term, can be denominated compulsory succession. Until the effectivity of the Family Code, there was one exceptional case of succession by contract [contractual succession] found in Article 130 of Civil Code. ART 130. The future spouses may give each other in their marriage settlements as much as one-fifth of their present property, and with respect to their future property, only in the event of death, to the extent laid down by the provisions of this Code referring to testamentary succession.
It should be emphasized that the operation of Art. 777 is at the very moment of the decedents death, meaning the transmission by succession occurs at the precise moment of death and therefore the heir, devisee, or legatee is legally deemed to have acquired ownership at that moment, even if, particularly in the heirs case, he will generally not know how much he will be inheriting and what properties he will ultimately be receiving, and not at the time of declaration of heirs or partition or distribution.
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so even if the heir does not actually receive the inheritance. Art781 should have left well enough alone. Question If the assets left behind by the decedent are not sufficient to pay the debts, may the creditors claims the fruits produced by the decedents property after his death? Or do these fruits pertain to the heirs? But wouldnt the debts be deducted from the estate first before the properties are distributed to the heirs?
Donations propter nuptias of future property, made by one of the future spouses to the other, took effect mortis cause, and had only to be done in the marriage settlements, which were governed only by the Statute of Frauds. It was the only instance of Contractual Succession in our civil law. This has been eliminated by the Family Code in Article 84 paragraph 2: Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. Since under the provision, any donation of future property between the affianced couple is to be governed by the rules of testamentary succession and the forms of wills, contractual succession no longer exists in this jurisdiction. Such a donation becomes an ordinary case of testamentary succession.
ART. 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.
FOUR KINDS OF SUCCESSION ACCORDING TO IMPORTANCE [Prof. Balane] 1. COMPULSORY Succession to the legitime Prevails over all other kinds 2. TESTAMENTARY [Art. 779] Succession by will 3. INTESTATE Succession in default of a will 4. MIXED [Art. 780] Not a distinct kind really, but a combination of any two or all of the first three.
HEIR person called to the succession either by will or by law DEVISEE persons to whom gifts of real property are given by virtue of a will. LEGATEE persons to whom gifts of personal property are given by virtue of a will. The distinction between an heir and a devisee or legatee is important because on this distinction depends the correct application of Art854 on preterition. In cases of preterition, the institution of an heir is annulled, while the institution of legatees and devisees is effective to the extent that the legitimes are not impaired. The codal definitions are neither clear nor very helpful. They are so open-ended that an heir can fall under the definition of a legatee/devisee and vice-versa. I give X my fishpond in Navotas by definition of heir, is not X called to the succession by provision of a will and therefore an heir? I give X of my estate if in the partition, X receives a fishpond, can X, by definition, not be considered a devisee, having received a gift of real property by will? The definitions of the Spanish Code in conjunction with Castans explanations are more helpful: HEIR one who succeeds to the WHOLE or an Aliquot part of the inheritance DEVISEE / LEGATEE those who succeed to definite, specific, and individual properties.
ART. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession.

Article 781 is best deleted; it serves only to confuse. The inheritance includes only those things enumerated in Article 776. Whatever accrues thereto after the decedents death [which is when the succession opens] belongs to the heir, not by virtue of succession, but by virtue of ownership. To say, as Art781 does, that accruals to the inheritance after the decedents death are included in the inheritance is to negate the principle in Art777 that transmission takes place precisely at the moment of death. Once the decedent dies and the heir inherits, the fruits of the property or inheritance belongs to the heir by accession, and not by succession. This is
CHAPTER 2 TESTAMENTARY SUCCESSION
SECTION 1 WILLS
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Subsection 1 Wills in General ART. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.
CHARACTERISTICS OF WILLS
1. PURELY PERSONAL Articles 784, 785 and 787 2. FREE AND INTELLIGENT Article 839 The testators consent should not be vitiated by the causes mentioned in Article 839 paragraphs 2-6 on Insanity, Violence, Intimidation, Undue Influence, Fraud and Mistake. 3. SOLEMN AND FORMAL Articles 804-814 and 820-821 The requirements of form depend on whether the will is attested or holographic. Articles 805-808 and 820-821 govern attested wills. Articles 810-814 govern holographic wills. Article 804 applies to both. 4. REVOCABLE AND AMBULATORY Article 828 5. MORTIS CAUSA Article 783 This is a necessary consequence of Articles 774 and 777. 6. INDIVIDUAL Article 818 Joint wills are prohibited in this jurisdiction. 7. EXECUTED WITH ANIMUS TESTANDI This characteristic is implied in Article 783 Rizals valedictory poem Ultimo Adios was not a will. An instrument which merely expresses a last wish as a thought or advice but does not contain a disposition of property and was not executed with animus testandi, cannot be legally considered a will. 8. EXECUTED WITH TESTAMENTARY CAPACITY Articles 796 803 on testamentary capacity and intent 9. UNILATERAL This characteristic is implied in Article 783 10. DISPOSITIVE OF PROPERTY Article 783 seems to consider the disposition of the testators estate mortis causa as the purpose of will-making. 11. STATUTORY Will-making is a permitted by statute.
Operative Words in the Definition 1. ACT The definition of a will as an act is too broad and should have been more clearly delimited with a more specific term such as instrument or document, in view of the provision of Art804 that every will must be in writing. NUNCUPATIVE or oral wills are not recognized in our Code, unlike the Spanish Civil Code wherein military wills could be oral. 2. PERMITTED Will-making is purely statutory. 3. FORMALITIES PRESCRIBED BY LAW The requirement of form prescribed respectively for attested and holographic wills. 4. CONTROL TO A CERTAIN DEGREE The testators power of testamentary disposition is limited by the rules on legitimes. 5. AFTER HIS DEATH Testamentary succession, like all other kinds of succession in our Code, is mortis causa.
The present Civil Code seems to limit the concept of a will to a disposition of property to take effect upon and after death. It is only when the will disposes of property, wither directly or indirectly, that it has to be probated. When there is no disposition of property, it is submitted that, although the instrument may be considered as a will, it does not have to be probated; its dispositions which are provided by law, such as the acknowledgment of a
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natural child or the order that the patria potestas of the widow shall continue after her remarriage, can be give effect even without probating the will.
ART. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.
This provision gives the will its purely personal character. NON-DELEGABILITY OF WILL-MAKING It is the exercise of the disposing power that cannot be delegated. Obviously, mechanical aspects, such as typing, do not fall within the prohibition.
Question Suppose the testator specified the recipients by specific designation but left to the 3rd person the determination of the sharing, ex. I leave P500,000 for the PNRC, the SPCA, and the Tala Leprosarium, to be distributed among these institutions in such proportions as my executor may determine. Valid? One View Article 785 seems to prohibit this, because the recipients are referred to by name and therefore the portions they are to take must be determined by the testator. Article 786 applies only where the testator merely specifies the class or the cause but not the specific recipients. Contra This actually involves a lesser discretion for the 3rd person than the instances allowed by Article 786 and should be allowed.
ART. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person.
ART. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative.

What Constitute the Essence of Will-Making or the Exercise of the Disposing Power? The ff are nondelegable: 1. The designation of heirs, devisees or legatees 2. The duration of efficacy of such designation, including such things as conditions, terms, substitutions; 3. The determination of the portions they are to receive.
This rule is consistent with, and reinforces, the purely person character of a will, laid down in Article 784. This article should be interpreted rationally. It is not to be so interpreted as to make it clash with the principle expressed in Articles 1041-1057 of the NCC that the heir is free to accept or reject the testamentary disposition. What this article prohibits is the delegation to a 3rd person of the power to decide whether a disposition should take effect or not.
ART. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied.
ART. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred.

Exception to the Rule on Non-Delegability of WillMaking. Without this provision, the things allowed to be delegated here would be non-delegable. TWO THINGS MUST BE DETERMINED BY THE TESTATOR 1. The property or amount of money to be given; and 2. The class or the cause to be benefited. TWO THINGS MAY BE DELEGATED BY THE TESTATOR 1. The designation of persons, institutions, or establishments within the class or cause; 2. The manner of distribution
Articles 788-794 lays down the rules of construction and interpretation. The underlying principle here is that testacy is preferred to intestacy, because the former is the express will of the decedent whereas the latter is only his implied will. In statutory construction, the canon is: That the thing may rather be effective than be without effect. A similar principle in contractual interpretation is found in Art1373, which provides that if some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual.
ART. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, of the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his PAHINA 5
UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM ART. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense.
intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testators 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.
2 KINDS OF AMBIGUITY REFERRED TO 1. LATENT not obvious on the face of the will When there is an imperfect description or when no person or property exactly answers the description a) Latent as to PERSON I institute to of my estate my first cousin Jose and the testator has more than one first cousin named Jose. b) Latent as to PROPERTY I devise to my cousin Pacifico my fishpond in Roxas City and the testator has more than one fishpond in Roxas City. 2. PATENT obvious on the face of the will When an uncertainty arises upon the face of the will, as to the application of any of its provisions a) Patent as to PERSON I institute of my estate to some of my first cousins. b) Patent as to PROPERTY I bequeath to my cousin Pacifico some of my cars. In both cases, the ambiguity is evident from a reading of the testamentary provisions themselves; the ambiguity is patent [patere to be exposed]
Similar rules are laid down in Rule 130 Sections 10 and 14 of the Rules of Court Sec10. Interpretation of a writing according to its legal meaning The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. Sec14. Peculiar signification of terms The terms of a writing are presumed to have been used in their primary and general application, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.
In contractual interpretation, a similar principle is expressed in Article 1370 par1: Art1370. If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control.
ART. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy.
HOW TO DEAL WITH AMBIGUITIES The provisions of this article do not make a distinction in the solution of the problem of ambiguities whether latent or patent. Hence, the distinction between the 2 kinds of ambiguity is, in the light of the codal provisions, an all but theoretical one. The ambiguity should, as far as possible, be cleared up or resolved, in order to give effect to the testamentary disposition. Based on principle that testacy is preferred to intestacy. Ambiguity may be resolved using any evidence admissible and relevant, excluding the oral declarations of the testator as to his intention. Reason for the statutory exclusion is that a dead man cannot refute a tale.
A similar rule is found in Rule 130 Sec11 of the RoC Sec11. Instrument construed so as to give effect to all provisions In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. In contractual interpretation, Articles 1373 and 1374 lay down similar principles Art1373. If some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual. Art1374. The various stipulations of a contract shall be interpreted together, attributing to the doubtful one that sense which may result from all of them taken jointly.
ART. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other
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dispositions if the first invalid disposition had not been made.
This article makes applicable to wills the SEVERABILITY OR SEPARABILITY PRINCIPLE in statutory construction frequently expressly provided in a separability clause. The source of this article is Art2085 of the German Civil Code which provides that the invalidity of one of several dispositions contained in a will results in the invalidity of the other dispositions only if it is to be presumed that the testator would not have made these if the invalid disposition had not been made.
This article should be read together with Art929, which provides that if the testator, heir, or legatee owns only a part of or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its entirety. gives exactly the interest he has in the thing. EXCEPTIONS he can give a less interest [Art794] or a greater interest [Art929] than he has. In the latter case, if the person owning the interest to be acquired does not wish to part with it, the solution in Art931 can be applied wherein the legatee or devisee shall be entitled only to the JUST VALUE OF THE INTEREST that should have been acquired.
GENERAL RULE in a legacy or devise the testator
ART. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention.
This article creates problems which would not have existed had it not been so nonchalantly incorporated in the Code, an implant from the Code of Civil Procedure and ultimately from American law. The problem springs from the fact that this article makes the will speak as of the time it is made, rather than at the time of the decedents death [which is more logical because that is when the will takes effect according to Article 777]. Illustration X executes a will in 1985 containing a legacy: I give to M all my shares in BPI. The testator dies in 1990, owning at the time of his death ten times as many BPI shares as he did when he made the will. Under Article 793, the shares acquired after the will was executed are NOT included in the legacy. Article 793 therefore departs from the codal philosophy of Articles 774 and 776 and constitutes an EXCEPTION to the concept of succession as linked to death and rendered legally effective by death. Prof. Balane suggests the provisions be reworded as: Property acquired after the making of a will passes thereby unless the contrary clearly appears from the words or the context of the will. In the meantime, it is suggested that a liberal application of the article be allowed. Can the word expressly in this article be interpreted to mean clearly even if it might be stretching a point?
ART. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made.
ASPECTS OF VALIDITY OF WILLS A. EXTRINSIC refers to the requirement of form / formal validity 1. Governing law as to TIME a. Filipinos law in force when the will was executed [Art795] b. Foreigners same rile. The assumption here is that the will is being probated in the Philippines. 2. Governing law as to PLACE Filipinos or Foreigners a. Law of citizenship b. Law of domicile c. Law of residence d. Law of place of execution, or e. Philippine law Articles 815-817 - Rules of formal validity a. Filipino Abroad - According to the law in the country in which he may be and may be probated in the Philippines b. Alien abroad - Has effect in the Philippines if made according to: Law of place where he resides, Law of his own country or Philippine law c. Alien in the phils. - Valid in Phils. as if executed according to Phil. laws, if: Made according to law of country which he is a citizen or subject, and May be proved and allowed by law of his own country. B. INTRINSIC refers to the substance of the provisions / substantive validity 1. Governing law as to TIME a. Filipinos law at the time of death, in connection with Art2263.
ART. 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. PAHINA 7

