NOTES ON SUCCESSION KEY TERMS AND CONCEPTS

NOTES ON SUCCESSION Pre-Midterm Coverage Succession by Paras; Atty.
Mayol
De#inition of Terms person or persons to take the place of the heir or
heirs originally instituted; conditional institution of
Succession: a mode of acquisition by virtue of which heir
the property, rights and obligations to the extent of
the value of the inheritance of a person are Simple substitution: the second heir takes the
transmitted through his death to another or others inheritance in default of the Girst heir by reason of
either by his will or by operation of law incapacity, predecease, or renunciation.
Simple or common (sustitucion vulgar): also known

Donation inter vivos: gifts made and intended by the
as vulgar; through renunciation, incapacity of original
donor to take effect during his lifetime and therefore
heir
subject to donor’s tax; takes effect during the donor’s
lifetime or independently of the donor’s death,
Brief or compendious (sustitucion brevilocua o
meaning that the naked ownership of the donated
compendiosa): brief-‐ two or more take the place of
properties passes to the donee during the donor’s
one; compendious-‐ one takes the place of two or
lifetime, not by reason of his death but because of the
more
deed of donation
Reciprocal (sustitucion reciprocal): instituted heirs
Donation mortis causa: nothing is conveyed to or
become substitutes of each other
acquired by the donee until the death of the donor-‐
testator; donation made in contemplation of the
Fideicommissary substitution: that by virtue of which
donor’s death, meaning that the full or naked
a testator institutes a Girst heir, and charges him to
ownership of the donated properties will pass to the
preserve and transmit the whole or part of the
donee only because of the donor’s death
inheritance later on to second heir.
Inheritance: properties or rights acquired by the heir,

Condition-‐ future or uncertain even, or a past event
legatee, or devisee; obligations
unknown to the parties, upon which the performance
of an obligation depends
Estate: all properties and interests of the decedent at
the time of his death
Term-‐ the day or time when an obligation either
becomes demandable or terminates
Legacy: personal property
Modal institution 
Devise: real property
-‐ when the institution of an heir is made, for a certain
purpose or cause 
Legatee: one who is given a personal property
-‐ the statement of the object of the institution or the
through a will
application of the property left by the testator or the
charge imposed upon him 
Devisee: one who is given a real property through a
-‐ “modo” signiGies every onerous disposition by which
will
the obligor imposed upon another and thus limited
his promise, such as demanding a loan in exchange
Institution of heir: an act by virtue of which a testator
for what the other person receives.
designates in his will the person or person who are to
succeed him in his property and transmissible rights
Potestative condition-‐ one the fulGilment of which
and obligations.
depends purely on the heir. He must perform it
personally. Nobody else must do it for him.
Unknown person: one who cannot be identiGied from
the will; not one who is a stranger to the testator.
Casual Condition: depends upon chance and/or upon
the will of a third person
Preterition or pretermission: the omission, whether
intentional or not, of a compulsory heir in the
Mixed Condition: depends partly both upon the will
inheritance of a person.
of the heir himself AND upon chance and/or the will
of a third person.
Substitution: appointment of another heir so that he
may enter into the inheritance in default of the heir
originally instituted; designation by the testator of a
dennisaranabriljdiii
TO GOD BE THE GLORY! ! of 26
1 ! University of San Carlos - College of Law
NOTES ON SUCCESSION Pre-Midterm Coverage Succession by Paras; Atty. Mayol
Suspensive Term: A suspensive term is one that Disinheritance: the process or act, thru a
merely suspends the demandability of a right. It is testamentary disposition of depriving in a will any
sure to happen. A suspensive condition however compulsory heir of his legitime for true and
suspends, not merely the demandability, but even the lawful causes.
acquisition itself of the right.
Reconciliation: the mutual restitution of feelings to
Caucion Muciana: the bond or security referred to in the status quo. It is indeed the resumption of friendly
Art. 879; given in favor of those who would get the relations.
property if the condition be not complied with (like
the intestate heirs, or the substitute, etc.) Legal succession: that kind of succession prescribe by
law, which takes place when the expressed will of the
Institution With a Term decedent has not been set down in a will.
a. suspensive term or ex die-‐ effects begin from a
certain day (“beginning Jan 2009”) Rule on Proximity: favors the relatives nearest in
b. resolutory term or in diem-‐ effects cease on a degree to the decedent and excludes the more distant
certain day (“up to Jan 2009”) ones except when and to the extent that the right of
c. ex die in diem-‐ from a certain day to a certain day representation can apply.
(“beginning Jan 2009 until Jan 2010”)
Direct line: constituted by the series of degrees
Legitime: part of the testator’s property which he among ascendants and descendants
cannot dispose of because the law has reserved it for
certain heirs who are, therefore, called compulsory Collateral line: constituted by the series of degrees
heirs. among persons who are not ascendants and
descendants who come from a common ancestor
Systems Affecting the Legitime (LTfTr)
a. System of Legitime (Partial Reservation)-‐ a part is
for the legitime, a part is for the free portion Full blood relationship: existing between persons
b. System of Total Freedom of Disposition-‐ there is who have the same father and mother
no legitimate; everything is free
c. System of Total Reservation-‐ everything goes to
Half-‐blood relationship: existing between persons
the compulsory heirs, as long as there is at least who have the same father, but not the same mother,
one. Only when there is none is there freedom to or the same mother but not the same father
dispose.
Compulsory: Compulsory heir are never compelled to Accretion: if there are several relatives of the same
accept the legitime -‐ they may accept or reject-‐ for no degree, and one or some of them are unwilling or
one can compel another to receive a gift or an incapacitated to succeed, his portion shall accrue to
economic advantage. They are called compulsory, the others of the same degree, save the right of
only because the testator cannot disregard them representation when t should take place; right based
on the presumed will of the deceased that he prefers
actio ad supplendam legitiman-‐ right of completion to give certain properties to certain individuals,
of legitime rather than to this legal heirs.
Reserva Troncal: contemplates a situation where an Representation: a right created by Giction of law, by
ascendant who inherits from his descendant any virtue of which the representative is raised to the
property which the latter may have acquired by place and degree of the person represented, and
gratuitous title from another ascendant, or a brother acquires the rights which the latter would have if he
or sister, is obliged to reserve such property as he were living or if he could have inherited.
may have acquired by operation of law for the beneGit
of relatives who are within the third degree and who
belong to the line from which said property came. Per stirpes: inheritance by group, all those within the
group inheriting in equal shares.
Free Disposal/Portion: may be the object of a charge,
a substitution, or a condition. The so-‐called “free Capacity to Succeed: the ability to inherit and retain
portion” is not exactly free for if the surviving spouse property obtained mortis causa
and/or illegitimate children are present, the “free
portion” is burdened by their legitimes. Administrator pendente lite: or special administrator;
one who is appointed in the meantime to take charge
of the estate, where there is delay in the appointment Succession -‐ transfer
of the regular executor or administrator
Inheritance, Inclusions.
CHAPTER 1 a. property
General Provisions b. rights not extinguished by death
c. obligations not extinguished by death (to the
Article 774. Succession is a mode of acquisition by extent of the value of the inheritance)
virtue of which the property, rights and obligations to
the extent of the value of the inheritance, of a person Note: A person has no obligation to pay for the debts
are transmitted through his death to another or others of his stepfather. (Nacar v. Nistal)
either by his will or by operation of law. (n)
Succession Mortis Causa, deGinition.  Properties

a mode of acquisition by virtue of which the property, Transfer of both real and personal properties,
rights and obligations to the extent of the value of the including accessions to the property accruing thereto,
inheritance of a person are transmitted through his from the moment of death to the time of actual
death to another or others either by his will or by receipt by the transferee.
operation of law
Notes:
Elements of Succession Mortis Causa a. Ownership is transferred at the moment of death.
a. mode of acquisition (or ownership) b. Properties NOT BELONGING to the estate must be
b. transfer of property, rights and obligations excluded, for they are not part of the inheritance.
c. value of the inheritance c. The issue of the ownership of said properties
d. transmission from one person to another should be decided Girst, and the conjugal
e. transmission thru death properties liquidated, or at least the surviving
f. by will or by operation of law spouse should agree as to which properties he or
she does not mind to the sold. (Anderson v.
Bases of Succession Perkins)
a. natural law -‐ obliges a person to provide for those
he would leave behind Rights
b. socio-‐economic postulate -‐ prevents wealth from a. some rights are extinguished by death; some are
becoming inactive or stagnant not.
c. implicit attributes of ownership -‐ if a person is b. Rights extinguished by death (not part of the
not allowed to dispose of his property, such estate, not transmissible mortis causa) 
disposal to take effect when he is already dead -‐ in transmissible personal rights (appertaining to
family rights, marital and parental authority,
support, action for legal separation, partnership,
Article 775. In this Title, "decedent" is the general term agency, life annuity) 
applied to the person whose property is transmitted -‐ right to claim acknowledgement or recognition
through succession, whether or not he left a will. If he as a natural child 
left a will, he is also called the testator. (n) -‐ right to hold public or private ofGice or job
c. Rights not extinguished by death 
Decedent, deGinition. -‐ right to bring or continue an action for forcible
the person whose estate is to be distributed, either: entry or unlawful detainer 
a. testator -‐ if he left a will; or -‐ right to compel the execution of a document
b. intestate -‐ if he left no will necessary for convenience 
-‐ right to continue a lease contract either as lessor
or lessee 
Article 776. The inheritance includes all the property, -‐ property right in an insurance policy is a vested
rights and obligations of a person which are not interest and as such is transmissible by
extinguished by his death. (659) hereditary succession. (Note: Life insurance
policies or the right to the indemnity belongs to
Inheritance v. Succession the beneGiciary, transmissible to his own heirs;
Inheritance -‐ property or right acquired; and NOT to the insure, or the latter’s own heirs.)
Succession -‐ manner by virtue of which the property
or right is acquired; “descent” Obligations not extinguished by death
General: All obligations are transmissible.
Administration v. Succession Exception: Unless purely personal or non-‐
Administration -‐ deals with deceased person’s transferable by law or contract.
property according to law
Notes: Question: Decedent dies on January 26, 1992; his

