Purposes of requiring witness to attest and to subscribe to a will: 1. identification of the instrument 2.

protection of the testator from fraud and deception 3. the ascertainment of the testamentary capacity of the testator. NOTE: Certain points to consider (Tolentino) 1. Mere knowledge by testator that another is signing, and acquiescing in it, there being no express direction, is NOT sufficient. 2. Not required that the name of the person who writes the testators name should also appear on the will; enough that testators name is written. 3. If the required numbers of attesting witness are competent, the fact that an additional witness, who was incompetent also attested to the will, cannot impair the validity. 4. Immaterial in what order the acts are performed provided the signature or acknowledgment by the testator and the attestation of the witnesses be accomplished in one occasion, and as part of one transaction. 5. The law refers to page and not to sheet or leaf or folio, so every page used in the will should be signed on the left margin. 6. An attestation clause need be signed ONLY by the witnesses and not by the testator as it is a declaration made by the witnesses. 7. date of will: a. ordinary will: not an essential part; b. holographic will: an essential part. 8. Failure or error to state the place of execution will not invalidate the will. 9. Signing of a will by the testator and witnesses and acknowledgment before a notary public, need not be a single act. 10. Testamentary capacity must also exist at the time of acknowledgment. ADDITIONAL REQUIREMENTS FOR SPECIAL CASES 1. Deaf or deaf-mute testator: a) personal reading of the will, if able to do so; OR b) if not possible, designation of 2 persons to read the will and communicate to him, in some practicable manner, the contents thereof. (Article 807) 2. Blind testator: Double-reading requirement: a. first, by one of the subscribing witnesses, AND b. second, by the notary public before whom the will is acknowledged. (Article 808)

Art. 808 applies not only to blind testators but also to those who, for one reason or another are incapable of reading their wills (e.g. poor, defective or blurred vision).

In a case where the testator did not read the final draft of the will, but the lawyer who drafted the document, read the same aloud in the presence of the testator, 3 witnesses, and notary public, the Court held that the formal imperfections should be brushed aside when the spirit behind the law was served though the letter was not. (Alvarado vs. Gaviola 226 SCRA 347) WITNESS TO NOTARIAL WILLS (ARTS. 820 & 821) Requirements: 1. of sound mind; 2. able to read and write; 3. not blind, deaf or dumb; 4. at least 18 years of age; 5. domiciled in the Philippines; 6. has not been convicted of falsification of a document, perjury, or false testimony NOTE: A witness need not know the contents of the will, and need not be shown to have had a good standing in the community where he lives. Also, the acknowledging notary public cannot be one of the 3 minimum numbers of witnesses. Interested witness A witness to a will who is incapacitated from succeeding from the testator by reason of a devise/legacy or other testamentary disposition therein in his favor, or in favor of his spouse, parent, or child. However, his competence as a witness subsists. 2. HOLOGRAPHIC WILL (Article 810) a. entirely written by the hand of the testator; b. entirely dated by the hand of the testator; and c. entirely signed by the hand of the testator. NOTE: The law exacts literal compliance with these requirements. HENCE, THE DOCTRINE OF LIBERAL INTERPRETATION CANNOT BE APPLIED.

 Nevertheless, the Court held in a case that as a general rule, the

date in a holographic will should include the day, month, and year of its execution. However, when there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the will is established and the only issue is whether or not the date FEB./61 appearing on the will is a valid compliance with Art. 810, probate of the holographic will should be allowed under the principle of substantial compliance. (In the matter of Intestate Estate of Andres de Jesus and Bibiana Roxas de Jesus, 134 SCRA 245)

NOTE: Where the testator himself petitions for the probate of his holographic will and no contest is file, the fact that he affirms that the holographic will and the signature are in his own handwriting, shall be sufficient evidence thereof. If the holographic will is contested, the burden of disproving the genuineness and due execution thereof shall be on the contestant. A photostatic or xerox copy of a lost or destroyed holographic will may be admitted because the authenticity of the handwriting of the deceased can be determined by the probate court, as comparison can be made with the standard writings of the testator. (Rodelas vs. Aranza, 119 SCRA 16) GOVERNING LAW ON FORMALITIES 1. As to time: The validity of a will as to its form depends upon the observance of the law in force at the time it is made. Its intrinsic validity, however, is judged at the time of the decedents death by the law of his nationality.

