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CHAPTER I
GENERAL PROVISIONS
a. Occupation
b. Intellectual creation
c. Law
d. Donation
e. Testate and intestate succession
f. Tradition (In consequence of certain contracts)
g. Prescription
The first three are original and the last four are derivative.
Thus, if a seller sells his car to a buyer, the sale is the title while
the delivery (tradition) is the mode which makes the buyer the owner of
the ring. A title merely creates a personal right which could real right if
followed with delivery.
MODE TITLE
Note that in the law on succession, the title is also the mode.
Hereditary rights are transferred from the moment of death of the
decedent (Article 777). Delivery (tradition) is not a condition pre-requisite
to transfer ownership. Actual possession, however, may be exercised only
upon actual delivery (Article 1089; 1091).
What is succession?
Codal definition:
(a) The natural law which obliges a person to provide for those he
would leave behind. This is a consequence of family relations; a
recognition of the natural law of consanguinity, or of blood, and the
natural affection of a person toward those nearest him in relationship.
(Henry v. Thomas, 20 N.E. 519, 118 Ind. 23).
1. Greater freedom is given to the testator in the choice of the form for
his will or testament. While under the prior legislation, only
attested wills were recognized, the new Code permits also the
execution of holographic wills, which are written entirely by the
testator, without witnesses or attestation.
1. Article 2253. The Civil Code of 1889 and other previous laws
shall govern rights originating, under said laws, from acts done or events
which took place under their regime, even though this Code may regulate
them in a different manner, or may not recognize them. But if a right
should be declared for the first time in this Code it shall be effective at
once, even though the act of event which gives rise thereto may have
been done or may have occurred under the prior legislation, provided
said new right does not prejudice or impair any vested or acquired right,
of the same origin.
Illustration:
Facts: Maria Uson was the lawful wife of Faustino Nebreda who
upon his death in 1945 left five parcels of land. Faustino Nebreda left no
other heir except his widow, Maria Uson. Defendant Maria Del Rosario
was the common law wife of Nebreda with whom she has several
illegitimate children, the other defendants. Maria Uson file the present
action for the recovery of the ownership and the possession of said lands
claiming that when Nebreda died his common law wife took possession of
said lands. The defendant contended that under the new Civil Code,
which took effect in 1950, the illegitimate children are given the status
and rights of natural children and are entitled to the successional rights
which the law accords to the latter and because these successional rights
were declared for the first time in the new Civil Code, they shall be given
retroactive effect even though the even which gave rise to them may have
occurred under the prior legislation.
The decisive fact which gives origin to the right of the heirs,
devisees and legatees is the death of the decedent. This is the basis of the
foregoing rule. No heir, devisee or legatee has any vested right until the
moment of such death.
InYap vs. Court of Appeals, et al., G.R. No. L-40003 October 28,
1986, the Supreme Court held:
Thus:
a. Property;
b. Transmissible rights not extinguished by death;
The time of death is the determining point when the heirs acquire
a definite right to the inheritance whether such right be pure or
conditional (Rubio vs. Court of Appeals, 153 SCRA 183).
Notes:
Yes.
The law in force at the time of death of the deceased shall govern
the distribution of his estate and not the law at the time of distribution.
The principle in Article 777 applies not only to actual death but
even to presumptive death. This is clear from the provisions of Articles
390 and 391.
Suppose the heir had already spent the money (for food, for
example), is there an obligation to reimburse its value?
Under the old Civil Code, spurious children were not entitled
to inherit even if their liation had been judicially decreed or
declared. Under the new Civil Code, said children if recognized
voluntarily or by judicial decree are entitled to inherit.(The new Civil
Code took effect August 30, 1950; Lara v.Del Rosario, L-6339, Apr. 30,
1954; see also Paulino v. Paulino, 3 SCRA 730 and Velez and Bato v.
Velez, L-28873, July 31, 1973).If a spurious child was born in 1938,
but his father died in 1951, will said child inherit?
Yes, he will inherit so long as he can prove his liation because the
rights to the succession are transmitted or effected only from the
moment of death -1951. Thus, since it is the fathers death that gave rise
to the succession, and since the death occurred when the new Civil Code
was already effective, it is certain that the spurious child should inherit,
despite his being born under the old Code - there being no vested right of
the legitimate children that would be prejudiced. (See Bulos v. Tecson, L-
18286, Oct. 31, 1962; Montilla v. Montilla, L-14462, June 30, 1961; Tecson
v. del Rosario, L-4962, Jan. 29, 1953).
Had the father died before August 30, 1950, would the
spurious child be entitled to inherit?
Had the father died before August 30, 1950, the spurious child
would not be entitled to inherit because since this time, vested rights of
the legitimate children would be prejudiced. This is true even if there are
settlement proceedings in court, resulting in the delivery of the property
to the heirs only after the new Civil Code had become effective. (See
Jayme v. Gamboa, 75 Phil. 479). After all, the transfer of ownership takes
place not after delivery but from the moment of death, succession being
by itself (and without the necessity of delivery) a mode of acquiring
ownership. Upon the other hand, the rights to the inheritance of a
person who died, with or without a will, before the effectivity of the new
Civil Code shall be governed by the Civil Code of 1889, by other previous
laws and by the Rules of Court. (Members of the Cult of San Miguel
Arcangel v. Narciso, L-24843, July 15, 1968)
T died, providing in his will that ten years after his death, H
would become owner of his (Ts) properties. Should the inheritance
tax be computed at Ts death or 10 years later?
NOTE:
(a) The inheritance (estate) tax is a tax not on theproperty itself but
on the transmission (transfer or devolution) of the property (61 CJ 1952).
(b) The date the inheritance (estate) tax accrues is distinct from the
date on which it must be paid (Lorenzo v. Posadas, supra).
(c) The estate tax is a virtual charge on the giver (the deceased) for
the transmission of the property; the inheritance (now changed to estate)
tax is a charge on the recipient (the heirs, devisees, and legatees). The
inheritance tax is paid on what is left after the estate tax has been
deducted from the residuary estate.
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed.
c. Legal or intestate (Article 778) where the decedent did not execute
a will; or if there was a will, it is void; or there may be succession
by operation of law;
d. Mixed (Article 778) that which is effected partly by will and partly
by operation of law (Article 780); and
community of property, they cannot donate to each other in their marriage settlements
more than one-fifth of their present property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on
testamentary succession and the formalities of wills.
1. All of his property which are existing at the time of his death (note
however that this can only refer to those properties which are
available for distribution among the persons called to the
inheritance after settlement or liquidation);
2. All of his transmissible rights and obligations which are existing at
the time of his death and not extinguished by his death; and
3. All of the property and rights which have accrued to the hereditary
estate since the opening of the succession.
They are rights extinguished upon the death of the decedent. The
heirs could not succeed to intransmissible rights.
Note however that if the decedent died with a valid will, the after-
acquired property shall not pass to the designated heir unless the same
is expressly stated in the will or the intention clearly appears. 9 When the
testator used general terms in the disposition of his property such as my
entire estate, all my property, etc. the intention to pass after-acquired
property is deducible in the absence of the contrary context.
These are accretions and accessions. However, they are not strictly
inherited for they form part of the estate only after the heirs become the
owners thereof, hence, properly speaking, they are acquired by accretion
as an incident of ownership under the law, and not by succession.
Property acquired by the testator between the time the will is made and
the time he dies, is not given to the designated heir unless the contrary
has been expressly provided. Such property is acquired prior to the
death, not afterwards.
The interest goes to the legatee A, and not to the heir B; it does not
form part of the inheritance, but it is acquired by right of accretion and
belongs to A, who owns the principal, which is the sum upon which the
interest accrues.
The heirs are only entitled to get what remains in the inheritance
after payment of all obligations. However, the heirs are not liable for the
debts of the decedent which debts must be paid or charged against the
property left by the deceased. And if this property is not enough to defray
all the indebtedness, the heirs are not liable to pay the balance. (Pavia
vs. Dela Rosa, 8 Phil. 70; Suilong & Co. vs. Chio Tayson, 12 Phil. 1;
Centeneral vs. Sotto, 78 Phil. 432) Thus, the heir may inherit obligations
but only to the extent of the value of the inheritance. The heir cannot be
required to pay more than what he gets. (Nacar vs. Nistal, 119 SCRA 29)
It is the estate of the decedent, instead of the heirs, who is vested and
charged with his rights and obligations, which survive after his death.
For this purpose, it has been held that it is the estate, rather than the
heir, which must be considered the decedents personality.
10Rule 90, Sec. 1. When the order for the distribution of residue made. When
the debts, funeral charges, and expenses of administration, the allowance to the widow,
and inheritance tax, if any, chargeable to the estate in accordance with law, have been
paid, the court, on the application of the executor or administrator, or of a person
interested in the estate, and after hearing upon notice, shall assign the residue of the
estate to the person entitled to the same, naming them and the proportions, or parts, to
which each is entitled, and such persons may demand and recover their respective
shares from the executor or administrator, or any other person having the same in his
possession. If there is a controversy before the court as to who are the lawful heirs of
the deceased person or as to the distributive shares to which person is entitled under
the law, the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above
mentioned has been made or provided for, unless the distributes, or any of them, give a
bond, in a sum to be fixed by the court, conditioned for the payment of said obligations
within such time as the court directs.
In the case of Estate of Hermandy vs. Luzon Surety Co., Inc., 100
Phil. 389, it was held that:
11Article 1311. Contracts take effect only between the parties, the assigns and
heirs, except in case where the rights and obligations arising from the contract are not
transmissible by their nature, or stipulation or by provision of law. The heirs are not
liable beyond the value of the property received from the decedent.
The human corpse is not a property and is therefore not part of the
estate. This is without prejudice to RA 349, as amended by RA 1056
allowing under certain conditions the granting to certain entities of a
persons organs after death.
Under Act No. 349, as amended by R.A. 1056, a person may validly
grant to a licensed physician, surgeon, known scientist, or any medical
or scientific institution, any organ of his body, and to utilize the same for
medical, surgical or scientific purposes.
The duty and right to make funeral arrangements are vested in the
relatives of the deceased, in accordance with the order in which they are
obliged to support him. If there is a surviving spouse, he or she is given
priority over the next of kin (Almeida vs. Carrillo, 67 Phil. 92).
Hence:
5. The heir succeeds to the remainder of the estate after all debts,
devises and legacies have been paid, while a devisee succeeds only
to the definite thing or amount bequeathed;
CHAPTER 2
TESTAMENTARY SUCCESSION
Section I. WILLS
What is a will?
Why is it that the law says the testator can only control to a
certain degree the disposition of his estate?