b.
UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM ART. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. ART. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity.
Foreigners depends on their personal law [Art16, par2 and Art1039]
2.
Governing law as to PLACE a. Filipinos Philippine law [Art16 par2 and Art1039] b. Foreigners their national law [Art16 par2 and Art1039]
Art2263 provides that Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code [August 30, 1950], 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 bequests 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. Art16 par2 provides that 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.
Articles 796-801 lay down the rules on testamentary capacity. Testamentary Capacity testamenti factio; testamentifaccin active, the legal capacity to make a will. Who has testamentary capacity? All NATURAL persons, unless disqualified by law. Juridical persons are NOT granted testamentary capacity. DISQUALIFIED PERSONS 1. THOSE UNDER 18 [ART797] Under EO292, the Administrative Code of 1987, which took effect on November 24, 1989, years are now reckoned according to the Gregorian Calendar. Sec31 provides for the legal periods a) Year 12 calendar months b) Month 30 days, unless specific calendar month is referred to, in which case it shall be computed according to the number of days the specific calendar month contains c) Day 24 hours d) Night Sunset to sunrise 2. THOSE OF UNSOUND MIND [ART798] Unsoundness of Mind [Insanity] Absence of the qualities of soundness of mind Defined by the Code only by indirection because only soundness of mind is defined under Art799.
Subsection 2 Testamentary Capacity And Intent ART. 796. All persons who are not expressly prohibited by law may make a will. ART. 797. Persons of either sex under eighteen years of age cannot make a will. ART. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. ART. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.
SOUNDNESS OF MIND [SANITY] NEGATIVELY 1. Not necessary that testator be in full possession of reasoning faculties 2. Not necessary that testators mind be wholly unbroken, unimpaired, unshattered by disease, injury or other cause. POSITIVELY Ability to know 3 things 1. Nature of estate to be disposed of
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A married person may make a will without his or her spouses consent.
Testator should have a fairly accurate knowledge of what he owns. The more one owns, the less accurate his knowledge of his estate expected to be. 2. Proper objects of ones bounty; & Testator should know, under ordinary circumstances, his relatives in the most proximate degrees, his knowledge expectedly decreasing as the degrees become more remote. 3. Character of testamentary act. It is not required that the testator know the legal nature of a will with the erudition of a civilest. All that he need know is that the document he is executing is one that disposes of his property upon death.
ART. 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property.
Sexist provision, contains an erroneous and unintended suggestion that a married man does not have the same privilege. Article 97 of the Family Code supersedes this in part Art97. Either spouse may dispose by will of his or her interest in the community property.
Subsection 3 Forms of Wills ART. 804. Every will must be in writing and executed in a language or dialect known to the testator.

Legal Importance and Implication of Mental Capacity Law is interested in the legal consequences of the testators mental capacity or incapacity, not in the medical aspects of mental disease. The testator could be mentally aberrant medically but testamentarily capable, or vice versa, mentally competent medically but testamentarily incompetent. TEST as long as the testator, at the time he made the will, was capable of perceiving the three things [nature of estate, objects of bounty, and character of testamentary act], he has testamentary capacity, whatever else he may be medically. PRESUMPTION / GENERAL RULE rebuttable Presumption of Sanity under Art800. TWO EXCEPTIONS when there is a rebuttable presumption of Insanity 1. When testator, one month or less before the execution of the will, was publicly known to be insane 2. When the testator executed the will after being placed under guardianship or ordered committed, in either case, for insanity under Rules 93 and 101 of the RoC, and before said order has been lifted. The time for determining mental capacity time of execution of the will and no other temporal criterion is to be applied
Art804 lays down Common Requirements that apply both to ATTESTED and HOLOGRAPHIC wills. Art805-808 lays down special requirements for attested wills. Articles 810-814 lays down special requirements for holographic wills. TWO COMMON REQUIREMENTS 1. IN WRITING Oral wills [the testamentum nuncupativum of the Institutes] are not recognized in the Civil Code. However, oral wills are allowed under the Code of Muslim Personal Laws or PD1083 in relation to Art102(2). 2. IN A LANGUAGE OR DIALECT KNOWN TO THE TESTATOR The provisions of Article 804 are MANDATORY and failure to comply with the two requirements nullifies the will. Neither the will nor the attestation clause need state compliance with Art804. This can be proved by Extrinsic Evidence. Presumption of Compliance it may sometimes be presumed that the testator knew the language in which the will was written. a) Will must be in a language or dialect generally spoken in the place of execution, and b) The testator must be a native or resident of said locality.
ART. 802. A married woman may make a will without the consent of her husband, and without the authority of the court.
Sexist provision, contains an erroneous and unintended suggestion that a married man does not have the same privilege. Suggested rewording
ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence, PAHINA 9

