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I.

GENERAL PROVISIONS
A. Definitions
Concept of Succession
1. Transmission of property, rights and obligations of a
person to subrogate put one person in the place of
another; substitution of the deceased person by a living
person in all transmissible property and juridical relations
2. Universality or entirety of the property, rights and
obligations transmitted by any of the forms of succession
admitted in law
1. SUCCESSION - mode of acquiring ownership; the
inheritance of a person is transmitted either according to his
express will and words or as provided for by law; legal mode
by which inheritance is transmitted.
a. DECEDENT/TESTATOR person whose property is
transmitted through succession
b. HEIR - anyone who succeeds to the whole or
portion/fraction of the inheritance; continuation of the
personality of the deceased.
Kinds of Heirs
1. Compulsory those who succeed by force of law to some
portion of the inheritance, in an amount predetermined by
law, of which they cannot be deprived by the testator,
except by a valid disinheritance.
2. Voluntary/testamentary instituted by the testator in his
will, to succeed to the inheritance or the portion thereof of
which the testator can freely dispose; right to succession
depends entirely upon the will.
3. Legal/intestate when theres no will.
c. LEGATEE/DEVISEE given a gift of personal (legatee) and
real (devisee) property; determinate or individualized thing
or quantity
Why is distinction between heirs and devisees/legatees
important? In case of preterition (exclusion of compulsory
heirs in a will), heirs will be annulled and d/l will be
respected.
d. PROBATE judicial declaration of validity of will.
(Balus v. Balus; J. Peralta 2010)
The rights to a persons succession are transmitted from the
moment of his death. Inheritance consists of the property
and transmissible rights and obligations existing at the time
of his death, as well as those which have accrued thereto
since the opening of the succession. Thus, in the eyes of the
law, the disputed lot no longer formed part of the estate
because Rufo lost it in his lifetime and did not pass into the
hands of petitioner and respondents as compulsory heirs of
Rufo at any given point in time.
2. INHERITANCE mass or totality of the patrimony of the
deceased person; includes all property, rights and
obligations not extinguished by death of decedent

Not transmissible:
1. Arising from marriage
2. Action for legal separation (only to the innocent
spouse)
3. Action to annul marriage
4. Legal support (except in cases expressly provided in
law)
5. Right to receive support
6. Rights of patria potestas (paternal power)
7. Right of the guardian
8. Right of usufruct
9. Right of the donor to revoke donation due to
ingratitude
10. Rights arising from agency
11. Criminal responsibility
A. Personal Rights
* Rights which are purely personal are by their nature and
purpose intransmissible, extinguished by death (civil
personality, family rights, discharge of public office)
B. Patrimonial Rights
* Patrimonial rights are not extinguished by death and are
transmissible unless the law or will of testator expressly
provides otherwise.
(Spouses Santos v. Lumbao; J. Chico-Nazario 2007)
The 107 sqm lot already sold to Sps. Lumbao can no longer
be inherited by petitioners because the same was no longer
part of their inheritance as it was already sold during the
lifetime of their mother.
(Union Bank v. Santibanez)
Well-settled is the rule that a probate court has the
jurisdiction to determine all the properties of the deceased,
to determine whether they should or should not be included
in the inventory or list of properties to be administered.
There can be no valid partition among the heirs until after
the will has been probated.
(Alvarez v. IAC; J.Fernan 1990)
Under our law, therefore, the general rule is that a party's
contractual rights and obligations are transmissible to the
successors. The rule is a consequence of the progressive
'depersonalization' of patrimonial rights and duties. From
the Roman concept of a relation from person to person, the
obligation has evolved into a relation from patrimony to
patrimony, with the persons occupying only a representative
position, barring those rare cases where the obligation is
strictly personal, in consideration of its performance by a
specific person and by no other. Petitioners being the heirs
of the late Rosendo Alvarez, they cannot escape the legal
consequences of their father's transaction, which gave rise
to the present claim for damages.
C. Contractual Obligations
* Rights of obligation are transmissible except:
- personal (personal qualifications and circumstances of
debtor have been taken into account in the creation of the
obligation

- intransmissible by express agreement or by will of testator


- intransmissible by express provision of law (life pensions)
3. VESTING OF SUCCESSION RIGHTS
Death of a person vests succession rights; consolidates and
renders immutable, in a certain sense, rights up to that
moment were nothing but mere expectancy; rights which do
not acquire any solidity and effectiveness except from the
moment of death
2 Things to Consider:
1. Origin of existence of right - may be the will of the
testator or the provisions of the law
2. That which makes the right effective death of the person
- Rights is always deemed to retroact at the moment of
death; right of the State to collect inheritance tax accrues at
the moment of death (value of property at time of death)
Elements of Transmission
1. Express will of the testator / provision of law
2. Death of decedent
3. Acceptance of inheritance
Presumption of Death
1. Generally 10 years; if 75 years old 5 years (Art. 390)
2. Special circumstances (on board vessel lost during sea
voyage, armed forces in war, in danger of death) 4 years
(Art. 391)
(Uson v. Del Rosario)
The provisions of the NCC shall be given retroactive effect
even though the event which gave rise to them may have
occurred under the prior legislation only if no vested rights
are impaired. Hence, since the right of ownership of Maria
Uson over the lands in question became vested in 1945 upon
the death of her late husband, the new right recognized by
the new Civil Code in favor of the illegitimate children of the
deceased cannot, therefore, be asserted to the impairment
of the vested right of Maria Uson over the lands in dispute.
(Borja v. Borja)
As a hereditary share in a decedent's estate is transmitted or
vested immediately from the moment of the death of
such causante or predecessor in interest (Civil Code of the
Philippines, Art. 777) there is no legal bar to a successor
(with requisite contracting capacity) disposing of her or his
hereditary share immediately after such death, even if the
actual extent of such share is not determined until the
subsequent liquidation of the estate.
(Bonilla v. Barcena)
Article 777 of the Civil Code provides "that the rights to the
succession are transmitted from the moment of the death of
the decedent." From the moment of the death of the
decedent, the heirs become the absolute owners of his
property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights
thereto except by the methods provided for by law. The

moment of death is the determining factor when the heirs


acquire a definite right to the inheritance whether such right
be pure or contingent. The right of the heirs to the property
of the deceased was vested in them even before judicial
declaration of their being heirs in the testate or intestate
proceedings. When Fortunata Barcena, therefore, died, her
claim or right to the parcels of land in litigation in Civil Case
No. 856, was not extinguished by her death but was
transmitted to her heirs upon her death. Her heirs have thus
acquired interest in the properties in litigation and became
parties in interest in the case.
(Lapuz v. Eufemio; J. Reyes 1972)
An action for legal separation is purely personal, it follows
that the death of one party to the action causes the death of
the action itself. The right to the dissolution of the conjugal
partnership of gains, the loss of right by the offending
spouse to any share of the profits earned by the partnership,
or his disqualitifcation to inherit by intestacy from the
innocent spouse as well as the revocation of testamentary
provisions in favour of the offending spouse made by the
innocent one, are all rights and disabilities that, by the very
terms of the Civil Code article, are vested exclusively in the
persons of the spouses; and by their very nature and intent,
such claims and disabilities are difficult to conceive as
assignable or transmissible.
B. Kinds of Succession
1. Testamentary results from designation of heir made in a
will executed in the form prescribed by law; will of testator
must be recognized as the supreme law in succession;
testamentary succession is preferred over intestate or legal
succession
2. Legal
3. Mixed effected partly by will and partly by operation of
law
Can there be contractual succession?
1. NO. There cannot be contractual succession because
inheritance cannot be transmitted by agreement (Valverde
and Sanchez Roman)
2. YES, in exceptional cases. The marriage settlement
(affianced persons are authorized to execute before the
celebration of the marriage, stipulating conditions for the
conjugal partnership with respect to present and future
property) parties may give to each other as much as 1/5 of
their present property and with respect to their future
property, only in the event of death to the extent laid down
by the provisions or this Code referring to testamentary
succession (disposition mortis causa) (Manresa)

II. PROVISIONS COMMON TO TESTATE AND INTESTATE


SUCCESSION
A. Right of Accretion
1. Def: Accretion right by virtue of which, when two or more
persons are called to the same inheritance, devise or legacy,
the part assigned to the one who renounces or cannot

receive his share, or who died before the testator, is added


or incorporated to that of his co-heirs, co-devisees, or colegatees.
Basis of Right
- Presumed will of the decedent; When a testator leaves one
specific thing to two or more persons, without express
designation of shares, undoubtedly he gives to these
persons a preference over the thing given. Naturally, when
one of them repudiates or is incapable of succeeding, the
vacant share is given to the co-participants
Contrary Will of Testator
- Testator can expressly provide that there shall be no
accretion; testator can provide for accretion in a case where
no accretion would take place under the provisions of the
law
Repudiation
st
1 view Heir cannot repudiate share that goes to him by
right of accretion; inheritance is a juridical unit and cannot
be considered as divided into parts.
nd
2 view distinction should be made between testate and
intestate succession

Testamentary heir can renounce accretion and


accept his part because personal portion and the
portion which accrues are two different parts

Intestate accretion is compulsory in nature such


that none of the heirs can accept his own portion
and renounce the vacant portion
(Manresa) equitable solution is to give heirs option
(Scaevola) Accretion is a right not an obligation. It would be
converted into a cumbersome obligation if co-heirs were not
given the right to renounce when a vacant portion occur.
The right of accretion is voluntary not compulsory.

