BATINO, MARY ALELIE D.

Concept of Succession. — In general, succession may be understood in either of two senses. In its broadest
juridical sense, it signifies the substitution or subrogation of a person in the transmissible rights and
obligations of another. Under this definition, it embraces not only succession mortis causa, but even
succession inter vivos. In its strict juridical sense, it signifies the substitution or subrogation of a person in
the transmissible rights and obligations of a deceased person. Under this definition, it is limited to
succession mortis causa. It is in this sense that it is understood in the New Civil Code. Consequently, Art.
774 defines it as a mode of acquisition by virtue of which the property, rights and obligations to the extent
of the value of the inheritance, of a person are transmitted through his death to another or others either by
his will or by operation of law. This definition, as can be seen, is in conformity with the general provision
of Art. 712 which enumerates the different modes of acquiring ownership and other real rights.

Subjective Elements of Succession. — The subjective elements of succession consist of the decedent and
those who are called to succeed such decedent either by will or by operation of law, such as the heirs,
devisees or legatees. According to the above article, the person whose property is transmitted through
succession, whether or not he left a will, is called the decedent. If he left a will, he is also called the testator.
On the other hand, those who are called to the inheritance are known as heirs, devisees or legatees. An heir
is a person called to the whole or to an aliquot portion of the inheritance either by will or by operation of
law; a devisee is a person to whom a gift of real property is given by virtue of a will; while a legatee is a
person to whom a gift of personal property is given by virtue of a will.

Objective Element of Succession. — The objective element of succession is what is known as the
inheritance. According to the above article, the inheritance includes all the property, rights and obligations
of a person which are not extinguished by his death. There are, however, other definitions which are based
on this codal definition. Thus, according to Manresa, it may be defined as the universality of all the property,
rights and obligations constituting the patrimony of the decedent which are not extinguished by his death.

Causal Element of Succession. — From the very definition of succession as enunciated in Art. 774, it is
evident that it is the expressed will of the decedent as manifested in his last will and testament or his
presumed will as provided by law which is the efficient cause of the transmission of successional rights,
while the fact of his death is the condition. It must be observed, however, that the fact of death with respect
to succession is more than a condition; it is the very reason of succession itself — as a matter of fact, it is
the very reason for the manifestation of the will of the decedent. Hence, we can very well say that the death
of the decedent is not only the condition, but also the final cause of the transmission of successional rights.

Testamentary succession. — Testamentary succession is that which results from the designation of an
heir, made in a will executed in the form prescribed by law.42 Under the Spanish Civil Code, testamentary
succession was merely defined as that conferred by the will of man.43 The definition which is now found
in Art. 779 of the New Civil Code is therefore new. It must be noted, however, that the designation of an
heir is not essential for the validity of a will.44 What is essential is that the succession must be effected
through the testator’s will executed in the form prescribed by law.

Intestate succession. — The Civil Code fails to give a definition of legal or intestate succession, although
in Art. 960 it enumerates the different cases or instances (which are by no means exclusive) when legal or
intestate succession shall take place. We can, however, define it as that which is effected by operation of
law in default of a will. If the decedent has not made any will, or even where he has made one, if it has not
been made in accordance with the formalities prescribed by law, his presumed will as provided by law shall
govern the distribution of his hereditary estate after his death. Consequently, the most fundamental
distinction between testamentary and intestate succession consists in the fact that, while in the first, it is the
expressed will of the testator manifested in his last will and testament which is the supreme law in the
succession, in the second, it is his presumed will as provided by the law itself which governs.

Mixed succession. — Originally, before the Spanish Civil Code was drafted in 1889, Spanish laws adhered
to the rule of indivisibility of succession. Under this doctrine, based on the Roman law maxim – memo pro
parte testatus pro parte intestatus decedere potest – succession cannot partake of the nature of both
testamentary and intestate succession; in other words, it cannot be partly testate and partly intestate.45
Under the Spanish Civil Code, this rule was repealed and this repeal is confirmed by the present Civil Code,
which states that succession may be mixed in the sense that it may be effected partly by will and partly by
operation of law.