a. The children cannot be held personally liable, property was actually delivered to the heir on
despite the substation. The remedy of the February 26, 1995. When does the heir become the
plaintiff, the creditor, is to proceed against the owner of the said property?
estate of the deceased father. (Viardo v. Belmonte, Answer: January 26, 1992. It is not delivery that
et. al.) transfers ownership, but succession. Moreover, the
b. Claimants (creditors of the decedent) to the effects of an acceptance (of the inheritance) retroact
estate may not go against the individual to the moment of death.
properties of the decedent’s heirs; they must go
after the decedent’s estate. Presumed Death, two kinds.
c. Money debts are not inherited: the Court may a. Ordinary presumption or ordinary absence 
order the sale of sufGicient property for the An absentee (who disappears under normal
satisfaction of the debts and the heirs cannot conditions, there being no danger or idea of
question this. death) shall be presumed dead for the purpose of
d. That while the debts of the deceased still remain opening his succession -‐ at the end of ten years
unpaid, no residue may be divided among the (at the end of Give years in case he disappeared
heirs, legatees, and devisees. No residue may also after the age of seventy-‐Give); See Art. 390, CC
be divided among the creditors of said heirs b. Extraordinary presumption (extraordinary or
without Girst settling the debts of the deceased. qualiGied absence) 
(Litonjua v. Montilla) See Art. 391, CC -‐ qualiGied absence occurs (great
e. A creditor of an heir, who intervenes in the estate probability of death).
proceedings, cannot therefore ask the court to
sell the properties which the heir-‐debtor expects Effect of Absentee’s Return or Appearance
to receive. This is because the debts of the If the absentee appears, or without appearing his
deceased himself must Girst be paid. Then and existence is proved, he shall recover his property in
only then can we determine if there is a sufGicient the condition in which it may be found, and the price
residue left for the heirs or for the heirs’ of any property that may have been alienated or the
creditors. (supra) property acquired therewith; but he cannot claim
either fruits or rent.
When Judicial Administration is not essential
JA is not essential when the deceased left no pending Some effects of transmission of rights from death
obligations. To compel the submission of the property Prior to a person’s death, his heirs merely have an
inherited to judicial administration is unnecessary or inchoate right to his property. Therefore, during his
superGluous. lifetime, the heirs have no right of disposition or
alienation over said properties.
Article 777. The rights to the succession are Note: While it is true that “future” inheritance cannot
transmitted from the moment of the death of the be sold, it is valid for an heir, after the testator’s
decedent. (657a) death, to sell his share in the estate even pending its
liquidation, for here the inheritance is ‘present’, no
Conditions for the Transmission of Successional longer ‘future.’ (Mondonido v. Roda)
Rights
a. there has been a death (actual or presumed) No Necessity of prior declaration of heirship
b. rights or properties are indeed transmissible or If there are no pending settlement proceedings for
descendible the distribution of an estate, there is no necessity for
c. transferee is still alive (no predecease), willing a prior declaration of heirship before the heirs are
(no repudiation), is capacitated to inherit. allowed to begin an action arising from any right of
the deceased, such as the right to bring an action
Note: The rights to the succession are transmitted annul a deed of sale, or to bring about a partition.
from the moment of death of the decedent. The estate
of the decedent would then be held in co-‐ownership Note: Heirs may be sued, not as representatives of
by the heirs. The co-‐heir or co-‐owner may validly the deceased, but in their own right as OWNERS, and
dispose of his share or interest in the property this is so even without a prior declaration of heirship,
subject to the condition that the portion disposed of provided that there is no pend-‐ ing special
is eventually allotted to him in the division upon proceeding whereby the estate of the deceased is to
termination of the co-‐ownership. (Maria vda. de be settled. (Gayon v. Gayon)
Reyes v. CA)
Administration of the Estate
Actual Death When the heirs are all of legal age, and there are no
debts to be settled, there is generally no necessity to
appoint an administrator, and the heirs may enter

upon the administration of the property. Article 780. Mixed succession is that effected partly by
will and partly by operation of law. (n)
Note: The declaration of heirship must be made in an
administration proceeding, and not in an Mixed Succession
independent civil action. It is decisively clear that the Situation: Dennis made a will, disposing half of his
declaration of heirship can be made only in a special properties. If the will is later on declared null and
proceeding inasmuch as it involves the establishment void for lack of the proper signature, is this a case of
of a status or right. (Heirs of Guido and Isabel legal or mixed succession?
Yaptinchay v. Del Rosario) Answer: Legal -‐ the will being void, the entire estate
descends to the heirs by operation of law
Possession of Property both by Administrator and by
Heirs Article 781. The inheritance of a person includes not
The executor or administrator shall have the right to only the property and the transmissible rights and
take possession of the properties of the deceased so obligations existing at the time of his death, but also
long as it is necessary for the payment of the debt and those which have accrued thereto since the opening of
expenses of administration. Where there are no debts the succession. (n)
to be paid, the estate should pass to the heirs.
What Inheritance includes
When no transmission occurs a. the property, transmissible rights, and
If the heir instituted is incapacitated, repudiates the obligations
inheritance, or predeceases the testator, said heir b. those which have accrued thereto since the
inherits nothing. The same conclusion is reached opening of the succession (such as alluvium)
when although the heir is ready, willing, and able -‐  
the right is not transmissible or descendible -‐ as for Note: The accretions or accessions are not strictly
instance, the right to support. inherited for they form part of the estate only after
the heirs become the owners thereof; hence, properly
speaking, they are acquired by accretion (as incident
Article 778. Succession may be: of ownership under the law), not by succession.
(1) Testamentary; After-‐Acquired Properties

Property acquired by the testator between the time
(2) Legal or intestate; or the will is made and the time he dies, is NOT given to
the designated heir unless the contrary has been
(3) Mixed. (n) expressly provided. Such property is acquired PRIOR
to the death, not afterwards.
Mixed Succession
decedent may have died partly testate and partly
intestate. Article 782. An heir is a person called to the succession
either by the provision of a will or by operation of law.
Compulsory Succession Devisees and legatees are persons to whom gifts of real
or succession to the legitime and personal property are respectively given by virtue
of a will. (n)
Contractual Succession
marriage settlement Transferees in Testamentary Succession
a. Heirs  
-‐ if they succeed by universal title, that is, to all or
Article 779. Testamentary succession is that which a fraction or aliquot part of the properties, rights
results from the designation of an heir, made in a will and obligations 
executed in the form prescribed by law. (n) -‐ compulsory (if entitled to legitime) 
-‐ voluntary
Some rules on testamentary succession b. Legatees (personal property) and Devisees (real
a. may be done thru a will or thru a codicil properties) 
b. the will or codicil may be:  -‐ if they succeed by particular title to cash or to a
-‐ notarial (ordinary, attested, or acknowledged)  particular or speciGied item or thing in the
-‐ holographic (handwritten by the testator from inheritance
beginning to end, complete with date and
signature) Note: While there can be heirs in either testate, legal,
c. In case of doubt —> Testamentary is preferred or mixed succession, legatees and devisees can exist
only in testamentary succession.
a. Is this disposition by virtue of a will?

Transferees in Legal Succession b. Is Luis entitled to get the house now?
Legal or intestate heirs c. How will the house be disposed of?
Possibility of Dual Status  Answers:

If in a will, a compulsory heir is given more than his a. No, since it is supposed to take effect
legitime, he assumes a dual status: immediately. There was, therefore, no animus
a. insofar as his legitime is concerned -‐ compulsory testandi insofar as this provision is concerned.
heir b. No, unless he signiGies his acceptance, in the form
b. insofar as the excess is concerned -‐ voluntary prescribed by law for donations, and unless the
heir instrument be notarized as a public instrument.
c. In accordance with the rules on legal succession,
Note: In case an heir predeceases the testator, his in case the donation is not effective.
inheritance as legitime is inherited by his own child,
but not the excess thereof. Oral Conveyances
Oral contracts are valid and efGicacious to bring about
partition of a decedent’s estate among his heirs
CHAPTER 2 provided such partition does not affect the interest of
Testamentary Succession third persons. (Lasam v. Lasam)
SECTION 1
Wills
Article 784. The making of a will is a strictly personal
SUBSECTION 1. Wills in General act; it cannot be left in whole or in part to the
discretion of a third person, or accomplished through
Article 783. A will is an act whereby a person is the instrumentality of an agent or attorney. (670a)
permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of this Will-‐Making is a strictly Personal Act
estate, to take effect after his death. (667a) The mechanical act of drafting may be entrusted to
another, as long as the disposition itself expresses the
Essential Elements and Characteristics of a Will testator’s desires, and all the formalities of the law
a. The making of a will is a statutory right and are complied with, such as the signing by the testator
subordinated to both the law and public policy. and the witnesses (notarial will), or the copying by
b. It is a unilateral act; no acceptance by the the testator in his own handwriting (holographic
transferee is needed while the testator is still will).
alive.
c. It is a solemn or formal act. Note: This act cannot be left in whore or in part to
d. There must be animus testandi (intent to make the discretion of a third person or accomplished
a will). through the instrumentality of an agent or attorney.
e. The testator must be capacitated to make a will.
f. The will is strictly a personal act. A will cannot Employing An Attorney
be the subject of a compromise agreement which If a attorney drafts a will and is present at the time of
would thereby defeat the very purpose of making its execution, there is a strong presumption that the
a will. will was regularly made.
g. It is effective mortis causa. It produces effects
only after the death of the testator.
h. It is essentially revocable or ambulatory.
i. It is free from vitiated consent. Article 785. The duration or efUicacy of the designation
j. It is an individual act, not joint. of heirs, devisees or legatees, or the determination of
k. It disposes of the testator’s estate in the portions which they are to take, when referred to
accordance with his wishes to a certain degree by name, cannot be left to the discretion of a third
only. person. (670a)
Will v. Testament Discretion of a Third Person

Will -‐ disposes of real property The making of a will is strictly a personal act.
Testament -‐ disposes of personal property Example:
Luis, the testator, says “I give my house and lot to
Situation: Santiago for as long as my friend Nico allows.”
Antonio, in his will, gives Luis a house effective This is a clear case of illegal delegation of
immediately. testamentary power.
the testator as to his intention; and when an

uncertainty arises upon the face of the will, as to the
Article 786. The testator may entrust to a third person application of any of its provisions, the testator's
the distribution of speciUic property or sums of money intention is to be ascertained from the words of the
that he may leave in general to speciUied classes or will, taking into consideration the circumstances under
causes, and also the designation of the persons, which it was made, excluding such oral declarations.
institutions or establishments to which such property (n)
or sums are to be given or applied. (671a)
Kinds of Ambiguity in a Will
When a Third Person May be entrusted a. Latent or Intrinsic Ambiguity-‐ that which does
Art. 786 -‐ the particular names are not designate not appear on the face of the will, and is
(class or a cause is what is speciGied) discovered only by extrinsic evidence
Art. 785 -‐ names of particular persons are given • Example: “I institute my cousin.” When you
have 40 cousins alive. This ambiguity is not
found in the will itself, which is clear. The doubt
arises only because of things outside the will.
Examples of SpeciGied Classes • Latent Ambiguity arises: 
-‐ high school batch of 2008 of the Sacred Heart 1. When there is an imperfect description of the
School of Tacloban City heir, legatee, or devisee 
-‐ Top ten bar passers of the 2018 Bar Examination 2. When there is an imperfect description of the
gift being given 
Examples of SpeciGied Causes 3. When only one recipient is designated but it
Charitable institutions turns out that there are two or more who Git the
description
Note: In these cases, the distribution and the • “imperfect description, or when no person or
designation of who will receive, and how much (class property exactly answers the description”
or cause; speciGic property or a sum of money) -‐ has • May be cured by examining the (1) the will
been set aside for the purpose) can be entrusted to a itself or (2) extrinsic evidence such as written
third person. declarations of the testator
b. Patent or Extrinsic Ambiguity -‐ that which