3. Effects
a. Right of accretion does not affect intestate succession
because there is technically no vacant share. The result is
the same, shares go to legal heirs who ultimately succeed.
(1018)
NO ACCRETION:
1. (TESTATE) Express will of testator
2. (INTESTATE) Incapacity of child/descendant
because representation will take place
3. (INTESTATE) Predecease of a co-heir; survivors are
called to succession in their own right or by right of
representation
b. The heirs to whom the portion goes by the right of
accretion take it in the same proportion that they inherit.
(1019)
c. The heirs to whom the inheritance accrues shall succeed
to all the rights and obligations which the heir who
renounced or could not receive it would have had. (1020)
d. Among the compulsory heirs the right of accretion shall
take place only when the free portion is left to two or more
of them, or to any one of them and to a stranger. Should the
part repudiated be the legitime, the other co-heirs shall
succeed to it in their own right, and not by the right of
accretion. (1021)
* No accretion in legitiime but only in the free portion.
Testate
* How accretion is prevented:
X

* Right of representation when heir predeceased testate,


his heir accretes.
2. Requisites
a. Unity of Object and Plurality of Subjects - Subjects must be
called to the same inheritance jointly, in the same will and
under same testamentary disposition, without the testator
making a distribution of shares
* When the institution is made in unequal parts, there will
be no accretion; The difference in the quotas indicates the
intention of the testator to limit the right of each heir
exclusively to the part to which he is instituted (Scaevola)

[C Z (1)]

(1) Testator appoints substitute


(2) Testator provides expressly in will that there wont
be accretion
e. If no accretion (testamentary succession) the vacant
portion of the instituted heirs shall pass to the legal heirs of
the testator. (1022)
B. Capacity to Succeed

* For accretion, it is enough that from the language used by


the testator, it can be inferred that he has no intention to
make a division, materially or in aliquot parts, of the
inheritance or property.
2. One of the heirs designated dies before the testator, or
renounces the inheritance, or is incapable to receive it
includes non fulfilment of suspensive condition imposed
upon the heir instituted, absence of one of the heirs long
enough to have him declared presumptively dead

1. Requisites
a. General civil capacity
b. No incapacity/prohibition to succeed (1024)
* Requisites should be present at the time of death and/or
time of condition

Types of Incapacity:
1. Absolute (per se)
2. Relative (per accidens) disqualification only with
respect to specific persons/property
* Heir, devisee or legatee should be living at the moment
succession opens. A child already conceived at the time of
the death of the decedent is capable of succeeding provided
it be born later under the conditions prescribed in article 41.
(1025)
* The State, provinces, municipal corporations, private
corporations, organizations or associations for religious,
scientific, cultural, educations or charitable purposes may be
testate heirs (1026).
When would a corporation have juridical capacity?
At the time it gets Certificate of Registration from SEC
* BUT there are certain corporations prohibited by law to
succeed (ex. Law, charity vested with public interest)
* FOR PRAYERS AND PIOUS WORK- if general terms and
without specifying its application, the executor, with the
court's approval shall deliver one-half thereof or its proceeds
to the church or denomination to which the testator may
belong, to be used for such prayers and pious works, and the
other half to the State, for the purposes mentioned in Article
1013. (1029)
*FOR POOR IN GENERAL - deemed limited to the poor living
in the domicile of the testator at the time of his death,
unless it should clearly appear that his intention was
otherwise.
Who shall designate who are to be considered poor?
1. One appointed by testator
2. Executor
3. Justice of the peace, the mayor, and the municipal
treasurer, who shall decide by a majority of votes
all questions that may arise.
*The approval of the Court of First Instance shall be
necessary.
(Parish Priest of Victoria v. Rigor)
Capacity to succeed is determined at the time of death of
the testator.

B. Interposition (1031)
Testator institutes A as heir; he has an agreement with A to
give inheritance to B; means to skirt Art. 1032
- disguising a disposition in a form of contract ground to
challenge by other heirs
Is it valid if the one transferred to takes the property?
Tolentino: YES, valid if given; Testator ran the risk
Balane: No, contact is void.
C. Relationship (1027) P G T R A P
1. Priest/minister of gospel who extended spiritual aid
2. Guardian (unless descendant. Ascendant, brother, sister
or spouse)
3. Those not permitted by law
th
4. Relatives of priest (with 4 degree)
5. Attesting witness + spouse, parents, children
6. Physician, surgeon, nurse, health officer or druggist
(during last illness)
Balane: What has to be proved is relationship; concept of
influence is presumed
2

D. Unworthiness (1032) C H A P F A G
1. Convicted of an attempt against life of testator, spouse,
descendants, ascendants
2. Heir (of full age) who failed to report violent death of
testator within a month. Unless the authorities have already
taken action; Not applicable to cases wherein, according to
law, there is no obligation to make an accusation2.
3. Abandoning parents; induced daughters to lead corrupt or
immoral life; attempted against virtue
4. Prevents another from making a will, or from revoking
one already made, or who supplants, conceals, or alters the
latter's will
5. Fraud, violence, intimidation, or undue influence to cause
the testator to make a will or to change one already made
6. Falsifies or forges a supposed will of the decedent.
7. Adultery or concubinage with the spouse of the testator
8. Groundlessly accused testator of crime penalized by 6
years imprisonment or more
3. Pardon
* Pardon in writing or knowledge at time of death shall
cause unworthiness to be without effect (1033)

2. Grounds for Incapacity to succeed V I R U


Void Donation
Interposition
Relationship
Unworthiness
A. Void Donations on the grounds of public policy
1. Adultery
2. Same criminal offense
3. Public officer, wife, descendants; by reason of his
office (1028)

IMPLIED PARDON
If testator knows of such unworthiness but designates
him/her nonetheless.
although not a given: mere silence is not sufficient to
constitute implied pardon; prove that testator know of
unworthiness and there was some kind of disposition
4. Effects
a. Children/descendants of incapacitated child/descendant
of the testator shall acquire right to legitime. Person
excluded shall not enjoy usufruct and admin of property
inherited by children (1035)

If unworthy is entitled to a legitime (a son)

LEGITIME

FREE
PORTION

(SACRED)

if free portion remains, it will be subject to intestate


succession (divide with other compulsory heirs)
b. Alienations and acts of admin by excluded heir shall be
valid as to third persons who acted in good faith if
performed before judicial order of exclusion but the co-heirs
shall have a right to recover damages from the disqualified
heir (1036).
c. Unworthy heir has a right to demand indemnity or
necessary expenses incurred and to enforce such credits as
he may have against estate (1037)
5. Restitution
Excluded heir who took possession of hereditary property
shall return the same with accessions. He shall be liable for
fruits and rents received or could have received through
exercise of due diligence (1038).
similar to possessor in bad faith; heir should make
accounting first and be reimbursed of expenses
6. Governing Law
Capacity to succeed is governed by the law of the nation of
the decedent (1039).
(Cayetano v. Leonidas)
As regards intrinsic value of the will, the national law of the
decedent must apply
7. Prescription
5 years from possession (not time of death) action to
declare incapacity and recovery of inheritance (1040).