Contractual succession. — According to Art. 1347 of the Civil Code, no contract may be entered into
regarding future in-heritance except in cases expressly authorized by law. In testamentary succession, it is
essential that the testamentary dispositions must be contained in a will executed in accordance with the
formalities prescribed by law, while in this kind of succession, the donation or disposition does not have to
be contained in a will.

Extent of Inheritance. — According to Art. 781 in conjunction with Art. 776, the inheritance of a person
includes: first, all of his property which are existing at the time of his death; second, all of his transmissible
rights and obligations which are existing at the time of his death; and third, all of the property and rights
which may have accrued to the hereditary estate since the opening of the succession.

Concept of heirs. — As noted above, the definition of an heir as a person called to the succession either
by the provision of a will or by operation of law, has been criticized on the ground that it does not properly
differentiate voluntary heirs from devisees or legatees. Under Art. 660 of the Spanish Civil Code, the
distinction between the two concepts was precise and clearcut.

Concept of Wills. — The above article gives the definition of a will. There are, however, other well-known
definitions. Thus, ac-cording to Page, a will is a disposition, made by a competent testator in the form
prescribed by law, of property over which he has legal power of disposition, which disposition is of such
nature as to take effect after his death. According to Jarman, it is an instrument by which a person makes a
disposition of his property to take effect after his death, and which is, in its own nature, ambulatory and
revocable during his life.3 According to Bigelow, it is (1) a written instrument (2) duly executed and
attested, by which (3) a competent person makes (4) a voluntary disposition (5) of property (6) in favor of
another competent person (7) to take effect after the maker’s death, (8) meantime being revocable. The
divisions marked by numerals point out the elements of a will.

Delegation of Testamentary Acts. — Art. 785 is an extension of Art. 784. There are three acts inseparably
or intimately connected with the making of a will, acts which are testamentary in character, and which,
therefore, cannot be left in whole or in part to the discretion of a third person. They are: first, the duration
of the designation of heirs, devisees or legatees; second, the efficacy of the designation; and third, the
determination of the portions which they are to take when referred to by name.

Delegation of Non-Testamentary Acts. — It must be noted that while Art. 785 enumerates in absolute
terms the different things which the testator cannot do, Art. 786 enumerates by way of exception the
different things which he may do.12 Although the making of a will, including all the testamentary acts
connected therewith, cannot be left in whole or in part to the discretion of a third person, the testator, in
order to make the different devises or legacies more effective, is allowed to entrust to a third person: first,
the power to distribute specific property or sums of money which he may have left in general to specified
classes or causes: and second, the power to designate the persons, institutions or establishments to which
such property or sums of money are to be given or applied. Art. 787, on the other hand, prohibits the testator
from making a testamentary disposition which would allow another person to determine whether it is to be
operative or not.

Effect of changes after testator’s death. — Upon the death of the testator, successional rights arising from
the will are vested in the persons called to the inheritance either as heirs or as devisees or legatees. In other
words, the title of such heirs, devisees or legatees becomes a vested right, protected under the due process
clause of the Constitution against any subsequent change in the law which would have the effect of
invalidating the will.

Persons with Testamentary Capacity. — According to the above article, all persons who are not
prohibited by law may make a will. It must be noted, however, that the only persons who are expressly
prohibited from making a will are those who do not possess the necessary age and mental requirements.

Age Requirement. — According to the above article, in order that a person can make a will, it is necessary
that he must be at least eighteen years of age. Failure to conform with the requirement shall invalidate the
will.

Mental Requirement. — According to Art. 798 of the Code, in order that the testator can make a will it is
essential that he must be of a sound mind at the time of its execution.

Test of a sound mind. — Testamentary capacity is determined objectively from the standpoint of the
purpose to be accomplished. Consequently, “soundness of mind” means ability of the testator mentally to
understand in a general way the nature and extent of his property, his relation to those who naturally have
a claim to benefit from the property left by him, and a general understanding of practical effect of the will
as executed.

Capacity of Spouse. — The provisions of Arts. 802 and 803 have been criticized on the ground that they
are unnecessary. Undoubtedly, this criticism is logical because the provision of Art. 801 is already covered
by that of Art. 796, while the provision of Art. 802 is also covered by that of Arts. 140 and 170.

