WILLS AND SUCCESSION l Atty.

Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

SUCCESSION Main reason: it is not provided in the law. Because as you look at the
SUCCESSION DEFINED qualifications, it requires SOUND MIND> corporation cannot have a sound
Succession is a mode of acquisition by virtue of which the property, mind.
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 Juridical persons do not die physically. They dissolve.
by his will or by operation of law. (Art. 774)
Joint wills- not allowed, because it is purely a personal act. You cannot delegate
 succession operate upon the death decedent it. And essentially, it is a secret.
 is it possible that you cannot transmit?- no, because you will still  Also a will takes effect upon death. When there are two persons, it is
transmit thru operation of law. difficult to know the time of death. Who should die first? When are you
 you're PRO will be transmitted thru death, whether you like it or going to submit that for probate?
not. By will or by operation of law.  What about revocability? Essentially, a will is revocable anytime.
 Contemplates of a transfer mortis causa Again, the intent of the testator is the supreme law in
succession. If there is a joint will and one change his mind (decides to
Elements of the definition: revoke) and the other does not (does not want to revoke? Who will
1. Mode of acquisition of ownership prevail?
2. Transfer of property, rights and obligations to the extent of the  Reciprocal will is allowed
value of the inheritance o you agree that you are going to be the beneficiaries of
3. Transmission through death each other
4. Transmission to another o does it have to be in two different documents? Technically
5. By will or by operation of law and advisably, yes. But it can be done in one document
either back to back or on the same page, as long as one will
Ferdie: This article is an over-all picture or guide. It talks about the is identifiable from the other. The wordings of one must be
mode of transmission, what is to be transmitted, who will transmit, not be dependent upon the other.
when, to whom and how. o the most important thing, that will identify one will from the
other is the signature. Where you place it is essential.
Bases for succession  Mutual Will-
1. Principle of consanguinity or natural affection to persons
nearest in relationship How do we gage if the decedent is of sound mind during the making of
2. To avoid wealth from becoming stagnant or inactive the will?
3. Property rights – ownership  When he knows the NPC
 Sound mind is presumed.
 When is the presumption not available? – publicly known to be insane
WHO TRANSMITS, TESTAMENTARY CAPACITY AND INTENT one month or less before making of the will; or made the will after he
has been declared judicially as insane.
DECEDENT
DECEDENT Exceptions:
Decedent is the general term applied to the person whose property is 1. If the t estator, one month or less before making the will, was
transmitted through succession, whether or not he left a will. If he left publicly known to be insane.
a will, he is also called the testator.
2. If the testator made the will after he had been judicially declared
Does it matter whether decedent made a will? Yes. insane, and before such judicial order had been set aside.
 Decedent- is generic term
o Make a will- testator IOW, if this happens, the one who maintains that the testator is of sound mind has
o Did not make a will- instestate (by operation of law) the burden of proof to show soundness of mind.

“publicly known” – is it necessary that it must be declared by competent authority?

Specific terms: No.
A. Testator – if there is a will
B. Intestate – if there is no will; by operation of law What if the person was locked by his relatives and he was indeed of unsound
mind? How can we gage that? the problem there is the requirement states that he
Q. Upon death, are you a decedent right away? must be publicly known to be insane. What if insanity was hidden by relatives?
Not necessarily. One might die without a property, right or Here, the presumption of sound mind stays.
obligation
(e.g. “taong-grasa”). One provision in the Civil Code provides that it only Do you have to be super intelligent? No.
needs a property for one to become a decedent; not necessarily having
rights or obligations. Ferdie: When you say deaf-mute and blind, they cannot execute a will
because they are unable to communicate or articulate their intentions,
QUALIFICATIONS AND DISQUALIFICATIONS unless they can somehow communicate their intentions. (Arts
QUALIFICATIONS 807-808)
1. At least 18 years
2. Of sound mind at the time of execution When you’re a minor, you cannot make a will but if you have properties,
3. Not expressly prohibited by law to make a will: don’t worry because the law will provided for you. Succession by
a. Under 18 years old operation of law.
• What if you’re under 18 with so much properties? And
is already dying? Can you make a will thru a Q. Is a convict under civil interdiction allowed to make a will?
representative? Cannot be allowed because personal Yes. The prohibition only extends to disposition of property inter vivos.
act.  Can still make a will because it is disposition mortis causa
b. Two persons executing a joint will  Succession is essentially mortis causa
 Death becomes a property is so far as the heirs are concerned
Does it include both juridical and natural persons? No, only natural  Civil interdiction disqualifies you from doing certain things like
persons. Making a will is personal act. donating
o Inter-vivos- during the lifetime
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 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

 Prohibited revocable, the fact that he is going to share bounty, and that he knows
o Mortis causa- only upon death the objects of the bounty.
 Allowed;  For as long as he knows NPC
 A person suffering from civil interdiction can  Bounty – liberality to give property
still make a will.  Objects of the bounty – recipients of liberality

Q. Are spendthrifts or prodigals allowed to make a will? Is there a gage to know soundness of mind?:
Yes, since the law does not disqualify them. They can make a will even Soundness of mind requires that the testator knows the:
if under guardianship, provided they are 18 years old and are of sound 1. Nature of the estate to be disposed of (character, ownership of
mind. what he is giving)
• He must know that he owns the property bec you cannot
Q. Are juridical persons allowed to make a will? dispose something that you do not own
No. Only natural persons may. This is evident from the requirement of 2. Proper objects of his bounty (by persons who for some reason
soundness of mind, and the fact that the making of a will is a personal expect to inherit something from him)
act. Also, that joint wills are not allowed (corporation can only act through • Refers to the recipients
its officers – members of the Board). 3. Character of the testamentary act (that it is really a will, that it is a
disposition mortis causa, that it is essentially revocable)
Capacity to make a will and capacity to inherit  Know that it is revocable at anytime.
1. Capacity to make a will – testamentifaccion active  Prior to the death there is something you need to know-
2. Capacity to inherit – testamentifaccion passive that is REVOCABLE.
Relevant codal provisions
What about when you have poor memory?
Qualifications  Not unsound mind
1. Art. 796. All persons who are not expressly prohibited by law  For as long as you know NPC
may make a will.
What if Ango2x? Not necessarily.
2. Art. 797. Persons of either sex under eighteen years of age What if the mental faculties have already decayed? Only when it
cannot make a will. is advanced.
What is you’re drunk at the time? Does not matter as long as
3. Art. 798. In order to make a will it is essential that the testator
you now NPC.
be of sound mind at the time of its execution.
4. Art. 801. Supervening incapacity does not invalidate an Ferdie: Always remember NPC.
effective will, nor is the will of an incapable validated by the  Nature of estate
supervening of capacity.  Property objects of bounty
 Character of disposition
Disqualifications
Q. When should soundness of mind be possessed?
1. Art. 797. Persons of either sex under eighteen years of age
At the time of the execution of the will, not before nor after.
cannot make a will.
What if you become unsound after execution? Still valid.
2. Art. 818. Two or more persons cannot make a will jointly, or in Supervening Incapacity does not invalidate a will.
the same instrument, either for their reciprocal benefit or for Prior or after- it does not matter.
the benefit of a third person.
What if at the time of the making you are insane but later you became
3. Art. 819. Wills, prohibited by the preceding article, executed by sane? Will that cure the defect? No. Must be at the time of execution. Not
Filipinos in a foreign country shall not be valid in the the intervening capacity.
Philippines, even though authorized by the laws of the country
where they may have been executed. Senility v. senile dementia

Possession of all mental faculties not necessary A. Senility – infirmity of old age
B. Senile dementia – decay of mental faculties.
It is not necessary that the testator must possess all mental
faculties. It will suffice that he understands what he is doing, he
It is only senile dementia, when advanced or absolute, which may
knows the character of the document he is going to make, that it is
produce unsoundness of mind resulting in testamentary incapacity.
Relevant codal provision 2. If the testator made the will after he had been judicially declared
Art. 799. To be of sound mind, it is not necessary that the testator be insane, and before such judicial order had been set aside.
in full possession of all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or unshattered by disease, injury or TN: Here, the person who maintains the will’s validity must prove that
other cause. It shall be sufficient if the testator was able at the time of the will was made during a lucid interval.
making the will to know the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of the testamentary Relevant codal provision
act. Article 800. The law presumes that every person is of sound mind, in
the absence of proof to the contrary.
Soundness of mind is presumed as a general rule
There is a presumption that the testator was of sound mind during the The burden of proof that the testator was not of sound mind at the time
making of the will. Thus, the burden of proof lies on the person of making his dispositions is on the person who opposes the probate of
alleging unsoundness of mind. 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
Exceptions: of the will must prove that the testator made it during a lucid interval.
1. If the t estator, one month or less before making the will, was
publicly known to be insane.
2|UNIVERSITYOFSANCARLOS
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Supervening incapacity does not invalidate an effective will,
nor is the will of an incapable validated by the supervening of
capacity.
Example: When insane, Feds made a will. Later, he became well, but
he did not change the will. Is the will valid?
Ans – No, because his becoming capacitated later on is not important.
What is important is that his mind was not sound at the time he
executed the will.
MARRIED WOMAN, PWDS, FILIPINOS, ALIENS
MARRIED WOMAN
Freedom to make a will
A married woman can make a will even without the consent of the
husband and without court authority,
so long as she does not tinker with the legitime.
Property that may be disposed
She can dispose by will either her separate property or her share in the
conjugal partnership of absolute community.
Relevant codal provisions
Art. 802. A married woman may make a will without the consent of her
husband, and without the authority of the court.
Art. 803. A married woman may dispose by will of all her separate
property as well as her share of the conjugal partnership or absolute
community property.
PERSONS WITH DISABILITY (Refers to the TESTATOR)
1. Deaf or deaf-mute – if they are able to read and write, they
can make a will on their own.
communicating to
If not, there must be two persons
them the contents of the will.
Not necessarily witnesses- it just state two persons. Who are these
people? The law is silent. But it must be the choice of the testator. It can
be anyone. But it is better to do that with people who enjoys your trust and
confidence. Although, there is not requirement under the law.
The two persons must be able to know the language of the deaf-
mutes. Because the law states that they be able to communicate in some
practicable manner. Like sign language.
Blind – the will must be read to him twice:
a. By one of the subscribing witnesses, and
b. By the notary public before whom it is acknowledged
at the same time? No. One after the other.
Ferdie: A person who is unable to read is considered blind.
Q. If the testator is deaf-mute and also blind, may he still
make a will?
No, unless in some way, the contents thereof may property be
communicated to him in accordance with legal requirements.
How can they communicate? Can you think of a situation? Can there
be a technology? Probably.
Probably when there is a supervening incapacity. But if by birth
you are like that, it would be very difficult.
Q. In what instance may the notary public be disqualified?
The notary public before whom the will is acknowledged cannot be
one of the three witnesses to said will, in view of the absurdity of
one person acknowledging something before himself.
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Relevant codal provisions
Art. 807. If the testator be deaf, or a deaf-mute, he must personally
read the will, if able to do so; otherwise, he shall designate two
persons to read it and communicate to him, in some practicable
manner, the contents thereof.
Art. 808. If the testator is blind, the will shall be read to him twice;
once, by one of the subscribing witnesses, and again, by the notary
public before whom the will is acknowledged.
TN: we are talking here of written formalities.
FILIPINO IN A FOREIGN COUNTRY
Will may conform to formalities of the country where executed.
Ex- you go to Japan. Can you make a will there? What are the formalities to
be followed? Either that of Japan or PH.
What if you made a will in Japan? Can you have it probated in Japan? Yes.
But do you need to have it probated in PH? No. But there must be a
proceeding akin to that of proving a foreign judgment to prove that it was
really probated there.
But what if that will executed in Japan, does not conform to the laws in
the country (Philippines) in so far as the intrinsic validity (not
extrinsic) is concerned?
You can have it either way.
 You can have it probated here.
 Or still recognition of foreign judgment.
If it does not conform to the intrinsic validity here, the local court will not
recognize it.
Intrinsic validity- substance; how much and to whom?
Extrinsic validity- formalities; signed, dated, etc.
Probate of will- the court will approve whether the will complies with the
formalities as well as the requisites for intrinsic validity.
Example: A Filipino in California can make a will there in accordance with
the forms (extrinsic validity) of:
a. California
b. Or of the Philippines (even if the Philippine form is not recognized
in California)
Exception: A Filipino cannot execute abroad a joint will even
if the same is valid there.
Q. If a will is probated abroad, does it have to be probated
again in the Philippines?
There is no need of an ordinary or usual probate in the Philippines.
However, it is required that there be a proceeding to prove that indeed
the will had already been probated abroad. In other words, the rule is
the same as in proving the existence of a foreign judgment.
Relevant codal provision
Art. 815. When a Filipino is in a foreign country, he is authorized to
make a will in any of the forms established by the law of the country in
which he may be. Such will may be probated in the Philippines.
ALIEN IN A FOREIGN COUNTRY
Will may conform to formalities of country origin, where he resides or in
the Philippines.
TN: This is relevant because the alien may have properties here in
the Philippines.
TN: we are talking here of written formalities, not intrinsic.
Thus, an alien abroad may make a will in accordance with the
formalities (extrinsic validity) prescribed by law of:
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
a. The place of his residence or domicile
b. His own country or nationality
c. The Philippines
d. The law of the place of execution
Ans – This is a typical case of an alien abroad. Thus, he can make a will
in accordance with the testamentary formalities of:
a. Argentina (domicile)
b. China (nationality)
c. Philippines
Relevant codal provision
Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the
place
in which he resides, or according to the formalities observed in his
country, or in conformity with those which this Code prescribes.
ALIEN IN THE PHILIPPINES
Will may conform to formalities of country of origin.
What will govern?
 Law of his country of nationality
 Philippine law
Example: If a Chinese lives in Manila, he can follow the extrinsic
formalities of will required in:
a. China (lex nationalii)
b. Or in the Philippines (lex loci celebracionis)
EXCEPTION TO ALL: WHEREVER YOU ARE, THE PROHIBITION
ON JOINT WILLS WILL FOLLOW YOU.
Rationale: The reason for allowing him to make a will following his
own country’s formalities is because being a citizen thereof, he may be
more cognizant of said laws that those in the Philippines.
Relevant codal provision
Art. 817. A will made in the Philippines by a citizen or subject of
another country, which is executed in accordance with the law of the
country of which he is a citizen or subject, and which might be proved
and allowed by the law of his own country, shall have the same effect
as if executed according to the laws of the Philippines.
WHAT IS TRANSMITTED AND WHAT IS NOT
WHAT IS TRANSMITTED
Q. What are transmitted upon death? (PRO-A)
1. Properties
2. Rights not extinguished by death
3. Obligations not extinguished by death
4. accruals
is there a property that is extinguished with death? That dies with you?
 What if I donate to Cuadrasal my house, for as long as he
lives. When he dies, the house comes back. Did the house
becomes his property in the meantime? Yes. This can be an
example. Momentarily it becomes yours.
 Another example: I donate to you a property as long as you
use it for educational purposes. When you deviate, it comes
back to me.
PROPERTIES
Any property as long as owned by the testator.
The properties must be capable of appropriation. These may include:
1. Real properties
2. Personal properties
3. Accessions accruing to the property from the moment of death to
the time of actual receipt by said transferee
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Example: A Chinese, domiciled in Argentina, is on his way to Manila.
The boat where he is, is staying for one day in Japan. In Japan, can he
make a will? If so, what country’s formalities should he observe?
But when you say ownership of property the probate court is not really
concerned about that. What the probate court does is only an inventory of
the property.
Q. Is the human corpse a property?
No. The human corpse is not a property and is therefore not part of the
estate.
Except: Those donated for medical and scientific purposes.
Ferdie: Cadavers cannot be sold for experiment. The same is true with
organs. These are prohibited. In fact, blood cannot anymore be sold.
RIGHTS
Only rights which are not extinguished by death are transmitted.
Ferdie: Personal rights such as the right to hold public office cannot be
transmitted to the heirs. These kinds of rights die with the decedent.
Examples of rights not extinguished by
death:
1. Right to bring an action for forcible entry
2. Right to compel the execution of a document
3. Right to continue lease contract
4. Property right in an insurance policy
Examples of rights extinguished by
death:
1.
Intransmissible personal rights (i.e. family rights, marital and
parental authority, support, action for
legal separation,
partnership, agency)
2. Right to claim acknowledgment or recognition as a natural child
3. Right to hold public or private office or job
4. right to public office
Is there a property that is extinguished by death? – Cadaver; not a
property. Body organs can be considered a property in so far as donation
is concerned.
OBLIGATIONS
Only those obligations only which are not extinguished by death.
Example: A father entered into a deed of sale to sell his property, a
motor vehicle. Prior to delivery, he died. The obligation to deliver is
transmitted to the heir.
All obligations are transmissible as a general rule
Exceptions:
1. Purely personal obligation
2. Non-transferable by law or contract
Personal obligations cannot be transmitted to the heirs
Personal obligations like obligation to support cannot be inherited.
They die with the decedent. Thus, for instance, when your parent died
who supported probably another child abroad, you cannot inherit the
obligation to support.
Obligation is only to the extent of the value of the inheritance
Take note that before inheritance may be given to the heirs, the debts
of the estate must first be paid. In the event where the debts exceed
the value properties left behind, the heirs
cannot be held personally
liable, because their liability extends only in so far as their share in the
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

inheritance.
ACCRUALS
Accruals are additions to the property. The reckoning period is
accrual from the opening of succession (death)
- Action by nature.
- Ex- I made a will. “Mr Go because you top the bar exams Im
going to give you my building.” But I leased it to somebody
else for 1M a month. That is an after acquired property.
- What if it is money placed in a bank and it earns interest. Is
this accrual or after-acquired property? Did nature made it
earn interest? It just grew without doing anything but because
it is not an action of nature, we consider that as an after-
acquired property
Example: A person who owns a property on a river delta also
takes ownership of any additional land that builds up along the
riverbank due to natural deposits or man-made deposits.
the time of his death, but also those which have accrued thereto
since the opening of the
succession.
AFTER-ACQUIRED PROPERTIES
Relevant codal provision
Art. 793. Property acquired after the making of a will shall only pass
thereby, as if the testator had possessed it at the time of making the
will, should it expressly appear by the will that such was his intention.
WHAT IS NOT TRANSMITTED
AFTER-ACQUIRED PROPERTIES
GENERAL RULE:
What are given by will are only those properties already possessed and
owned by the testator at the time the will was made. Thus,
generally, after-acquired properties may not be inherited.