Article 787. The testator may not make a testamentary appears on the face of the will itself; that by
disposition in such manner that another person has to examining the provision itself, it is evident that it
determine whether or not it is to be operative. (n) is not clear
• Example: “I institute some of my seven
brothers.”
Article 788. If a testamentary disposition admits of • Note: In this case, extrinsic evidence, as well as
different interpretations, in case of doubt, that the will itself may be examined (but not the
interpretation by which the disposition is to be oral declarations of the testator) to ascertain
operative shall be preferred. (n) the testator’s intent, but if after everything has
been done, the doubt still remains, not one of
Possible Different Interpretations the seven brothers will get as instituted heirs,
a. Similar to the rule in the interpretation of laws or because then, the heirs will be considered as
contracts unknown persons.
b. Reason: Testate succession, provided the will is • “when an uncertainty arises upon the face of the
valid, is preferred to intestacy. will”
c. This applies only in case of DOUBT. If no doubt • May be cured by the same way a latent
exists, and the disposition is clearly illegal, same ambiguity may be cured
should not be given effect.
Reason for Examining the Will and Extrinsic Evidence
Note: The intention and desires of the testator if To allow us to get the intention from the words of the
clearly expressed in the will, constitute the Gixed law will and the circumstances under which the will was
of its interpretation. (Vda. de Villanueva v. Juico) made
Article 789. When there is an imperfect description, or Article 790. The words of a will are to be taken in their
when no person or property exactly answers the ordinary and grammatical sense, unless a clear
description, mistakes and omissions must be corrected, intention to use them in another sense can be gathered,
if the error appears from the context of the will or from and that other can be ascertained.
extrinsic evidence, excluding the oral declarations of
Technical words in a will are to be taken in their proceedings (in the same court), even if at that
technical sense, unless the context clearly indicates a stage, an administrator had already been
contrary intention, or unless it satisfactorily appears appointed, the latter being required to render his
that the will was drawn solely by the testator, and that Ginal accounts and to turn over the estate to the
he was unacquainted with such technical sense. (675a) executor subsequently named. This is without
prejudice to the fact that if, the will be dis-‐
Rules for Interpretation of Words allowed, the intestate proceedings should be
a.   resumed. (Uriarte v. CFI of Negros Occ) 
GR: Ordinary words have their ordinary
meanings. 
Exception: If there is a clear intention that Article 792. The invalidity of one of several dispositions
another meaning was used — provided that contained in a will does not result in the invalidity of
other meaning can be determined.  the other dispositions, unless it is to be presumed that
Reason: The supreme law for interpretation is the testator would not have made such other
INTENTION. dispositions if the Uirst invalid disposition had not been
b.   made. (n)
GR: Technical words have technical meanings. 
Exceptions:  Invalid Dispositions
1. contrary intention  GR: Even if one disposition or provision is invalid, it
2. the will was drafted by the T alone, who did does not necessarily follow that all the others are also
not know the technical meaning  invalid.
Reason: Wills drafted by experts like lawyers are Exception: When the various dispositions are
construed more strictly than those made by indivisible in intent or nature.
ordinary laymen.
Note: If the testator’s intention is manifest from the Article 793. Property acquired after the making of a
context of the will and surrounding circumstances, will shall only pass thereby, as if the testator had
but is obscured by inapt and inaccurate modes of possessed it at the time of making the will, should it
expression, the language will be subordinated to the expressly appear by the will that such was his
intention; and in order to give effect to such intent, intention. (n)
the court may depart from the strict wording, and
read a word or phrase in a sense different from that General Rule on After-‐Acquired Properties
which is ordinarily attributed to it, and for such What are given by the will are only those properties
purpose may mould or change the language of the already possessed and owned by the T at the time the
will, such as by restricting its application or will was made, not those acquired after (after-‐
supplying omitted words or phrases. (Rodriguez v. acquired party).
CA)
Exceptions
a. if it expressly appears in the will that it was the
intention to give such “after-‐acquired” properties. 
Article 791. The words of a will are to receive an Example: ‘I hereby give Luis all my cars, including
interpretation which will give to every expression some those I will acquire before I die.’
effect, rather than one which will render any of the b. if the will is republished or modiGied by a
expressions inoperative; and of two modes of subsequent will or codicil
interpreting a will, that is to be preferred which will c. legacies of credit or remission are effective only
prevent intestacy. (n) as regards that part of the credit or debt existing
at the time of the death of the testator. 
Interpretation as a Whole Legacy of Credit 
a. The will must be interpreted as a whole. Example: Luis is the creditor of Alfonso to the
b. While testacy is preferred over intestacy, this amount of P500,000. Luis made a will in 2009
is true only if the will has been validly made. giving this credit to Santiago. If by 2010, at Luis’
death Alfonso has paid already P300,000 to Luis,
Priority or Preference of Testate Over Intestate how much will Santiago get? 
Proceedings Answer: Only the remaining P200,000, which still
a. Testate proceedings take precedence over exists at Luis’ death. This includes all interests on
intestate proceedings for the same purpose. the credit or debt which may be due the T at the
b. If in the course of intestate proceedings pending time of his death, if there are any. 
before the CFI (now RTC) it is found that the  
decedent left a will, proceedings for the probate Legacy of Remission 
of the will should replace the intestate Example: Luis is the creditor of Alfonso to the
amount of P500,000. Luis made a will in 2009 Time the law in force at the law in force at
remitting or waiving the latter’s debt. This is a the time the will is the time of the
legacy of remission of a debt, in favor, naturally, made decedent’s death
of the debtor. If in 2011, Alfonso who does not
know of the provision of the will, (and even if he Place/ a. If Filipino -‐ General Rule: the
does know) pays P300,000 to Luis. how much is Country Philippine national law of
the legacy of remission if Luis subsequently dies?  laws the decedent
Answer: Only P200,000 because this is the debt b. If alien abroad regardless of the
still remaining at the time of Luis’ death, -‐ law of his place of execution
including interests due, if any, of course.  domicile or his or the place of
Notes:   nationality or death
1. Know how much exactly is the legacy in order PH laws, or
to determine whether or not it is inofGicious or where he Exception: Renvoi
impairs the legitime.  executes the Doctrine
2. Paras’ opinion: This Article applies only to will -‐ testator is a
legatees and devisees.  c. If alien in the national of
3. Note the difference between ‘after-‐acquired’ PH -‐ law of his another
property and the property ‘accruing since the nationality or -‐ domiciled in
opening of the succession’. the laws of the the PH
PH -‐ conGlict rules of
T’s national
Article 794. Every devise or legacy shall cover all the law refer the
interest which the testator could device or bequeath in matter to the
the property disposed of, unless it clearly appears from law of the
the will that he intended to convey a less interest. (n) domicile (PH)
—> PH law
General Rule, What Interest May be Disposed Of shall be
The entire interest of the T in the property is given — applied
not more, not less (e.g. ownership, usufructuary
rights)
Reason for this Article
Exceptions A testator cannot be expected to know the future,
a. Can convey a lesser interest if such intent clearly
hence, it is enough that he follows the law in force at
appears in the will (e.g. usufruct only) the time he makes the will.
b. Can convey a greater interest, thus, the law
provides “If the testator… owns only a part of, or Two Kinds of Recognition
an interest in the thing bequeathed, the legacy or
a. compulsory
devise shall be understood limited to such part or
b. voluntary
interest, UNLESS the testator expressly declare
that the gives the thing in its entirety.
c. Can convey property which he very well know
Subsection 2. TESTAMENTARY CAPACITY AND
does not belong to him, provided that it also does INTENT
not belong to the legatee or devisee. (See Art.
937) Testamentary Power v. Testamentary Capacity
a.  
TP — the statutory right to dispose of property
by acts effective mortis causa 
TC — the right to make a will provided certain
conditions are complied with 
Article 795. The validity of a will as to its form depends
upon the observance of the law in force at the time it is
b.  
made. (n) active — capacity to MAKE a will or codicil (TP) 
passive — capacity to RECEIVE by virtue of a will
Extrinsic Validity v. Intrinsic Validity (TC) 
Extrinsic Validity Intrinsic Validity c.  

TC — ability of one to make a will 
TP — the privilege granted by the law to
someone to make a will
The burden of proof that the testator was not of sound
Article 796. All persons who are not expressly mind at the time of making his dispositions is on the
prohibited by law may make a will. (662) person who opposes the probate of the will; but if the
testator, one month, or less, before making his will was
Who Can Make Wills publicly known to be insane, the person who maintains
a. GR: Capacity; Exc: Incapacity the validity of the will must prove that the testator
b. Two general qualiGications:  made it during a lucid interval. (n)
1. 18 y/o or over 
2. soundness of mind at the time the will is made. Presumption on Soundness of Mind
c. A convict under civil interdiction is allowed to GR: Sanity
make a will — because civil interdiction prohibits Exception: Insanity
a disposition only of property inter vivos, and not Rule: He who alleges the T’s insanity must prove the
mortis causa. same.
d. s p e n d t h r i f t s , p r o d i g a l s , t h o s e u n d e r
guardianship, provided they are at least 18 y/o Two Instances When The Testator Is Presumed
and are of sound mind Insane
e. only natural persons, not juridical ones a. if the T, one month or less before making the will
f. C a p a c i t y t o m a k e a w i l l i s c a l l e d was publicly known to be insane 
‘testamentiGicaccion active’  *Allege that the will was made during the T’s
C a p a c i t y t o r e c e i v e b y w i l l i s c a l l e d lucid interval.
‘testamentiGicaccion passive’ b. if the T made the will after he had been judicially
declared insane, and before such judicial order
had been set aside.
Article 797. Persons of either sex under eighteen years
of age cannot make a will. (n) Absence of Presumption
a. from the presence of a mere delirium (merely
temporary)
Article 798. In order to make a will it is essential that b. insanity of the parents and children of the T
the testator be of sound mind at the time of its (DUH!)
execution. (n)
Soundness of mind Article 801. Supervening incapacity does not invalidate
This must exist at the time of the execution of the an effective will, nor is the will of an incapable
will, not before nor after. validated by the supervening of capacity. (n)
Supervening of Incapacity or Capacity

Article 799. To be of sound mind, it is not necessary Capacity subsequent to making a will during his
that the testator be in full possession of all his incapacity does not make the will valid. What is
reasoning faculties, or that his mind be wholly important is that his mind was not sound at the time
unbroken, unimpaired, or unshattered by disease, he executed the will.
injury or other cause.
It shall be sufUicient if the testator was able at the time Article 802. A married woman may make a will
of making the will to know the nature of the estate to without the consent of her husband, and without the
be disposed of, the proper objects of his bounty, and the authority of the court. (n)
character of the testamentary act. (n)
Exception to this: Contractual succession in a
Requirements for Soundness of Mind marriage settlement
a. T knows the nature of the estate to be disposed of
(character, ownership of the what he is giving)
b. T knows the proper objects of his bounty Article 803. A married woman may dispose by will of
c. T knows the character of the testamentary act all her separate property as well as her share of the
(that it is really a will, a disposition mortis causa, conjugal partnership or absolute community property.
essentially revocable) (n)
What Wide Can Dispose of in Her Will