Common Formalities. — Under Art. 804, there are two formalities which must be complied with in the
execution of wills, whether ordinary or holographic. They are: (1) the will must be in writing; and (2) it
must be written in a language or dialect known to the testator.
Special Formalities of Ordinary Wills. — From the provisions of Arts. 805 to 806 as well as from that of
Art. 804, it is evident that in the execution of an ordinary will the following formalities must be complied
with:
(1) The will must be in writing;
(2) The will must be written in a language or dialect known to the testator;
(3) The will must be subscribed at the end thereof by the testator himself or by the testator’s name
written by some other person in his presence and by his express direction;
(4) The will must be attested and subscribed by three or more credible witnesses in the presence of
the testator and of one another;
(5) The testator or the person requested by him to write his name and the instrumental witnesses of
the will, shall also sign each and every page thereof, except the last, on the left margin;
 (6) All the pages of the will shall be numbered correlatively in letters placed on the upper part of
each page;
(7) The will must contain an attestation clause; and
(8) The will must be acknowledged before a notary public by the testator and the witnesses.

Doctrine of Liberal Interpretation. — The rule stated in the above article is sometimes known as the
doctrine of liberal interpretation.

Special Formalities of Holographic Wills. — From the provisions of Arts. 804 and 810 of the Code, it is
clear that the testator, in the execution of a holographic will, must comply with the following formalities:
(1) The will must be entirely written by the hand of the testator himself;
(2) The will must be entirely dated by the hand of the testator himself; and
(3) The will must be entirely signed by the hand of the testator himself; and
(4) The will must be executed in a language or dialect known to the testator.

Law Which Governs Formal Validity of Wills. — As a general rule, the formal validity of a will shall be
governed by the law of the country in which it is executed.

Qualifications of Witnesses. — According to Art. 820, a witness to the execution of any ordinary will
must have the following qualifications: (1) He must be of sound mind; (2) he must be eighteen years of age
or more; (3) he must not be blind, deaf or dumb; and (4) he must be able to read and write.
BATINO, MARY ALELIE D.
Codicils. — Art. 825 of the Code enunciates the definition of a codicil, while Art. 826 gives the requisites
in order that the codicil may be effective.

The word “codicil” imports a reference to some prior paper as a will. There may, however, be a valid codicil
to a revoked will. At first codicils were writings actually attached to the will, but this is no longer necessary;
when they are separate documents, the codicil referring to and ratifying the will may be said to incorporate
the will by reference, or to republish the will.

Incorporation by Reference. — Stated generally, the doctrine is that a will, duly executed and witnessed
according to statutory requirements, may incorporate into itself by an appropriate reference a written paper
or document which is in existence at the time of the execution of the will, irrespective of whether such
document is one executed by the testator or a third person, whether it is in and of itself a valid instrument,
provided the document referred to is identified by clear and satisfactory proof. So incorporated, the extrinsic
paper takes effect as part of the will and is admitted to probate as such.

Revocation Defined. — According to Gardner, revocation as applied to wills may be defined as an act of
the mind, terminating the potential capacity of the will to operate at the death of the testator, manifested by
some outward or visible act or sign, symbolic thereof. According to some American decisions, it may
simply be defined as an act to annul a will in whole or in part.
Nature and Effect of Revocation. — As it is popularly stated by American authorities one of the most
essential characteristics of a will is that it is revocable and ambulatory during the testator’s lifetime.

Law Which Governs Revocation. — It is evident from the provisions of Art. 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 in which he had 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.

Modes of Revocation. — Under Art. 830 of the Code, there are three general modes of revoking wills.
They are: (1) by implication of law; (2) by some will, codicil, or other writing executed as provided in case
of wills; and (3) by burning, tearing, cancelling or obliterating the will with the intention of revoking it, by
the testator himself, or by some other person in his presence, and by his express direction.

Under the Civil Code, there are five instances when a will, or more accurately, a testamentary
disposition may be revoked by implication of law. They are:
1. When there is a decree of legal separation. In such case, provisions in favor of the offending
spouse made in the will of the innocent spouse shall be revoked by operation of law.12
2. Where there is a preterition of omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of the
testator. In such case, the preterition shall annul and institution of heir.