TN: properties acquired after the will was made.

Relevant codal provisions
Art. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death.
Art. 781. The inheritance of a person includes not only the
property and the transmissible rights and obligations existing at
Ans – Only the 5 cars, because the rest were acquired after the
making of the will.
EXCEPTIONS:
1. Expressly intended / it was the intention
2. If will is republished or modified
• If there is a codicil made
3. Erroneous belief or ownership but realized
4. Legacy of credit
5. Legacy of remission
Expressly intended
After-acquired properties can be inherited by the heirs if the will
expressly states the intention of the testator that properties thereafter
acquired will be included, or if another will is made for that purpose.
Otherwise, said after-acquired properties cannot be given to the heirs.
Ferdie: The will states “I hereby give X all my cars including all the
cars I will acquire before I die”.
Example: In 2003, T made the will “giving X all my cars”. In 2003, T
had 5 cars, but in 2005, when T died, he had at the time of his death,
8 cars. How many will X get?
Erroneous belief or ownership but realized
If at the time the testator made the will, he erroneously thought that he
owned certain properties, the gift of said properties will not be valid,
unless after the making of the will, said properties will belong to him.
Example:
In 2003, T made the will “giving X all my cars”. At that time, he had 5
cars. However, one of the cars was not really his. Ordinarily, X should only
get 4 at the time T dies. However, if after making the will, T becomes the
owner of the 5th car, all of the cars will be given to X upon T’s death.
Legacy or credit
They are effective only as regards that part of the credit existing at the
time of the death of the testator.
Example: A creditor of P1M made a will in 2003 giving his credit to X. If
by 2006, at the creditor’s death, the debtor has already paid P600,000,
how much will X get?

Effect if there is no such intention
If there is no such intention, the after-acquired properties cannot be
given to the heirs by virtue of a will. However, it can still be given
by operation of law, as in mixed succession.
If the will is republished or modified
In which case, the properties owned at the time of such
republication or modification shall be given.
Ans – Only the remaining P400,00 which still exists at the creditor’s
death.
TN: If after the will, the debtor borrowed another P600,000, the debt now
totalling to P1.6 M, X can only still get P400,000. This is because
the extra P600,000 will be considered as after-acquired property.
Besides, this contemplates a credit that is reduced, not increased.

Codicil- by reference; will with some modifications.

What will happen if the previous will which was referred to in the codicil
was valid but was revoked? It can be republished. It can be quoted in
toto.

Example: In 2003, T made the will “giving X all my cars”. At that time,
he had 5 cars. In 2005, T made a codicil, disposing of certain other
properties in favor of another. One effect of the codicil is that the will
is construed as having been made in 2005. If in 2005, T had 8 cars
and in 2007 when he died, he had 12 cars, how may will X inherit?

Ans – X will get 8 cars because it is as if the will was made in 2007 by
reason of the republication. However, the 3 other cars acquired after
the republication will not be given, unless again the contrary intention
had been expressed.

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 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Legacy of remission
They are effective only as regards that part of the debt existing at
the time of the death of the testator. Legacy of credit is naturally in
favor of the debtor.
Example: T is the creditor of D to the amount of P1M. T made a
will in 2003 remitting or waiving D’s debt. If in 2004, D pays
P600,000 to T, how much is the legacy of remission if T dies?
Ans – Only P400,000 because this is the debt still remaining at the
time of T’s death. Essentially, this is the only amount condoned.
Thus, D need not pay the P400,000.
Relevant codal provisions
Art. 793. Property acquired after the making of a will shall only
pass thereby, as if the testator had possessed it at the time of
making the will, should it expressly appear by the will that such
was his intention.
Exceptions
1. Art. 836. The execution of a codicil referring to a previous will
has the effect of republishing the will as modified by the
codicil.
2. Art. 930. 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.
3. Art. 935. The legacy of a credit against a third person or of
the remission or release of a debt of the legatee shall be
effective only
as regards that part of the credit or debt existing at the time of the
death of the testator. In the first case, the estate shall comply
with the legacy by assigning to the legatee all rights of action
it may have against the debtor. In the second case, by giving
the legatee an acquittance, should he request one. In both
cases, the legacy shall comprise all interests on the credit or
debt which may be due the testator at the time of his death.
WHEN TRANSMITTED
UPON DEATH, WHETHER ACTUAL OR CONSTRUCTIVE
till after an absence of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be sufficient in order
that his succession may be opened.
B. Extraordinary presumption – if on board a missing airplane or
vessel, sent to war, or disappeared under dangerous or
mysterious circumstances, and has been missing for 4 years.
 And under other circumstances
• During martial law and you are an activist.
When do we reckon the date of death:
for extraordinary disappearance? At the time disappearance.
(check when death is reckoned for ordinary presumption)
Relevant codal provision
Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for
four years since the loss of the vessel or aeroplane
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Q. What are the requisites for transmission?
1. Death, whether actual or presumed
2. Rights or properties are indeed transmissible
3. Transferee is still alive, willing and is capacitated to inherit
Q. When transmitted?
The rights to the succession are transmitted from the moment of
the death of the decedent. (Art. 777)
There must certainty of death. What if there are circumstances when
he might be dead or not?
1. Actual death
2. Presumed death
Best evidence of death- death certificate. It is better evidence than the
cadaver itself. Because the certificate identifies the person who is dead. You
cannot bring the cadaver in court to prove the death.
ACTUAL DEATH
There has to be a death certificate. The effects of an acceptance of the
inheritance retroact to the moment of death.
PRESUMETIVE DEATH
A. Ordinary presumption
 If missing for 10 years
• Under normal circumstances
• Do not disappear under conditions when there is a
great danger of death.
• Umalis nang walang paalam,
• What if he wrote a goodbye letter? Still ordinary
presumption. Still under normal conditions.
 If disappeared after 75 years of age – if missing for 5 years
o 75 + 1 day is already more than 75 years old, even if he
is still not yet 76.
Relevant codal provision
Art. 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed dead
for all purposes, except for those of succession. The absentee
shall not be presumed dead for the purpose of opening his
succession
(2) A person in the armed forces who has taken part in war, and
has been missing for four years
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four
years.
Difference and similarity between ordinary and extraordinary
presumption
A. Difference – date of presumptive death
B. Similarity – both are considered provisional succession because they
are contingent on the possible reappearance of the testator.
If you are presumed to be dead, is that conclusive already? No. There is a
possibility that he will reappear.
Effect of return or appearance
 The absentee may recover his property in the condition in which it
may be found.
 If already sold by the heirs – the price of the property may be
recovered but not the fruits.
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Except: If others spent part of the property for daily subsistence
in good faith – they need not reimburse the absentee. It was
done in good faith because they needed to feed themselves.
Relevant codal provision
Art. 392. If the absentee appears, or without appearing his existence is
proved, he shall recover his property in the condition in which it may
be found, and the price of any property that may have been alienated
or the property acquired therewith; but he cannot claim either fruits or
rents.
Principle of retroactivity
While the actual division of properties will only happen at the end of the
term limits, succession retroacts to the time of disappearance. This is to
avoid the situation where the properties are owned by no one during
the said period of absence.
WHEN NOTHING IS TRANSMITTED
WHEN NOTHING IS TRANSMITTED
1. Predecease
2. Incapacity
3. Renunciation
Except: In cases provided for by law.
PREDECEASE
PREDECEASE
A voluntary heir who dies
heirs. A compulsory heir who dies before the testator, a
incapacitated to succeed, and one who renounces the inheritance,
shall transmit no right to his own heirs except in cases expressly
provided for in this Code.
Does this apply to voluntary heirs?
 No. When a voluntary heir predecease the testator, the
property goes back to the estate.
Does this apply to compulsory heirs?
 Is it expressly provided by law? Look at codal provision.
 The right of representation is only available to compulsory heir
but not voluntary heir. Is this absolute? No, because the
compulsory heir, in case of representation, can only inherit the
legitime.
 If there is repudiation there cannot be a representation.
 Does this apply to legatees and devisees?
 Prior to legal succession where does the property go?
A voluntary heir transmits no rights and cannot be
represented Example: T has a friend X whom he instituted as heir to
an estate of P100,000. X dies before T but leaves a son Y. Upon T’s
death, will Y get anything?
No, because X, the father of Y, was a voluntary heir who predeceased
the testator. The estate should therefore go to the intestate heirs of
T.
A compulsory heir transmits no rights but may be
represented A compulsory heir who predeceases the testator also
transmits no right, although of course there is the right of
representation. In other words,
what he could have received is instead given not by him but by the law
to the representative.
A repudiating compulsory heir transmits nothing at all and
cannot be represented
2. RELATIVE INCAPACITY
A. By reason of undue influence
B. By reason of unworthiness
C. By reason of public morality
7|UNIVERSITYOFSANCARLOS
He not only receives nothing but his own heirs are denied the right to
represent.
Illustration:
A and B are legitimate children of T. C is a legitimate child of A. The
estate of P100,000. A and B were instituted heirs.
Q1. If A dies before T, how much will C and B get, if any?
Ans – A was a compulsory heir to the legitime of P25,000. Therefore, C
will get only P25,000. The remaining P75,000 will all go to B. (This is
because the legitime is 50%. Thus, 25% each for A and B. The other
50% is the free portion. Since A died, the free portion of 50% and the
25% will all go to B.)
Q2. If A renounces the inheritance, how much will C get, if any?
Ans – C gets nothing since a person who renounces an inheritance
cannot be represented. Thus, everything goes to B.
Relevant codal provision
Art. 856. A voluntary heir who dies before the testator transmits
nothing to his heirs. A compulsory heir who dies before the testator, a
person incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except in cases
expressly provided for in this Code.
INCAPACITY
INCAPACITY
Incapacity may either be absolute or relative.
before the testator transmits nothing to his
1. ABSOLUTE INCAPACITY person
A. Abortive infants
B. Associations and corporations prohibited by law or their
charters
PS: hinay kaayo ang tingog sa nag recite so I cannot transcribe
his answers
Are you aware of any corporation where the law states that it
cannot inherit?
What can be the reason why the law prohibits?
Abortive infant
Can a conceived child be designated as an heir?
Why do we need to consider why a conceived child is born for
purposes of succession?
If the child dies, the property will go back to the parents, under
what mode of succession? By operation of law
Relevant codal provisions
Art. 1027. The following are incapable of succeeding:
(6) Individuals, associations and corporations not permitted by
law to inherit. (Ferdie: “Individuals” refer to abortive
infants)
Art. 40. Birth determines personality; but the conceived child shall
be considered born for all purposes that are favorable to it,
provided it be born later with the conditions specified in the
following article.
Art. 41. For civil purposes, the fetus is considered born if it is alive
at the time it is completely delivered from the mother's womb.
However, if the fetus had an intra-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.
A. BY REASON OF UNDUE INFLUENCE
Undue influence in Cebuano: Kaikog
In the context of succession, does one need to exert effort to
influence you? No. Why? Because mere presence is enough.
Ex- you are in a bar, and the table next to you is occupied by Atty.
Marquez. Chances are, you are going to behave. Kay maikog ka.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
a) Priest who heard confession or minister who
extended spiritual aid during last illness.
The confession must be made during the last illness because
that is when testator is the most vulnerable.
Last illness – it must be the cause of death or the one
immediately preceding it, if the testator did not have any
opportunity to revoke the testamentary dispositions concerned.
May not be the cause of death but if there is no opportunity to
think about the will.
The death may be caused by an accident or another sickness
other than that which is the testator is aware of.
As long as there is that mindset that he is dying. As long as
there is that vulnerability that there is a great possibility of
death.
Why? To safeguard the testator. The testator needs protection
because he is vulnerable at that time.
When this disqualification attach? The testator need not be
actually dying during the time he made the will. But of course,
there is consciousness that he might die at that time. The will
must be made during the last illness.
There must be confession/ spiritual aid. When should you
confess so that the priest can be disqualified? Before making
the will.
Remember the presumption is conclusive. Even if the priest
was in good faith, he is still incapacitated.
What is it is a cult leader? Still incapacitated. Even if not
provided for by law, because the qualifier there is the exercise
of undue influence.
Question: If the decedent made a confession during the last
illness but died due to accident and not because of the illness,
can the priest be an heir?
Ans – It depends.
 If there is an interval of time to think about it or change
one’s mind, that might still be admitted.
 But if the decedent made the confession during the last
illness and died immediately due to accident, the priest
cannot inherit.
TN: It must be a priest who heard the confession or minister
who extended spiritual aid. It cannot be interchanged.
Exceptions:
1. Legitime
2. Intestacy
3. Dispositions which do not extend testamentary benefit
Q1 – A testator during his last illness confessed to his only
son who happened to be a priest. In his will made shortly
after the confession, the testator have his son P600,000 out
of an estate worth P1M. The rest was given to a friend. How
much will the son inherit?
Ans – He gets P500,000 as legitime, but not the P100,000
which is part of the free portion. The P100,000 will accrue in
favor of the friend by reason of accretion.
Q – Supposed the deceased who had confessed to his son-
priest had died intestate, how much will the son inherit?
Ans – The whole P1M, not as voluntary or testamentary heir,
but as an intestate heir. In other words, he gets everything
by operation of law.
What is the priest happened to be the son? He can still get
but only the legitime and not the free portion.
Disqualification does not attach when there is intestacy.
Because it is the law the operates.
8|UNIVERSITYOFSANCARLOS
Disqualification also do not attach when what is imposed is a
burden. For example, you were only made administrator. It
negates the undue influence. Why would you exert undue
influence on something that will only burden you?
b) Relatives of such priest or minister within the fourth
degree, the church, order, chapter, community,
organization, or institution to which such priest or
minister may belong.
Why does it include the church, order chapter, etc? Because
priests are usually single and they do not have family.
c) Guardian with respect to testamentary dispositions
given in his favor prior to approval of final accounts of
guardianship.
The guardian referred to may be the guardian of the person
or of the property, since both can exercise undue influence.
Exceptions:
 Guardian is an ascendant, descendant, brother, sister, or
spouse
 Will was made after approval of the final accounts
 Given to guardian’s relative,
except if latter is made an intermediary
Disqualifications only attach to the guardian and not the
relatives. Is this absolute? No. It applies when there is
circumvention such as that when the guardian uses his child to
get some of the properties. AKA when the relative is acting as
an intermediary between the minor and the guardian.
Final accounts – those that terminate the financial
responsibility of the guardian. When the guardian is
removed, resigns or when there is no need for guardianship
to continue.
d) Attesting witness to the will, including spouse,
parents or children or any one claiming under such
witness, spouse, parent or children.
Why disqualified? Because it is self-serving. They are attesting to
something that will benefit them.
What about the relatives of the witness? _Look for answer
Three witnesses are required in a will, the purpose of which is
to ensure that the making of the will was indeed the free will
and volition of the decedent.
Exceptions:
1. If there are three other witnesses. The three others must
be competent and disinterested (not given anything)
witnesses to the will.
• May qualify if the witness is a redundancy
2. If witness is not given any testamentary disposition but
instead burdened with a duty.
How about the notary public? Still disqualified.
Question: Can you be a witness and at the same time a recipient
of a last will and testament?
Ans – You cannot be if you are one of the three. But you can be
an heir if you are the fourth witness, for as long as the three
witnesses are complied with and you are the fourth.
e) Physician, surgeon, nurse, health officer or druggist who
took care of testator during last illness
Take note:
1. The will must have been made during the last illness and
after the “care” has commenced
2. Took care means presupposes a continuous and regular
caring, not an isolated service. No need to be 24/7 or
regular service. As long as there is continuing care for a
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
sufficient number of time such as the patient has already
developed trust and confidence that can lead to undue
influence.
The will must be made after the caring was made.
f) Individuals, associations and corporations not allowed
by law.
Exceptions common to all
Even if one is among those enumerated here, he can still
inherit if he is entitled to the legitime. In other words, one
actually receives something not because he is a guardian,
priest, witness, physician etc. but because he is entitled to
the legitime – a compulsory heir.
Question:
What if what is given is more than the legitime? As when
the legitime is only 500,000 but one is given 600,000.
Ans – The 100,000 will not be given because of the
disqualification. This is because the P100,000 now is given
in the context of being a voluntary heir, meaning chosen out
of liberality, which is taken from the free portion of the
estate.
 If the son or the daughter refused the inducement, the
parents are still disqualified because of the moral
perversity
of the parent as revealed by his act of persuasion.
Ferdie: It includes the son. The old laws are normally not as
politically correct as they are now. They are both vulnerable
to abuse.
b) Any person convicted of attempt against the life of
testator, his or her spouse, descendants or ascendants.
Effect of acquittal:
It depends on the nature of the acquittal. If the acquittal is
based on pure innocence, then he can inherit.
TN: De Leon however says that since this requires conviction by
final judgment. Thus, an acquittal on any ground, even that of
reasonable doubt, does not result in incapacity.
Effect of pardon:
Still incapacitated for what is important is that he had been
convicted by final judgment. However, if he has been given an
amnesty before final judgment, he would be qualified.
The conviction need not be done before the testator’s or
decedent’s death.
It is enough that the heir be convicted later on. Thus, the law
states that to determine the qualification of the heir, the
rendition of the final judgment must be awaited. In other
words, although conviction be after the death, the fact of
conviction and its effects retroact to the time of the decedent’s
death.
Effect of death of heir before final judgment
The fact remains that he is not convicted. Hence, he should still
be capacitated.
TN: The attempt must be before and not after the testator’s
death.
c) Any person who accused testator of a crime with 6
years or more of imprisonment, if found groundless.
Testator should have been acquitted based on pure
innocence
9|UNIVERSITYOFSANCARLOS
Ferdie: In other words, the priest who heard the confession during
the last illness is disqualified to become a voluntary heir because of
undue influence. However, if the priest is a family member, he can
inherit in his capacity as a compulsory heir. Such that where the
priest is entitled only to P400,000 as a compulsory heir, but the
testator gave him P1 Million, the excess of P600,000 given out of
liberality can be denied because of the disqualification.
Is undue influence presumed? Yes. Is is a conclusive presumption.
Conclusive presumption
These are conclusive presumptions of incapacity. Thus,
they are not rebuttable by evidence to the contrary.
The person wanting to prove it, has no need to do anything.
Because it is already conclusive.
Cannot be assailed anymore. Because the law already
provides.
B. BY REASON OF UNWORTHINESS
a) Parents who abandoned their children or induced their
daughters to lead a corrupt or immoral life, or
attempted
against their virtue.
 Failure to give due care and attention
 Include granddaughters and sons
 “Attempted against their virtue”. This does not need
conviction
The acquittal of the testator must be definite and not which is based
merely on reasonable doubt. Otherwise, there was some ground for
the accusation, and thus the incapacity does not arise.
Rules:
 If definite acquittal or case was dismissed – incapacitated
 If acquittal is based on reasonable doubt or case was dismissed
for lack of probable cause – qualified
Filing of a case is not necessary
When you accuse, it is not necessary that you filed the case. You
could be a witness against the testator in court telling about the
crime. It does not matter whether you filed it in the prosecutor’s
office or to the court.
What is important is that you made an
accusation and the accusation turned out to be false.
d) Any heir of full age who knows violent death of testator, who
fails to report it to an officer of law within a month.
Requirements:
1. The heir must be of full age.
2. He must have knowledge of the violent death of the testator
3. There is failure to report such death within a month, unless the
authorities have already taken action
4. There is an obligation to make the accusation.
Except: If authorities have already acted or there is no obligation
to accuse.
Violent death
It must be one caused by crime, not because of suicide or
accident. There must be an intent to kill.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

e) Any person convicted of adultery or concubinage with
the spouse of testator.
Conviction by final judgment is essential
Conviction should acquire finality. The spouse himself or
herself who is equally guilty cannot be disqualified by
reason of unworthiness, though he may be disqualified
based on disinheritance. The basis is Art. 921 (4) When
the spouse has given cause for legal separation.
f) Any person who by fraud, violence, intimidation,
or undue influence should cause testator to make
a will or to change one already made.
had he been capacitated, without prejudice to the right of
representation
when proper.
How to judge capacity of heir, devisee or legatee?
General rule – Qualification at the time of the death of
decedent is the criterion.
Date when final judgment is rendered:
 Conviction of attempt against life of testator, his or her
spouse, descendants or ascendants.
Ferdie: We have to wait until there is final judgment.