C. Acceptance and Repudiation of Inheritance


1. In General
Acceptance person called to succeed by universal title
either by the testator or by law manifests his will of making
his own the universality of the rights and obligations which
are transmitted to him
Repudiation manifestation of such heir of his desire not to
succeed to the said universality.
* No person can be forced to take any property through
inheritance. It should be a voluntary act (1041)
* The acceptance of inheritance may be said to be the
confirmation of the institution of the heir, the perfection of
the right to succeed.

Voluntary Acts
* Heir has the freedom to accept or repudiate inheritance
because the act only prejudices the heir himself. This follows
the principle that rights granted by law may be waived,
provided such waiver is not contrary to public morals.
* Violence, intimidation, undue influence, error and deceit
will defeat effects.
Partial Acceptance
* Not allowed by the Old Civil Code because it places
uncertainty to transmission of rights by succession.
(Sanchez Roman) The will of the testator should be
respected by the will of the heir because it is more
fundamental and preferred but both should concur to
perfect the relation.
(Manresa) Heir cannot be permitted to continue the
personality of the decedent or represent him in fraction. All
or nothing.
* Partial acceptance is now allowed:
- (Indivisibility argument) Heir in the law is no longer a
continuation of the personality of the deceased; same
footing as that of the legatee
- (Prejudice to creditors) Creditors of the estate must be paid
first
Retroactive Effect
*The effects of the acceptance or repudiation shall always
retroact to the moment of the death of the decedent (1042).
* To retroact at the time of death of the decedent; will of
the heir to take inheritance is made simultaneous to the
death of the decedent. (Continuity of ownership should not
suffer)
*Old Civil Code prohibits acceptance or repudiation with a
term or condition (distinguished from power of testator to
designate day and time to effect institution of heir) as
violative of the law.
To allow acceptance/repudiation with a term or subject
to a condition would be contrary to the principle that there
should not be hiatus or gap even for a moment. It would also
be inconsistent with the irrevocable character of acceptance
or repudiation.
2. Requisites
Requisites of Acceptance (1043)
1. Certainty of death
Will of man is changeable
The person who accepts or repudiates an inheritance
from a living person cannot know whether he will survive or
predecease the decedent or whether he will have the
capacity to succeed in the latters succession
2. Certainty of his rights to the inheritance Ineffective if
heir knows that will is null and void or when he is not sure
whether there are certain relatives nearer in degree or when
he is unsure if he was instituted.
3. Capacity
Capacity to Accept
* Persons having the capacity to succeed but not having the
capacity to dispose of their property may not accept or
repudiate but legal representatives (parents/executors) may
do so for them.

*Acceptance presupposes not only rights


obligations; Repudiation means alienation

but also

Court intervention would not be necessary if act is purely


beneficial to the minor or incapacitated person.
BUT intervention should be obtained where the institution is
subject to a charge or condition to be performed by a
minor/incapacitated.
Judicial affirmance is always necessary for repudiation
(because it amounts to alienation)
Institution of the poor in general can only accept not
repudiate BUT the individuals who may be selected as poor
have the freedom to accept or repudiate the property or
portion that may be given to them.
*Corporations/associations - judicial approval is needed in
repudiating because of the public interest imbued in these
institutions (1045).
*Public Official Establishments cannot accept or repudiate
an inheritance without government approval (1046).
Public establishment organizations which have their own
social and public purpose separate from the mere
manifestation of the governmental functions of the State
(ex. Public universities, libraries and archives). It is
indispensable that the organizations must have a distinct
public service to fulfill and performs successive acts to
realize it.

3. Renunciation is in Favor of all heirs indiscriminately for


consideration
- Not a renunciation at all; considered as acceptance, not
only when made in favor of the co-heirs, but also when in
favor of substitutes, or of the person called to the
inheritance by virtue of intestate succession of the right of
accretion.
4. Sells, donates or assigns his right
- involves an alienation and no one can transmit anything
other than his own; ownership is justified by an implied
acceptance.
Acts NOT constituting inheritance
1. Repudiation without consideration in favor of the persons
to whom his share will pass in the absence of the heir
repudiating law cannot imply tacit acceptance because
the act is equivalent to an absolute repudiation
2. Acts which heir has the right to perform even without the
character of an heir

5. Manner of Repudiation (1051)


a. Public/authentic instrument
b. Petition to court having jurisdiction

The approval may be given by the head of the


department to which the public establishment belings or is
subordinated.

Formality of Repudiation
The acceptance of an inheritance confirms the transmission
of the right of succession while repudiation makes
transmission ineffective (more violent and disturbing
consequences)
* The publicity of repudiation is needed for the benefit of
the creditors and the public interest; opens the way for
other heirs

*Married women may accept/repudiate without consent


of husbands (1047)
* Deaf-mutes can read and write may accept/repudiate
personally or through an agent; cannot read and write
accepted by guardians. Judicial approval needed (1048).

Authentic Instrument
Sanchez-Roman & Valverde: authentic refers to document
distinct and apart from a public or notarial instrument.
Authentic instrument is one whose genuineness is
admitted or clearly proved

4. Forms of Acceptance
1. Express must be in public or private document
2. Tacit resulting from acts by which the intention to
accept is necessarily implied/ which one would have no right
to do except in the capacity of an heir
* acts if mere preservation/provisional administration is not
acceptance if title or capacity of an heir has not been
assumed (1049).

6. Effects of Repudiation
a. Repudiation by Heir to the prejudice of creditors Creditors may petition court to authorize acceptance of
inheritance. Benefit shall only be to an extent sufficient to
cover credits excess shall be adjudicated to persons whom it
may belong (1052).

When deemed accepted (1050): R O F S


1. Renounces it for the benefit of one or more heirs
- involves a cession, an act of disposition
2. Others
- Can be inferred from other acts; demands partition of the
inheritance, or when he alienates some objects of the
inheritance, or when he performs showing the clear
intention to accept; failure to signify acceptance or
repudiation within 30 days after an order of distribution by
the probate court.

Acceptance by Creditors
* co-heirs benefit by receiving more property, creditors are
prejudiced
Acceptance shall benefit in so far as it covers the amount
of their credits; excess shall be adjudicated to person it may
pertain to
Requisites:
1. There must be repudiation by the heir-debtor in legal
form which is valid in law
2. There must be credits existing against the heir who
repudiates

3. Judicial authorization must be obtained before the


creditors may accept for the debtor
4. Act of repudiation prejudices claims of creditors
* Acceptance by creditor does not annul or revoke the
repudiation made by the heir, it rescinds to an extend
sufficient to protect the interest of the creditors.
b. If heir dies without accepting or repudiating right shall
be transmitted to his heirs (1053)
c. Several heirs some may accept and others may
repudiate (1054)
d. Heir in two capacities - Intestate heir repudiates
inheritance in his capacity as testamentary heir, presumed
to have repudiated in both capacities but NOT vice versa
(1055)
When an heir who is such by will repudiates, he shows his
dislike to become heir in any concept whatever
The repudiation of the express will of the testator
includes that of a presumed will, but the repudiation of the
latter still leaves the express will open to respect.
d. Acceptance/ repudiation is irrevocabla and cannot be
impugned expect when consent is vitiated or when an
unknown will appears (1056).
Irrevocability of Inheritance
- would lead to confusion and serious results; results in
disturbance in rights already vested and may lead to
instability of juridical relations
Exceptions:
1. When the acceptance or repudiation suffers from
any of the vices which annul consent (mistake,
error, violence, intimidation, undue influence and
fraud)
2. When an unknown will appears

Distinguished from Waiver of future inheritance


All things which are not outside the commerce of men,
including future things, may be the object of a contract. All
rights which are not intransmissible may also be the object
of contracts. No contract may be entered into upon future
inheritance except in cases expressly authorized by law.
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be the
object of a contract. (1347)

III. TESTAMENTARY SUCCESSION


A. Wills
1. Def: An act where a person is permitted to control the
disposition of estate to take effect after his death (783)
(Vitug v. CA)
Will is a personal, solemn, revocable and free act by which a
capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his
death. The bequest or device must pertain to the testator.
The monies subject of savings account were in the nature of
conjugal funds. A survivorship agreement is simply their joint
holdings not a delivery of one party's separate properties in
favor of the other, but simply, their joint holdings. A
survivorship agreement is an aleatory contract whereby one
of the parties or both reciprocally bind themselves to give or
do something as an equivalent for that which the other party
is to give or do in case of the occurrence of an event which is
uncertain or will happen at an indeterminate time. There is
no showing that the funds exclusively belonged to one party,
and hence it must be presumed to be conjugal, having been
acquired during the existence of the marita. relations.
2. Characteristics
a.