3. When in the testator’s will there is a legacy of a credit against a third person or of the remission
of a debt of the legatee, and subsequently, after the execution of the will, the testator brings an
action against the debtor for the payment of his debt. In such case, the legacy is revoked.14
 4. When the testator transforms the thing bequeathed in such a manner that it does not retain either
the form or denomination it had, or when he alienates by any title or for any cause the thing
bequeathed or any part thereof, or when the thing bequeathed is totally lost during the testator’s
lifetime or after his death without the heir’s fault. In such cases, the legacy is revoked.
5. When the heir, devisee or legatee commits any of the acts of unworthiness which by express
provision of law will incapacitate a person to succeed. In such case, any testamentary
disposition in favor of such heir, devisee or legatee is revoked.

Revocation by Mistake. — In American jurisdiction, the rule stated in Art. 833 is known as “revocation
by mistake.” Thus, where a testator by a codicil or later will revokes a devise or legacy in his will, expressly
grounding such revocation on the assumption of a fact which turns out to be false, as where it is stated that
the legatees or devisees named in the will are dead, when, in fact, they are living, the revocation does not
take effect.

Effect of Revocation upon Recognition of Child. — Under Art. 834, the revocation of the will where an
illegitimate child is acknowledged by the testator as his natural child will not affect the validity of the
recognition or acknowledgment. This rule is of course logical considering the fact that even if the will is
revoked, the instrument still constitutes an authentic instrument within the meaning of Art. 278 of the Civil
Code, which states that recognition of natural children shall be made in the record of birth, or in a will, or
in a statement before a court of record, or in an authentic writing.

Republication of Wills. — Republication, as applied to wills, may be defined as “an act of the testator
whereby he reproduces in a subsequent will the dispositions contained in a previous will which is void as
to its form or executes a codicil to his will.” It may be either express or constructive.3 It is express if the
testator reproduces in a subsequent will the dispositions contained in a previous one which is void as to its
form. This is the republication which is referred to in Art. 835 of the Code. Its purpose is to cure the will of
its formal defects. It is constructive if the testator for some reason or another executes a codicil to his will.
This is the republication which is referred to in Art. 836 of the Code.

Concept of Probate of Wills. — The probate of a will may be defined as a special proceeding for
establishing the validity of the will. It may also be defined as a special proceeding for the purpose of proving
that the instrument offered for probate is the last will and testament of the testator, that it has been executed
in accordance with the formalities prescribed by law, and that the testator had the necessary testamentary
capacity at the time of the execution of the will.

Effect of Disallowance. — A decree in the solemn form rendered by a court having jurisdiction of a probate
proceeding, is conclusive on the parties equally when the decree rejects the will and when it grants probate.
Where an instrument purporting to be a will is propounded for probate by an authorized person, and there
is a decree of the probate court, fairly obtained and pronounced on the merits, excluding the paper from
probate, such decree is conclusive of the rights of the parties represented in the proceeding to propound the
will for probate, either in the same or in another tribunal. Such a decree stands upon a footing analogous to
a judgment in rem.

Ratification. — Granting that the will should be disallowed under any of the grounds stated in Art. 839,
would it be possible for the testator, before promulgation of the decree of disallowance, to ratify the will? ,
It is submitted that our answer to this question should be qualified. With respect to a will which is void
because of non-compliance with the formalities prescribed by law, ratification is not possible. That which
is void or inexistent is not susceptible of ratification. Consequently, the only way by which such will may
be validated would be for the testator to republish the same in accordance with Art. 835 of the Code.
However, with respect to a will which was executed through violence, intimidation, undue influence, fraud
or mistake, since we cannot exactly say that the will is void or inexistent, ratification is possible. Thus, in
Ozaeta vs. Cuartero, it was held that the testator’s failure to revoke or otherwise alter the questioned will
as soon as he left the house of the person who is alleged to have unduly influenced him and moved to his
own house where he lived up to five years after execution of the will, constitutes a silent ratification of its
contents and refutes the claim of undue influence and improper pressure, even supposing that these
circumstances were duly proved.