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CIVIL LAW REVIEW I – April 2, 2017

Death in Succession – extinction of life; it is not only limited to natural death but it also covers
presumptive death
Q: When is a person presumed dead for purposes of succession?
Art. 390. The absentee shall not be presumed dead for the purpose of opening his succession till
after an absence of ten years. – He is deemed to have died on the last day of the 10-year period.
Any disposition of the property during the 10-year period is not valid because it is a disposition of
future inheritance which is not allowed by law.

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.

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;

(2) A person in the armed forces who has taken part in war, and has been missing for four

(3) A person who has been in danger of death under other circumstances and his existence
has not been known for four years.

- Death is deemed to have occurred from the date the person went missing (1 st day of 4-year
absence). It will retroact on the date the person went missing. Any disposition within the 4-
year period is valid because death is deemed to have occurred at the time of his
disappearance and the transmission of successional rights will also retroact on the date of
his disappearance.

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.

*For all purposes except remarriage, a judicial declaration of presumptive death is not required. A
JDPD is required by law under Art.41 of the FC. Under the CC, no JDPD is necessary for all
purposes because the law provides for the presumption- the presumption of death is by operation
of law.

Q: In order for a contract to be considered void under Art. 1347 of the CC, what are the requisites
that must be present? When can we say that the contract involves future inheritance?

A: 1. The succession has not yet been opened

2. The object of the contract forms part of the inheritance
3. The promissor has, with respect to the object, an expectancy of a right which is purely
hereditary in nature.

1. Testamentary Succession is that which results from the designation of an heir, made in a will
executed in the form prescribed by law.
-Beneficiaries are: Heir (called to the succession by will or by operation of law), Devisee(real
property is given by will), Legatee (personal property is given by will)

The importance of the distinction between the heir, devisee and legatee is important because if
in case of preterition of a compulsory heir, it will have the effect of annulment of the institution
of heirs but the devise and legacy will be valid.

Voluntary Heir/Instituted Heir/Testamentary Heir – those who are instituted by the testator in
his will, to succeed to the inheritance or to the portion thereof of which the testator can freely
dispose; their right to the succession depends entirely upon the will.

2. Legal or Intestate Succession- That which takes place if a person dies without a will, or with a
void will, or one which has subsequently lost its validity. The heir in legal succession is called
legal or intestate heir.

3. Mixed Succession – That effected partly by will and partly by operation of law.

4. Compulsory Succession – That which takes place compulsorily by operation of law with respect
to the legitime in favor of compulsory heirs.

Testator - If the decedent left a will

Decedent/Deceased – applies generally to the person whose property is transmitted through
succession, whether or not he left a will.

Prior to the death of the decedent, the interest of the heir over the inheritance is merely inchoate or
a mere expectancy.

Q: In order for transmission of ownership to arise by reason of succession, what are the elements
that are necessary?
A: There must be an acceptance of the inheritance. The moment of death is the determining factor
when the heirs acquire a definite right to the inheritance, whether such right be pure or contingent.
The right of the heir to the property of the deceased vest in them even before judicial declaration of
their being heirs in the testate or intestate proceedings.

Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent.

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. It is a personal, solemn,
revocable and free act by which a capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his death.

Right to make a will is purely statutory under Art. 783 which states that a person is only “permitted”
with the formalities prescribed by law, to dispose of his estate effective upon his death through a
will. The right to enter into a contract is a constitutional/inherent right and the limitations are provided
in the CC.

Making of Wills is Purely Personal Act

What may not be delegated:
1. The designation of heirs, devisees or legatees
2. The duration or efficacy of such designation
3. The determination of the portions they are to receive, when referred to by name.
Exceptions to rule of non-delegability:
1. The manner of distribution of specific property or sums of money that the testator may leave
in general to specified classes or causes, provided that the testator has already determined
the property or amount of money to be given;
2. The designation of the persons, institutions or establishments to which such property or sums
are to be given or applied, provided that the testator has already determined the class or
cause to be benefited.

Q: If the testator will appoint an executor who will be in-charge of distributing the properties of the
decedent, will that be a violation of the rule that the making of a will is purely personal act?
A: Yes. It is the making of the disposition or the exercise of the disposing power that is not subject
to delegation.

Latent (Intrinsic) Ambiguity – kind of ambiguity which cannot be seen from a mere perusal of the
will but which appears only upon consideration of extrinsic circumstances. It is not apparent on the
face of the will. It may exist when there is an imperfect description, or when no person or property
exactly answers the description. Ex. Legacy to my cousin “Anna” but there are three cousins named

Patent (Extrinsic) Ambiguity – kind of ambiguity which appears upon the face of the instrument.
It may exist when an uncertainty arises upon the face of the will, as to the application of any of its
provisions. Ex. Devise which reads “some of the eleven children of my only brother”.

Ambiguities, whether latent or patent, shall be resolved by:

1. Determining the intention of the testator by examining the words of the will;
2. Resorting to parol or extrinsic evidence.

Under the NCC, extrinsic evidence is admissible to show the situation of the testator and all the
relevant facts and circumstances surrounding him at the time of making the will for the purpose of
explaining or resolving an ambiguity, whether latent or patent. However, such extrinsic evidence
CANNOT include oral declarations of the testator as to his intention. Hence, by implication, written
declarations made by the testator outside of the will are admissible.