g) Any person who by the same means prevents  Acquittal of testator based on groundless accusation
another from making or revoking a will, or who  Conviction of adultery or concubinage with spouse of
supplants, conceals, or alters. testator
 Failure to report – after a month
h) Any person who falsifies or forges a supposed will
of the decedent. In case of a suspensive conditional institution, heir must be
capacitated both:
Article 1032 applies to both testate and intestate  At the time of testator’s death
succession.  At the time condition is fulfilled
Example: A son tried to kill his father and went to
prison for the crime. Suppose the father died without a Relevant codal provision
will, will the son inherit? Art. 1034. In order to judge the capacity of the heir, devisee

succession. Had the father desired his son to inherit, he
should have condoned the act in writing.
An heir incapacitated by reason of unworthiness
loses everything
Thus, even he be a compulsory heir, he loses all rights
to inherit from the deceased. He loses not only the
legitime, but that which would have appertained to him
If the institution, devise or legacy should be conditional, the
time of the compliance with the condition shall also be
considered.
Ans – No, because the incapacity also applies in intestate
or legatee, his qualification at the time of death of the
decedent shall be the criterion.
In cases falling under Nos. 2, 3 or 5 of Article 1032, it shall
be necessary to wait until final judgment is rendered and in
the case falling under No. 4, the expiration of the month
allowed for the report.
succession has a right to demand indemnity or any expenses
incurred in the preservation of the hereditary property, and to
enforce such credits as he may have against the estate.

Condonation of unworthiness C. BY REASON OF PUBLIC MORALITY

1. Implied condonation – When testator knew about the
cause of unworthiness but nonetheless instituted the Prohibitions mentioned in Article 739 against donations inter vivos
unworthy heir. apply to testamentary provisions. The following donations shall be void:

2. Those made
Express between– persons
condonation guilty knew
When testator of adultery or 1.
about the
cause of unworthiness after execution of the will, concubinage at the time of donation.
condonation must be in writing. Ferdie: There is no need for criminal conviction. This can be
proven civilly by mere preponderance of evidence.
Ferdie: Condonation applies only to relative incapacity by
unworthiness, not to relative incapacity by undue influence or
2. Those made between persons found guilty of the same
public morality. In incapacity by undue influence, the one who
says there is undue influence is the law. You cannot condone criminal offense, in consideration thereof. (This is given as a
for the law. It is a conclusive presumption. Also, we cannot reward)
apply this in public morality as well because the person being
to public.
offended is the a 3. Those made public officer or his wife, descendants

Relevant codal provision

Art. 1033. The cause of unworthiness shall be without effect
if the testator had knowledge thereof at the time he made
the will, or if, having known of them subsequently, he
should condone them in writing.

Unworthy heir gets nothing?

No. The unworthy heir can still get something but not in his
capacity as an heir.
1. Get reimbursement for necessary expenses of
preservation
2. Enforce credit against estate

Relevant codal provision

Art. 1037. The unworthy heir who is excluded from the
10 | U N I V E R S I T Y O F S A N C A R L O S
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
b. Those made between persons found guilty of
the same criminal offense, in consideration
thereof
c. 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.
DECLARATION OF INCAPACITY
When to declare incapacity?
Within
property, coupled with recovery of inheritance, devise or
legacy. (This is to determine prescription)
Who files?
(i.e. the person who
would
inherit in place of the incapacitated heir)
Prior to the possession, can you bring the action?
Yes. That is the best time to bring the action because there is
no
prescriptive period. In other words, there is no need to wait
for the incapacitated heir to possess the property. Action
may be filed even prior to possession.
and ascendants, by reason of his office. (This is given
as a bribe)
Question: A cabinet official, because he had already gained prestige in his
office, gave L, a friend, a legacy. Is the legacy valid? (Trick question)
Ans – Yes, provided that L is not otherwise incapacitated. Here, the
legacy was made by the cabinet member, and not to him. The prohibition
therefore does not apply.
Relevant codal provision
Art. 739. The following donations shall be void:
a. Those made between persons who were guilty of adultery
or concubinage at the time of the donation
Relevant codal provision
Art. 1043. No person may accept or repudiate an inheritance unless he
is certain of the death of the person from whom he is to inherit, and of
his right to the inheritance.
Art. 1057. Within thirty days (30) after the court has issued an order
for
the distribution of the estate in accordance with the Rules of Court,
the heirs, devisees and legatees shall signify to the court having
jurisdiction whether they accept or repudiate the inheritance. If they
do not do so
within that time, they are deemed to have accepted the inheritance.
Who may and how to repudiate
Repudiation being an act of alienation, court approval is generally
needed, unless stated otherwise.
1. Any person with free disposal of the property
Ferdie: A person with free disposal is the one with soundness of mind.
2. Minors or incapacitated persons – Parents or guardians may
repudiate
3. Lawful representatives of corporations, associations, etc.
3. Public official establishments
4. Married woman – without need of consent of the husband
5. Deaf-mutes
11 | U N I V E R S I T Y O F S A N C A R L O S
Relevant codal provision
Art. 1040. The action for a declaration of incapacity and for the
recovery of the inheritance, devise or legacy shall be brought within
five years
from the time the disqualified person took possession thereof. It may be
brought by anyone who may have an interest in the succession.
REPUDIATION
REPUDIATION
Nature of repudiation
1. A purely voluntary and free act
2. Pure and absolute – such that there must be no term or condition.
3. Irrevocable and cannot be impugned
5 years from the time the disqualified heir took possession of
Except:
the
a. Vitiated Consent
b. Unknown will appears
4. Retroacts to the moment of death – this is prevent any stage
Anyonewhere
with interest in thewill
the property succession.
be without an owner and possessor.
Relevant codal provisions
Art. 1041. The acceptance or repudiation of the inheritance is an act
which is purely voluntary and free.
Art. 1042. The effects of the acceptance or repudiation shall always
retroact to the moment of the death of the decedent.
Art. 1056. The acceptance or repudiation of an inheritance, once
made, is irrevocable, and cannot be impugned, except when it was
made through any of the causes that vitiate consent, or when an
unknown will appears.
When to repudiate
1. Certainty of death
2. Certainty of right to the inheritance
TN: Within 30 days after the court has issued an order for the
distribution of the estate.
a. If able to read and write – personally or through agent even
without court approval
b. Unable to read and write – guardians with court approval
Ferdie: Bottomline here is, you should repudiate personally and expressly. If it’s
through a representative, you must secure an approval from the court.
Relevant codal provisions
Art. 1044. Any person having the free disposal of his property may accept
or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may be accepted by
their parents or guardians. Parents or guardians may repudiate the
inheritance left to their wards only by judicial authorization.
The right to accept an inheritance left to the poor shall belong to the
persons designated by the testator
Marinoto determine the beneficiaries and
distribute the property, or in their default,15:45:51
to those mentioned in Article
2018-08-31
1030. --------------------------------------------
include
 Representative of corporations, etc.in answering
Art. 1045. The lawful representatives of corporations, associations,
institutions and entities qualified to acquire property may accept any
inheritance left to the latter, but in order to repudiate it, the
approval of the court shall be necessary.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Art. 1046. Public official establishments can neither accept nor
repudiate an inheritance without the approval of the
government.
 Married woman
Art. 1047. A married woman of age may repudiate an
inheritance without the consent of her husband.
 Persons with disability
Art. 1048. Deaf-mutes who can read and write may accept or
repudiate the inheritance personally or through an agent. Should
they not be able to read and write, the inheritance shall be
accepted by their guardians. These guardians may repudiate the
same with judicial approval.
How to repudiate
1. Public document
2. Authentic document
CAPACITY TO INHERIT
WHO IS CAPACITATED TO INHERIT?
12 | U N I V E R S I T Y O F S A N C A R L O S
3. Petition in court (within 30 days from order for distribution of the
estate, otherwise there is presumed acceptance)
Repudiation should always be express because:
a. It is an act of disposing of property rights
b. It is unnatural and resultantly disturbs juridical relations
c. Creditors of the renouncer should be more or less informed,
hence the need for an express renouncing
Relevant codal provision
Art. 1051. The repudiation of an inheritance shall be made in a public
or authentic instrument, or by petition presented to the court having
jurisdiction over the testamentary or intestate proceedings.
Repudiation prejudicial to creditors
While rights may be waived, it cannot be allowed if it is prejudicial to a
third person with a right recognized by law, like a creditor.
Thus, in a case where the person who repudiates owes a creditor, the
creditor may petition the court to accept in the name of the heir, to the
extent of the value of inheritance.
TN: Notwithstanding, the heir here is still considered a renouncer, and
thus cannot be represented.
Exceptions:
1. If the creditor is not prejudiced – such that the heir still has
enough properties of his own to cover his debts
2. If the creditor became creditors only after the repudiation.
Relevant codal provision
Art. 1052. If the heir repudiates the inheritance to the prejudice of his
own creditors, the latter may petition the court to authorize them to
accept it in the name of the heir. The acceptance shall benefit the
creditors only to an extent sufficient to cover the amount of their
credits. The excess, should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to whom, in
accordance with the rules established in this Code, it may belong.
Effect of renunciation
Accretion applies. The share renounced is added or incorporated to that
of his co-heirs, co-devisees or co-legatees
In testamentary succession, accretion takes place when:
1. Two or more persons are called to the same inheritance or to the
same undivided share
2. One of them predeceases, renounces or is incapacitated
In legal succession:
 The share of the person who repudiates always accrues to his co-
heirs.
 Among compulsory heirs, right of accretion takes place only when
free portion is left to two or more of them, or to any one of them
or to a stranger.
 Should it be the legitime, the other co-heirs succeed in their own
right, and not by right of accretion
Difference between renunciation and repudiation
Ferdie: There is not much of a difference. They can be used
interchangeably. But what I noticed is that, once the law mentions of
renunciation, it is in favor of a named co-heir/s. In repudiation, it
doesn’t mention of anyone, thus the share repudiated accrues in favor
of the other co-heirs equally.
In other words:
 Repudiation – refusal because of pride
 Renunciation – refusal because of liberality
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.
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

(2) In default of the foregoing, legitimate parents and ascendants,

Requirements:
with respect to their legitimate children and descendants
1. Living at the time succession opens
(3) The widow or widower
2. Or at least conceived at the time of death of the testator (Art. 41)
(4) Acknowledged natural children, and natural children by legal
fiction
“At the time the succession opens”
(5) Other illegitimate children referred to in Article 287.
This means at the time of death and not at the time of the making of
the will. This is because prior to the death of the decedent, the rights
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by
of the heirs are still inchoate. They will only pass to them upon death.
those in Nos. 1 and 2; neither do they exclude one another.
There is no exception
In all cases of illegitimate children, their filiation must be duly proved.
There is no exception to the rule even if it says “except”. This is because
even in case of representation, the representative must already be alive
The father or mother of illegitimate children of the three classes
mentioned, shall inherit from them in the manner and to the extent
established by this Code.

May juridical persons make a will? No.

Primary compulsory heirs

Those who get their legitime even in the presence of the other primary
and secondary compulsory heirs:
or at least conceived at the time the succession opens. He himself
must 1. Legitimate children and descendants, with respect to their
be capable of succeeding the decedent. legitimate parents and ascendants
2. The widow or widower
This article should have been written this way: In case of 3. Acknowledged natural children, and natural children by legal fiction
representation, if proper, the person represented need not be alive
at the time the
succession opens. 4. Other illegitimate children referred to in Art. 287

Relevant codal provisions Secondary compulsory heirs

Art. 1025. In order to be capacitated to inherit, the heir, devisee or Those who can only inherit in the absence of No. 1 in Art. 887. hildren
ault of
legatee must be living at the moment the succession opens, except in Legitimate parents and ascendants in default of legitimate
case of representation, when it is proper. 1. c
and
Art. 1039. Capacity to succeed is governed by the law of the nation of descendants
the decedent. 2.
If there are no other ascendants, illegitimate parents in
def
legitimate children and descendants and widow or
widower

VOLUNTARY HEIRS

Art. 41. For civil purposes, the fetus is considered born if it is alive at
the time it is completely delivered from the mother's womb. However, Two classes of compulsory heirs:
if the fetus had an intra-uterine life of less than seven months, it is not 1. Primary compulsory heirs (Nos. 1, 3, 4, 5, 6)
deemed born if it dies within twenty-four hours after its complete 2. Secondary compulsory heirs (No. 2)
delivery from the maternal womb.
WHO SUCEEDS Relevant codal provision
WHO CAN SUCEED? Art. 887. The following are compulsory heirs:
1. Heir (Compulsory or voluntary) (1) Legitimate children and descendants, with respect to their legitimate
2. Devisee parents and ascendants
3. Legatee
4. State, public and private corporations
5. Representative

HEIRS

Q. Who is an heir?
An heir is a person called to the succession either by the provision of a
will or by operation of law. An heir could either be compulsory or
voluntary. (Art. 782)
Your brother is not a compulsory heir.
COMPULSORY HEIRS
Those heirs which are entitled to the legitime. The decedent or
testator can never disregard a compulsory heir, except if there is
disinheritance. They can inherit with or without a last will and
testament.

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Those which can receive inheritance from the free portion of the
testator’s estate. There can only be voluntary heirs in testamentary
succession (those with a last will and testament).
Can there be an instance when other heirs may exclude primary compulsory heirs?
No. because regardless of the presence of other heirs, they can still inherit. They
cannot be excluded. But in case of disinheritance, the testator may exclude.
Can there be a compulsory heirs “in wait”? Yes in the case of secondary
compulsory heirs. They have to wait for the primary compulsory heir to be absent.
Only in default.
DEVISEE AND LEGATEE
DEVISEE AND LEGATEE
A. Devisee – Recipient of a particular real property
A.
B. Legatee – Recipient of a particular personal property
They are considered voluntary heirs.
When you say voluntary, it is voluntary from the viewpoint of the testator.
TN: To avoid confusion: If property is personal (with an L) – Legatee.
Ferdie: They can be a voluntary heir in THE sense that the source of
the shares are from the free portion of the decedent’s estate. The
difference is that the legatee and the devisee’s shares are very
specific.
Transferees in testamentary succession
1. Heir – they succeed by universal title, to the whole or an aliquot
portion of the properties. An heir may be compulsory or
voluntary.
TN: This distinction is important because if a compulsory heir dies
ahead of the testator, his legitime is inherited by his own child. On the
other hand, the child of a voluntary heir who predeceases the testator
gets nothing.
Relevant codal provision
Art. 782 (2). Devisees and legatees are persons to whom gifts of real
and personal property are respectively given by virtue of a will.
STATE, PUBLIC AND PRIVATE CORPS
STATE, PUBLIC AND PRIVATE CORPORATIONS
1. State, provinces, municipal corporations
2. Private corporations
3. Organizations or associations for religious, scientific, cultural,
educational or charitable purposes
Can inherit as long as not prohibited in their charter.
Does not need to be registered according to the laws of the country.
Relevant codal provision
Art. 1026. A testamentary disposition may be made to the State,
provinces, municipal corporations, private corporations, organizations,
or associations for religious, scientific, cultural, educational, or
charitable purposes.
2. Legatees and Devisees – they succeed by particular title to cash
or to a particular or specified item or thing in the inheritance.
a. Devisee – Recipient of a real property
b. Legatee – Recipient of a personal property
Transferees in legal succession
The transferees are called legal or intestate heirs.
If you are entitled to a legitime can you also be a voluntary heir? Yes.
Possibility of dual status
If in a will, a compulsory heir is given more than his legitime, he
assumes a dual status.
Insofar as his legitime is concerned – he is a compulsory heir.
B. Insofar as the excess – he is a voluntary heir.
Within the context of compulsory and voluntary heirs, do you consider your brother to
be a friend or a stranger?
You can institute anyone as a voluntary heir. A voluntary heir is anyone who is not a
compulsory heir. It can be a stranger for as long as that person enjoys your liberality for
whatever reason. But they can only get from the free portion.
Is there a difference between a friend instituted as an heir and a devisee/legatee? A
devisee and legatee receive something specific whereas as friend is not necessarily
specific.
May municipal and provincial corporations inherit in legal succession/by
operation of law? No.
Can the State inherit by legal succession? Yes. Because the State inherits if
there is not other heirs. But the state cannot inherit if it acts through
municipal and provincial corporation, even if they are agencies of the
TN: Legatees and devisees can exist only in testamentary succession.
state.
Q. If a person dies and there is no will and no heirs, where do his
properties go?
The property goes to the state and it becomes patrimonial.
Q. Is it required for a decedent to specify the purpose of the
disposition?
It is not compulsory but he may. If you put in the purposes, it might
jeopardize the state, municipal corporations.
Example: I will give this to the state and this must be used for religious
purposes. What is violated? Separation of church and state.
Does not provide that the purpose must be specified.
“At the time the succession opens”
Means at the time of death. Why not at the time of the making of the
will? Example: I am making a will and you are my compulsory heir. Prior
to my death, do you have the right to my property?