A CROSS AS SIGNATURE a sign of the cross placed by the testator does not comply with the statutory requirement of signature, UNLESS it is the testators usual manner of signature or one of his usual styles of signing. SIGNING BY AN AGENT OF THE TESTATOR Two Requisites i. Must sign in the testators presence, and ii. By the testators express direction What the agent must write need not be alleged in the will itself that agent wrote the testators name under the latters express direction The essential thing, for validity, is that the agent write the testators name, nothing more. It would be a good thing, but not required, for the agent to indicate the fact of agency or authority. May the agent be one of the attesting witnesses? a) If there are more than 3 witnesses YES b) If there are only 3 witnesses Uncertain. SIGNING AT THE END If the will contains only dispositive provisions, there will be no ambiguity as to where the end of the will is. If however the will contains non-dispositive paragraphs after the testamentary dispositions, one can refer to two kinds of end 1. Physical End where the writing stops 2. Logical End where the last testamentary disposition ends Signing at either the physical end or logical end is equally permissible. The non-dispositive portions are not essential parts of the will. Signing before the end invalidates not only the dispositions that come after, but the entire will, because then one of the statutory requirements would not have been complied with. SIGNING IN THE PRESENCE OF WITNESSES Actual seeing is not required, but the ability to see each other [the testator and the witnesses] by merely casting their eyes in the proper direction.
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 clause shall state the number of pages used upon which the will is written, and the fact that the testator signed the will an 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. ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court.
SPECIAL REQUIREMENTS FOR ATTESTED / ORDINARY / NOTARIAL WILLS 1. Subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence of the witnesses Subscribed by the testator To subscribe denotes writing, more precisely to write under. To Sign means to place a distinguishing mark. Thus signing has a broader meaning than subscribing. Not every signature is a subscription and not every distinguishing mark is a writing. THUMBMARK AS SIGNATURE a) Is the placing of the testators thumbprint a signature within the contemplation of the article? YES, on the authority of Payad v. Tolentino and Matias v. Salud, the testators thumbprint is always a valid and sufficient signature for the purpose of complying with the requirement of Art805. b) There is no basis for limiting the validity of thumbprints only to cases of illness or infirmity.
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6. Attestation clause, stating: a) Number of pages of the will b) Fact that the testator or his agent under his express direction signed the will and every page thereof, in the presence of the witnesses c) The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and of one another. The attestation clause is the affair of witnesses therefore, it need not be signed by the testator. The signatures of the witnesses must be at the BOTTOM of the attestation clause. If the entire document consists only of 2 sheets, the first containing the will and the second the attestation clause, there need not be any marginal signatures at all [Abangan v. Abangan] The fact that the attestation clause was written on a separate page has been held to be a matter of minor importance and apparently will not affect the validity of the will. 7. Acknowledgement before a notary public. Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. All that is required in this article is that the testator and witnesses should avow to the notary the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. [Javellana v. Ledesma] a) Ratio Certification of acknowledgement need not be signed by notary in the presence of testator and witnesses. b) Art806 does not require that testator and witnesses must acknowledge on the same day that it was executed. c) Logical Inference neither does the article require that testator and witnesses must acknowledge in one anothers presence. If acknowledgement is done by testator and witness separately, all of them must retain their respective capacities until the last one has acknowledged. Notary cannot be counted as one of the attesting witnesses. Affixing of documentary stamp is not required for validity.
2. Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another. Two distinct things are required of the witnesses here a) Attesting which is the act of witnessing b) Subscribing which is the act of signing their names in the proper places of the will Both must be done. May the witness, like the testator, affix his thumbmark in lieu of writing his name? Art820 requires a witness to be able to read and write, but this does not answer the query definitively. The point is debatable. Signing in the presence of the testator and of one another - Actual seeing is not required, but the ability to see each other [the testator and the witnesses] by merely casting their eyes in the proper direction. 3. Testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses The last page need not be signed by the testator on the margin because, being the page where the end of the will is, it already contains the testators signature. There is a Mandatory and a Directory part to this requirement a) MANDATORY the signing on every page in the witnesses presence b) DIRECTORY place of the signing, the left margin, the signature can be affixed anywhere on the page. Signing in the presence - Actual seeing is not required, but the ability to see each other [the testator and the witnesses] by merely casting their eyes in the proper direction 4. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another. Order of Signing immaterial, provided everything is done in a single transaction. However, if the affixation of the signatures is done in several transactions, then it is required for validity that the TESTATOR affix his signature ahead of the witnesses. 5. All pages numbered correlatively in letters on the upper part of each page. Mandatory and Directory part a) MANDATORY pagination by means of a conventional system. The purpose is to prevent insertion or removal of pages b) DIRECTORY pagination in letters on the upper part of each page.
Some Discrepancies Par1 Art805 No statement that the testator must sign in the presence of the witnesses
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UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in 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.
Par2 Art805 No statement that the testator and the witnesses must sign every page in one anothers presence. But these two things are required to be stated in the attestation clause. Conclusion is that they should be complied with as requirements. Attestation clause is not required to state that the agent signed in the testators presence - a circumstance mandated by the 1st and 2nd paragraphs of the article.
Indication of Date there is no requirement that an attested will should be dated, unlike a holographic will.
ART. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof.
According to JBL Reyes, Liberalization Running Riot, instead a possible rewording would be 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 such defects and imperfections can be supplied by an examination of the will itself and it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. Examples 1. A failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination. 2. Failure by the attestation clause to state that the witnesses signed in one anothers presence should be considered a FATAL FLAW since the attestation clause is the only textual guarantee of compliance. The rule is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself.
ART. 808. If the testator is blind, the will shall be read to him twice; once by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.
Special Requirements for Handicapped Testators For Deaf / Deaf-Mute testator 1. Able to Read must read the will personally 2. Unable to Read must designate two persons to read the will and communicate to him, in some practicable manner its contents. Does this mean the 2 persons must perform each task in turn? For Blind Testator to be read to him twice, once by one of the subscribing witnesses, and another time by the notary.
Art808 is MANDATORY If art808 is mandatory, by analogy Art807 is also mandatory. Failure to comply with either would result in nullity and denial of probate. The requirement has been liberally applied, SC declaring substantial compliance to be sufficient. Applies not only to blind testators but also to those who, for one reason or another, are incapable of reading their wills. Substantially complied with when documents were read aloud to the testator with each of the 3 instrumental witnesses and the notary following the reading with their respective copies. Burden of proof is upon the proponent of the will that the special requirement of the article was complied with. At the same time, there is no requirement that compliance with the requirement be stated either in the will or the attestation clause.
ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself, It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.
Simplicity of the holographic will is its obvious advantage, along with other benefits such as 1. Secrecy 2. Inexpensiveness 3. Brevity But that very simplicity brings about disadvantages 1. Danger of forgery 2. Greater difficulty of determining testamentary capacity 3. Increased risk of duress REQUIREMENTS OF A HOLOGRAPHIC WILL
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1. COMPLETELY HANDWRITTEN BY THE TESTATOR If testator executes only part of the will in his handwriting and other parts are not so written, the ENTIRE will is void because the article would be violated. 2. DATED BY HIM Date Specification or mention, in a written instrument, of the time [day, month and year] it was made [executed]. Blacks Law Dictionary As a general rule, the date in a holographic will should include the day, month, and year of its execution. However, when there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date FEB./61 is a valid compliance, probate of the holographic will should be allowed under the principle of substantial compliance. A complete date is required to provide against such contingencies as a) Two competing wills executed on the same day, or b) Of a testator becoming insane in the day on which a will was executed. The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hand of the testator. 3. SIGNED BY TESTATOR Must signature be at the wills end [at least the logical end]? YES, article 812 seems to imply this. May the testator sign by means of a thumbprint? NO, article says will must be entirely handwritten, dated and signed by the hand of the testator himself.
The three witness provision in case of contested holographic wills is DIRECTORY, not mandatory. Testamentary wills mandatory Holographic wills directory Witnesses must: 1. Know the handwriting and signature of the testator 2. Truthfully declare that handwriting and signature is that of the testator In the probate of a holographic will, the document itself must be produced. Therefore, a holographic will cannot be probated. The execution and 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. However, attested wills MAY BE PROVED by testimonial evidence. Why the difference in rules? Because of the nature of the wills. In holographic wills, the only guarantee of authenticity is the handwriting itself. In attested wills, the testimony of subscribing or instrumental witnesses and of the notary guarantees authenticity of the will. Loss of the holographic will entails loss of the only medium of proof while loss of the ordinary will leaves the subscribing witnesses available to authenticate. In the case of ordinary wills, it would be more difficult to convince 3 witnesses plus the notary to deliberately lie. Considering the holographic will may consist of 2-3 pages and only one of them need be signed, the substitution of the unsigned pages may go undetected. In the case of a lost ordinary will, the 3 subscribing witnesses would be testifying as to a FACT which they saw, namely the act of the testator of subscribing the will. Whereas in the case of a lost holographic will, the witnesses would testify as to their OPINION of the handwriting which they allegedly saw, an opinion which cannot be tested in court nor directly contradicted by the oppositors because the handwriting itself is not at hand. EXCEPTION may be proved by a photographic or photostatic 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.
ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to,
Article applies only to POST MORTEM probates, it does not apply to Ante Mortem probates since in such cases the testator himself files the petition and will identify the document itself.
ART. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. ART. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition PAHINA 13
UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM conformity with those prescribes. which this Code
has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.
Formal Requirements for Additional Dispositions in a Holographic Will 1. Signature 2. Date When there are Several Additional Dispositions 1. Signature and date, or 2. Each additional disposition signed and undated, but the last disposition signed and dated. NOTES 1. If several additional dispositions, each of which is dated, but only the last is dated and signed, then only the last additional disposition is valid. 2. If additional dispositions before the last are not signed and not dated, but the last disposition is signed and dated, what happens to the intermediate ones? If made on one occasion last disposition signed and dated validates all. If on different occasions intermediate additions are void. But distinction is practically worthless because circumstances of execution of holographic wills are often difficult to prove.
ART. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines.
RULES OF FORMAL VALIDITY 1. FILIPINO ABROAD According to the law in the country in which he may be And may be probated in the Philippines 2. ALIEN ABROAD Has effect in the Philippines if made according to: a) Law of place where he resides b) Law of his own country c) Philippine law 3. ALIEN IN THE PHILS. Valid in Philippines / As if executed according to Philippine laws, if: a) Made according to law of country which he is a citizen or subject, and b) May be proved and allowed by law of his own country
ART. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.

In relation to Articles 15 and 17 of the NCC Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.
NATIONALITY PRINCIPLE Philippine law follows Filipino citizens wherever they may be.
Full signature does not mean testators full name, only his usual and customary signature. Effect of non-compliance the change [insertion, cancellation, etc.] is simply considered NOT MADE. The will is not thereby invalidated as a whole, but at most only as regards the particular words erased, corrected or inserted UNLESS the portion involved is an essential part of the will, such as the date.
ART. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. ART. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in
Art. 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 consulate officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated or by determinations or conventions agreed upon in a foreign country.
LEX LOCI CELEBRATIONIS contracts, wills and other public instruments follow the formalities of the law where they are executed.
PAHINA 14

2. Filipinos Abroad VOID Art819, even if allowed by law in place of execution. This is an exception to the permissive provisions of Arts17 and 815. 3. Aliens Abroad VALID, Art816 4. Aliens in Philippines Controverted, on one view it is void because of public policy, another view says it is valid because Art817 governs. 5. Filipino and Alien Always VOID as to the Filipino, but either #3 or #4 governs, depending if he is abroad or in the Phils.
Every testator, whether Filipino or Alien, wherever he may be, has five choices as to what law to follow for the form of his will: 1. Law of his Citizenship Arts 816-817 for Aliens, Art15 for Filipinos 2. Law of place of Execution Art17 3. Law of Domicile Art816 for aliens abroad, applying to aliens in the Philippines and to Filipinos by analogy 4. Law of Residence - Art816 for aliens abroad, applying to aliens in the Philippines and to Filipinos by analogy 5. Philippine Law Arts 816-817 for aliens, Art15 for Filipinos by analogy
Subsection 4 Witnesses to Wills ART. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mention in Article 805 of this Code. ART. 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines (2) Those who have been convicted of falsification of a document, perjury or false testimony.
ART. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.

JOINT WILL one document which constitutes the wills of two or more individuals. If there are separate documents, each serving as one independent will even if written on the same sheet, they are not joint wills prohibited by the article. Reason for Prohibition of Joint Wills 1. Limitation on modes of revocation One of the testators would not be able to destroy the document without also revoking it as the will of the other testator, or in any even, as to the latter, the problem of unauthorized destruction would come in 2. Diminution of testamentary secrecy 3. Danger of undue influence 4. Danger of one testator killing the other When a will is made jointly or in the same instrument, the spouse who is more dominant is liable to dictate the terms of the will for his or her own benefit or for that of the third persons whom he or she desires to favor. Where the will is not only joint but reciprocal, either one of the spouses who may happen to be unscrupulous, wicked, faithless or desperate, knowing as he or she does the terms of the will whereby the whole property of the spouses both conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose of the other. In Germany, joint wills are allowed but only between spouses.
SIX QUALIFICATIONS OF WITNESSES 1. Of Sound Mind 2. At Least 18 years of age 3. Not Blind, Deaf or Dumb 4. Able to read and write 5. Domiciled in the Philippines 6. Must not have been convicted of falsification of a document, perjury or false testimony. As to applicability to wills executed abroad, testator may resort to either executing a holographic will or following the law of the place of execution, if no such witnesses are readily available. Competence v. Credibility The competency of a person to be an instrumental witness to a will is determined by the statute under Arts 820-821, whereas his credibility depends on the appreciation of his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth.
ART. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.
ART. 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will.
Outline on Joint Wills 1. By Filipinos in the Philippines VOID Art818
As in the case of testamentary capacity under Art801, the time of the execution of the will is the only relevant
PAHINA 15

temporal criterion in the competence of the witnesses.

determination of the
time of the testators death does not prevent his creditors from being competent witnesses to his will.
ART. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given.
Because the debt or charge is not a testamentary disposition.
Subsection 5 Codicils and Incorporation By Reference ART. 825. A codicil is a supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which disposition made in the original will is explained, added to, or altered. ART. 826. In order that a codicil may be effective, it shall be executed as in the case of a will.
Article is misplaced here because it talks about CAPACITY TO SUCCEED and not capacity to be a witness. Article 823 lays down a disqualification of a witness to succeed to a legacy or devise when there are only 3 witnesses. Competence of the person as a witness is NOT AFFECTED. Assuming all other requisites for formal validity are met, the will is perfectly valid but the witness [or relatives specified in the article] cannot inherit. Article also applies to HEIRS. The intent of the law is to cover all testamentary institutions. Disqualification applies only to the testamentary disposition made in favor of the witness or the specified relatives. If the party is also entitled to a legitime or an intestate share, that portion is not affected by the partys witnessing the will. Question Supposing there are 4 witnesses, each a recipient of a testamentary disposition, are the dispositions to them valid or void? Arguable May say that dispositions are VALID because the law only requires that there be 3 other competent witnesses to such will for the disposition to be valid. For the witnesses to be competent, they need only meet the qualifications in Art820 and have none of the disqualifications in Art821. May also say that dispositions are INVALID because the intent of the law is to avoid witnesses from attesting to the will based on the dispositions as a consideration for such act. If all of the witnesses are recipients of testamentary dispositions, then there is greater chance that they are all witnessing because a consideration has been given to them.
Codicil v. Subsequent Will Codicil explains, adds to or alters a disposition in a prior will. Subsequent will makes independent and distinct dispositions. But the distinction is purely academic because Art826 requires that the codicil be in the form of a will anyway. Must the Codicil conform to the form of the will to which it refers? NO. A holographic will can have an attested codicil and vice versa. Both may also be of the same kind.
ART. 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will; (2) The will must clearly describe and identify the same, stating among other things the number of pages thereof; (3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and (4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories.
ART. 824. A mere charge on the estate of the testator for the payment of debts due at the
Article only refers to documents such as: 1. Inventories 2. Books of Accounts 3. Documents of Title
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4. Papers of Similar Nature DOES NOT include documents that make testamentary dispositions, or else the formal requirements of a will would be circumvented. Can holographic wills incorporate documents by reference? NO. Par4 of Art827 requires signatures of the testator and the witnesses on every page of the incorporated document [except voluminous annexes]. It seems therefore that only attested wills can incorporate documents by reference, since only attested wills are witnessed. Unless testator executes a holographic will and superfluously has it witnessed.
Subsection 6 Revocation of Wills And Testamentary Dispositions ART. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void.