Article 800. The law presumes that every person is of a. The wife cannot dispose of her husband’s capital,
sound mind, in the absence of proof to the contrary. in her will, unless she knows that the same is not
hers, and intends that her administrator or
TO GOD BE THE GLORY! ! of !26
10 University of San Carlos - College of Law
executor will purchase the same from her witnesses in the presence of the testator and of one
husband, for distribution to the heirs. another.
b. The law says that the wife can dispose of her
share of the conjugal property. The testator or the person requested by him to write
c. A surviving spouse must respect the legitime of his name and the instrumental witnesses of the will,
his/her compulsory heirs. 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
SUBSECTION 3. Forms of Wills on the upper part of each page.
Kinds of Wills The attestation shall state the number of pages used
a. Ordinary or notarial will — requires, among upon which the will is written, and the fact that the
other things, an attestation clause, and testator signed the will and every page thereof, or
acknowledgement before a notary public caused some other person to write his name, under his
b. Holographic will — required to be written express direction, in the presence of the instrumental
entirely, from the date to the signature, in the witnesses, and that the latter witnessed and signed the
handwriting of the testator; attestation clause will and all the pages thereof in the presence of the
and acknowledgement NOT necessary testator and of one another.
c. Nuncupative will (not recognized by the CC)—
orally made by the T in contemplation of death, If the attestation clause is in a language not known to
and before competent witnesses the witnesses, it shall be interpreted to them. (n)
Note: There is a need for a subscription at the end of
Article 804. Every will must be in writing and executed a notarial; it is not necessary in holographic wills.
in a language or dialect known to the testator. (n)
What this Article provides
Written Wills Instrumental witnesses must sign each page of the
This article does not recognize oral wills. will, from the requisite that the will be ‘attested and
subscribed by’ — the respective intents behind
Handwriting and Handwriting Experts these two classes of signature are distinct from
‘Handwriting’ may be proved by any witness who each other. Even if instrumental witnesses signed
believes it to be the handwriting of such person the left-‐hand margin of the page containing the
because he has seen the person write, or has seen unsigned clause, such signatures cannot demonstrate
writing purporting to be his upon which the witness witnesses’ undertakings in the clause, since the
has acted or been charged, and has, thus, acquired signatures that do appear on the page were directed
knowledge of the handwriting of such person.  towards a wholly-‐different crowd. (Azuela v. CA)
 
‘Handwriting experts’ are usually helpful in the Attestation Clause
examination of forged documents, but resort to This contains the utterances reduced into writing of
these experts is not mandatory or indispensable the testamentary witnesses themselves — it is the
to the examination or the comparison of witnesses, and not the testator, who are required
handwriting, and because the judge must conduct an under Art. 805 to state the number of pages used
independent examination of the questioned signature upon which the will was written. This shall provide
in order to arrive at a reasonable conclusion as to its the ff:
authenticity. a. number of pages used — upon which the
will is written.
The opinions of handwriting experts, although b. that the testator signed the will and every
helpful in the examination of forged documents page thereof in the presence of the instrumental
because of the technical procedure involved in the witnesses
analysis, are not binding upon the courts. Resort to c. that the instrumental witnesses witnessed
these experts is not mandatory or indispensable to and signed the will and all the pages thereof in the
the examination or the comparison of handwriting. presence of the T and of one another
Notes:
Article 805. Every will, other than a holographic will, a. absence of the attestation clause is a FATAL
must be subscribed at the end thereof by the testator defect
himself or by the testator's name written by some other b. the number of pages if stated elsewhere in the
person in his presence, and by his express direction, will, and not in the attestation clause, the same is
and attested and subscribed by three or more credible valid
c. the attestation clause may either be incorporated he puts the name of the testator. 
in the will itself or be written on a separate page
d. AC need not contain the signature of the T, since e. The testator or the person requested by him to
it is an act of the witnesses write his name and the instrumental witnesses of
e. witnesses are not required to know the language the will shall sign each and every page thereof
of the attestation clause except he last, on the left margin. 
f. Purposes of the AC:  Notes:
-‐ to preserve in permanent form a record of the 1. ‘page’ not sheet
facts attending the execution of the will so that in 2. last page need not be signed on the margin,
case of failure of the memory of the subscribing since the signatures already appear at the
witnesses, or any other casualty, they still be end
proved  3. if last page contains only the attestation
-‐ To render available proof that there has been a clause, the T need not sign on the margin.
compliance with the statutory requisites for the 4. if the whole will including the attestation
execution of the will.   clause, consists of only one page, no marginal
-‐ to minimize the commission of fraud or undue signatures are needed
inGluence 5. whenever the marginal signatures are
g. Failure to state in the AC that the T signed the required, although the law says ‘left margin,’
will in the presence of witnesses — AC is void. the purpose is served if they are on the ‘right,
top, or bottom’ margin
Requirements for a Notarial or Ordinary Will 6. failure to have the marginal signatures of the
a. Testator must be at least 18 y/o and must be of T and of the witnesses, when needed, is a
sound mind FATAL defect
b. The will must be in writing (material on which it 7. Credible witness — one possessed of the
is written is IMMATERIAL) qualiGications imposed by law — able or
c. The will must be executed in a language or competent to testify.
dialect known to the testator. 8. The witness can sign with a cross or a mark,
d. The will must be subscribed at the end thereof by provided that such is the usual signature, and
the testator himself or by the testator’s name provided further, that he really knows how to
written by another person in his presence, and by read and write. Otherwise, he cannot of
his express direction.  course be a witness.
  f. All the pages shall be numbered correlatively in
Notes: letters placed on the upper part of each page. 
1. will not signed at the end but somewhere  
else — will is NOT VALID Notes:
2. If there are additional clauses or provisions 1. Purpose: to guard against fraud, and to afford
after the signature, not only those clauses means of preventing substitution or detecting
will be considered void, but also the whole the loss of any of its pages
will from beginning to end, and will, 2. correlative numbering in letter — means
therefore, be denied probate. ‘One,’ ‘Two,’ Three,’ etc.
3. ‘End’ is logical end. 3. not necessary to number the Girst page, nor
4. Testator’s Girst name appears without even the last page as long as, for as long as
surname — still valid the number of pages is stated in the
5. T’s name is misspelled, abbreviated, or by attestation clause
nickname, or assumed name — provided that
he intends the same to be his signature Other Comments
6. T can sign with his thumb mark or with his a. It is not necessary that the notarial will be dated;
initials, or even with a rubber stamp or an the holographic will, OTOH, need be dated.
engraved dye, provided he intends the same b. It is not essential to state the place where the will
to be his signature. is being made or executed.
7. T can sign with a mere cross if he intends that c. It is not essential to state in the AC that the
to be his signature person delegated by the T to sign in his behalf did
8. Even if a person knows how to write his so in the presence of the T.
name, he can still sign by the use of a mark. d. Essential requirements for notarial will other
9. Somebody else may write the T’s name for than those mentioned in Arts. 804 and 805: 
the latter, provided this is done in the latter’s -‐ 806: acknowledgement before notary public 
presence and at the latter’s express direction. -‐ 807 and 808: special cases — when the T is
10. The person signing for the T does not have to deaf, mute, or blind
put his own name. All the law requires is that e. Absence of documentary stamp — not a fatal
defect.
and again, by the notary public before whom the will is
Donations Mortis Causa acknowledged. (n)
These partake of the nature of testamentary
provisions and as such, said deeds must be executed Rules if the Testator is Blind (also applies to those
in accordance with the requisite on solemnities of who are incapable of reading)
wills and testaments under Arts. 805 and 806. a. Reading is twice — once by (1) one of the
subscribing witnesses; and (2) once by the
notary public
Article 806. Every will must be acknowledged before a b. the will should be signed and executed in the
notary public by the testator and the witnesses. The presence of the notary public for the better
notary public shall not be required to retain a copy of protection of the testator; the blind may have the
the will, or Uile another with the ofUice of the Clerk of beneGit of the notary public’s participation even
Court.(n) before he signs the will
c. if T is both deaf-‐mute and blind — Can no longer
Necessity of Acknowledgment (in Notarial Wills) make a will, unless in some way, the contents
This article refers only to notarial wills, not to thereof may properly be communicated to him in
holographic wills — acknowledged “by the testator accordance with the legal requirements.
and the witnesses”; holographic wills need no
witnesses.
Article 809. In the absence of bad faith, forgery, or
Notes: fraud, or undue and improper pressure and inUluence,
a. If a will is duly acknowledged before a notary defects and imperfections in the form of attestation or
public, there is in its favor the presumption of in the language used therein shall not render the will
regularity. (Gonzales v. CA) invalid if it is proved that the will was in fact executed
b. A notarial will not acknowledged before a notary and attested in substantial compliance with all the
public by testator and the witnesses is fatally requirements of article 805. (n)
defective; this is even if it subscribed and sworn
to before a notary public (jurat). (Azuela v. CA) Effect of Substantial Compliance
a. This Article provides the rule for substantial
Acknowledgment, deGined. compliance that is, as long as the purpose sought
the act of one who has executed a deed in going by the attestation clause is obtained, the same
before some competent ofGicer or court and declaring should be considered valid.  
it to be his act or deed.  
Substantial compliance is acceptable where the
Jurat, deGined. pur-‐ pose of the law has been satisGied, the
that part of an afGidavit whereby the notary certiGies reason being that the solemnities surrounding
that before him, the document was subscribed and the execution of a will are intended to protect the
sworn by the executor. testator from all kinds of fraud and trickery but
are never intended to be so rigid and inGlexible as
to destroy the testamentary privilege.  
Article 807. If the testator be deaf, or a deaf-mute, he  
must personally read the will, if able to do so; Although there should be strict compliance with
otherwise, he shall designate two persons to read it the substantial requirements of the law in order
and communicate to him, in some practicable manner, to ensure the authenticity of the will, the formal
the contents thereof. (n) imperfections should be brushed aside when
they do not affect its purpose and which, when
Rules When Testator is Deaf, Mute, or a Deaf-‐Mute taken into account, may only defeat the testator’s
a. if he cannot read the will (illiterate), two persons will. (Alvarado v. Gaviola, Jr.) 
must communicate its contents to him
b. The two persons designated need not be b. Defects and imperfections (not defects of
attesting witnesses substance) 
c. that this article has been complied with must be 1. in the form of attestation, or 
proved in the probate proceedings 2. in the language used therein 
d. this fact need not be stated in the attestation; it is
sufGicient that this fact is proved during the How Substantive Defect Can Be Cured
probate proceedings Only by evidence WITHIN the will itself — not by
evidence aliunde (extrinsic evidence)
Article 808. If the testator is blind, the will shall be read Purpose of the Article
to him twice; once, by one of the subscribing witnesses,
to attain the main objective of the new CC in the Other features of a holographic will
liberalization of the manner of executing wills. a. no witnesses required
b. no marginal signatures on the pages are required
Purpose of Stating the Number of Pages in the c. no acknowledgement required
Attestation Clause d. in case of any insertion, cancellation, erasure or
to safeguard against possible interpolation or alteration, the testator must authenticate the
omission of one or some of its pages and to prevent same by his full signature
any increase or decrease in the pages; there is e. may be made in or out of the PH, even by Filipinos
substantial compliance with this requirement if the f. may be made even by a blind testator, as long as
will states elsewhere in it how many pages it is he is literate at least 18, and possessed of a sound
comprised of mind
  g. Even the mechanical act of drafting a holographic
will may be left to someone other than the
Article 810. A person may execute a holographic will testator, as long as the testator himself copies the
which must be entirely written, dated, and signed by draft in his own handwriting, dates it, and signs it.
the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and Question: Why should holographic wills be construed
need not be witnessed. (678, 688a) more liberally than the ones drawn by an expert?
Answer: Because they are usually prepared by one
Holographic will, deGined. who is not learned in law. It is a fundamental
one entirely written, dated, and signed by the hand of principle that the intent or the will of the testator,
the testator expressed in the form and within the limits
prescribed by law, must be recognized as the
Advantages of a Holographic Will supreme law in succession.
a. easier to make
b. easier to revise Function of a Probate Court
c. easier to keep secret to settle and liquidate the estates of deceased
persons either summarily or thru the process of
Disadvantages administration
a. easier to forge by expert falsiGiers
b. easier to misunderstand since the T may have
been faulty in expressing his last wishes Article 811. In the probate of a holographic will, it shall
c. no guaranty that there was no fraud, force, be necessary that at least one witness who knows the
intimidation, under inGluence; and no guaranty handwriting and signature of the testator explicitly
regarding T’s soundness of mind declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at
Formalities for a Holographic Will least three of such witnesses shall be required.
a. language must be known to the testator
b. must be entirely written in the hand of the T In the absence of any competent witness referred to in
himself (not typewritten, printed) the preceding paragraph, and if the court deem it
c. must be dated  necessary, expert testimony may be resorted to. (619a)
1. so that in case of a revision, that of later date
should be preferred as expressing truly the last Probate of Holographic Wills
Will and testament  a. Probate: the allowance of a will by the court after
2. date not given — will is null and void (date is a its due execution has been proved
mandatory requisite in holographic wills)  b. Proof of identity of the signature and handwriting
3. date must be in the handwriting of the T  of the testator is important, otherwise, the will
4. date must be complete — year, month, and day  cannot be valid.
5. although generally the date should be the true c. Probate may be: (1) uncontested or (2) contested
one, an incorrect date, as long as it was made in d. Uncontested — at least one identifying (not
good faith, does not invalidate the will necessarily a subscribing) witness is required to
d. must be signed by the T himself  avoid the possibility of fraud.If no witness is
1. full or customary signature is needed, hence, available, experts may be resorted to.
the name is not required  e. Contested — at least three (3) such identifying
2. the signature must appear at the end of the will witnesses should be required. If none are
e. animus testandi (intent to make a will) available, experts may be called upon.
f. must be executed at the time that holographic
wills are allowed, not before, the time of death Effect if Holographic Will is Lost or Destroyed
being immaterial If lost or destroyed without intent to revoke, and no
other copy is available — it CAN NEVER be probated
because the BEST and ONLY evidence therefor is the sane will not affect the previous dispositions,
handwriting of the testator in SAID will. which remain void if in themselves void; and
remain valid if in themselves valid. 
Notes: 2. if done by another with the T’s consent — same
a. Art. 811 is Mandatory. The word ‘shall’ connotes a effects as (1), because the latter disposition is not
mandatory order. We have ruled that ‘shall’ in a really holographic (not done by the T himself)
statute commonly denotes an imperative
obligation and is inconsistent with the idea of
discretion and that the presumption is that the Article 814. In case of any insertion, cancellation,
word ‘shall,’ when used in a statute, is mandatory. erasure or alteration in a holographic will, the testator
b. Thru a holographic will as we as notarial wills, must authenticate the same by his full signature. (n)
Giliation may be established. (Potenciano v.
Reynoso) Authentication of Correction by Full Signature
a. Full signature means the full or usual or
Holographic Wills May Be Made In or Out of the PH customary signet (not necessarily full name).
An holographic will must be entirely written, dated, b. Alteration without the full signature — only the
and signed by the hand of the testator himself. It is alteration is void, and not the entire will.
subject to no other form, and may be made in or out of However, if what was altered was the date or the
the Philippines, and need not be witnessed. signature, the alteration without the full signature
makes the whole will void.
Article 812. In holographic wills, the dispositions of the