Purely personal

Effect of Mistake
- error must not be due to negligence of the heir; should be
based on facts and circumstances which the heir could not
have known notwithstanding due diligence on his part

Art. 784. The making of a will is a strictly personal act; it


cannot be left in whole or in part of the discretion of a third
person, or accomplished through the instrumentality of an
agent or attorney (784). (670a)

Effect of Violence and Intimidation


- violence (external acts imposed upon the heir to accept or
repudiate) and intimidation (works internally in the mind
forcing him to accept or repudiate) removes effect of
repudiation/acceptance

Art. 785. The duration or efficacy of the designation of heirs,


devisees or legatees, or the determination of the portions
which they are to take, when referred to by name, cannot be
left to the discretion of a third person. (670a)

Effect of Fraud
rd
- must be practiced by a 3 person; must be serious and
must consist of insidious words or machinations without
which the heirs would not have accepted or repudiated
* Acceptance/repudiation shall be signified to court within
30 days after issuance of order; failure to so such deems heir
to have accepted inheritance (1057).

Art. 787. The testator may not make a testamentary


disposition in such manner that another person has to
determine whether or not it is to be operative. (n)
b.

Free and intelligent

Art. 839. The will shall be disallowed in any of the following


cases:

(1) If the formalities required by law have not been complied


with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the 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. (n)
c.

Solemn and formal

Art. 804. Every will must be in writing and executed in a


language or dialect known to the testator. (n)
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (n)
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file
another with the Office of the Clerk of Court. (n)
Art. 807. If the testator be deaf, or a deaf-mute, he must
personally read the will, if able to do so; otherwise, he shall
designate two persons to read it and communicate to him, in
some practicable manner, the contents thereof. (n)

Art. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and again,
by the notary public before whom the will is acknowledged.
(n)
Art. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed. (678, 688a)
d.

Revocable and ambulatory

Art. 828. A will may be revoked by the testator at any time


before his death. Any waiver or restriction of this right is
void. (737a)
e.

Mortis causa

Art. 777. The rights to the succession are transmitted from


the moment of the death of the decedent. (657a)
f.

Individual

Art. 818. Two or more persons cannot make a will jointly, or


in the same instrument, either for their reciprocal benefit or
for the benefit of a third person. (669)
g.

Executed with animus testandi

h.

Executed with testamentary capacity

Art. 796. All persons who are not expressly prohibited by law
may make a will. (662)
Art. 797. Persons of either sex under eighteen years of age
cannot make a will. (n)
Art. 798. In order to make a will it is essential that the
testator be of sound mind at the time of its execution. (n)
Art. 799. To be of sound mind, it is not necessary that the
testator be in full possession of all his reasoning faculties, or
that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act. (n)
Art. 800. The law presumes that every person is of sound
mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind
at the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to
be insane, the person who maintains the validity of the will

must prove that the testator made it during a lucid interval.


(n)

time of making the will, should it expressly appear by the will


that such was his intention. (n)

Art. 801. Supervening incapacity does not invalidate an


effective will, nor is the will of an incapable validated by the
supervening of capacity. (n)

Art. 794. Every devise or legacy shall cover all the interest
which the testator could device or bequeath in the property
disposed of, unless it clearly appears from the will that he
intended to convey a less interest. (n)

Art. 802. A married woman may make a will without the


consent of her husband, and without the authority of the
court. (n)

Rabadilla v. CA (Purisima)

Art. 803. A married woman may dispose by will of all her


separate property as well as her share of the conjugal
partnership or absolute community property. (n)

Seangio v. Reyes (Azcuna)


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

i.
j.

Unilateral
Dispositive disposes of property

3. Construction and Interpretation


Art. 788. If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by
which the disposition is to be operative shall be preferred.
(n)
Art. 789. When there is an imperfect description, or when no
person or property exactly answers the description, mistakes
and omissions must be corrected, if the error appears from
the context of the will or from extrinsic evidence, excluding
the oral declarations of the testator as to his intention; and
when an uncertainty arises upon the face of the will, as to
the application of any of its provisions, the testator's
intention is to be ascertained from the words of the will,
taking into consideration the circumstances under which it
was made, excluding such oral declarations. (n)
Art. 790. The words of a will are to be taken in their ordinary
and grammatical sense, unless a clear intention to use them
in another sense can be gathered, and that other can be
ascertained.
Technical words in a will are to be taken in their technical
sense, unless the context clearly indicates a contrary
intention, or unless it satisfactorily appears that he was
unacquainted with such technical sense. (675a)
Art. 791. The words of a will are to receive an interpretation
which will give to every expression some effect, rather than
one which will render any of the expressions inoperative;
and of two modes of interpreting a will, that is to be
preferred which will prevent intestacy. (n)
Art. 792. The invalidity of one of several dispositions
contained in a will does not result in the invalidity of the
other dispositions, unless it is to be presumed that the
testator would not have made such other dispositions if the
first invalid disposition had not been made. (n)
Art. 793. Property acquired after the making of a will shall
only pass thereby, as if the testator had possessed it at the

Alfredos disinheritance is an act of disposition in itself. In


other words, the disinheritance results in the disposition of
the property of the testator Segundo in favor of those who
would succeed in the absence of Alfredo.
The intent or the will of the testator, expressed in the form
and within the limits prescribed by law, must be recognized
as the supreme law in succession. All rules of construction
are designed to ascertain and give effect to that intention. It
is only when the intention of the testator is contrary to law,
morals, or public policy that it cannot be given effect.
Holographic wills should be construed more liberally than
the ones drawn by an expert, taking into account the
circumstances surrounding the execution of the instrument
and the intention of the testator. Unless the will is probated,
the disinheritance cannot be given effect.
There was no preterition. Segundos last expression was to
bequeath his estate to all his compulsory heirs, with the sole
exception of Alfredo. Also, Segundo did not institute an
heir to the exclusion of his other compulsory heirs. The mere
mention of the name of one of the petitioners, Virginia, in
the document did not operate to institute her as the
universal heir. Her name was included plainly as a witness to
the altercation between Segundo and his son, Alfredo.
Dizon-Rivera v. Dizon (Teehankee)
"the intention and wishes of the testator, when clearly
expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the trial, relative to
its execution and fulfillment, must be settled in accordance
therewith, following the plain and literal meaning of the
testator's words, unless it clearly appears that his intention
was otherwise." (Villanueva v. Juico).
4. Law Governing Form
Art. 795. The validity of a will as to its form depends upon
the observance of the law in force at the time it is made. (n)
Art. 815. When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established by

the law of the country in which he may be. Such will may be
probated in the Philippines. (n)

omission of some relatives from the will did not


affect its formal validity.

Art. 816. The will of an alien who is abroad produces effect


in the Philippines if made with the formalities prescribed by
the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with
those which this Code prescribes. (n)

7. FORMS
a. Notarial Will
i. In writing, Language
Art. 804. Every will must be in writing and executed in a
language or dialect known to the testator. (n)

Art. 817. A will made in the Philippines by a citizen or subject


of another country, which is executed in accordance with
the law of the country of which he is a citizen or subject, and
which might be proved and allowed by the law of his own
country, shall have the same effect as if executed according
to the laws of the Philippines. (n)

ii. Manner of signing


Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.

Art. 819. Wills, prohibited by the preceding article, executed


by Filipinos in a foreign country shall not be valid in the
Philippines, even though authorized by the laws of the
country where they may have been executed. (733a)
5. Joint Wills
Art. 818. Two or more persons cannot make a will jointly, or
in the same instrument, either for their reciprocal benefit or
for the benefit of a third person. (669)
(Dela Cerna v. Potot)
The validity of the joint will, in so far as the estate of the wife
was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a
separate will of each testator. Therefore, the undivided
interest of Gervasia should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir,
unless some other valid will in her favor is shown to exist, or
unless she be the only heir intestate of said Gervasia.
6. Testamentary Capacity
Ortega v. Valmonte (Panganiban)
Fraud is a trick, secret device, false statement, or pretense,
by which the subject of it is cheated. It may be of such
character that the testator is misled or deceived as to the
nature or contents of the document which he executes, or it
may relate to some extrinsic fact, in consequence of the
deception regarding which the testator is led to make a
certain will which, but for the fraud, he would not have
made.
Sound mind: (1) the nature of the estate to be disposed of,
(2) the proper objects of the testators bounty, and (3) the
character of the testamentary act.