The crucial words are found in the poems 13 th stanza: Ahi te todo,
mis padres, mis amores (To you I leave everything, my parents, my
loves.) Declared the Supreme Court: It is a literary piece of work and was
so intended. If it were intended as a will the poem would have been
entitled Ultimo Voluntas and not Ultimo Adios His poem merely
expresses a thought of parting and not of bequeathing. Besides, at that
time, he knows that he has no known property. Therefore 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 in a judicial sense.
(Montinola v. Herbosa, 3 C.A. Rep. (2nd S) p. 377)
Examples:
Examples:
Thus:
1. What are given by will are only those properties already possessed
and owned by the testator at the time the will was made, not those
acquired after (after-acquired properties). Properties acquired after
the making of the will do not pass to the instituted heirs.
2. Exceptions:
Note:
Even so, this article conflicts with Article 930 which provides: The
legacy or devise of a thing belonging to another person is void, if the
testator erroneously believed that the thing pertained to him. But if the
thing bequeathed, though not belonging to the testator when he made
the will, afterwards becomes his, by whatever title, the disposition shall
take effect.
2. Exceptions:
gives the thing in its entirety. 23 In this case, if the person owning
the interest to be acquired does not wish to part with it, the
solution in Article 931 can be applied; i.e. the legatee or devisee
shall be entitled only to the just value of the interest that should
have been acquired.
c. He can even convey property which he very well know does not
belong to him 24 provided that it also does not belong to the legatee
or devisee. 25 (If the testator thought the property was his,
although it is not really his, the legacy or devise is void, unless the
property subsequently becomes his.26)
Thus,
a) For Filipinos
b) For foreigners
a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by
other previous laws, and by the Rules of Court. The inheritance of those who, with or
without a will, die after the beginning of the effectivity of this Code, shall be adjudicated
and distributed in accordance with this new body of laws and by the Rules of Court; but
the testamentary provisions shall be carried out insofar as they may be permitted by
this Code. Therefore, leitimes, betterments, legacies and bequests shall be respected;
however, their amount shall be reduced if no other manner can every heir be given his
full share according to this Code.
36 Article 16, Par. 2.x x x However, intestate and testamentary succession, both
with respect to the order of succession and the amount of successional rights and 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 wherein said property may be found.
37 Article 1039. Capacity to succeed is governed by the law of the nation of the
decedent.
38 Article 16 NCC
39Vda de Enriquez vs. Miguel Abadia, L-7188, August 9, 1954
40 Article 2263 NCC
41 Article 4, NCC
Thus, persons who are expressly prohibited from making a will are
those who do not possess the necessary age and mental requirements. 42
Does the extra day in a leap year affect the computation of the
age of the testator?
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.
Thus, when the testator executed the will after being placed under
guardianship or ordered committed, in either case, for insanity (under
Rules 93 and 101, respectively, of the Rules of Court), and before said
order has been lifted, there is a rebuttal presumption of insanity.
Our new Civil Code does not recognize the validity of nuncupative
wills, wills which are orally made by the testator in contemplation of
death, and before competent witnesses.
It is not essential to state the place where the will is being made or
executed (Dionisio v. Dionisio, CA, 40 O.G. 71).
The law does not specify that the testator himself must perform the
act of writing.
Is it required that the fact that the testator knew the wills
language appear on the face of the will?
The fact that the testator knew the wills language need not appear
on the face of the will. Extrinsic evidence is allowed to prove this(Lopez v.
Liboro, 81 Phil. 429).
In Suroza vs. Honrado, 110 SCRA 388, the will was declared
void.The phrase in the concluding paragraph that the will was read to
the testratrix and was translated into Filipino language could only mean
that the will was written in a language not known to the illiterate
testratrix and, therefore, it is void because of the mandatory provision of
Article 804 of the Civil Code. Translation of the language used will not
cure the defect.
The witness to the will need not know the language or dialect used
in the attestation clause. The law, however requires that it be interpreted
to them, if they do not know it. (Article 805, par. 4)
Some discrepancies:
If the testators rst name appears, without the surname, the will
is valid (Yap Tua v. Yap Ka Kuan, 27 Phil. 579).
The delegate must sign in the testators presence. This does not
necessarily mean that the testator must actually see the signing; it is
enough that he could have done so, or felt it, as when he is blind,
without any physical obstruction, had he wanted to (Jaboneta v. Gustilo,
5 Phil. 641; Yap Tua v. Yap Ka Kuan, 27 Phil. 579).
The law does not require any specific form in which the name of
the testator should be affixed at the end of the will when written at his
request by another person. The only requirement is that the will shall
bear the name of the testator.
Must the person signing for the testator put his own name?
The person signing for the testator does not even have to put his
own name (Barut v. Cagacungan, 1 Phil. 461; Bolonan v. Abellana, et al.,
L-15153, Aug. 31, 1960). All the law requires is that he puts the name of
the testator (Caluya v. Domingo, 27 Phil. 330). Upon the other hand, if he
puts down his own name, and omits that of the testator, this would be a
substantial violation of the law and would render the will invalid, thus if
the name of the testator is not written as a signature to the will, the
testament is invalid notwithstanding that the third persons name
appears on the will with the authorization of the testator (Guison v.
Concepcion, 5 Phil. 551; Bolonan v. Abellana, et al., L-15153, Aug. 31,
1960; Ex-parte Santiago, 4 Phil. 692).
in the presence of three witnesses and that they attested and subscribed
it in his presence. That is all the statute requires.
Since the name of the testatrix appear after the words at the
request of, the said name of the testatrix forms a part of the recital and
not a signature, the signature being the names of the witnesses
themselves (In re Will of Siason, 10 Phil. 504).
Would the will be valid if evidence does not show that the
signature was made at the testators express request but the
testator subsequently acknowledged the will as his own will?
therein that another person was requested by the testator to sign for
him, when the testator himself has thumb-marked the will (See Payad v.
Tolentino, 6 Phil. 849).
The law does not specify who may sign the testators name on the
will at his request. Therefore, any person may sign for him. Even one of
the subscribing or attesting witnesses may sign for the testator (Ex-parte
Leonard, 39 S.C. 518, 18 S.E. 216).
The law fixes the location of the signature and requires that it
must be at the foot or end of the will. The purpose of such requirement is
not only to show that the testamentary purpose therein expressed is
completed, but also to prevent any opportunity for fraud or interpolations
between the written matter and the signature. The position of the
signature at the end of the will furnishes in itself evidence of finality or
completion of intent. Consequently, a writing in the form of a will is a
nullity where it is not signed at the end as required by law, and probate
thereof should be denied. 45
Note: 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.
will, therefore, be denied probate (Matter of Tyner,138 Misc. 192, 245 N.Y.
Supp. 206; see Re Andrews, 162 N.Y. 1, 56 N.E. 529). The new Civil Code
expressly requires that the signature be placed at the end (logical end) of
the will.
Yes, because there was substantial compliance with the law. The
purpose of the law is merely to identify the pages used and to prevent
fraud (Avena vs. Garcia, 42 Phil. 145).
In Matias vs. Salud, L-10751, 23 June 1958, it was held that the
requisite that the will should be signed by the testator is satisfied by a
thumbprint or other mark affixed by him (De Gala vs. Ona, 53 Phil. 104;
Dolar vs. Diancin, 55 Phil. 479; Neyra vs, Neyra, 42 O.G. 2817; Lopez vs.
Liboro, 46 O.G. [Supp. To No1]); Solar v.Diancin, 55 Phil. 479; De Gala v.
Gonzales, 51 Phil. 480) ; and that where such mark is affixed by the
decedent, it is unnecessary to state in the attestation clause that another
person wrote the testators name at his request (Payad vs. Tolentino, 62
Phil. 849).
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. (Garcia vs.
Lacuesta, 90 Phil. 489). In Abaya v. Zalamero, 10 Phil. 357; Leario v.
Leano, 30 Phil. 612, it was held that a testator can sign with a mere cross
if he intends that to be his signature
If somebody else writes the testators name for him, would the
mere placing by the testator of a cross after his name sufficient?
the will a statement that somebody had signed for the testator, is not
sufficient and the will is considered void, not because of the cross, but
because of failure to state the signing of name by somebody else (Garcia
v. La Cuesta, et al., L-4067, Nov. 29, 1961). The Supreme Court in the La
Cuesta case said it would have been different had it been proved that the
cross was the usual signature of the testator, or was even one of the
ways by which he signed his name. If this were so,failure to state the
writing by somebody else would have been immaterial, since he would be
considered to have signed the will himself.
Even if a person knows how to write his name, can he still sign
by the use of a mark?
Even if a person knows how to write his name, he can still sign by
the use of a mark (67 Am. Jur. Wills, Sec. 250).
It is sufficient that the testator sign with his initials (Yap Tua v.
Yap Ka Kuan,27 Phil. 579).
If the last page contains only the attestation clause, the testator
need not sign on the margin (Fernandez v. Vergel de Dios, 46 Phil. 922).
purposeless as the page already has, at the end thereof, all the necessary
signatures (Abangan v. Abangan, 40 Phil. 476).
In requiring that each and every sheet of the will should also be
signed on the left margin by the testator and three witnesses in the
presence of each other, the law evidently has for its object to avoid the
substitution of any of said sheets, thereby changing the testator's
dispositions. But when these dispositions are wholly written on only one
sheet signed at the bottom by the testator and three witnesses as the
instant case, their signatures on the left margin of said sheet would be
completely purposeless. In requiring this signature on the margin, the
statute took into consideration, undoubtedly, the case of a will written on
several sheets and must have referred to the sheets which the testator
and the witnesses do not have to sign at the bottom. A different
interpretation would assume that the statute requires that this sheet,
already signed at the bottom, be signed twice. We cannot attribute to the
statute such an intention. As these signatures must be written by the
testator and the witnesses in the presence of each other, it appears that,
if the signatures at the bottom of the sheet guarantee its authenticity,
another signature on its left margin would be unnecessary; and if they do
not guaranty, same signatures, affixed on another part of same sheet,
would add nothing. We cannot assume that the statute regards of such
importance the place where the testator and the witnesses must sign on
the sheet that it would consider that their signatures written on the
bottom do not guaranty the authenticity of the sheet but, if repeated on
the margin, give sufficient security.
name implies, appertains only to the witnesses and not to the testator
since the latter does not attest, but executes, the will.
Upon the other hand, under Sec. 7(c-ii) of the ECA, no provision .
. . shall apply to vary any and all requirements of existing laws and
formalities required in the execution of documents for their validity -
thus, the felt need to amend - concerning an apparent conict in the
existing laws, not excluding that of the Civil Code and the Rules of Court
vis--vis issues dealt with in the e-commerce law. Sufce it to say, from
all appearances, it would seem that any contractual agreement entered
into may be deemed valid and enforceable even if it is in the form of an e-
document except in the execution of a will.
The law says page and not sheet. A sheet has two pages, the front
and the reverse sides and if both sides are used,both must be paged(See
In Re Estate of Saguinsin, 41 Phil. 875).