Rule in case of insertion, cancellation, erasure or alteration: Testator must authenticate the same by his FULL SIGNATURE. (Article 814) NOTE: In the case of Kalaw vs. Relova (134 SCRA 241), the holographic will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire will is voided or revoked for the simple reason that nothing remains in the will after that which could remain valid. Effects of words written by another and inserted in the words written by the testator: a. If the insertion was made after the execution of the will, but without the consent of the testator, such insertion is considered as not written, because the validity of the will cannot be defeated by the malice or caprice of third person. b. If the insertion after the execution of the will was with the consent of the testator, the will remains valid but the insertion is void. c. If the insertion after the execution is validated by the testator by his signature thereon, then the insertion becomes part of the will, and the entire will becomes void, because of failure to comply with the requirement that it must be wholly written by the testator. d. If the insertion made by a third person is made contemporaneous to the execution of the will, then the will is void because it is not written entirely by the testator. Probate of Holographic Will 1. If UNCONTESTED, requires that at least 1 witness who knows the handwriting and signature of the testator explicitly declare that the will and signature are in the handwriting of the testator; if no witness, expert testimony may be resorted to. 2. If CONTESTED, requires at least 3 of such credible witnesses, if none expert witness.

2. As to place:
a. Filipino testator executing a will in the Philippines: Philippine law b. Filipino testator executing a will outside of the Philippines: either 1) The law of the country in which it is executed; or 2) The law of the Philippines. c. Alien testator executing a will in the Philippines: either 1) The law of the Philippines; or 2) The law of the country of which he is a citizen or subject. d. Alien testator executing a will outside of the Philippines: either 1) The law of the place where it is executed; or 2) The law of the place in which he resides; or 3) The law of his country; or 4) The law of the Philippines. Aspects of the will governed by National Law of the Decedent (Article 1039 and Article 16 Civil Code) a. Order of succession b. Amount of successional rights c. Intrinsic validity d. Capacity to succeed Joint will a single testamentary instrument which contains the wills of two or more persons, jointly executed by them, either for their reciprocal benefit or for the benefit of a third person

--will of 2 or more persons is made in the same instrument and is jointly signed by them Mutual wills wills executed pursuant to an agreement between two or more persons to dispose of their property in a particular manner, each in consideration of the other --separate wills of 2 persons, which are reciprocal in their provisions. Reciprocal wills- wills in which the testators name each other as beneficiaries under similar testamentary plans NOTE: A will that is both joint and mutual is one executed jointly by two or more persons, the provisions of which are reciprocal and which shows on its face that the devises are made in consideration of the other. Such is prohibited. Reasons: 1. will is purely personal and unilateral act 2. contrary to the revocable character of a will 3. may expose the testator to undue influence, and may even induce one of the testators to kill the other. NOTE: Joint wills executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the foreign country in which they may have been executed (Article 819 Civil Code). This prohibition is applicable only in joint wills executed by Filipinos in a foreign country; it does NOT APPLY to joint wills executed by aliens. E. CODICIL AND INCORPORATION BY REFERENCE CODICIL A supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which any disposition made in the original will is explained, added to, or altered. (Article 825) NOTE: To be effective, it must be executed as in the case of a will. Its execution has the effect of republishing the will as modified.

Contemplates only lists of properties, books of accounts, and inventories. Provisions which are in the nature of testamentary dispositions must be contained in the will itself. Requisites for a valid incorporation by reference: (ART 827) 1. The document or paper referred to in the will must be in existence at the time of the execution of the will; 2. The will must clearly describe and identify the same, stating among other things the number of pages thereof; 3. It must be identified by clear and satisfactory proof as the document or paper referred to therein; 4. It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories. F. REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS REVOCATION An act of the mind, terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward or visible act or sign, symbolic thereof. Such right to revoke a will cannot be waived or restricted. LAWS WHICH GOVERN REVOCATION (ART 829) 1. If the revocation takes place in the Philippines, whether the testator is domiciled in the Philippines or in some other country, it is valid when it is in accordance with the laws of the Philippines 2. If the revocation takes place outside the Philippines, by a testator who is domiciled in the Philippines, it is valid when it is in accordance with the laws of the Philippines 3. Revocation done outside the Philippines, by a testator who does not have his domicile in this country, is valid when it is done according to the: a. laws of the place where the will was made, or b. laws of the place in which the testator had his domicile at the time of revocation; MODES OF REVOCATION (ART 830) 1. By implication of law: a. legal separation revokes testamentary provisions in favor of the offending spouse; b. preterition revokes the institution of heir;