All other corporations or entities may succeed under a will, unless No. The right is only inchoate as long as the decedent is living. That is
there is a provision to the contrary in their charter or the laws of their the reason. You will only have the property at the moment of my death.
creation, and always subject to the same.

Q. Can a juridical person make a will?

No. The making of a will is purely a personal act. While it may be argued
that a corporation can make a will through their directors, but there are
at least 15 directors, it would tantamount to a joint will which is
prohibited under the law.

Relevant codal provision

Art. 818. Two or more persons cannot make a will jointly, or in the
same instrument, either for their reciprocal benefit or for the benefit of
a third person.
A juridical person can only inherit in testate succession
They cannot inherit in legal succession. In other words, they can only
inherit as voluntary heirs where there is a last will and testament.
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 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
If you are dead, by the time succession opens/death of testator, it means
that you predecease the testator.
REPRESENTATIVE
REPRESENTATIVE
Difference between representation and agency
Agency is allowed by law because you cannot be in two places at the
same time. In representation, you represent as a matter of right –
not because you cannot be there. You are there because the law
allows you to be there. An agent cannot be allowed in the context of
succession.
Who can represent?
1. Capable of succeeding the decedent
2. Renouncer
No. A renouncer may represent but cannot be represented. If the
renouncer is going to repudiate or renounce, who is he going to
represent? It is the parent (you go up).
From what viewpoint should capacity to succeed be governed
Capacity to succeed is governed, from the viewpoint of private
international law, not by national law of the representative nor of the
person represented, but of the decedent.
Relevant codal provisions
Art. 973. In order that representation may take place, it is necessary
that the representative himself be capable of succeeding the
decedent.
Art. 976. A person may represent him whose inheritance he has
renounced.
Who cannot represent?
1. Adopted child
Q. Who can be represented?
1. Compulsory heirs
2. Incapacitated heirs
3. Heirs who predecease
4. Disinherited heirs
Ferdie: Disinherited heirs may be represented because it was the
compulsory heir who gave rise to the cause of disinheritance. The heirs of
the compulsory heir should not be made to suffer because of what he did
which caused the disinheritance.
Q. Who cannot be represented?
1. Heirs in ascending line
Ferdie: Never in the ascending line because it’s too far and it might be
against the nature of things. The probability of the grandparents to
represent the parent’s share in the estate of the child is slim. Also, it might
be against the nature of things as opposed to descending line. The purpose
of succession is to preserve the property within the family. If it goes up,
the prupose of preserving may not be served. They can die anytime.
2. In the collateral line, it takes place only in favour of the children
of brothers and sisters, whether they be of full or half blood.
If there is no will, you go down, up and the sideways. It appears
that there is a limit in going sideways. That is only to the children
of the brothers and sisters.
Ferdie: The right of representation takes place only in favor of the children
of brothers and sisters.
3. Heirs who renounce their share
Ferdie: This is because a renouncer, for motives of his own, does so
voluntarily. His act of repudiation takes away his right to dispose of the
property – dispossesses his children of that which could have gone down to
them. Repudiation is an act of disposition. In cases of incapacity or
disinheritance however, the loss is involuntary.
15 | U N I V E R S I T Y O F S A N C A R L O S
They cannot represent because the legal filiation between the
adopter and adopted exists only between both and does not extend
to the parents of the adopter. If an adopted is allowed to
represent, in effect, he will be allowed to get from the estate of
the parent of the adopter, to whom he has no legal filiation.
But can the grandparent institute the adopted child as an heir?
Yes, but only as a voluntary heir. Not from the legitime.
2. Grand nephews and grand nieces
RIGHT OF REPRESENTATION
The right of representation pertains to right to represent
The right of representation pertains to the right to represent, not the
Q. May a renouncer be
represented?
right to be represented, because the latter results in a situation where
grandnieces and grandnephews are allowed to represent who are, by
law, not allowed to represent.
Representation exists in case of:
1. Predecease (testate and intestate)
2. Incapacity (testate and intestate)
3. Disinheritance (only in testate succession)
TN: If intestate – covers all that the person being represented would
have inherited. If testate – covers only the legitime.
Relevant codal provision
Art. 970. Representation is a right created by fiction of law, by virtue
of which the representative is raised to the place and the degree of the
person represented, and acquires the rights which the latter would
have if he were living or if he could have inherited.
4. Voluntary heirs
Ferdie: This is because the voluntary heirs are given inheritance based on
liberality. It might be that the testator would not want that liberality to go
beyond the chosen voluntary heir as opposed to a compulsory heir where the
testator has no choice.
5. Adopted child
An adopted child also cannot be represented. This is because there is
no filiation whether by blood or by law between the adopter and the
children of the adopted
 Because the grandparents are not privy to the adoption. They have
nothing to do.
Relevant codal provisions
Art. 972. The right of representation takes place in the direct descending
line, but never in the ascending. In the collateral line, it takes place only in
favor of the children of brothers or sisters, whether they be of the full or
half blood.
Art. 977. Heirs who repudiate their share may not be represented.
ACCEPTANCE OF INHERITANCE
NATURE AND WHEN EFFECTIVE
NATURE
1. Acceptance is purely voluntary and free.
2. Acceptance is irrevocable
3. Acceptance is absolute.
Cannot be subject to a condition- because it would tantamount to partial
acceptance. The condition may not happen for a period of time and it would
lead to uncertainty as to the ownership of the properties.
Pure and absolute acceptance
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
It means that there must be no term or condition otherwise, there
would be uncertainty as to whether the properties or rights are being
transmitted or not.
Irrevocability of acceptance
GR: Acceptance is irrevocable to prevent confusion and instability of
rights.
Exceptions:
1. When the acceptance or repudiation was made through any
of the causes that vitiate consent:
a. Mistake (of substance or on the principal conditions)
b. Violence
c. Intimidation
d. Undue influence
e. Fraud
Ferdie: “Vitiated consent” means corrupted or adulterated consent. It
does not entirely belong to the one who gave it.
2. When an unknown will appears and it makes substantial
changes in the old will.
Ferdie: If the new will makes only insignificant changes in the old
one, the appearance of the unknown will should not allow the
impugning of the previous acceptance or repudiation concerning the
old one.
Relevant codal provisions
Art. 1041. The acceptance or repudiation of the inheritance is an
act which is purely voluntary and free.
Art. 1056. The acceptance or repudiation of an inheritance, once
made, is irrevocable, and cannot be impugned, except when it was
made through any of the causes that vitiate consent, or when an
unknown will appears.
May acceptance be made during the lifetime of the
testator? No. acceptance cannot be made during the lifetime of
the testator because it is still premature. The right to the
inheritance is still inchoate.
Presumed acceptance
After the lapse of 30 days after the court has issued an order for the
distribution of the estate without the heirs signifying their acceptance
or repudiation of the inheritance.
Relevant codal provision
Art. 1043. No person may accept or repudiate an inheritance unless he
is certain of the death of the person from whom he is to inherit, and of
his right to the inheritance.
Art. 1057. Within thirty days (30) after the court has issued an order
for the distribution of the estate in accordance with the Rules of Court,
the heirs, devisees and legatees shall signify to the court having
jurisdiction whether they accept or repudiate the inheritance. If they
do not do so within that time, they are deemed to have accepted the
inheritance.
WHO MAY ACCEPT
WHO MAY ACCEPT
Those with free disposal of the property. One who has the right.
MINORS OR INCAPACITATED PERSONS
Acceptance may be made by their parents or guardians. It does not
require court approval because it is not contrary to human experience
to accept something beneficial as opposed to repudiation where court
approval is required.
Exception: If there be burdens.
Relevant codal provision
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Is partial acceptance allowed?
Sir’s opinion: No, because it amounts to a condition. If one accepts
half of the inheritance, what happens to the other half? It could be
repudiation of the other half.
Paras: If the heir would say that he will just accept 50% and the other
half he leaves to the discretion of the other heirs, it becomes a
donation or a gratuitous renunciation. Technically, there is already
acceptance because you cannot give something you do not own.
WHEN EFFECTIVE
The effects of acceptance and repudiation shall always retroact to the
moment of the death of the decedent.
Ferdie: In the interval of time, there is a question of ownership. There
should be retroaction to know who should pay the taxes due of the
property and to prevent any stage where the property will be without
an owner and possessor.
Relevant codal provision
Art. 1042. The effects of the acceptance or repudiation shall always
retroact to the moment of the death of the decedent.
WHEN TO ACCEPT
What if, you know your father was making a will and you were so excited
that you accepted right away. Can it be done? No because right is still
inchoate. Cannot accept during the lifetime of testator.
WHEN TO ACCEPT
After the death of the decedent, with the following requisites:
1. Certainty of death
2. Certainty of right to the inheritance
If these requisites concur, when should you accept?
Anytime. Does not really matter when as long as the requisites concur.
Because anyway, acceptance retroacts at the time of death of the
decedent. During the time that there was yet no acceptance, it is
uncertain on who owns the property or who will take care of the
property. Reason for retroactivity is to prevent any stage where the
property will be without an owner and possessor. Matters such as
taxes can be settled only when the owner of the property is
determined.
Art. 1044. Any person having the free disposal of his property may
accept or repudiate an inheritance. Any inheritance left to minors or
incapacitated persons may be accepted by their parents or guardians.
Parents or guardians may repudiate the inheritance left to their wards
only by judicial authorization. The right to accept an inheritance left to
the poor shall belong to the persons designated by the testator to
determine the beneficiaries and distribute the property, or in their
default, to those mentioned in Article 1030.
THE POOR
Acceptance may be made by:
1. Persons designated by the testator to determine beneficiaries and
distribute property
2. If none, by the executor
3. If there is no executor, by the following persons who shall decide
by a majority vote:
a. Justice of the peace (municipal or metropolitan trial judge)
b. Mayor
c. municipal treasurer
TN: In all instances, court approval is required because the question as
to who really are the poor is a judicial question. When the testator gives
inheritance to the poor, the intention there is too general. There is no
specific person named so the determination of who belongs to the poor
intended to be given inheritance is best left to the court.
Why is RTC not included in the list of the persons allowed to
accept in favor of the poor?
Ans – Because it is the RTC which approves.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
What if the testator did not designate a locality?
Ans – The poor in general will be limited to the poor living in the
domicile of the testator at the time of his death.
Relevant codal provisions
Art. 1030. Testamentary provisions in favor of the poor in general,
without designation of particular persons or of any community, shall be
deemed limited to the poor living in the domicile of the testator at the
17 | U N I V E R S I T Y O F S A N C A R L O S
time of his death, unless it should clearly appear that his intention was
otherwise.
The designation of the persons who are to be considered as poor and
the distribution of the property shall be made by the person appointed
by the testator for the purpose; in default of such person, by the
executor, and should there be no executor, by the justice of the 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. The preceding
paragraph shall apply when the testator has disposed of his property in
favor of the poor of a definite locality.
REPRESENTATIVES OF CORPORATIONS AND PUBLIC
OFFICIAL ESTABLISHMENTS
1. Lawful representatives of corporations, associations, etc. – no
need for court approval because a benefit is presumed.
2. Public official establishments – needs government approval,
particularly the executive or department head.
What is a public official establishment?
Those devoted to public purposes (like charity, education) and
supported by public money (UP, Philippine National Red Cross)
Relevant codal provisions
Art. 1045. The lawful representatives of corporations, associations,
institutions and entities qualified to acquire property may accept any
inheritance left to the latter, but in order to repudiate it, the approval
of the court shall be necessary.
Art. 1046. Public official establishments can neither accept nor
repudiate an inheritance without the approval of the government.
PERSONS WITH DISABILITY
Deaf-mutes
1. Able to read and write – personally without need of court approval
2. Unable to read and write – guardians, subject to court approval
Relevant codal provision
Art. 1048. Deaf-mutes who can read and write may accept or
repudiate the inheritance personally or through an agent. Should they
not be able to read and write, the inheritance shall be accepted by
their guardians. These guardians may repudiate the same with judicial
approval.
CREDITOR
While rights may be waived, it cannot be allowed if it is prejudicial to a
third person with a right recognized by law, like a creditor.
Thus, in a case where the person who repudiates owes a creditor, the
creditor may petition the court to accept in the name of the heir, to the
extent of the value of inheritance.
Question: I owe P1M to someone. Then my father left me P1M as
inheritance. However, I said that I don’t need the money. I repudiated.
What is the remedy of the creditor?
Ans – Petition the court to accept in behalf of heir-creditor who
repudiates.
Exceptions:
1. If the creditor is not prejudiced – such that the heir still has
enough properties of his own to cover his debts
2. If the creditor became creditors only after the repudiation.
Relevant codal provision
Art. 1052. If the heir repudiates the inheritance to the prejudice of his
own creditors, the latter may petition the court to authorize them to
accept it in the name of the heir. The acceptance shall benefit the
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

creditors only to an extent sufficient to cover the amount of their

credits.
The excess, should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to whom, in
accordance with the rules established in this Code, it may belong.
Who may accept
Minors or Parents or guardians, without need of
incapacitated persons court approval
1. Person designated by the testator for
the purpose
2. If none, by the executor
3. If no executor, by the following
persons who shall decide by majority
vote:
Poor a. Justice of the peace (municipal
or metropolitan trial court
judge)
b. Mayor
c. Municipal treasurer
With court approval in all instances.
Relevant codal provisions
Art. 1049. Acceptance may be express or tacit. An express acceptance
must be made in a public or private document.
A tacit acceptance is one resulting from acts by which the intention to
accept is necessarily implied, or which one would have no right to do
except in the capacity of an heir.
Acts of mere preservation or provisional administration do not imply an
acceptance of the inheritance if, through such acts, the title or capacity
of an heir has not been assumed.
Art. 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a stranger, or
to his co-heirs, or to any of them
(2) If the heir renounces the same, even though gratuitously, for
the benefit of one or more of his co-heirs.

(3) If he renounces it for a price in favor of all his co-heirs

Corporations, Lawful representatives, without need of indiscriminately; but if this renunciation should be gratuitous,
associations, etc. court approval and the co-heirs in whose favor it is made are those upon whom
the portion renounced should devolve by virtue of accretion, the
inheritance shall not be deemed as accepted.
Public official Needs government approval, particularly
establishments the executive head or department head Art. 1057. Within thirty days (30) after the court has issued an order
Deaf-mutes for the distribution of the estate in accordance with the Rules of Court,
 Can read and write  Personally or through an agent the heirs, devisees and legatees shall signify to the court having
 Cannot read and without need of court approval jurisdiction whether they accept or repudiate the inheritance. If they
write  Guardians, subject to court approval do not do so within that time, they are deemed to have accepted the
inheritance.
Creditors through a petition in court –
Creditor subject to court approval
WHO CANNOT SUCCEED
HOW TO ACCEPT ABSOLUTE INCAPACITY
HOW TO ACCEPT
Acceptance may be express, tacit or presumed. ABSOULTE INCAPACITY
Relevant codal provisions
Express acceptance
An express acceptance must be made in a public or private document. Art. 1027. The following are incapable of succeeding:

Tacit or implied acceptance
A tacit acceptance is one resulting from acts by which the intention to
accept is necessarily implied, or which one would have no right to do
except in the capacity of an heir.
A. Disposal – if heir sells, donates or assigns rights to others
B. Renunciation
a. For a price – essentially a sale; deemed accepted
b. Gratuitously – deemed not accepted
Ferdie: These are acts of disposal based on the legal maxim,
“nemo dat quod non habet” which means “no one gives that which
he does not have”
 If one renounces indiscriminately in favor of all co-heirs for a price
– it is deemed a sale, thus an acceptance.
 If the renunciation is also indiscriminately made in favor of all co-
heirs but gratuitously, it is considered an absolute repudiation.
Question: Since it is considered absolute repudiation, does it have to be
in writing? Think about it. (This might come out in the exam)
Presumed acceptance
If within 30 days after the court has issued an order for the
distribution of the estate, the people concerned have not signified their
acceptance or repudiation.
18 | U N I V E R S I T Y O F S A N C A R L O S
(6) Individuals, associations and corporations not permitted by law to
inherit.
Ferdie: “Individuals” refer to abortive infants.
Art. 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be
born later with the conditions specified in the following article.
Art. 41. For civil purposes, the fetus is considered born if it is alive at
the time it is completely delivered from the mother's womb. However,
if the fetus had an intra-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.
INCAPACITY DUE TO INFLUENCE
INCAPACITY DUE TO UNDUE INFLUENCE
Art. 1027. The following are incapable of succeeding:
(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
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

(3) A guardian with respect to testamentary dispositions given by 1. In case of Predecease, Incapacity, Repudiation.
a ward in his favor before the final accounts of the
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
(4) Any attesting witness to the execution of a will, the spouse,
parents, or children, or any one claiming under such witness,
spouse, parents, or children
(5) Any physician, surgeon, nurse, health officer or druggist who
took care of the testator during his last illness
UNWORTHINESS
UNWORTHINESS
Art. 1032. The following are incapable of succeeding by reason of
unworthiness:
(1) Parents who have abandoned their children or induced their
daughters to lead a corrupt or immoral life, or attempted
against their virtue

(2) Any person who has been convicted of an attempt against the
life of the testator, his or her spouse, descendants, or
ascendants.

(3) Any person who has accused the testator of a crime for which
the law prescribes imprisonment for six years or more, if the
accusation has been found groundless.

(4) Any heir of full age who, having knowledge of the violent
death of the testator, should fail to report it to an officer of the
law within a month, unless the authorities have already taken
action; this prohibition shall not apply to cases wherein,
according to law, there is no obligation to make an accusation.

(5) Any person convicted of adultery or concubinage with the

spouse of the testator.

(6) Any person who by fraud, violence, intimidation, or undue

influence should cause the testator to make a will or to change
one already made.

(7) Any person who by the same means prevents another from
making a will, or from revoking one already made, or who
supplants, conceals, or alters the latter's will.

(8) Any person who falsifies or forges a supposed will of the

decedent.

Art. 1033. The cause of unworthiness shall be without effect if the

testator had knowledge thereof at the time he made the will, or if,
having known of them subsequently, he should condone them in
writing.

Art. 1037. The unworthy heir who is excluded from the succession
has a right to demand indemnity or any expenses incurred in the
preservation of the hereditary property, and to enforce such credits
as he may have against the estate.