The witness can sign with a cross or a mark, provided that such is
the usual signature, and provided further, that he really knows how to
read and write. Otherwise, he cannot of course be a witness (See Garcia
v. La Cuesta, L4067, Nov. 29, 1961).
In Nera vs. Rimando, 18 Phil. 451, it was held that the true test of
presence of the testator and the witnesses in the execution of a will is not
whether they actually saw each other sign, but whether they might have
seen each other sign, had they chosen to do so, considering their mental
and physical condition at the moment of inscription of each signature.
The testator had received a severe injury, and was lying upon
his head unable to move. His sight was unimpaired, but he could
only look upward, as he was incapable of turning his head so as to
see what took place at his side.
Vision may be the usual and safest test of presence, but it is not
the only test. A man may take note of the presence of another by the
other senses, as hearing or touch. It would be against the spirit of our
statutes to hold that because a mind is blind, or because he is obliged to
keep his eyes bandaged, or because, by an injury, he is prevented from
using his sight, he is deprived of the right to make a will (Riggs vs. Riggs,
1883, 135 Mass. 938, 48 Am. Rep. 646).
After the testator and the first and second witnesses had
signed the will and all the pages thereof, the second witness stood
up and left the room just as the third witness was signing the will
and all of the pages thereof but the will was signed before he finally
left the room. Is the will valid?
The fact that the second witness was still in the room, when he
saw the third witness moving his hand and pen in the act of affixing his
signature to the will shows that the third witness did in fact there and
then sign his name to the will. The fact that he was in the act of leaving,
and that his back was turned, while a portion of the name of the witness
was being written is of no importance. He, with the other witnesses and
the testator were together in the same room for that purpose and at the
moment when the third witness signed the document he was actually
and physically present and in such position with relation to the third
witness that he could see everything which took place by merely casting
his eyes in the proper direction, and without any physical obstruction to
prevent him from doing so, therefore, the will was in fact signed before he
finally left the room (Jaboneta vs. Gustilo, 5 Phil. 541).
The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign, but
whether they might have been seen each other sign, had they chosen to
do so, considering their mental and physical condition and position with
relation to each other at the moment of inscription of each signature.
The law requires that the will must be attested and subscribed by
three or more credible witnesses in the presence of the testator and of
one another. This requirement is aside from the other requirement that
there must be an attestation clause, because this requires an attesting.
Aside from the attesting itself, there must be proof of such attesting, and
this proof is what we call the Attestation Clause.
This Will consisting of one page was signedby the testator and by
all of us in the presence of all of us and the testator.
46Azuelav. CA, 487 SCRA 119, G.R. No. 122880, April 12, 2006, the Supreme
Court explained in this wise:
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the left-hand
margin of the will, they do not appear at the bottom of the attestation clause which after
all consists of their averments before the notary public.
Cagro v. Cagrois material on this point. As in this case, "the signatures of the
three witnesses to the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses on the left-hand
margin." While three (3) Justicesconsidered the signature requirement had been
substantially complied with, a majority of six (6), speaking through Chief Justice Paras,
ruled that the attestation clause had not been duly signed, rendering the will fatally
defective.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the same is
signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of the will"
required by law to be made by the attesting witnesses, and it must necessarily bear
their signatures. An unsigned attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of the three witnesses on
the left-hand margin conform substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable, because said signatures are in
compliance with the legal mandate that the will be signed on the left-hand margin of all
its pages. If an attestation clause not signed by the three witnesses at the bottom
thereof, be admitted as sufficient, it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator and any or all of the witnesses.
The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental witnesses sign each page
of the will, from the requisite that the will be "attested and subscribed by [the
instrumental witnesses]." The respective intents behind these two classes of signature
are distinct from each other. The signatures on the left-hand corner of every page
signify, among others, that the witnesses are aware that the page they are signing forms
part of the will. On the other hand, the signatures to the attestation clause establish
that the witnesses are referring to the statements contained in the attestation clause
itself. Indeed, the attestation clause is separate and apart from the disposition of the
will. An unsigned attestation clause results in an unattested will. Even if the
instrumental witnesses signed the left-hand margin of the page containing the unsigned
attestation clause, such signatures cannot demonstrate these witnesses' undertakings
in the clause, since the signatures that do appear on the page were directed towards a
wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case
signed the attestation clause itself, but not the left-hand margin of the page containing
such clause. Without diminishing the value of the instrumental witnesses' signatures
on each and every page, the fact must be noted that it is the attestation clause which
contains the utterances reduced into writing of the testamentary witnesses themselves.
It is the witnesses, and not the testator, who are required under Article 805 to state the
number of pages used upon which the will is written; the fact that the testator had
Is it essential for the validity of the will that the testator or the
person requested by him to write his name should sign the will
ahead of the three attesting witnesses? Must there be order of
signing?
The majority opinion holds that the execution of the will by the
testator and the signing of the same by the subscribing witnesses
constitute one continuous transaction, the signing by each, taking place
in the presence of the others, is sufficient and is to all intents and
purposes an attestation by the subscribing witnesses to a fact which has
already taken place, and the will is valid notwithstanding a subscribing
witness signed the will before the testator does.
signed the will and every page thereof; and that they witnessed and signed the will and
all the pages thereof in the presence of the testator and of one another. The only proof
in the will that the witnesses have stated these elemental facts would be their
signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by
the instrumental witnesses, as they failed to sign the attestation clause.
In Uy Coque vs. Sioca, it was held that when the attestation clause
failed to state the number of sheets or pages upon which the will was
written, the will cannot be probated (In re Will of Andrada, 42 Phil. 180).
Such statement is mandatory. Non-compliance therewith invalidates the
will. Such fact cannot be proven by evidence aliunde.
In Taboada vs. Hon. Rosal, 48 SCRA 195, the Supreme said that
even the attestation clause does not state the number of pages, if the
same can be determined from the will, it is valid. This is because of the
liberality rule or that there was substantial compliance with the law
(Singson vs. Florentino, Oct. 25, 1952; Perez vs. Rosal, 118 SCRA 195).
The will is void, because the total absence of the signature of the
witnesses shows their non-participation (In re: Testate of Vicente Cagro,
April 29, 1953[92 Phil. 1032]). The attestation clause must be signed by
the witnesses at the bottom thereof, and not on the left hand margin,
otherwise, it would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the
witnesses.
Suppose the attestation clause does not state that the will was
signed by the testator in the presence of the witnesses, is the will
valid? Why?
The notary public need not be present at the time of the execution
of the will. In Javellana vs. Ledesma, 97 Phil. 258, it was held that
whether or not the notary signed the certification of acknowledgment in
the presence of the testator and the witnesses does not affect the validity
of the will. A comparison of Articles 805 and 806 of the new Civil Code
reveals that while the testator and witnesses must sign in the presence of
each other,all that is thereafter required is that every will must be
acknowledged before a notary public by the testator and the witnesses
(Article 806); i.e. that the latter should avow to the certifying officer the
authenticity of their signatures and the voluntariness of their actions in
executing the testamentary dispositions. The subsequent signing and
sealing by the notary of his certification that the testament was duly
acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence, their separate
execution out of the presence of the testator and his witnesses cannot be
said to violate the rule that testaments should be completed without
interruption.
In Cruz vs. Villasor, 54 SCRA 31, the notary public before whom
the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his
having signed the will. Consequently, if the third witness was the notary
public himself, he would have to avow, assent, or admit his having
signed the will in front of himself. This cannot be done because he
cannot split his personality into two so that one will appear before the
other to acknowledge his participation in the making of the will. To
permit such a situation to obtain would be sanctioning a sheer
absurdity.
Thus,
That Article 807 has been complied with must be proved in the
probate proceedings. And this is why it would seem wise to state either in
the notarial acknowledgment or in the attestation clause itself that the
Article has been complied with. Yet, it is not essential to do so, as long as
sufcient proof (even extrinsic or parol evidence is enough) is presented.
If the will was not read twice by the persons mentioned in the will,
the will is void.
The three witness rule required for the validity of an ordinary will
is satisfied provided either of the two conditions exists:
1. Roberta could see Clara and the other witnesses sign the will at any
time while she was in the toilet, had she wanted to.
2. If Roberta could not have seen Clara and the other witnesses sign the
will, the same is valid if the will was acknowledged before a Notary Public
other than Benjamin.
It is not necessary that the testator or the witnesses should actually see
the others subscribe their names to the instrument, provided that he is
position to see them sign if he chooses (Nera v. Rimando, G.R. NO. 5971,
February 27, 1911; Yap Tua v. Yap Ka Kuan, G.R. No. L-6845, September
1, 1914). Thus, the signing must be considered to be in the presence of
Hannah, who was reading a book on the couch beside the table.
(a) It is simple and easy to make, convenient for those who have no
means to employ lawyers or notaries, or who are timid and want to read
and re-read their wills before signing them, or who have only very little
property to dispose of;
Yes, since the law does not specify any particular location where
the date should be placed (Labrador vs. CA, 184 SCRA 170).
The date must be complete, that is, it must contain the year,
month, and day. Independence Day, 2002 would be all right, however,
since here, there is no doubt as to the exact date. June 8/02 would
also be sufcient, since it is understood that the year is 2002. But
June 8, 200__ would not be proper, since the date would then be
considered incomplete (See 5 Valverde, 83-84).
In Roxas v. De Jesus, Jr., GR 38338, Jan. 28, 1985, it was held that
while as a general rule, the date in a holographic will should include
the day, month, and year of its execution, however, when as in the case
at bar, there is no appearance of fraud, bad faith, undue inuence and
pressure and the authenticity of the will is established and the only issue
is whether or not the date Feb./61 appearing on the holographic will is
a valid compliance with Article 810 of the Civil Code, probate of the
holographic will should be allowed under the principle of substantial
compliance.
The date Christmas day 1990 is a substantial compliance with the
requirements of the law (Roxas vs. De Jesus, Jr. G.R. No. 38338, Jan. 28,
1985[134 SCRA 245]). The law has a tender regard for the will of the
testator expressed in his last will and testament because the testators
disposition is better than that which the law can make.
Unless a will is allowed probate, it shall not pass any property. And
the effect of the probate of a will I that it is conclusive to its due
execution. Probate is limited however to the formal or extrinsic validity
of the will.
In Gan vs. Yap, 104 Phil. 509, if the holographic will has been lost
or destroyed and no other copy is available, the will cannot be probated
because the best and only evidence is the handwriting of the testator in
said will.
Summary:
Therefore;
a. If done by another, without the testators consent, same
will not affect the previous dispositions, which remain
void if in themselves void; and remain valid if in
themselves valid.
b. If done another with the testators consent, same effects
in (d), because the latter disposition is not really
holographic (not done by the testator himself.)