Philippine laws do not recognize the validity of nuncupative wills which are oral wills declared or
dictated by the testator and dependent merely on oral testimony.

Kinds of Wills: Notarial or Attested or Ordinary Will and Holographic Will

Formal Req’ts Common to Both Wills

1. The forms and solemnities (extrinsic evidence) of wills shall be governed by the laws of the
country in which they are executed.
2. Wills must be in writing

Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Q: A resident of Texas living in the Philippines together with a Filipina has a child without the benefit
of a marriage. He died leaving properties in the Phil and Texas. The brother claimed to be the sole
heir based on Texas law but the child objected that under Phil law, he is a compulsory heir. Under
Texas law, no legitime and compulsory heir. Which law will apply?
A: Texas law. Art. 16 and Art.1039 of the CC. The issue is order of succession.

Q: In the situation above, the legitimate foreigner father executed a will not naming the illegitimate
child in his will. Under Texas law, no concept of legitime or compulsory heir. Prior to the death of
the father, the Texas law was amended. Under the new law, an illegitimate child who has been
acknowledge becomes a compulsory heir was likewise introduced. The legitimate father was not
able to change his will. If that is the problem, which law will apply?
A: The law at the time of the decedent’s death because that is when the right of succession arises.

Q: At the time of execution of the will, the formalities governing the will’s execution does not permit
a nuncupative will. A video recording was made by a certain person naming his intended
beneficiaries in the event of his death. At the time of the video recording, the law does not allow a
will other than in writing but prior to the death of the decedent the law was changed and now allowing
a will in the form of video recording. Is the will valid?
A: No. 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.

Q: The will was executed in Ilocano dialect known to the testator but the witnesses do not know
Ilocano. The lawyer who made the will explained to them in English and those were recited in the
attestation clause. Is the will valid?
A: Yes. It is not required in notarial/attested wills that the will or its attestation clause be executed in
a language or dialect known to the witnesses. The last paragraph of Art. 805 of the NCC is clear
that the attestation clause need not be in a language known to the witnesses. If the attestation clause
is in a language not known to the witnesses, there is a further requirement that the same be
interpreted to them.

Q: The fact that the will is executed in the language known to the testator is not stated in the
attestation clause. Is the will void?
A: No. It is not required to be stated in the will itself or in its attestation clause that it was executed
in a language or dialect known to the testator. This fact can be established by extrinsic evidence or
proof aliunde.

Q: The attestation clause of the will recites that the will was executed in a language known to the
testator. May interested persons contest on the validity of the will on the ground that it is not written
in the language known to the testator? Can they prove that the recital in attestation clause is not
A: Yes. This fact can be established by extrinsic evidence or proof aliunde. In fact, it will be presumed
that the will was executed in a language or dialect known to the testator of the will was executed in
a certain locality, in the dialect used in such locality and that the testator was a resident of that

HOLOGRAPHIC WILL – a will which must be entirely written, dated, and signed by the hand of the
testator himself.

Requirements for validity:

1. Entirely handwritten by the testator
2. Dated
3. Signed by the hand of the testator himself

If words written by another person were inserted among the words written by the testator, the
following shall be the consequences:
a. If the same was made after the execution of the will and without the consent of the
testator such insertion is considered as not written;
b. If the same was made after the execution of the will but with the consent of the testator, the
will remains valid but the insertion is void
c. If the same was made after the execution of the will but validated by the testator by his
signature thereon, then the insertion becomes part of the will, and the entire will
becomes void
d. If the insertion is made contemporaneous to the execution of the will, then the will is void
The end of the will refers to the point where the last testamentary disposition ends or at its logical
In a holographic will, the signature must be at the end of the will. This can be inferred from Art. 812
of the NCC by the reference to dispositions written “below his signature”.

Attestation clause is part of the will since it is a requirement in the probate of the will being one of
the formal requirements in the execution of a will.

The testator must sign at the last disposition in order to prevent additional disposition and to signify
that it is the end. The signature at the left portion is for identification.

An unsigned attestation clause is not an attestation clause. The signatures of the witnesses on the
left hand margin is for a different purpose, that is for identification satisfying the requirement of
subscription. It will not satisfy the requirement of attestation which is a different requirement.

The law does not require that the attestation clause be contained in a single clause. Thus, where a
will did not contain a separate and independent attestation clause, but the concluding paragraph of
the body of the will was written in the tenor of an attestation, stating the facts required by law to be
set forth in an attestation clause, the same is a sufficient attestation clause.

Even when the recital in the attestation clause appears to have been made by the testator himself
in the first person and not by the witnesses, the attestation clause is still sufficient if it contains all
the facts required to be stated and is signed by all the witnesses together with the testator.

A mere jurat is fatally defective. A will which does not contain an acknowledgment but a mere
jurat is fatally defective, as the express requirement of Article 806 of the NCC is that the will be
acknowledged and not merely subscribed and sworn to.

Q: What if the witness ID is expired at the time of the notarization, is the will valid?
A: Will is not valid because the acknowledgment is invalid.