INCORPORATION BY REFERENCE (ART 827)

c. judicial action for recovery of debt revokes a legacy of credit/remission of debt; d. transformation, alienation, or loss of bequeathed property revokes a legacy of such property; e. act of unworthiness by an heir, devisee/legatee revokes testamentary provisions in his favor; f. if both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and testamentary dispositions made by one in favor of the other are revoked by operation of law (Art. 44, Family Code); and g. void ab initio or annulled marriages revoke testamentary dispositions made by one spouse in favor of the other (Art. 50, Family Code). 2. By some will, codicil, or other writing, executed as provided in case of wills, which may either be: a. Express when there is a revocatory clause expressly revoking the previous will or a part thereof b. Implied when the provisions thereof are partially or entirely inconsistent with those of the previous will NOTE: While express revocation may be effected by a subsequent will, or a codicil, or a nontestamentary writing executed as provided in case of wills, implied revocation may be effected only by either a subsequent will, or a codicil. 3. By burning, tearing, cancelling, or obliterating the will. Requisites: a. testamentary capacity at the time of performing the act of destruction; b. intent to revoke (animus revocandi); c. actual physical act of destruction; d. completion of the subjective phase; and e. performed by the testator himself or by some other person in his presence and express direction (THE LIST IS EXCLUSIVE.) NOTE: The act of revocation is a personal act of the testator. He cannot delegate to an agent the authority to do the act for him. Another person, however, may be selected by him as an instrument and directed to do the revocatory acts in his presence. A destruction not accomplished in the testators presence is an ineffective revocation of the will. DOCTRINE OF PRESUMED REVOCATION Whenever it is established that the testator had in his possession or had ready access to the will, but upon his death it cannot be found or located, the presumption arises that it must have been revoked by him by an overt act.

Where it is shown that the will was in custody of the testator after its execution, and subsequently, it was found among the testators effects after his death in such a state of mutilation, cancellation or obliteration as represents a sufficient act of revocation, it will be presumed in the absence of evidence to the contrary, that such act was performed by the testator with the intention of revoking the will. DOCTRINE OF DEPENDENT RELATIVE REVOCATION (ART 832) A revocation subject to a condition does not revoke a will unless and until the condition occurs. Thus, where a testator revokes a will with the proven intention that he would execute another will, his failure to validly make a latter will would permit the allowance of the earlier will. Where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force (Vda. De Molo vs. Molo 90 Phil 37). Revocation by mistake A revocation of a will based on a false cause or an illegal cause is null and void. Thus, where a testator by a codicil or later will, expressly grounding such revocation on the assumption of fact which turns out to be false, as where it is stated that the legatees/devisees named therein are dead, when in fact, they are living, the revocation does not take effect. G. REPUBLICATION AND REVIVAL OF WILLS REPUBLICATION The act of the testator whereby he reproduces in a subsequent will (express) the dispositions contained in a previous will which is void as to its form, or he executes a codicil (constructive) to his will. Its purpose is to cure the will of its formal defects. NOTES: To republish a will void as to its form, all the dispositions must be reproduced or copied in the new or subsequent will; To republish a will valid as to its form but already revoked the execution of a codicil which makes reference to the revoked will is sufficient.

Effects of Republication by virtue of a Codicil: 1. Codicil revives the previous will 2. The old will is republished as of the date of the codicil makes it speak, as it were, from the new and later date. 3. A will republished by a codicil is governed by a statute enacted to the execution of the will, but which was operative when the codicil was executed. REPUBLICATION
1. Takes place by an act of the testator 2. Corrects extrinsic and intrinsic defects.