No, only the alteration is void. However, if what was altered was
the date or the signature, the alteration without the full signature makes
the whole will void.
Full signature does not necessarily mean the testators full name;
it rather means his usual and customary signature.
Articles 815, 816 and 817 lay down the rules of formal validity of
wills for:
1. The law of his citizenship (Articles 816 and 817 for aliens; applying
to Filipinos by analogy, Article 15);
2. The law of the place of execution (Article 17);
3. The law of his domicile (Article 816 for aliens abroad; applying to
aliens in the Philippines and to Filipinos by analogy);
4. The law of his residence (Same basis as [3]);
5. The Philippine law (Articles 816 and 817 for aliens, Article 15,
applying to Filipinos by analogy).
Thus:
Hence,
1. If executed by Filipinos in the Philippines (Article 818) void.
2. If executed by Filipinos abroad (Article 819) void even if
authorized by the law of the place of execution (an exception
to the permissive provision of Articles 17 and 815)
3. If executed by aliens abroad governed by Article 816.
4. If executed by aliens in the Philippines controverted: One
view void; because of public policy; Another view Article
817 governs.
(a) A will is purely personal and unilateral act, and this defeated if
two or more persons make their wills in the same instrument.
(f) In case of a husband and wife, one may be tempted to kill the
other (In re Will of Bilbao, 47 O.G. [Sup. 12] 331, L-3200, Aug. 2, 1960).
(a) Those made on a single sheet of paper, the rst on the front,
and the second on the reverse side. Reason: There are really two wills
here.
(b) Those made even on the same page with or without a dividing
line between them, but neither combining the signature of both together.
Reason: Here again there are really two instruments or two wills, which
are independent of each other.
a. be of sound mind
b. be at least 18 years of age
c. be able to read and write
d. not be blind, deaf, or dumb
e. be domiciled in the Philippines
f. not have been convicted (by final judgment) of falsification of
a document, perjury, or false testimony
(a) The assurance that the witness will be available at the time the
will is presented for probate; and
No, because the reason of the requirement that the witnesses must
be domiciled in the Philippines ceases to exist.
In Gonzales vs. CA, 90 SCRA, 183, it was held that in the strict
sense, the competency of a person to be an instrumental witness to a will
is determined by the statute, that is Articles 820 and 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. Competency as a witness is one thing, and it is another to be a
credible witness, so credible that the Court must accept what he says.
Trial courts may allow a person to testify as a witness upon a given
matter because he is competent, but may thereafter decide whether to
believe or not to believe his testimony.
The law does not require it. All the law requires is that they must
attest and subscribe the will in the presence of the testator and of each
other. To attest and subscribe do not mean that they must read the will
or comprehend the contents thereof. Hence, even if the will is written in a
dialect or language unknown to them, the requirements of the law are
still complied with.
witness, spouse, parents or children (e.g. the creditor of the witness if the
said creditor has not been paid), are incapable of succeeding from the
testator.
SUBSECTION 5. CODICILS
AND INCORPORATION BY REFERENCE
What is a codicil?
(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.
Notes:
2. In No. (2), the pages must be stated even if the writing consists of
voluminous books of accounts or inventories mentioned in No. (4).
The description and identification of the writing, and the statement
of the number of pages thereof must likewise appear on the face of
the will.
2. The reference must indicate that the writing has already been
made, that is, must speak of it as then existing. It is not enough
that the writing was in fact made before the will; the will must
speak of it as then made.
3. It can be given effect only in case, and to the extent that, such
appears from the face of the will to have been the wish of the
testator.
When the writing is offered, what are the two things that must
be shown by extrinsic evidence?
The law does not require this. Thus, an attested will may have a
holographic codicil; a holographic will may have an attested codicil. It is
enough that the codicil has the formalities of a will. Article 826 requires
that the codicil be executed as in the case of a will, not of the will.
It is evident from the provisions of Article 829 that the only time
when the testator may revoke his will either in accordance with the law
of the place where the will was made or in accordance with the law of the
place of his domicile at the time is when he is not domiciled in the
Philippines. In all other cases, the law which governs the revocation is
the law of the Philippines.
The rule is based on the theory that by reason of such changes new
moral duties and obligations have accrued to the testator subsequent to
the date of the will.
Like any other will, such wills must be probated in order to take
effect (Molo vs. Molo).
(1) Burning;
(2) Tearing;
(3) Canceling; or
(4) Obliterating with the intention of revoking it.
Corpus and animus must concur. One without the other will not
produce revocation.
Even if the testator shall state that his will is irrevocable, such
provision will have no binding effect on him because any waiver or
restriction of this right is void (Article 828).
T, the testator, threw his will on a stove but it was not burned
because H, one of the heirs tried to recover it from the stove. Was
the will revoked?
The act of the testator in drawing lines across his will constitutes
revocation in toto, if so intended by him. It is necessary, however, that
the testator, with an intention to revoke, must have caused some
physical defacement of the will adopted to give the expression to that
purpose. The general rule is that revocation by cancellation or
obliteration requires the making of marks or lines across the will, or of
some portion thereof which is of such significance that its elimination
would cause a material alteration in the meaning or legal effect of the
will.
If the marks or lines upon a will are in the form of written and
legible words, is there revocation by cancellation?
It will leave the holographic will valid since no witnesses are after
all required.
1. Where the will cannot be found following the death of the testator
and it is shown that it was in the testators possession when last
seen, the presumption is, in the absence of other evidence, that he
must have destroyed it animo revocandi (57 Am. Jur. Sec. 549, pp.
377-378).
2. Where the will cannot be found following the death of the testator
and it is shown that the testator had ready access to it, the
presumption is, in the absence of other evidence, that he must
have destroyed it animo revocandi (Ibid).
3. Where it is shown that the will was in the custody of the testator
after its execution, and subsequently, it was found among the
testators effects after his death in such a state of mutilation,
cancellation or obliteration as represents a sufficient act of
revocation within the meaning of the applicable statute, it will be
presumed, in the absence of evidence to the contrary, that such
act was performed by the testator with the intention of revoking
the will (57 Am. Jur. Sec. 550, pp. 378-379).
Yes, but the same must be proved in accordance with the rules of
evidence: a) the contents of the will; b) its due execution; and the fact of
its unauthorized destruction, cancellation, or obliteration.
absence of any legal provision to the contrary, two separate and distinct
wills may be probated if one does not revoke the other and provided that
the statutory requirements relative to the execution of will have been
complied with (Merza vs. Forras, 93 Phil. 142). 48
The reason for this article is that the act of revoking a will is
entirely distinct, separate and independent from the testamentary
disposition contained in the subsequent will. Moreover, the incapacity of
or repudiation by, the heirs is beyond the control of the testator, but the
act of revocation is within his absolute control.
48See Bustamante vs. Arevalo, &3 Phil. 635 where wills could not stand together.
effect for any reason, it will be presumed that the testator preferred the
old will to intestacy, and the old one will be admitted to probate in the
absence of evidence overcoming the presumption, provided its contents
can be ascertained.
In one case, if was held that while it is true that revocation was not
produced by the execution of an invalid will, revocation was made
through an overt act - the act of tearing or destruction - with animo
revocandi. Hence, the court concluded that will No. 1 had indeed been
revoked (Diaz v. De Leon, 43 Phil. 413).
The fact that the cause for the revocation was a false belief or a
mistake must be found on the face of the will or codicil itself (57 Am.
Jur., Wills, Sec. 519), i.e., if the revocation is through a will or codicil.
SUBSECTION 7. REPUBLICATION
AND REVIVAL OF WILLS
What is republication?
Manner of republications:
1. The will must be void for causes other than as to its form;
2. The codicil must refer to the previous will; and
3. It must be executed as in the case of a will.
Note that under Article 793, had the original will been valid, and
no republication been made, X would get only 5 automobiles, even if by
the time of Ts death, T already had 8 automobiles, unless of course,
there was an express contrary provision in the will.
second will does not revive the first will, which can be revived only
by another will or codicil.
It seems that under our law, the only way by which a previously
revoked will may be revived is through another will or codicil. Thus, the
testator will have to make another will or codicil either by reproducing
the contents of the revoked will or incorporating thereto such revoked
will by reference in accordance with the provisions of Article 837.
T made 3 wills. Will No. 2 expressly revoked Will No. 1. Will No.
3 revoked Will No. 2. Is Will No. 1 revived?
Yes. This is a clear inference from Article 837. Since the Article
uses the word expressly, it follows that in case of an implied
revocation by the second will, an automatic revival of the first occurs.
Apparently, the reason is the fact that an implied revocation is
ambulatory, the consistency being truly and actually apparent only
mortis causa, when the properties are distributed.
T made Will No. 1, then Will No. 2 expressly revoking the first.
Then he destroyed Will No. 2, and orally expressed his desire that
his first will be followed. Should this be allowed?
What is probate?
After a will has been probated during the lifetime of the testator, he
can still alter or revoke his will before his death. Should he make a new
will, it would also be allowance on his petition, and if he should die
before he had the chance to present such petition, the ordinary probate
proceedings after the testators death would be in order.
Does the probate court have the power to pass upon the
validity of any provisions made in the will?
50Rule 75, Sec. 2. Custodian of will to deliver.The person who has custody of a
will shall, within twenty (20) days after he knows of the death of the testator, deliver the
will to the court having jurisdiction, or to the executor named In the will.
Rule 75, Sec. 3. Executor to present will and accept or refuse trust.A person
named as executor in a will shall, within twenty (20) days after he knows of the death of
the testator, or within twenty (20) days after he knows that be is named executor if he
obtained such knowledge after the death of the testator, present such will to the court
having jurisdiction, unless the will has reached the court in any other manner, and
shall, within such period, signify to the court in writing his acceptance of the trust or
his refusal to accept it.
Sec. 4. Custodian and executor subject to fine for neglect.A person who neglects
any of the duties required in the two last preceding sections without excuse satisfactory
to the court shall be fined not exceeding two thousand pesos.
Sec. 5. Person retaining will may be committed.A person having custody of a
will after the death of the testator who neglects without reasonable cause to deliver the
same, when ordered so to do, to the court having jurisdiction, may be committed to
prison and there kept until he delivers the will.
Rule 76, Sec. 3. Court to appoint time for proving will. Notice thereof to be
published.When a will is delivered to, or a petition for the allowance of a will is filed
in, the court having jurisdiction, such court shall fix a time and place for proving the
will when all concerned may appear to contest the allowance thereof, and shall cause
notice of such time and place to be published three (3) weeks successively, previous to
the time appointed, in a newspaper of general circulation in the province.
But no newspaper publication shall be made where the petition for probate has
been filed by the testator himself.