ART. 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.
A will is essentially REVOCABLE or AMBULATORY. This characteristic cannot be waived even by the testator. There is no such thing as an irrevocable will. This characteristic is consistent with the principle in Art777 that successional rights vest only upon death.
ART. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code.
MODES OF REVOKING A WILL UNDER PHILIPPINE LAW 1. BY OPERATION OF LAW May be total or partial Examples of revocation by operation of law a) Preterition Art854 b) Legal Separation Art63 par4 FC c) Unworthiness to succeed Art1032 d) Transformation, alienation or loss of the object devised or bequeathed Art957 e) Judicial demand of a credit given as a legacy - Art936 2. BY A SUBSEQUENT WILL OR CODICIL Requisites for valid revocation by a subsequent instrument a) Subsequent instrument must comply with formal requirements of a will b) Testator must possess testamentary capacity c) Subsequent instrument must either contain an express revocatory clause or be incompatible with the prior will d) Subsequent instrument must be probated to take effect Revocation by subsequent will may be Total or Partial, Express or Implied a) Total whole prior instrument is revoked b) Partial only certain provisions or dispositions of the prior instrument is revoked c) Express revocation of prior instrument is stated in the subsequent instrument d) Implied incompatibility between provisions of prior and subsequent instruments.
RULES FOR REVOCATION Revocation made in the Philippines. Philippine Law Revocation made Outside Philippines. 1. Testator not domiciled in Phils. Law of place where the WILL was made Law of place where the testator was domiciled at time of revocation. 2. Testator domiciled in Phils. [Art829] Philippine Law consistent with domiciliary principle followed by this article Law of place of Revocation principle of lex loci celebrationis Law of place where the WILL was made by analogy with rules on revocation where testator is a non-Philippine domiciliary.
Curious that the law departs from the nationality theory and adopts the domiciliary theory.
PAHINA 17

Same presumption arises where it is shown that testator had ready access to the will and it cannot be found after his death. But such presumptions may be overcome by proof that the will was not destroyed by the testator with intent to revoke it.
3.
BY PHYSICAL DESTRUCTION Four ways to destroy a) Burning b) Tearing c) Cancelling d) Obliterating Physical destruction may be done by the testator personally or by another person acting in his presence and by his express direction. Unauthorized if without express direction of testator. But what if with express direction but not in his presence? Arguable. May say that it is authorized and therefore the destroyed instrument is revoked because of the intent and consent of the testator to revoke and destroy, and that the law does not provide that without the testators presence, destruction will become unauthorized. On the other hand, it may be argued that the testators presence is required because at any time during the actual burning, destroying, etc. he may put a stop to the destruction if he changes his mind, and that is precisely why his presence is required? Effect of unauthorized destruction Will may still be proved as lost or destroyed [Art830 NCC and Rule 76 RoC] However, this is possible only if the will is attested; if the will is holographic, it cannot be probated if lost, even if the loss or destruction was unauthorized, unless a copy survives. Elements of a Valid Revocation by Physical Destruction a) CORPUS physical destruction itself; there must be evidence of physical destruction b) ANIMUS Capacity and intent to revoke Testator must have completed everything he intended to do Both corpus an animus must concur. Loss or unavailability of a will may, under certain circumstances, give rise to the presumption that it had been revoked by physical destruction Where a will which cannot be found is shown to have been in the possession of the testator when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed.
ART. 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills.
Revocation of a will by a subsequent will or codicil may be express [through a revocatory clause] or implied [through incompatibility]. In the old Civil Code, mere fact of a subsequent will, provided that it is valid, revoked the prior one, except only if the testator provides in the posterior will that the prior will was to subsists in whole or in part. The present rule provides that the execution of a subsequent will does not ipso facto revoke a prior one.
ART. 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation.
Efficacy of the revocatory clause does not depend on the testamentary disposition of the revoking will, UNLESS the testator so provides. Revocation is generally speaking, an absolute provision, independent of the acceptance or capacity of the new heirs. An EXCEPTION is where the testator provides in the subsequent will that the revocation of the prior one is dependent on the Capacity or Acceptance of the heirs, devisees or legatees instituted in the subsequent will. DEPENDENT RELATIVE REVOCATIO DEPENDENT RELATIVE REVOCATION Where the act of destruction is connected with the making of another will as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. This is the doctrine of dependent relative revocation. The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will. But a mere intent to
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In the case of Diaz v. De Leon, the testator executed a prior will but destroyed it and executed another will revoking the former. However, the second will was found to be not executed with all the necessary requisites to constitute sufficient revocation. The court then held that the intention of revoking the will was manifest from the fact that the testator was anxious to withdraw or change the provisions he had made in his first will. Therefore, the court concluded that original will presented having been destroyed with animo revocandi, the original will and last testament cannot be probated and was effectively revoked. In Molo, revocation of the prior will was not allowed because the court inferred that the testator meant revocation to depend on the validity of the new will, so in that case the rule on dependent relative revocation was applied. However, in De Leon, court held that the testators intent to revoke the prior will was not dependent on the validity of the subsequent will so even if the second will was void and insufficient as revocation, the prior will was still revoked because such revocation was not dependent on the validity of the second will [?!!]
make at some time a will in place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will. [Molo v. Molo]
It must be remembered that dependent relative revocation applies only if it appears that the testator intended his at of revocation to be conditioned on the making of a new will or on its validity or efficacy. In Molo v. Molo, the Samson v. Naval doctrine was cited, providing that A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of the Code of Civil procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void. Question supposing the institution of heirs, legatees or devisees in the subsequent will is subject to a suspensive condition, is the revocation of the prior will absolute or conditional? Depends on the testators intent. If the subsequent will contains a revocatory clause which is absolute or unconditional, the revocation will be absolute regardless of the happening or non-happening of the suspensive condition. But if the testator states in the subsequent will that the revocation of the prior will is subject to the occurrence of the suspensive condition, or if the will does not contain a revocatory clause, the revocation will depend on whether the condition happens or not. If the suspensive condition does not occur, the institution is deemed never to have been made and the prior institution will be given effect. [i.e. no revocation of prior will] This is in accord with the juridical nature of suspensive conditions, and is an instance of dependent relative revocation. Is the rule on dependent relative revocation applicable if the revocation of the will is by physical destruction? YES. If testator executes a subsequent will revoking the prior will but conditioned on the validity of the subsequent will, then if the subsequent will is declared invalid, the prior will subsists. In Molo v. Molo, in an obiter, SC held that the physical destruction of the will DID NOT revoke it, based on the inference made by the court in that case, that the testator meant the revocation to depend on the validity of a new will. But apart from the fact that the statement is obiter because the facts did not clearly show that the will had been destroyed, it is arguable whether the prior will should be deemed to subsist despite its physical destruction. Can it not be argued that the act of the testator in destroying the will in fact confirmed his intent to revoke it?
ART. 833. A revocation of a will based on a false cause or an illegal cause is null and void.
Wills are revocable ad nutum or at the testators pleasure. The testator does not need to have a reason to revoke the will. However, precisely because the law respects the testators true intent, this article sets aside a revocation that does not reflect such intent.
REQUISITES FOR A FALSE / ILLEGAL CAUSE TO RENDER REVOCATION VOID 1. CAUSE MUST BE CONCRETE, FACTUAL AND NOT PURELY SUBJECTIVE If a testator revoked on the stated ground that the heir was Ilocano and all Ilocanos are bad, it would just be prejudice and the revocation is valid because it is based on a subjective cause. 2. IT MUST BE FALSE 3. THE TESTATOR MUST NOT KNOW OF ITS FALSITY
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UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM ART. 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil.
4. IT MUST APPEAR FROM THE WILL THAT THE TESTATOR IS REVOKING BECAUSE OF THE CAUSE WHICH IS FALSE.
If the revocation is by physical destruction, and the revoked will is holographic, then though the revocation be void, probate will not be possible, UNLESS a copy of the holographic will survives. The rule regarding nullity of revocation for an illegal cause limits the freedom of the testator to revoke based on an illegal cause, but this is due to public policy considerations. It must be noted that the illegal cause should be stated in the will as the cause of the revocation.
If the testator wishes to republish a will that is void as to form, the only way to republish it is to execute a subsequent will and reproduce [copy out] the dispositions of the original will. Mere reference to the prior will in the subsequent will is not enough. A will is void as to form if it does not comply with the requirements of Arts804-818; 810-814; 818-819.
ART. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked.
RE-CAP OF FORMAL REQUIREMENTS OF A WILL

1. ATTESTED/ORDINARY WILL a. Must be in writing b. Executed in a language or dialect known to testator c. Subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence of the witnesses d. Attested and subscribed by at least 3 credible witnesses in presence of the testator & of one another e. Testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses f. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another. g. All pages numbered correlatively in letters on the upper part of each page. h. Attestation clause, stating: a) Number of pages of the will b) Fact that the testator or his agent under his express direction signed the will and every page thereof, in the presence of the witnesses c) Fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and of one another. i. Acknowledgement before a notary public by the testator and the witnesses. j. Handicapped Testator a) Deaf or deaf-mute personally read the will if able to do so, otherwise designate 2 persons to read and communicate it to him. b) Blind read to him twice, once by a subscribing witness and another time by the notary before whom it is acknowledged.
The part of the will which recognizes an illegitimate child is NOT revocable because recognition is an irrevocable act. Therefore, even if the will is revoked, the recognition remains effective. Under the Family Code, admission of illegitimate filiation in a will would constitute proof of illegitimate filiation. According to Article 175 of the Family Code Art175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Art173, except when the action is based on the second paragraph of Art172, in which case the action may be brought during the lifetime of the alleged parent.
Basically, the principle laid down in Art834 remains unaltered regarding these admissions contained in wills.
Subsection 7 Republication and Revival of Wills ART. 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form.
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UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM ART. 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not derive the first will, which can be revived only by another will or codicil.
RE-CAP OF FORMAL REQUIREMENTS OF A WILL