Despite his age, he was still able to identify


accurately the kinds of property he owned, the
extent of his shares in them and even their
locations. As regards the proper objects of his
bounty, it was sufficient that he identified his wife
as sole beneficiary. As we have stated earlier, the

The testator or the person requested by him to write his


name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (n)
iii. Acknowlegded before Notary Public
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file
another with the Office of the Clerk of Court. (n)
iv. Substantial Compliance Rule
Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805. (n)
v. Disabled Testators
Art. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and again,
by the notary public before whom the will is acknowledged.
(n)
Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved

that the will was in fact executed and attested in substantial


compliance with all the requirements of Article 805. (n)

Art. 804. Every will must be in writing and executed in a


language or dialect known to the testator. (n)

vi. Witnesses
Art. 820. Any person of sound mind and of the age of
eighteen years or more, and not bind, deaf or dumb, and
able to read and write, may be a witness to the execution of
a will mentioned in Article 805 of this Code. (n)

(Roxas v. De Jesus)
The underlying and fundamental objectives permeating the
provisions of the law wills consists in the liberalization of the
manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes, but with
sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and
improper pressure and influence upon the testator. If a Will
has been executed in substantial compliance with the
formalities of the law, and the possibility of bad faith and
fraud in the exercise thereof is obviated, said Will should be
admitted to probate (Rey v. Cartagena 56 Phil. 282).

Art. 821. The following are disqualified from being witnesses


to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a
document, perjury or false testimony. (n)
Art. 822. If the witnesses attesting the execution of a will are
competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the allowance
of the will. (n)
Art. 823. If a person attests the execution of a will, to whom
or to whose spouse, or parent, or child, a devise or legacy is
given by such will, such devise or legacy shall, so far only as
concerns such person, or spouse, or parent, or child of such
person, or any one claiming under such person or spouse, or
parent, or child, be void, unless there are three other
competent witnesses to such will. However, such person so
attesting shall be admitted as a witness as if such devise or
legacy had not been made or given. (n)
Art. 824. A mere charge on the estate of the testator for the
payment of debts due at the time of the testator's death
does not prevent his creditors from being competent
witnesses to his will. (n)

b. Holographic Will
A holographic will can be in any form as long as the intent to
dispose is clearly shown.
i. General Requirements
Art. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed. (678, 688a)
Art. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to. (619a)

If the testator, in executing his Will, attempts to comply with


all the requisites, although compliance is not literal, it is
sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the
form followed by the testator.
As a general rule, the "date" in a holographic Will should
include the day, month, and year of its execution. However,
when as in the case at bar, 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 holographic Will is a
valid compliance with Article 810 of the Civil Code, probate
of the holographic Will should be allowed under the
principle of substantial compliance.
(Labrador v. CA)
The law does not specify a particular location where the
date should be placed in the will. The only requirements are
that the date be in the will itself and executed in the hand of
the testator.
(Gan v. Yap)
The New Civil Code effective in 1950 revived holographic
wills in its arts. 810-814. "A person may execute a
holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no
other form and may be made in or out of the Philippines,
and need not be witnessed."
This is a radical departure from the form and solemnities
provided for wills under Act 190, which for fifty years (from
1901 to 1950) required wills to be subscribed by the testator
and three credible witnesses in each and every page; such
witnesses to attest to the number of sheets used and to the
fact that the testator signed in their presence and that they
signed in the presence of the testator and of each other.
Authenticity and due execution is the dominant
requirements to be fulfilled when such will is submitted to
the courts for allowance. For that purpose the testimony of
one of the subscribing witnesses would be sufficient if there
is no opposition (Sec. 5, Rule 77). If there is, the three must
testify, if available. From the testimony of such witnesses
(and of other additional witnesses) the court may form its

opinion as to the genuineness and authenticity of the


testament, and the circumstances its due execution.
With regard to holographic wills, no such guaranties of truth
and veracity are demanded, since as stated, they need no
witnesses; provided however, that they are "entirely
written, dated, and signed by the hand of the testator
himself."
In the probate of a holographic will" says the New Civil
Code, "it shall be necessary that at least one witness who
knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least
three such witnesses shall be required. In the absence of any
such witnesses, (familiar with decedent's handwriting) and if
the court deem it necessary, expert testimony may be
resorted to."
The witnesses need not have seen the execution of the
holographic will, but they must be familiar with the
decedents handwriting. Obviously, when the will itself is not
submitted, these means of opposition, and of assessing the
evidence are not available. And then the only guaranty of
authenticity the testator's handwriting has
disappeared.
The Rules of Court, (Rule 77) approved in 1940 allow proof
(and probate) of a lost or destroyed will by secondary
evidence the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated
holographic wills which could not then be validly made here.
Could Rule 77 be extended, by analogy, to holographic wills?
(NO)
Spanish commentators agree that one of the greatest
objections to the holographic will is that it may be lost or
stolen an implied admission that such loss or theft
renders it useless.
As it is universally admitted that the holographic will is
usually done by the testator and by himself alone, to prevent
others from knowing either its execution or its contents, the
above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the
will, but whether in the face of the document itself they
think the testator wrote it. Obviously, this they can't do
unless the will itself is presented to the Court and to them.
This holding aligns with the ideas on holographic wills in the
Fuero Juzgo, admittedly the basis of the Spanish Civil Code
provisions on the matter.(According to the Fuero, the will
itself must be compared with specimens of the testators
handwriting.)
All of which can only mean: the courts will not distribute the
property of the deceased in accordance with his holographic
will, unless they are shown his handwriting and signature.
Taking all the above circumstances together, we reach the
conclusion that the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.
At this point, before proceeding further, it might be
convenient to explain why, unlike holographic wills, ordinary
wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In
the first, the only guarantee of authenticity is the
handwriting itself; in the second, the testimony of the

subscribing or instrumental witnesses (and of the notary,


now). The loss of the holographic will entails the loss of the
only medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three
witnesses (four with the notary) deliberately to lie. And then
their lies could be checked and exposed, their whereabouts
and acts on the particular day, the likelihood that they would
be called by the testator, their intimacy with the testator,
etc. And if they were intimates or trusted friends of the
testator they are not likely to end themselves to any
fraudulent scheme to distort his wishes. Last but not least,
they cannot receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony
were admissible only one man could engineer the fraud this
way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive
to let three honest and credible witnesses see and read the
forgery; and the latter, having no interest, could easily fall
for it, and in court they would in all good faith affirm its
genuineness and authenticity. The will having been lost
the forger may have purposely destroyed it in an "accident"
the oppositors have no way to expose the trick and the
error, because the document itself is not at hand. And
considering that the holographic will may consist of two or
three pages, and only one of them need be signed, the
substitution of the unsigned pages, which may be the most
important ones, may go undetected.
If testimonial evidence of holographic wills be permitted,
one more objectionable feature feasibility of forgery
would be added to the several objections to this kind of wills
listed by Castan, Sanchez Roman and Valverde and other
well-known Spanish Commentators and teachers of Civil
Law.
One more fundamental difference: in the case of a lost will,
the three subscribing witnesses would be testifying to a
fact which they saw, namely the act of the testator of
subscribing the will; whereas in the case of a lost
holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an
opinion which can not be tested in court, nor directly
contradicted by the oppositors, because the handwriting
itself is not at hand.
In fine, even if oral testimony were admissible to establish
and probate a lost holographic will, we think the evidence
submitted by herein petitioner is so tainted with
improbabilities and inconsistencies that it fails to measure
up to that "clear and distinct" proof required by Rule 77, s. 6.
(Rodeles v. Aranza)
If the holographic will has been lost or destroyed and no
other copy is available, the will cannot be probated because
the best and only evidence is the handwriting of the testator
in said will. It is necessary that there be a comparison
between sample handwritten statements of the testator and
the handwritten will. But, a photostatic copy or xerox copy
of the holographic will may be allowed because comparison
can be made by the probate court with the standard writings
of the testator. The probate court would be able to