testator written below his signature must be dated and Article 815. When a Filipino is in a foreign country, he
signed by him in order to make them valid as is authorized to make a will in any of the forms
testamentary dispositions. (n) established by the law of the country in which he may
be. Such will may be probated in the Philippines. (n)
Dispositions Written Below the Signature
A testator may draft one part of a holographic will at Formalities of wills executed by Filipinos Abroad
tone time, and another at another time. It may even ‘Authorized’ — this makes the rule permissive, not
happen that the latter dispositions are made even mandatory
after the signature had been written. Example: Glenn, a Filipino, if in California, can make a
will there in accordance with the forms (extrinsic
Note: Dispositions after the signature must be both validity) of:
DATED and SIGNED by the testator to be valid. a. California, or
If signed, but not dated or dated, but not signed — b. Philippines (even if the PH form is not recognized
the additional dispositions are void, for lack of in California)
essential requisite. Exception to this rule: A Filipino abroad cannot
execute abroad a joint will even if the same is valid
there.
Article 813. When a number of dispositions appearing
in a holographic will are signed without being dated, Situation: Luis, a Filipino citizen residing
and the last disposition has a signature and a date, temporarily in Hayward City, California (USA),
such date validates the dispositions preceding it, executed a will in accordance with the laws of
whatever be the time of prior dispositions. (n) said state. Assuming he (testator) returns to
the PH and dies here without modifying or
Rules for Curing Defects executing a new will in accordance with
a. If the last disposition is signed and dated  Philippines law, how shall his estate be dealt
1. preceding dispositions which are signed but with, testate or intestate?
not dated are validated 
2. preceding dispositions which are not signed Answer: Testate, since under Art. 815 he is
but dated are void  allowed to make a will in any of the forms
3. preceding dispositions which are not signed allowed in the foreign state where he may be.
and not dated are of course void, unless written The will he executed in California may indeed
on the same date and occasion as the latter be probated in the Philippines. Of course, the
dispositions  intrinsic validity of the provisions of his will,
the amount of successional rights, and the
b. The above rule presupposes that the latter order of succession will have to be governed
disposition was DATED and SIGNED by the by his national law, that is, the Philippine law
testator himself.  on succession.
1. if done by another, without the T’s consent —
Foreign Probate b. the Philippines (Art. 17, CC) -‐ lex loci
If a will is probated abroad, there is no need of an celebrationis
ordinary usual probate in the Philippines. What is
required however is that there must be a proceeding Reason: Being a citizen of his country, he may be more
here to prove that indeed the will had already been cognizant of said laws than those in the Philippines.
probated abroad. *The rule is the same as proving the Accordingly, his will can be admitted to probate in
existence of a foreign judgment. (Yuchengco v. the Philippines.
Tiaoqui)
Note: It should be observed that in the absence of Article 818. Two or more persons cannot make a will
contrary proof, foreign laws on the formalities of a jointly, or in the same instrument, either for their
will are presumed to be the same as those existing in reciprocal beneUit or for the beneUit of a third person.
the Philippines. It has also been held that if there is (669)
no proof regarding the foreign law of probate
procedure and no proof that the foreign court that Note: This is an exception to the principle of lex loci
approved the will indeed a probate court, it will be celebrationis
presumed that the proceedings in the matter of
probate in said court are the same as those provided Joint Wills, deGined.
for under Philippine laws. (Testate of Suntay) those which contains in ONE instrument the will of
two or more persons jointly singed by them.
Article 816. The will of an alien who is abroad Reciprocal or Mutual Wills, deGined.
produces effect in the Philippines if made with the those that provide that the survivor of the testators
formalities prescribed by the law of the place in which will succeed to all or some of the properties of the
he resides, or according to the formalities observed in decedent
his country, or in conformity with those which this Example: Luis made a will making Antonio his heir.
Code prescribes. (n) The latter also made a will making the former his
heir.
Formalities for Wills Executed by Aliens Abroad
An alien abroad may make a will in accordance with Note: Mutual wills or reciprocal wills by themselves
the formalities (extrinsic validity) prescribed by the are VALID, but if made in one instrument, they are
law of: void, not because they are reciprocal, but because
a. the place of his residence or domicile they are joint.
b. his own country or nationality
c. the Philippines Reasons Why Joint Wills are Void
d. the law of the place of execution a. to allow as much as possible SECRECY, a will
being a purely personal act
Situation: A Brazilian, domiciled in Chile, is on b. to prevent undue inGluence by the more
his way to Cebu. The boat where he is, is aggressive testator on the other
staying for one day in Hong Kong. In HK, can c. in case of death of the testators at different times,
he make a will? If so, what country’s probate would be harder
formalities should he observe? d. it militates against the right of a testator to revoke
his will at any time
Answer: Brazil (nationality), Chile (domicile), e. in case of a husband and wife, one may be
Philippines, or Hong Kong. tempted to kill the other (luh!)
Wills that are NOT Joint Wills