The probate court merely determines if the will was executed with
the formalities required by law and that the testator was in a condition to
make a will. The judgment in such proceedings determines and can
determine nothing more. In them the court has no power to pass upon
the validity of any provisions made in the will. It cannot decide, for
example, that a certain legacy is void and another one valid. Such
question must be decided in some other proceeding (Castaneda v.
Alemany, 3 Phil. 426). This is so because although the allowance of a will
is conclusive as to its due execution, it is not so as to intrinsic validity of
the provisions made therein, which is covered by substantive law relative
to descent and distribution. The probate of a will does not affect the
legitimate rights of the heirs at law or of the widow in the estate.
Does the probate court have the power to look into the
intrinsic validity of the will?
The probate court does not have the power to pass upon the
provisions made in the will (Maninang vs. Court of Appeals, 114 SCRA
478). The probate of the will does not look into its intrinsic validity.
Does the probate court have the power to determine the status
and rights of persons to inherit?
The status and rights of persons to inherit are not within the scope
of probate proceedings. But when the issue is raised before it in relation
to the probate of the will, it may validly resolve the issue of heirship with
finality, in the absence of an appeal therefrom (Ortega vs. CA, 153 SCRA
96).
When may the probate court determine matters other than the
due execution of the will?
2. When all the claimants have legal interests in the property, and
with their consent, they submit the question of ownership to the
probate court and the interest of third persons are not prejudiced
(Baybayan vs. Aquino, 149 SCRA 186; Sanches vs. CA, GR 108947,
September 29, 1997).
must be filed and recorded as other wills are filed and recorded (Rule 76,
Section 6).
The above rules apply only to a lost or destroyed notarial will and
not to a holographic will. A lost or destroyed holographic will cannot be
proved by the bare testimony of witnesses who have seen and/ or read
such will as the probate thereof requires identification of the handwriting
and signature of the testator (Section 5, 11 and 12, Rule 76),
presupposing the availability of the holographic will in court.
other witnesses and from all the evidence presented that the will was
executed and attested in the manner required by law (Rule 76, Section
11).
If it appears at the time fixed for the hearing that the subscribing
witnesses are dead or insane, or that none of them resides in the
Philippines, the court may admit the testimony of other witnesses to
prove the sanity of the testator, and the due execution of the will; and as
evidence of the execution of the will, it may admit proof of the
handwriting of the testator and of the subscribing witnesses, or of any of
them (Rule 76, Section 8).
With respect to the due execution of the will, and the capacity of
the testator, the order allowing the will, after it has become final, is
conclusive as against the whole world. The proceeding for the probate of
the will is one in rem. The decree admitting the will to probate cannot be
impugned on any of the grounds authorized by law, except that of fraud,
No, it does not apply to probate proceedings for they are vested
with public interest, and if estoppel would be a applied, the
ascertainment of the truth may be blocked. This should be avoided for
the primary purpose of a probate proceeding is not the protection of the
interest of living persons.
The provision made by the testator that his Last Will and
Testament shall not be ventilated in court, cannot deprive the courts of
their authority to determine if his will referred to should be allowed or
not. It is not the parties interested in one way or another in a case that
51 Rule 76, Sec. 13. Certificate of allowance attached to proved will. To be
recorded in the Office of Register of Deeds.If the court is satisfied, upon proof taken
and filed, that the will was duly executed, and that the testator at the time of its
execution was of sound and disposing mind, and not acting under duress, menace, and
undue influence, or fraud, a certificate of its allowance, signed by the judge, and
attested by the seal of the court shall be attached to the will and the will and certificate
filed and recorded by the clerk. Attested copies of the will devising real estate and of
certificate of allowance thereof, shall be recorded in the register of deeds of the province
in which the lands lie.
can confer or take away from the courts the jurisdiction and authority to
resolve and decide what the law itself desires to be resolved and decided.
However, an instrument which neither disposes of property, as it only
appoints an executor, not being testamentary in character, is not entitled
to probate, although executed with all the formalities required by law.
1. The due execution of the will in accordance with the foreign laws;
2. That the testator has his domicile in the foreign country, and not
in the Philippines;
3. That the will has been admitted to probate in such country;
4. The fact that he foreign tribunal is a probate court; and
5. The laws of a foreign country on procedure and allowance of
wills.52
The fact that a will has been allowed without opposition and the
order allowing the same has become final and executory is not a bar to
the presentation and probate of a codicil, provided it complies with all
the necessary formalities for executing a will.
petition for allowance in the Philippines, by the executor or other person interested in
the court having jurisdiction, such court shall fix a time and place for the hearing, and
cause notice thereof to be given as in case of an original will presented for allowance.
SEC. 3. When will allowed, and effect thereof.If it appears at the hearing that
the will should be allowed in the Philippines, the court shall so allow it, and a certificate
of its allowance, signed by the judge, and attested by the seal of the court, to which
shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will
shall have the same effect as if originally proved and allowed in such court.
SEC. 4. Estate, how administered.When a will is thus allowed, the court shall
grant letters testamentary, or letters of administration with the will annexed, and such
letters testamentary or of administration, shall extend to all the estate of the testator in
the Philippines. Such estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such will may
operate upon it; and the residue, if any, shall be disposed of as is provided by law in
cases of estates in the Philippines belonging to persons who are inhabitants of another
state or country.
54This
exception is recognized by the general provisions of Sections 2 and 3,
Rule 38 of the Rules of Court.
(1) If the formalities required by law have not been complied with;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto. 55
55The same grounds are also enumerated in Section 9, Rule 76, Rules of Court.
The above grounds are exclusive (Ajero vs. CA, GR No. 106720,
September 15, 1994). A will should not be disallowed on dubious grounds
(Maninang vs. CA, 114 SCRA 478).
SEC. 9. Grounds for disallowing will.The will shall be disallowed in any of the
following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a
will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the
part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did
not intend that the instrument should be his will at the time of fixing his signature
thereto.
In Pacual vs. Dela Cruz, G.R. No. L-24819, May 30, 1969, the
Supreme Court laid down these principles:
at the time of its execution (Teotico vs. Del Val, ante); that mere general of
reasonable influence is not sufficient to invalidate a will (Coso vs.
Fernandez Deza, ante); nor is moderate and reasonable solicitation and
entreaty addressed to the testator (Barreto vs. Reyes, L-5831-31, 31
January 1956), or omission of relatives, not forced heirs, evidence of
undue influence (Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45
Phil. 416).
Under the 5th ground, the testator is aware that he is signing a will
but was tricked into signing said will, that is, that although the testator
knows it is a will, the contents thereof are not according to his wishes
and he would not have signed the will were it not for the fraud employed
on him.
This simply means the designation of the testator in his will of the
person or persons who are going to succeed him in his property and
transmissible rights and obligations.
Article 841. A will shall be valid even though it should not contain
an institution of an heir, or such institution should not comprise the
entire estate, and even though the person so instituted should not accept
the inheritance or should be incapacitated to succeed.
No, except:
Article 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.
Hence, the testator is free to dispose of the free portion of his estate
to anyone who is qualified to succeed. The free portion is the remainder of
the estate after all the legitimes of the compulsory heirs had been
satisfied.
They are those for whom legitimes are reserved and they succeed
to the inheritance regardless of the wishes of the testator and cannot be
deprived of their legitimes except by valid disinheritance.
completely delivered from the mothers womb. However, if the foetus had an intra-
paragraph). Otherwise, the institution is void because the foetus did not
become a person.
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.
uterine life of less than seven months, it is not deemed born if it dies within twenty four
hours after its complete delivery from the maternal womb.
1. If the name and surname of the instituted heir has been omitted by
the testator (Article 843);
2. If there has been error with respect to the name, surname, or
circumstance of the instituted heirs (Article 844);
3. If the name, surname, and circumstances of the instituted heir are
the same as those of other persons (Article 844); and
4. If an unknown or uncertain person (persona incierta) has been
instituted (Article 845).
Yes, provided the said identity can be known in the future by some
circumstance. How?By establishing certain criteria at the proper time,
e.g. First Filipino who wins a gold medal in the Olympics.
What are the limitations of the rule that an heir may be validly
instituted if by some future event his identity may be known?
2. Where the instituted heir when identified does not have the
capacity to succeed at the time of the death of the testator, the
disposition is void under Article 1025; 59 thus if the testator
provides, I institute as my heir the first child of my brother Juan
and the said child is conceived and born after the death of the
testator.
58Article 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.
59 Article 1025: In order to be capacitated to inherit, the heir, devisee or legatee must
be living at the moment the succession opens, except in case of representation, when it
is proper.
A child already conceived at the time of the death of the decedent is capable of
succeeding provided it be born later under the conditions prescribed in article 41.
peace, the mayor, and the municipal treasurer, who shall decide by a
majority of votes all questions that may arise. In all these cases, the
approval of the Court of First Instance shall be necessary.
Art 846 of the civil code which declares that heirs instituted
without designation of shares shall inherit in equal parts. It must be
noted, however, that one of the instituted heirs (B) is a compulsory heir
while the other two (C and D) are voluntary heirs. Article 486 is
applicable only to the disposable free portion and not to the legitime of
the compulsory heirs. Therefore the estate of 600,000 shall be divided as
follows: B shall receive his legitime of of the estate (i.e. 300,000) and
that leaves the disposable portion of of the estate which shall be
divided into equal parts among the three instituted heirs. Thus: B shall
receive P400,000; C P100,000 and D P100,000.
Note:
Each gets 20, 000. While the law mentions only full and the half-
brother, it is evident that the others may be considered in the same
category as strangers, making Article 846 applicable.
Summary:
For mass institution, see Articles 786, 843 (brothers and sisters),
849 (designation of a person and his children), 1029 (prayers and pious
works for the benefit of his soul), and 1030 (poor).
1. The cause for the institution of heirs must be stated in the will;
2. The cause must be shown to be false;
3. It must appear from the face of the will that the testator would not
have made such institution of he had known the falsity of the
cause. (Austria vs. Reyes, 31 SCRA 754)
Note:
No, follow the general rule because the real cause was not the
height but the liberality of the testator.
(1) Those made between persons who were guilty of adultery or concubinage at the
time of the donation;
(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants, by
reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may be brought by
the spouse of the donor or donee; and the guilt of the donor and donee may be proved
by preponderance of evidence in the same action.
No, the falsity of this cause will be merely incidental and will not
vitiate the institution of X since the fundamental reason for the
institution is his blood relationship to me. But if in the above example, X
should be a total stranger, then the fact that he did not save the life of
As son would annul his institution because there would be no reason for
instituting a total stranger as As heir were it not for the fact that he
saved the life of As son.
Article 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.
Article 852.If it was the intention of the testator that the instituted
heirs should become sole heirs to the whole estate, or the whole free
portion, as the case may be, and each of them has been instituted to an
aliquot part of the inheritance and their aliquot parts together do not
cover the whole inheritance, or the whole free portion, each part shall be
increased proportionally.