k. Defects and imperfections in form of attestation and language used shall not make the will invalid if there is substantial compliance with requirements of Art805. l. Law to be followed a. Filipino abroad b. Alien abroad c. Alien in the Philippines m. Prohibition on joint wills, especially by Filipinos even if executed in foreign country allowing joint wills. n. Witnesses must possess all the qualifications in Art820 and none of the disqualifications in Art821. 2. HOLOGRAPHIC WILL a. Must be entirely written b. Executed in a language or dialect known to testator c. Dated by the testator d. Signed by the hand of the testator himself e. Witnesses required a) Knows the handwriting and signature of the testator b) Explicitly declares that the will and the signature are in the handwriting of the testator f. Dispositions below testators signature must also be dated and signed. g. When several additional dispositions are signed but not dated, the last disposition must be signed and dated to validate the dispositions preceding it. h. Any insertion, cancellation, erasure or alteration must be authenticated by the testators full signature, otherwise it shall be deemed as not made. i. Prohibition on joint wills, especially by Filipinos even if executed in a foreign country where joint wills are allowed.
Illustration In 1985, X executed will 1 In 1987, X executed will 2 and expressly revoked will 1 In 1990, X executed will 3, revoking will 2 - When will 3 revoked will 2, it did not revive will 1. This article is based on the theory of INSTANT REVOCATION That the revocatory effect of the 2nd will is immediate. However, such theory is inconsistent with the principle that wills take effect mortis causa. Furthermore, to be effective for the purpose of revoking the first will, the second will must be probated. But it has already been revoked by the third will. A revoked will now has to be submitted to probate? Article applies only when the revocation of the first will by the second will is EXPRESS. If the revocation by the second will is implied due to incompatible provisions, the article will not apply and the effect will be that the first will is revived. However, when will 3 is itself inconsistent with will 1, there is still revocation. Also keep in mind Article 831 Implied Revocations only annul such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills. EXCEPTION when the second will is holographic and it is revoked by physical destruction, because then the possibility of its probate is foreclosed, unless of course a copy survives.
If the testator wishes to Republish a will that is either: 1. VOID for a reason other than a formal defect, or 2. Previously REVOKED The only thing necessary to republish it is for the testator to execute a subsequent will or codicil referring to the previous will. There is no need to reproduce the provisions of the prior will in the subsequent instrument. Why the difference on the rules between nullity as to form and nullity based on other grounds? Prof. Balane says because Art835 is from Argentine Law whole Art836 is from California Law. Go figure.
Subsection 8 Allowance and Disallowance of Wills ART. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testators death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. PAHINA 21
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution.

Probate of a will is MANDATORY. TWO KINDS OF PROBATE 1. POST MORTEM after the testators death 2. ANTE MORTEM during his lifetime, features: Easier for the courts to determine mental condition of a testator Fraud, intimidation and undue influence are minimized Easier correction of formal defects in the will Once a will is probated ante mortem, the only questions that may remain for the courts to decide after the testators death will refer to the intrinsic validity of the testamentary dispositions. Rules on Probate for both post and ante mortem are found in Rule 76 of the Rules of Court. Finality of a Probate Decree Once a decree of probate becomes final in accordance with the rules of procedure, it is res judicata. Scope of a Final Decree of Probate A final decree of probate is conclusive as to the due execution of the will, i.e. as to the wills extrinsic and formal validity only.
These are matters involved in formal validity. Once a probate decree is final, such decree forecloses any subsequent challenge on any of the matters enumerated in this article. If any of these grounds for disallowance are proven, the will shall be set aside as VOID. A will is either valid or void. If none of the defects enumerated in this article are present, it is valid; if any one of these defects is present, the will is void. The issue of formal validity or nullity is precisely what the probate proceedings will determine. There is no such thing as a Voidable Will. GROUNDS FOR DISALLOWANCE OF A WILL 1. FORMALITIES Those referred to in Articles 804-818, 818819 and 829-821 2. TESTATOR INSANE OR MENTALLY INCAPABLE AT TIME OF EXECUTION Articles 798 801 on testamentary capacity and intent FORCE, DURESS, INFLUENCE OF FEAR OR THREATS Force or Violence when in order to wrest consent, serious or irresistible force is employed. Duress or Intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. Age, sex and condition of the person are borne in mind. Threat to enforce a just or legal claim through competent authority does not vitiate consent. UNDUE & IMPROPER PRESSURE AND INFLUENCE Undue Influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. Circumstances such as the following shall be considered: confidential, family, spiritual and other relations between parties, or fact that person unduly influenced was suffering from mental weakness or ignorant or in financial distress. SIGNATURE PROCURED THROUGH FRAUD Fraud when through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to. MISTAKE OR TESTATOR DID NOT INTENT INSTRUMENT TO BE HIS WILL WHEN HE AFFIXED HIS SIGNATURE THERETO Mistake must refer to substance of the thing which is the object of the contract, or to those
3.
ART. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intent that the instrument he signed should be his will at the time of affixing his signature thereto.
4.
5.
6.
An Exclusive Enumeration of the grounds for disallowance of a will.
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Testamentary succession as to the part disposed of by will, and Intestate succession as to the part not disposed of by the will. The legitimes, of course, pass by strict operation of law.
conditions which have principally moved one or both parties to enter into the contract. Mistake as to identity or qualifications only vitiates consent when such were the principal cause of the contract. A simple mistake of account gives rise to correction.
SECTION 2 INSTITUTION OF HEIR ART. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or person who are to succeed him in his property and transmissible rights and obligations.
Rules on institution of heir set forth in this section apply as well to institution of Devisees and Legatees.
ART. 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known. Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. ART. 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. If among the persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of the other proof, the person instituted cannot be identified, none of them shall be an heir.
ART. 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. ART. 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs.
REQUIREMENT FOR DESIGNATION OF HEIR The heir, legatee or devisee must be identified in the will with sufficient clarity to leave no doubt as to the testators intention. The basic rule in testamentary succession always is respect for and compliance with the testators wishes. The designation of name and surname is DIRECTORY. What is required is that the identity of the designated successor be sufficiently established. This is usually done by giving the name and surname, but there are other ways as can be gleaned from Art843 par2, such as to ones eldest first cousin. If there is any AMBIGUITY in the designation, it should be resolved in light of Art789 by the context of the will and any extrinsic evidence available, except the testators oral declarations. If it is not possible to resolve the ambiguity, the testators intent becomes indeterminable and therefore intestacy as to that portion will result.
Even if the will does not contain any testamentary disposition, it will be formally valid provided it complies with all the formal requisites. This is in keeping with the character of wills as dispositive of property under Art783. HOW MUCH CAN BE DISPOSED OF BY WILL? 1. No Compulsory Heirs Entire hereditary estate 2. There are Compulsory Heirs the disposable portion or the net hereditary estate minus the legitimes. The amount of the legitimes depends on the kinds and number of compulsory heirs. Various combinations are possible and so the amount of disposable portion is also variable.
If the testator disposes by will of LESS than he is allowed to, there will be MIXED succession
ART. 845. Every disposition in favor of an unknown person shall be void, unless by some even or circumstance his identity becomes certain. However, a disposition in PAHINA 23
favor of a definite class or group of persons shall be valid.

Unknown Person This article refers to a successor whose identity cannot be determined because the designation in the will is so unclear or so ambiguous as to be incapable of resolution. This does not refer to one with whom the testator is not personally acquainted. The testator may institute somebody who is a perfect stranger to him, provided the identity is clearly designated in the will
ART. 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears.

Once again, this article follows the general rule of equality laid down in Art846. Also, if the testator intends an unequal apportionment, he should so specify. DIFFERENT RULE IN INTESTACY Art848 only applies to testamentary succession, wherein siblings, regardless of whether full or half blood, get equal shares except if a different intention of the testator appears. In INTESTACY, the rule is different. The applicable provision is Art 1006 which establishes a proportion of 2:1 between full and half blood brothers and sisters, but without prejudice to the rule prohibiting succession ab intestato between legitimate and illegitimate siblings. [Art992] Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. Art. 992. An illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.
ART. 846. Heirs instituted without designation of shares shall inherit in equal parts.
GENERAL PRESUMPTION Equality in cases of collective designation. If the testator intends an unequal apportionment, he should so specify. The article applies only in testamentary succession, and only among testamentary heirs or devisees or legatees. It will NOT APPLY to an heir who is both a compulsory and a testamentary heir, for in that case the heir will get his legitime and his testamentary portion. Not explicitly covered by this article is an instance where the shares of some of the heirs are designated and those of others are not. Example I institute to of my estate A, B, C and D, of which A will get 1/3 and B is to get . The shares of C and D are unspecified. Are they to divide equally the remaining portion of the of the estate, after deducting As and Bs portions [The remainder is 5/12 of ?] YES, because the article talks about heirs instituted without designation of shares. A and B have been designated their shares, therefore Art846 applied to C and D.
RE-CAP Testamentary Succession equality in shares of full and half blood brothers and sisters unless the testator provides otherwise [Art848] Intestacy Proportion of 2:1 between full and half blood brothers and sisters [Art1006], and only if the disqualification in Art992 does not apply. Question Does Art848 apply even to illegitimate brothers and sisters, in cases where the testator is of legitimate status and vice versa? YES. Art848 does not distinguish.
ART. 847. When the testator institutes some heirs individually and others collectively as when he says, I designate as my heirs A and B, and the children of C, those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise.

ART. 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively.