Article 817. A will made in the Philippines by a citizen a. made on a single sheet of paper, the Girst on the
or subject of another country, which is executed in front, and the second on the reverse side
accordance with the law of the country of which he is a b. made even on the same page with or without a
citizen or subject, and which might be proved and dividing line between them, but neither
allowed by the law of his own country, shall have the combining the signature of both together (two
same effect as if executed according to the laws of the wills independent of each other) 
Philippines. (n)  
Note: Reciprocal wills between a husband and
Formalities for Wills Executed by Aliens in the wife, as long as not made jointly, are valid. This is
Philippines true even if the same witnesses are used.
Situation: If a German lives in Manila, he can follow
the extrinsic formalities of will required in:
a. Germany -‐ lex nationali
Article 819. Wills, prohibited by the preceding article, QualiGications of a witness to a notarial will are
executed by Filipinos in a foreign country shall not be numerically more than those required of a testator.
valid in the Philippines, even though authorized by the
laws of the country where they may have been Note: It is not essential that the witness be a citizen
executed. (733a) of the Philippines, for domicile is what the law merely
requires. Domicile is the place of habitual residence
Effect of Joint Wills Executed Abroad (Art. 6, CC).
a. This article is an expression of public policy, and
is clearly one of the exceptions to the rule of lex Rule if Will is Executed Abroad
loci celebrationis. Question: If a Filipino in China wants to execute a
b. However, the prohibition refers only to Filipinos. notarial will in accordance with PH laws, do his
Hence, if made by foreigners abroad, and valid in witnesses have to be domiciled in the Philippines?
accordance with Art. 816, the same should be Answer: No, since after all the will is being made in
considered as valid here. the China.
c. Joint wills executed by foreigners —  
1. if executed abroad and valid in accordance with Reasons for the requirement of Philippine domicile
Art. 816 — valid here.  a. the assurance that the witness will be available
2. if executed in the PH, same should be at the time the will is presented for probate;
considered void because although apparently b. the likeliness of personal acquaintance with the
allowed under Art. 817, still Art. 818, which testator
refers speciGically to joint wills, and which should
be considered as an expression of public policy, Rules Regarding Convicted Witness
should prevail Note that regarding convicts, only three crimes have
been mentioned:
a. falsiGication of a document (whether the
document be public, commercial, or even
SUBSECTION 4. - Witnesses to Wills private)
b. perjury
Article 820. Any person of sound mind and of the age of c. false testimony
eighteen years or more, and not blind, deaf or dumb, ***By implication, conviction for other crimes such as
and able to read and write, may be a witness to the murder or arson or rape cannot be said to be a
execution of a will mentioned in article 805 of this disqualiGication.
Code. (n)
Effect of Pardon
QualiGications for Witnesses to Notarial Wills a. If the pardon was given because of the man’s
At the time of attesting, the witness must: innocence, as when somebody else had been
a. be of sound mind proved to be the really guilty person, he can now
b. be at least 18 y/o act as a witness to a will. This is because there is
c. be able to read and write no mental dishonesty.
d. not be blind, deaf, or dumb b. If the absolute pardon was an act of Executive
e. be domiciled in the Philippines grace of clemency, it is submitted that the DQ
f. not have been convicted (by Ginal judgment) of remains, for even an absolute pardon does not
falsiUication of a document; perjury; or false remove civil consequences. The would-‐be
testimony witness still has a taint of mental dishonesty.
Note: The witnesses do not have to know the Credibility of a Witness to A Notarial Will
language used in both the will and attestation clause. While the instrumental witnesses to a will must be
It is sufGicient that the same be interpreted to them. shown to have the qualiGications under Art. 820 of the
Civil Code and none of the DQs under Art. 821, it is
presumed that they are trustworthy and reliable,
Article 821. The following are disqualiUied from being unless the contrary is established. (Gonzales v. CA)
witnesses to a will:
Article 822. If the witnesses attesting the execution of a
(1) Any person not domiciled in the Philippines; will are competent at the time of attesting, their
becoming subsequently incompetent shall not prevent
(2) Those who have been convicted of falsiUication of a the allowance of the will. (n)
document, perjury or false testimony. (n)
Effect of Subsequent Incapacity
More qualiGications for witnesses than for testators a. Subsequent incapacity is immaterial. Of course, if
the witness is incapacitate to testify at the time of
probate, he cannot testify as a witness. This does

not mean, however, that the validity of the will is
impaired by such act. SUBSECTION 5. Codicils and Incorporation by
b. The capacity as a witness to a will is different Reference
from capacity as a witness in court.
Article 825. A codicil is supplement or addition to a
will, made after the execution of a will and annexed to
Article 823. If a person attests the execution of a will, to be taken as a part thereof, by which disposition made
whom or to whose spouse, or parent, or child, a devise in the original will is explained, added to, or altered.
or legacy is given by such will, such devise or legacy (n)
shall, so far only as concerns such person, or spouse, or
parent, or child of such person, or any one claiming Codicil, deGined.
under such person or spouse, or parent, or child, be derived from the Latin “codex” and literally means a
void, unless there are three other competent witnesses little code or a little will.
to such will. However, such person so attesting shall be
admitted as a witness as if such devise or legacy had Time When Codicil is Made
not been made or given. (n) cannot be made before a will; it is always made after;
may be revoked by another will or codicil
Witnesses Cannot Inherit
a. Persons named in this Article are incapacitated to Rule in Case of ConGlict between Will and Codicil
inherit, but not incapacitated as witnesses.  The codicil should prevail, it being the later
Example: Alfonso made a notarial will with Luis, expression of the testator’s wishes.
Santiago, and Alonzo as witnesses. In the will, Luis
was given a piece of land as a devise. There were
of course other testamentary provisions. Is this a Article 826. In order that a codicil may be effective, it
valid will?   shall be executed as in the case of a will. (n)
 
Answer: Yes, since there were three credible Formalities of Codicils
witnesses, Luis being one of them. However, while a. notarial or ordinary codicils
Luis is capacitated as a witness, he is b. holographic codicils  
incapacitated to receive the devise, hence, the Note: Either may be revoked by either a notarial
provision regarding said devise should be or holographic codicil.
disregarded, the rest of the will being valid.
b. The disqualiGication extends to:  Notes
1. witness  a. If a codicil is not executed with the formalities of a
2. spouse of the witness  will, said codicil is void.
3. parent of the witness  b. A valid will can never be revoked, expressly or
4. child of the witness  impliedly, by an invalid codicil.
5. anyone claiming the right of said witness,
spouse, parent, or child (creditor of the witness)
Article 827. If a will, executed as required by this Code,
Effect if Witness is a Compulsory Heir incorporates into itself by reference any document or
Said heir is still entitled to the LEGITIME, otherwise paper, such document or paper shall not be considered
this would be an easy way to sort of disinherit him a part of the will unless the following requisites are
without any justiGiable cause. The purpose of the law present:
being to prevent undue inGluence, it is understood
that the prohibition refers only to the free portion. (1) The document or paper referred to in the will must
be in existence at the time of the execution of the will;
Article 824. A mere charge on the estate of the testator
for the payment of debts due at the time of the (2) The will must clearly describe and identify the
testator's death does not prevent his creditors from same, stating among other things the number of pages
being competent witnesses to his will. (n) thereof;
Creditors as Witnesses (3) It must be identiUied by clear and satisfactory proof
a. The charge referred to here is a debt of the estate as the document or paper referred to therein; and
or of the testator.
b. While a creditor who acts as a witness id (4) It must be signed by the testator and the witnesses
disqualiGied to inherit, he is qualiGied to receive on each and every page, except in case of voluminous
his credit, which after all cannot be considered a books of account or inventories. (n)
gift.
Incorporation by Reference SUBSECTION 6. Revocation of Wills and

a. Purpose of Article: to provide for those cases Testamentary Dispositions
when a testator wishes to incorporate to his will
only by reference certain documents or papers, Article 828. A will may be revoked by the testator at
especially inventories and books of accounts. any time before his death. Any waiver or restriction of
b. Said documents or inventories, when referred to this right is void. (737a)
in a notarial will, do not need any attestation
clause, because the attestation clause of the will Revocability of a Will
itself is sufGicient. a. A will is ambulatory and revocable during the
lifetime of the testator since the will concerns a
Requisites for Validity of Documents Incorporated by disposition of properties and rights effective after
Reference death.
a. The document or paper referred to in the will b. The heirs do not acquire any vested right to the
must be in existence at the time of the execution of disposition in a will until after death.
the will.  c. Provisions in a will which are ordered to be
Therefore:  effective immediately, even during the T’s lifetime,
1. Reference to future papers will render the are all right, provided the proper formalities and
incorporation void.  requisites are present, but they are not
2. The will must refer to the papers as having testamentary provisions. 
been already made; it is not enough that in truth it Note: A codicil made after the execution of a will
was already in existence. already probated (Ginal and executory) may still
b. The will must clearly describe and identify the be probated since it may have revoked expressly
same, stating among other things, the number or impliedly the will. And, it is well-‐known that a
pages thereof. will is essentially revocable. It is not indeed
c. It must be identiUied by clear and satisfactory proof essential for both the will and the codicil to have
as the document or paper referred to therein been presented for probate at the same time.
(parol evidence or evidence aliunde is needed Moreover, opposition to the probate of the codicil
here) may still be allowed, even if the opposition had
d. It must be signed by the testator and the not objected to the will itself. This is because, in
witnesses on each and every page, except in case the opinion of the opposition, the codicil may be
of voluminous books of account or inventories.  defective. (Macam v. Gatmaitan)
 
Notes: 
1. Observe that even the number of pages of Article 829. A revocation done outside the Philippines,
voluminous accounts or inventories must be by a person who does not have his domicile in this
stated.  country, is valid when it is done according to the law of
2. The exception refers only to the signing of all the place where the will was made, or according to the
pages; and even here, while not every page has to law of the place in which the testator had his domicile
be signed, still it is believed that there must be a at the time; and if the revocation takes place in this
signature on at least several pages thereof for the country, when it is in accordance with the provisions of
purpose of identify-‐ ing same as the documents this Code. (n)
really referred to.
ConGlicts Rules for Revocation of Wills
Incorporation Can Generally be Done Only In Notarial a. Revocation OUTSIDE the Philippines. 
Wills 1. if not domiciled in the Philippines —  
From the fact that Art. 827(4) speaks of ‘witnesses,’ it (a) follow law of place where will was made or
is reasonable to believe that as a rule, only notarial (b) law of place of domicile at the time 
wills can have this incorporation by reference. 2. if domiciled in the Philippines — 
However, it is submitted that: (a) follow law of the Philippines or (b) follow the
a. if a holographic will happen to have at least three genera rule of lex loci celebrationis of the
credible and qualiGied witnesses, there can be a revocation
proper incorporation by reference b. Revocation IN the Philippines, follow Philippine
b. if a holographic will (with no witnesses) refers to law. 
a document entirely written, dated, and signed in Note: This is true whether or not the domicile is
the handwriting of the T, there can also be a in the Philippines.
proper incorporation by reference.
Article 830. No will shall be revoked except in the