Articles 851 and 852 refer to those institutions where the testator
has instituted one or more persons as heirs to inherit in aliquot parts,
but such parts are not sufficient to cover the entire inheritance, or the
entire free portion while Article 853 refers to those institutions where the
testator has instituted several persons as heirs to inherit in aliquot parts,
but such parts taken together exceed the entire inheritance, or the entire
free portion, as the case may be.
In Article 851, the testator institutes only one heir and the
institution is limited to an aliquot part. Legal succession takes place with
respect to the remainder of the estate. There will therefore be a mixed
succession. Thus, if the testator institutes A to of the inheritance and
there are no other heirs instituted, A shall receive of the estate upon
the death of the testator, while the other half shall pass to the legal heirs.
The same rule applies if the testator has instituted several heirs each
being limited to an aliquot part. Thus, if the testator institutes A to 2/5
of the inheritance, B to 1/5, and C to 1/5, there will still be a remainder
of 1/5 which shall pass to the legal heirs.
In Articles 852 and 853, what are the requisites in order that
the said articles will apply?
A gets the car plus 200, 000; B gets the land plus 300, 000 and C
gets 700, 000.
X- (180, 000)
Y- 1/3 (120, 000)
Z- (90, 000)
P390, 000
The excess ofP30, 000 will be distributed as follows:
A= 3/12
B= 2/12
C=4/12
For A; 3/9 x 30, 000 = 10, 000.(3 x 30, 000 = 90, 000
/ 9 = 10, 000.)
d. Add the result to what they originally received and the sum
will complete their inheritance.
sole heirs of the whole estate. The net remainder of the estate after
the death of the testator is P120,000. How much is the share of
each instituted heirs?
3/10 x 2, 000 or 600, Y will get the same and Z will have 4/10 x 2,000 or
800, thus X will get a total of 3, 600, Y 3, 600 and Z 4, 800 or a total of
12, 000.
6 + 4 + 3 = 13
X should get 6, 000, Y 4, 000 and Z 4, 000 which will total 14,
000 or more than the estate available. The excess is 2, 000. This shall be
divided proportionally among the heirs. Thus, since X gets or 3/6, Y
1/3 or 2/6 and Z another 1/3 or 2/6, the proportion is 3:2:2. Therefore,
Xs share in the 2, 000 shall be 3/7, Ys share will be 2/7 and Zs share
will also be 2/7 or x will get 857.14 2/7, Y will get 571.42 6/7 and Z
571.42 6/7. These amounts shall be deducted from that which they
ought to receive.
Algebraic:
If the omitted compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of
representation.
1. If the heir in question is instituted in the will but the portion given
to him by the will is less than his legitime inasmuch as the heir
received something from the inheritance. The heirs remedy is not
found on Article 854 but in Articles 906 and 907 for the
completion of their legitime.
2. If the heir is given a legacy or devise. Should the value of the legacy
or devise be less than the recipients legitime, his remedy is for
completion of his legitime under Articles 906 and 907.
3. If the heir had received a donation inter vivos from the testator
the donation inter vivos is treated as an advance on the legitime
under Articles 906, 909, 910 and 1062.
a. Testamentary succession,
b. Legacy or devise,
c. Donation inter vivos, or propter nuptials,
d. Intestacy.
Other effects:
1. If the omitted heir is not in the direct line (like a spouse), only his
legitime is given to him and the institution of heir is annulled up to
that extent only.
2. As intestacy results, the previous appointment of the executor is
rendered moot and academic. The appointment of an administrator
becomes necessary.
4. Adopted children.
Application:
Since the estate is worth 100, 000, the free portion is 50,
000. Therefore, the legacy of 10, 000 is not inofficious and should
remain effective. The remaining 90, 000 should be divided equally
between the 2 estate.
The estate being 100, 000, the free portion is only 50, 000,
hence, the legacy of 60, 000 is inofficious and should be reduced
by 10, 000, leaving A and B 25, 000 each.
11. Same, but T gives to C his cousin 50, 000, X and Y 100,
000 to be divided equally between them, out of his entire
estate of 150, 000.
Rule on Xs objections.
b. The will is still valid even if the share of one of the heirs is
less than the other. Variation in the shares of the heirs is
normal and is the essence of the law. (Heirs of Montinola-
Samson vs. CA, G.R. No. 76648, Feb. 26, 1988)
No, because a sister is not a compulsory heir in the direct line. She
is a relative in the collateral line. (Article 854; Ventura vs. Ventura, April
27, 1988)
Yes, in Acain vs. IAC, G.R. No. 72706, Oct. 27, 1987, it was held
that if preterition is by mistake or inadvertence, there is true preterition
and total intestacy results. The reason for this is the inability to
determine how the testator would have distributed his estate if none of
the heirs had been omitted or forgotten.
If the omission is intentional, the effect would be a defective
disinheritance covered by Article 918, in which case the institution of
heirs is not wholly void but only insofar as it prejudices the legitime of
the person disinherited. The nullity is partial unlike in true preterition
where the nullity is total.
Preterition is presumed to be only an involuntary omission; that if
the testator had known of the existence of the compulsory heir at the
time of the execution of the will, he would have instituted such heir. On
the other hand, if the testator attempts to disinherit a compulsory heir,
the presumption of the law is that he wants such heir to receive as little
as possible from the estate.
They are entitled not only to their shares of the legitime but also to
those of the free portion which was not expressly disposed of by the
testator by way of devise and legacies, unlike in the case of improper
disinheritance or incomplete legitime wherein their right is limited to the
completion of their legitime.
If the omitted heir is not in the direct line, the institution of heir is
annulled only to the extent that it impairs the legitime. This is not true
preterition.
Application:
ii. If A is incapacitated?
Notes:
3. Reciprocal (reciproca)
Where the instituted heirs are also made the substitute of each
other.
4. Fideicommissary (fideicommisaria).
How may the testator provide for simple substitution with all
three causes?
No. The second heir succeeds from the testator and not from the
first heir.
the event of the death (or renunciation or incapacity) of any one of the
original heirs.)
No, the substitution will take effect only upon the death of all the
three. However, if what was stated was any or all die before me, then
D will get A and Bs share.
A = 2/6
B = 1/6
b. Get the ratio between the remaining heirs and the sum of the
ratios:
2:1 = 3
A = 2/3
B = 1/3
A = 2/3 x = 2/6
B = 1/3 x =1/6
Article 866 provides that 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 heir. Is it possible that the second heir has no heirs?
That the second heir has no heirs is impossible. His heirs are:
descendants, ascendants, and collateral relatives to the fifth degree, then
the state.
Exceptions:
Yes, ruled the Supreme Court in Palacios vs. Ramirez, 111 SCRA
704.
What does the requisite that both heirs must be living and
qualified to succeed at the time of the testators death mean?
What is the nature of the rights of the fiduciary heir and the
fideicommissary substitute with respect to the property which is
the subject matter of the substitution?
No, for the second heir was not yet living or conceived at the
testators death. This is so even if at the time A dies, the third child
already exists.
Yes, for while the substitution is not valid, the institution remains
valid.
1. The general rule is that the fiduciary should deliver the property
intact and undiminished to the fideicommissary heir upon the
arrival of the period.
[Note that the lack of this element does not, by the fact
alone, nullify the institution. It only means that the institution is
not a fideicomisaria. It could; however be something else, as was
the case in PCIB v. Escolin]
3. Those which impose upon the heir the charge of paying to various
persons successively, beyond the limit fixed in Article 863, a
certain income or pension
4. Those, which leave to a person the whole or part of, the hereditary
property in order that he may apply or invest the same according
to secret instructions communicated to him by the testator.
Yes, because the limitation will not apply. Rather, Article 863 will
apply, which allows, as a period, the lifetime of the first heir.
No, he must preserve the property till his death, then B takes the
property.
Yes, even if the period exceeds 20 years, for after all, at the end of
the 30 years, A cannot give the property to anybody except B. Moreover,
if the first heir can be prohibited to alienate as long as he lives in order
that the same could be delivered to the second heir, why not for a period
of 30 years? Of course, even if 30 years have not elapsed yet, if the first
heir has already died, the property should be given to B by virtue of the
fideicommissary substitution.
X instituted A as his only heir but prohibited him and all who
may subsequently inherit form him to dispose of the property for a
period of 20 years. X died. If A dies 3 years after X, will As son B
still bound to respect the temporary prohibition?
second, that both the first heir and the second heir must be living at the
time of the death of the testator. It is evident that in testamentary
dispositions, which contain a perpetual prohibition to alienate, neither
one nor the other can possibly be violated. He only limitation, which is
violated, is that provided in Article 870. The prohibition to alienate is
good for 20 years. Beyond that, it is void. Therefore, in the instant
problem, C must still have to wait for 1972 before he can validly
alienated the property.
It does not prejudice the validity of the institution of the heirs first
designated; the fideicommissary clause shall simply be considered as not
written.
A was given his legitime in the form of a house in the will but
was prohibited to sell the same within a period of 10 years. Can A
sell the house even before the expiration of said period?
Summary:
SECTION 4
1. Conditional dispositions (Articles 873, 874, 875, 876, 883 (par. 2),
879, 880, 881 and 884);
2. Dispositions with a term (Articles 878 and 885); and
3. Dispositions with a mode (modal dispositions) (Articles 882 and
883 (par. 1).
GENERAL PROVISIONS
CONDITIONS
Exceptions:
What are the rules in order that the absolute condition not to
contract a subsequent marriage be valid and enforceable?
Note: If the favor to be done by the heir will not be made in a will,
both the disposition and the condition should be considered valid.
a. Positive:
b. Negative:
Between the time of the testators death and the time of fulfillment
of the suspensive condition or the certainty of its non-occurrence, the
property must be place under administration. The property shall be in
the executors or administrators custody until the heir furnishes the
caucion muciana. The procedural rules governing the appointment of
administrator is governed by Rules 77-90 of the Rules of Court.
TERMS
2. Resolutory term
Rules:
What is a mode?
Requisites:
2. The condition suspends but does not obligate; while the mode
obligates but does not suspend. To some extent, it is similar to a
resolutory condition. (Johnny Rabadilla vs. CA, ibid.)
Principles:
CAUCION MUCIANA
SUBSTANTIAL COMPLIANCE
What are the rules in substantial compliance?
1. If the instituted heir, without his fault cannot comply with the
condition exactly in the manner imposed by the testator, it shall be
complied with in a manner most analogous to and in conformity
with his wishes.
2. If the person interested in the condition (like the intestate heir)
should prevent its fulfillment, the condition shall be deemed to
have been complied with, provided that the instituted heir is
without fault.
3. When applicable:
SECTION 5. LEGITIME
What is legitime?