GENERAL RULE: In probate proceeding, the courts area of inquiry is limited to an examination of, and resolution on the extrinsic validity if the will, the due execution thereof, the testatrixs testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The probate court cannot inquire into the intrinsic validity of testamentary provisions. EXCEPTION: Practical considerations, e.g. when the will is intrinsically void on its face.

REVIVAL
1. Takes place by operation of law. 2. Restores revoked will a

In Nuguid vs Nuguid (17 SCRA 449), the Supreme Court held that, if the

REVIVAL The restoration to validity of a will previously revoked by operation of law (implied revocation). PRINCIPLE OF INSTANTER The express revocation of the first will renders it void because the revocatory clause of the second will, not being testamentary in character, operates to revoke the previous will instantly upon the execution of the will containing it. NOTE: In implied revocation, the first will is not instantly revoked by the second will because the inconsistent testamentary dispositions of the latter do not take effect immediately but only after the death of the testator. H. ALLOWANCE AND DISALLOWANCE OF WILLS PROBATE A special proceeding mandatorily required for the purpose of establishing the validity of a will. The statute of limitations is not applicable to probate of wills. Questions determinable by the probate court: (ICE) 1. identity of the will; 2. testamentary capacity of the testator at the time of the execution of the will; and 3. due execution of the will.

case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation would be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. RESULT: waste of time, effort, expense, plus added anxiety.

In Nepomuceno vs CA (139 SCRA 207), the Court ruled that the court
can inquire as to the intrinsic validity of the will because there was an express statement that the beneficiary was a mistress. NOTES:

Criminal action will not lie against the forger of a will which had been

duly admitted to probate by a court of competent jurisdiction. (Mercado vs. Santos 66 Phil. 215)

The fact that the will has been allowed without opposition and the

order allowing the same has become final and executory is not a bar to the presentation of a codicil, provided it complies with all the formalities for executing a will. It is not necessary that the will and codicil be probated together as the codicil may be concealed by an interested party. They may be probated one after the other. (Macam vs. Gatmaitan 60 Phil 358)

When a will is declared void because it has not been executed in

accordance with the formalities required by law, but one of the intestate heirs, after the settlement of the debts of the deceased, pays a legacy in compliance with a clause in the defective will, the payment is effective and irrevocable (Article 1430, NCC; Natural Obligations).

Grounds for Disallowance of a Will (ART 839)

1. Formalities required by law have not been complied with; 2. Testator was insane, or otherwise incapable of making a will, at the time of its execution; 3. Will was executed through force or under duress, or the influence of fear, or threats; 4. Will was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; 5. Signature of the testator was procured by fraud; 6. Testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. NOTE: GROUNDS ARE EXCLUSIVE.

INSTITUTION An act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (Art 840) The proper test in order to determine the validity of an institution of heir is the possibility of finally ascertaining the identity of the instituted heir by intrinsic or extrinsic evidence. PRESUMPTIONS 1. Presumption of Equality Heirs instituted without designation of shares shall inherit in equal parts. This is limited only to the case where all of the heirs are of the same class or juridical condition, and where there are compulsory heirs among the heirs instituted, it should be applied only to the disposable free portion. 2. Presumption of Individuality When the testator institutes some heirs individually and others collectively, those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. 3. Presumption of Simultaneity when the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively. INSTITUTION BASED ON A FALSE CAUSE (Article 850) GENERAL RULE: The statement of a false cause for the institution of an heir shall be considered as not written. Reason: Generosity of the testator is the real cause of the testamentary disposition. EXCEPTION: If it appears from the face of the will that the testator would not have made the institution had he known the falsity of the cause. Example: Where the person instituted is a total stranger to the testator, it is obvious that the real cause of the testamentary disposition is not the generosity of the testator but the fact itself which turned out to be false. REQUISITES FOR THE ANNULMENT OF INSTITUTION OF HEIRS: 1. cause of institution of heirs must be stated in will; 2. cause must be shown to be false; 3. it must appear from the face of the will that the testator would not have made the institution had he known the falsity of the cause.