following cases:
(1) By implication of law; or b. There must be a completion at least of
the subjective phase of the overt act.
(2) By some will, codicil, or other writing executed as c. There must be animus revocandi or
provided in case of wills; or intent to revoke.
d. The testator at the time of revoking must
(3) By burning, tearing, canceling, or obliterating the have capacity to make a will.
will with the intention of revoking it, by the testator e. The revocation must done by the testator
himself, or by some other person in his presence, and by himself, or by some other person in his
his express direction. If burned, torn, cancelled, or presence and by his express direction.
obliterated by some other person, without the express
direction of the testator, the will may still be The overt act of BURNING
established, and the estate distributed in accordance a. It is sufGicient even if a small part of the
therewith, if its contents, and due execution, and the instrument itself be burned even though
fact of its unauthorized destruction, cancellation, or the entire writing itself be left untouched.
obliteration are established according to the Rules of b. If thrown into the Gire with intent to
Court. (n) revoke, and it was burned in three places
without scorching the writing, there is
Local or Domestic Ways of Revocation already a revocation even if, unknown to
a. by implication or operation of law (totally or the testator, somebody was able to snatch
partially) it from the Gire and thus saved it.
b. by virtue of an overt act (burning, tearing, c. Burned accidentally — there is no
canceling, or obliterating totally or partially) revocation in view of lack of intention
c. by virtue of a revoking will or codicil (totally or d. If the envelope containing a will is
partially, expressly or impliedly) burned, but the will itself is untouched —
no revocation even if there be intent to
Revocation by Implication of Law revoke
a. Meaning — kind of revocation produced by  
operation of law when certain acts or events take Situation: Luis wanted to revoke his
place after a will has been made,rendering void or will, so he threw it into a stove so that it
useless either the whole will or certain would be burned later on when a Gire
testamentary dispositions therein (Note: would be lighted in the stove. However,
revocation of a legacy or devise does not revoke the will was later removed by another
the entire will) person from the stove BEFORE the
b. Reason for allowing revocation by implication of stove was lighted.  
law — There may be certain changes in the family
or domestic relations or in the status of his Held: There was no revocation here, for
property, such that the law presumes a change of while there was intent to revoke, there
mind on the part of the testator. never was the overt act of burning.
c. Some instances of revocation by implication of However, the person who prevented the
law:  revocation, if he be an heir or a legatee
1. When after the testator has made a will, he or devisee, will still NOT inherit, not
sells, or donates the legacy or devise  because of revocation by means of an
2. Provisions in a will in favor of a spouse who has overt act, but because of revocation by
given cause for legal separation — revoked the implication of law, said person being
moment a decree of legal separation is granted  incapacitated to inherit by reason of
3. heir, legatee, or devisee commits an act of unworthiness. 
unworthiness   
4. A credit had been given as a legacy is judicially Note: It is clear that the physical act of
demanded by the testator  destruction of a will, like burning in this
5. When one, some or all the compulsory heirs case, does not per se constitute an
have been preterited or omitted, the institution of effective revocation, unless the
heirs is void. destruction is coupled with animus
d. Revocation by implication of law exists — we revocandi on the part of the testator. It
presume a change of mind on the part of the is not imperative that the physical
testator destruction be done by the testator
himself.
Revocation by an Overt Act
Requisites (must concur): The overt act of TEARING
a. There must be an overt act speciGied by a. Even a slight tear is sufGicient.
the law.
b. The greater the degree of tearing the Doctrine of Conditional Revocation — Revocation
greater is the evidence of animo takes place only if the condition is fulGilled (a.k.a.
revocandi.   ’dependent relative revocation’)
Situation: In a Git of anger, a testator tore e. Situation: Luis made will no. (1). After one week,
his will twice and was continuing to so he wanted to revoke the same, so he executed will
tear when somebody held his arms and no. (2), expressly revoking will no. (1). In the
persuaded him to refrain from tearing belief that he had already accomplished what he
the will. He was prevailed upon. He then wanted, he then tore into two pieces will no. (1).
placed the torn pieces in his pocket and On his death, it was discovered that will no. (2)
said, “Nothing signiGicant has after all had not been validly executed. 
been torn.” Later, the testator died, and Question: Can we consider will no. (1) as having
the torn will was found. Was there a been revoked, or should it still be given effect? 
revocation here?  Answer: The revocation by destruction or overt
Answer: None for the act of tearing was act was good on if this condition is fulGilled,
subjectively not yet complete, inasmuch namely, that the revoking will was valid. The
as he had intended to tear up the will condition was not fulGilled; therefore, the
some more. revocation by overt act (will no. 1) did not really
c. “Tearing” includes cutting.  materialize.
Note: The mere act of ‘crumpling’ or the f. A second will referred to by the testator as his
removal of the ‘fastener’ binding the “last will” revokes completely the Girst will,
pages of a will, does not constitute a particularly if the provision of the two, as to who
revocation, even though there be animo were being instituted as heirs, are inconsistent.
revocandi. Crumpling is not one of the
overt acts provide for by the law, but if Probate of Lost or Destroyed Notarial Wills
coupled with animo revocandi, impliedly If a notarial will has been lost or destroyed without
allowed. (Roxas v. Roxas) intent to revoke, its contents may nevertheless still be
proved by:
The overt act of OBLITERATING or CANCELING a. oral or parol evidence
a. Obliteration — renders the word b. carbon copies
illegible; cancellation — drawing of lines  
across a text, but the words remain Note: Holographic wills, which have been lost or
legible destroyed without intent to revoke, cannot be
b. Either of the two revokes a will, totally or probated. But the same may be proved by means of a
partially. photostatic or xerox copy thereof because the
c. If all parts are cancelled or obliterated, or authenticity of the handwriting of the deceased can
i f t h e s i g n a t u re i s c a n c e l l e d o r be determined by the probate court.
obliterated, the whole will is revoked, the
reason in the car of the signature being
that the act strikes at the existence of the Article 831. Subsequent wills which do not revoke the
whole instrument. previous ones in an express manner, annul only such
d. Cancellation or obliteration of non-‐vital dispositions in the prior wills as are inconsistent with
part leaves the other parts in force. or contrary to those contained in the later wills. (n)
Mutilated by error Implied Revocation Thru Wills

mutilated, there being no animo revocandi, a. Implied revocation may be total or partial. Partial
there is NO revocation. — if there is inconsistency only in certain
provisions.
Revocation by the Execution of Another Will or b. The law does not favor revocation by implication,
Codicil and therefore efforts to reconcile must be made.
a. Revocation in this manner may be express or
implied. (Implied — consists in complete
inconsistency between the two wills) Article 832. A revocation made in a subsequent will
b. A will may be revoked by a subsequent will or shall take effect, even if the new will should become
codicil, either notarial or holographic. inoperative by reason of the incapacity of the heirs,
c. It is essential however, that the revoking will be devisees or legatees designated therein, or by their
itself a valid will. renunciation. (740a)
d. The revocation made in the subsequent will must
indeed be a deUinite one. A mere declaration that Effect on Revocation if New Will is Inoperative
sometime in the future, the Girst would be a. There is a difference between an invalid will, and
revoked, is not enough.  a valid but ineffective will.
b. An invalid will cannot revoke. But a valid though

ineffective will can revoke. 
Situation:   SUBSECTION 7. Republication and Revival of Wills
Alfonso made a will making Luis his heir. Later,
Alfonso expressly revoked his Girst will by Article 835. The testator cannot republish, without
executing a second will containing a revocatory reproducing in a subsequent will, the dispositions
clause. Alfonso made Antonio his heir. The second contained in a previous one which is void as to its form.
will was validly made, but on Alfonso’s death, (n)
Antonio refused to accept the inheritance. Is the
Girst still revoked?  Republication, deGined.
Answer: Yes. Therefore, Alfonso will be considered the process of re-‐establishing a will, which has
to have died intestate, and Luis cannot inherit, become useless because it was void, or had been
except, if he one of the intestate heir. revoked.
How made.
Article 833. A revocation of a will based on a false a. re-‐execution of the original will (original
cause or an illegal cause is null and void. (n) provisions are copied)
b. execution of a codicil (implied republication)
Revocation based on False or Illegal Cause
a. This is one of the aspects of ‘dependent relative
revocation’ — a revocation made under a mistake.  Article 836. The execution of a codicil referring to a
Situation: Glenn made a will making Arnold his previous will has the effect of republishing the will as
heir. Glenn then learned that Arnold was dead, so modiUied by the codicil. (n)
he made another will instituting Derek as heir. If
Arnold tuns out to be still alive, who inherits?  Requisites and Limitations of Republication
Answer: Arnold still inherits, because the a. To republish a will void as to its form, all the
revocation was based on false cause. dispositions must be reproduced or copied in the
b. The fact that the cause for the revocation was a new or subsequent will.
false belief or a mistake must be found on the face b. To republish a will valid as to its form but already
of the will or codicil itself. revoked, the execution of a codicil which makes
c. If the testator states in his second will: “I am not reference to the revoked will is sufGicient. (Mere
sure whether A is dead or still alive. However, I reference is enough; there is no necessity of
hereby revoke the legacy to him which I made in reproducing all the previous dispositions.)
my Girst will.” Is there a revocation of the legacy? 
Yes. For here, he cannot be said to be proceeding Effects of Republication By Virtue of a Codicil
upon an error. a. The codicil revives the previous will.
b. The old will is republished as of the date of the
codicil — makes it speak, as it were, from the new
Article 834. The recognition of an illegitimate child and later date.
does not lose its legal effect, even though the will c. A will republished by a codicil is governed by a
wherein it was made should be revoked. (741) statue enacted subsequent to the execution of the
will, but which was operative when the codicil
Effect of Revocation on the Recognition of an was executed.
Illegitimate Child
a. According to Art. 278, voluntary recognition of an Example: At the time a notarial will was
illegitimate child may be done:  executed with two witnesses, the law
1. in a record of birth  required three. Suppose later on, the law
2. will  changed the required number to two, and
3. statement before a court of record  sup-‐ pose this time a codicil referring to the
4. any authentic writing  will is made with two (as required)
Note: Now then, if the will in which recognition witnesses, is the old will republished?  
had been is subsequently revoke, the recognition  
remains valid. Answer: While it is true that generally a void
b. Reason for this Article: While a will is essentially will (as to its form) cannot be republished
revocable, recognition is irrevocable; recognition merely by reference in a later valid codicil,
is not really a testamentary provision and it does and while it is true that according to Art. 795,
not wait for the T’s death to become effective.  the validity of a will as to its form depends
Note: This applies only if the recognizing will is upon the observance of the law in force at
extrinsically valid — otherwise there would be no the time it is made, still it is submitted that in
recognition that can be revoked. this particular case, there was a valid
republication because of the fact that here, Problems