Equality and Individuality of Designation This article follows the basic rule of equality in the previous article. In addition, it established the PRESUMPTION that the heirs collectively referred to are designated per capita along with those separately designated. If the testator intends a block designation, he should so specify.
Article lays down the same rule as Arts. 846 and 847. Equality and Individuality of institution are presumed. If the testator desires a different mode of apportionment, he should so specify.
ART. 850. The statement of a false cause for the institution of an heir shall be considered as PAHINA 24
UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. ART. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally.
not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause.
GENERAL RULE the falsity of the stated cause for the testamentary institution DOES NOT AFFECT the validity or efficacy of the institution. Reason testamentary disposition is ultimately based on liberality.
EXCEPTION the falsity of the stated cause for institution will set aside the institution if the following factors are present: 1. Cause for institution is stated in the will 2. Cause must be shown to be false 3. It appears on the face of the will that if the testator had known of the falsity of such cause, he would not have instituted the heir.
In both articles 1. There are more than 1 instituted heir 2. Testator intended them to get the whole estate or the whole disposable portion 3. Testator designated a definite portion for each. ART. 852 the total of all the portions is less than the whole estate or the whole disposable portion. Therefore, a proportionate increase is necessary. The difference cannot pass by intestacy because the testators intention is clear to give the instituted heirs the entire amount. ART. 853 the reverse occurs, the total exceeds the whole estate or the whole disposable portion. Thus a proportionate reduction must be made.
ART. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate. The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance.
The wording of the article, according to Prof. Balane, is erroneous because legal succession does not take place with respect to the remainder of the estate but to the remainder of the disposable portion. There may after all be compulsory heirs whose legitimes will therefore cover part of the estate, the and the legitimes do not pass by legal or intestate succession. Suggested Rewording Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, less than the entire disposable portion, legal succession takes place with respect to the remainder of the estate. The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. Moreover, this article states exactly the same rule laid down in Art841. there is absolutely no need for the redundancy.
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.
PRETERITION means omission, but from what? The answer to that question is the basic problem in preterition. Manresas Definition Preterition consists in the omission of an heir in the will, either because he is not named, or, although he is named as a father, son, etc., he is neither instituted as an heir or expressly disinherited, nor assigned any part of the estate , thus being tacitly deprived of his right to the legitime. Castans Definition By preterition is meant the omission in the will of any of the compulsory heirs, without being expressly disinherited. It is thus a tacit deprivation of the legitime, as distinguished from disinheritance, which is an express deprivation. OMISSION THAT CONSTITUTES PRETERITION
ART. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the
PAHINA 25
If the heir in question is instituted in the will but the portion given to him by the will is less than his legitime there is no preterition. In the case of Reyes v. Baretto-Datu: 1. There was a compulsory heir in the direct line 2. Such heir was instituted in the will 3. The testamentary disposition given to such heir was less than her legitime Based on these, the holding was that there was NO PRETERITION. The reason was there was no TOTAL OMISSION, inasmuch as the heir received something from the inheritance. The heirs remedy is not found in Art854 but in Arts. 906 and 907 for Completion of Legitime. Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same may be fully satisfied. Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive. If the heir is given a legacy or devise, there is no preterition. Should the value of the legacy or devise be less than the recipients legitime, his remedy is only for completion of legitime under Articles 906 and 907. If the heir received a donation inter vivos from the testator the better view is that there is no preterition Reason donation inter vivos is treated as an advance on the legitime under Articles 906, 909, 910 and 1062. Art. 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. Art. 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code. Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious.
If the heir is not mentioned in the will nor was a recipient of a donation inter vivos from the testator, but not all of the estate is disposed of by the will there is no preterition. The omitted heir in this instance would receive something by intestacy, from the portion not disposed of by the will [the vacant portion]. The right of the heir, should the vacant portion be less than his legitime, will simply be to demand completion of his legitime, under Articles 906 and 907. For there to be preterition, therefore, the heir in question must have received NOTHING from the testator by way of: 1. Testamentary succession 2. Legacy or devise 3. Donation inter vivos, or 4. Intestacy Preterition means therefore TOTAL OMISSION IN THE INHERITANCE. EFFECT OF PRETERITION Annulment of the institution of an heir but validity of legacies and devisees to the extent that these latter do not impair legitimes. Distinction between heirs and legatees/devisees This in the only instance when there is still a practical effect in the distinction between an heir and a legatee or devisee in Art782. According to the case of Nuguid v. Nuguid, annulment of institution of heir means only the legacies and devises will merit consideration if expressly given in the will. Art854 does not mean that the mere institution of a universal heir in a will void because of preterition would give the heir so instituted a share in the inheritance. As to the heir, the will is inexistent. In that case, the only provision in the will was the institution of the petitioner a universal heir. That institution, by itself, was held null and void. Therefore, intestate succession ensued. However, this was muddled in the case of Solano v. CA wherein it was ruled that the preterition of illegitimate children should annul the institution of the heir only insofar as the legitime of the omitted heirs is impaired. Prof. Balane says this is not annulment but reduction, and this would erase the distinction between the effect of preterition on the institution of the heir and its effect on legacies and devises. Fortunately, this was cleared up in Acain v. CA wherein it was held that Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they
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As subsequent articles [906, etc.] mandate, any compulsory heir whose legitime is impaired may demand that the same be fully satisfied. 2. Proportionate reductions [after consuming the undisposed portion] should be borne not by the compulsory heirs as such but by the testamentary heirs, including the devisees and legatees. To make the compulsory heirs qua compulsory heirs bear the reduction would mean reducing their own legitimes a patent absurdity. That would be solving one problem by creating another. As correctly stated by Art907, it is testamentary dispositions that must be reduced if they impair or diminish the legitimes of compulsory heirs. Senator Tolentino comments that article should be rephrased as follows The share of the compulsory heir omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other heirs given to them by will.
should stand valid and respected, except insofar as the legitimes are concerned.
RE-CAP the correct rule of preterition is that: Preterition abrogates the institution of heir but respects legacies and devises insofar as these do not impair the legitimes. Thus, if the will contains only institutions of heirs and there is preterition, TOTAL INTESTACY will result. If there are legacies or devises and there is preterition, the legacies or devises will stand, to the extent of the free portion [merely to be reduced and not set aside, if the legitimes are impaired] but the institution of heirs, if any, will be swept away. PRETERITION v. INEFFECTIVE DISINHERITANCE Preterition is total omission from the inheritance, without the heir being expressly disinherited. The implied basis of the rule is inadvertent omission by the testator. Thus, if the testator explicitly disinherits the heir, this article will not apply. Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance, the heir is simply entitled to demand his rightful share.
ART. 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.
Article is redundant and completely unnecessary of it is made to apply to cases of preterition. If there is preterition, only Art854 need be applied. Proper Application of Art855 in cases where a compulsory heir is not preterited but left something [because not all the estate is disposed of by will] less than his legitime. Art855 really talks of a completion of legitime. HOW TO FILL UP COMPULSORY HEIRS IMPAIRED LEGITIME? From the portion of the estate left undisposed of by will. From the shares of the testamentary heirs, legatees and devisees, proportionally. Superfluity and Inaccuracy of Art855 Superfluity article, properly understood, does not apply to preterition but to completion of legitime, it is redundant, because the rules and manner of completing impaired legitimes are laid down with greater detail in Articles 906, 907, 909, 910 and 911. Inaccuracy two inaccuracies 1. Coverage should extend not only to children and descendants but to all compulsory heirs.
ART. 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code.
Observations on the Article Inaccurate and misleading because it suggests that there are exceptions to the rule that an heir, in case of predecease, incapacity or renunciation, transmits nothing to his own heirs. This rule of non-transmission is ABSOLUTE and there is no exception to it. Representation does not constitute an exception because in representation the person represented does not transmit anything to his heirs. Representation is rather a form of subrogation. It says too much because the article is in the chapter on testamentary succession under institution of heir, therefore it should speak only of voluntary or testamentary heirs. It says too little because it does not mention legal or intestate heirs nor does it provide for cases of disinheritance. Rather, the complete statement of the rule is An heir, whether compulsory, voluntary or legal, transmits NOTHING to his heirs in case of
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3. Reciprocal [reciproca] Art861 4. Fideicommissary [fideicomisaria] Art863
predecease, incapacity, renunciation or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as well as disinheritance of compulsory heirs, the rules on representation shall apply.
SECTION 3 SUBSTITUTION OF HEIRS Art. 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted.
In reality, there are only 2 kinds of substitutions the simple or common and the fideicommissary. These two are MUTUALLY EXCLUSIVE, a substitution must be one or the other and cannot be both at the same time. Brief or compendious and reciprocal substitutions are merely variations of either the simple or fideicommissary.
The definition of substitution is incomplete because it covers only simple substitution and excludes the fideicommissary. In the fideicommissary, the 2 nd heir does not succeed in default, but AFTER the first. The complete definition of substitution should be Substitution is the appointment of another heir so that he may enter into the inheritance in default of, or subsequent to, the heir originally substituted. With respect to Simple Substitution, this section is properly a part of the next section on conditional testamentary dispositions. Simple substitution is really a form of conditional institution. The right to provide for substitutions is based on testamentary freedom. In simple substitutions, the testator simply makes a second choice, in case the first choice does not inherit. In fideicommissary substitutions, the testator imposes what is essentially a RESTRICTION OR BURDEN on the first heir, coupled with a selection of a subsequent recipient of the property.
ART. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. A simple substitution, without a statement of the cases to which it refers, shall comprise the there mentioned in the preceding paragraph, unless the testator has otherwise provided.
This article provides for SIMPLE or VULGAR substitution. CAUSES OF SIMPLE SUBSTITUTION 1. Predecease of the first heir 2. Renunciation of the first heir 3. Incapacity of the first heir HOW TESTATOR MAY PROVIDE FOR SIMPLE SUBSTITUTION WITH ALL 3 CAUSES 1. By specifying all 3 causes 2. By merely providing for a simple substitution Restricted Simple Substitution the testator may limit the operation of simple substitution by specifying only one or two of the 3 causes. QUESTIONS May the testator provide for a substitution on grounds other than those provided in this article? In case of renunciation by the first heir, must the substitute have capacity at the time of the renunciation? Supposing the substitute dies before the first heir manifests his renunciation, may the successors of the substitute acquire the testamentary disposition? Must have capacity Art1034 par 3 providing that If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered. As a simple substitution is a form of conditional substitution, therefore Art1034 can be applied. Need not have capacity Art1042 and 533 par2 which provides that the effects of the acceptance or repudiation of the inheritance shall always retroact to the moment of the death of the decedent and that one who
Art. 858. Substitution of heirs may be: (1) Simple or common; (2) Brief or compendious; (3) Reciprocal; or (4) Fideicommissary.
Under the old Spanish Code, in addition to the 4 enumerated, there were pupilar and ejemplar substitutions under Arts. 775 and 776, providing that an ascendant or the parent may substitute the descendant below 14 years old in case the descendant should die before age 14; and that a substitute may be designated by an ascendant for a descendant who is over 14 but has been declared incompetent by reason of mental incapacity, but such substitution shall be ineffective by a will executed by the incompetent during a lucid interval or after he ahs recovered his mental faculties. KINDS OF SUBSTITUTION UNDER ART858 1. Simple or Common [vulgar] Art859 2. Brief or Compendious [brevilocua / compendiosa] Art860
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Example, A gets , B gets 1/3 and C gets 1/6. If a predeceases the testator, B and C will acquire As share in the proportion of 2:1 because their respective testamentary shares are and 1/6. Should B predecease, A and C will get his portion in the proportion of 3:1 because their respective shares are and 1/6. Should C predecease, A and B will get Cs 1/6 portion in the proportion of 3:2 for the same reason.
validly renounces an inheritance is deemed never to have possessed the same. Will the substitute be disqualified if the cause of the first heirs predecease is that the substitute killed him?
ART. 860. Two or more persons may be substituted for one; and one person for two or more heirs.
Brief or Compendious substitution is a possible variation of either a simple or fideicommissary substitution. Distinctions Brief 2 or more substitutes for 1 original heir Compendious 1 substitute for 2 or more orig. However, most commentators use the terms interchangeably. If 1 is substituted for 2 or more original heirs Effect of default of one but not all of the original heirs is that substitution will NOT take place but the share left vacant will accrue to the surviving original co-heir or co-heirs. Substitution will take place only if ALL the original heirs are disqualified. The exception is where the testator provides for substitution in the event of the death or renunciation or incapacity of any one of the original heirs.
ART. 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless the testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted.
The substitute merely takes the place of the original heir, so the former is also subjected to all the liabilities as well as rights of the latter, including charges and conditions imposed upon the original heir.
ART. 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution.

ART. 863. A fideicommisary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator.