DISINHERITANCE

DISINHERITANCE
Can the testator deprive his heirs of his properties during his lifetime?
Yes. By spending every thing during his lifetime and die with nothing.
What is disinheritance?
Disinheritance is the process or act, through a testamentary
disposition of depriving in a will any compulsory heir of his legitime
for true and lawful causes.

Other ways of depriving the heirs of their legitime

19 | U N I V E R S I T Y O F S A N C A R L O S
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Ferdie: In case of predecease or incapacity, his own heirs may
inherit by representing him.
2. In case the liabilities of the estate equal or exceed its assets,
there would be no hereditary estate, and consequently, no
legitime.
Purpose of disinheritance
It is not vengeance but retribution inasmuch as there can possibly
be no feelings of vengeance between parents and children or
between husband and wife at the supreme hour of death.
When you say retribution, it is to teach you a lesson. But when you say
vengeance, it is probably just getting even. Giving you your own dose
of medicine.
Who may be disinherited
Only compulsory heirs can be disinherited, for they alone are
entitled to
the legitime.
Disinheritance includes both the legitime and the free portion
A disinheritance excludes the heir not only from the legitime but also
from the free portion. In other words, he is completely excluded from
the inheritance.
Relevant codal provision
Art. 915. A compulsory heir may, in consequence of disinheritance,
be deprived of his legitime, for causes expressly stated by law.
Requisites for a valid disinheritance
1. Must be made in a valid will
it can be in any will
It can be in any will so long as it expresses the will of the testator.
2. Must be made expressly
Effect if not expressly made: disinheritance is ineffective.
3. Must be for a legal cause
The cause must be one authorized by law. Even if graver than
those set forth in law, if it be not one of those enumerated, the
disinheritance will be ineffective. The law limits the causes for
disinheritance because this will give them broad power over the
heirs who have rights over their legitime.
Ex: the compulsory heir killed the testator. Can this be a ground?
With this, if you’re dead you cannot disinherit anymore. What if it
not death but graver than those enumerated by law? How about
attempted murder kay what was provided was attempted lang? If
you were the judge what will you do? The purpose of
disinheritance is to teach the heir a lesson. So the intent of the law
must prevail. Otherwise, it is absurd.
4. Must be for a true cause
If it is not the true cause, there is an ineffective disinheritance.
Must not be made up.
5. Must be for an existing cause
It must exist at the time of the making of the will because there
can be no conditional or preventive disinheritance.
6. Must be total or complete
7. The cause must be stated in the will itself
It could be in the same will or in a separate will.
No need to quote exactly what the law says but and no need to
state in details. But it is better if you state it in details.
Do you need to be specific with the date, time, and place? ---
8. The heir must be clearly identified
20 | U N I V E R S I T Y O F S A N C A R L O S
So that there will be no doubt as to who is really being disinherited.
Is it sufficient when you say “my first child”? No. Because the parent
may have other families. Cannot also say “youngest child from my first
my child” because there might be two youngest because they are
twins. Cannot say “one of the twins that I don’t like”
The lesson is it must be very specific. Or better yet, name them.
9. The will must not have been revoked
What are the causes of ineffective disinheritance?
a. When the cause is not stated
a. What if there is a cause stated but it turned out to be false
by judicial findings? The cause must be true and existing.
So it is ineffective.
b. When it does not identify the disinherited heir
c. When there is a second will that revokes the will which contains the
disinheritance
a. But what if there is no 2nd will. Can something happen that
can still render the disinheritance ineffective? When there
is a subsequent reconciliation between the decedent and
heir.
Relevant codal provisions
Art. 916. Disinheritance can be effected only through a will wherein the
legal cause therefor shall be specified.
Art. 917. The burden of proving the truth of the cause for
disinheritance shall rest upon the other heirs of the testator, if the
disinherited heir should deny it.
Art. 918. Disinheritance without a specification of the cause, or for a cause
the truth of which, if contradicted, is not proved, or which is not one of those
set forth in this Code, shall annul the institution of heirs insofar as it may
prejudice the person disinherited; but the devises and legacies and other
testamentary dispositions shall be valid to such extent as will not impair the
legitime.
CAUSES FOR DISINHERITANCE
Children and descendants
Art. 919. The following shall be sufficient causes for the disinheritance of
children and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt
against the life of the testator, his or her spouse, descendants, or
ascendants.
This includes the accomplice for as long as there is that intent to kill.
Ferdie: Final judgement is necessary. If an attempt is sufficient to disinherit, it
follows that if the act is consummated, or frustrated there is sufficient cause
for disinheritance. This also applies even if you are a mere accomplice,
provided of course that there was intent to kill.
Q. What if there is pardon?
Pardon presupposes admission of guilt. Unless pardoned because of pure
innocence.
If after conviction there is a pardon, disinheritance is also proper, unless the
pardon be based on the heir’s complete innocence.
Q. When you say ascendant or descendant, is it by consanguinity or affinity?
Why?
Consanguinity. When you say ascendant or descendant, it is always associated
with love. As opposed to when you say relative, you can qualify either by
consanguinity or affinity.
Not affinity. You can attempt against the life of your in-laws without
disinheritance.
(2) When a child or descendant has accused the testator of a crime for
which the law prescribes imprisonment for six years or more, if the
accusation has been found groundless.
False accusation
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Elements:
1. The act of accusing
2. The fact that the accusation has been found groundless
• Groundless- dismissal was based on pure innocence
3. The offense or crime charged carries a penalty of imprisonment for at
least six years.
TN: It does not matter whether the accused was accused under
different capacities. Whether you filed the case, or you were a mere
witness, it does not matter for as long as there is an act of accusation.
Q. Is there such a thing as passive accusation?
Yes. When you have the evidence that could have helped the testator
but
you did not do anything about it.
Testator should have been acquitted based on pure innocence
To be considered groundless, the acquittal of the testator must be
definite and not which is based merely on reasonable doubt. Otherwise,
there was some ground for the accusation, and thus the incapacity does
not arise.
Rules:
 If definite acquittal or case was dismissed – incapacitated
 If acquittal is based on reasonable doubt or case was dismissed for
lack of probable cause – qualified
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator.
Example: A son has been convicted of adultery with his own mother. The
father can thus disinherit him.
Q. Does it have to be your mother or father? Or just the step parents?
The law does not distinguish whether biological or not.
What about common-law spouse? Can be.
(4) When a child or descendant by fraud, violence, intimidation, or
undue influence causes the testator to make a will or to change
one already made.
Example: A makes a will because he was threatened with injury by B, his son,
if the will was not made. Later on, A makes a new will. In this new will, A can
disinherit B.
TN: Unless a new will is made, there can be no disinheritance,
because for this to exist, there must be a will where the disinheritance
is made.
(5) A refusal without justifiable cause to support the parent or
ascendant who disinherits such child or descendant.
Q. When is it justified?
It is a judicial question whether or not you can be justified in not
giving a support.
Ex- what can be a justification for a child to not support the parent?
It’s a case to case basis. Like when your parents are so cruel to you.
Q. What if you gave support because of a court order? Can you still be
disinherited by your parent?
It will still be a ground for disinheritance because there is compulsion
involved.
(6) Maltreatment of the testator by word or deed, by the child or
descendant.
Q. What if it was the parent who maltreated the child by word or by
deed? The maltreatment by ascendant of a descendant does not
constitute a ground for the descendant to disinherit the ascendant,
for while it may be abuse, it is generally in the exercise of a power.
But this might be outdate already because you already have your
anti child abuse law. There is such a thing as leaving law theory, it
adapts on the changing times. It depends upon the judgment of the
court.
(2) When the parent or ascendant has been convicted of an attempt
against the life of the testator, his or her spouse, descendants,
or ascendants
21 | U N I V E R S I T Y O F S A N C A R L O S
Q. What about in other provisions? Can you not disinherit? Can this not be
a ground for loss of parental authority?
Yes. You can put it in another ground which is the loss of parental authority.
(7) When a child or descendant leads a dishonorable or disgraceful
life.
Q. What constitutes dishonorable life?
Anything that brings dishonor or disgrace to the family of the testator
merits correction in the form of disinheritance.
Can regard to morality or immorality of the child.
Also applies to sons.
What if the daughter is a lesbian? Can that be a dishonor?
You can provided your ground is reasonable subject to contemporary
standards. What is the judge is liberal? Conservative?
Q. Who determines that?
Testator, subject to judicial determination.
Not final because subject to judicial determination.
Can flunking the bar 10 times a ground? No.
Q. What does leads a dishonorable life imply?
An isolated act does not suffice. For “leading a life” implies continuity.
Not necessarily for life but a significant period of time.
What if your daughter poses for Playboy naked? No because it is only one
time.
The law requires continuity because it affords any opportunity for
forgiveness.
Dishonorable- it really depends because what is honorable to you might be
dishonorable for others and vice versa.
(8) Conviction of a crime which carries with it the penalty of civil
interdiction.
Q. What is civil interdiction?
There is loss of civil rights. These are accessory penalties to particular
crimes:
1. Death
2. Reclusion perpetua
3. Reclusion temporal
Parents or ascendants
Applies to legitimate or illegitimate parents.
Art. 920. The following shall be sufficient causes for the disinheritance
of parents or ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their children or induced
their daughters to live a corrupt or immoral life, or attempted
against their virtue.
Applies to sons and daughters.
Ferdie: Abandonment means not just physical abandonment (under the
Revised Penal Code) but also lack of care and support spiritually,
mentally, economically, etc.
does attempt against the virtue requires final judgment? NO.
Q. Who determines whether it is a corrupt or an immoral life?
The testator determines. If the heir who was disinherited challenges that,
the court now may decide. It becomes a judicial question. It does not
mean that it has to be in a final judgment.
Examples:
1. Parents forced their daughters into a life of prostitution
2. A mother helps a stranger commit rape on her own daughter
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
(3) When the parent or ascendant has accused the testator of a
crime for which the law prescribes imprisonment for six years or
more, if the accusation has been found to be false (false
accusation)
(4) When the parent or ascendant has been convicted of adultery or
concubinage with the spouse of the testator.
Q. What about the spouse himself?
This is a ground for legal separation which is also a ground for
disinheritance.
(5) When the parent or ascendant by fraud, violence, intimidation,
or undue influence causes the testator to make a will or to
change one already made
(6) The loss of parental authority for causes specified in this Code.
Only when the parent is at fault.
Q. What does Paras means when he said that this provision is
misleading? If you look at the provision, it encompasses everything, that
all loss of parental authority can be a ground for disinheritance.
Q. What if the loss is due to the fact that the child matured/emancipated?
Can the child disinherit the parent?
No. That is why the provision is misleading. It cannot apply to all
situations of losses of parental authority. It cannot also apply to death of
the parent and adoption. This is because to no fault of the parents.
Q. What are the causes that would allow disinheritance under loss
of parental authority?
1. Judicial declaration of abandonment of the child in a case filed for
the purpose.
2. Final judgment of a competent court divesting the party concerned
of parental authority.
3. Judicial declaration of absence or incapacity of the person exercising
parental authority.
Q. What if there is an appointment of a guardian?
This can also be a reason for disinheritance except if the parent has
become insane. This is because if a parent is insane then all the more
that the parent needs the support of the child.
Also, we have to distinguish, what is the cause? If it is the fault of the
parent why there is a loss of parental authority, then there is a valid
cause for disinheritance. Otherwise, it cannot be a ground.
Q. What if the parental authority was lost but was restored why the
testator is still alive, would the disinheritance be invalid?
There are two views in this situation.
1. First, the disinheritance continues to be valid, according to Sanchez
Roman, because it is sufficient if at one time the parents have been
deprived of such authority. The reason is that the disinheritance is
made not so much because of loss of parental authority but because
there had been a commission of an act resulting in such loss of
authority.
2. Second, the disinheritance becomes ineffective and invalid according
to Manresa and Scaviola, because what is important is the fact that
upon the death of the child-testator, parental authority has been
regained, and therefore, there can exist no just cause for
disinheritance. Disinheritance being a deprivation of a right to the
legitime must be strictly construed.
Ferdie: The second opinion seems like the revocation happened by
operation of law. There are only two ways to revoke a disinheritance,
reconciliation and making a will. So I am more inclined to believe Sanchez
Roman because the cause of disinheritance must be existing at the time
of the disinheritance.
(7) The refusal to support the children or descendants without
justifiable cause
HOW TRANSMITTED
HOW TRANSMITTED
Art. 778. Succession may be:
(1) Testamentary
22 | U N I V E R S I T Y O F S A N C A R L O S
(8) An attempt by one of the parents against the life of the other
spouse, unless there has been a reconciliation between them.
Q. Does it require a finality of conviction?
Not necessary. The difference of this one to the other attempts is
probably because the others talk about relationships by blood and this
one talks about relationship by affinity.
Also, maybe because the propensity to file a case is low when it is between
spouses so no conviction can be given.
Q. Why is the child being deprived of his right to disinherit if the parents
reconcile?
The child cannot have a more severe reason that the offended spouse. The
law recognizes that the child is just an expectator in that situation.
What is reconciliation?
Restoration of feelings. Not just to forgive but also to forget. According to
Paras, the relationship goes back to the relationship before the attempt
on the life of the other.
There can be a reconciliation without revocation of disinheritance when
the aggrieved party cannot forget.
The child cannot be more aggrieved than the aggrieved spouse.
Q. Does the reconciliation need to comply with the formalities?
No. It may be presumed. Such as when the spouses live together again.
But this presumption is rebuttable such as when they are just faking it.
Q. What is an example of a general pardon?
The pardon is not specific. Like when you say “I forgive you, let’s move
on.” If this happens, pardon was not given because it did not remove the
hurt.
Q. Does pardon have to be accepted?
Yes it has to be accepted because if not, there is no reconciliation.
Spouse
Art. 921. The following shall be sufficient causes for disinheriting a
spouse:
(1) When the spouse has been convicted of an attempt against the
life of the testator, his or her descendants, or ascendants
(2) When the spouse has accused the testator of a crime for which
the law prescribes imprisonment of six years or more, and the
accusation has been found to be false
(3) When the spouse by fraud, violence, intimidation, or undue
influence cause the testator to make a will or to change one
already made
(4) When the spouse has given cause for legal separation
No need of deed of separation or finality of judgment. For as long as the
spouse “give cause” subject to judicial determination.
(5) When the spouse has given grounds for the loss of parental
authority
(6) Unjustifiable refusal to support the children or the other spouse.
Revocation of disinheritance
1. Subsequent reconciliation
2. Making of a new will instituting disinherited heir
There are causes for disinheritance which can be the same cause for
unworthiness, such as abandonment or attempt against the life- if there is a
subsequent reconciliation for the ground under disinheritance, the cause for
unworthiness cannot be anymore valid.
(2) Legal or intestate
(3) Mixed – where the testator failed to include some of his
properties in a will.
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
TESTAMENTARY SUCCESSION
TESTAMENTARY SUCCESSION
Rules for Testamentary Succession
Testamentary succession may be done through a will or through a
codicil, which will or codicil may either be notarial or holographic.
TN: In case of doubt, testamentary succession is preferred to legal or
intestate succession.
Relevant codal provision
Art. 779. Testamentary succession is that which results from the
designation of an heir, made in a will executed in the form prescribed
by law.
WILL IN GENERAL
WILL DEFINED
An act whereby a person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his estate, to take
effect after his death. (Art. 783)
Q. What does it mean when it says “to control to a certain
degree?”
It means you might have the freedom to dispose your property but the
limitations are law and public policy.
ESSENTIAL ELEMENTS AND CHARACTERISTICS OF A WILL
1. Statutory right not a natural right, not born with it
- Statutory right- “to control to a certain degree” provided it must be
within the limits of the law. Such as when the testator cannot touch
the legitime.
The making of a will should be considered subordinated to both
law and public policy.
a. Intent of the testator prevails
b. Subject to limits of law and public policy
c. Mouthpiece of the dead
2. Unilateral act
This means that no acceptance by the transferees is needed while
the testator is still alive; any acceptance made prematurely is
useless, just a surplusage.
- The transferee only accepts upon death; anytime upon death; the
acceptance retroacts to the time of death.
- If your acceptance is late, can there be an instance when the
property will be taken by the State? No. The State can only inherit
when it is the default heir, when there is no other heir.
- But when there is abandonment by the heir, the State can only take
the property when you fail to pay the property taxes.
3. A solemn or formal act
It is executed in accordance with the formalities prescribed by law.
Can there be an instance when you make will but there is no
intention to make a will. Yes. When you executed any document entitled
“Will” but the substance does not conform to the requirements of a will.
Can be called a will but not really instituting a heir. For example, you only
acknowledge a child.
4. Animus testandi or intent to make a will
5. Testator must be capacitated to make a will
a. At least 18 years of age
b. Of sound mind (NPC)
 Know nature of estate
 Know proper objects of bounty
 Know character of testamentary act
6. Strictly a personal act in all essential matters
a. It cannot be left to the discretion of a third person
23 | U N I V E R S I T Y O F S A N C A R L O S
 But drafting can be delegated to a third person like to a
lawyer
b. Duration or efficacy of designation and the portions they are
to take, when referred to by name, cannot be left to the
discretion of a third person.
c. Testator may not make a testamentary dispositions in such a
manner that another person has to determine whether or
not it is to be operative.
Ferdie: A personal act so it means that it cannot be subjected to
a compromise agreement. It will defeat the purpose of the will
which is to carry out the intention of the testator. But if
everyone’s happy then MAYBE it can be done.
Compulsory Agreement- the heirs cannot agree on what is
otherwise stated in the will. Because you cannot contravene
the intent of the testator. But if they really want to swap, they
just subsequently sell the properties to each other. You need
to accept it first on face value. And you can circumvent later
on.
GR: Third party intervention is not allowed.
XPN: Drafting may be delegated to a third persons in matters
concerning distribution of specific property or sums of money to a
designated class or cause.
7. It is effective mortis causa
It produces effect only after death of the testator
8. It is essentially revocable or ambulatory
The right to revoke is absolute. (Ambulatory – may be changed as
long as the testator has not died yet)
9. It is free from vitiated consent
This means it must be executed freely, knowingly, and
voluntarily, otherwise it will be disallowed.
What happens if not voluntary? Can be disinherited, declared
incapacitated, etc.
10. It is an individual act
Prohibition against a joint will is absolute. Even if a joint will
(which is not allowed in the Philippines) is made in another
country, it will still not be valid in the Philippines as the intrinsic
validity of the will follows the national law of the decedent)
Joint will is prohibited whether it may be in the PH or abroad. It is absolutely
prohibited.
11. It disposes of a testator’s estate
You cannot freely dispose all of your properties as the law (only
to a certain degree) as the law reserves the legitime to the
compulsory heirs.
Is it necessary that testator lets go of every thing? No. If the
testator did not let go of all his free properties, it becomes mixed
succession.
Mixed succession – not mandatory to dispose everything as the
law will provide. This allowed as long as it does not prejudice the
legitime.
Relevant codal provision
Art. 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of this estate, to take effect after his death.
Difference between a “Last Will” and a “Testament?”
Under the Anglo-American law, a testament disposes of personal
property, while a will disposes of real property. But, common usage
today notes no difference between the two.
Q. Can oral conveyances be valid?
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

This practice is common for country folks in the Philippines. The

consistent jurisprudence in this country, despite express codal
provisions, has recognized oral contracts as valid and efficacious to
bring about partition of a decedent’s estate among heirs, provided
that it does not affect the interest of third persons.
THE MAKING OF A WILL IS A STRICTLY PERSONAL ACT
The mechanical act of drafting may be entrusted to another, as long
as the disposition itself expresses the testator’s desires and all the
formalities of the law are complied with.
Q. Can a criminal which carries civil interdiction execute a will?
Yes, it only prohibits disposition of property inter vivos, not mortis causa.
Fixed law of interpretation
The intention and desire of the testator if clearly expressed in the will,
constitute the fixed law of its interpretation. If there is ambiguity, prefer
testate succession.