The legitimes are translated into properties only upon the delivery
if the properties to the heirs, which is usually done after all claims
against the estate ahs been settled.
No, the testator cannot impose upon the legitime any burden,
encumbrance, condition or substitution of any kind whatsoever (Article
904). This is so because of the principle that the legitime passes by strict
operation of law.
The only instance in which the law allows the testator to deprive
the compulsory heirs of their legitimes is disinheritance (Articles 915-
923), the grounds of which are set forth in Articles 919-921.
Are there instances in which the law grants the testator some
power over the legitime?
Yes, the following laws grant the testator some power over the
legitime:
1. Article 159 of the Family Code family home shall continue for 10
years.
1. Compulsory heirs- they are those for whom the law reserves
a portion of a decedents estate by way of legitime.
2. Voluntary, testamentary, or testate heirs- they are so called
to the succession by virtue of the expressed will of the
testator;
3. Legal or intestate heirs- They are those called to the
succession by operation of law in the absence of voluntary
heirs designated by the testator.
Thus, under the law now, there are only four (4) groups of
compulsory heirs:
LC alone
of the estate.
LC and SS
1LC and SS
LC and IC
1LC, IC and SS
LP alone
of the estate.
LP and IC
LP: of the estate;
IC: of the estate.
LP and SS
LP, IC and SS
SS alone
SS and IC
SS and IP
IC alone
of the estate.
IP alone
of the estate.
equally. (Unless otherwise specified by the testator, sharing in the available free portion
is equal [Article 846].
66Reason:: They are not compulsory heirs. Hence, they are not entitled to
legitime. They can become heirs only in intestat4e succession (Article 1001 and 994) or
if designated as devisees or legatees, i.e. as voluntary heirs.
a. The compulsory heir may claim his legitime upon the death
of the person owing it;
b. But the compulsory heir must bring to collation whatever he
may have received by virtue of the renunciation or
compromise (Article 905). That is, any property, which the
compulsory heir may have gratuitously received from his
predecessor by virtue of the renunciation or compromise, will
be considered an advance of his legitime and must be duly
credited.
67Article 1347. All things which are not outside the commerce of men, including
future things, may be the object of a contract. All rights which are not intransmissible
may also be the object of contracts.
No contract may be entered into upon future inheritance except in cases
expressly authorized by law.
The compulsory heir may petition that the same be reduced to the
extent that the legitmes may have been impaired, in so far as they may
be inofficious or excessive (Article 907).
The value of the property left at the death of the testator shall be
considered, deducting all debts and charges, which shall not include
those imposed in the will. To the net value of the hereditary estate, shall
be deducted the value of all donations by the testator that are subject to
collation at the time he made them (Article 908).
3 steps:
(1) To the available assets should be added all the inter vivos
donations made by the decedent.
(2) The donations inter vivos shall be valued as of the time they
were respectively made. Any increase or decrease in value
from the time they were made to the time of the decedents
death shall be for the donees account, since donation
transfers ownership to the donee.
(3) The sum of the available assets and all donations inter vivos
is the net hereditary estate.
NOTES:
Summary of donations:
Exceptions
c. Donation to spouse
1. First, reduce pro rata the non-preferred legacies and (Art. 911 [2]),
and the testamentary dispositions (Art. 907). Among these legacies,
devises, and testamentary dispositions there is no preference;
2. Second, reduce pro rata the preferred legacies and devises (Art.
911, last par.);
3. Third, reduce the donations inter vivos according to the inverse
order of their dates (i.e., the oldest is the most preferred) (Art. 773).
If the donations were made with the same date, they shall be
reduced pro rata.
000. During his lifetime, he had also made two donations P15, 000
to a legitmate child A, and another P15, 000 to a friend F. In his
will, he instituted his two legitimate children, A and B, as his heirs.
How shall his estate be distributed?
and P10, 000 to D a very good friend in 1993. His gross estate at the
time of his death if P20, 000. His debts and liabilities amount to
P15, 000. Divide the estate:
1. Any other heir or devisee, who elects to do so, may acquire the
thing and pay the parties (the compulsory heir and the devisee in
question) their respective shares in money.
2. If no heir or devise elects to acquire it, it shall be sold at a public
auction and the net proceeds accordingly divided between the
parties concerned (Article 913).
1. The free portion must be absolutely free portion i.e., the remainder
of the estate after all legitimes have been deducted.
2. The absolutely free portion, which can be freely disposed of, does
not include those properties governed by special laws such as the
friar lands.
3. The person to whom it is bequeathed must have the capacity to
succeed the testator.
O (Origin) R (Reservista)
P (Prepositus)
RESERVISTA
Notes:
Under the old rule: No, because adoption only creates a personal
relationship between the adopter and the adopted; hence, there are no
relatives of the adopted or adopter by adoption. For the same reason, an
adopted child cannot claim the benefit of reserva troncal, and therefore
cannot be a reserve through adoption.
Under the new rule: Yes. The adopted may represent the adopter in
the inheritance of the latters parents (Section 17, R.A. No. 8552 [1988]).
69
Yes. In money, the property is the purchasing power and not the
bills. As such, the value of the money can be reserved.
If the reservor has alienated the property, his estate will reimburse
the reserves for the value of the reserved properties which were alienated
(Lunsod vs. Ortega, 46 Phil. 664).
Can the reservista execute a will disposing of the reservable
property?
The reserved property is not part of the reservistas estate upon his
death. It does not even answer to the debts of the latter [Cano vs.
Director, 105 Phil. 1]. The reservable property cannot be transmitted by a
reservista to his or her own successorsmortis causa so long as a
reservatorio within the 3rd degree from the propositus are in existence
when the reservista dies.
The uncles and aunts shall not share in the reservable property,
since under the law of intestate succession, a decedents uncles and
aunts may not succeed ab intestate so long as nephews and nieces of the
decedent survive and are willing and qualified to inherit.
One view: No, the article only speaks solely of two lines, the
paternal and the maternal of the descendant, without regard to
substitutions.
What are therefore the only requisites for the passing of the
title from the reservista to the reservatorio?
They are (1) death of the reservista; and (2) the fact that the
reservatorio has survived the reservista.
They inherit from the descendant propositus and not from the
reservista, of whom the reservatorios are the heirsmortis causa, subject
to the condition that they must survive the reservista. The reservable
property is not part of the estate of the reservista, who may not dispose
of it by will, as long as there are reservatorios existing.
If the claimants of the property after the death of the reservor are
brothers and sisters of the prepositus and nephews and nieces (children
of other brothers and sisters who have predeceased the reservoir), the
right of representation is applicable as long as the representatives are
relatives to the prepositus within the third degree (Florentino vs.
Florentino, 40 Phil. 489).
70Article 1461. Things having potential existence may be the object of the
contract of sale.
The efficacy of the sale of a mere hope or expectancy is deemed subject to the
condition that the thing will come into existence.
The sale of a vain hope or expectancy is void.
Article 1462. The goods which form the subject of a contract of sale may be
either existing goods, owned or possessed by the seller, or goods to be manufactured,
raised, or acquired by the seller after the perfection of the contract of sale, in this Title
called future goods.
There may be a contract of sale of goods, whose acquisition by the seller
depends upon a contingency which may or may not happen.
Illustration:
Extinguishment
SECTION 6. DISINHERITANCE
Define disinheritance
Who has the burden of proving the truth of the cause for
disinheritance?
The other heirs should then prove the truth of the cause for
disinheritance. Under the law, the burden of proving the truth of the
cause of the disinheritance shall rest upon the other heirs of the testator,
if the disinherited heir should deny it (Article 917). Proponent of
disinheritance has the burden of proof. There is no presumption that the
cause is true. The presumption is falsehood.
a. His legitime;
b. His intestate portion; and
There must have been a need and a demand for support either
judicially or extra-judicially.
All acts of physical violence against the testator but not sufficient
to kill are encompassed in maltreatment. Otherwise, the act or acts
may fall under paragraph 1.
Example: The son shoots his father. The father is wounded but
recovers. The father does not want a scandal so he does not file
charges against his son. So he disinherits his son not under No. 1
but under No. 6.
Summary:
Under the Domestic Adoption Act of 1988 (R.A.) No. 8552 approved
on February 25, 1988), adopted children can be disinherited by the
adopting parents (Section 19, R.A. 8552). The reason for this is that, the
right of the adopting parent to rescind the adoption authorized under
Article 192 of the Family Code had been abrogated by the new law.
Instead of rescission, the new law simply authorized the adopting
parents to disinherit the adopted if any of the causes for disinheritance
under Article 919 exists. This new provision is a complementary to the
prevailing jurisprudence that adopted children, if preterited in a will,
shall cause the nullification of the institution if heirs (Acain vs. IAC, 155
SCRA 500).
Under the new law, the adopted child is impliedly given the right of
representation which right was not accorded to him before (Section 17,
R.A. No. 8552).
What are the sufficient causes for the disinheritance of
parents or ascendants, whether legitimate or illegitimate?
NOTES:
Enumeration is exclusive.
Nos. 2, 5 & 7 are the same as the grounds in Art. 919.
Exception to par. 6: Adoption, age of majority.
The loss of parental authority should have been effected either:
2. When the spouse has accused the testator of a crime for which
the law prescribes imprisonment for six years or more, and the
accusation has been found to be false;
3. When the spouse by fraud, violence, intimidation or undue
influence causes the latter to make a will or to change one
already made;
4. When the spouse has given grounds for legal separation;
5. When the spouse has given grounds for the loss of parental
authority;
6. Unjustifiable refusal to support the children or the other spouse
(Article 921).
The representative takes the place of the disinherited heir not only
with respect to the legtime but also to any intestate portion that the
disinherited heir would have inherited, if the free portion was not
disposed in favor of testamentary heirs.
What is legacy?
What is devise?
They shall be solidarily liable, even though only one of them should
have been negligent. The liability imposed here is based on malice, fault
or negligence.
State the rule if the testator, heir or legatee owns only a part
of, or an interest in the thing bequeathed.
The estate should try to acquire the part or interest owned by the
other parties.
If the other parties are unwilling to alienate, the estate should give
the legatee/devisee the monetary equivalent.
State the rule if the thing was owned by another person at the
time of making of the will and acquired thereafter by the
legatee/devisee.
What are the rules if the person who is to choose dies before
choice is made?
Upon the death of the testator, and the succeeding ones at the
beginning of the period without duty to reimburse should the legatee die
before the lapse of the period.