First heir fiduciary ; Second heir fideicommissary ELEMENTS OF FIDEICOMISARIA 1. A 1st heir who takes the property upon the testators death Fiduciary enters upon the inheritance, like every other heir, upon the opening of the succession, which is when the testator dies. 2. A 2nd heir who takes the property subsequently from the fiduciary The fideicommissary heir does not receive the property until the fiduciarys right expires. BOTH heirs enter into the inheritance, one after the other, each in his own turn. This distinguishes the fideicomisaria from the vulgar, in which the substitute inherits only if the first heir fails to inherit. NOTE though the fideicommissary heir does not receive the property upon the testators death, his right thereto VESTS at that time and merely becomes subject
Reciprocal substitution is a possible variation of the simple or fideicommissary substitution. If the heirs in a will are given unequal shares, and they are reciprocal substitutes of each other, the substitute shall, in addition to his given share, acquire the share of the heir who he is substituting for due to predecease, renunciation or incapacity. Example, A gets and B gets . They are reciprocally substituted. If A predeceases the testator, B will substitute and get the share of A [] in addition to his share, so in total he gets . The second sentence of Art861 provides for Proportionate Accrual. If there are more than 1 heir instituted, and they are reciprocally substituted, the substitutes will acquire the share of the original heir in the same proportion as they were given in the testamentary disposition.
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UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM ART. 865. Every fideicommisary substitution must be expressly made in order that it may be valid. The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise.

to a period, and that right passes to his own heirs should he die before the fiduciarys right expires. 3. The 2nd heir must be 1 degree from the first heir Means 2 things a) Only one transmission/transfer is allowed, from the first heir to the second heir b) Second heir must be in the first degree of relationship with the first heir. The second heir must either be a child or parent of the first heir 4. Dual obligation imposed upon the 1st heir to: a) Preserve the property, and b) To transmit it after the lapse of the period to the fideicommissary heir. This requisite is the essence of the fideicomisaria. This makes the position of the fiduciary basically that of a usufructuary, with the right to use and enjoy the property but WITHOUT JUS DISPONENDI. If there is no absolute obligation to preserve and transmit, there is no fideicommissary substitution. The institution is not necessarily void, it may be valid as some other disposition but it is not a fideicomisaria. In PCIB v. Escolin, the institution was held to be a simultaneous institution, a resolutory condition on the part of the husband while subject to a suspensive condition on the part of the brothers- and sisters-in-law and not a fideicomisaria because no obligation is imposed upon the husband to preserve the estate or any part thereof for anyone else. If the testator DID NOT specify a day when the fiduciary will deliver the property to the fideicomissary, or when the time of delivery is in doubt, it shall be understood to have been left to the fiduciarys discretion, which means the delivery should be upon the FIDUCIARYS DEATH. This is based on the presumption that the testator intended the fiduciary to enjoy the property during his lifetime. 5. Both heirs must be living and disqualified to succeed at the time of the testators death.
FIDEICOMISARIA SHOULD BE EXPRESSLY IMPOSED. 2 ways of making an express imposition 1. By the use of the term fideicommissary or 2. By imposing upon the first heir the absolute obligation to preserve and to transmit to the second heir. Allowable Deductions 1. GR fiduciary should deliver property INTACT and UNDIMINISHED to the fideicommissary heir upon the arrival of the period. 2. The only Deductions allowed, in the absence of a contrary provision in the will are a) Legitimate expenses only necessary and useful expenses and NOT ornamental expenses b) Credits c) Improvements - only necessary and useful improvements and NOT ornamental improvements Damage or Deterioration to Property If caused by a fortuitous event or ordinary wear and tear fiduciary is not liable If caused by fiduciarys fault or negligence fiduciary is liable.
ART. 866. The second heir shall acquire a right to the succession from the time of the testators death, even though he should die before the fiduciary. The right of the second heir shall pass to his heirs.
ART. 864. A fideicommissary substitution can never burden the legitime.
Legitime passes by strict operation of law, therefore the testator has no power over it.
In connection with Art863 on element of fideicommissary that both heirs must be living and disqualified to succeed at the time of the testators death. The second heirs right vests upon the testators death, conformably with Art777 and Art878 since as far as the second heir is concerned, the institution of him is one subject to a suspensive term. Thus, the second heir does not have to survive the first heir in order for the substitution to be effective. The second heirs own heirs simply take his place by succeeding to the vested right already possessed by the second heir.
ART. 867. The following shall not take effect: PAHINA 30

This paragraph makes the ENTIRE PROVISION VOID. The problem is the difficulty of establishing the fact of circumvention. Supposing the ostensible heir conceals or destroys the secret instructions and claims as heir under the testamentary provision as worded?
(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir; (2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863. (3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension; (4) Those which leave to a person the whole part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator.
ART. 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written. ART. 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he fives the usufruct to various persons, not simultaneously, but successively, the provisions of Article 863 shall apply.
Provisions that shall NOT TAKE EFFECT 1. Fideicommissary substitutions which are not made in an express manner Lack of this element does not, by that fact alone, nullify the institution. It only means that the institution is not a fideicomisaria. 2. Perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863. If there is a fideicomisaria, the limit is the first heirs lifetime. If there is no fideicomisaria, the limit is 20 years. 3. Imposes upon the heir the charge of paying a certain income or pension to various persons successively, beyond the limit prescribed in article 863 There can only be 2 beneficiaries of the pension, one after the other, and the second must be one degree from the first. But there is no prohibition on simultaneous beneficiaries. 4. Leave to a person the whole part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. The ostensible heir here is in reality only a dummy, because in reality, the person intended to be benefited is the one to whom the secret instructions refer. The purpose of such a surreptitious disposition is to circumvent some prohibition or disqualification
If the testator institutes successive usufructuaries, there can only be two usufructuaries, one after the other, and as to the two of them, all the requisites of Art863 must be present.
ART. 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void.

If the testator imposes a longer period than 20 years, the prohibition is valid only for 20 years. If there is a fideicommissary substitution, this time limitation will not apply. Rather, Art863 applies, which allows as a period, the lifetime of the first heir.
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KINDS OF SUBSTITUTIONS
1. SIMPLE or COMMON Causes of Simple Substitution 1) Predecease of the first heir 2) Renunciation of the first heir 3) Incapacity of the first heir 2. BRIEF or COMPENDIOUS Distinctions o Brief 2 or more substitutes for 1 orig. heir o Compendious 1 sub for 2 or more orig. o However, most commentators use the terms interchangeably. If 1 is substituted for 2 or more original heirs, default of one but not all of the original heirs does not lead to substitution but the share left vacant will accrue to the surviving original coheir or co-heirs. 3. RECIPROCAL If the heirs in a will are given unequal shares, and they are reciprocal substitutes of each other, the substitute shall, in addition to his given share, acquire the share of the heir who he is substituting for due to predecease, renunciation or incapacity. The second sentence of Art861 provides for Proportionate Accrual. If there are more than 1 heir instituted, and they are reciprocally substituted, the substitutes will acquire the share of the original heir in the same proportion as they were given in the testamentary disposition. 4. FIDEICOMMISSARY Elements of a Fideicommissary 1) A 1st heir who takes the property upon the testators death 2) A 2nd heir who takes the property subsequently from the fiduciary 3) The 2nd heir must be 1 degree from the first heir 4) Dual obligation imposed upon the 1st heir to: a. Preserve the property, and b. To transmit it after the lapse of the period to the fideicommissary heir. 5) Both heirs must be living and disqualified to succeed at the time of the testators death. Fideicommissary substitution should be expressly provided for in the will
SECTION 4 CONDITIONAL TESTAMENTARY DISPOSITIONS AND TESTAMENTARY DISPOSITIONS WITH A TERM GENERAL PROVISIONS ART. 871. The institution of an heir may be made conditionally, or for a certain purpose or cause.
3 KINDS OF TESTAMENTARY DISPOSITIONS 1. Conditional dispositions 2. Dispositions with a term 3. Dispositions with a mode [modal dispositions] Inaccuracies in Section heading and wording of this article Incomplete Section Heading should include4 modal dispositions Incomplete wording of Article does not include dispositions with a term Definitions CONDITION defined obliquely in Art1179 par1.
Art. 1179. Every obligation whose performance does not depend upon a future or uncertain event, or upon a past event unknown to the parties, is demandable at once. Every obligation which contains a resolutory condition shall also be demandable, without prejudice to the effects of the happening of the event.
TERM defined obliquely in Art1173 pars 1 & 3

Art. 1193. Obligations for whose fulfillment a day certain has been fixed, shall be demandable only when that day comes. Obligations with a resolutory period take effect at once, but terminate upon arrival of the day certain. A day certain is understood to be that which must necessarily come, although it may not be known when. If the uncertainty consists in whether the day will come or not, the obligation is conditional, and it shall be regulated by the rules of the preceding Section.
MODE defined obliquely in Art882.

Art. 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation.
ART. 872. The testator cannot impose any charge, condition or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed. PAHINA 32
UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM the time during which he or she should remain unmarried or in widowhood.
The legitime passes by strict operation of law, independent of the testators will. This article is a logical consequence of that principle. This article is echoed by Art904 par2.
DISPOSITION WITH CONDITIONS MAY BE BOTH RESOLUTORY OR SUSPENSIVE. ART. 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide.