What is required if the drafting of the will is entrusted to

another person?
In notarial will, the signing of the testator and the witnesses is
required if the drafting was done by another. In holographic will, what
is required is for the testator to copy the draft in his own handwriting.

Relevant codal provision

Art. 784. The making of a will is a strictly personal act; it cannot be left
in whole or in part of the discretion of a third person, or accomplished
through the instrumentality of an agent or attorney.

DISCRETION OF THIRD PERSON

This is a reinforcement of the idea of a will being a personal act. If the
discretion to designate is left with third persons, it is a clear case of
illegal delegation.

Relevant codal provisions

Art. 785. The duration or efficacy of the designation of heirs, devisees
or legatees, or the determination of the portions which they are to
take, when referred to by name, cannot be left to the discretion of a
third person.

WHEN A THIRD PERSON MAY BE ENTRUSTED

This is possible if the testator entrusts to a third person the distribution
of a specific property or sums of money to specified classes or causes.

Examples:
1. The high school seniors class in the Poveda Learning Center
2. The first ten topnotchers in the bar examinations
3. Charitable institutions

Relevant codal provision

Art. 786. The testator may entrust to a third person the distribution of
specific property or sums of money that he may leave in general to
specified classes or causes, and also the designation of the persons,
institutions or establishments to which such property or sums are to be
given or applied.

NON-DETERMINATION BY THIRD PERSON

It is not allowed for a third person to decide whether a will is operative
or not. This Article strengthens the rule that the making of a will is
strictly a personal act.

Example: “I institute X as my heir provided that my friend Y will

agree.” The institution of X is void, and also the participation or
delegation of Y.

Relevant codal provision

Art. 787. The testator may not make a testamentary disposition in such
manner that another person has to determine whether or not it is to
be operative.

INTERPRETATION OF A WILL
The rule in interpretation is similar to that of interpreting a law or a
contract. The reason is that testate succession is preferred to
intestacy provided that there is doubt.
- As much as possible we need to give life to the intention of the
testator in the will.

24 | U N I V E R S I T Y O F S A N C A R L O S
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Relevant codal provision
Art. 788. If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by which the
disposition is to be operative shall be preferred.
Ordinary words have their ordinary meanings
Exception: If there is a clear intention that another meaning was
used, provided that other meaning can be determined.
Technical words have technical meanings
Exceptions:
1. If there is a contrary intention
2. If it appears that the testator alone drafted the will, who did
not know the technical meaning.
Reason: A will drafted by a lawyer is construed more strictly than
those made by ordinary layman.
Relevant codal provision
Art. 790. The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in another
sense can be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their technical sense,
unless the context clearly indicates a contrary intention, or unless
it satisfactorily appears that he was unacquainted with such
technical sense.
Interpretation as a Whole
A. The will must be interpreted as a whole.
B. While testacy is preferred over intestacy, this is only true only
if the will has been validly made.
Relevant codal provision
KINDS OF AMBIGUITY IN A WILL
1. Intrinsic or Latent – those which do not appear on the face of
the will and is discovered only by extrinsic evidence. This is found
in the first clause of the provision.
TN: Alleged oral declarations should not be allowed as this can
result in fraud, confusion and unfairness to the dead man whose
words may be distorted or perjured. What if recorded in a video?
No because it can be tampered.
This kind of ambiguity arises when:
a. Imperfect description of the heir, legatee, or devisee
b. No person or property exactly matches description
c. Imperfect description of the gift given
d. Only one recipient is designated but it turns out that there
are two or more who fit the description
Example: “I institute my brother-in-law” (when it is discovered
that I have two brothers-in-law). This ambiguity is not found in
the will itself, which is clear. The doubt arises only because of
things outside of the will – “imperfect description”.
Before we go to extrinsic evidence, we must first go to the
will itself.
Ex- “Institute five daughter” But it turns out there is only 4 daughters. Can be
cured by the will itself. If, for example, the daughters were enumerated in the
will. No need to go to extrinsic evidence.
Is there a hierarchy of authority that we need to examine the will first before
extrinsic evidence? No. Can be reinforced together.
2. Extrinsic or Patent – those which appear on the face of the will
itself. In other words, by examining the provision itself, it is
evident that it is not clear. This is found in the second clause of
the provision – “when an uncertainty arises upon the face of the
will”.
25 | U N I V E R S I T Y O F S A N C A R L O S
Art. 791. The words of a will are to receive an interpretation which will
give to every expression some effect, rather than one which will render
any of the expressions inoperative; and of two modes of interpreting a
will, that is to be preferred which will prevent intestacy.
Effect of Invalid Disposition
General rule: Even if one disposition or provision is invalid, it does not
necessarily follow that all the others are also invalid.
Exception: When the various dispositions are indivisible in intent or
nature.
Relevant codal provision
Art. 792. The invalidity of one of several dispositions contained in a will
does not result in the invalidity of the other dispositions, unless it is to
be presumed that the testator would not have made such other
dispositions if the first invalid disposition had not been made.
Summary of rules:
1. Intent of the testator prevails. (The intent of the testator is the
supreme law of succession)
2. Interpreted as a whole
3. Invalidity of one disposition does not infect the other except when
indivisible in nature and effect
4. In case of ambiguity, that which operates disposition is preferred.
Ferdie: Testacy is preferred over intestacy.
5. Words – ordinary meaning and grammatical sense unless
intended otherwise
6. Technical words – in their technical sense unless:
a. Context clearly indicates contrary intention
b. Another sense is clearly intended
c. Will was drawn solely by the testator unacquainted with such
technical sense.
Example: “I hereby institute some of my 7 brothers”. (It is evident
here that we do not know how many of the brothers are being
instituted)
Ex- I give this property to the handsomest in my room 403 class.
Q. How to cure ambiguity?
1. Discover the intent of the testator
2. Examine the will itself
3. Examine extrinsic evidence like written declarations of the testator
Ferdie: The written declarations here need not be notarized. Just a
memorandum or even letters are enough.
Relevant codal provisions
Art. 789. When there is an imperfect description, or when no person or
property exactly answers the description, mistakes and omissions must be
corrected, if the error appears from the context of the will or from extrinsic
evidence, excluding the oral declarations of the testator as to his intention;
and when an uncertainty arises upon the face of the will, as to the
application of any of its provisions, the testator's intention is to be
ascertained from the words of the will, taking into consideration the
circumstances under which it was made, excluding such oral declarations.
VALIDITY OF A WILL
What are the kinds of validity of a will?
1. Extrinsic validity – refers to the forms and solemnities needed (how
it is written)
2. Intrinsic validity – legality of the provisions in the will (to whom, how
much)
Ferdie: When you say legality of provisions: Who and How much? When
you say forms and solemnities: Extrinsic.
Extrinsic validity
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
Refers to the form and solemnities.
1. From the viewpoint of time – what must be observed is the law in
force at the time the will was made. This is because the future
cannot be foreseen.
2. From the viewpoint of place or country
A. Testator is a Filipino
a. Philippine laws
b. Laws of the country where he may be
c. Laws of the country where he executes the will
B. Testator is an alien abroad
a. Law of domicile
b. Law of nationality
c. Philippine laws
d. Law of place of execution of the will
C. Testator is an alien in the Philippines
a. Philippine laws
b. Law of nationality
Intrinsic validity
- How much, to whom.
1. From the viewpoint of time – governed by the law in force at
the time of decedent’s death
• Because the law might change. And if you base in on
the time when the will was must made, you may
prejudice the legitime.
2. From the viewpoint of place – national law of the decedent. So
even if you execute the will outside of the country, as to the
intrinsic validity, it is still based on your national law
Unless the laws of the alien’s country allows it (ren voi doctrine)
Ren Voi Doctrine cannot be applied to Filipinos because our laws does not
allow it.
Important: The national law follows you wherever you are.
Example: The alien wants to execute a will governed by Philippine
law. This is void unless the laws of the alien’s country allows it
(ren voi doctrine)
Joint wills- refer to both the intrinsic and extrinsic validity.
TAKE NOTE: The Legislature cannot validate a will void at the time
it was made by changing the formalities required. This is because
of Court. The inheritance of those who, with or without a will, die
after the beginning of the effectivity of this Code, shall be
adjudicated and distributed in accordance with this new body of
laws and by the Rules of Court; but the testamentary provisions
shall be carried out insofar as they may be permitted by this
Code. Therefore, legitimes, betterments, legacies and bequests
shall be respected; however, their amount shall be reduced if in
no other manner can every compulsory heir be given his full
share according to this Code.
FORMS OF WILLS
Forms of wills:
1. Notarial Will
2. Holographic Will
3. Codicils and Incorporation
Testator by reference
or the person requested
by him to write his name, and the instrumental
NOTARIAL WILL
Every will must be in writing and executed in a language or dialect
known to the testator.
Handwriting and handwriting expert explained
26 | U N I V E R S I T Y O F S A N C A R L O S
if it were otherwise, the testator would be deprived of property without
due process of law. However, said rule applies only to formal or
extrinsic validity.
Relevant codal provisions
Art. 795. The validity of a will as to its form depends upon the
observance of the law in force at the time it is made.
 Extrinsic validity
Art. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution.
Prohibitive laws concerning persons, their acts or property, and
those which have, for their object, public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
Art. 795. The validity of a will as to its form depends upon the
observance of the law in force at the time it is made.
 Intrinsic validity
Art. 16. Real property as well as personal property is subject to
the law of the country where it is stipulated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found.
Art. 2263. Rights to the inheritance of a person who died, with or
without a will, before the effectivity of this Code, shall be
governed by the Civil Code of 1889, by other previous laws, and
by the Rules
3.
4. Attested and subscribed by three or more credible witnesses in the presence of one another.
Signed at the end by the testator or by the testator’s
name written by another in his presence, and by his
express direction.
If there are additions right after the signature, the entire will is
void.
Subscribed – signed. The signature locks the document.
See additional discussion below on next page.
Subscribe is to sign. Attest means witness. Credible witness –
must possess the qualifications impose by law and must be able
to testify in court (in case of conflict, he will testify as to the
truthfulness of the will)
5. witnesses of the will signs each and every page, except the last, in the lef margin.
Handwriting
The handwriting of a person may be proved by any witness who believes
it to be the handwriting of such person because he has seen this person
write, or has seen writing purporting to be his upon which the witness has
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
acted or been charged, and has, thus, acquired knowledge of the
handwriting of such person.
Handwriting experts
Usually helpful in the examination of forged documents, but resort to
these experts is not mandatory or indispensable to the examination or
the comparison of handwriting. The judge must conduct an
independent examination of the signature in order to arrive a
reasonable conclusion as to its authenticity.
The opinions of the experts are not binding upon the courts. It is also
an accepted fact that two specimens of a person’s signature are
exactly alike.
E lectronic Commerce
Legal recognition of E-commerce is given. Suffice to say, every
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.
SC declared that an authenticated E-signature or a digital signature is
admissible in evidence as the functional equivalent of the signature of
a person on a written document.
1. Must be in writing.
Oral wills are not allowed. It could be handwritten, typewritten or
printed. The material on which it is written is immaterial.
Can you combine both handwritten or typewritten? Yes. In case there is brownout and
you were leaving the country, for example.
The quality of paper is immaterial. The law presupposes that it is paper because it refers
to a “page” which must be numbered. Can be done in a yellow pad. For as long it
complies with the requirements.
ORAL WILLS ARE ABSOLUTELY PROHIBITED.
What if it is videotaped? Still not allowed because it can easily be
tampered. Or a person may be held at a gunpoint to make the video. WE
are talking here of extrinsic validity.
2. Must be executed in the language or dialect known to the testator.
If the testator resides in a certain locality, it is presumed that he knows
the language or dialect there. This presumption does not stand if the will
is
not written in that language. The presumption is only prima facie and
therefore,
the contrary may be proved.
Additional note on the 3rd requirement:
What if there are alterations on top? Then the testator must sign them
with his full customary signature.
What if your customary signature is only your first name? Allowed.
Rubber stamp or thumbmark is allowed as long as the testator intended
that to be his signature. But that is so vulnerable to abuse. If you are the
notary public, you can just note it your notarial book that such is the
signature of the testator.
What the signing is guided by another person? It can be done. Can the
person who guides you be a witness? There are conflicting views here.
But most preferably, it must not be done by the witness because there
can be conflict of interest. Witness are not supposed to participate in the
preparation of the will. They can only attest. Maniid ra na sila.
Additional Note on the 4th requirement: All three witness and the
testator must be present at the same time. Must be all there during
subscription and attestation.
27 | U N I V E R S I T Y O F S A N C A R L O S
In the last page, the names are provided for already
 Not necessarily on the left margin so long as there is a
signature
 Failure to have the marginal signatures of the testator and of
the witnesses when needed is a FATAL defect
6. All the pages are numbered correlatively in letters placed
on the upper part of each page.
This is to prevent substitution or loss of any of its pages.
7. The attestation clause provides:
a. Number of pages used
b. That testator signed or expressly caused another person to
sign the will and its every page in the presence of
instrumental witnesses
c. That instrumental witnesses witnessed and signed the will
and all its pages in the presence of testator and of one
another.
Ferdie: The attestation clause is not strictly a part of the will
(there can be a separate page for the attestation clause). The
testator not required to sign the attestation clause; if he signs,
mere surplusage.
Purpose:
 To preserve in permanent form a record of the facts
attending the execution of the will
 To render available proof that there has been a compliance
with the statutory requisites for the execution of the will
 To minimize the commission of fraud or undue influence
The testator and witnesses need not make the acknowledgment
in the presence of one another. This is only required in
attestation. It should be the subscribing or attesting witnesses
who should acknowledge together with the testator, not ordinary
or other witnesses.
TN: Acknowledgement is done by the testator and the witnesses
before the notary public. It is not the notary public who
acknowledged.
But the notary public need not be there. In acknowledgement, they need not be
there at the same time.
Additional Note on 5th requirement: Testator or the person requested by
him to write his name, and the instrumental witnesses of the will signs each
and every page, except the last, in the left margin. Why not the last? Because
the names and signature are already there.
What if you sign at the right margin? It’s okay. There is substantial
compliance. It is not fatal.
What if in one of the pages, one of the marginal signatures is missing? This is
fatal defect. Bec must be signed in every page.
Additional Notes:
What do you need to write on the pages? Numbered. Can be numbered with
1,2,3,4. The safest is “Page 1”, “Page 2”, etc. What’s the reason? So that no
pages will be missing. And to guard against fraud.
What is the purpose of attestation? To preserve the fact of the execution of
the will, that it complied with the statutory requirements..
In the contents of attestation, what if one of those is not present? It depends
on what is missing
a. Number of pages- may be missing provided there is substantial
compliance.
b. Fact of signature of the testator- fatal defect if missing.
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
c. Fact of signing of witness- fatal
Attestation clause is the only guard against forgery. Without it, it is a
fatal defect. However, it does not form part of the will and may be on a
separate page. Testator need not sign it. If he does, it is mere
surplusage.
What if there is a defect in form and language? Wrong grammar or
form? We can invoke substantial compliance. Provided, there is no
need to extrinsic evidence. Meaning, you only refer to the will.
What Article 805 provides
Does the witness need to know the language in attestation? No. It can e
interpreted to the witnesses.
Acknowledgement- when you go to the notary public and acknowledge
that it is your own free act.
28 | U N I V E R S I T Y O F S A N C A R L O S
This provision 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.
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 Art. 805 to state the number of
pages used upon which the will was written.
Relevant codal provisions
Art. 804. Every will must be in writing and executed in a language or
dialect known to the testator.
Art. 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another. If the attestation clause is in a language
not known to the witnesses, it shall be interpreted to them.
ACKNOWLEDGMENT
Act of one who has executed a deed in going before some competent
officer or court and declaring it to be his act or deed. It involves extra- step
undertaken whereby the signor actually declares to the notary that the
executor of the document has attested to the notary that the same is his
own free act and deed.
Is acknowledgment necessary?
Yes. If a will is duly acknowledged before a notary public, there is, in its
favor, the presumption of regularity.
TN: This only refers to notarial will and not holographic will because the
latter does not need witnesses. Otherwise, the holographic wills becomes a
notarial will.
Effect if a notarial will is not acknowledged
A notarial will not acknowledged before a Notary Public by testator and the
witnesses is fatally defective. This is even if it is subscribed or sworn to
before a notary public.
Officials authorized to notarize
1. President down to the mayor
2. Clerk of court
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
3. Notary Public
TN: Acknowledgement cannot be done in front of the President
because the law clearly states that it has to be acknowledged in front
of a notary public. Simple oaths can be done in front of the President,
mayor and the clerk of court, but insofar as acknowledgement is
concerned, it has to be done in front of a notary public.
Can the notary public be one of the instrumental witnesses?
No, in view of the absurdity of one person acknowledging something
before himself.
Can an heir of the testator be a witness? Yes, as long as there are 3
other creditor witnesses.
Jurat- on the view point of the notary public.
Part of the affidavit whereby the notary certifies that before him,
the document was subscribed and sworn by the executor.
What if instead of the acknowledgement the Jurat was
used? It is a fatal defect because the law clearly states that it has
to be acknowledged in front of the notary public.
INTERVENTION OF THE NOTARY PUBLIC
The notary public does not have to be present at the execution of
the will. He may be present but he cannot be one of the three
instrumental witnesses.
The notary public is not allowed to read the will or to know the
contents unless the testator permits. It is not him acknowledging
the will, it is he before whom it is acknowledged. He is only
required to read the will under Art. 808 (Blind testator).
Two instances where the notary public may be allowed to
read the contents of the will:
A will is a secret document because it carries out the last will and
intention of the testator. Thus, he may not be allowed to read the
contents of the will, unless:
1. The testator is blind
2. If the testator consents
The notarial will is a private instrument
The notarial will is not a public instrument, although
acknowledged. This is evident from the fact that unlike in the case
of public instruments, the notary public shall not be required to
keep a copy of the will, or file another, with the Office of the Clerk
of Court.
Purpose of substantial compliance:
It is designed to attain the main objective of the NCC in the
liberalization of the manner of executing wills. The court’s policy is to
require satisfaction of the legal requirements in order to guard against
fraud and bad faith, but without undue or unnecessary curtailment of
the testamentary privilege.
Effect on the enactment of the new CC in 1950 Re Attestation
Clause
It did not put in force a rule of interpretation of the requirements of
wills, at least insofar as the attestation clause is concerned.
What is the purpose of law in requiring the number of pages be
stated in the attestation clause?
This is to safeguard against possible interpolation or omission of one or
some of its pages and to prevent any increase or decrease in the
pages.
When is there substantial compliance?
There is substantial compliance of this requirement if the will states
elsewhere in it how many pages it is comprised of. The failure of the
29 | U N I V E R S I T Y O F S A N C A R L O S
Purpose: It is meant to a secret document so as not to create conflict
among members of the family.
Normally, when a document is acknowledged, it becomes a public instrument. This
is not true for a will. Because it is supposed to be a secret. A private document.
The purpose of acknowledgement, it is presumed to be regular.
Without it, there is a fatal defect.
Does a notarial will has to be dated? No, because ultimately it is going to be
dated by the notary public.
Can you write an erroneous date? Yes. But strictly, the date is essential in the
case of after-acquired properties.
Date is also important in so far as the time the will was made because the law at
the time of the making will determine the extrinsic validity of the will.
In so far as the testator to concerned, the capacity of the testator is also reckoned
at the time the will was made, especially when it comes to soundness of mind.
Can a probate for a notarial will be dismissed because of the
absence of a documentary stamp?
No. The probate court could require the proponent to affix the
requisite of the stamp; after all, the documentary stamp may be
affixed at the time the taxable document is presented in evidence.
Relevant codal provision
Art. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required
to retain a copy of the will, or file another with the Office of the Clerk
of Court.
DEFECTS AND IMPERFECTIONS IN THE FORM OF
ATTESTATION OR IN THE LANGUAGE USED
As long as the purpose sought by the attestation clause is obtained,
the same should be considered valid. It does not speak of defects of
substance but defects and imperfections in the form of attestation or
in the language used.
Does this include substantial compliance in defects of
substance?
No. It only includes defects and imperfections in the form of
attestation and in the language used.
How can substantive defect be cured?
It is believed that it can be cured with evidence within the will itself
and not by extrinsic evidence.
What does substantial compliance mean?
It means that as long as the purpose sought by the attestation clause
is obtained, the same should be considered valid.
attestation clause to state the number of pages on which the will was
written remains a fatal flaw.
Relevant codal provision
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will invalid
if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805.
BLIND TESTATOR
Rules if the testator is blind
The will shall be read to the testator twice. Once by the subscribing witness
and once by the notary public.
Should this be signed and executed in the presence of a notary
public?
The law is silent but it would seem that for the better protection of the
testator, it is advisable to have the same done before the notary public so
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