Fair arguments, persuasion, appeal to emotions, and entreaties which,

without fraud or deceit or actual coercion, compulsion or restraint do not constitute undue influence sufficient to invalidate a will. (Barreto vs. Reyes 98 Phil 996) Burden is on the person challenging the will to show that such influence was exerted at the time of its execution. To make a case of UNDUE INFLUENCE, the free agency of the testator must be shown to have been destroyed; but to establish a ground of contest based on FRAUD, free agency of the testator need not be shown to have been destroyed. Allegations of fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will (Icasiano vs. Icasiano 11 SCRA 422) REVOCATION
1. voluntary act of the testator. 2. with or without cause. 3. may be partial or total.

DISALLOWANCE
1. given by judicial decree. 2. must always be for a legal cause. 3. always total except: when the ground of fraud or influence for example affects only certain portions of the will.

I. INSTITUTION OF HEIRS (ARTS. 840-856)

Where the one-sentence will institutes the petitioner as the sole, universal heir and preterits the parents of the testatrix, and it contains no specific legacies or bequests, such universal institution of

petitioner, by itself, is void. Intestate succession ensues. (Nuguid vs. Nuguid, et al. 17 SCRA 449) PRETERITION (ART. 854) Omission in the testators will of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator. Requisites: 1. The heir omitted must be a compulsory heir in the direct line; 2. The omission must be complete and total in character; and 3. The compulsory heir omitted must survive the testator. There is no total omission when: a. A devise/legacy has been given to the heir by the testator b. A donation inter vivos has been previously given to the heir by the testator; or c. Anything is left from the inheritance which the heir may get by way of intestacy. NOTE: In the above cases, the remedy of the heir is completion of legitime under Art. 906, in case the value of the property received is less than the value of the legitime. Effects of Preterition: 1. It annuls the institution of heir; 2. The devises and legacies are valid insofar as they are not inofficious; and 3. If the omitted compulsory heir should die before the testator, the institution shall be effectual, without prejudice to the right of representation. NOTE: In case of omission without preterition, the rule in Art. 855 should be followed. The suggested alternate phrasing of Dr. Tolentino to the said article is: The share of the compulsory heir omitted in a will must be first taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the heirs given to them by will. PRETERITION
1. deprivation of a compulsory heir of his legitime is tacit 2. may be voluntary

but the law presumes that it is involuntary 3. law presumes that there has been merely an oversight or mistake on the part of the testator. 4. omitted heir gets not only his legitime but also his share in the free portion not disposed of by way of legacies/ devises.

voluntary.

3. done with legal cause.

4. if disinheritance is not lawful, compulsory heir is merely restored to his legitime.

Where the deceased left no descendants, legitimate or illegitimate, but she left forced heirs in the direct ascending lineher parents, and her holographic will does not explicitly disinherit them but simply omits them altogether, the case is one of preterition of parents, not a case of ineffective disinheritance. (Nuguid vs. Nuguid 17 SCRA 449) NOTE: Preterition of the surviving spouse (SS) does not entirely annul the institution of the heir since SS is not a compulsory heir in the direct line. However, since Article 842 protects the legitime of the SS, the institution is partially annulled by reducing the rights of the instituted heir to the extent necessary to cover the legitime of SS. (Tolentino) EFFECT OF PREDECEASE --an heir who dies before the testator shall transmit no right to his own heirs (rule is absolute with respect to a voluntary heir) --what is transmitted to the representatives of compulsory heir is his right to the legitime and not to the free portion EFFECT OF INCAPACITY --A voluntary heir who is incapacitated to succeed from testator shall transmit no right to his own heirs. --compulsory heir may be represented, but only with respect to his legitime EFFECT OF REPUDIATION --whether voluntary or compulsory, the heir who repudiates his inheritance cannot transmit any right to his own heirs. J. SUBSTITUTION OF HEIRS (ARTS 857-870)

DISINHERITANCE
1. deprivation of a compulsory heir of his legitime is express. 2. always

SUBSTITUTION The act by which the testator designates the person or persons to take the place of the heir or heirs first instituted (Tolentino). It may be considered as a subsidiary and conditional institution. Kinds: 1. Simple or Common (that which takes place when the testator designates one or more persons to substitute the heirs/s instituted in case such heir/s should die before him, or should not wish, or should be incapacitated to accept the inheritance) 2. Brief or Compendious: brief (there are two or more persons designated by the testator to substitute for only one heir), compendious (one heir is designated to take the place of two or more heirs)

a.

Instances when substitution takes place: instituted heir predeceases the testator;