determine the authenticity of the handwriting of the


testator.
(Azaola v. Singson)
Article 811 is merely permissive and not mandatory. Since
the authenticity of the will was not contested, petitioner was
not required to produce more than one witness; but even if
the genuineness of the holographic will were contested,
Article 811 cannot be interpreted to require the compulsory
presentation of three witnesses to identify the handwriting
of the testator, under penalty of having the probate denied.
Since no witness may have been present at the execution of
a holographic will, none being required by law (Art. 810, new
Civil Code), it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond
the control of the proponent. For it is not merely a question
of finding and producing any three witnesses; they must be
witnesses "who know the handwriting and signature of the
testator" and who can declare (truthfully, of course, even if
the law does not so express) "that the will and the signature
are in the handwriting of the testator". There may be no
available witness of the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a
positive opinion. Compliance with the rule of paragraph 1 of
Article 811 may thus become an impossibility.
nd
This is the reason why the 2 paragraph of Article 811
allows the court to resort to expert evidence. The law
foresees the possibility that no qualified witness may be
found (or what amounts to the same thing, that no
competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert
evidence to supply the deficiency.
What the law deems essential is that the court should be
convinced of the will's authenticity. Where the prescribed
number of witnesses is produced and the court is convinced
by their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand,
if no competent witness is available, or none of those
produced is convincing, the Court may still, and in fact it
should, resort to handwriting experts. The duty of the Court,
in fine, is to exhaust all available lines of inquiry, for the
state is as much interested as the proponent that the true
intention of the testator be carried into effect.
(Codoy v. Calugay)
The word shall connotes a mandatory order, an imperative
obligation and is inconsistent with the idea of discretion and
that the presumption is that the word shall, when used in
a statute, is mandatory.
In the case at bar, the goal to be achieved by the law, is to
give effect to the wishes of the deceased and the evil to be
prevented is the possibility that unscrupulous individuals
who for their benefit will employ means to defeat the wishes
of the testator.
The paramount consideration in the present petition is to
determine the true intent of the deceased.
We cannot be certain that the holographic will was in the
handwriting of the deceased.

The clerk of court was not presented to declare explicitly


that the signature appearing in the holographic will was that
of the deceased.
The election registrar was not able to produce the voters
affidavit for verification as it was no longer available.
The deceaseds niece saw pre-prepared receipts and letters
of the deceased and did not declare that she saw the
deceased sign a document or write a note.
The will was not found in the personal belongings of the
deceased but was in the possession of the said niece, who
kept the fact about the will from the children of the
deceased, putting in issue her motive.
Evangeline Calugay never declared that she saw the
decreased write a note or sign a document.
The former lawyer of the deceased expressed doubts as to
the authenticity of the signature in the holographic will.
(As it appears in the foregoing, the three-witness
requirement was not complied with.)
A visual examination of the holographic will convinces that
the strokes are different when compared with other
documents written by the testator.
The records are remanded to allow the oppositors to adduce
evidence in support of their opposition.
The object of solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise the right to make a will.
However, we cannot eliminate the possibility of a false
document being adjudged as the will of the testator, which
is why if the holographic will is contested, the law requires
three witnesses to declare that the will was in the
handwriting of the deceased.
Article 811, paragraph 1. provides: In the probate of a
holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are
in the handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.
The word shall connotes a mandatory order, an imperative
obligation and is inconsistent with the idea of discretion and
that the presumption is that the word shall, when used in
a statute, is mandatory.

ii. Formal Requirements


Art. 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
disposition has a signature and a date, such date validates
the dispositions preceding it, whatever be the time of prior
dispositions. (n)
Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will, the testator must
authenticate the same by his full signature. (n)

(Ajero v. CA)
A reading of Article 813 shows that its requirement affects
the validity of the dispositions contained in the holographic
will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions
cannot be effectuated. Such failure, however, does not
render the whole testament void.
Likewise, a holographic will can still be admitted to probate
notwithstanding non-compliance with the provisions of
Article 814.
Unless the authenticated alterations, cancellations or
insertions were made on the date of the holographic will or
on testators signature, their presence does not invalidate
the will itself. The lack of authentication will only result in
disallowance of such changes.
It is also proper to note that he requirements of
authentication of changes and signing and dating of
dispositions appear in provisions (Article 813 and 814)
separate from that which provides for the necessary
conditions for the validity of the holographic will (Article
810).
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of
the NCC and not those found in Articles 813 and 814 are
essential to the probate of a holographic will.
Section 9, Rule 76 of the Rules of Court and Article 839 of
the Civil Code enumerate the grounds for disallowance of
wills. These lists are exclusive; no other grounds can serve to
disallow a will.
In a petition to admit a holographic will, the only issues to be
resolved are:
1. whether the instrument submitted is, indeed, the
decedents last will and testament;
2. whether said will was executed in accordance with the
formalities prescribed by law;
3. whether the decedent had the necessary testamentary
capacity at the time the will was executed; and
4. whether the execution of the will and its signing were
the voluntary acts of the decedent.
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud;
accordingly, laws on this subject should be interpreted to
attain these primordial ends.
In the case of holographic wills, what assures authenticity is
the requirement that they be totally authographic or
handwritten by the testator himself. Failure to strictly
observe other formalities will no result in the disallowance
of a holographic will that is unquestionable handwritten by
the testator.
(Kalaw v. Relova)
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
litem not been noted under his signature, ... the Will is not
thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or interlined.
However, when as in this case, 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. To state that the Will as first
written should be given efficacy is to disregard the seeming
change of mind of the testatrix. But that change of mind can
neither be given effect because she failed to authenticate it
in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a
holographic Will, which affect only the efficacy of the altered
words themselves but not the essence and validity of the
Will itself. As it is, with the erasures, cancellations and
alterations made by the testatrix herein, her real intention
cannot be determined with certitude.
iii. Interpretation
Seangio v. Reyes (supra)
8. Codicils and Incorporation by Reference
Art. 825. A codicil is supplement or addition to a will, made
after the execution of a will and annexed to be taken as a
part thereof, by which disposition made in the original will is
explained, added to, or altered. (n)
Art. 826. In order that a codicil may be effective, it shall be
executed as in the case of a will. (n)
Art. 827. If a will, executed as required by this Code,
incorporates into itself by reference any document or paper,
such document or paper shall not be considered a part of
the will unless the following requisites are present:
(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same,
stating among other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as
the document or paper referred to therein; and
(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. (n)
9. Revocation of Wills
a. Time
- any time before his death. Any waiver or restriction of this
right is void (828).
b. Place
NON-RESIDENT, OUTSIDE PHILS place where will was
made, domicile of testator at the time will was made if
revocation took place in this country (829).

c. Manner - I W B
1. Implication of law
2. Will, codicil, or other writing executed as provided in case
of wills
3. Burning, tearing, cancelling, or obliterating the will with
the intention of revoking it, by the testator himself, or by
some other person in his presence, and by his express
direction. If burned, torn, cancelled, or obliterated by some
other person, without the express direction of the testator,
the will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution,
and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court
(830).

not only its execution but its existence. Having proved its
execution by the proponents, the burden is on the
contestant to show that it has been revoked. In a great
majority of instances in which wills are destroyed for the
purpose of revoking them there is no witness to the act of
cancellation or destruction and all evidence of its
cancellation perishes with the testator. Copies of wills
should be admitted by the courts with great caution. When
it is proven, however, by proper testimony that a will was
executed in duplicate and each copy was executed with all
the formalities and requirements of the law, then the
duplicate may be admitted in evidence when it is made to
appear that the original has been lost and was not cancelled
or destroyed by the testator.