that the blind man may have the benefit of the notary public’s
3. No guaranty that there was no fraud, force, intimidation, undue
participation even before he signs the will.
influence; and no guaranty regarding testator’s soundness of
mind.
If the testator is deaf-mute and also blind, may he still make a
will?
FORMALITIES FOR A HOLOGRAPHIC WILL:
No, unless in some way, the contents may properly be communicated
to him in accordance with the legal requirements. 1. Language must be known to the testator
It is not enough that the will be interpreted to him, unlike in the
Relevant codal provision
notarial will. The language must be really known to the testator.
Art. 808. If the testator is blind, the will shall be read to him twice; Can be to the testator alone.
once, by one of the subscribing witnesses, and again, by the notary What about jargon? Can use as long as known to the testator.
public before whom the will is acknowledged.
2. Entirely written in the hand of the testator
HOLOGRAPHIC WILL
The mechanical act of drafting the will may be done by someone
else, however, the testator himself must copy the will in his
Q. What is a holographic will? own handwriting and for as long as the one he copies
A will that is entirely written, dated and signed by the hand of the expresses his true will and intent.
testator. If the testator has no hands and can write with his foot then
it is all right since what the law requires is a personal
Advantages distinctiveness.
1. Easier to make What the person who prepared the mechanical draft inserted something
2. Easier to revise in the will and he gave it to the testator and the latter copied
3. Easier to keep secret everything? Valid because the copying ratifies the addition. He should
have known that it was not given in the instructions.
Disadvantages
1. Easier to forge by expert falsifiers. 3. Must be dated
2. Easier to misunderstand since the testator may have been faulty The will must be dated. Otherwise, void since this is a mandatory
in expressing his last wishes. requirement.
What if what was inserted is an incorrect date? Valid provided done in
good faith.
In notarial will, it is not required.
Reason: In order to determine whether the will was made at the
time when the law allows the making of a holographic will.

Rule in case of revision

The later date should be preferred as expressing truly the last will
and testament.

The date must be complete

That is, it must contain the year, month and day.

Rule in case of incorrect date

An incorrect date does not invalidate the will as long as it was
made in good faith. In which case, the date will be presumed as
the date it was executed.

4. Must be signed by the testator himself.

The full and customary signature is needed, hence full name is not
required. It must appear at the end of the will.

It must be signed at the end of the will in order to prevent any

additions to the will. It locks the last will and testament)
 If there are any dispositions after the signature, the additional
dispositions will be rendered void.
 If the additional disposition is signed but not dated or dated
but not signed, the disposition is still VOID.
 If the first disposition is signed but not dated, but the second
disposition is signed and dated, then the second disposition
would cure the defects of the previous disposition. Therefore,
the will becomes valid.

TN: HOWEVER, the same rule does not apply if the previous
disposition is not signed but date. In that case, the will
remains to be VOID and that the second disposition cannot
cure the defects in the previous disposition.

Both the signature and the date are important, but all things
being equal, it is the signature that has to be present.
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If there are insertions and cancellations anywhere in the
will, the same must be authenticated by the testator.
Therefore, the insertions, cancellations and additions
have to be signed by the testator with the full signature.
Example: What if what was inserted in the will was: “PS: I hope
everybody is happy”? Does not affect the validity because it does not
pertain to a disposition in the property.
No need of witness. If there are, it is a mere surplusage. It does not matter.
But you cannot post it in Facebook, unless the testator consented.
No need to notarize holographic will. Otherwise, it becomes a notarial will and
the formalities of the notarial will must be followed. Can you transform a
notarial to holographic? No. Because once a holographic will is already
acknowledge by a lawyer, that is no longer written in the hands of the
testator.

A holographic will requires no forms. What if the testator wrote in a
poem/letter/song form? Still valid as long as the intent of the testator is
there.
5. There must be animus testandi
6. It must be executed at the time that holographic wills are
allowed
If the execution was done at the time holographic wills are not
allowed, but probated at the time holographic wills are allowed,
the probate shall be rendered void. The probate cannot ratify an
otherwise void will. The law in force is at the law at the time you
made the will.
Other features of the holographic will
1. No witnesses are required. If there are witnesses or an
attestation clause, they will be disregarded and will be considered
as mere surplusage. The will itself will remain valid.
2. No marginal signatures on the pages are required.
3. No acknowledgment is required.
4. In case of insertion, cancellation, erasure and alteration, the
testator must authenticate the same by his full signature.
5. May be made in or out of the Philippines, even by Filipinos.
6. Generally a blind person cannot be a testator of a holographic
will, unless there are means and ways for him to write his own
will. (TN: It must be written by hand by the blind person)
7. Mechanical act of drafting is allowed as long as the testator
copies it himself and he dates and signs it.
Can a blind person make a holographic will? Yes provided he is literate.
Can you execute a holographic will outside the country? Yes.
a. One identifying witness
TN: The witness must not just identify the handwriting but also
the signature.
b. If none, handwriting expert.
2. Contested
a. There must be three identifying witnesses to prove the
authenticity of the handwriting and signature of the testator
b. If none, handwriting expert (The opinion of the expert is merely
persuasive, but not binding)
Who is the witness? Why should the witness be the one to testify, what
does he know?
Because the witness has the familiarity with regard to the handwriting of the
testator.
How do we establish familiarity? When can we say that a person is
familiar with the decedent’s handwriting?
When the witness saw you writing. It should be based on the reason that the
witness saw the decedent WRITING.
When you say a witness, can an heir be a witness?
Yes. Because the witness could be anybody.
TN: The courts may resort to handwriting experts if ordinary witness is
unconvincing. The duty of the court is to exhaust all available lines of
inquiry for the State is interested in putting into effect the intention of the
testator.

Why should a holographic will be construed more liberally than
the ones drawn by an expert?
Holographic wills are usually prepared by those not learned in the law.
The intention of the testator must be recognized as the supreme law in
succession.
What If the person is so secretive that he hid his will, that he
himself cannot retrieve the holographic will. How do we prove
that? Can there be a probate of a holographic will that is lost?
No. because the handwriting is important. Without such, there will be no
evidence to prove the will.

What is the function of a probate court? Can there be a secondary evidence? Like a photocopy?
Its main task is to settle and liquidate the estates of deceased persons In the book, it states that such may be admitted. But in reality, it would be
either summarily or through the process of administration. really hard because handwriting is important. So it ultimately depends on
the judge.
The probate court either voids or validates/allows a will to govern the property
of the deceased.
Relevant codal provisions
Art. 804. Every will must be in writing and executed in a language or
dialect known to the testator.

Art. 810. A person may execute a holographic will which must be

entirely written, dated, and signed by the hand of the testator himself.
It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed.

PROBATE OF HOLOGRAPHIC WILL

It is the allowance by the court of the will after the due execution
thereof.

Q. What proof is needed?

Proof of identity of the signature and handwriting of the testator is
important, otherwise, the will cannot be valid.

Two types of probate:

1. Uncontested
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Effect if holographic will is lost or destroyed
The will cannot be probated because there is no evidence of the
existence of such will. Evidence of handwriting of the testator will
not be accepted as there is no will to compare it with.
Except: If there is a photocopy, the will may be probated because
here, there is something to compare the signature with. (Caveat:
This is merely an opinion of the author)
Q. Are the provisions of Article 811 permissive or
mandatory? Article 811 is mandatory. The word “shall” connotes a
mandatory order. (Codoy v. Calugay et al)
Q. Can a Holographic Will be made in or out of the
Philippines? It can be. Testacy is preferred over intestacy and
because it is being prepared by ones who are not learned of law, it
must be construed liberally. (Seangion v. Reyes)
Relevant codal provision
Art. 811. In the probate of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.
Dispositions below signature
1. Must be both dated and signed
2. If dated but not signed – void
3. If signed but not dated – void
Except: If at the end, the last disposition is signed and dated,
it validates dispositions preceding it.
If there is alteration without signature, will the whole will be
void?
No. Only the alteration is void. However, if what was altered was the
DATE or the SIGNATURE, the alteration makes the WHOLE will VOID.
Relevant codal provision
Art. 814. In case of any insertion, cancellation, erasure or alteration in
a holographic will, the testator must authenticate the same by his full
signature.
CODICILS AND INCORPORATION BY REFERENCE
Q. What is a Codicil?
A supplement or addition to a will, made after the execution of a will
and annexed to be taken as a part, by which any disposition made in
the original will is explained, added to, or altered.
“Codicil” defined
It was derived from the Latin word ‘codex’ and literally means a little
code or a little will.
 It is a supplement / addition to the previous will
 It has a function of revoking the previous will
 It is done after the execution of a will, therefore it must be
subsequent to the original will
 If there is a conflict between the original will and the codicil, the
latter shall prevail
Time when Codicil is made
It cannot be made before a will, it is always made after. Of course,
even the codicil may later on be revoked by another will or codicil.
We say that the codicil is a mere supplement to the will. But
what if there is an inconsistency? Which prevails?
The codicil. Because the codicil expresses the latest intention of the
testator.
32 | U N I V E R S I T Y O F S A N C A R L O S
Can a testator draft one part of the holographic will one time
and another at another time?
Yes. It may even happen that the latter dispositions are made even
after signature had been written.
Should the dispositions after signature be signed and dated?
Yes. The lack of one will void the additional dispositions for lack of
essential requisite. Note that dispositions are really considered
independent of the will itself.
What if the latter disposition is signed and dated by another
person?
A. If without testator’s consent – it will not affect the previous
dispositions, which will remain void if they are already void and
valid if they are valid.
B. If with the testator’s consent – it has the same effect as signed
and dated by the testator because the latter disposition is not
really holographic (not done by the testator himself).
Relevant codal provisions
Art. 812. In holographic wills, the dispositions of the testator written
below his signature must be dated and signed by him in order to make
them valid as testamentary dispositions.
Art. 813. When a number of dispositions appearing in a holographic
will are signed without being dated, and the last disposition has a
signature and a date, such date validates the dispositions preceding it,
whatever be the time of prior dispositions.
Authentication of correction by full signature
Full signature means full or usual or customary signature. However, if
both the first and second names are initials, it is believed that it is
contrary to the law.
Formalities of Codicils
It shall be executed as in the case of a will. There can be notarial/ordinary
codicils or holographic codicils.
If a codicil is not executed with the formalities of a will, said codicil is void.
A valid will can never be revoked, expressly or impliedly, by an invalid
codicil.
Relevant codal provision
Art. 826. In order that a codicil may be effective, it shall be executed as in
the case of a will.
INCORPORATION BY REFERENCE
The purpose of the article is to provide for those cases when a testator
wishes to incorporate to his will only by reference (i.e. without copying the
whole thing) certain documents or papers, especially inventories and books
of accounts. Thereby, the testator saves time and energy.
Said documents or inventories, when referred to in a notarial will, do not
need any attestation clause, because the attestation clause of the will itself
is sufficient.
Requisites for validity of documents incorporated by reference:
1. Document must exist at the time of execution of a will
Reference to future papers will render the incorporation void.
However, the will itself remains valid. The will must refer to the
papers as having been already made; it is not enough that in truth it
was already in existence.
2. The will must clearly describe and identify the paper
including number of pages
It must also state the number of pages. This is true even in the case
of voluminous books of accounts or inventories.
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

3. Must be identified by clear and satisfactory proof as (4) It must be signed by the testator and the witnesses on each and
the document being referred to. every page, except in case of voluminous books of account or
Parol evidence or evidence aliunde is needed here. inventories.

4. Must be signed by the testator and the witnesses on
each and every page.
Except: Voluminous books of account or inventories. It is
believed that at least, there must be a signature on several
pages for the purpose of identifying same as the documents
really referred to.
5. May be generally done in notarial wills.
Except:
a. If holographic will have three witnesses
b. If the holographic will has no witness, it can still
incorporate a document which is entirely handwritten,
dated and signed in the handwriting of the testator.
Is attestation is only available in notarial wills?
Yes but that does not stop you from having attestations in a
holographic will. Also, a will only becomes notarial when it is
notarized.
How should you execute a codicil?
Depends on the formalities used in the original will. If notarial will,
notarial codicil.
Can the testator incorporate by reference through saying “I
incorporate by reference these documents, and such other
documents as may be found after my death?
No. because not only may the documents be already in existence, they must
also be already be made during the time of the will.
What if now the testator refers the documents by stating
“composed of 100 pages more or less”. Can that be allowed?
No because the number of pages must be clearly identified. It must be very
specific insofar as the number of pages is concerned.
When you incorporate by reference voluminous documents you need to sign.
But there’s no need to sign everything. How much do we need to sign?
Insofar as the testator is concerned, we also have to evaluate the capacity of
the testator. Such that if he is a hundred years old, we only need to let him
sign a couple of pages. As opposed to a young athletic guy, might as well let
him sign everything.
Is incorporation by reference applicable to notarial and holographic will?
Generally, incorporation only refers to a notarial will. But it may also apply to
a holographic will if there are witnesses.

What if you did the notarial will, and later on wanted to

make a codicil in the form of a holographic codicil? And vice
versa?
Yes, it can be done.

What if you’re so rich and all your properties are

represented by voluminous documents how do you prepare
your last will and testament?
You have a remedy of incorporation by reference. It is allowed
because there are instances wherein it would be difficult to place
those documents in the will itself for being too lengthy.

Relevant codal provisions

Art. 825. A codicil is supplement or addition to a will, made after
the execution of a will and annexed to be taken as a part thereof,
by which disposition made in the original will is explained, added
to, or altered.

Art. 826. In order that a codicil may be effective, it shall be

executed as in the case of a will.

Art. 827. If a will, executed as required by this Code, incorporates

into itself by reference any document or paper, such document or
paper shall not be considered a part of the will unless the
following requisites are present:

(1) The document or paper referred to in the will must be in

existence at the time of the execution of the will.

(2) The will must clearly describe and identify the same, stating
among other things the number of pages thereof.

(3) It must be identified by clear and satisfactory proof as the

document or paper referred to therein.