the defect has been cured. Moreover, from a. I made 3 wills. Will no. 2 expressly revoked will
one viewpoint, it may be said that no. 1. Will no. 3 revoked will no. 2. Is will no. 1
republication is still part of the process of revived? 
making, referred to in Art. 795.   No. The rule is based on the principle that the
  revocatory clause of the second will took effect
HOWEVER, the general rule may be immediately or at the instant revoking will was
illustrated thus: if at the time the codicil was made. (principle of ‘INSTANTER’)
made, the law still requires three witnesses, b. I made 3 wills. 2 is completely inconsistent with,
then the codicil, even if it has by itself three and therefore, impliedly repeals 1. Later, 3
witnesses, cannot by mere reference, revokes 2. Is 1 revived? 
republish the old void will, which had only Yes. This is a clear inference from Art. 837. Since
two witnesses. The way to republish such the Article uses the word “expressly,” it follows a
void will is to execute another will (or even a sensu contrario (contrariwise) that in case of an
codicil) which would REPRODUCE all the “implied” revocation by the second will, an
previous dispositions. automatic revival of the Girst occurs. Apparently,
the reason is the fact that an “implied revocation”
Question: Can a will, invalid because of fraud is ambulatory, the inconsistency be-‐ ing truly and
or force or undue inGluence or actually apparent only mortis causa, when the
because the T was under 18 or was properties are distributed.
insane, be republished by mere c. Luis made will no. 1, then no. 2 expressly
reference in a codicil? revoking the Girst. Then he destroyed no. 2, and
orally expressed his desire that his Girst will be
Answer: Yes, because this is not a case when followed. Should this be allowed? 
the will is void as to its form. No, the oral expression of the desire to revive
cannot be given effect. He should have made a
new will or codicil.
Article 837. If after making a will, the testator makes a
second will expressly revoking the Uirst, the revocation
of the second will does not revive the Uirst will, which SUBSECTION 8. Allowance and Disallowance of
can be revived only by another will or codicil. (739a) Wills
Use of Republication and Revival Article 838. No will shall pass either real or personal
A void will or a revoked one is a nullity, devoid of any property unless it is proved and allowed in accordance
effect, and is useless. And the only ways of giving with the Rules of Court.
effect to it are:
a. republication The testator himself may, during his lifetime, petition
b. revival the court having jurisdiction for the allowance of his
will. In such case, the pertinent provisions of the Rules
Republication v. Revival of Court for the allowance of wills after the testator's a
a. Republication — act of the testator death shall govern.
b. Revival — by operation of law; the restoration or
reestablishment of revoked will or revoked The Supreme Court shall formulate such additional
provisions thereof, to effectiveness, by virtue of Rules of Court as may be necessary for the allowance of
legal provisions  wills on petition of the testator.
Note: Aside from republication and revival, there
is no other way of restoring effectiveness. Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his
Example of Revival death, shall be conclusive as to its due execution. (n)
a. While omission of a compulsory heir in the
institution of heirs annuls the institution, still if Probate, deGined.
the omitted heir dies ahead of the testator, the the act of proving before a competent court the due
institution is revived, without prejudice to the execution of a will by a person possessed of
right of representation. testamentary capacity, as well as approval thereof by
b. If after making a will, the testator makes a second said court.
will impliedly revoking the Girst, the revocation of
the second will revives the Girst will. *Probate is one thing; the validity of the testamentary
provisions is another. The Girst decides the execution
of the document and the testamentary capacity of the
testator; the second deals with descent and b. He then follows the procedure for the post
distribution. mortem of ordinary probate, except insofar as the
Supreme Court may impose additional rules for
Two Kinds of Probate ante mortem probates
a. Probate during the testator’s lifetime. The c. Reason for allowing this kind of probate — to
testator may still revoke or alter his will that has prevent or minimize fraud, intimidation, and
already been probated. undue inGluence; also to enable the testator to
b. Probate after the testator’s death. correct at once failure to observe legal
requirements.
Need for a Probate
a. “No will shall pass either or real or personal Salient Points in Procedures of the Post-‐Mortem
property unless it is proved and allowed in Probate
accordance with the Rules of Court.” Even if only Two parts of Post-‐Mortem Probate: 
one heir has been instituted, there must still be 1. Probate proper (deals with extrinsic validity)
the judicial order of adjudication.  2. inquiry into the intrinsic validity and the
Thus in probate proceedings, the court —  distribution of properties
1. orders the probate of the will 
2. grants letters testamentary or letters with a a. At any time after the testator dies, the will may be
will annexed  presented for probate by any executor, devisee, or
3. hears and approves claims against the estate  legatee, or interested person.
4. orders the payment of the lawful debts  b. This is true whether or not the petitioner has the
5. authorizes the sales, mortgage, or any other will in his possession, or its in somebody else’s
encumbrance of real estate  possession, or has been lost or destroyed, as long
6. and directs the delivery of the estate or as there was no animo revocandi.
properties to those who are entitled thereto c. Even if a will has already been probated, if later
b. “The will shall not be presented before the on a subsequent will is discovered, the latter may
courts” is a void provision, for a person cannot by still be presented for pa probate.
his actuations deprive a competent court of its d. The petition for probate must among other things
jurisdiction. state: 
c. However, the heirs concerned may extrajudicially 1. the fact that the testator is dead, and the place
agree to partition the property among them, even and time of said death 
though such partition is not in accordance with 2. the fact that the deceased left a will, copy of
the provisions of the will. If any heir not included which has to be attached to the petition 
in the partition feels aggrieved, his remedy would 3. the fact that the will was executed in
of course be to ask for the probate of the will.  accordance with legal requirements 
Note: The probate of a will is essential, Uirstly, 4. names, ages, addresses of the executor and all
because the law expressly requires it; secondly, interested parties or heirs 
probate is a proceeding in rem and, therefore, 5. the probable value and character of the
cannot be dispensed with or substituted by any property of the estate 
other proceeding, judicial or extrajudicial without 6. the name of the individual whose appointment
offending public policy; thirdly, the right of a as executor is being asked for 
person to dispose of his property by virtue of a 7. if the will has not been delivered to the court,
will may be rendered nugatory; and fourthly, the name of the person who is supposed to have
because absent legatees and devisees, or such of the will in his custody
them as may have no knowledge of the will could
be cheated of their inheritance thru the collusion Effect of Probate Proper
of some of the heirs who might agree to the As long as there has been Ginal judgment by a court of
partition of the estate among themselves to the competent jurisdiction, and the period of Giling a
exclusion of others. petition for relief has expired without such petition
d. Even a void will, or one that has been refused having been submitted, the probate proper (or
probate may in certain cases give rise to a natural allowance) of the will is binding upon the whole
obligation. world insofar as testamentary capacity and due
execution are concerned.
Other names for Probate
‘probate,’ ‘legalization,’ ‘protocalization,’ and Court of competent jurisdiction
‘authentication’ The RTC of the province—
a. where the real estate is located (non-‐resident)
Procedure and Reason for ‘Ante Mortem’ Probate b. where the testator resided at the time of his death
a. Testator himself petitions the competent court for (resident)
the probate of his will. Moreover, it is essential that
a. it be proved before the court that testator died

after having executed a will (3) If it was executed through force or under duress, or
b. and that the will has already been delivered to the the inUluence of fear, or threats;
court
(4) If it was procured by undue and improper pressure
Notes: and inUluence, on the part of the beneUiciary or of some
1. As a general rule questions as to title to property other person;
cannot be passed upon in testate or intestate
proceedings, except where one of the parties (5) If the signature of the testator was procured by
prays merely for the inclusion or exclusion from fraud;
the inventory of the property, in which case the
probate court may pass provisionally upon the (6) If the testator acted by mistake or did not intend
question without prejudice to its Ginal that the instrument he signed should be his will at the
determination in a separate action. time of afUixing his signature thereto. (n)
2. There is no prescriptive period for instituting
probate proceedings. Grounds for Disallowance of a Will
3. The rule of estoppel does not apply to probate The grounds are exclusive, thus, no other ground can
proceedings for they are invested with public serve to disallow a will.
interest, and if estoppel would be applied, the
ascertainment of the truth may be blocked. This Ground of Force, Duress, Fear or Threat
should be avoided for the primary purpose of a a. these connote the idea of coercion, mental or
probate is not the protection of the interest of physical
living persons. b. While their presence in a contract renders it
voidable, their presence in a will renders the will
Requirements before distribution of properties void.
a. First, there must be a decree of partition
allocating property to each. Ground of Undue and Improper Pressure and
b. Payment of the estate tax InGluence
c. Finally, the distributive shares may be delivered.   a. Undue inUluence connotes the idea of coercion by
Note: It is important to note that according to the virtue of which the judgment of the testator is
Supreme Court — a project of partition, although displaced, and he is induced to do that which he
made and subscribed by all the heirs, and so, otherwise would not have done.
ordinarily bind-‐ ing on them, even when b. He who alleges undue inGluence must prove the
approved by the probate court, does NOT mean same.
that said court is thereafter divested of c. There is no UI just because a T has made his
jurisdiction over the same. If later, especially mistress, or his illegitimate child by her, the heir
within a reasonable time after the approval of to the entire free portion, as long as the giving
said partition, it is proved that in obtaining was voluntary.
approval, fraud had been practiced, the probate d. Mere inequality, no matter how great, in
court may still modify or even set aside the order distributing the estate is not evidence of undue
approving the partition. inGluence.
e. If UI has vitiated only some of the dispositions,
Termination of Probate Proceedings the rest should be considered valid.
Probate proceedings are considered terminated upon
the arrival by the probate court of the project of Ground of Fraud
partition, the granting of the petition to close the a. Fraud is the use of insidious machinations to
proceedings, and he consequent issuance of the order convince a person to do what ordinarily he would
of distribution directing the delivery of the properties not have done.
to the heirs in accordance with the adjudication made b. Fraud in a contract renders it voidable; in a will,
in the will. same is cause for disallowance because the will is
void.
c. Fraud and undue inGluence are mutually
Article 839. The will shall be disallowed in any of the repugnant and exclude each other; their joining
following cases: as grounds for opposing probate shows the
absence of deGinite evidence against the validity
(1) If the formalities required by law have not been of the will.
complied with;
Ground of Mistake or Lack of Testamentary Intent
(2) If the testator was insane, or otherwise mentally Insofar As the Document is Concerned
incapable of making a will, at the time of its execution;
Example: A man signed a document not believing it to

be a will. This mistake is a ground for disallowance.
Revocation v. Disallowance or Nullity

Revocation Disallowance / Nullity
voluntary act of the by judicial order

testator
with or without case must always be for a legal

cause
partial or total always total (except when

the ground of fraud or UI
affects only certain portions
of the will)

NOTES ON SUCCESSION KEY TERMS AND CONCEPTS

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

NOTES ON SUCCESSION KEY TERMS AND CONCEPTS

Hochgeladen von

Copyright:

Verfügbare Formate

NOTES ON SUCCESSION Pre-Midterm Coverage Succession by Paras; Atty.

Simple or common (sustitucion vulgar): also known

Inheritance: properties or rights acquired by the heir,

Succession Mortis Causa, deGinition. Properties

Notes: Question: Decedent dies on January 26, 1992; his

appoint an administrator, and the heirs may enter

(1) Testamentary; After-­‐Acquired Properties

a. Is this disposition by virtue of a will?

Possibility of Dual Status Answers:

Will v. Testament Discretion of a Third Person

the testator as to his intention; and when an

b. Patent or Extrinsic Ambiguity -­‐ that which

Extrinsic Validity Intrinsic Validity c.

Supervening of Incapacity or Capacity

What Wide Can Dispose of in Her Will

Article 812. In holographic wills, the dispositions of the

Wills that are NOT Joint Wills

probate, he cannot testify as a witness. This does

Incorporation by Reference SUBSECTION 6. Revocation of Wills and

Article 830. No will shall be revoked except in the

Mutilated by error Implied Revocation Thru Wills

b. An invalid will cannot revoke. But a valid though

republication because of the fact that here, Problems

a. it be proved before the court that testator died

Example: A man signed a document not believing it to

Revocation v. Disallowance or Nullity

voluntary act of the by judicial order

with or without case must always be for a legal

partial or total always total (except when

Das könnte Ihnen auch gefallen

Succession Mortis Causa, deGinition.  Properties

(1) Testamentary; After-‐Acquired Properties

Possibility of Dual Status  Answers:

b. Patent or Extrinsic Ambiguity -‐ that which

Extrinsic Validity Intrinsic Validity c.  