1. Primarily substitution;
2. Secondarily accretion;
3. Tertiarily intestacy.
1. If a person dies without a will, or with a void will, or one which has
subsequently lost its validity;
2. When the will does not institute an heir to, or dispose of all the
property belonging to the testator. In such a case, legal succession
shall take place only with respect to the property of which the
testator has not disposed;
3. If the suspensive condition attached to the institution of heir does
not happen or is not fulfilled, or if the heir dies before the testator,
or repudiates the inheritance, there being no substitution and no
right of accretion;
4. When the heir instituted is incapable of succeeding, except in
cases provided in the Civil Code;
5. When there is preterition of a compulsory heir in the direct line;
6. If the testamentary disposition is subject to a resolutory condition
and such condition is fulfilled;
7. If the testamentary disposition is subject to a resolutory term and
such term expires;
8. In case of ineffective dispositions (Articles 960 & 854).
There is one exception to this rule and that is when the right of
representation properly takes place. The reason for this is that in
representation, the representative is raised by legal fiction to the place
and degree of the person represented so that he acquires the rights
which the latter would have of he were living or if he could have
inherited.
What are the exceptions to the rule that relatives in the same
degree shall inherit in equal shares?
1. The rule of division by line in the ascending line (Article 987), that
is, when the inheritance is divided between paternal and maternal
grandparents. In this case, if two grandparents survive the
decedent in the paternal line and by one grandparent in the
maternal line, one-half shall pass to the surviving grandparent in
the maternal line.
2. The distinction between full-blood and half-blood relationships
among brothers and sisters, as well as nephews and nieces
(Articles 1006 & 1008), that is, when the inheritance is divided
among brothers and sisters, some of whom are of the full blood
and others of the half blood. In this case, those of the full blood
4. Fourth degree
4.1 First cousins
4.2 Brothers and sisters of grandparent (Granduncles and
grandaunts)
4.3 Grandchildren of a brother or sister (Grandnephews
and grandnieces)
5. Fifth degree
5.1 A child of a first cousin
5.2 First cousin of a parent
5.3 Brothers and sisters of a great-grandparent
5.4 Great grandchildren of a brother or sister.
Define representation.
Notes:
They inherit in their own right and cannot represent the person
repudiating the inheritance.
Representation does not apply in cases of universal renunciation
outlined above, because there is no representation in renunciation.
What is representation?
a. Legitime; and
b. Intestacy.
When does the right of representation take place? What are the
instances when representation operates?
1. In testamentary succession:
2. In intestate succession:
No, because an heir who has repudiated his inheritance may not
be represented (Article 977).
(1) The right can be exercised only by nephews and nieces of the
decedent (Articles 792, 975);
(2) The right can be exercised by nephews and nieces of the
decedent only if they concur with at least one brother or
sister of the decedent (Article 975). Otherwise, if they are the
only survivors, they shall inherit in their own right and not
by right of representation.
(3) The right of representation in the collateral line is possible
only in intestate succession; in other words, it cannot
possibly take place in testamentary succession. In
testamentary succession, only compulsory heirs may be
represented (Article 856). It is, of course, obvious that
brothers and sisters are not compulsory heirs. If instituted,
they are classified as mere voluntary heirs.
(8) State.
a. Excludes no one
b. Concurs with no one
c. Is excluded by everyone
18. Legitimate brothers and sisters alone (Articles 1004 & 1006)
19. Nephews and nieces with aunts and uncle (Article 1009 by
inference)
2. 2 shares each
2. Leg. Children
3. 1 share each
3. Illeg. children
1. Spouse 1. Article 997
2. Leg. parents 2.
1. Spouse 1. Article 991 (by
analogy)
2. Illeg. parents 2.
Article 889 (by
analogy)
1. Spouse 1. Article 998
2. Illeg. children 2.
1.Spouse 1. Article 1000
2. Leg. parents 2.
3. Illeg. Children 3.
1. Spouse 1. Articles 1001 & 994
71Formula: The legitimate and illegitimate children will divide the estate in the
proportion of 2:1. The surviving spouse will be considered as one legitimate child. If due
to the number of illegitimate children, the legitimes of the legitimate children and the
spouse are impaired, the illegitimate children will receive only what is the equivalent of
the free portion in testamentary succession.
Article 999 does not cover the situation where the mere survivors
are (1) one legitimate child; (2) one or more illegitimate children; and (3)
spouse.
The present rules are contained in Article 189 of the Family Code:
The adopted child inherits from his adopter in exactly the same
way and to exactly the same extent as a legitimate child
Define accretion
1) Predecease
2) Incapacity
3) Repudiated
I. In testamentary succession:
a. As to legitime:
No, Article 1021, par. 2 provides that should the part repudiated
be the legitime, the other co-heirs shall succeed to it in their own right,
and not by accretion.
No, said renunciation is void, having been done during the lifetime
of the decedent. Renunciation of future inheritance is void. (Article 905).
Accretion takes place when there is renunciation after the decedents
death, because the heir who renounced already acquired a vested right
over his share.
1. The priest who heard the confession of the testator during his last
illness, or the minister of the gospel who extended spiritual aid to
him during the same period.
2. The relatives of such priest or minister of the gospel within the
fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister may
belong.
3. A guardian with respect to testamentary dispositions given by a
ward in his favor before the final accounts of guardianship have
been approved, even if the testator should die after the approval
thereof; nevertheless, any provision made by the ward in favor of
the guardian when the latter is his ascendant, descendant,
brother, sister or spouse, shall be valid.
1. A written condonation, or
2. The execution by the offended party of a will with knowledge of the
cause of unworthiness.
The action must be bought within five years from the time the
incapacitated heir took possession thereof. (Article 1040)
Note: These are the same rules laid down in Article 549, because
he is deemed in bad faith and the law applies to him the rules on
possession of bad faith.
Consequences:
72Article 533: The possession of hereditary property is deemed transmitted to the heir
without interruption, and from the moment of death of the decedent, in case the
inheritance is accepted. One who validly renounces an inheritance is deemed never to
have possessed the same.
2. If the beneficiary is the poor, the right to accept shall belong to the
persons empowered under Article 1030 [The person authorized by
the testator or in his default, the executor, or in his default, the
administrator]. As far as the right to repudiate is concerned, it may
be exercised only by the beneficiary themselves once they are
finally determined. (Article 1044) Thus, 1) these authorized
individuals can only accept, not reject the grant; 2) the person
selected as qualified recipients are, for their own part, free accept
or renounce the benefit.
3. If the beneficiary is a corporation, association, institution or entity,
the right to accept or repudiate belongs to the legal representative,
but in case of repudiation, judicial authorization is necessary.
(Article 1045)
SECTION 5. COLLATION
the fourth that the expenses are not at all imputable, even
against the free or disposable portion.
Only the value of the thing donated at the time the donation was
made should be considered in the computation of the donors estate.
(1) The entirety of the fruits and interests shall pertain to the
compulsory heir, only if the donation is totally inofficious.
(2) If the donation is only partially inofficious, the right to the fruits
and interests shall be probated between the compulsory heir and
the donee, in proportion to their respective interests over the
property.
73Article 546, par. 1. Necessary expenses shall be refunded to every possessor; but only
the possessor in good faith may retain the thing until he has been reimbursed therefore.
74Article 546, par 2. Useful expenses shall be refunded only to the possessor in good
faith with the same right of retention, the person who has defeated him in the
I. PARTITION
Define partition.
a) Total when all the things comprised in the whole estate are
divided among all of the participants or co-owners.
b) Partial when some of the things are divided among all or
some of the participants or co-owners, the rest remaining in
a state of indivision or community ownership.
possession having the option of refunding the amount of the expenses or of paying the
increase in value which the thing may have acquired by reason thereof.
75Article 548. Expenses for pure luxury or mere pleasure shall not be refunded to the
possessor in good faith; but he may remove the ornaments with which he has
embellished the principal thing if it suffers no injury thereby, and if his successor in the
possession does not prefer to refund the amount expended.
What are the four ways by which the estate of the decedent
may be partitioned under the Rules of Court?
A mere partition inter vivos which does not observe the formalities
of a will cannot, by itself, make testamentary dispositions, because that
would circumvent the requirement of law that dispositions mortis causa
can be made only by means of a will. A person cannot, in the guise of
making a partition, make disposition of property to take effect upon his
death.
1. By will, or
2. By act inter vivos
Rules:
1. Only the parent is allowed the privilege of this Article (Article 1080)
2. This privilege can be exercised only if enough cash or other
property is available to satisfy the legitimes of the other children.
3. Under no circumstances should the legitimes be impaired.
Yes, but in such a case the period of indivision shall not exceed 20
years. This power of the testator applies even to the legitime of
compulsory heirs. (Article 1083)
2. When the co-heirs have agreed that the estate shall not be divided
for a period, which shall not exceed 10 years, renewable for
another 10 years. (Article 494)
3. Where there are two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such heirs,
subject to the payment of the debts of the deceased. (Article 1078)
Note:
2. Sell the thing in a public auction if any of the heirs should demand
that the thing be sold at public auction, provided that strangers
are allowed to bid.
1. For the income and fruits which each one of them may have
received from any property of the estate
2. For any useful and necessary expenses made upon such properties
3. For any damage thereto through malice or neglect.
1. The title shall be delivered to the one having the largest interest
and authentic copies of the title shall be furnished to the other heir
at the expense of the estate.
2. If the interest of each co-heir should be the same, the oldest shall
have the title. (Article 1090)
Note: This article only provides for the right over the
document. The co-heirs, however, have the right to have the title
divided into individual titles, separate for each of the owners to
correspond to the separate portions held by them respectively.
The co-heirs are reciprocally bound to warrant the title to, and
quality of, each property adjudicated. (Article 1092)
What is the right of the heirs who pay for the insolvent heir?
Those who pay for the insolvent heir shall have a right of action
against him for reimbursement, should his financial condition improve.
(Article 1093, par. 2)
77Article 501. Every co-owner shall, after partition, be liable for defects of title and
quality of the portion assigned to each of the co-owners.
It can only be enforced during the five years following the partition.
(Article 1095, par. 2)
Warranty for good debts that the debtor is solvent at the time of
the partition (not later). The warranty is good for five years following the
date of the partition.
When any one of the co-heirs received things whose value of less,
by at least one-fourth, than the share to which he is entitled, considering
the value of the things at the time they were adjudicated. (Article 1098)
Note the slight variation from pars. 1 & 2 of Article 1381, which
specifies more than one-fourth, while Article 1098, provides for a
minimum lesion for rescission, which is one-fourth (25%). In cases of
partition of the inheritance, Article 1098 applies.
Exceptions:
Four years from the time the partition was made (Article 1100).
This is the same period laid down in the general rule of rescission of
contracts (Article 1389)
What are the options of the heir who is sued for rescission?
1. To have a re-partition [In which case, the old partition will not be
disturbed in its entirety but it shall only be between those who
have been prejudiced and those who have received more than their
just share.], or
2. To indemnify the co-heir the amount of the lesion suffered, by
payment in cash or by the delivery of a thing in the same kind and
quality as that awarded to the plaintiff (Article 1101).
Note that it is the co-heir who is sued for rescission who has the
option.