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WILLS AND SUCCESSION Case: Maria, to spite her husband Jorge, whom she

suspected for having an affair with another woman,

Atty. Uribe
executed a will unknown to him bequeathing all the
Allowance and Disallowance of Wills properties she inherited from her parents to her sister,
Miguela. Upon her death, the will was presented for
Allowance of wills – also known as the probate. (may probate. Jorge opposed the will on the ground that the will
also be called as “authentication” – not encouraged to was executed by his wife without his knowledge, much
use such as it only pertains to one aspect) less consent, and thus, deprived him of his legitime. If you
Why is there a need for the allowance of wills? were the judge, how will you rule on Jorge’s opposition to
the probate?
Q: May the estate be validly distributed even if the will
was not probated/ not submitted for probate? Held: I will rule against Jorge in relation to the opposition.
In the first place, the law does not require the consent of
A: Yes. Basis of distribution will be the legal intestate a husband for the wife to execute a valid will. But also, he
succession. The purpose of the allowance pertains to the was deprived of his legitime is not one of those that
distribution of the estate in accordance to the will. should be asked upon by a probate court. It goes already
Illustration: If an heir (voluntary and not intestate) was to the intrinsic validity of the will. Even if all the properties
given a car, he will only be entitled with the car if the will were bequeathed, those were only the properties which
is probated. she inherited from her parents. There could be so many
other properties which can satisfy the legitime of the
AND ALLOWED. **Death of testator no longer required for the execution of
probate of wills (Anti-mortem probates)
Petition for the probate of the will –
As to Contested Wills:
Opposed because the surviving spouse (wife) was
heavily favored in that will. Handwriting:

Q: Would that result in the disallowance of this will?  No issue as to ordinary wills (not the witness’
A: No, it will not result in the disallowance. Two grounds:  As to holographic wills,
 It is not one of the grounds for the disallowance o Ordinarily, only one (1) witness is
of wills (not one of those enumerated in 839) required to testify the handwriting,
 Nature of the probate proceeding – jurisdiction of unless, the will is contested.
the probate court pertains only to the extrinsic o Under 811, if the will is contested, three
validity of the will. (3) witnesses shall be required.

Q: In probate proceedings, what are the ONLY questions Q: Is the three-witness requirement in relation to
the court can determine? holographic will mandatory?

o Genuineness and authenticity – will of A: In the case of Asola v. Singson (en banc), this
the testator requirement is not a mandatory requirement. It is
o Testamentary capacity permissive or directory. The Court cited two reasons:
o Animo testandi – intent (consider the 1. Because of the nature of the proceeding – by
circumstances) the time the petition for probate is filed, all
o Formalities the witnesses are already dead.
o Due execution of the will. 2. The will may even be probated even only
XPN: The courts may look into the intrinsic validity of the with the testimony of an expert.
will if on its face, the will cannot be given effect.

However, in the case of Codoy v. Calugay (division), the Issue:
Court cited that the three-witness requirement is a
In the first place, can the notarial will (first will) be
mandatory requirement.
probated when it was expressly revoked?
As to Destroyed or lost Wills:
Q: If the petition did not attach the will or even just the In the case of Molo v. Molo, in order for the
copy of the will, may the will nonetheless be probated? revocatory clause in the subsequent will to be
given effect, it must be probated.
A: Yes. The will may not have been attached because
somebody else is in possession and refused deliver it to
Was there a valid revocation by destruction?
the court (executor).
There is none because the holographic will
Remedy: The Court must compel the one who is in mistakenly burned. There is no animo revocandi
possession to deliver the will for the probate of such will. (intent to revoke).

Q: However, if it was alleged that the will was destroyed, Thus, can that holographic will be probated? It
may the will be probated: cannot be probated. For a holographic will to be
A: It may be probated but only if it is an ordinary will, probated, the will itself or a at least a copy
because its existence and due execution can be proven thereof should be submitted or presented to the
by oral testimony. court for the probate of his will.

Q: May the holographic will be probated if the will itself Thereafter, because the holographic will which
was not presented to the court? expressly revoked the first will cannot be
A: The Court ruled in the case of Gan v. Yap that such probated, then in Molo v. Molo, the revocatory
will cannot be probated since the will itself is the only clause will have no effect.
basis of the Court to determine that it is indeed in the
handwriting of the testator. The oral testimony of the Therefore, the first will can be probated, as if
witnesses would not be sufficient and the will itself has to there was no revocation of such will.
be presented.
**Footnotes: In the Rodelas v. Aransa case, a photo static 839. The following are the grounds for the disallowance of
copy would suffice.(Atty. Uribe questions the authenticity wills
of the handwriting)
 The formalities of law have not been complied
Case: Johnny, with no known living relatives, executed a with
notarial will giving all his estate to his sweetheart. One
 The testator was insane or mentally incapable
day, he had a serious altercation with his sweetheart. A
 The will was executed through force or duress
few days later, he was introduced to a charming lady who
 The will contains an attestation clause
later became a dear friend. Soon after, he executed a
holographic will especially revoking the notarial will and Q: Is the enumeration as to the grounds for disallowance
so designating his new friend as sole heir. One day when of wills an exclusive enumeration (revocation, minority)?
he was clearing up his desk, Johnny mistakenly burned
along with other papers the only copy of his holographic A: Enumeration exclusive. As to revocation, it is not a
will. His business associate, Eduardo, knew well the ground for disallowance; rather it is a ground for the
contents of the will which was shown to him by Johnny, dismissal of the petition. In other words, it is a
the day it was executed. A few days after the burning jurisdictional matter that should be ascertained by the
incident, Johnny died. Both wills were sought to be court before the probate court assumes jurisdiction.
probated in two separate petitions. Will either or both Minority falls under the second ground (mentally
petitions prosper? incapable).