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 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
WITNESS TO THE WILLS
QUALIFICATIONS AND DISQUALIFICATIONS
By witnesses to wills, are we talking about a notarial will?
Yes, because in a holographic will, witnesses are not required.
What if one wants to be a witness to your holographic will?
It’s a mere surplusage. It’s okay if they want to but it’s practically
meaningless unless in the instance of incorporation by reference.
QUALIFICATIONS (6) S18RNPHC
Important: Witnesses should possess these qualifications at the time
of the execution of the will
Can an illiterate person execute a will? Yes.
Can an illiterate person witness a will? No. Because ability to read and
write is a qualification for a witness.
Is it a requirement for the witness to know the language of the will? No.
Because he is not required to know the contents of the will. He is only a
witness in so far as the execution of the will is concerned.
1. Any person of sound mind
Question – Does the requirement of soundness of mind of a
testator (to know the Nature of the estate, Proper objects of his
bounty, Character of the testamentary act) apply to witnesses to a
will?
Ans – No, the NPC requirement applies only to the testator because
witnesses need not know the contents of the will.
2. At least 18 years of age
3. Able to read and write
Question: Is it necessary that the witnesses know the language of
the will?
Ans – No, as they are not required to know the contents of the will.
It is not even essential for the witness to know the language in
which attestation has been written. It is sufficient that the same be
interpreted to him.
Question – If it is not necessary for them to read the will, then
what are they witness of?
Ans – They are witnesses to the execution of the document.
4. Must not be blind, deaf or dumb
These three disabilities need not concur.
Ferdie: These disabilities actually impair your communication skills
and we said that the will is now the dead man talking through the
will or through the witnesses. So if the witnesses are somehow
impaired in so far as communication is concerned, they are
disqualified.
5. Must be domiciled in the Philippines
Question – What is domicile in the context of succession law as
opposed to domicile in election law were domicile is synonymous
with residence?
Ans – Domicile means place of habitual residence.
Paras: But if a Filipino in the US wants to execute a notarial will in
accordance with the Philippine laws, his witnesses NEED NOT be
domiciled in the Philippines as the will is being made in the US.
Reasons for requiring domicile:
(1) For assurance that the witness will be available at the time
the will is presented for probate.
Are you not allowed to leave the country after the execution? You are
allowed. Because it will impair your right to travel. Anyway, you do not
know when the will is probated.
(2) Likeliness of personal acquaintance with the testator.
34 | U N I V E R S I T Y O F S A N C A R L O S
Because most probably, the testator will get person who are personally
acquainted with him as witnesses.
6. Must not have been convicted of falsification of a
document, perjury, or false testimony
Take note:
A. The list of crimes is exclusive (only limited to the three)
B. There has to be conviction with finality
C. The common denominator in all these crimes is mental
dishonesty
Question – If you’re convicted of Estafa (which involves mental
dishonesty) with finality, are you not going to be disqualified?
No because the crimes are exclusive. But your credibility as a witness might
be affected in court.
Effect of pardon:
If based on pure innocence, then he is qualified to be a witness.
Relevant Codal Provisions
Qualifications
Art. 820. Any person of sound mind and of the age of eighteen years or
more, and not blind, deaf or dumb, and able to read and write, may be
a witness to the execution of a will mentioned in Article 805 of this Code.
Disqualifications
Art. 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document,
perjury or false testimony.
SUBSEQUENT INCAPACITY
What if later on, after the attestation, the witness loses a
qualification? What happens to the will?
It does not invalidate the will. What is important is that during the time
of the execution, the witnesses possess these qualifications.
TN: The will can still be probated.
What is the difference between the capacity of a witness to the
court and the capacity of a witness a will?
The general qualifications for a witness to the court are the ability to
perceive and to communicate your perception. You can be deaf or blind
because you still have your other senses. But if you are a witness to a
will and you are impaired, insofar as communication skills are concerned,
you are disqualified.
Why are there more qualifications for a witness than the
testator?
Because witnesses have to guard against fraud and it is the dead man
talking through the witnesses.
Why are there only few qualifications for a testator?
When you transmit a property through a will, it is an act of ownership.
If there are more qualifications for a testator, you are going to restrict
such act of ownership.
Relevant Codal Provision
Art. 822. If the witnesses attesting the execution of a will are competent
at the time of attesting, their becoming subsequently incompetent shall
not prevent the allowance of the will.
CONFLICT OF INTEREST
Can a notary public be a witness?
No, because it results to conflict of interest and it is absurd for him to
acknowledge something before himself. And there will also be conflict of
interest because he acknowledges something that he will benefit from.
Can a witness inherit?
No, in so far as the free portion of the estate is concerned but if he is a
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

compulsory heir (he can be one of the three witnesses), he cannot be

deprived of his legitime.
OR he can also inherit if there are 3 other witnesses who are qualified.
Is the witness the only one disqualified here to inherit?
No, the disqualification extends to the witness’
1. Spouse
2. Parent
3. Child
4. Anyone claiming the right of said witness, spouse, parent or child
(i.e. creditor)
A creditor can be a witness but he cannot inherit. The amount of money
he is going to recover is not because of him being an heir (not an
inheritance) but because he is a creditor who must be paid.

Relevant Codal Provisions

Devisee or legatee as witness
Art. 823. If a person attests the execution of a will, to whom or to whose
spouse, or parent, or child, a devise or legacy is given by such will, such
devise or legacy shall, so far only as concerns such person, or spouse,
or parent, or child of such person, or any one claiming under such
person or spouse, or parent, or child, be void, unless there are three
other competent witnesses to such will. However, such person so
attesting shall be admitted as a witness as if such devise or legacy had
not been made or given.

Creditor as witness
Art. 824. A mere charge on the estate of the testator for the payment
of debts due at the time of the testator's death does not prevent his
creditors from being competent witnesses to his will.

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 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
REVOCATION OF WILLS
WHEN REVOKED
WHERE REVOKED
NATURE OF REVOCATION
Wills are revocable because it is essentially AMBULATORY. Which
means that it revocable at any time. You can even revoke a will even if it
has already been probated. For as long as you are still alive.
Exceptions: Incapacitated, False OR illegal cause
General rule: The right to revoke a will is absolute .
Exceptions:
1. Testator becomes incapacitated (i.e. becomes insane, convicted of
a crime with civil interdiction).
2. Revocation is based on a false cause or illegal cause.
False Cause- Mistake on the part of testator.
Ex- the revocation is voided because there was a mistake on
the reason why the will was revoked.
Illegal Cause- against the law.
Ex-
For both instances, it means that the revocation was false or illegal so
that the WILL IS ACTUALLY VALID. It presupposes that there is a valid
will.
Remember there is an “OR” which means that either of the causes may
exists. But in the context of succession, once there is a false cause, there
is an illegal cause. The order is not disjunctive as to give you options. But
it just alternative word.
Can the decedent say “This is my last will and I will never revoke this”?
No. cannot waive the right to revoke since it is absolute. Cannot be
restricted.
Can present a will for probate during your lifetime. Can still revoke even
probated. Right to revoke is absolute.
What if a will was already presented for probate and allowed
with finality by the court, and here comes a codicil revoking the
will already allowed by the court with finality. Is that allowed?
Yes. Even if there is already finality as to the allowance of the will, it can
still be revoked because the right to revoke is absolute except for those
two instances.
WHEN REVOKED
A will can be revoked anytime before the death of the testator
Except: you already lose the capacity to revoke (i.e. of unsound mind).
Age cannot prohibit you from revoking unless decay of mental
faculties is already advanced.
May a valid will be revoked by an invalid and ineffective will?
No. Express or implied revocation of a will presupposes that the new will
is valid.
What if it is a valid but inoperative will?
Yes, for as long as it is valid. A will is inoperative as when there is
repudiation by the heir.
Relevant Codal Provisions
Art. 828. A will may be revoked by the testator at any time before his
death. Any waiver or restriction of this right is void.
Art. 832. A revocation made in a subsequent will shall take effect, even
if the new will should become inoperative by reason of the incapacity of
the heirs, devisees or legatees designated therein, or by their
renunciation.
WHERE REVOKED
A will may be revoked anywhere, subject to the following rules:
Filipino and domiciled in PH and revoked within PH: law of Philippines
36 | U N I V E R S I T Y O F S A N C A R L O S
Filipino and Domiciled in the PH but he revoked the will OUTSIDE OF PH:
A) revoke by virtue of PH law or
B) where the revocation was made.
Filipino and NOT domiciled in PH but revoked OUTSIDE OF PH:
A) where will was made
B) where revoking was made
Revocation made outside the Philippines
1. If the person is domiciled in the Philippines
A. Follow Philippine law, or
B. Follow the general rule of lex loci celebrationis of the
revocation (Art. 17)
2. If not domiciled in the Philippines
A. Follow law of the place where the will was made, or
B. Law of the place where the testator was domiciled at the time
Revocation made in the Philippines
Follow Philippine laws (regardless of domicile).
Relevant Codal Provision
Art. 829. A revocation done outside the Philippines, by a person who
does not have his domicile in this country, is valid when it is done
according to the law of the place where the will was made, or according
to the law of the place in which the testator had his domicile at the time;
and if the revocation takes place in this country, when it is in accordance
with the provisions of this Code.
HOW REVOKED
A will may be revoked in three ways:
1. By implication or operation of law
2. By virtue of an overt act
3. By virtue of a revoking will or codicil
BY IMPLICATION OR OPERATION OF LAW
A. Implication of law – You have to do something (i.e. selling the
property)
Example: When after the testator has made a will, he sells, or
donates the legacy or devise.
Ex- you made a will giving a property to your wife, later on, she did
something with someone else. By operation of law, she will not be entitled to
the property because she gave a cause for legal separation. That amounts to
a revocation.
Cannot the heir say that he cannot revoke because there is a promise to give
the property? No.
B. Operation of law – it is without you having to do anything.
Example: When one of the compulsory heirs has been preterited
or omitted, the institution of heir is void.
How can preterition become revocation by operation of law?
Ex. You have three children. You don’t like one so you omit him from
inheriting. Not allowed because that child is a compulsory heir. So that, it
will amount of the revocation of the will in so far as the legitime of
that heir is concerned.
Reason why the law allows implied revocation:
By the testator’s actions, the law presumes that he changed his mind.
BY VIRTUE OF AN OVERT ACT
A. Burning
B. Tearing
C. Cancelling or obliterating the will
CONFLICT OF INTEREST
Requisites:
1. There must be an overt act specified by law.
2. There must be a completion at least of the subjective phase of the
overt act.
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017
In the viewpoint of the testator, he thinks that the revocation has already
been made by the overt act.
“Subjective Phase” is when the testator considered the will revoked. This
is a state of mind which can proven only by the OVERT ACT.
Which prevails over the belief of the testator that it has been revoked or
the actual completion of the act? It is the intent of the testator that
prevails over any evidence that it outside of his mind. But if we only
based it on intent, it is difficult to prove so we must base it along with
the physical action which will serve as the basis.
3. There must be animus revocandi or intent to revoke.
4. The testator at the time of revoking must have the capacity to
make a will.
5. The revocation must be done by the testator himself, or by some
other person in his presence and by his express direction.
Do you need to personal do these overt act. No as long as it is done in
the presence and with express direction.
Presence- means that the testator actually see.
Ex- the testator said “Go to Niagara and throw this there” Will that
suffice?
When you say intent to revoke, does it precede the overt act? Yes. When
there is that intent it precedes the overt act.
But what if initially there was not intent to revoke but there was an overt
act, can you ratify the overt act? Yes.
Ex- natagak ang will sa pool, no intention revoke, but later on ni ingon ka
na “sge nalang wala naman ta mahimo” This is ratification.
The intent need not be prior to, it can be after by way of
ratification.
Burning
Even if only a part of the will is burnt, it is already considered ‘burning’
in so far as revocation by an overt act is concerned.
TN: If the will was merely scorched or only the bottom was burned but
the contents thereof can still be read – it is considered burning as long as
the testator thinks that it is already burnt and there is intent to revoke by
the testator.
But if you are the judge are you going to consider the will revoked?
Sir: it so hard to gage the intent because that it a state of mind. The best
evidence if the actual physical condition.
What if I burn the edges just to make it more artistic?
Tearing
This includes cutting and shredding.
Does not matter how many times you tore it apart for as long as he has
already completed the subjective phase.
Q: What about crumpling with intent to revoke?
(No conclusive answer from Sir)
Paras: Crumpling does not constitute revocation, even though there is
animo revocandi as it is not one of the overt acts provided by law.
However, in Roxas v. Roxas, the court impliedly allowed crumpling as
one of the overt acts, provided there is animo revocandi.
Q: What if what was torn was only the signature, what’s the effect?
Ans – The will is revoked because if you touch the signature, it goes to
the very heart of the will.
TN: The number of times and parts it was torn does not matter.
Cancelling or obliterating the will
Cancelling means putting a line or an X that signifies that the testator is
cancelling the will. The will may still be legible.
What if you just write “this will is revoked”. The intention of the testator
will prevail.
Obliterating means making the will unreadable or unintelligible.
Q: Does the testator need to do these overt acts personally?
Ans – No, it can be done by other persons for as long as it is done in his
presence and with his express direction.
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Q: Can I just call you and ask you to tear apart my will?
Ans – No, in his presence means physical presence. (So, even if there is
a webcam, it’s still not in his presence).
Q. What if my will was torn without my consent but later on I realized it
was torn and said, I might even pay him for tearing my will. Can that be
done? Can I ratify what he did?
Ans – Yes, because the right to revoke is absolute and the intent of the
testator is the supreme law in succession.
Q: What if a child is recognized in a will but the will was revoked, does
it affect the recognition?
Ans – No, because recognition of a child is irrevocable.
Are the list of overt acts exclusive? No. there are other acts that can be more
effective it physically revoking the will. The supreme law of succession is the
intention of the testator.
Other acts: Throw it away, flush down the toilet, throw in the sea. Wetting
and it got blotted out.
How to know: if the overt act will show the intent of the testator that the will
is revoked.
BY VIRTUE OF A REVOKING WILL OR CODICIL
A. Express revocation, by making reference to the previous will.
If there is a provision that revokes in that will or codicil.
It does not have to contain the exact words “I revoke”. The testator can use
other words and it can still be considered as express revocation. It’s just how
you write it.
B. Implied revocation, when there is irreconcilable inconsistency
between the codicil and the previous will.
There is an irreconcilable inconsistency between the two wills.
Ex- the property given to A in the old will is now given to B in the new will.
Is implied revocation favored?
No, because it will obscure the intention of the testator.
You have a notarial will and you want to revoke that, but you cannot
anymore afford a lawyer. You can revoke it through holographic will or vice
versa. The notarial lawyer cannot refuse. He has not interest in that.
May a notarial will be revoked by a holographic will or vice
versa? Yes.
May a revocation be subject to a condition?
Yes, because the law wants to facilitate the intention of the testator.
Because the right to revoke is absolute.
Can there be partial revocation?
Yes, such as in implied revocation due to irreconcilable consistency.
Revocation extends only to the provisions that are irreconcilably
inconsistent with the subsequent codicil, and not the entirety of the will.
Relevant Codal Provision
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case
of wills; or
(3) By burning, tearing, 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. If burned,
torn, cancelled, or obliterated by some other person, without the
express direction of the testator, the will may still be established,
and the estate distributed in accordance therewith, if its contents,
and due execution, and the fact of its unauthorized destruction,
cancellation, or obliteration are established according to the Rules
of Court.
VOID REVOCATION
A revocation of a will is null and void if based on:
1. False cause
2. Illegal cause
FALSE CAUSE
 WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

Example: The testator instituted A as an heir. Because the testator
thought A died, the property was given to B. However, the testator
subsequently found that A was still alive. The property goes to A
because the revocation was made on a false cause.
ILLEGAL CAUSE
Example: Revocation was made for the purpose of prejudicing the share
of the compulsory heir in the legitime.
Ferdie: The cause limits you. The cause removes your right to revoke.
You cannot just indiscriminately revoke a will out of anything. If it is a
false cause or illegal cause, the revocation is deemed void.
Art. 805 like defect in the number of witnesses, lack of or fatal defect in
the attestation, lack of acknowledgment, etc. It does not refer to vitiated
consent of lack of testamentary capacity although these are included in
the phrase “extrinsic validity.”
Relevant Codal Provisions
Art. 835. The testator cannot republish, without reproducing in a
subsequent will, the dispositions contained in a previous one which is
void as to its form.
Art. 836. The execution of a codicil referring to a previous will has the
effect of republishing the will as modified by the codicil.

What if you do not put a cause to revoke the will?

Ferdie: That is the safest thing to do, provided you do not touch the X has a will. Y found it and flush it down the drain. What is the remedy
legitime. If it is the voluntary heir, there is no need to provide a reason of X? – He can make another will or republish another will. Since the will
because it is out of pure liberality. But for compulsory heir, sufficient cannot anymore be found, it implies that he revokes such will.
cause for disinheritance.
What if the revoked will (without the consent of decedent) can still be
Relevant Codal Provision
recovered but torn into pieces? What is the remedy? The best remedy is
Art. 833. A revocation of a will based on a false cause or an illegal cause
to make another will. But what if the decedent is now dead? The Rules
is null and void.
of Court Applies- Evidence. Through that, the contents and due
VOID REVOCATION
execution can still be proven.
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive
use of EH 404 2016-2017
4|UNIVERSITYOFSANCARLOS What if the will you thought was lost reappeared? It would depend if
there was already a subsequent will. If there is, that will prevails.
IMPLIED REVOCATION
For as long as there is a latter will, that will prevail. Regardless of the
Relevant Codal Provision
reappearance.
Art. 831. Subsequent wills which do not revoke the previous ones in an
express manner, annul only such dispositions in the prior wills as Revocation of will does not affect the recognition of a child. That revoked
are will may still be presented as evidence in recognition of the child. The
inconsistent with or contrary to those contained in the latter recognition is irrevocable.
wills. XP: if he is going to revoke because the child was not his as long

REVOCATION OF REVOCATION
What is the revoking will is likewise revoked? Does it revive the first?
Rules:
1. If the first will is expressly revoked by a second will, the revocation
of the second will does not revive the first will.
2. If the first will is impliedly revoked by a second will, the revocation
of the second will shall revive the first will.
3. In order to revive a will that has already been expressly revoked,
there must be republication through re-execution or reference by
a codicil.

Difference between republication and revival

Republication is an act of the testator.
On the other hand, Revival is one that takes place by operation of law.

Relevant Codal Provision

Art. 837. If after making a will, the testator makes a second will
expressly revoking the first, the revocation of the second will does not
revive the first will, which can be revived only by another will or codicil.

EFFECT OF REVOCATION
Relevant Codal Provision
Art. 834. The recognition of an illegitimate child does not lose its legal
effect, even though the will wherein it was made should be revoked.
HOW REPUBLISHED
Rules:
1. If the will is void as to its form, republication shall only be done by
copying in a subsequent will the dispositions contained in a
previous one.
2. If the will is valid as to its form but is already revoked, republication
may done by either:
A. Copying in a subsequent will the dispositions contained in the
previous will; or
B. Execution of a codicil which makes reference to the revoked
will.
TN: According to Paras, “form” in Art. 835 refers to those covered by
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WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the exclusive use of EH 404 2016-2017

8. Acknowledged before a notary public by the testator and the witnesses.

REQUIREMENTS FOR A NOTARIAL WILL:

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