Subsequent wills which do not revoke the previous ones in


an express manner, annul only such dispositions in the prior
wills as are inconsistent with or contrary to those contained
in the latter wills (831)

(Casiano v. CA)
The physical act of destruction of a will, like burning in this
case, does not per se constitute an effective revocation,
unless the destruction is coupled with animus revocandi on
the part of the testator. It is not imperative that the physical
destruction be done by the testator himself. It may be
performed by another person but under the express
direction and in the presence of the testator. Of course, it
goes without saying that the document destroyed must be
the will itself.
"Animus revocandi is only one of the necessary elements
for the effective revocation of a last will and testament. The
intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or cancelling
the will carried out by the testator or by another person in
his presence and under his express direction.
There is paucity of evidence to show compliance with these
requirements. For one, the document or papers burned by
Adriana's maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana
Maloto. For another, the burning was not proven to have
been done under the express direction of Adriana. And then,
the burning was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating that they were
the only ones present at the place where the stove
(presumably in the kitchen) was located in which the papers
proffered as a will were burned.
The two witnesses were illiterate and does not appear to be
unequivocably positive that the document burned was
indeed Adriana's will. Guadalupe believed that the papers
she destroyed was the will only because, according to her,
Adriana told her so. Eladio, on the other hand, obtained his
information that the burned document was the will because
Guadalupe told him so, thus, his testimony on this point is
double hearsay.
It is an important matter of public interest that a purported
win is not denied legalization on dubious grounds.
Otherwise, the very institution of testamentary succession
will be shaken to its very foundations.

A revocation made in a subsequent will shall take effect,


even if the new will should become inoperative by reason of
the incapacity of the heirs, devisees or legatees designated
therein, or by their renunciation (832)
A revocation of a will based on a false cause or an illegal
cause is null and void (833).
The recognition of an illegitimate child does not lose its legal
effect, even though the will wherein it was made should be
revoked (834).
(Gago v. Mamuyac)
The law does not require any evidence of the revocation or
cancellation of a will to be preserved. It therefore becomes
difficult at times to prove the revocation or cancellation of
wills. The fact that such cancellation or revocation has taken
place must either remain unproved of be inferred from
evidence showing that after due search the original will
cannot be found. Where a will which cannot be found is
shown to have been in the possession of the testator, when
last seen, the presumption is, in the absence of other
competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown
that the testator had ready access to the will and it cannot
be found after his death. It will not be presumed that such
will has been destroyed by any other person without the
knowledge or authority of the testator. The force of the
presumption of cancellation or revocation by the testator,
while varying greatly, being weak or strong according to the
circumstances, is never conclusive, but may be overcome by
proof that the will was not destroyed by the testator with
intent to revoke it.
In view of the fact that the original will of 1919
could not be found after the death of the testator Miguel
Mamuyac and in view of the positive proof that the same
had been cancelled, we are forced to the conclusion that the
conclusions of the lower court are in accordance with the
weight of the evidence. In a proceeding to probate a will the
burden of proofs is upon the proponent clearly to establish

10. Republication and Revival


The testator cannot republish, without reproducing in a
subsequent will, the dispositions contained in a previous one
which is void as to its form (835).

The execution of a codicil referring to a previous will has the


effect of republishing the will as modified by the codicil
(836).
If after making a will, the testator makes a second will
expressly revoking the first, the revocation of the second will
does not revive the first will, which can be revived only by
another will or codicil (837).
11. Allowance and Disallowance of Wills
a. Probate
Testate over Intestate Proceedings
Testate proceedings take precedence over intestate
proceedings; it could not be dispensed with and is a matter
of public policy.
2 Kinds of Probate Proceedings
Ante mortem probate had during the lifetime of the
testator; an innovation of the New Civil Code. Reasons it
was allowed include minimization of fraud and undue
influence, ease for the courts to determine mental
condition of the testator during his lifetime, lessen
number of contests. Testator may still alter or revoke will
before his death, a new will should be made and be
petitioned to be allowed.
Probate after death of testator
RTC acquires jurisdiction upon showing:
1. decedent died leaving a will
2. if resident resided or died in the province where court
exercises territorial jurisdiction
3. if non-resident where estate is situated
4. testament or last will delivered to the court
Residence of Deceased is not jurisdictional; only venue.
Presentation for Probate the will shall always be subject to
the control of the testator down to the time of his death. If it
has been placed in the custody of another, he/she shall
deliver the will to the court having jurisdiction or to the
executor 20 days after knowledge of death of the testator.
This shall also be applicable to the executor unless the will
has been returned to the court and shall within such period,
signify to the court his acceptance of the trust or make
known in writing his refusal to accept it. Executors neglect
of such duty with regard presentation of the will and the
acceptance/rejection of executorship shall be subject to a
fine of not exceeding P2000 unless he gives a satisfactory
excuse to the court. Custodian of the wills neglect to deliver
may be committed to prison and be kept until he delivers
the will.
Petition for Probate may be instituted by:
1. Any executor, devisee, legatee OR
2. Any other person interested in the estate
at any time after death of testator. It must show:
1. fact of death (+time and place of death)
2. fact the deceased left a will (attach copy of will)

3. fact that the will was executed according to law


4. whether the person consents or renounces executorship
5. names, ages, residences of the heirs, legatees and
devisees of the decedent.
6. probable value and character if the property
7. name of person whose prayed to be appointment
8. name of custodian of will (if undelivered to the court)
Notice of Hearing shall be caused to fix a time and place for
proving a will which shall be published 3 successive weeks in
a newspaper of general circulation. Copies of notice shall be
sent to:
1. known heirs, legatees and devisees
2. person named as executor
20 days before hearing. 10 days if sent personally.
Proof at Hearing:
1. fact of death of testator (if probate after death)
2. publication of notice of hearing
3. execution of the will with the formalities required by law.
Lost or Destroyed Will shall only be proved if:
1. execution and validity established
2. will in existence at the time of the death of testator
3. fraudulently/accidentally destroyed during the lifetime of
the testator without his knowledge
4. provision are clearly and distinctly proved by at least 2
credible witnesses.
If proved, provisions must be distinctly stated and certified
by the judge, under the seal of the court and the certificate
must be filed and recorded as other wills are filed and
recorded.
Witness to Probate
If no contestant, witness shall testify due execution of the
will. If contested, subscribing witnesses must be produced
and examined. If only two witnesses testify, proceeding
should be remanded to the trial court for the testimony of
rd
the 3 witness if available.
Effect of Probate
The order allowing the will (after it has become final) is
conclusive as against the whole world. (proceeding in rme)
Validity of Provisions The court is only concerned with
the due execution of the will and the capacity of the
testator; it does not delve into the validity of the
provisions. The probate of the will does not affect
legitimate rights of the heirs. However, it was held in
Balanay v. Martinez that the court may pass upon the
intrinsic validity before establishing the formal validity
where practical considerations demand such (depending
on the facts)
Rights of Heirs Status and rights of persons to inherit will
only be resolved if in relation to the probate of the will in
an absence of an appeal therefrom.
Title to Property Probate court may only resolve
whether property should be included in the inventory but

is onlt provisional in character; cannot be subject to


execution and doesnt constitute res judicata.
Probate
Setting Aside FAME (fraud, accident, mistake, excusable
negligence) as grounds for setting aside judgment; to be
filed within 60 days after learning of judgment
Probate of Codicil may still be instituted notwithstanding
probate of the will; failure to oppose the will does not
preclude him from opposing codicil.
Probate of New Will not barred by probate of a will if
posterior to the one already probated (or if earlier, can
stand together)
Probate after Intestate Proceedings to render such
letters of administration void without setting them aside.
Disallowance of Wills
Undue Pressure and Influence there must be coercion;
any means employed upon and with the testator which,
under the circumstances by which he was surrounded, he
could not well resist, and which controlled his volition,
and induced him to go what he otherwise would not have
done. It destroys the free agency of the testator and
interfere with the exercise of that discretion which the
law requires as testator to possess as essential to a valid
testamentary disposition.
Fraud or Trickery does not involve coercion; may be such
character that the testator is misled or deceived
(nature/contents of document, extrinsic facts and in
consequence of the deception regarding which the
testator is led to make a certain will which, but for the
fraud, he would not have made. No subsequent
ratification is good without a formal re-execution or
republication.
(Gallanosa v. Arcangel)
The decree of probate is conclusive as to the due execution
or formal validity of the will. That means that the testator
was of sound and disposing mind at the time he executed
the will and was not acting under duress, menace, fraud, or
undue influence; that the will was signed by him in the
presence of the required number of witnesses, and that the
will is genuine.
(Dela Cerna v. Potot)
The joint will being prohibited by law, its validity, in so far as
the estate of the wife is concerned, must be reexamine and
adjudicated de novo. The undivided interest of the wife
should pass upon her death to her intestate heirs and not to
the testamentary heir. Thus as to the disposition of the
wife, the will cannot be given effect. A decree of probate
decree is conclusive on the due execution and the formal
validity of the will subject to such probate.