Legitimes in Relation to Testamentary Succession: A: Inter vivos, because legacy or device takes effect only
upon death.
Donation subject to collation –
Article 911. – give first the preferred legacy. All the other
Example: X died intestate in 1985 leaving three legitimate
legacies or devices must be in proportion. The estate is
children, A, B, and C, and two acknowledged illegitimate
not sufficient to cover everything.
children, D and E. He donated Php 30,000 to F, a friend,
in 1970; to A P40,000 in 1975; to D P50,000. These Article 950. – Must be in order. Renumeratory, preferred,
figures may pertain to the value of the property. He left an support, and education.
estate in the amount of P100,000 and debts amounting to
**If the conflict is with a third person (donee), apply Art.
P40,000. Who will inherit from the estate and give their
**If the conflict is solely among the legacies, apply Art.
A: The gross estate is P100,000. Then, deduct the debts
(as mentioned earlier, the creditors must be paid first).
The remaining value is the Net Hereditary Estate. This is PRINCIPLES AFFECTING LEGITIMES:
the only property that is to be distributed to the heirs,
unless, there is an in officious donation. 1. Preterition – Protects legitimes
2. Reserva troncal – qualifies, limits(reserved
Collation of the first type – P180,000 property)
3. Disinheritance – deprives an heir not only in
No actual return; distributable estate. This will
legitime but also in the estate.
be the basis of determining whether there was an in
officious donation which may impair the legitimes for the Q: When may an heir not be preterited even if he was
compulsory heirs. omitted in the will?
First half – legitimate children A: (1) Not all the properties were disposed of (thus, if he
he was not given, preterition must refer to the omission,
Second half – concurring compulsory heirs and
not intentional); and (2) During the lifetime of the heir, he
received something from the testator. Remedy is the
Thus, A, B and C will each have a legitime of completion of the legitime (if what was received is less
P30,000. D and E will each receive P15,000. Donation to than the legitime), not annulment of the institution of an
F must be placed in the free portion (protected as it is a heir.
donation inter vivos). Ordinarily, donations to compulsory
Thus, Preterition is the total omission of an heir in
heirs shall be imputed to their legitimes, unless otherwise
the direct line from the estate.
stated by the testator.
Q: Can there be preterition if there was no will?
Collation of the second type – restitution or return
A: No, because there is nothing to annul. But also, since
In the case of A, since it exceeded the legitime,
there is no will, the heir is included in the distribution of
the excess of which (P10,000) shall be placed in the free
the estate since the estate will be distributed by legal or
intestate succession.
Q: Between a Donation inter vivos and a donation mortis
causa, which one is preferred?
1. There has to be a valid will.
A: Inter vivos, because it took effect ahead of the mortis
2. All the properties must have been disposed of in
that will.
Q: Between donation inter vivos and legacy or device, 3. The heir, who is an heir in the direct line, was not
which one is preferred? given anything out of the estate in that will.
4. The heir was not disinherited.

Q:With regard to the heir in the direct line, can a spouse Thus, Juan is not anymore entitled to a single
be preterited? centavo in the estate of Josepha.
A: Never, because he/ she is not an heir in the direct line. How should the estate be divided? Equally among
the four other brothers of Juan. P900,000 divided by
Q: Can a father be preterited?
4. P225,000 each.
A: Yes, if there are no legitimate children and
descendants. He is only a secondary compulsory heir in
the direct line.
Q: Can an illegitimate child be preterited?
A: Yes, since an illegitimate child is an heir in the direct
line. However, in the case decided by the Supreme Court
involving illegitimate child, annulment would only pertain
up to the legitime of a legitimate child. (May be
discriminatory in nature since the law did not so provides)
Q: May a preterited heir ne entitled to a share in the
estate which is bigger than his legitime?
A: Yes. Half of the estate will be annulled and thus he
may receive more than his legitime, since the estate may
then be divided into three.
EFFECT: Total annulment, but respecting to the legacies
and devices so long as they are not in officious.
REQUIREMENT: For an heir to be preterited, he must not
have been disinherited (there is intention).
Example: Because her eldest son, Juan, had been
pestering her for capital to start a business, Josepha gave
him P100,000. Five years later, Josepha died, leaving a
last will and testament which instituted only her four
younger children as her sole heirs. At the time of her
death, her only property left was P900,000 in a bank.
Juan opposed the will on the ground of preterition. How
should Josepha’s estate be divided among her heirs?
State briefly the reasons.
A: Juan was not preterited because he already received a
sum of money during the lifetime of the testator. If at all,
the P100,000 is less than his legitime, his only remedy
would be the completion of his legitime.
a. P900,000 plus P100,000 is P1 million which is
the distributable estate.
b. 1 million divided by 2 is P500,000 which will be
used to compute the legitime.
c. P500,000 divided by 5 is P100,000 each.