Conditions prohibiting marriage If a first marriage is prohibited condition always considered as not imposed If subsequent marriage is prohibited 1. If imposed by the deceased spouse or by his/her ascendants or descendants valid 2. If imposed by anyone else considered as not written The 2nd paragraph of the article may provide the testator, if he so desires, a means of terminating the testamentary benefaction should the heir contract marriage, even a first one. The wording of the disposition will be crucial, it should not be so worded as to constitute a prohibition forbidden in the first paragraph. Necessity of Caucin Muciana since this condition, assuming it is validly imposed, is NEGATIVE in nature, a Caucin Muciana is required, as in Art879. Condition to contract marriage This article does not prohibit the imposition of a condition to marry, either with reference to a particular person or not. Neither does this article declare void a relative prohibition.
The impossible or illegal condition is simply considered as not written. The testamentary disposition itself is not annulled; on the contrary it becomes PURE. The rule on Donations is the same. considered as not imposed Art. 727. Illegal or impossible conditions in simple and remuneratory donations shall be considered as not imposed. On the other hand, the rule in Obligations is different. annuls the obligation Art. 1183. Impossible conditions, those contrary to good customs or public policy and those prohibited by law shall annul the obligation which depends upon them. If the obligation is divisible, that part thereof which is not affected by the impossible or unlawful condition shall be valid. The condition not to do an impossible thing shall be considered as not having been agreed upon. Reason for difference in rule Testamentary dispositions and donations are both gratuitous and spring from the grantors liberality. The imposition of a condition does not displace liberality as the basis of the grant. On the other hand, in obligations which are onerous, the condition that is imposed becomes an integral part of the causa of the obligation. The elimination of that condition for being impossible or illegal results in a failure of cause.
ART. 875. Any disposition made upon the condition that the heir shall make some provision in favor of the latter of the testator or of any other person shall be void.
Scriptura Captatoria Legacy-hunting dispositions, whether to heirs or legatees, are void. Reasons for the Prohibition 1. The captatoria converts testamentary grants into contractual transactions 2. It deprives the heir of testamentary freedom 3. It gives the testator the power to dispose mortis causa not only of his property but also of his heirs. What is declared void it is not merely the condition that is declared void but the testamentary disposition itself which contains the condition.
ART. 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse or by the latters ascendants or descendants. Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for
ART. 876. Any purely potestative condition imposed upon an heir must be fulfilled by him a soon as he learns of the testators death. This rule shall not apply when the condition, already complied with, cannot be fulfilled again.
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Art879 if the potestative conditions is negative
ART. 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise. Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware thereof, it shall be deemed as complied with. If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again. ART. 883, par. 2. If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. ART. 879. If the potestative condition imposed upon the heir is negative or consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests.
Art885
par2 - The designation of the day or the time when the effects of the institution of an heir shall commence Art882 When there is a statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him. B. CASUAL or MIXED GR may be fulfilled at any time, before or after the testators death, unless the testator provides otherwise. QUALIFICATIONS if already fulfilled at the time of the execution of the will a) If testator UNAWARE of fulfillment deemed fulfilled b) If testator was AWARE of fulfillment Can no longer be fulfilled again deemed fulfilled Can be fulfilled again must be fulfilled again Constructive Compliance - Art883 par2 a) If casual not applicable b) If mixed If dependent partly on chance not applicable If dependent partly on will of a third party If interested 3rd party applicable If not an interested party not applicable
These articles govern POTESTATIVE, CASUAL and MIXED conditions. 1. Potestative Conditions one that depends solely on the will of the heir/devisee/legatee. 2. Casual Condition one that depends on the will of a third person or on chance 3. Mixed Condition one that depends partly on the will of the heir/devisee/legatee and partly either on the will of a third person or chance. RULES ON POTESTATIVE, CASUAL AND MIXED CONDITIONS A. POTESTATIVE Positive to do something a) GR must be fulfilled as soon as the heir learns of the testators death b) E if the condition was already complied with at the time the heir learns of the testators death, and the condition is of such a nature that it cannot be fulfilled again. c) Constructive compliance Art883 par2 condition is deemed fulfilled. Negative not to do something a) Heir must give security to guarantee [caucion muciana] the return of the value of the property, fruits, and interests, in case of contravention. b) 3 Instances when a Caucion Muciana is Required
ART. 880. If the heir be instituted under a suspensive condition or term the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term. The same shall be done if the heir does not give the security required in the preceding article.
ART. 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner of administration and the rights and obligations of the administrator shall be governed by the Rules of Court.
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Between the time of the testators death and the time of the fulfillment of the suspensive condition or of the certainty of its non-occurrence property is to be placed under administration. 1. If condition happens the property will be turned over to the instituted heir 2. If it becomes certain that condition will not happen property will be turned over to a secondary heir [if there is one] or to the intestate heirs, as the case may be. Not applicable to institutions with a TERM despite the wording of the article, it should not be applied to institutions with a term, which are governed by Art885 par 2. Otherwise, there will be an irreconcilable conflict with that article, which mandates that before the arrival of the term, the property should be given to the legal heirs. 2nd paragraph the property shall be in the executors or administrators custody until the heir furnishes the caucion muciana. Procedural rules governing administrator Rules 77-90 RoC. appointment of
ART. 885. The designation of the day or the time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir.
If term is Suspensive before the arrival of the term, the property should be delivered to the intestate heirs. A caucion muciana has to be posted by them. This is the 2nd instance where a caucion muciana is required to be posted. If term is Resolutory before the arrival of the term, the property should be delivered to the instituted heir. No caucion muciana is required.
DISPOSITION WITH MODES ART. 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation.
ART. 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this Section.
Suppletorily governing conditional institutions Articles 1179 and 1192 on conditional obligations.
are
DISPOSITION WITH TERMS ART. 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term.
When the heirs right vests in dispositions with a term, the heirs right vests upon the testators death, conformably with Art777. Therefore, should the heir die before the arrival of the suspensive term, he merely transmits his right to his own heirs who can demand the property when the term arrives. The rule in this article is similar to Art866 in fideicommissary substitutions. The rule in conditional institutions what is the rule if the instituted heir dies before the happening of the condition? The section is silent on this matter. But under Art1034, par3, if the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered. The import is that in conditional institutions, the heir should be Living and Qualified to succeed BOTH at the time of the testators death and at the time of the happening of the condition.
The 1st paragraph defines a mode obliquely. A mode is an obligation imposed upon the heir, without suspending the effectivity of the institution [which a condition does]. A mode must be clearly imposed as an obligation in order to be considered as one. Mere preferences or wishes expressed by the testator are not modes. A mode functions similarly to a resolutory condition. In fact, modes could very well have been absorbed by the concept of resolutory conditions. Caucion Muciana should be posted by the instituted heir [3rd instance of caucion muciana]
ART. 883 par1. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes.
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UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM their legitimate children and descendants; 3)The widow or widower; 4)Acknowledged natural children, and natural children by legal fiction; 5)Other illegitimate children referred to in Article 287. Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.
The intention of the testator should always be the guiding norm in determining the sufficiency of the analogous performance.
SECTION 5 LEGITIME
System of Legitimes our successional system, closely patterned after that of the Spanish Code, reserves a portion of the net estate of the decedent in favor of certain heirs, or groups of heirs or combination of heirs. The portion that is so reserved is called the LEGITIME. The portion that is left available for testamentary disposition after the legitimes have been covered is the free or disposable portion. The heirs for whom the law reserves a portion are called compulsory heirs. Nature of Legitimes the legitimes are set aside by mandate of law. Thus, the testator is required to set aside or reserve them. Otherwise stated, the testator is prohibited from disposing by gratuitous title, either inter vivos or mortis causa, of these legitimes. Dispositions by onerous title are not prohibited because in theory, nothing is lost from the estate in an onerous disposition, since there is merely an exchange of values. Because the testator is compelled to set aside the legitimes, the heirs in whose favor the legitimes are set aside are called compulsory heirs. The compulsion is not on the part of the heirs, who are free to accept or reject the inheritance, but on the part of the testator. Major changes in the law of legitimes 1. Abolition of the major or betterment in the Spanish Code 2. The surviving spouses share is upgraded from a usufructuary interest to full ownership, albeit a very variable share. 3. The grant of legitimary rights to children classified under the New Civil Code as illegitimate other than natural or spurious, and further change under the Family Code abolishing the distinction between natural and spurious children and giving all illegitimate children the same legitimary shares.
This article enumerates the compulsory heirs. The enumeration is EXCLUSIVE and may be classified as follows: 1. Primary compulsory heirs legitimate children and / or descendants So called because they are preferred over, and exclude the secondary heirs. 2. Secondary compulsory heirs legitimate parents and / or ascendants ; illegitimate parents So called because they receive legitimes only in default of the primary heirs. Legitimate parents/ascendants only in default of legitimate children/ descendants. Illegitimate parents only in default of any kinds of children/descendants. 3. Concurring compulsory heirs surviving spouse; illegitimate children and / or descendants So called because they succeed as compulsory heirs together with primary or secondary heirs, except only that illegitimate children / descendants exclude illegitimate parents.
ART. 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. ART. 887. The following are compulsory heirs: 1)Legitimate children and descendants, with respect to their legitimate parents and ascendants; 2)In default of the foregoing, legitimate parents and ascendants, with respect to
THE COMPULSORY HEIRS LEGITIMATE CHILDREN / DESCENDANTS 1. Legitimate Children specified in Arts164 and 54 of the Family Code. Legitimated children fall under this classification [Art179 FC]. The law does not specify how the legitimate children should share in the legitime. However, they will share EQUALLY regardless of age, sex or marriage of origin. 2. Legitimate Descendants the GR is the nearer exclude the more remote. Thus, children, if all qualified, will exclude grandchildren and so on. The qualification to this rule is representation when proper. LEGITIMATE PARENTS / ASCENDANTS
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1. Legitimate Parents

whereas legitimate parents are excluded only by legitimate children/ descendants.
2. Legitimate Ascendants Only in default of parents. The rule absolute in the ascending line is that the nearer exclude the more remote. [Arts889-890] SURVIVING SPOUSE 1. The spouse of the decedent, not the spouse of a child who has predeceased the decedent. 2. Marriage between the decedent and his/her surviving spouse must be either VALID or VOIDABLE. If voidable, there should have been no final decree of annulment at the time of the decedents death. Question if the consort dies during the pendency of a petition for declaration of nullity under Art36 or for nullity under Art40 of the FC, should the proceedings be dismissed or should they proceed? Mere estrangement is not a ground for the disqualification of the surviving spouse as heir. Effect of Decree of Legal Separation a) On the offending spouse disqualification b) On the innocent spouse - nothing Death of either spouse during pendency of a petition for Legal Separation Dismissal of the Case. ILLEGITIMATE CHILDREN / DESCENDANTS 1. Illegitimate Children Family Code has abolished the distinction between natural and spurious children and gives all of them indiscriminately called illegitimate children equal legitimary portions. However, pursuant to Art777, if death occurred before effectivity of the Family Code on August 3, 1988, the old distinctions will apply and the spurious child gets only 4/5 of the share of the natural child. [Art895] 2. Illegitimate Descendants Same rule applies as in the legitimate descending line, the nearer exclude the more remote, without prejudice to representation when proper. It should be noted that the illegitimate child can be represented by both legitimate and illegitimate descendants, as distinguished from the legitimate child, who can be represented only by legitimate descendants. [Art902 and 992] ILLEGITIMATE PARENTS 1. Unlike the legitimate ascending line, which includes ascendants in whatever degree, the illegitimate ascending line only includes the parents, it does not go beyond the parents. 2. The illegitimate parents are secondary heirs of a lower category that legitimate parents, because the illegitimate parents are excluded by legitimate and illegitimate children [Art903]
Variations in the Legitimary Portions The legitimary system of the Philippine Code rests on a double foundation EXCLUSION and CONCURRENCE. GENERAL RULE there is a basic amount of that is given to one heir or one group of heirs. This General Rule admits only of 3 EXCEPTIONS: 1. Art894 surviving spouse and illegitimate children 2. Art900 par2 surviving spouse in a marriage in articulo mortis, with the conditions specified in that article 3. Art903 surviving spouse and illegitimate parents. The term legitimate child or legitimate children includes a legally adopted child under Sec18 of RA8552 or the Domestic Adoption Act of 1998. Question Is an adopted child entitled to a legitime from his biological parents or ascendants? Uncertain. Art189[3] of the FC provides that the adopted shall remain an intestate heir of his parents and other blood relatives. Thus, the adopted child was entitled to a legitime BOTH from his adopter and his biological parents. But now, the law is silent and it neither gives nor denies an adopted child the right to a legitime from his biological parents. Sec16 of the law provides that all legal ties between the biological parents and the adoptee shall be severed but that is unavailing to answer the question because sec16 only has to do with parental authority. The term legitimate child or legitimate children shall, in proper cases, include legitimate descendants other than children. The term legitimate parents includes, in proper cases, legitimate ascendants other than parents.
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SUCCESSION REVIEWER LAW

UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM

CHAPTER 1 GENERAL PROVISIONS

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CHAPTER 2 TESTAMENTARY SUCCESSION

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dispositions if the first invalid disposition had not been made.

GENERAL RULE in a legacy or devise the testator

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Foreigners depends on their personal law [Art16, par2 and Art1039]

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UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM

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UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM

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Outline on Joint Wills 1. By Filipinos in the Philippines VOID Art818

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Because the debt or charge is not a testamentary disposition.

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RE-CAP OF FORMAL REQUIREMENTS OF A WILL

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RE-CAP OF FORMAL REQUIREMENTS OF A WILL

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An Exclusive Enumeration of the grounds for disallowance of a will.

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favor of a definite class or group of persons shall be valid.

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UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM

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UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF 1ST SEM

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ART. 864. A fideicommissary substitution can never burden the legitime.