Roberts v. Leonidas (1984)


A testate proceeding is proper in this case because Grimm
died with two wills and "no will shall pass either real or
personal property unless it is proved and allowed". The
probate of the will is mandatory. It is anomalous that the
estate of a person who died testate should be settled in an
intestate proceeding. Therefore, the intestate case should
be consolidated with the testate proceeding and the judge
assigned to the testate proceeding should continue hearing
the two cases.
(Nepomuceno v. CA and Reyes v. CA)
The probate of a will might become an idle ceremony if on
its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will
be passed upon, even before it is probated, the court should
meet the issue (Nuguid v. Nuguid)
(Dorotheo v. CA)
Intrinsic validity is another matter and questions regarding
the same may still be raised even after the will has been
authenticated. Even if the will was validly executed, if the
testator provides for dispositions that deprives or impairs
the lawful heirs of their legitime or rightful inheritance
according to the laws on succession, the unlawful
provisions/dispositions thereof cannot be give effect.
(Camaya v. Patulandong)
It is well-settled rule that a probate court or one in charge of
proceedings whether testate or intestate cannot adjudicate
or determine title to properties claimed to be a part of the
estate and which are equally claimed to belong to outside
parties. All that said court could do as regards said
properties is to determine whether they should not be
included in the inventory. If there is no dispute, well and
good; but if there is, then the parties, the administrator, and
the opposing parties have to resort to an ordinary action for
final determination of the conflicting claims of title because
the probate court cannot do so. Having been apprised of the
fact that the property in question was in the possession of
third parties and more important, covered by a transfer
certificate of title issued in the name of such third parties,
the respondent court should have denied the motion of the
respondent administrator and excluded the property in
question from the inventory of the property of the estate. It
had no authority to deprive such third persons of their
possession and ownership of the property. The probate
court exceeded its jurisdiction when it declared the deed of
sale and the titles of the Camayas as null and void, it having
had the effect of depriving them possession and ownership
of the property.
(In Re: Will of Palaganas)
Our laws do not prohibit the probate of wills executed by
foreigners abroad although the same have not yet been
probated and allowed in the countries of their execution.

b. Grounds for Disallowance F I F U M


1. Formalities not complied with
2. Insane or mentally incapable of making a will, at the time
of its execution;
3. Force or under duress, or the influence of fear, or threats;
4. Fraud signature
5. Undue and improper pressure and influence, on the part
of the beneficiary or of some other person;
6. Mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature
thereto. (839)
Denial of Probate a will should not be disallowed on
dubious grounds
(Alsua-Betts v. CA)
Between the highest degree of soundness of mind and
memory which unquestionably carries with it full
testamentary capacity, and that degrees of mental

aberration generally known as insanity or idiocy, there are


numberless degrees of mental capacity or incapacity and
while on one hand it has been held that mere weakness of
mind, or partial imbecility from disease of body, or from age,
will not render a person incapable of making a will; a weak
or feebleminded person may make a valid will, provided he
has understanding and memory sufficient to enable him to
know what he is about to do and how or to whom he is
disposing of his property. To constitute a sound and
disposing mind, it is not necessary that the mind be
unbroken or unimpaired or unshattered by disease or
otherwise. It has been held that testamentary incapacity
does not necessarily require that a person shall actually be
insane or of unsound mind."
The mere fact that the testator was in advanced age doesnt
mean he didnt have the capacity or his consent was
vitiated; such should be proven by competent evidence.

B. Institution of Heirs
Art. 356
Kind of Heir
COMPULSORY
VOLUNTARY
LEGAL

Predecease
1. Transmit nothing
2. Representation
1. Transmit nothing
2. NO Representation
1. Transmit nothing
2. Representation

Incapacity
SAME
SAME
SAME

1. In General
Art. 840. Institution of heir is 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. (n)

Renunciation
1. Transmit nothing
2. NO Representation
1. Transmit nothing
2. NO Representation
1. Transmit nothing
2. NO Representation

Disinheritance
1. Transmit nothing
2. Representation
1. Transmit nothing
2. Representation
1. Transmit nothing
2. Representation

A compulsory heir who dies before the testator, a person


incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except in
cases expressly provided for in this Code. (766a)

Art. 841. A will shall be valid even though it should not


contain an institution of an heir, or such institution should
not comprise the entire estate, and even though the person
so instituted should not accept the inheritance or should be
incapacitated to succeed.

c. Compulsory Heirs
Art. 887. The following are compulsory heirs:

In such cases the testamentary dispositions made in


accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs. (764)

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


ascendants, with respect to their legitimate children and
descendants;

a. Extent of grant
Art. 842. One who has no compulsory heirs may dispose by
will of all his estate or any part of it in favor of any person
having capacity to succeed.

(3) The widow or widower;

One who has compulsory heirs may dispose of his estate


provided he does not contravene the provisions of this Code
with regard to the legitime of said heirs. (763a)

(5) Other illegitimate children referred to in Article 287.

b. Effects of predecease of heir


Art. 856. A voluntary heir who dies before the testator
transmits nothing to his heirs.

(1) Legitimate children and descendants, with respect to


their legitimate parents and ascendants;

(4) Acknowledged natural children, and natural children by


legal fiction;

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not


excluded by those in Nos. 1 and 2; neither do they exclude
one another.
In all cases of illegitimate children, their filiation must be
duly proved.

The father or mother of illegitimate children of the three


classes mentioned, shall inherit from them in the manner
and to the extent established by this Code. (807a)
d. Voluntary Heirs
2. Identification of Heirs, Manner of Institution
Art. 843. The testator shall designate the heir by his name
and surname, and when there are two persons having the
same names, he shall indicate some circumstance by which
the instituted heir may be known.
Even though the testator may have omitted the name of the
heir, should he designate him in such manner that there can
be no doubt as to who has been instituted, the institution
shall be valid. (772)
Art. 844. An error in the name, surname, or circumstances of
the heir shall not vitiate the institution when it is possible, in
any other manner, to know with certainty the person
instituted.
If among persons having the same names and surnames,
there is a similarity of circumstances in such a way that, even
with the use of the other proof, the person instituted cannot
be identified, none of them shall be an heir. (773a)
Art. 845. Every disposition in favor of an unknown person
shall be void, unless by some event or circumstance his
identity becomes certain. However, a disposition in favor of
a definite class or group of persons shall be valid. (750a)
Art. 846. Heirs instituted without designation of shares shall
inherit in equal parts. (765)
Art. 847. When the testator institutes some heirs individually
and others collectively as when he says, "I designate as my
heirs A and B, and the children of C," those collectively
designated shall be considered as individually instituted,
unless it clearly appears that the intention of the testator
was otherwise. (769a)
Art. 848. If the testator should institute his brothers and
sisters, and he has some of full blood and others of half
blood, the inheritance shall be distributed equally unless a
different intention appears. (770a)

Art. 849. When the testator calls to the succession a person


and his children they are all deemed to have been instituted
simultaneously and not successively. (771)
Art. 851. If the testator has instituted only one heir, and the
institution is limited to an aliquot part of the inheritance,
legal succession takes place with respect to the remainder of
the estate.
The same rule applies if the testator has instituted several
heirs, each being limited to an aliquot part, and all the parts
do not cover the whole inheritance. (n)
Art. 852. If it was the intention of the testator that the
instituted heirs should become sole heirs to the whole
estate, or the whole free portion, as the case may be, and
each of them has been instituted to an aliquot part of the
inheritance and their aliquot parts together do not cover the
whole inheritance, or the whole free portion, each part shall
be increased proportionally. (n)
Art. 853. If each of the instituted heirs has been given an
aliquot part of the inheritance, and the parts together
exceed the whole inheritance, or the whole free portion, as
the case may be, each part shall be reduced proportionally.
(n)
3. Cause
Art. 850. The statement of a false cause for the institution of
an heir shall be considered as not written, unless it appears
from the will that the testator would not have made such
institution if he had known the falsity of such cause. (767a)
4. Preterition
Art. 854. The preterition or omission 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, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not
inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without prejudice
to the right of representation. (814a)
a. Concept
b. Distinguished from Inheritance
c. Who are covered
d. Effects